(1) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL SECOND APPEAL No.60/2009 Rajasthan Rajya Path Parivahan Nigam & Ors. Vs Khemraj Khatik Date: 13/02/2009 ** HON'BLE MR. JUSTICE K.S. RATHORE ** Mr. J.K. Singhi, for the appellants. -- This civil second appeal under Section 100, CPC is preferred by the defendants-appellants against the judgment and decree dated 24.01.2008 passed by Additional District Judge, No.1, Jaipur City, Jaipur in Civil Regular Appeal No.14/2007, by which the learned Judge dismissed the appeal preferred by the defendants-appellants and upheld the judgment and decree dated 22.09.2004 passed by Civil Judge (Jr. Division), No.1, Jaipur City, Jaipur. Briefly, stated facts of the case are that the plaintiff-respondent herein, filed a suit for payment of arrears of salary along with interest @ 18% and for fixation against the defendants- appellants. In the suit, it was stated earlier the plaintiff filed a suit in the Court of Civil Judge (Jr. Division) No.1, Jaipur City, Jaipur for declaration that his dismissal order dated 02.06.1987 was illegal. The said suit was decreed (2) on 25.03.1991 and dismissal from the service was set aside and the plaintiff was held entitled for all benefits. Against the judgment and decree dated 25.03.1991, the defendants-appellants preferred first appeal and the appeal was dismissed by the appellate Court vide judgment and decree dated 12.8.1998 upholding the judgment and decree passed by the trial Court. Against the judgment and decree dated 12.08.1998, the defendants-appellants filed a second appeal, which is pending before this Court. On filing execution before the concerned Court and after dismissal of the first appeal, the plaintiff vide order dated 27.08.1999 was reinstated back in service, subject to decision of the second appeal. The plaintiff joined the duties on 23.09.1999 and was paid basic pay of Rs. 3050/-, however, increments were not computed. Since, the plaintiff was granted the consequential benefits after his reinstatement in service, therefore, he filed a suit for arrears of salary, fixation and interest thereon. The trial Court vide its judgment and decree dated 22.09.2004 while partly allowing the suit of the plaintiff, directed the respondents to fix the pay of the plaintiff in accordance with law and also directed to pay 6% interest on the difference amount. Against the judgment and decree dated 22.09.2004, the defendants-appellants again filed first appeal and the appellate Court vide its judgment and decree dated 24.01.2008 partly (3) allowed the appeal of the defendants-appellants but with regard to payment of interest has been set aside and rest judgment and decree has been upheld. Learned Counsel for the defendants-appellants submits that against the judgment and decree dated 12.08.1998 the second appeal preferred by the appellants is pending and the plaintiff has no right to file a suit for fixation and arrears of salary, otherwise also if the plaintiff-respondent had any grievance he could file execution petition and in fact he had filed the execution and as such the suit was not maintainable. I have given my thoughtful consideration to the submissions advanced by learned Counsel for the defendants-appellants and also perused the judgment and decree dated 24.01.2008 passed by the first appellate Court and judgment and decree dated 22.09.2004 passed by the trial Court. Since, in the second appeal, preferred by the appellants against the judgment and decree dated 12.08.1998, no stay order, staying the operation of judgment and decree of both the Courts below was passed, there was no occasion for the appellants not to grant arrear of salary and other benefits. Both the Courts below having considered the facts and circumstances of the case, have rightly held the plaintiff entitled for the consequential benefits, however, later on the first appellate Court has set aside the interest part. The appellate Court after considering each and every aspect and upon perusal of relevant record, rightly upheld the (4) rest part of the judgment and decree passed by the trial Court. The concurrent finding given by both the Courts below requires no interference as no substantial question of law arises in this second appeal. Accordingly, the present second appeal fails and the same is hereby dismissed. (K.S. RATHORE), J. DJ/- 41