UNION OF INDIA & ORS. versus TARSEM SINGH

1. Leave granted. Heard learned counsel for the parties.

p. 105, margin D

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 Resurvey 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.

p. 105, margin E

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 fUed 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 r~stricted 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.

pp. 105–106, margin G

4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law dis-

p. 106, margin C

putes. 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 Balt:Jkrishna 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) :

p. 106, margin C

"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."

p. 106, margin E

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 in.itial 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 :

pp. 106–107, margin G

"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 !aches 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 ......... "

p. 107, margin A

In Shiv Dass vs. Unibn of India - 2007 (9) SCC 274, this Court held:

p. 107, margin F

"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 ju.risdiction. · In the case of pension !he cause of a_ctiqn .actually continues

pp. 107–108, margin F

. from month to month That, however, cannot be. a gro_und to . . . oyerlook deJay in filing the petition .. , ....... If petition is filed . beyond a. rea~onable period _say th_ree, years. normally the · Gou rt vvoL1l<;I reject the _same or restrict thei reli,ef which could

p. 108, margin A

be gr,ante~ to a rea~onable period of about.three years."

p. 108, margin B

· · 5. To summarise, normally, a belated service related claim will be rejected on the ground ·of delay and ·1aches {Where remedy i:s sought by filing a writ petition) or limitation (where remedy is sought by an application fo the Administrative Tribunal). One ofthe exceptions to .the said rule' is ca~es relating to a

p. 108, margin B

continuing wro"ng. Where a sen/ice related claim is based on a continuing wrong, reiief can b.e granted even if there isa long d~lay in ~eeking remedy,. with refer~mce to the date on which the continuing wrong commenced, if such continuing wrong creates a conti[luing source of injury. But there is an e)(ception to

p. 108, margin C

the exception: If the grievance: is in r:espectof 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, ifthe 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 !aches/limitation will be applied. In so· far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/

p. 108, margin D

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 tlie writ petition. : · · · · ·

p. 108, margin F

· · · · · 6. In this case, the delay of .16 years would affect the con- ·sequential 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.

pp. 108–109, margin G

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. R.P. Appeals allowed.

p. 109, margin B

',,

p. 109, margin C