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The Union of India represented by its Secretary to Govt. of India and Others Vs. N Srinivasulu and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 51098, 54922-55037, 53273, 54819-54917, 53277, 54817-818 53575-53577 of 2016 (S-CAT)
Judge
AppellantThe Union of India represented by its Secretary to Govt. of India and Others
RespondentN Srinivasulu and Others
Excerpt:
(prayer: these writ petitions are filed under articles 226 and 227 of the constitution of india praying to quash the order dtd.21.8.2015 passed in o.a.nos.170/01172 to 1174/2015 passed by the central administrative tribunal, bangalore bench, bangalore vide anenx-a to the w.p. 1. as in all the petitions common order of the tribunal is under challenge, they have been considered simultaneously. all petitions are directed against the order dated 21.8.2015 passed by the tribunal in the respective oa whereby the tribunal for the reasons recorded in the order has directed the respondents to extend the benefit of higher grade pay from 28.8.2014. 2. we may record that so far as respondent-authorities are concerned, they have preferred w.p.nos.51098/2016 and 54922-55037/2016 and.....
Judgment:

(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the constitution of India praying to quash the order dtd.21.8.2015 passed in O.A.Nos.170/01172 to 1174/2015 passed by the central administrative Tribunal, Bangalore Bench, Bangalore vide Anenx-A to the W.P.

1. As in all the petitions common order of the Tribunal is under challenge, they have been considered simultaneously. All petitions are directed against the order dated 21.8.2015 passed by the Tribunal in the respective OA whereby the Tribunal for the reasons recorded in the order has directed the respondents to extend the benefit of higher Grade Pay from 28.8.2014.

2. We may record that so far as respondent-authorities are concerned, they have preferred W.P.Nos.51098/2016 and 54922-55037/2016 and W.P.Nos.53575-53577/2016 for challenging the legality and validity of the order passed by the Tribunal for grant of benefit as mentioned in the order of the Tribunal. Whereas, some of the original applicants before the Tribunal have preferred W.P.Nos.53273/2016 and 54819-917/2016 and W.P.Nos.53277 and 54817-818/2016 for challenging the order passed by the Tribunal so far as it relates to not granting the benefit from 1.9.2008 to 28.8.2014 (which is the date fixed by the Tribunal for conferment of the benefit in the impugned order).

3. As per the order passed by this Court today in the respective matters, W.P.Nos.53575-53577/2016 are also included, with the consent of learned Counsel appearing for both the sides.

4. The parties in the present proceedings shall be referred as employees concerned so far as it relates to the original applicants before the Tribunal and shall be referred to the respondent-authorities so far as it relates to respondents before the Tribunal, since there are cross petitions preferred by the employees as well as by the respondent-authorities challenging the very common order of the Tribunal.

5. The short relevant facts are that all employees were initially appointed as Auditors/Data Entry Operators/Clerks, after the recruitment process was undertaken by the concerned department of the respondent-authority. As per the case of the employees they were promoted to the post of Section Officer (Accounts) ( SO-A in short) after passing Departmental Subordinate Accounting Service Examination which is a mandatory requirement. The said promotional post is re-designated as Assistant Accounts Officer which is a Group B Gazetted post and some of the employees thereafter have also got further promotions in the hierarchy of Accounts Officers and Senior Accounts Officers. The grievance on the part of the employees were that those Auditors/Data Entry Operators/Clerks who could not get promotion for one reason or the another, were granted benefit of MACP scheme on account of their length of service, 1st MACP, 2nd MACP or 3rd MACP, as the case may be. But on account of the said benefit of MACP conferred due to length of service they were in the Grade Pay of Rs.5,400/- after 6th Pay Commission recommendations were accepted whereas the employees who were on the higher post after getting promotion were placed in the lower Grade Pay of Rs.4,200/- or Rs.4,800/- as the case may be as per the 6th Pay Commission recommendation. The grievance on the part of the employees was that the persons working in the feeder cadre on account of their length of service gets higher Grade Pay in comparison to the employees who were working on the higher post. As per the employees it was required for the respondent-authorities to step up the pay scale of the employees by putting them in the Grade Pay of Rs.5,400/- but as such was not undertaken they preferred OAs before the Tribunal praying relief inter alia to direct the respondent-authorities to grant the Grade Pay of Rs.5,400/- to the employees with arrears and all consequential benefits and it was alternatively prayed to extend the benefits as per the order passed by Madras Bench of the Tribunal read with the decision of the High Court of Madras read with the decision of the Apex Court in SLP. The Tribunal ultimately vide the impugned order found that the matter is covered by the decision of Madras Bench as well as Bombay Bench of the Tribunal dated 23.12.2010 and 17.11.2004 respectively and the Tribunal took note of the fact that the jurisdictional High Court confirmed the said decision of the Tribunal and the Apex Court in the SLP found no merit. The Tribunal, therefore, ultimately allowed the Applications but for the monetary consequences, the Tribunal found that it should follow from the date of the OA. However, as there was decision of the Bombay Bench of the Tribunal, the Tribunal instead granting benefit as per the decision of Madras Bench of the Tribunal, directed the benefit to be conferred from 28.8.2014 by exercising the discretion. Under the circumstances, the present petitions before this Court. We have already recorded earlier that the respondent-authorities as well as the employees have preferred cross petitions against the very order of the Tribunal. In the petitions of the respondent-authorities it has been contended that no benefit ought to have been granted by the Tribunal whereas in the petitions preferred by the employees it has been contended that the benefit ought to have granted from 1.9.2008 and not from 28.8.2014 as directed by the Tribunal. Hence, the petitions before this Court.

