Dr Jairaj Phatak vs M/o Personnel,public Grievances And Pensions on 27 October 2026

1 OA No. 667/2019

with MA No. 623/2019

IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI

Original Application No. 667/2019 with MA No. 623/2019

Order reserved on: 09/09/2026

Order pronounced on: 27/10/2026

Coram: Hon’ble Mr. Shri Krishna, Member (A)

Hon’ble Mr. Umesh Gajankush, Member (J)

Dr. Jairaj Pathak ...Applicant

(By advocate: Shri R G Walia)

Versus

Union of India & Ors. …Respondents

(By Advocate: Dr. Vinay S Masurkar)

Order on Delay Condonation Application Per: Mr. Umesh Gajankush, Member (J)

The applicant has filed the original application primarily aggrieved due to non-grant of Apex Scale of Rs. 80,000/-, which is due to him w.e.f. 27.01.2011, the day his junior Shri J.S. Saharia (IAS) came to be granted the same. The said apex scale

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was granted towards Non-Functional Grade (NFG) and thus, according to the applicant, only issue involves pay fixation in a wider sense.

2. By filing the Delay Condonation Application No. 623/2019, it is stated that on 27.01.2011, applicant was neither under suspension nor any departmental inquiry or chargesheet was pending against him nor was there a criminal case registered or pending against him. Thus, he could not have been ignored for the purpose of grant of Apex Scale of Rs. 80,000/- w.e.f. 27.01.2011 when his junior came to be granted the same.

2.1 It is submitted that the grant of apex scale, was only a financial upgradation involving pay fixation in so far as applicant is concerned, as there was no change in the status or post and he would have continued to function in the same post as this scale is a Non-Functional Scale granted to all i.e. Secretary, Principal Secretary and Additional Chief Secretary as per seniority.

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with MA No. 623/2019

2.2 It is further submitted that in any case, the reason to approach this Tribunal at this stage can be appreciated from the fact that the applicant who has now retired. The Adarsh case was an exceptional case, in which the applicant got involved due to frivolous and false allegations and nothing else. It is relevant to note that till the date, the applicant is not facing any departmental inquiry nor any cognizance in so far as criminal case is concerned has been taken against him.

2.3 It is stated that he was arrested by CBI on 03.04.2012 and was released vide Bail Order dated 07.06.2012. All his bank accounts were sealed and the applicant also came to be placed under suspension by the Department on 22.03.2012 and was reinstated on 02.06.2014. The applicant retired from service w.e.f. 31.03.2015.

2.4 It is further submitted that he has submitted his first representation to the respondents on 28.01.2015 and unfortunately, no reply was received from the respondents. However, he waited for some time and subsequently once again, representation dated 09.03.2017, 03.11.2017 and 13.05.2019

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were submitted to the respondents, which were un-replied. Further, it is a case of clear discrimination inasmuch as one Dr. Pradeep Kumar Vyas (IAS), who was also involved in the Adarsh Case and was along with the applicant, was placed under suspension, was granted his due promotion to the post of Principal Secretary w.e.f. 15.05.2014 vide order dated 02.06.2017 and thus, his seniority was fully protected by the respondents themselves.

2.5 It is submitted that from the date of first representation of the applicant i.e. 28.01.2015, the period of limitation is taken into consideration by way of abundant caution, there is a delay of 3 years and 2 months which may be condoned, as the present case only involves pay fixation and nothing else.

3. After notice, the official respondents have filed the reply and contested the OA.

3.1 It is stated that the records prior to 2012 was destroyed in the fire incident in Mantralaya. Thus, applicant is

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put to strict proof of the averments pertaining the period on or before 2012.

3.2 It is further stated that the application is not within the limitation prescribed in Section 21 of the AT Act, 1985. The cause of action arose in 2011 and therefore, the applicant is bound to explain the delay from 2011 till 2019 and simply cannot take shelter of his own wrong doing in the matter of Adarsh CHS matter. Therefore, on the basis of reply, the respondents have prayed for rejection of the OA.

