UNION OF INDIA Vs. BANARASI DASS

JUDGEMENT

(1.) THE respondent had reached the maximum in the pay scale of Rs. 425-700 on 1st April, 1979 and remained in the said basic pay till 31st March, 1982 and, therefore, he claimed one stagnation increment of Rs. 25/- per month which had been denied to him. The respondent had relied on OM dated 19th December, 2000 wherein a query had been raised whether stagnation increment is to be taken into account while fixing the pay of retired government servant on notional basis. It had been clarified that in respect of those employees who had retired prior to 1st January, 1986, their pension was required to be updated by fixing their pay as on 1st January, 1986 by adopting the same formula as for serving employees as per the CCS (RP) Rules. It also stipulated that stagnation increment, if any earned by pre-1986 retirees had to be taken into account for the purpose of notional fixation. Consequently, the effect of the OM was that pre-1986 retirees were to be treated as if they were in service on 1st January, 1986 for the purpose of notional fixation of pay so as to ensure complete parity. Considering these facts and the OMs, the Central Administrative Tribunal had directed the petitioners to allow one stagnation increment notionally in terms of Railway board OM dated 12th January, 2001 in case of respondent and holding that the respondent would be entitled to revised pension from 1st October, 2004, by order dated 26th March, 2007 in OA No. 2404 of 2004, Banarsi Dass v. Union of india which is challenged by the petitioner in the present writ petition. The petitioners have contended that the petition was time barred as the cause of action had arisen in the year 1982 when the respondent had attained the age of superannuation and the clarification issued in the year 2000 is not applicable as the respondent had retired in 1982. This cannot be disputed by the petitioners that the arrears of the revised pension has been allowed by the tribunal from the date of petition, i. e. , 1st October, 2004 and not from the date the respondent had retired.

(2.) IN M. R. Gupta v. Union of India and others, AIR 1996 SC 669, the Supreme court had held that if the pay fixation is not in accordance with rules, it would be a continuing wrong against such an employee, which will give rise to a recurring cause of action. The question of limitation would be relevant for recovery of arrears of past period and not for re-fixation of the pension in accordance with rules and such an employee would be entitled to proper fixation of his pay in accordance with rules and to cessation of continuing wrong. In the circumstances, the decision of the Tribunal directing the petitioners to allow one stagnation increment notionally in terms of Railway Board OM dated 12th January, 2001 and directing payment of revised pension from the date of original application before the Tribunal on 1st October, 2004 cannot be faulted nor it can be held that the plea of the respondent was barred by time.

(3.) THE next plea raised by the petitioner is that the respondent is not entitled for benefit under communication dated 27th July, 1983 as he had already attained the age of superannuation, also cannot be faulted as similarly situated person, Shri Guljar, who had retired from Railways EME (F) on 31st october, 1981 much prior to the issuance of the communication dated 27th July, 1983, had been granted pay fixation by inclusion of stagnation increment. Learned counsel for the petitioners have failed to disclose as to how the notional pay fixation and granting of stagnation benefit can be denied to the respondent in the facts and circumstances.