IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1779 of 2008 Date of decision: 3.2.2009 Ex.JC-209966-L Subedar Karan Singh … Appellant. Versus Union of India and others … Respondents Present: Mr. Sudhir Mittal, Advocate, for the appellant. … ARVIND KUMAR, J: Appellant before this Court was the plaintiff who has been non-suited by the Courts below in a suit for declaration and mandatory injunction. Plaintiff who was recruited in the Indian Army on 20.8.1971, was retired from there on 30.11.1998. His case was not considered for grant of Honorary Commission by the defendants on the ground that he could not come up on merit and one Subedar Major G.S.Bisht was granted the Honorary Commission. Initially, the plaintiff filed civil suit No. 315 of 1999 for declaration which was dismissed on 15.4.2004. The present suit out of which this regular second appeal has arisen, was filed by the plaintiff for declaration and mandatory injunction. The defendants have justified their action in the written statement by stating that since the plaintiff could not come up on merit, he was not considered for grant of Honorary Commission and in his place, Subedar Major G.S. Bisht was granted the same as he had more service and better ACR grading to his credit as compared to that of the plaintiff. Both the Courts below on appreciation of evidence adduced by the parties, have concurrently held that a comparative statement of the record of the plaintiff and Subedar Major G.S. Bisht so placed on file by the defendants as Exhibit D-3 shows that said G.S. Bisht had earned six outstanding reports prior to his retirement as against two such reports earned by the plaintiff. Further, G.S. Bisht had worked as Subedar Major for four years whereas the plaintiff was not even promoted to that rank. The RSA No. 1779 of 2008 -2- letter, Exhibit D-3 further provided that Honorary Commission is not a statutory right and is to be given strictly as per merit based on entire service profile of JCO. The Courts below have observed that in civil suit No. 315 of 1999 which was dismissed on 15.4.2004, the plaintiff had claimed the same very relief which has been sought by him in the present suit. The plea of the plaintiff that the earlier suit was only a suit for declaration whereas the present suit is a suit for declaration and mandatory injunction, was negatived by the Courts below and it has been held that the earlier suit was decided on merits and it is immaterial that in the earlier suit, the relief of mandatory injunction was not specifically claimed because the same was included in the relief of declaration. Moreover, the relief of mandatory injunction would also be hit by the principle of constructive res judicata since that relief could be claimed even in the earlier suit and if it was not claimed, it shall be taken to have been claimed. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed. February 3, 2009 ( ARVIND KUMAR) JS JUDGE