Rishipalsingh S/O Mukhrajsingh Choudhary v. Municipal Commissioner, Nagpur
2023:BHC-NAG:14363-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
W RIT PETITION NO.6 OF 2022 Rishipalsingh s/o Mukhrajsingh Choudhary Aged 72 years, Occupation - Retired, R/o. 106/A, Rajaram Society, Jafar Nagar, Beh. Raut Sabhagruh, Katol Road, Nagpur - 440013 ...PETITIONER
VERSUS
Municipal Commissioner, N.M.C. Mahanagar Palika Bhavan, Civil Lines, Sadar, Nagpur - 440001 ...RESPONDENT ______________________________________________________ Mr. Vipin M. Lute, Advocate for the petitioner. Mr. A.S. Mehadia, Advocate for the respondent. ______________________________________________________
CORAM
:
AVINASH G. GHAROTE & URMILA JOSHI-PHALKE, JJ.
RESERVED ON :
AUGUST 24, 2023 PRONOUNCED ON :
SEPTEMBER 05, 2023 JUDGMENT (Per Urmila Joshi-Phalke, J.
) RULE. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties. 2.
By this petition, the petitioner has claimed revised pension as per the Government Resolution dated 22nd June, 2009 and balance
amount of Gratuity. The petitioner was an employee of Nagpur Municipal Corporation and serving as a Medical Officer (Health Department) from 10th July, 1982 to 31st July, 2008. He served continuously for 26 years. The petitioner retired on 31st July, 2008. After his retirement, 6th Pay Commission came into force and was made applicable to the retired employee from 01st January, 2006 as per the Government Resolution dated 27th December, 2018. However, the respondent - N.M.C. did not make it applicable from the above dates but it was made applicable from 01st December, 2010. The respondentN.M.C. had not revised his pension as per 6th Pay Commission. The petitioner has made several representations to revise his basic pay, the respondent-authority has revised his pension incorrectly @ Rs.15,612/-.
As per the contention of the petitioner, he is entitled to receive pension in view of Government Resolution No.SNV1009/PK33/SEVA-4 dated 22nd June, 2009. In view of the said Government Resolution, clause No.6 - an employees who have completed 20 years of service are qualified to get the retirement benefit i.e. pension by calculating 50% of last basic pay. His last month's basic pay at the time of retirement was Rs.32,070/-, and therefore, his pension ought to have been calculated at 50% of last basic pay. But the respondent has calculated his pension without considering the Government Resolution dated 22nd June, 2009.
Rs.2,50,000 on his retirement and this amount is also wrongly calculated. In the Government Resolution dated 22nd June, 2009 in para No.7, the formula for calculating the gratuity amount is provided which says that 16.5 times of the basic pay or Rs.5,00,000/- whichever is less would be considered as the gratuity amount for the full service of 33 years. The petitioner had completed 26 years of service and hence the days for gratuity amount period is to be calculated as 15 days for one year of service, and therefore, his paid days for gratuity have been calculated as 390 days i.e. 13 months, therefore, the gratuity amount should have been Rs.4,16,910/- but the respondent authority paid Rs.2,50,000/- which is less. It is further contention of the petitioner that he had filed Writ Petition No.
1934 of 2022 before this Court for seeking same relief. At the relevant time, this Court has directed the petitioner to put his demand with the Employer - N.M.C. and liberty was granted to him to file the writ petition if it is not considered. As per the order of this Court he had made representation on 13th June, 2022 but the respondent authority has not considered the said representation nor given any reply to the said representation, therefore, he constrains to file the present writ petition.
3.
The contention of the petitioner is opposed by the respondent - N.M.C. on the ground that the present petition is liable to be dismissed
summarily on the ground of delay and laches. The petitioner stood retired from service on 31st July, 2008 and as per rules the petitioner was paid pension since the month of August 2008. The 5th Pay Commission was made applicable to the petitioner in the year 2010 with effect from 01st January, 2006. The petitioner has approached to this Court after lapse of almost 10 years and has not given any explanation much less sufficient cause for approaching this Court after lapse of more than 10 years. Hence, the present petition is liable to be dismissed. 4.
