Gupta Vs. Union of India & Ors  INSC 413
(21 August 1995)
Jagdish Saran (J) Verma, Jagdish Saran (J) Venkataswami K. (J) Verma. J.
1996 AIR 669 1995 SCC (5) 628 1995 SCALE (5)29
only question for decision is : Whether the impugned judgment of the Tribunal
dismissing as time barred the application made by the appellant for proper
fixation of his pay is contrary to law? Only a few facts are material for
deciding this point.
appellant joined the service of the State of Punjab as Demonstrator in the Government Polytechnic in 1967.
he joined service in the railways in 1978. The appellant claimed that the
fixation of his pay on his joining service in the railways was incorrect and
that he was entitled to fixation of his pay after adding one increment to the
pay which he would have drawn on 1.8.1978 in accordance with Rule No. 2018
(N.R.S.N. 6447) equivalent to Fundamental Rule 22-c. The representation of the
appellant to this effect was rejected before coming into force of the
Administrative Tribunals Act, 1985. The appellant then filed an application on
4.9.1989 before the Tribunal praying inter alia for proper fixation of his
initial pay with effect from 1.8.1978 and certain consequential benefits. The
application was contested by the respondents on the ground that it was time
barred since the cause of action had arisen at the time of the initial fixation
of his pay in 1978 or latest on rejection of his representation before coming
into force of the Administrative Tribunals Act, 1985. The subsequent
representations made by the appellant for proper fixation of his pay were
alleged to be immaterial for this purpose.
Tribunal has upheld the respondents' objection based on the ground of
limitation. It has been held that the appellant had been expressly told by the
order dated 12.8.1985 and by another letter dated 7.3.1987 that his pay had
been correctly fixed so that he should have assailed that order at that time
"which was one time action". The Tribunal held that the raising of
this matter after lapse of 11 years since the initial pay fixation in 1978 was
hopelessly barred by time. Accordingly, the application was dismissed as time
barred without going into the merits of the appellant's claim for proper pay
heard both sides, we are satisfied that the Tribunal has missed the real point
and overlooked the crux of the matter. The appellant's grievance that his pay
fixation was not in accordance with the rules, was the assertion of a
continuing wrong against him which gave rise to a recurring cause of action
each time he was paid a salary which was not computed in accordance with the
long as the appellant is in service, a fresh cause of action arises every month
when he is paid his monthly salary on the basis of a wrong computation made
contrary to rules.
no doubt true that if the appellant's claim is found correct on merits, he
would be entitled to be paid according to the properly fixed pay scale in the
future and the question of limitation would arise for recovery of the arrears
for the past period. In other words, the appellant's claim, if any, for
recovery of arrears calculated on the basis of difference in the pay which has
become time barred would not be recoverable, but he would be entitled to proper
fixation of his pay in accordance with rules and to cessation of a continuing
wrong if on merits his claim is justified. Similarly, any other consequential
relief claimed by him, such as, promotion etc. would also be subject to the defence
of laches etc. to disentitle him to those reliefs.
pay fixation can be made only on the basis of the situation existing on
1.8.1978 without taking into account any other consequential relief which may
be barred by his laches and the bar of limitation. It is to this limited extent
of proper pay fixation the application cannot be treated as time barred since
it is based on a recurring cause of action.
Tribunal misdirected itself when it treated the appellant's claim as 'one time
action' meaning thereby that it was not a continuing wrong based on a recurring
cause of action. The claim to be paid the correct salary computed on the basis
of proper pay fixation, is a right which subsists during the entire tenure of
service and can be exercised at the time of each payment of the salary when the
employee is entitled to salary computed correctly in accordance with the rules.
This right of a Government servant to be paid the correct salary throughout his
tenure according to computation made in accordance with rules, is akin to the
right of redemption which is an incident of a subsisting mortgage and subsists
so long as the mortgage itself subsists, unless the equity of redemption is
settled that the right of redemption is of this kind.
China Subba Rao and Others vs. Mattapalli Raju and Others, AIR 1950 Federal
counsel for the respondents placed strong reliance on the decision of this
Court in S.S. Rathore vs. State of Madhya Pradesh,  Supp. 1 SCR 43. That
decision has no application in the present case. That was a case of termination
of service and, therefore, a case of one time action, unlike the claim for
payment of correct salary according to the rules throughout the service giving
rise to a fresh cause of action each time the salary was incorrectly computed
and paid. No further consideration of that decision is required to indicate its
inapplicability in the present case.
the aforesaid reasons, this appeal has to be allowed. We make it clear that the
merits of the appellant's claim have to be examined and the only point
concluded by this decision is the one decided above. The question of limitation
with regard to the consequential and other reliefs including the arrears, if
any, has to be considered and decided in accordance with law in due course by
the Tribunal. The matter is remitted to the Tribunal for consideration of the
application and its decision afresh on merits in accordance with law. No costs.