6. We have heard Mr. C.Shashikantha, the learned Central Government Standing Counsel for the respondent-authorities and Mr. Onkara K.B., learned counsel appearing for the employees.

7. It has been contended on behalf of the respondent-authorities that on the basis of MACP scheme, by virtue of clause 20, stepping up is not permitted at all and he further submitted that, after the decision of Madras Bench of the Tribunal and the High Court of Madras and the decision of the Apex Court as well as after the decision of the Bombay Bench of the Tribunal, the Principal Bench of the Tribunal at Delhi has considered all the aspects and has found vide its order dated 26.11.2015 that the upgradation of the Grade Pay is not available to the applicant therein who are in par with the employees herein and, therefore, he submitted that the order passed by the Tribunal deserves to be set aside. He alternatively contended that the OAs before the Tribunal were filed on 14.8.2015 and hence the Tribunal even if it was to extend the benefit could not extend the benefit prior to the date of filing of OA and, therefore, in any case the benefit so ordered by the Tribunal from 28.8.2014 deserves to be modified from the date of filing of the Application before the Tribunal, i.e., 14.8.2015 and hence this Court may interfere to that part of the order.

8. Learned counsel appearing for the employees contended inter alia that the issues are squarely covered by not only the decision of Madras Bench of the Tribunal as well as Bombay Bench of the Tribunal but also by the decision of the High Court of Madras against which the SLP was dismissed by the Apex Court. As per the contention of the learned counsel appearing for the employees, on the contrary, the Tribunal committed error in restricting the benefit from 28.8.2014 but as per his submission it should have been from 1.9.2008 and, therefore, this Court while dismissing the petitions preferred by the respondent-authorities may modify the order passed by the Tribunal for fixing the date for conferment of the benefit with effect from 1.9.2008.

9. We may at the outset record that on following factual aspects there is no dispute:-

(1) All employees were appointed as Auditors/Data Entry Operators/Clerks.

(2) They were promoted to the post of Section Officer (Accounts) after passing Departmental Subordinate Accounting Service Examination.

(3) The aforesaid post of Section Officer (Accounts) is re-designated as Assistant Accounts Officer.

(4) Certain employees from the present group have also got further promotion as Accounts Officer and Senior Accounts Officer.

(Of course, the aforesaid aspect is not much relevant for the purpose of examining the controversy raised in the present matters)

(5) All other persons (other than the employees who were promoted) working as Auditors/Data Entry Operators/Clerks have been granted MACP benefit on account of their requisite length of service as per the MACP scheme and after revision of pay scale as per 6th Pay Scale recommendation they are given Grade Pay of Rs.5,400/-.

(6) The employees concerned after their promotion on the higher post of Section Officer (Accounts)/Assistant Accounts Officer are granted pay revision as per the 6th Pay Commission and placed in the Grade Pay of Rs.4,200/- or Rs.4,800/-, as the case may be, on the basis of length of service.

(7) None of the employees have been placed in the Grade Pay of Rs.5,400/- at par with the Grade Pay of the other persons who were conferred benefit as per the MACP scheme in the cadre of Auditors/Data Entry Operations/Clerks, as the case may be.

