R.S.A. No. 259 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 259 of 1995 Date of Decision: 11.08.2009 No. 640151623 Ex. H.C. Jalam Singh son of Sh. Om Singh, r/o village Tin Nali, P.O. Toudgarh, Distt. Ajmer (Rajasthan). ... Appellant Versus 1. Union of India, through its Secretary, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Reserve Police Force, Lodhi Complex, New Delhi. 3. The Inspector General, Central Reserve Police Force, Kohima. 4. The Commandant/Additional DIG, Central Reserve Police Force, Dimapur. 5. The Deputy Inspector General, Central Reserve Police Force, Kohima. 6. The Commandant, 25th Battalion, CRPF, Amritsar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. C.M. Chopra, Advocate, for the appellant. Mr. S.S. Chaudhary, Advocate, for respondent No. 1. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, R.S.A. No. 259 of 1995 2 dated 10.09.94, rendered by the Court of Additional District Judge, Amritsar, vide which, it accepted the appeal, against the judgement and decree dated 30.09.91, rendered by the Court of Sub Judge IIIrd Class, Amritsar, and dismissed the suit. 2. The plaintiff was enrolled in the Central Reserve Police Force on 18.11.64, as Head Constable, after discharge from Army. He was transferred to pension establishment on 30.06.88, after putting in 23 years 7 months and 17 days of long service. His services were regularized without any break. The plaintiff claimed that the military service rendered by him, was liable to be counted in the Central Reserve Police Force, for the purpose of pensionary and other benefits. Prior to transfer to pension establishment, the plaintiff submitted a number of representations, for counting his previous military service, in the Central Reserve Police Force, but the Additional Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Dimapur, vide letter dated 25.04.85, rejected the same. Alongwith the plaintiff, two others, after their discharge from the army, were taken in the Central Reserve Police Force. One was Constable Rao Singh No. 64016049 with his Army No. 10299150 and the other was S.I. Kishori Lal No. 65443421. Their military service was counted, but the plaintiff had been denied the said benefit, on his enrollment, in the Central Reserve Police Force. The plaintiff also claimed that he was sent to the pension establishment, before the date of his superannuation, as per his date of birth, recorded in the record. A legal notice under Section 80 of the Code of Civil Procedure, was served upon the defendants, but they did not redress the grievance of the plaintiff. Ultimately, a suit for declaration was filed. 3. The defendants, put in appearance, and filed written statement, R.S.A. No. 259 of 1995 3 wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the suit was time barred. It was further pleaded that the plaintiff had no cause of action to file the suit. It was further pleaded that the notice under Section 80 of the Code of Civil Procedure, was not legal and valid. Discharge of the plaintiff from Army service, and his induction in the Central Reserve Police Force was admitted. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to the declaration as prayed for that the plaintiff's previous service in the Army be counted in his C.R.P.F. Service for pensionary benefits and other dues with retrospective benefits? OPP (ii) Whether the plaintiff is entitled to alternative relief? OPP (iii) Whether the suit of the plaintiff is maintainable in the present form? OPP (iv) Whether the suit is within time? OPP (v) Whether no cause of action arises to the plaintiff? OPD (vi) Whether legal and valid notice was given to the defendant. If so, its effect? OPP (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendants/respondents, which was accepted, by the Court of Additional District Judge, Amritsar, vide judgement and decree dated 10.09.94. R.S.A. No. 259 of 1995 4 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence, on record, carefully. 9. The following substantial question of law, arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court recorded a perverse finding on misreading and misappreciation of the evidence and law on the point that the suit was barred by limitation? 10. The Counsel for the appellant, submitted that the first Appellate Court was wrong in coming to the conclusion, that the suit of the plaintiff was barred by time. He further submitted that no evidence was produced by the defendants/respondents as to on which date the order rejecting the claim of the plaintiff, for counting his military service, was communicated to him. He further submitted that even, otherwise, claim made by the plaintiff for counting his military service, furnished a continuing cause of action, till the date, he (plaintiff), was in service. He further submitted that the plaintiff retired from the military service on 30.06.88. He further submitted that viewed from any angle, the suit of the plaintiff, having been filed on 23.07.88, was within limitation and the trial Court, was right in holding so. He further submitted that the judgement and decree of the first Appellate Court, therefore, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that the first Appellate Court, was right, in coming to the conclusion, that since the plaintiff himself took up the plea, that his claim was rejected by the Additional Deputy Inspector General, Group Centre, Central Reserve Police Force, Dimapur, vide letter dated 25.04.85, the period of limitation R.S.A. No. 259 of 1995 5 started running from that date. He further submitted that from that date, the plaintiff, could file a suit for declaration within a period of three years, and two months. He further submitted that the suit having been filed on 23.07.88, was barred by limitation. He further submitted that the first Appellate Court, was right, in coming to the conclusion, that the suit was not within limitation. He, however, did not dispute the factum that the plaintiff was, otherwise, entitled for counting his military service. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be accepted, for the reasons to be recorded, hereinafter. No doubt, in the plaint, it was stated by the plaintiff, that his claim for counting the military service, rendered by him, before joining the service in the Central Reserve Police Force, was rejected by the Additional Director General of Police, Group Centre, Central Reserve Police Force, Dimpaur, vide letter dated 25.04.85. D1 is a copy of the order dated 29.03.85, passed by Deputy Inspector General of Police, Group Center, Central Reserve Police Force, Dimapur. This order was addressed to the Commandant, 25th Battalion, Central Police Reserve Force. When this order was communicated to the plaintiff, or was made known to him, is a matter of imagination, as no evidence was led by the defendants, in this regard. Until and unless, an adverse order passed against an employee, is communicated to him, the period of limitation does not start running. The record was with the defendants, to prove the factum, as to when this order was conveyed to the plaintiff. Why that record was not produced is not R.S.A. No. 259 of 1995 6 known. The mere averment, made in the plaint, that the order was passed by the Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Dimapur,on 25.04.88, does not mean that the cause of action accrued to the plaintiff, from that date, and the limitation started running for filing the suit, from that date. Under these circumstances, the first Appellate Court, in my opinion, merely on the basis of the averment, made in the plaint, was not right, in coming to the conclusion, that the suit had not been filed within the period of three years. 