It is further contention of the respondent - N.M.C. that the salary including Dearness Pay of the petitioner at the time of his retirement was Rs.19,875/- and as per the rules, the petitioner was paid Pension of Rs.7820/- per month. The petitioner has never objected to the said calculation. The respondent on 01st December, 2010 had decided to give benefits of 5th Pay Commission to its employees with effect from 01st January, 2006 subject to the condition that difference of amount of salary/pension/gratuity till 01st December, 2010 shall not be paid to any of the employees. The petitioner has accepted the aforesaid condition, and therefore, rightly not claimed the difference of amount of salary. By taking into consideration the decision to implement 5th Pay Commission, the petitioner though retired on 31st July, 2008, his salary including Dearness Pay was fixed at Rs.32,070/- per month for the
purposes of calculating the pension. The respondent by adopting the same method calculated the pension, and therefore, the contention of the petitioner that as per the Clause No.6 of the Circular dated 22nd June, 2009 the petitioner is not entitled for an amount of Rs.16,035/- per month towards the pension.
5.
Heard Shri V.M. Lute, learned Counsel for the petitioner. He reiterated the contention and submitted that the petitioner is entitled to receive the pension as per the revised pay. The petitioner has rendered his 26 years service as a Medical Officer and retired on 31st July, 2008. The Nagpur Municipal Corporation has made applicable the 6th Pay Commission from 01st December, 2010. Thus, in view of Clause No.6 of the said Government Resolution No.SNV1009/PK33/SEVA-4 dated 22nd June, 2009, the petitioner is entitled to receive 50% of average of his last 10 months basic pay or 50% of last months basic pay as a pension which is not considered. The gratuity amount is also not calculated as per said Government Resolution. As far as the delay and laches is concerned he submitted that the cause of action is continuous.
The cause of action in case of pensionary benefits continues from month to month, and therefore, the petitioner is entitled to receive the arrears of pension by considering his revised pay. He is also entitled to receive the amount of gratuity in view of the said Circular.
Mehadia submitted that there is inordinate delay in claiming the said relief. The petitioner never approached to the respondent for his revised pay. He accepted the calculations while fixing his pension. The writ petition is filed after 10 years thus, there is delay and laches and on the ground of delay and laches the writ petition deserves to be dismissed. 6.
In support of his contention he placed reliance on the State of Maharashtra Vs. Digambar [(1995) 4 SCC 683] and Chairman, State Bank of India and anr. Vs. M.J. James [(2022) 2 SCC 301] wherein it is held that how a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like.
Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend.
of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on.
Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it.
Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief.
relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
7.
On the basis of this observation, Shri Mehadia, learned Counsel submitted that there is inordinate delay in claiming the said relief, and therefore, the petition deserves to be dismissed. 8.
On hearing the learned Counsel for the parties and on perusal of the petition and the reply, there is no dispute that the petitioner was serving with the Nagpur Municipal Corporation as a Medical Officer. There is also no dispute that he retired from service on 31st July, 2008. After his retirement, 6th Pay Commission came into force and was made applicable to the retired employees from 01st January, 2006 as per the Government Resolution dated 27th October 2008. Said Government Resolution is reproduced for the reference :
"
या समितीने केले्ቡा मि फार ी्ा अनुषंगाने संदቝኋामिन (२) वरील
ासनमिन्ቓयमिदनांक२७फे्ቜुवारी, २००९्ाआदे ा्ቝयेमिनवृ्ቈीवेतन ारकां्ामिनवृ्ቈीवेतना्ቖेसुार्ቓाकर्ቒाचामिन्ቓयघे्ቒातआलाआहे. ्ቓानुसार ासनानेहारा्ቖ्रनागरीसेवा(मिनवृ्ቈीवेतन) मिनय १९८२ील मिनवृ्ቈीवेतन, मिनवृ्ቈी/ ृ्ቓुउपदान आमि्ቓ कुटुंब मिनवृ्ቈीवेतन मिनयमित
कर्ቓा- यातसेचहारा्ቖ्रनागरीसेवा( मिनवृ्ቈीवेतनाचेअं रा ीकर्ቓ) मिनय १९८४ीलमिनया्ቖेखालील्ቚा्ቓेफेरबदलकर्ቒाचामिन्ቓयघेतला असूनहेफेरबदल ासकीयकचारीतसेचउपरो्ቤेखिखतमिनय ्ቋांना लागूआहेतअ ाइतरकचा- यांनालागूराहतील."
9.
