9911796707
TMI Blog2006 (1) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... s working as a Lower Division Clerk in the Ministry of Health, Government of India in the pay scale of Rs. 110 - 180. In December, 1964, on being selected by the Railway Service Commission, such employee was appointed as a clerk in Grade-II in Integral Coach Factory in the pay scale of Rs. 110-180. By the time of leaving the former service, he was drawing basic pay of Rs. 128/-. Such employee retired with effect from 31.7.1996. In the Original Application it was stated by the employee that he had made repeated representations for protection of pay, but they were not considered by the Department. The grievance raised by him before the Labour Court of Central Government was also dismissed. Subsequently, the employee had moved the Pension Adalath in the year 2001, but the Pension Adalath also gave a reply in negative. In the Original Application it was indicated that he had made several representations between 1965 and 1996, but no proper reply had been given. On the basis of the aforesaid allegations, the Original Application was filed before the Central Administrative Tribunal on 9.9.2002. 4. A reply statement was filed on behalf of the present petitioner in such O.A. No. 902 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter by examining the question in perspective of principles relating to laches, but the Tribunal has not however specifically considered as to whether the claim for protection of pay, which had been specifically rejected in 1968, was barred by limitation. It is further submitted that the observation of the Tribunal that pay fixation is a continuous cause of action and therefore there can be no rejection on the ground of delay cannot be sustained in law as the prayer for pay fixation has been specifically rejected. Learned counsel for the petitioner has also submitted that even on merit the conclusion of the Tribunal that the employee was entitled to pay protection by virtue of subsequent Office Memo dated 17.6.1965 is not correct as the employee had entered into service of the Railways on 9.12.1964, before introduction of the Office Memo dated 17.6.1965. It has been further submitted by him that the decision of the Supreme Court reported in (1983)ILLJ104SC D.S. Nakara v. Union of India has been subsequently distinguished in several decisions of the Supreme Court reported in (1995)IILLJ307SC Union of India v. P.N. Menon and Ors., (1999)ILLJ238SC V. Kasturi v. Managing Director, St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as all other conditions are satisfied. Admittedly the employee had applied for selection through proper channel and he had to resign his post under another Department of the very same Central Government. Therefore, the benefit of past services is to be given for the purpose of fixation of pay in the new post by treating the resignation as a technical formality'. 11. Learned counsel for the petitioner has however placed strong reliance upon paragraph 2, where it is indicated that the orders will have effect from the date of issue and past cases will not be reopened . It is however significant to note that in the very same paragraph 2, it is indicated Outstanding cases may, however, be dealt with in accordance with these orders. The entire paragraph 2 has to be read as a whole and not in a disjointed manner. The expression Outstanding cases may, however, be dealt with in accordance with these orders can only mean that such clarification would be applicable to the employees who are still continuing in service on the date of issuance of such clarification. Even if a more strict view is taken, it can only mean that if any case is finally decided before introduction of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. 16. In the present case, the claim of the employee for pay protection and payment on that basis was rejected as early in December, 1968. It is of course true that at that time the Administrative Tribunal was not in existence and, therefore, the employee could have challenged such matter only by filing a writ petition. It is also true that for filing a writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Tribunals Act, such an application could not have been filed beyond the period contemplated under Section 21. That part of the order is required to be set aside. 18. So far as the pension is concerned, the matter stands on a slightly different footing. The right to receive pension is a continuing right. The employee after having retired in 1996 has of course kept quiet till 2001, but thereafter he had agitated the matter for the first time in 2001. The employee approached the Pension Adalath in 2001 and therefore he is entitled to pension on the basis of proper pay payable at least from 19th October, 2001, when he had approached the Pension Adalath. 19. Learned counsel appearing for the petitioner had however submitted that since the employee's right to pay protection was barred by limitation, the consequential relief of claiming pension on the basis of such pay protection should be taken to be barred by limitation. We are unable to accept such submission made by the learned counsel for the petitioner. 20. Law is well settled that the principle of limitation bars the remedy but does not extinguish the right, save and except Section 27 of the Limitation Act, by virt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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