- (1.) THIS second appeal is directed against the concurrent decisions of the Courts below dismissing the suit of the plaintiff--appellant (since deceased ). He was working as a driver 'b' Grade in the Northern Railways under the defendants--respondents. He had been retired from service on reaching the age of superannuation of 58 years, on 30-11-1971, taking his date of birth as 1-12-1913. A departmental enquiry was conducted against him and it was found that he produced a false certificate to support his request for change in the date of birth from 1-12-1913 to 13-7-1916. The Divisional Personnel Officer, Ferozepur, stopped the increments of the appellant for two years, on the aforesaid ground. Feeling aggrieved by the aforesaid order, the appellant filed a suit seeking declaration that his retirement on 30-11-1971 was illegal, wrong and against the rules and the order by virtue of which his increments had been stopped for two years was illegal, ultra vires of the rules and principles of natural justice and inoperative. The defendants--respondents denied the allegations of the appellant. It was maintained that the date of birth of the appellant was entered as 1-12-1913 in the office record and this date of birth was never challenged throughout his service of over 30 years. The pleadings of the parties gave rise to the following issues:- 1. Whether the cause of action is not justiciable? 2. Whether a valid notice under Section 80 of the Code of Civil Procedure has been served on the defendants? 3. Whether the plaintiff is estopped by his conduct to bring this suit? 4. Whether the suit for declaration is premature and a suit for mere declaration does not lie? 5. Whether the impugned orders dated 2-8-1971 and 30-11-1971 are illegal, void, wrong and against rules and against principles of natural justice? 6. Relief.
(2.) THE trial Court decided issues Nos. 1, 2, 3 and 4 in favour of the appellant and issues No. 5 was decided in favour of the respondent. As a result of the finding under issue No. 5, the appellant's suit was dismissed. An appeal against this decision to the Senior Subordinate Judge, Jullundur, also failed. The appellant has come up in second appeal to this Court. During the pendency of the appeal, the appellant died on 19-3-1976. An application has been filed by his wife and children praying that they may be brought on record as his legal representatives and be allowed to continue the appeal. A preliminary question arises whether the appeal is maintainable in the circumstances. It is contended by the learned counsel appearing for the respondents that any order that can be made in this case is of an interest personal only to the appellant, now deceased, and that since the legal representatives can claim no personal right, they cannot agitate the question. On behalf of the applicants Shri Bali, learned counsel, urges that this application is maintainable. This is just a bald submission of the learned counsel and it has not been supported by any principle or precedent. There is considerable force in the contention of the respondents. Assuming that the impugned order is quashed on the grounds urged in the plaint viz. , the order of retirement of the appellant on 30-11-1971; or order dated 2-8-1971 stopping his increments permanently for two years were opposed to the principle of natural justice or ultra vires of the rules; the position would be that the department would be entitled to continue the proceedings afresh against the delinquent officer. What this Court does is only to vacate the impugned order. The charges that were framed against the delinquent officer are not wiped out by these proceedings. Now that the delinquent officer is dead, the department cannot possibly re--commence the proceedings against him. Shri Bali claims that if the impugned orders are improper, then the legal representatives would be entitled to recover from the respondents such arrears and other monetary benefits which the delinquent officer would have been entitled to prior to his retirement. Shri Bali does not deny that the recovery of such arrears would not follow as a matter of course by issue of an order in the present case. The legal representatives, nevertheless, have to file a suit. It is again doubtful whether the suit would be within the period of limitation as the delinquent officer had already retired on 30-11-1971. Shri Bali does not deny that if a suit is filed, in that case it would have to be independently established that the appellant was not guilty of anything that would justify his retirement as a preliminary to obtain any relief sought in that suit. It follows, therefore, that the issue of a declaration sought in the suit is only a step towards further legal steps which the legal representatives of the deceased officer propose to take. I am not satisfied that in these circumstances this Court can entertain the appeal. I am inclined to agree with the contentions of the respondents that the relief sought is purely personal to the delinquent officer and such personal right which really involves the continuance in service or otherwise of a person, cannot survive to the legal representatives. I am of the view that on the date of death of the appellant right to sue or to continue the appeal abated. The same view was taken in case P. C. Sarma v. S. C. Rly. Employees Co--op. Credit Society, Secunderabad, AIR 1977 Andh Pra 319. I, therefore, hold that the appeal has abated.
(3.) THE result is that the appeal is herein dismissed, but there will be no order as to costs.;