4. Thereafter, rejoinder was filed by the applicant elaborating the facts that in affidavit at para 11, have categorically stated that “Applicant was found eligible for the promotion of apex scale in the meeting.” It is the contention of the applicant that he has been found fit for promotion to the apex scale, he could not and cannot be denied the benefit of the apex scale for the reasons stated in the reply of the respondents. The promotion of the applicant to the Apex Scale relates back to 23.09.2010 wherein, he was adjudged suitable and eligible for promotion to the Apex Scale and once he is repatriated from

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Navratna Company Rural Electrification Corporation under Ministry of Power, Government of India, he ought to have been granted the benefit of the meeting which was held on 23.09.2010. The Applicant is not asking for his promotion w.e.f. 23.09.2010, however, once he returned to the State Government Service on his repatriation on 18.04.2011, he was entitled to be granted the Apex Scale as he was already adjudged fit and eligible for the same. The respondents themselves shall have graciously extended and granted the same to the applicant.

4.1 It is further submitted that the applicant's immediate junior Shri J.S. Saharia came to be granted the Apex Scale on 27.01.2011 and thus, the applicant could not have been placed below his junior (i.e. denied Apex Scale) when he was repatriated in April, 2011 particularly when he was already found fit and adjudge suitable for promotion or grant for the Apex Scale. The applicant's letter nowhere states that he refuses or forgoes or denies the Apex Scale, no Official will ever do that. The said letter only states that as he was appointed as Chairman and Managing Director - Rural Electrification Corporation Ltd., only 3 months back, he had to work for atleast 1 year in the said post to do

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justice to the job. It is not understood as to how the respondents treat or read the said letter as a refused of the Applicant to the Apex Scale. It is clear that once the applicant was to come back to the Maharashtra Cadre, he ought to have been placed in the apex scale particularly when his immediate junior Shri J.S. Saharia was promoted and granted the Apex Scale on 27.01.2011.

4.2 It is submitted that he was reinstated in service after his suspension on 19.05.2014 and he was immediately posted as Managing Director, Maharashtra Petrochemical Corporation Ltd. vide order dated 30.05.2014. The applicant submitted the representation requesting for the apex scale on 09.12.2014, unfortunately, there was no reply from the respondents. The applicant retired from service on 31.03.2015 and he was hopeful that the State Government would redress his grievance pertaining to the apex scale. When the applicant did not receive any reply, he again submitted a representation on 03.11.2017 and 07.05.2018 requesting for promotion to the Apex Scale.

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8 OA No. 667/2019

with MA No. 623/2019

4.3 It is submitted that Dr. Vyas, who was also involved in the very same case was granted the Principal Secretary's Scale Promotion with retrospective effect since, he was reinstated like the applicant sometimes around in the year 2014. Thus, the applicant could not understand the discrimination with regard to contention of the respondents as stated in their reply in respect of Vigilance Clearance etc. and it seems that the State Government is applying Law and Rule in a discriminatory and pick and choose manner and nothing else. The applicant's promotion for Apex Scale relates back to a selection meeting which was held on 23.09.2010 and at that relevant point of time there was no circumstances on which the respondents are relying upon now in their reply to state that he could not be granted the said promotion.

4.4 It is submitted that once he was considered on 23.09.2010, it was only after due Vigilance clearance and thus, promotion cannot be denied due to circumstances which have occurred much late in point of time. In any case, Vigilance clearance can only be withheld in 3 circumstances i.e. when an officer is under suspension, Departmental Chargesheet is issued

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and pending and that a criminal prosecution is pending against the concerned officer. None of the 3 conditions were in existence as on 23.09.2010 or on 18.03.2011 i.e. when the applicant was repatriated to the Government of Maharashtra from Navratna Company Rural Electrification Corporation under the Ministry of Power, Government of India. The applicant has duly explained his circumstances for unable to approach the Tribunal at the relevant time and has also prayed for Condonation of Delay vide MP No. 623 of 2019. One aspect has to be highlighted is that, the State Government's own act of granting retrospective promotion to absolutely similarly placed officer in the year 2017 w.e.f. the year 2014 and the next promotion to the apex scale vide 30.04.2021 to Dr. P.K. Vyas, who is absolutely similarly placed to the applicant. This itself shows the dubious, inconsistent and pick and choose attitude of the respondents. It is clear that the applicant has been discriminated in the matter of his promotion to Apex Scale for which, he has already adjudged fit and eligible way back in the year 2010. The only effect of the said promotion was to be given when the applicant was repatriated in April 2011 to the State Government.

