D.K Mahajan and R.S Narula, JJ.:— The appeal is directed against the decision of a Subordinate Judge 1st Class, Patiala, decreeing the plaintiff's suit and awarding him a decree for Rs. 29,318. This sum was, however, made subject to variation on the basis of the fixing the plaintiff's pay according to the revision of Patiala and East Punjab States Union Rules prevalent at that time. The plaintiff's claim to dearness allowance was rejected.
2. The plaintiff was working as a Senior Superintendent of Police in the erstwhile State of Faridkot. After the Indian Independence Act, the State of Faridkot was merged with the State of Patiala along with other States and a Union of such States was formed known as the Patiala and East Punjab States Union (hereinafter referred to as Pepsu). The plaintiff, while in the Faridkot State service was drawing Rs. 995 per mensem as his salary. The plaintiff was compulsorily retired from service by the Government of Pepsu on the 6th of September, 1948.
3. On the plaintiff's representation that his order of retirement was illegal, the plaintiff was reinstated by an order of the Pepsu Government on the 23rd of February, 1951. He actually took charge of his office on the 24th of February, 1951. While reinstating the plaintiff, the Government also decided vide their letter dated the 28th of February, 1951 (Exhibit P. 51) as under:—
“Government have further decided that the period from 8th September, 1948 to 23rd February, 1951, for which Sardar Ram Singh Brar remained out of job, will be counted for pension, but he will get no pay for that period.”
4. The plaintiff kept on making representations against the denial of his claim to salary for the period, 8th of September, 1948 to 23rd of February, 1951, but without any effect and, ultimately, after giving notice under section 89 of the Code of Civil Procedure, the present suit was filed on the 23rd of April, 1957. The suit was for declaration that the Government's order dated the 28th of February, 1951 (Exhibit P. 51) was illegal and ultra vires, and that the plaintiff was entitled to his salary for the period, 8th of September, 1948 to 23rd of February, 1951, because the order of compulsory retirement was illegal and had been, later on, set aside. A claim was made in the suit for arrears of pay for the aforesaid period. The suit was resisted by the State of Punjab because on the date the plaintiff's suit was filed, Pepsu had been merged into Punjab. The various pleas of the parties will be evident from the following issuses that were framed in the case:—
1. Whether proper court-fee has been paid?
2. Whether the order of Pepsu Government in retiring the plaintiff from service vide Resolution Home Department No. H. 1, dated 6th September, 1948/22-5-2005 B.K was legal?
3. What is the effect of Pepsu Government Resolution No. H.D 9, dated 23rd February, 1951, on the status of the plaintiff as Government servant?
4. Whether the decision of Pepsu Government to withhold the salary of the plaintiff from 8th September, 1948 to 23rd February, 1951, during which the plaintiff remained out of service, is illegal?
5. Whether the notice under section 80, Civil Procedure Code, served upon the defendant by the plaintiff, was invalid?
6. To what amount the plaintiff is entitled?
7. Whether the suit of the plaintiff is within time?
8. Whether this Court has no jurisdiction to entertain the suit? The trial court practically found all the issues in favour of the plaintiff except issue No. 2 and decreed the plaintiff's suit. Against this decision the State of Punjab has preferred the present appeal while cross-objections have been filed by the plaintiff.
5. As we are of opinion that the suit must fail on the question of limitation, we have confined ourselves to the determination of that question. So far as relief qua declaration is concerned, we may safely say that if the suit was within limitation, the plaintiff would be entitled to his salary from the 8th of September, 1948 to the 23rd of February, 1951, and for that purpose we need refer only to a Division Bench decision of this Court in Union of India v. Maharaj . ???. (Regular First Ap-No. 8-D of 1964) decided by S.B Capoor and H.R Khanna, JJ., on the 6th of September, 1966.
6. Reverting to the question of limitation, the relevant facts may again be stated. The plaintiff was compulsorily retired from service on the 6th September, 1948. He was reinstated on the 23rd February, 1951. He was actually posted on the 27th of Februry, 1951 and has been paid his salary with effect from the 28th of February, 1951 (Exhibit P. 2.A). His claim in the suit is for salary from the 8th of September, 1948 to 23rd of February, 1951. The Government categorically stated in Exhibit P. 51 on the 28th of February, 1951 that the plaintiff would not be paid the salary for the period for which he remained out of service, that is from 8th of September, 1948 to the 23rd of February, 1951. The trial court has held that the suit is within limitation by applying article 131 of the Limitation Act (9 of 1908). That article is in these terms—
“Description of suit.
Period of limitation.
Time from which period begins to run.
131. To establish a periodically recurring right.
Twelve years.
When the plaintiff is first refused the enjoyment of the right
7. In view of the decision of the Supreme Court in Shri Madhav Laxman Vaikunthe v. State Of Mysore . ???., it is no longer open to argument that a suit by a Government servant to recover his arrears of salary is governed by any other article than article 102 and, therefore, the application of article 131 to such a suit will be wholly inappropriate. Mr. D.C Gupta, who appears for the plaintiff-respondent, does not dispute that the present suit for salary would be governed by article 102. His contention, however, is that as the suit is for declaration and the grant of relief by way of a decree for arrears of salary is a consequential relief, the period of limitation for such a suit would be six years under article 120 of the Limitation Act as in that sense the period of limitation under article 102 would be of no consequence. On the other hand, he contends that the period prescribed by article 102 will start running from the date the declaration is granted and if that submission is correct, the period of limitation for the arrears of salary started from the date of the trial court's decree; in other words, the suit for arrears of salary was premature. We are, however, unable to agree with this contention. The matter has been set at rest by the decision of the Supreme Court in Shri Madhav Laxman Vaikunthe's case, as well as by the decision of this Court in Union of India v. Maharaj, wherein it has been held that a suit for arrears of salary would be governed by article 102 and terminus a quo would be the date on which the officer, who had been compulsorily retired, is reinstated. In the present case, the plaintiff was reinstated on the 23rd of February, 1951 and, therefore, the period of limitation under article 102 will start running from that date. The plaintiff's suit, which was filed on the 23rd of April, 1957, is hopelessly barred by time. Even if the period of notice is added to the period of limitation, still the suit will be barred by time. Mr. D.C Gupta referred to Devendra Pratap v. State of U.P . A.I.R 1962 S.C 1334.. After going through that decision, however, we are of the view that it has no application to the facts of the present case. In that case the question of limitation was not raised and the matter was determined on the basis of exercise of extra ordinory jurisdiction by the High Court under article 226 of the Constitution of India.
8. In view of the foregoing reasons this appeal must succeed. We, accordingly, allow this appeal, set aside the judgment and decree of the trial court and dismiss the plaintiff's suit. In the circumstances of the case, we leave the parties to bear their own costs throughout. The cross-objections also fail and are dismissed with no order as to costs.
9. Appeal allowed.