2108 1 1 RaSeAeN0e1844 of 2008 1 4v11 IN THE HIGH COURT FOR THE STATES OF PUNJAB S HARYANA AT CHANDIGARH ReSeAeNOe1844 of 2008 Date of Decision2 September 20 2011 1 Sham Lal Goyal 0 Appellant 0 0 VERSUS 0 I State of Punjab and another Respondents Z CORAM HONBLE MRUSTICE MOHINDER PAL Q Present AppeliantSham Lal in person I t MrRanvir SChauhan DeputyAdvocate General Punjab for the Z OO MOHINDER PAL 0 W2 Z This regularsecond appealIS directed againstthe ll ludgment and decree dated 08022008 passed by the Court of Learned District Judge Sangrurwherebyappealof the appellantplaintiff for recovery of 9164570 P claimed by way of interest on account of Iate payment ofthe selection gradehas been dismissed PlaintiffappeliantSham Lal Goyal was appointed as Statistical Assistant Ill the Cooperation Departmenton 02071964 in the pay scale of 150e10300 He was V Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 09 S A N0e1844 of 2008 2 ey sanctioned selection gradein the scale of 700850130 10801401200 in terms of Finance Departmentcircuiar dated 0303 1980 issued by RegistrarCooperativeSocieties Office order Endorsement NodmnIEAG II1897 dated 15051984 As no financial benefit of selection gradewas givento the plaintiffin form of one increment step up wef 0 0 12091983 to raise his basic pay to 2 10401 on 12091983 I C5 he filed Civil Writ Petition No2229 of 1999 in this Court After filingof this writ petition the respondents1efendants Z tn trial Court fixed the salary of the piaintifappellantas r claimed and paid the arrears ofthe pay afterfixingthe pay I from 12091983 to 3110395 which is as per copy of the Z order dated 18Ol 2000 attached with the file It is the OO claim of the plaintiffthat amount of salary which was due e Since 1209 1983 has remained with the defendants till its Z payment and hence he was entitled to interest 18010per fl annume He made a representation to the defendants on 23052001 It is further case of the plaintiffthat he could not rnake prayer for paymentofinterest In Civi l W rit Petiti on No2229 of 1999 and it was only after order dated 18012000 he made representation on 23052001 claiminginterestIn view ofthe orderdated 18012000 the Civil Writ Petition became infructuous and the same was withdrawn by filing Civil Misc ApplicationNo 3776 of 2002 Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 410 ReSA11844 of 2008 3 4 Plaintiff another CiviI Writ Petition No3939 of 1 2002 against the defendants through Financial Commissioner CooperationPunjabGovernment and the Registrar Cooperative Societies Punjab seeking the 1 paymentof interest which was dismissed as withdrawn on 06032002 Thereafter he served notice dated 02062003 0 0 under Section 80 of the Code of Civil Procedure and finally I C5 filed the suit for the recovery of 9164570 P as interest I upto31072003 Z After notice the suit was contested by the e defendants raising various objectionsregardingIimitation I notjoinder of necessary partiesand cause of action to file Z this suit It was su bm itted that it was own fault of the OO plaintiffto have not moved for rfixation of his pay in the 7 selecOon grade sanctioned on 15051984 the date when Z the selection gradewas allowed to him It is further averred that no notice was served by the plaintiffto the defendants on 2004 1998 and rather he made a representationon this date to allow him the benefit of the selection grade and bring him at par with his junior JagdishSahai which was received on 2904 1998 Finally it has been prayedthat a s the plaintiffhas failed to claim the interest in the previous writ petitions hence the suit of the plaintiffwas Iiable to be dismissed Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 411 1 S A1844 of 2008 4 V C The pleadings of the parties culminating into framingof the followingissuesl 1 Whether the plaintiffis entitled for the recovery of 916451eas prayedfor7 OPP 2 Whether the plaintiffis entitled to interest if 1 so at what rate7 OPP 3 Whether the suit is time barred7 OPD 0 0 4 Whether the plaintiff himself applied for the I selection grade on 2004 1998 and the plaintiff C40 has already been given selection gradebenefits I wefe 10 1201999 without any delay as such Z the plaintiffis not entitled to any interest7 OPD 5 Whether the plaintiffhas no cause of action to file the present suit7 OPD 6Vhether the suit is bad for norjoinder of C3 necessaryparty7OPD Z 7 Relief Il m Parties Ied oral as well as evidence 7 Z in support of their respectiveclaims The trial court after appreciatingthe evidence available on the fi Ie a nd hea ring the parties dismissed the suit of the plaintiff which 1 