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D.N. Kaul Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Limitation
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 127 of 1984
Judge
Reported inAIR1985HP39,(1985)IILLJ143HP
ActsLimitation Act, 1963 - Schedule - Article 7
AppellantD.N. Kaul
RespondentState of Himachal Pradesh and ors.
Appellant Advocate Manohar Lal Sharma, Adv.
Respondent Advocate L.S. Panta, Dy. Adv. General
DispositionPetition allowed
Cases ReferredMaimoona Khatun v. State of U. P.
Excerpt:
- .....governing the payment of difference of salary to the petitioner as a result of the award of selection grade with retrospective effect. 2. the formal order awarding the selection grade to the petitioner was passed on dec. 22, 1981, by the director of education, himachal pradesh, in pursuance of the directions of the state government contained in their letter dt. sept. 9, 1981. under the said order, the selection grade was awarded to (contd. on col. 2) the petitioner on and with effect from april 1, 1961. be it stated that even if there was any earlier order awarding the selection grade to the petitioner on and with effect from a later date, the said order was displaced by the order dt. dec. 22,1981, which was passed in order to give effect to the decision of the state government.....
Judgment:

P.D. Desai, C.J.

1. The question hereinrelates to the period of limitation governing the payment of difference of salary to the petitioner as a result of the award of Selection Grade with retrospective effect.

2. The formal order awarding the Selection Grade to the petitioner was passed on Dec. 22, 1981, by the Director of Education, Himachal Pradesh, in pursuance of the directions of the State Government contained in their letter dt. Sept. 9, 1981. Under the said order, the Selection Grade was awarded to (contd. on col. 2)

the petitioner on and with effect from April 1, 1961. Be it stated that even if there was any earlier order awarding the Selection Grade to the petitioner on and with effect from a later date, the said order was displaced by the order dt. Dec. 22,1981, which was passed in order to give effect to the decision of the State Government taken on an appeal preferred by the petitioner against the earlier order. The difference of salary upon being awarded the Selection Grade thus accrued due to the petitioner only on Dec. 22, 1981.

3. Article 7 in the First Division of the Schedule of the Limitation Act, 1963, reads as under:

Description of suit.

Period of limitation.

Timefrom which period begins to run.

1

2

3

'7. Forwages in case of any other person.

Three years.

When the wages accruedue.'

4. The period of limitation of three years prescribed in Article 7 begins to run from the time the wages accrue due. The arrears could not be regarded as having accrued due to the petitioner before a formal order awarding Selection Grade was made by the competent authority and was made known to him. Till the formal order was passed and communicated, the right to recover such arrears could not possibly have been enforced by the petitioner. The starting point of limitation, therefore, is the day on which the formal order passed by the Director of Education came to the knowledge of the petitioner.

5. Any other view would result in gross and substantial injustice. By the order in question, the petitioner was awarded the Selection Grade with retrospective effect. Merely because the competent authority took time to arrive at a decision and as a result thereof a number of years elapsed between the date on and with effect from which the Selection Grade has been awarded and the decision to award the same has been taken, the petitioner cannot be deprived, for no fault of his, of the arrears by way of difference of salary for the period beyond three years immediately preceding the passing of the order awarding the Selection Grade. Anyinterpretation, which places him in such a strange predicament and gives an undeserved benefit to the State, cannot be allowed to prevail. Indeed, on the facts and in the circumstances of the case, any attempt on the part of the State to withhold or retain the entire arrears beyond the period of three years immediately preceding the making of the order is wholly without any legal or moral justification.

6. For the foregoing reasons, we are clearly of the opinion that in the present case, the right to claim arrears of salary arose in the eye of law only on the day on which the formal order awarding the Selection Grade was passed and made known to the petitioner. Even though the arrears of salary thereupon becoming due and payable cover a period running far into the past, the claim of the petitioner to recover such arrears cannot be defeated on the specious ground that under the law of limitation the petitioner is entitled to the payment of arrears for a period of only three years immediately preceding the passing of such order. Since the period of three years from the date of the passing and the communication of the said order has not expired even now, the petitioner is entitled to recover the arrears in full.

7. In the view which we are taking, we aresupported by the decision of the Supreme Court in Maimoona Khatun v. State of U. P., AIR 1980 SC 1773, in which the provisions of Article 102 of the Limitation Act, 1908, which are in pari materia with An. 7 of the Limitation Act, 1963, have been construed and applied in regard to the claim of arrears of salary upon reinstatement of an employee in cases where an order of dismissal or removal is set aside by a civil court.

8. In the result, the writ petition succeeds and it is allowed. The respondents are directed to pay to the petitioner within a period of six weeks from today the entire arrears of salary becoming due and payable to him upon his being awarded the Selection Grade on and with effect from April 1, 1961. The time limit is peremptory and mandatory.

9. Dasti order on usual terms.


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