MAHESHWARI, J. - (1.) THE plaintiff have preferred this intra-court appeal against the judgment dated 21. 11. 1990 passed by the learned Single Judge in Civil First Appeal No. 31/1988, whereby the learned Judge dismissed the appeal filed by the plaintiffs and maintained the judgment and decree dated 22. 12. 1987 passed by the District Judge, Sirohi in Civil Suit No. 22/1971, whereby, the suit filed by the plaintiffs for recovery of the alleged arrears of salary, pension and gratuity of late Tara Chand Dosi was partly decreed only towards the amount of pension and gratuity against the defendant No. 1 State of Rajasthan and rest of the claim was disallowed.
(2.) THE plaintiff appellants are heirs of late Tara Chand Dosi who was an Assistant Engineer in the erstwhile State of Sirohi having initially entered the service on 4. 7. 1918. An order appointing him Assistant Engineer, Abu Road was passed on 22. 1. 1948. While he continued to serve as such, on 8. 11. 1948, the then Sirohi State entered into a merger agreement with the Government of India. THE administration of merged Sirohi State was handed over to the then State of Bombay on the eve of commencement of the Constitution of India. However, certain territories in the State of Sirohi of Pindwara, Reodar and Bhawari were not taken over by the State of Bombay and the administration thereof was handed over to the then Government of United State of Rajasthan by a notification dated 24. 1. 1950 under the Extra Provincial Jurisdiction Act, 1947. Late Tara Chand Dosi was the Assistant Engineer, Abu Road in the Sirohi State at the time of merger of Sirohi with the Dominion of India and the Abu Road area fell in the administration of the State of Bombay under the merger order dated 25. 1. 1950. There is no dispute about the fact that late Tara Chand Dosi continued to serve under the State of Bombay till 31. 5. 1950 when he was relieved in pursuance to an order passed by the Government of Bombay on 26. 4. 1950. The plaintiffs by filing the suit on 21. 8. 1971 levied a claim for arrears of salary of late Tara Chand from 5. 2. 1936 to 23. 1. 1948 and then from 1. 6. 1950 to 31. 5. 1955 and of pension and gratuity. The claim of arrears of salary had two facets. The amount of salary for the period 5. 2. 1936 to 23. 1. 1948 of Rs. 16,305. 35 was claimed on the ground that this period of break in service was condoned by the erstwhile State of Sirohi and payment for this period ought to have been made. An amount of Rs. 13,125/- was claimed towards salary from 1. 6. 1950 to 31. 5. 1955 on the ground that relieving of late Tara Chand by State of Bombay on 31. 5. 1950 was illegal and he could not have been retired before attaining 60 years of age which he would have attained only on 31. 5. 1955. Further, according to the plaintiffs, on correct calculation of the pension payable he was entitled for an amount of Rs. 6,492. 03 and for gratuity of Rs. 7650/ -. The suit was filed on 21. 8. 1971 against the State of Rajasthan and the Executive Engineer, Public Work Department (South Division) (Building & Roads), Sirohi after serving a notice under Section 80, C. P. C. on 25. 10. 1970 on the Chief Secretary to the Government of Rajasthan, the Collector, Sirohi and the Executive Engineer, Public Works Department (South Division) (Buildings and Roads), Sirohi.
(3.) THE claim so made by the plaintiffs was contested by the defendants primarily on the grounds that the headquarter of late Tara Chand Dosi continued at Abu Road and no orders were passed by the Rajasthan Government for changing of the headquarter. On 2. 3. 1950, an order was issued by the Administrator of Abu and Abu Road area asking for the options from the employees about their desire to be absorbed in Rajasthan or Bombay and in pursuance thereof late Tara Chand submitted the option seeking absorption in Bombay province and, therefore, he was serving under the Bombay Province and the Bombay Government relieved him from services on 31. 5. 1950. He was never absorbed in the services in Rajasthan State and, therefore, claim on the basis of the retirement on attaining the age of 60 years on 31. 5. 1955 was entirely baseless. It was also pointed out that late Shri Dosi was relieved as back as on 31. 5. 1950 by the Bombay State and he had expired on 17. 1. 1960 and the suit filed by the plaintiffs was hopelessly barred by limitation. The central and pivotal question involved in the case obviously relates to status of late Tara Chand upon merger of the erstwhile Sirohi State and as to whether the plaintiffs could maintain a claim against the State of Rajasthan? Of course, another serious question remains as to whether the suit is within limitation? After considering the pleadings of the parties the learned Additional District Judge, Sirohi in the first place, on 29. 8. 1973 framed only the preliminary issue as to whether the suit was within limitation ? After hearing the parties, the learned Additional District Judge by his judgment and decree dated 19. 3. 1974 came to the conclusion that the suit was hopelessly barred by time. The learned Judge was of opinion that the claim for arrears of salary was governed by Article 7 of the Limitation Act, 1963 (corresponding to Article 102 of the Act of 1908 ). The learned Judge was of opinion that no question of fixation was involved and the salary fell due month by month and the last claim of pension also fell due in January, 1960 and even if residuary Article 113 of the Act of 1963 was applied to a claim for arrears of pension, the suit was barred by limitation because a period of more than 11 years elapsed after the death of Tara Chand. The learned Judge, therefore, did not settle any other issue nor decided any other question and dismissed the suit as barred by limitation. ;