Challenge To Wrong Pay Fixation Not Barred By Limitation As It's A Continuing Wrong: Gauhati High Court

A challenge to wrong pay fixation cannot be rejected solely on the ground of delay where the grievance discloses a continuing or recurring wrong, the Gauhati High Court has held, while directing reconsideration of a claim raised by an Auxiliary Nurse and Midwife (ANM) seeking parity in pay with similarly situated employees.

Justice Kardak Ete, presiding over the case, held, “I am of the view that there would not be any quarrel to the aforesaid observation and proposition, although it has been rendered on its contextual facts of those cases, as in respect of any continuing / recurring cause of action, no application can be barred on the ground of limitation.”

Justice Ete also said, “Perusal of the Assam Services (Revision of Pay) Rules, 2017, reflects that the Midwife/ANM has the same Pay Band and Grade Pay as PB-2 5200-20200 2400 PB-2 14000- 49000 6200. Upon careful consideration, it is seen that the Midwife/ANM are one and same post having same pay scale. Therefore, it cannot be said that Midwife/ANM are two different posts having the different Pay Scale / Grade Pay.”

The ruling was delivered in a writ petition filed by one Dalimi Kalita, who was appointed as an ANM in 1992 under the Assam State Electricity Board, now Assam Power Distribution Company Limited (APDCL). She was appointed in the pay scale of Rs. 1025-35-1375- EB-40-1655/- plus other allowances

The petitioner's grievance was that similarly situated ANMs, including one Rukhomati Mosahary, were granted a higher pay scale of Rs. 1085-40-1245-1425- EB-50-1925/- per month plus all other allowances, despite holding the same post. The petitioner submitted representations seeking correction of the pay anomaly.

However, APDCL rejected her claim solely on the ground that the issue had been raised after nearly 30 years from the date of her appointment.

The High Court noted that another ANM appointed around the same time as her had been granted the higher pay scale.

The Court rejecting the approach adopted by the respondent authorities, observed, “Having considered that the respondent authorities have not considered the grievance of the petitioner on merits, I am of the considered view that the same is required to be considered on merit ignoring the said delay in view of the fact that there appears to be clear discrepancy in fixation of the pay scale, perhaps, may be inadvertently at the time of initial appointment of the petitioner as the same is supported by the records including the RoP, 2017.”

The Court further opined, “there exists a discrepancy as regard the pay fixation in respect of the petitioner,” and thereby it directed, “it would be appropriate to direct the respondent authorities to re-consider and re-fix the pay and allowances of the petitioner as that of the other similarly situated Auxiliary Nurse and Midwife' (ANM) of the APDCL. It is ordered accordingly.”

However, while granting parity, the Court restricted the monetary benefits. It ordered, “It is provided that the claim for arrears of the petitioner be restricted to 3 years from the date of demand, i.e., 21.02.2020. As observed by the Hon'ble Supreme Court in the case of Union of India (UOI) and Ors. vs. Tarsem Singh reported in (2008) 8 SCC 648. It is provided that consequential action directed herein shall be taken as expeditiously but not later than 60 days.”

The writ petition was thereby allowed and disposed of.

Case Title: Dalimi Kalita v Assam Power Distribution Company Limited & Ors.

Case Number: WP(C) No. 3988 of 2022

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