10. We may broadly state that if one is working in the higher post, his payscale is supposed to be and expected to be higher in comparison to the payscale of a person working in the lower cadre. Such principle needs to be observed even in a case where on account of MACP scheme conferred upon the employee working in the lower cadre on completion of requisite length of service. But when such contingency arises that the person working in the higher cadre is receiving lesser payscale in comparison to the person working in the lower cadre, the question of stepping up at the time of revision of payscale would normally arise and such stepping up is required to be considered so as to make sure that the person working in the higher cadre does not get, in any case, lesser payscale in comparison to the person working in the lower cadre.

11. As such, the aforesaid contingencies had arisen at the time when there was revision of the payscale in the cadre of Auditor/Data Entry Operator in comparison to the payscale of Section Officer (Accounts) redesignated as Asst. Accounts Officer. At this stage, we may usefully refer to the decision of Division Bench of Madras High Court in W.P.No.18611/2011 and allied matters decided on 19.03.2014. In the said decision, identical question came up for consideration for the very post and the fixation of payscale for Section Officers in comparison to the paysacle of Clerks.

12. The Madras Bench of the Tribunal held that the employees working in the higher cadre of the Accountants promoted from the cadre of clerk would be entitled to Grade Pay of Rs.5,400/- from the date on which the said benefit was extended to the other employees working in the lower cadre, were granted benefit of the Grade Pay of Rs.5,400/-. The appeal was preferred against the said decision of the Tribunal dated 29.12.2010 in O.A.Nos.966/2009 and another before the High Court of Madras in the above referred writ petitions. The Madras High Court after considering the submissions of the parties observed at paragraphs-6 to 13 as under:

6. It is relevant to extract Government of India orders to FR-22 (I)(a), which reads as follows:

Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior.-

(d) the anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation on such promotion in the revised scale. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, provisions of this Note need not be invoked to step up the pay of the senior officer.

For invoking the said provisions, two conditions have to be fulfilled and the first is that junior as well as senior employees must be promoted and consequently they must come from the same cadre, having same scale of pay in the feeder post.

7. It is the vehement submission of the learned counsel appearing for the writ petitioners that in view of MACP Scheme which came into being in the year 2009, FR-22(I)(a)(i) has no application and since the private respondents 4 to 26 in the original applications are stagnated without any promotion, they have been rightly conferred with the benefit of pay grade of Rs.5,400/- and also contended that in the absence of any challenge to the said scheme, it is not open to the private respondents to attack the said benefit conferred on them. In the considered opinion of the Court, the said submission lacks merit and substance for the reason that any action of the State has to pass the test of reasonableness and shall not offend Article 14 of the Constitution of India.

8. In State of Andhra Pradesh V. G. Sreenivasa Rao [(1989) 2 SCC 290], the Hon ble Supreme Court of India has observed as follows:

15. Equal pay for equal work does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved .

As per the above decision, ordinarily grant of higher pay to a junior would be ex-facie be arbitrary but, if there are justifiable ground in doing so, the seniors cannot invoke the equality doctrine.

9. The facts of the present case would disclose that the private respondents herein got promoted on account of passing departmental tests on time, but the private respondents 4 to 26 in the original applications did not pass the said test in time and therefore, they got stagnated and admittedly, both of them hailing from a same cadre and the private respondents 4 to 26 in the original applications were given promotion as Section Officers (adhoc) without any supervisory power and they have to work under the private respondents herein.

10. It is also held in the above cited decision that the differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved and in the case on hand, the private respondents 4 to 26 did not pass the departmental test on time and got stagnated and by granting them higher grade of pay of Rs.5,400/-, the petitioners/appellants herein indirectly putting premium on their inefficiency. It is fairly submitted by the learned counsel appearing for the private respondents that there are not interested in deprivation of the said benefit conferred on the private respondents 4 to 26, but what they pray is that the original applicants/private respondents who are in the grade pay of Rs.4,500/- are to be given the benefit of grade pay of Rs.5,400/-, as given to their juniors of the private respondents 4 to 26 in the original applications.

11. The appellants herein, under the guise of MACP scheme dated 19.05.2009 coupled with the clarification dated 09.11.2009, seeks to deprive the benefit of FR-22(1)(a)(i) to the private respondents and in the considered opinion of the Court, it is unsustainable as it violates equality and it also offends Article 14 of the Constitution of India and the MACP scheme dated 19.05.2009 as well as the impugned order dated 03.08.2009 do not spell out any reason the applicability of FR-22(1)(a)(i), has excluded for the persons like private respondents who are ultimately aggrieved/affected.

