RSA No.4403/2010(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.4403 of 2010(O&M) Date of decision: 09.12.2011. Pritam Singh ....................Appellant v. State of Haryana and another .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present:- Mr.SS Chatrath,Advocate for the Appellant. Jaswant Singh.J.(Oral) Plaintiff/appellant has filed the present regular second appeal against the judgement and decrees passed by the Courts below whereby the suit for declaration with consequential relief of mandatory injunction filed by him was dismissed by the trial Court and in appeal the judgement and decree passed by the trial Court was upheld. Briefly noticed, plaintiff filed the aforesaid suit with the averments that he joined as driver with the defendants on 23.04.1975 and retired as such on 21.05.1997. It was further averred that pay scales of the State Government employees were revised from 01.01.1996 and he having completed more than 20 years of service as on 01.01.1996 was entitled for ACP-II in the scale of 5450-8000 on 1.1.1996 and consequently entitled for revised pension, leave encashment and gratuity etc. It was alleged by the plaintiff/appellant RSA No.4403/2010(O&M) 2 that he requested the defendants several times by filing the representations but of no avail. Thereafter he filed civil suit no.04 of 2000 which was dismissed as withdrawn on 03.12.2002 on being assured by the defendants that he will be given all the benefits. It was further alleged that since no benefits were given to him so he filed another suit bearing number 12/2005 which was also dismissed as withdrawn on 07.12.2005 with permission to file a fresh one on the same cause of action and that after serving a notice under Section 80 CPC he filed the present suit. Upon notice defendants contested the suit by stating that after the revision of pay scales w.e.f. 01.01.1996 the pay of the plaintiff was fixed at Rs.5,000/- + Rs.50/- special pay in the revised ACP-I scale of 5000-7850 and he was also given arrears of pay amounting to Rs.14,973/- on 11.06.1998 which included salary from 01.11.1996 to 26.11.1996 and 27.11.1996 to 28.02.1997 as per his entitlement. It was further averred that he was also paid medical compensation, leave encashment, gratuity, GIS and other pensionary benefits. It was stand of the defendants that plaintiff was not entitled to ACP-II in the pay scale of 5450-8000 as he had not completed 20 years of qualifying service as on 01.01.1996 due to the fact that there was a non qualifying period of two years eight months and two days and thus the plaintiff had completed only 19 years 04 months and 27 days as qualifying service till his retirement/or as on 1.1.1996. Besides that the suit was also contested on the grounds of res judicata, concealment of fact, cause of action and valuation etc. On the pleadings of the parties issues were framed. Both the sides led evidence in support of their respective claims. After appreciating their evidence, both the Courts below dismissed the claim of the plaintiff/appellant. Hence the present regular second appeal. It is submitted by the learned Counsel for the appellant that both the Courts below have erred in holding that the appellant has not RSA No.4403/2010(O&M) 3 completed 20 years of service and hence not entitled for ACP-II. It has also been submitted by the learned Counsel for the appellant that the suit filed by the appellant was well within limitation and both Courts below have erred in dismissing his claim as time barred. After hearing the learned Counsel for the appellant and going through the impugned judgements and decrees passed by the Courts below, I find no question of law much less substantial question of law which arises for determination in this appeal. Both the Courts below on the basis of material available on record have found that during his service the plaintiff remained absent from duty for two years eight months and two days which period was converted into extraordinary leave(leave without pay) and an entry in this regard was made in his service book(copy Ex.D-2). After perusing the service record of the plaintiff/appellant it was found by the Courts below after deducting the aforesaid period of two years eight months and two days the total qualifying service of the plaintiff was only 19 years four months and twenty seven days (till his retirement) which was less than twenty years of regular service and as such he was not granted ACP-II scale. While declining the relief sought by the plaintiff the appellate Court has referred to Haryana Civil Services(Assured Career Progression) Rules 1998 by virtue of which first and second ACP scales were to be granted on completion of 10 of 20 years regular satisfactory service. The said rules were further clarified by the government vide letter dated 16.07.2001 whereby it was clarified that extraordinary leave taken(other than on medical certificate) shall not be reckoned while computing 10 or 20 years regular service. The plaintiff did not challenge the said rule. The another ground on which the suit of the plaintiff was dismissed is limitation. It was found by the appellate Court that plaintiff retired on 21.05.1997. He filed the suit on 18.07.2006 claiming that he was entitled to second ACP w.e.f. 1.1.1996. The learned Appellate Court has rightly held that the fact RSA No.4403/2010(O&M) 4 that the plaintiff earlier filed a suit and withdrew the same with permission to file fresh one would not extend the period of limitation in any way and as such suit was barred by limitation. No other point has been raised. For the reasons stated above, finding no merit in this appeal the same is hereby dismissed. 09.12.2011 (Jaswant Singh) joshi Judge