decision was upheldby the First AppellateCourt Suit of the plaintiff was dismissed holding that no improprietyor illegalitywas found in the appraisalof evidence by the Trial Court Now the plaintiffIS Ill regularsecond appealbefore this court I have heard the appellant who appearedIll Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 412 ReSAe No844 of 2008 5 person the Iearned State counsel representing the and have gone through the records of the case and also perusedthe Judgmentsof both the courts below minutely 1 The followingsubstantial questionsof Iaw have r been framed vide order dated July 07 2009 in this casel 0 0 il Whether the periodof Iimitation providedby the statute I in a claim will exclude the periodof notice in state cases C5 where the prior notice is mandatory2 iil Whether the claim of amount is not barred if started Z separatelyin a civil suit after withdrawal of the writ 2 petitionpendingin the HighCourt2 r INhile arguingbefore me it has been submitted by L0 the appellant that he did not not claim any interest in Z Civil Writ Petition Noo2229 of 1999 as the amount of the n0 selection gradewas not determined at that time He again m Z filed Civil Writ Petition No 3939 of 2002 againstthe State of 41m Punjabto pay the interest but of no avail after withdrawal Ultimately the appellant has to knock the doors of Civil Court for recovery of interest after withdrawing the Civil Writ Petitions mentioned above It IS submitted that his suit before the trial Court was withi n 1imitation after exclud ing periodof 60 days as requiredfor service of notice On the other hand Iearned counsel representing the State has argued with vehemence that the appellant Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 413 S A N01844 of 2008 6 V 1 has been grantedselection gradewef 12091983 and the cause of action regardingfixation of pay had arisen on 120901983 but the appellantmade representationto allow the benefit of fixation of pay vide his representationdated 20A 1998 after a periodof about 14 years Pay flxation in C2 selection grade was allowed vide order dated 101201999 0 0 Accordingto Iearned counsel the fault of delay was on the I C5 part of the appellant which fact has been established He I has prayedthat the suit of the plaintiffbe dismissed Z After havinggivenmy thoughtfulconsideration to the submissions advanced by both sides and havingperused the judgmentsof the courts below I am fully convinced that Z there is no groundfor interference by thiscour CO Since the question Nos 1 and 2 formulated in mwo this appeal are interconnected therefore both are taken Z together but before I proceed to deal with them it is Qm necessaryto examine the factual position to appreciatethe real controversybetween the parties Plaintiff and one JagdishSahai both had joined the PunjabGovt Service as Statistical Assistant in Cooperation department on 02071964 and on Ole6 1966 respectively The plaintiff was senior to Mr JagdishSahai Admittedlythe plaintiff alongwith other senIor most inspectors were granted selection grade in terms of Finance DepartmentCircular Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 414 ReS A11844 of 2008 7 e Letter No dated 31980 with retrospective effect ie 12091983 vide order dated 1551984 Ex Pl In this order coemployeeof the plaintiff JagdishSahai was declined selection gradeas his service 1 record was found 0 Jagdish Sahai Ill order to get the selection 1 0 0 grade approached the vanous Courts and ultimatelyas I C5 per decision of the Apex Court he was allowed selection I grade weef 12091983 dated 1031995 Ex P PIaintiff Z then made representation on 200041998 Ex Dl to the departmentfor raffixation of his pay which was rejected I on 18111998 vide Ex Pll Against the rejection of Z representation Ex Pl l plaintiff filed CWP No2229 of 0 1999 Duringthe pendencyof this writ petition pay ofthe m plaintiff was reefixed and aforesaid writ petition was Z dismissed as withdrawn vide order dated 0802002 Then e plaintiff filed another writ petition No 3939 of 2002 claiminginterest on delayedpayment which was withdrawn vide order dated 6 32002 without assigningany reasons It IS thereafter the present Suit was filed It has been admitted by the plaintiffwhile appearingas PWl duri ng his cross exarnination that he has received all the arrears from the department with regardto his pay fixation without any protest Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 415 ReSJ N001844 of 2008 8 r The main dispute in the facts and circumstances of the case now remains as to whether the plaintiffIS entitled to interest upon the amount of