12. The Government of India passed series of orders issuing clarification in respect of FR-22(I)(a)(i) and as per Clarification No.23(d), the pay anomaly should be directed as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation of such promotion in the revised scale.

(emphasis supplied)

13. In the case on hand, the private respondents 4 to 26 in the original applications are admittedly juniors to the private respondents in these writ petitions and they did not qualify on time for getting their promotion and consequently got stagnated and on account of the same, they are not conferred with higher grade pay of Rs.5,400/-. The Tribunal has taken into consideration of the fact that admittedly the private respondents 4 to 26 did not pass the departmental test on time and got stagnated at the level of Senior Accountants and since they have been conferred with higher grade pay of Rs.5,400/-, has rightly granted the said relief in their favour. It is to be pointed out at this juncture that the private respondents 4 to 26 in the original applications have not been put to any prejudice and what the Tribunal done was, merely stepped up the pay scale of the original applicants to that of the private respondents 4 to 26 and it is in tune with the principle of parity and equity enshrined in Article 14 of the Constitution of India.

13. Thereafter, ultimately the Madras High Court did not interfere with the order passed by the Tribunal having found that there is no error apparent or infirmity in the reasons assigned by the Tribunal in allowing the main original applications and the petitions were dismissed.

14. We may also record that thereafter the aforesaid view taken by Madras High Court in the above referred writ petition has also been subsequently followed by Madras High Court in its decision dated 03.04.2014 in W.P.No.1078/2012 and allied matters wherein similar order passed by the Madras Bench of the Tribunal were under challenge in respect certain other employees similarly situated.

15. At this stage, we may also record that the aforesaid decision of Madras High Court dated 19.03.2014 in W.P.No.18612/2011 was carried by the respondent-authority before the Apex Court in SLP (C) No.11103/2014 and the Apex Court vide order dated 19.08.2014 passed the following order:

Delay condoned.

We find no merit in this petition. The Special Leave Petition is dismissed.

However, the question of law is left open.

16. As such, one can say that in view of the above referred order of the Apex Court, the view taken by the High Court of Madras was not interfered with by the Apex Court in the SLP, but of course, as the question of law was left open, it can be said that the question of law did not get concluded by the Apex Court.

17. We may also record that more or less similarly situated one of the Asst. Accounts Officer, Mr.Sanjay B.Shetty and Others had preferred Original Applications before the Bombay Bench of the Tribunal for similar relief. In the said Original Applications, the Bombay Bench of the Tribunal vide order dated 17.11.2014 directed the respondents-authorities to grant the revised pay to the applicants therein by fixing the grade pay of Rs.5,400/- from the date on which the said benefit was extended to the subordinates and juniors to the applicants therein.

18. However, the learned Counsel appearing for the respondents-authorities by strongly relying upon the decision of the Principal Bench of the Tribunal in O.A.No.436/2015 decided on 26.11.2015 contended that in the said decision, the Principal Bench of the Tribunal has considered the earlier decisions of Madras Bench of the Tribunal, the decision of the High Court of Madras as well as the dismissal of SLP by the Apex Court and also the order passed by other benches of the Tribunal and thereafter the Principal bench of Tribunal has found that since the consolidated salary drawn by the applicant-employee is higher in comparison to the consolidated salary of the employee working in the lower cadre, the stepping up cannot be granted. It has been further observed that in view of Clause-20 of the MACP scheme, providing for no additional financial upgradation to the senior employees on the ground that the junior employee in the grade has got higher pay, the applicant-employee would not be entitled to the upgradation even if they are promoted. Ultimately, the Principal bench of the Tribunal has dismissed the O.A. made by the employee concerned.

