G. C. Mathur, K.C.Agrawal, JJ. - (1.) THIS is an appeal by the State Government against the judgment of a learned Single Judge, allowing the writ petition filed by the respondent and directing the Government to pay a sum of Rs. 35,854.25 P. as arrears of salary to the respondent.
(2.) THE respondent was a Head Clerk in the Sale Tax Office at Saharanpur A charge-sheet was served on him and he was placed under suspension on January 27, 1953. After the inquiry, he was dismissed from service by order dated July 8, 1954. He then filed a civil suit, challenging the order of dismissal. THE suit was decreed on April 20, 1959. An appeal by the State Government against the decree was also dismissed. THE Government then filed a second appeal in this Court but this too was dismissed on March 13, 1970. In the meantime, on September 1, 1967, the respondent retired on reaching the age of superannuation. After the dismissal of the second appeal, the respondent asked for his salary from the date of suspension (27-1-1953) upto the date of superannuation (1-9-1967). The Commissioner of Sales Tax admitted the claim and issued necessary directions for the payment after deducting the subsistence allowance already paid to the respondent. The necessary pay bills were prepared and sent to the Treasury Officer for payment. It appears that the Treasury Officer raised an objection that the salary bills required to be pre- audited by the Accountant General as the claims had been made after one year of becoming due. Some correspondence ensued but the Treasury Officer did not yield. Thereupon the bills were forwarded to the Accountant General for pre- audit. At this stage, the Commissioner of Sales Tax reviewed his original order and took a stand that the claim for arrears of salary was time-barred. This decision was conveyed to the respondent by a letter dated May 12, 1972. The respondent made several representations but nothing came out of them and, ultimately towards the end of November, 1972, the respondent was finally told that the arrears of salary could not be paid as they had become time-barred. In July, 1973, the respondent filed a writ petition in this Court for a direction to the Government to pay Rs. 35,854 25P as arrears of salary for the period 27-1-1953 to 1-9-1967. He also prayed for a direction to the Government to pay the arrears of pension and to continue to pay the same. The learned Single Judge, who heard the writ petition allowed the same and directed the Government to pay a sum of Rs. 35, 854. 25 P. to the respondent as arrears of his salary and also to pay his pension. Against the judgment of the learned Single Judge, this special appeal has been filed by the State Government. Sri S. C. Budhwar, learned Standing Counsel, has pressed the appeal on the following four grounds :-. 1.That the respondent was guilty of laches in filing the writ petition and that the writ petition ought to have been dismissed on this ground; 2.That the writ petition was barred by the principle of res-judicata as the suit filed by the respondent for the recovery of the arrears of salary had been dismissed by the civil court as withdrawn; 3.that the claim for arrears of salary, which had become time-barred on the date on which the writ petition was filed, could not be enforced in a writ petition; and 4.that the writ petition was not maintainable as the obligation to pay the arrears of salary arose out of contract and not out of any statutory provision.
(3.) SO far as the question of laches is concerned, it is contended by the learned Standing Counsel that the right to recover the arrears of salary arose every month when the salary became due and the writ petition, having been filed several years later, deserved to be dismissed on the ground of laches. It is to be noticed that, though the respondent's suit had been decreed in 1959, the Government was agitating the matter in appeal and second appeal till 1970. Thereafter the respondent's claim was accepted by the Government and payment orders were actually issued. Therefore, all the period before this date need not be taken into account in considering the question of laches. It is only when afterwards the Government refused to pay the amount due on the ground of limitation that the respondent filed the writ petition. Though there was some delay, after the refusal, in filing the writ petition, we do not consider this a fit case for dismissing the writ petition on the ground of laches when the learned Single Judge did not exercise his discretion on this question against the respondent. The second ground urged by the learned Standing Counsel in support of the appeal is also untenable. It is admitted that the respondent had filed a suit for recovery of arrears of salary and when faced with the plea of limitation, he withdrew the suit. The suit was dismissed as withdrawn. Undoubtedly, a fresh suit in respect of the same subject matter was barred by the provisions of sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure. But this provision only applies to a fresh suit and not to a writ petition. Technical rules of the Civil Procedure Code like Order 2 Rule 2 or Order 23 Rule 1(3) bar only subsequent suits and not writ petitions. The principles embodied in these rules cannot be extended to writ petitions. Further, since no adjudication on merits was made in the suit, the dismissal of that suit cannot bar the writ petition on the general principles of res-judicata. The technical principles of Section 11 of the Code of Civil Procedure apply only to suits, but the general principles of res-judicata, apart from Section 11 of the Code of Civil Procedure, apply only when there has been a previous adjudication on the question sought to be shut out in the subsequent proceedings. In our opinion, the learned Standing Counsel is not right in contending that the writ petition was barred on the general principles of res-judicata on account of the dismissal of the suit as withdrawn.;