arrears which were received by him after reixation of his pay in the selection grade thoughnot claimed in earlier writ petitionno2229 of r 1999 In writ petition 3939 of 2002 the plaintiff made a 0 0 prayer that directions be issued to the defendants for I 0 paymentof interest a mount but that was withdrawn by I him without givingany reasons for the reasons best known Z to him It is not understood that when he filed writ petitionfor specificpurpose for issuance of directions to the defendants to pay interest amount then what was the Z necessity to withd raw the same and why he has not agitatedfor payment of interest amount It is evident that 10 7 cause of action to the plaintiffarose on 12091983 when Z selection grade was sanctioned to him in view of order dated 155 1984 but the plaintiff remained mum for 14 years and filed representation only on 2041998 He was allowed selection grade vide order dated 10121999 vide order dated 1812000 and throughthis order the pay of the plaintiffwas broughtat par with his junior It is the case of the defendants that after rixation of pay the matter was to be taken up with various drawingdisbursing officers in the departmentwhere the plaintiffworked from Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 416 S Ae No844 of 2008 9 tV time to time He was paid arrears from 32000 to 317 2000 The plaintiffas per above facts clearlyfound to be at fault and delay if any was on account ofthe own fault of the plaintiffand not attributed to the departmente Had the plaintiffremained vigilant at appropriatetime then the delaywould not have been occurred 0 0 It is pertinentto mention here that plaintiffand I C5 his coemployee have been retired from service on I 31011995 and 3171993 respectively Moreover interest Z which was soughtto be claimed in subsequentwrit petition l was withdrawn by him without assigningany reason before filingthe present suit itself shows that plaintiffwas having C Z no case for recovery of interest amount and he after m retirement chosen to enter into Iitigation in order to put e 7 pressure on the to get some Z interest takingbenefit of Iast installment of arrears of pay ll havingbeen made by the department on 312000 and this fact was not even specificallypleadedItl his pleadings before the Trial court Contention of the plaintiffthat both the courts below have not appreciated the material facts and have excluded the noce peod of 60 days and givenfindingsthat the suit is time barred This proposition of Iaw formulated under question No l that the periodof notice is to be excluded for the purpose of Iimitation is not Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 417 RAe No844 of 2008 10 even disputedby the State counsel but the fact remains cause of action had arisen to the plaintiff on 10121983 when the selection grade was allowed to the plaintiffand then when the selection grade was granted to his co employee in terms of orders of Supreme Court on 1031995 The plaintiffin order to get benefit of this order 0 0 filed representationon 201998 Thereis no explanation I C5 forthcomingwhy he had not filed any representationfrom 103 1995 to 20 1998 In Ex P3 the plaintiffhas simply Z stated that he has not paid interest from 1291983 to the r year 2000 He had failed to give the dates and periodwith regardto the amounts due to him Cause of action cannot r Z be said to have been made out simplyby the plaintiffhaving m served notice on 235Ol upon the defendants It is the plea 47 of the defendants that after refixation of pay the matter Z was taken up with various drawingdisbursingofficers in the Ll departmentwhere the plaintiffworked Thus there is no delayon the part of the departmentin releasingthe arrears of pay From any anglethe suit of the plaintiffis time barred and he is not entitled to a ny interest as the delay Itl paymentof arrea rs of pay is clearlyattributed due to own fault of the plaintiff Both the substantial questions oflaw stands answered accordingly The Courts below have considered and referred to each and every fact on record 1 Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 418 ReSA No844 of 2008 11 and it does not appear to have missed any point or fact Every conclusion drawn contain completereasoning Findingsof the Trial court as well as First AppellateCourt are affirmed 1 Resultantly I find no merit in this appeal and the 0 same is hereby dismissed Consequently the suit of the 0 0 piaintiffis dismissed I C5 1 I MOHINDER PALI 3UDGE Z September20 2011 jt I Z 10 mno Z 9e 0t1 Singh Gagan Preet 2012.11.29 12: 29 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document