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5. We have heard learned counsel for the parties to the extent of consideration of delay condonation application.

6. Learned counsel for the applicant on the basis of averments made in the application and rejoinder vehemently argued that since the matter pertains to pay fixation and therefore, taking note of the facts and circumstances, the delay in filing the present Original Application may be condoned in the interest of justice.

6.1 It is submitted that one Officer Dr. Pradeep Kumar Vyas (IAS) was also involved in the Adarsh case, however, he was given the benefit of promotion in the year 2017 (RJ A-3), whereas the applicant was denied the benefit of Apex Scale discriminatory.

7. On the other hand, learned counsel for the respondents submits that looking to the relief claimed by the applicant, it is clear that the cause of action accrued to the applicant in the year 2011, whereas the present OA has been filed in the year 2019. Even the representation was submitted

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just two months prior to the date of retirement on 21.01.2015. Therefore, there is no explanation offered by the applicant for condoning the delay.

8. After hearing learned counsel for the parties and after perusal of the record, it is true that the applicant is claiming the benefit of Apex Scale w.e.f. 27.01.2011 and first representation for claiming the said benefit was filed by the applicant on 28.01.2015, which is prior to the date of retirement i.e. 31.03.2015. According to the applicant, for grant of Apex Scale (Non-Functional Grade) seniority is only criteria and the issue relates is only a pure case of pay fixation. However, it is also true that when the said benefit was given to the applicant’s junior in the year 2011, no steps have been taken by the applicant till 28.01.2015. Although, it is the case of the applicant that due to frivolous and false allegation in the Adarsh case, he has to face various litigations. Under these circumstances, he could not approach earlier and therefore, prayed for the condonation of delay.

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with MA No. 623/2019

9. From the reply of the respondents, they are contesting the claim of the applicant on merits on the ground that records prior to 2012 was destroyed in fire incident in Mantralaya and further cause of action arose in the year 2011, whereas the Original Application was filed in the year 2019. However, fact remains that whether the representation submitted by the applicant on 28.01.2015 was considered and decided or not? On this point, the respondents are silent. Further, eligibility and entitlement to receive benefit of NFG and non-availability of record due to fire, prior to 2012 as stated by the respondents, all these aspects can be looked into while deciding the OA on merits.

10. At this stage, it is relevant here to reproduce the paragraph no. 7 & 8 of the judgment of Hon’ble Supreme Court in the case of Union of India vs. Tarsem Singh reported in 2008 (8) SCC 648 as under: “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a 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, if such continuing wrong creates a

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continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates 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. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.”

11. The aforesaid judgment of the Hon’ble Supreme Court was followed by the Hon’ble Supreme Court in subsequent judgment in the case of Rushibhai Jadgishchandra Pathak vs Bhavnagar Municipal Corporation in Civil Appeal No. 4134/2022 decided on 18.05.2022.

12. In view of the aforesaid proposition of law laid down by the Hon’ble Supreme Court, the delay in the present case can

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also be condoned by restricting payment of arrears prior to 3 years to the date of filing of the Original Application, in case the applicant finally succeeds. Further, in spite of involvement in Adarsh case and facing various litigation as stated by the applicant, he has discharged official duty up to the date of retirement, therefore, for the purpose of filing of the present OA, only, it cannot be said that he was helpless in not approaching this Tribunal in time.

13. Under these circumstances, the application is allowed with an observation and condition that, in case the OA is allowed, applicant will be entitled for arrears to the extent of 3 years prior to the date of filing of the Original Application and looking to the post held by the applicant at the time of retirement, delay is condoned subject to payment of cost of Rs. 10,000/- which shall be deposited by the applicant in the account of “Maharashtra’s Chief Minister Relief Fund (CMRF)” within a period of three weeks’ from the date of receipt of certified copy of the order.

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14. List the Original Application for further consideration on 17.12.2026.

(Umesh Gajankush) (Shri Krishna) Member(J) Member(A)

R.

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