13. Even otherwise, it was a continuing cause of action. So long as the plaintiff remained in service, he could rake up his claim, again and again, with the authorities concerned, that he was entitled to the counting of his military service, even if, at one time, the same was rejected by them. On account of grant of the benefit of military service, for about eight years, the pay of the plaintiff was to increase. He was also to become entitled to increments, for the service so rendered. Other benefits of military service, were also to accrue to him, on account of the counting of military service, rendered by him. It, therefore, could not be said to be a one time cause of action. In M.R. Gupta Vs. Union of India and others, 1995(4) RSJ, 502, (S.C.) the appellant claimed that the fixation of his pay, on his joining the service, in the Railways, was incorrect and he was entitled to the fixation of the same, after adding one increment, to the same, which he would have drawn on 01.08.78, in accordance with the relevant rules. The representation made by the appellant, to this effect, was rejected before coming into force of the Administrative Tribunals Act, 1985. The appellant then filed an application on 04.09.89, before the Tribunal, praying inter-alia for proper fixation of his initial pay w.e.f. 01.08.78, and certain R.S.A. No. 259 of 1995 7 consequential benefits. The application was contested by the respondents, on the ground, that it was time barred since the cause of action had arisen at the time of the initial fixation of his pay in 1978, or latest on rejection of his representation, before coming into force of the Administrative Tribunals Act, 1985. The subsequent representations, made by the appellant, for proper fixation of his pay, were alleged to be immaterial, for this purpose. The Tribunal upheld the objections of the respondents, on the ground, that the appellant had been expressly told vide the order dated 12.08.85, and vide another letter dated 07.03.87, that his pay had been correctly fixed, so that he should have assailed that order at that time 'which was one time action'. It was further held by the Tribunal that the raising of this matter, after a lapse of 11 years, from the initial fixation of pay in 1978, was hopelessly barred by time and, accordingly, the application was dismissed as time barred. Feeling aggrieved the appellant filed Civil Appeal No. 7510 of 1995, in the Apex Court. The Apex Court, while setting aside the order of the Tribunal, held that it mis-directed itself, when it treated the appellant's claim as 'one time cause of action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. It was further held that the claim regarding the payment of correct salary computed, on the basis of proper pay fixation, is a right which subsists during the entire tenure of service, and can be exercised, at the time of each payment of salary, when the employee is entitled to the same, computed correctly, in accordance with the rules. This right of a government servant, to be paid the correct salary, throughout his tenure, according to the computation made, in accordance with the rules, is akin to the right of redemption, which is an incident of a subsisting mortgage, and subsists so long as the mortgage itself R.S.A. No. 259 of 1995 8 subsists, unless the equity of redemption is extinguished. Ultimately, the appeal was accepted. In the instant case also, the plaintiff claimed the counting of his military service, for about eight years, which he rendered before joining the present service. If the claim of the plaintiff had been found to be otherwise correct, on merits, he would have been granted this benefit. In the instant case, the claim of the plaintiff for counting of military service for about eight years was, otherwise, found to be correct, on merits, by the trial Court, and was not challenged, in the Appellate Court by the defendants. Had his military service been counted right from the day, he joined the Central Reserve Police Force, his pay, would have been fixed at a higher rate. In that event, he would have also been granted benefit of more increments, on account of rendering of service, in the military. He would have then been also entitled to all other consequential benefits, which had accrued to him, on account of counting of his military service for about eight years. On account of non-counting of his military service, for about eight years, the plaintiff suffered the loss of increments, enhanced salary, and other consequential benefits, every month. Under these circumstances, cause of action arose to the plaintiff, every month, as and when he was paid salary not computed in accordance with Rules until he remained in service. It was not a case of termination or dismissal from service, which furnished one time cause of action, to the plaintiff. The principle of law, laid down, in the aforesaid case, is fully applicable to be facts of the instant case. Since, it was a continuing/recurring cause of action, the plaintiff could file a suit, for the relief, sought for by him, at any time, till he remained in service. The plaintiff retired from service on 23.06.88. The suit having been filed on 23.07.88, thus, was well within time. The first Appellate Court, on R.S.A. No. 259 of 1995 9 misreading and misappreciation of evidence and taking wrong view of the provisions of law, illegally held that the suit was barred by limitation. The judgement and decree of the first Appellate Court, are, therefore, liable to be set aside. The substantial question of law depicted above, is answered in favour of the appellant. 14. For the reasons recorded above, the appeal is accepted, with costs throughout. The judgement and decree dated 10.04.94, rendered by the first Appellate Court, are set aside, and the the judgement and decree dated 30.09.91, rendered by the trial Court, are restored, and consequently, the suit for declaration to the extent that the appellant, was entitled for counting of his previous military service, to the extent of eight years and six months, towards the Central Reserve Police Force service, as qualifying service, for pension and other benefits, shall stand decreed. 11.08.2009 (SHAM SUNDER) Amodh JUDGE