19. The learned Counsel for the respondents-authority contended that the error arisen in the decision of the Madras Bench of the Tribunal or Bombay Bench or the Tribunal as well as the decision of the High Court of Madras were considered and the said decisions were held as per incuriam because Clause-20 of the MACP scheme never came to be considered, coupled with the aspect that it was lost sight of in the said decisions that the consolidated salary of the applicant-employee concerned was in any case higher than the consolidated salary of the junior/persons working in the lower cadre. The learned Counsel submitted that under these circumstances, this Court may not take the same view as was taken by the High Court of Madras, since the dismissal of SLP against the said decision cannot be said as a binding precedent nor the question could be said as concluded by the Apex Court, more particularly, when the Apex Court left the question open even while dismissing the SLP. He therefore submitted that this Court may interfere with the order passed by the Tribunal which has simply gone by the order passed by the Madras Bench of the Tribunal as well as the Bombay Bench of the Tribunal and the decision of the High Court of Madras and the dismissal of SLP against the said order.

20. Whereas the learned Counsel appearing for the employees contended that the view expressed by the Principal Bench of the Tribunal is not correct, apart from the aspects that the decision of the Tribunal will not have any persuasive value when the matter is at the High Court level. He submitted that the High Court of Madras in the above referred decision has well considered all the aspects and the same would hold the field irrespective of the aspect that the question of law at the Supreme Court level is kept open or not.

21. It is true that as such, the decision of the Central Administrative Tribunal may not have persuasive value in comparison to the view taken by any other High Court of the country, but since the question has been examined and the learned Counsel for the respondents-authority has strongly relied upon the said decision for convincing the Court to interfere with the order passed by the Tribunal, we have found it appropriate to consider the said decision of Principal Bench and to deal with the same.

22. In our considered view, the Principal Bench of the Tribunal in the above referred decision has committed error on both the aspects namely, that while relying upon Clause-20 of the MACP Scheme, it has been lost sight of by the Tribunal that clause-20 of MACP scheme would apply only for the senior employee and junior employee working in the same cadre and it cannot be applied to avoid stepping up in case of the employee working in the higher cadre, if he is to get low payscale in comparison to the employee working in the lower cadre who is getting higher payscale.

23. On the second aspect, the Principal Bench of the Tribunal has also committed error in considering the availability of stepping up only if the consolidated salary of the senior or a person working in the higher cadre is less than the junior/person working in the lower cadre. It is hardly required to be stated that when one talks for the payscale and the cadre and other allowances attached to that respective post or the cadre would not assume any importance for maintenance of the parity of the payscale as per the respective cadre. When one speaks for cadre vis- -vis the payscale, it is only the payscale or the grade pay would be holding relevance and not the consolidated salary or the pay which may be arrived at after the respective allowances available to the respective posts. The question of stepping up is to be considered and can be applied for maintaining the parity of the pay scale or grade pay in comparison to the person working in the higher cadre and the person working in the lower cadre on account of length of service or may be on account of the MACP benefit conferred upon the person working in the lower cadre due to completion of requisite length of service. Under these circumstances, we find that both the facets which has been taken as the basis by the Principal bench of the Tribunal for taking a different view, even if considered and examined, the same cannot be said to be valid basis for depriving stepping up of the payscale to the person working in the higher cadre in comparison to the pay scale of the person working in the lower cadre. Hence, we cannot accept the contention raised by the learned Counsel appearing for the respondents-authority.

24. In view of the above observation and discussion, the order passed by the Tribunal directing the benefit of the higher pay scale to the employees working in the higher cadre in the grade pay of Rs.5,400/- would not call for any interference in the petitions preferred by the respondent/Authorities. Hence these petitions deserve to be dismissed.

25. However, as there are cross petitions preferred by the employees so far as the order passed by the Tribunal limiting the benefit of higher grade pay scale from 28.08.2014 only and not granting benefit from 01.09.2008, we may now further examine as to whether the Tribunal has committed any error apparent on the face of record or has exercised jurisdiction in perverse manner or has committed an error of jurisdiction to that extent or not.

26. The learned counsel appearing for the employees contended that once the Tribunal found that the cases were covered by the Madras Bench of the Tribunal, further confirmed by the High Court of Madras as well as the Bombay Bench of the Tribunal, the benefit ought to have been ordered from the date on which the revision of the pay scale was made in respect of the employees working in the lower cadre, i.e., 01.09.2008 and there was no valid reason on the part of the Tribunal to deny the benefit from that date and only to grant benefit from 28.08.2014.

