- (1.) Facts giving rise to this writ petition are not in dispute and these are as under:
(2.) Petitioner had been appointed as a Foot Constable in the erstwhile State of Pepsu. He was charged-sheeted by the then Deputy Superintendent of Police and placed under suspension pending a regular departmental inquiry. After the inquiry he was dismissed from service by the Superintendent of Police, Patiala. He filed an appeal before the Inspector General of Police which was rejected and the order of dismissal upheld. Thereafter he filed a civil suit in the court of Subordinate Judge 1st Class, Patiala for the recovery of the arrears of pay and allowance amounting to Rs. 54001-. The suit was contested by the State of Punjab on various grounds. Pleadings of the parties gave rise to the following issues:- "1. Whether the suit is within time OPP 2. Whether no valid notice under Section 80 C.P.C. was served on the defendant OPD. 3. Whether the order of dismissal is illegal, ultra vires, null and void and unconstitutional for the reasons mentioned in Para No. 4 of the plaint OPP 4. Whether reasonable opportunity was afforded to the plaintiff before passing the order of dismissal OPD 5. Whether the plaintiff is entitled to recover Rs. 5400/- from the defendant OPP 6. Relief." On a consideration of the oral and documentary evidence led by the parties and after taking into account the submission made by their counsel, the trial court decided all the issues in favour of the plaintiff (petitioner herein) and decreed the suit on April 19, 1963. A decree in a sum of Rs. 2,850/- with costs was passed in favour of the plaintiff holding that he was entitled to recover the arrears of pay and allowances for a period of three years and two months preceding the date on which the suit was filed. The State of Punjab filed Regular First Appeal No. 308 of 1963 in this court which was dismissed by a learned Single Judge on May 7, 1975. Letters Patent Appeal No. 398 of 1975 filed by the State of Punjab also met with the same fate on March 1, 1979. Since issue No. 3 was decided in favour of the petitioner it being held that the order terminating his services was illegal and null and void, the petitioner claimed that he be reinstated in service. This plea was not accepted by the respondents. Hence, this writ petition.
(3.) The only argument advanced by the learned counsel for the petitioner is that in view of the finding of the trial court on issue no. 3 holding the termination of his services illegal, he is entitled to be reinstated and that the respondents were not justified in not allowing the petitioner to join duty after the suit had been decreed. He has also contended that since the petitioner has now crossed the age of superannuation, he should be deemed to have joined service after the suit was decreed and he should be paid the arrears of salary till the date of superannuation and further he should be given pension as per the Rules. I am unable to accept this contention. When the services of the petitioner were terminated, he filed a suit only for the recovery of the arrears of salary. He could have also then claimed a declaration that the order of termination was null and void. Had such a declaration been granted, he would have been entitled to be taken back in service because in that event one could have presumed that the order terminating his services never took effect or had never been passed. It is true that in the suit filed by him an issue was framed in regard to the validity of the order terminating his service and the trial court found that the order was null and void but that was for the limited purpose of decreeing the suit for arrears of pay and allowance as claimed by the petitioner. Since he claimed only arrears of salary in the suit, the same was decreed to that extent. He omitted to make a claim for a declaration that the order terminating his service being null and void, he was entitled to be reinstated. He cannot now make that claim in the present writ petition. Such a claim, in my opinion, is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure which provisions are applicable mutatis mutandis to writ proceedings in view of Rule 32 of the Writ Jurisdiction (Punjab and Haryana) Rules, 1976. Even a fresh suit claiming such a declaration would be barred.;