R.S.A. No. 4313 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4313 of 2008 Date of decision: 27.05.2009 Harbans Lal ....appellant versus State of Punjab and others ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. K.S. Rekhi, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 23.8.2008 passed by the learned lower appellate Court, vide which the decree passed by the learned trial Court was modified. The plaintiff/appellant brought a suit for declaration by claiming as under: - “Suit for declaration to the effect that the plaintiff is entitled to fixation of pay/pension over and above the pay lastly drawn by him from the Army and consequent thereupon pay all the pensionary benefits to the plaintiff in the shape of promotion, seniority, increments and all other benefits accruing there from alongwith interest thereon at 18% P.A. from due date and the action of the department/defdts. in not paying the aforesaid benefits to my client is wrong, illegal, arbitrary, capricious and also against the provisions of R.S.A. No. 4313 of 2008 -2- C.S.R. against principles of natural justice and is not sustainable in the eye of law with consequential relief of mandatory injunction directing the defendants to pay the aforesaid benefits to the plaintiff alongwith interest at 18% P.A. from due date till release of aforesaid bonafide to the plaintiff.” The suit was contested. The learned trial Court, on appreciation of evidence, decreed the suit and declared that the plaintiff/appellant was entitled to re- fixation of pay and pension on the basis of last pay drawn by him in the Army. Direction was also issued to the defendant/respondents to re-fix the pay of the plaintiff/appellant at the pay scale last drawn by him i.e. Ex. PW-1/1 and also to pay him benefit thereon except the seniority and promotional benefits connected to his service along with interest @ 9% per annum. The direction was also issued for releasing the benefits within three months from the date of decision, failing which the plaintiff was permitted to recover the same by execution. The State filed an appeal. While upholding the judgment and decree passed by the learned trial Court, the learned lower appellate Court modified the decree by recording as under: - “In the light of the above discussion, the appeal is partly allowed with costs, by holding the plaintiff is entitled to refixation of his pay and pension, on the basis of last pay drawn by him in the Army and the appellant-defendants are directed to re-fix the pay of the plaintiff-respondent at the last pay scale drawn by him in the military service, as it is evident from Ex. PW1/1, in terms of rule 7.20 of Civil Services Rules Vol. II, with the modification in the finding of the trial R.S.A. No. 4313 of 2008 -3- court that the plaintiff be paid the pecuniary benefits thereof except seniority and promotional benefits, connected to his service alongwith interest at the rate of 9% per annum for the period of 38 months preceding the filing of the present suit. Decree-sheet be prepared and file be consigned to record room.” The learned counsel for the appellant contends, that the appeal raises the following substantial question of law: - “Whether the learned lower appellate Court was justified in restricting the arrears to 38 months, though the fault for not fixing the pay was with the respondents?” In support of the substantial question of law, the learned counsel for the appellant contends that as per rules and instructions issued by the Government, the defendant/respondents were to protect the salary last drawn by the plaintiff/appellant in Army, while fixing his pay in the civil services. The said benefit was not granted to the plaintiff/appellant illegally, as held by the learned Courts below. The contention of the learned counsel for the appellant is that the learned lower appellate Court erred in modifying the judgment and decree passed by the learned trial Court by restricting the consequential benefits to 38 months, though he was entitled to benefit from the due date. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of this Court in Jasbir Singh Pannu Vs. State of Punjab and another, 2003(1) SCT 314 wherein this Court was pleased to grant the consequential benefits from the due date without restricting it to 38 months. On consideration, I find no force in the contentions raised by R.S.A. No. 4313 of 2008 -4- the learned counsel for the appellant. The judgment relied upon by the learned counsel for the appellant cannot be applied to the facts of the present case, as this Court in exercise of powers under Article 226 of the Constitution of India is competent to grant equitable relief. No limitation is prescribed to exercise power under Article 226 of the Constitution of India. Whereas, the civil Court is barred from entertaining a claim which is time bared. The Limitation Act does not take away right but only bars the remedy and, therefore, once the civil Court did not have jurisdiction to grant benefit, which was barred by Limitation Act, no fault can be found with the judgment and decree passed by the learned lower appellate Court restricting the benefit to 38 months, prior to filing of the suit i.e. three years limitation period and two months for notice period under Section 80 of the Code of Civil Procedure. The substantial question of law raised is, therefore, answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 27, 2009 R.S.