27. Learned counsel submitted that the Tribunal has committed an error apparent on the face of the record to that extent and it can also be said to be a perverse exercise of the discretion by the Tribunal. It is an error of jurisdiction which may be interfered by this court in exercise of its jurisdiction under Article 227 of the Constitution. The learned counsel appearing for the employees relied upon a decision of the Apex Court in the case of State of Karnataka and others Vs. C. Lalitha reported in 2006 (2) SCC 747 and an another decision of the Apex Court in the case of State of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava And Others reported in (2015) 1 SCC 347 for supporting the contention that the Tribunal ought to have given parity by treating everybody equal for the grant of benefit with effect from 01.09.2008.

28. Whereas, the learned counsel appearing for the respondent/Authority submitted that inspite of full knowledge that the grade pay is lower of the employees working in the higher cadre when the pay scale came to be fixed on 01.09.2008, no grievance was raised at the relevant point of time by any of the employees. Further, the other similarly situated employees who were aggrieved by the lower grade pay, raised the grievance before the Madras and as well as all other Benches of the Tribunal. But the employees in the present case accepted the decision of the Authority or in any case did not challenge the same until the petition came to be filed for the first time in August, 2015. Therefore the Tribunal could be said to have committed an error even for grant of benefit with effect from 28.08.2014, but it ought to have been from the date of the O.A. filed before the Tribunal, which is 14.08.2015. He alternatively submitted that in any case, the Tribunal has exercised the discretion by balancing the rights of both the sides by fixing the date 28.08.2014 and hence the appeals preferred by the employees deserves to be dismissed.

29. As such, the delay in approaching the Tribunal would assume importance when the court has to modulate the relief even if ultimately court finds that there is a case on merit. If there a strong case on merit, but the cause is delayed for a sufficient period and the petitioner concerned has slept over his right, court while modulating the relief may not grant benefit for the period during which the delay has been caused or may confer the benefit appropriately so that no undue benefit is taken by the defaulting party which has caused the delay. In any case, what should be the effective date for the purpose of conferment of the benefit would fall in the arena of exercise of the discretion to be exercised by the Forum or the Court. In the present case, it is undisputed position that Madras Bench of the Tribunal did grant the benefit from the day on which the pay scale was fixed of the persons working in the lower cadre, so is the case for Bombay Bench of the Tribunal.

30. However, such benefit or the same treatment can be made available had the employees approached the Tribunal well in time. For a period of about seven years, the employees have slept over their rights and did not approach before the Tribunal for ventilating their grievances and for the first time in August, 2015 the applications have been preferred. The delay of about seven years cannot be leniently viewed. It is true that getting higher pay scale is a continuous cause and therefore it may not result into dismissal of the petition on the ground of delay. But in our considered view, the question may arise for modulating the relief even if the cause is found to be meritorious since the employees concerned have slept over their rights for a long period of seven years. The administration also cannot be made to suffer on account of the delay or default on the part of employee concerned. If the principle of reasonable period is considered, the cause can be said as agitated beyond reasonable period since the period of seven years cannot be termed as a reasonable period. Under these circumstances, when there was delay of about seven years and the petitioners have approached to the Tribunal for the first time in August, 2015, it appears that the Tribunal has exercised the discretion by granting relief from one year earlier from filing of the petition on 28.08.2014 and has balanced the equities and the rights of both the sides, namely, of the employees as well as the administration. We do not find that the exercise of discretion of the Tribunal can be said to be perverse which may call for interference in exercise of the power under Article 227 of the Constitution. When the circumstances are apparent, calling for the exercise of the discretion for balancing the rights and equities of both the sides can neither it be said to be the error apparent on the face of record nor can be said as an error of jurisdiction. In any case, there is no error of law.

31. In the decision of the Apex Court in the case of State of Karnataka, supra, the case before the Apex Court was pertaining to the entitlement in the selection list for the appointment on the basis of the marks secured. The same cannot be equated with the facts of the present case and hence the said decision is of no help to the learned counsel for the employees.

32. Another decision of the Apex Court in State of Uttar Pradesh, the Apex Court itself has observed that the normal Rule is that all similarly situated persons should be equally treated but with the exception in the form of delay, as well as acquiescence. Therefore, it has been observed by the Apex Court that those persons, who did not challenge the wrongful action of their case in acquiescence, woke up after a long delay may be treated differently. We have in the present decision considered the aspect of delay. Under these circumstances and more particularly, keeping in view the facts and circumstances of the present case, we do not find that the said decision would be of any help to the learned counsel appearing for the employees.

33. In view of the aforesaid observations and discussion, the petitions preferred by the respondents as well as petitions preferred by the employees shall stand dismissed.


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