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Dr. Dilip Kumar vs. Indian Council Of Agricultural Research And Ors. - (High Court of Delhi) (14 Nov 2022)

If an issue is related to payment or refixation of pay or pension, relief can be granted in spite of delay as it does not affect the rights of third parties

MANU/DE/4426/2022

Service

Petitioner impugns order whereby the original application of the Petitioner impugning order was dismissed. Petitioner is also aggrieved by order whereby the original application filed by the petitioner seeking a declaration that he is entitled to retirement pension has been dismissed on the ground of limitation.

The Tribunal in the impugned order has held that, Petitioner took voluntary retirement from service on 22nd January, 1994 and the Petitioner thereafter filed an application in 2015 seeking grant of pension which was rejected on the ground of delay.

In Union of India and Ors. vs. Tarsem Singh, the Supreme Court has held that normally a belated service-related claim would be rejected on the ground of delay and laches, however, one of the exceptions to the rule is cases relating to continuing wrong. The Supreme Court has held that where a service-related claim is based on the 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. The Supreme Court further mentioned a caveat in the form of an exception to the exception i.e if the grievance is in respect of any order or administrative decision which related to or affected several others then reopening the issue would affect the settled rights of third parties. In those circumstances applying the exception to exception the claim would not be entertained. As an example, the Supreme Court stated that if an issue related to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. The Supreme Court thereafter directed that in such cases the consequential relief of recovery of arrears would be restricted normally to a period of three years prior to the date of filing of the writ petition.

The claim of the Petitioner is for grant of pension on account of the alleged qualifying service rendered by the Petitioner. No doubt, there is a gross unexplained delay on account of the petitioner in approaching the Tribunal, however, since the grant of pension is a continuing wrong and cause of action accrues on a month to months basis, the Tribunal should have at least considered the claim of the petitioner on merits and not rejected it solely on the ground of limitation. Since the case of the petitioner is with regard to payment of pension it also does not fall within the category of exception to the exception as carved out by the Supreme Court. The impugned orders are set aside. The original application of the Petitioner is restored to its original number. The Tribunal shall consider the case of the Petitioner on merits. Petition allowed.

Tags : PENSION   DELAY   ENTITLEMENT  

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