Said Government Resolution was made applicable to the retired employees from 01st January, 2006. It is not disputed that the Nagpur Municipal Corporation made it applicable from 01st December, 2010. If the said Government Resolution is perused it states about the rules as to how the amount of pension is to be calculated regarding the persons who are already retired. The relevant Clause No.6 states about the rule how the pension is to be calculated. It is reproduced as under: "
२०वषाचीअहताकारीसेवापू्ቓ के्ቡानंतरमिनयतवयोानानुसार/ ्ቭे्ስा सेवामिनवृ्ቈीघेउनसेवामिनवृ्ቈहो्ቓा- याकचा- यांनासेवामिनवृ्ቈी्ा ेवट्ा १०मिह्ातअमि=तकेले्ቡासरासरीूळवेतना्ामिकंवा ेवट्ा मिह्ातघेतले्ቡाूळवेतना्ा५०% यापैकी=ीर्ሪ कचा-यास लाቝኋदायकठरेल, तीर्ሪ मिनवृ्ቈीवेतन्ቧ्ቓूनअनु्ሺेयहोईल. ्ቓाुळे मिद.१.१.
नंतर सेवामिनवृ्ቈ झाले्ቡा ्ቋा मिनवृ्ቈीवेतनारकांचे मिनवृ्ቈीवेतन्ቓां्ाअहताकारीसेवेतቝኋरघालूनमिनमिHतकर्ቒातआले आहे, ्ቓा मिनवृ्ቈीवेतनारकांचे मिनवृ्ቈीवेतनही या सु्ቔानुसारच मिनमिHत कर्ቒातयावे."
10.
The petitioner has also claimed that the gratuity amount is also not calculated by the respondent as per the Government Resolution. He referred Clause No.7 of the said Government Resolution which is reproduced hereunder:
"७.
हारा्ቖ्रनागरीसेवा(मिनवृ्ቈीवेतन) मिनय १९८२ीलमिनय ९(३६) (एक) ्ቖे्ቤा्ቅाके्ቡानुसारूळवेतनावरमिनवृ्ቈी/ ृ्ቓुउपदानाची
परिरग्ቓनाकर्ቒातयेईल.
उपदानाचीकालयादावेतना्ासाडेसोळा पटमिकंवापाचलाखयापैकी=ीकीअसेलतीराहील."
11.
Thus, in view of clause No.7, the petitioner is entitled to receive the gratuity amount 16.5 times of the basic pay or Rs.5,00,000/- whichever is less. As per his contention only amount of Rs.2,50,000/- was sanctioned to him as gratuity amount in stead of Rs.4,16,910/-. He also placed reliance on the Government Circular dated 27th December, 2018 which is a revised Government Resolution which says that the earlier Government Resolution is made applicable from 01st January, 2006. The clauses in the earlier Government Resolution were made applicable from 01st January, 2006. It is further declared that the employees who retired during 01st January, 2006 to 26th February, 2009 are also entitled for the revised pension in view of the said Government Resolution. The petitioner has claimed that his last drawn pay was Rs.
32,070/- and by considering the same 50% of the last month's basic pay comes to Rs.16,035/-, and therefore, he is entitled to receive revised pension by calculating his pension on the basis of his basic pay. However, the respondent has calculated it incorrectly. He also claimed that he is entitled to receive the gratuity 16.5 times of the basic pay. His both contentions are substantiated by the Government Resolution dated 27th October, 2008.
and now after delay of 10 years he is claiming the said relief which he is not entitled as now no cause of action arose. As far as the demand by the petitioner is concerned, it is the duty of the respondent to revise the pension of the petitioner. The respondent was under obligation to revise the pension of all the employees who are retired during the period from 01st January, 2006 to 26th February, 2009. The revised Resolution of the Government dated 27th December, 2018 by which all the departments were informed in clause No.7 which is reproduced hereunder: " 7- loZlk/kkj.k lqpuk %& अ)
ासनमिवቝኋागांकरीतासूचना&
ासना्ा ्ቚ्ቓेक मिवቝኋागाने ्ቓा्ा अमिप्ቓाखालील सव कायालय ्ቚुखांनीयांनीमिदनांक०१-०१ते -०२२००९याकालावीतील मिनवृमि्ቈवेतनारकां्ामिनवृमि्ቈवेतन@ कुटुंबमिनवृमि्ቈवेतनाची्ቚकर्ቓेसुारिरत करुन याबाबत दर सहा मिह्ांनी आढावा ्ቇावा- ्ቓां्ा अमिप्ቓाखालीलएखा्ቕाकायालय्ቚुखांनीयांनीसुारिरतमिनवृमि्ቈवेतन ्ቚकर्ቓ हालेखापाल कायालयास सादर न के्ቡाूळे उ्ቓवले्ቡा ्ायालयीन्ቚकर्ቓासतोमिवቝኋागसव्ቭी=बाबदारराहीलब) कायालय्ቚुखयां्ासाठीसुचना- १कायालय ्ቚुख यांनी मिदनांक ०१-०१ते -०२या कालावीत सेवामिनवृ्ቈ झाले्ቡा सव
