A P GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) S. K. Phaujdar, J. The matter was heard on 5-3-97 exparte and judgment was reserved.

(2.) THE present appellant filed a O. S. No. 1711 of 1971 (City) which was decided by the IVth Munsif, Kanpur, on 24-8-76 and the suit of the plaintiff was dismissed. THE plaintiff preferred Civil Appeal No. 425 of 1976 and the appeal was also dismissed on 25-4-79 by the IInd Additional Civil Judge, Kanpur, only there after the present appeal was preferred by the plaintiff. 3, THE suit was filed by the plaintiff for a declaration that he was entitled to be designated as a Fitter Armourer in Group I against Airman's Vacancy (up to the rank of a Corporal) in the revised pay scale of Rs. 150-240 with retrospective effect in accord ance with A. F. O. No. 78 of 1963 and AF. O. No. 362 of 1966, with a consequential relief of mandatory injunction directing the defendant to assign correct designation and revised scale of pay to the plaintiff in accord ance with the declaration to be granted with retrospective effect. THE plaintiff had al leged that he was appointed on 19-6-64 as an Armourer against Airman Fitter Armourer vacancy. According to him, the trade of Air man Armourer fell in Group II while the trade of Airman Fitter Armourer fell in Group I trade carrying different scales of pay. He insisted that since he was appointed against the vacancy of Armourer belonging to Group I trade, he was entitled to the scale admissible thereto. On 22-8-69 the plaintiff came to know for the first time that he was given a designation Armourer Group II. He submitted a representation to the Officer Commanding but his representation was rejected. THE suit was filed after a notice under Section 80 C. P. C. 4. THE defendant contested the suit. It was accepted that the plaintiff was ap pointed as an Armourer against Airman Fitter Armourer vacancy. THE defendant, however, pleaded that merely because of an appointment against Fitter Armourer Vacancy Group I, the plaintiff was not en titled to be designated as Fitter Armourer in Group I and to get the scale of pay as admissible for that group. THE defendant disclosed that an appointment against a Group I trade could not be made by direct recruitment which was a promotional post. THE defendant also pleaded that the suit. was barred by time and also by principles of estoppel and acquisance. THE trial Court found that the plaintiff was not to be desig nated as Fitter Armourer against Group I. It also found that the suit was barred by time. According to the trial Court, the plaintiff was appointed on 19-6-64 and cause of action if any arose on that date only or latest by 25-6-64 when the appointment was published in an office order. THE suit was filed in 1971 i. e. after more than six years, beyond the period of limitation of three years. THE trial Court held that the suit was barred on the principles of estoppel and acquisence, as the plaintiff had accepted a lower pay from 1964 to 1969 and had accepted a lower designation also. 5. THE first appellate Court discussed the issue afresh. It was held that names were sought from the employment exchange for appointment against posts of Armourer Group II. After appointment the plaintiff was always treated as Armour II only. THE promotion rules were also before the Court below and a Grade I Armourer's post was a promotional one for persons having five years experience and having passed a trade test. Papers are there to snow that the plaintiffs names was sent for appointment to the post of Armourer Grade II only. THE Court further found that the plaintiff-ap pellant could not have a right to the post of Armourer Grade I as he was neither selected nor was he qualified at that time for appointment against that post. He con firmed the view of the trial Court that the suit was barred by limitation. 6. When the appeal was admitted on 20-2-80 the Court had accepted it to be heard on certain substantial questions of law those are points (A), (B), (C) and (F) as mentioned in the memo of appeal. Not only in these points but in the other points (D), (E) and (G) also the question of limitation as decided by the Courts below was not raised or challenged. 7. On the question of limitation, how ever, the learned counsel for the appellant submitted that limitation would run from the date of refusal of relief to him and in that light the suit was not time barred. Limita tion is a question which touches the very maintainability of the suit and the Courts have a right to record an order on this point even without a specific plea. THE Court held the suit to be barred by limitation on the ground that the cause of action arose when the appointment was made and definitely the suit was filed beyond three years from the date of accrual of this cause of action. THE learned Counsel submitted that part III of the Scheduled to the Limitation Act covers the period of limitation for suits relating to declaration. He referred to Ar ticle 58 which says that when it is a suit to obtain any declaration other than those covered by Articles 56 and 57, the period of limitation would be three years and the time would begin to run then the right to sue first accrued. Although no substantial question of law was raised touching the point of limitation, in the grounds of appeal, it was indicated that the total dismissal of the suit on the ground of limitation was not proper as the plaintiff was atleast entitled to the salary for the three years from the date of the suit. According to the plaintiff s case, he was appointed in Grade II no doubt but he was entitled to be appointed in Grade I with effect from that very date of appointment i. e. 19-6-64. He pleaded in the plaint that his cause of action arose on 22-8-69 when he learnt of his erroneous designation and wrong fixation of scale of pay. THE cause of action also arose when his claim was rejected by the defendant. It is the plaintiff s case that he was entitled to the benefit of Grade I from the inception of his appoint ment. THE moment he received the first pay packets the plaintiff should have known that he was being denied the scale of Grade I and was being given the scale of Grade II only. It is his case in the plaint that the distinction between Airman Armourer Group II and Airman Fitter-Armourer Group I could not be realised by the office concerned and the office order dated 25-6-64 was published showing the appointment of the plaintiff in Group II only. THE plaintiff had pleaded that he was not aware of the aforesaid legal and factual position and he came to know of it only when he received an order of posting at Gowaliar on 22-8-69. THE Courts below had declined to accept this fact of first knowledge on 22- 8-69 about the wrong designation. In my view, the cause of action arose, as rightly held by the two Courts below on the date of the wrong appointment and not on the date of supposed first knowledge. 8. As regards the other substantial question of law it is found that those were all on the points of appreciation of evidence. It was urged by the learned counsel for the appellant that the papers No. A-31 and A-39 containing the admission on behalf of the defendants were over-looked by the Courts below. THE paper No. A-31 is a letter dated 21-11-70 addressed to the Head Quarter Maintenance Command of Indian Air force by the Group Captain and Officer Com manding of No. 2 Base Repair Depot, Air-Force Station, Gwalior. Through this letter the Group Captain forwarded the applica tions of Shri A. P. Gupta and one Shri A. Prasad for re- fixation of their pay. Paper No. A-39 is again another letter dated 11-11-70 from the Officer Incharge Civil A. I. M. E. concerning fixation of pay in respect of the plaintiff and others. 9. In the letter dated 11-11-70 it was suggested that since the office had con firmed that Shri A. P. Gupta and others were employed as Armourer II, it was necessary, to avoid confusion, to delete the words "against vacancy of Fitter Armourer". This may not be read as an admission on any fact and for less as an admission to bind the defendant. Similarly, the letter dated 21-11-78 makes a reference to the claim of Shri A. P. Gupta and others and reiterates that the original appointment letter implied am biguity and it further indicated that Shri A. P. Gupta and others were not ready to accept the interpretation given by the office. This again may not be read as an admission at all and far less to be an appointment to bind the defendant. THE Courts have found that the posts of Armourer Grade I were promo tional ones to be given to the persons after a test who, on the date, possessed an experience of five years. A mere mistake or ambiguity in the appointment letter may not give rise to a right to the employee to claim a higher grade when, according to the Courts below, the plaintiff was not having the requisite experience on the date of his appointment to be absorbed against a Grade I post. 10. THE Courts below had dismissed the suit not only on merits, but also on the question of limitation and I find no wrong the decisions on either of the two points. 11. THE appeal fails and is dismissed. THE parties, however, are directed to bear their own costs. Appeal dismissed. .