Notional Increment
Notional Increment
Notional Increment
Author: R.V.Raveendran
Reportable
IN THE SUPREME COURT OF INDIA
Vs.
ORDER
R.V.RAVEENDRAN, J.
2. The respondent while working in the Indian Army was invalidated out of Army service, in medical
category, on 13.11.1983. He approached the High Court in 1999 seeking a direction to the appellants
to pay him disability pension. A learned Single Judge by order dated 6.12.2000 allowed the writ
petition and directed the appellants to grant him disability pension at the rates permissible. In so far
as arrears, the relief was restricted to 38 months prior to the filing of the writ petition. The
respondent was also directed to appear before the Re-survey Medical Board as and when called
upon by the appellants. The appellants did not contest the said decision and granted disability
pension to respondents and also released the arrears of disability pension for 38 months.
3. The respondent however was not satisfied. According to him the disability pension ought to be
paid from the date it fell due on 13.11.1983. He therefore filed a Letters Patent Appeal. The said
appeal was allowed by the Division Bench of the High Court by judgment dated 6.12.2006. The
Division Bench held that the respondent was entitled to disability pension from the date it fell due,
and it should not be restricted to a period of three years and two months prior to the filing of the
writ petition. By a subsequent modification order dated 23.2.2007, the Division Bench also granted
interest on the arrears at the rate of 6% per annum. The said judgment and order of the Division
Bench is challenged in this appeal. The only question that therefore arises for our consideration is
whether the High Court was justified in directing payment of arrears for a period of 16 years instead
of restricting it to three years.
4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied
to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a
continuing injury. `Recurring/successive wrongs' are those which occur periodically, each wrong
giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare vs.
Shree Dhyaneshwar Maharaj Sansthan - [AIR 1959 SC 798], explained the concept of continuing
wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation
Act, 1963) :
"It is the very essence of a continuing wrong that it is an act which creates a
continuing source of injury and renders the doer of the act responsible and liable for
the continuance of the said injury. If the wrongful act causes an injury which is
complete, there is no continuing wrong even though the damage resulting from the
act may continue. If, however, a wrongful act is of such a character that the injury
caused by it itself continues, then the act constitutes a continuing wrong. In this
connection, it is necessary to draw a distinction between the injury caused by the
wrongful act and what may be described as the effect of the said injury."
In M. R. Gupta vs. Union of India [1995 (5) SCC 628], the appellant approached the High Court in
1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was
rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and
recurring wrongs and reversed the decision. This Court held :
"The appellant's grievance that his pay fixation was not in accordance with the rules,
was the assertion of a continuing wrong against him which gave rise to a recurring
cause of action each time he was paid a salary which was not computed in accordance
with the rules. So long as the appellant is in service, a fresh cause of action arises
every month when he is paid his monthly salary on the basis of a wrong computation
made contrary to rules. It is no doubt true that if the appellant's claim is found
correct on merits, he would be entitled to be paid according to the properly fixed pay
scale in the future and the question of limitation would arise for recovery of the
arrears for the past period. In other words, the appellant's claim, if any, for recovery
of arrears calculated on the basis of difference in the pay which has become time
barred would not be recoverable, but he would be entitled to proper fixation of his
pay in accordance with rules and to cessation of a continuing wrong if on merits his
claim is justified. Similarly, any other consequential relief claimed by him, such as,
promotion etc., would also be subject to the defence of laches etc. to disentitle him to
those reliefs. The pay fixation can be made only on the basis of the situation existing
on 1.8.1978 without taking into account any other consequential relief which may be
barred by his laches and the bar of limitation. It is to this limited extent of proper pay
fixation, the application cannot be treated as time barred........."
In Shiv Dass vs. Union of India - 2007 (9) SCC 274, this Court held:
"The High Court does not ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public inconvenience and bring in
its train new injustices, and if writ jurisdiction is exercised after unreasonable delay,
it may have the effect of inflicting not only hardship and inconvenience but also
injustice on third parties. It was pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of third party rights in the meantime is
an important factor which also weighs with the High Court in deciding whether or
not to exercise such jurisdiction.
In the case of pension the cause of action actually continues from month to month.
That, however, cannot be a ground to overlook delay in filing the petition.......... If
petition is filed beyond a reasonable period say three years normally the Court would
reject the same or restrict the relief which could be granted to a reasonable period of
about three years."
5. To summarise, normally, a belated service related claim will be rejected on the ground of delay
and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought
by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief
can be granted even if there is a long delay in seeking remedy, with reference to the date on which
the continuing wrong commenced, if such continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the grievance is in respect of any order or
administrative decision which related to or affected several others also, and if the re-opening of the
issue would affect the settled rights of third parties, then the claim will not be entertained. For
example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in
spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating
to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of
laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past
period, the principles relating to recurring/successive wrongs will apply. As a consequence, High
Courts will restrict the consequential relief relating to arrears normally to a period of three years
prior to the date of filing of the writ petition.
6. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court
was not justified in directing payment of arrears relating to 16 years, and that too with interest. It
ought to have restricted the relief relating to arrears to only three years before the date of writ
petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to
have granted interest on arrears in such circumstances.
7. In view of the above, these appeals are allowed. The order of the Division Bench directing
payment of disability pension from the date it fell due, is set aside. As a consequence, the order of
the learned Single Judge is restored.