ासकीय कचारी यां्ा मिनवृमि्ቈवेतनाची्ቚकर्ቓेउपरो्ሹ्ቚा्ቓेसुारिरतकरुना- हालेखापाल कायालयाससेवापु्ቜकासहमिवमिहतनूना्ቅ- ६- ्ቖेसुार्ቓेसाठीसादर करावीत- ्ቋा मिनवृमि्ቈवेतनारकां्ा@कुटुंबमिनवृमि्ቈवेतनारकां्ा मिनवृमि्ቈवेतनाचे अमिቝኋलेख उपल्ቓ नसतील अ ा ्ቚकर्ቓी मिनवृमि्ቈवेतनारकांनी@ कुटुंबमिनवृमि्ቈवेतनारकांनी संबंमित कायालय ्ቚुखाकडेP.P.O. ( मिनवृमि्ቈवेतन्ቚदानआदे ) ्ा्ቚतीसहअ= करावा- कायालय्ቚुखाने अ= ्ቚा्झा्ቡानंतरयो्ቆती हामिन ाकरून मिनवृमि्ቈवेतन्ቚकर्ቓसुार्ቓेकरीताा- हालेखापालकायालयाससादर करावे-
२मिदनांक ०१-०१ते -०२या कालावीत सेवामिनवृ्ቈ झाले्ቡा सव
ासकीय कचारी यां्ा सुारिरत मिनवृमि्ቈवेतनाची@ कुटुंबमिनवृमि्ቈवेतनाची ्ቚकर्ቓे तातडीने सादर कर्ቒाची द्ቌता ्ቇावी- सुारिरत मिनवृमि्ቈवेतन@ कुटुंबमिनवृमि्ቈवेतन ्ቚकर्ቓांबाबतचा अहवालसंबंीत्ቚ ासकीयमिवቝኋागासपाठमिव्ቒातयावा-"
12.
Thus, in view of the said Government Circular also it was the respondent who has to revise the pension of the petitioner in view of the Government Resolution dated 01st January, 2006 which was made applicable to the employees of the Nagpur Municipal Corporation from 01st December, 2010.
13.
As per the respondent the claim of the petitioner is barred by the limitation as there is a delay and laches in claiming the relief. He also placed reliance on the various judgments referred above. The delay as long as the one occasion in this case would result in the dismissal of the petition on the ground of laches if the cause of action is not continuous. It is no doubt true that the cause of action in case of pensionary benefits continues from month to month but, it is well settled that in case of delay in filing the writ petition beyond the period of 3 years, the monetary relief could be restricted even in case of pensionary benefits only for a period of 3 years preceding the date of filing the writ petition. In cases when the cause of action is not continuous, a writ petition seeking a particular relief would be barred by laches as mere
making of representation to an authority would not stop the period of limitation. It is held by the Honourable Apex Court from time to time that monetary relief could be granted for a period of 3 years preceding the date of filing of the writ petition even if the cause of action is continuous. The monetary reliefs payable towards pension are also governed by the same rule. The same ratio is laid down by the Honourable Apex Court in the case of M.R. Gupta Vs. Union of India (UOI) and ors. [AIR 1996 SC 669], Jai Dev Gupta Vs. State of H.P. and ors. [AIR 1998 SC 2819], Shiv Dass Vs. Union of India (UOI) and ors. [AIR 2007 SC 1330] and Union of India (UOI) and ors. Vs. Tarsem Singh [(2008)2 SCC (LS) 765]. Thus, considering the Government Resolution which entitles the petitioner for a revised pension as well as Corrected as per Court's order dated 26/09/2023.
the gratuity, the petitioner would be entitled to the arrears of the family pension only for a period of 3 years preceding the date of filing of the writ petition i.e. from 08th September, 2022. 14.
Hence, for the reasons aforesaid, we pass the following order :
(i) The writ petition is partly allowed.
(ii) It is declared that the petitioner is entitled for the revised pension in view of the Government Resolution dated
01st January, 2006 made applicable from 01st December, 2010 by the respondent.
(iii) The respondent - N.M.C. is directed to pay revised Corrected as per Court's order dated 26/09/2023.
family pension to the petitioner from September, 2019. The arrears of the pensionary benefits with effect from 08th September, 2019 should be paid to the petitioner within a period of six weeks. If the aforesaid directions are not complied with the respondents would be liable to pay the aforesaid amount with interest @18% per annum. 15.
Rule is made absolute in the aforesaid terms. No costs. (URMILA JOSHI-PHALKE, J.) (AVINASH G. GHAROTE, J.) *Divya