Parkash Kaur vs State Of Punjab And Anr
2024 Latest Caselaw 7390 P&H

Punjab-Haryana High Court

Parkash Kaur vs State Of Punjab And Anr on 8 April, 2024

Author: Harsimran Singh Sethi

Bench: Harsimran Singh Sethi

                                       Neutral Citation No:=2024:PHHC:047588



RSA-1909-2016                    2024:PHHC:047588                 1

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


(212)                            RSA-1909-2016
                                 Date of Decision : April 08, 2024


Parkash Kaur                                                .. Appellant



                                 Versus

State of Punjab and another                                 .. Respondents



CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI


Present:     Mr. Rohit Kataria, Advocate, for
             Mr. Manu K. Bhandari, Advocate, for the appellant.

             Mr. Rohit Ahuja, Deputy Advocate General, Punjab.


HARSIMRAN SINGH SETHI J. (ORAL)

1. In the present regular second appeal, the challenge is to the

judgments and decrees of the Courts below by which, the suit filed by the

appellant-plaintiff so as to seek declaration that the husband of the

appellant-plaintiff was entitled to continue upto the age of 60 years and the

office order dated 02.05.1990, retiring him at the age of 58 years, is null and

void.

2. Learned counsel for the appellant-plaintiff argues that the

judgments and decrees of the Courts below are perverse and the same are

contrary to the principle of law settled by this Court while passing order in

RSA No.4877 of 2001 titled as B.D. Joshi vs. State of Punjab and others,

decided on 28.02.2012. Learned counsel for the appellant-plaintiff submits

that the question of limitation will not come into play in the present case

1 of 5

Neutral Citation No:=2024:PHHC:047588

especially when it is a conceded position that the late husband of the

appellant-plaintiff was entitled to continue upto the age of 60 years.

3. Learned counsel for the respondents submits that once the order

dated 02.05.1990 was passed retiring the husband of the appellant-plaintiff,

the said order could only be challenged within a period of three years and as

the husband of the appellant-plaintiff remained alive upto the year 1998, he

did not challenge the said order during his lifetime and as the appellant-

plaintiff has only stepped into the shoes of her deceased husband, qua the

said order, the said order could not have been challenged especially when

the late husband of the appellant-plaintiff failed to challenge the said order

within the period of limitation provided. Learned counsel for the

respondents further submits that as per the judgment of the Hon'ble

Supreme Court of India in Civil Appeal No.1852 of 1989 titled as State of

Punjab and others vs. Gurdev Singh and Ashok Kumar, decided on

21.08.1991, even the void orders are to be challenged within a period of

three years.

4. I have heard learned counsel for the parties and have gone

through the record with their able assistance.

5. The argument of the learned counsel that retiring the late

husband of the appellant-plaintiff on attaining the age of 58 years and not

allowing him to continue in service till the age of 60 years, is recurring

cause.

6. The said argument needs to be noticed keeping in view the

facts and evidence which has come on record. It is a conceded position that

by a specific order dated 02.05.1990, the late husband of the appellant-

plaintiff was retired from the post of Constable. Once a specific order was

passed and the said order was causing prejudice to the late husband of the

2 of 5

Neutral Citation No:=2024:PHHC:047588

appellant-plaintiff, the said order was required to be challenged within a

period of limitation provided i.e. three years. It may be noticed that the

husband of the appellant-plaintiff remained alive during the said period of

limitation and only expired in the year 1998. The judgment of the Hon'ble

Supreme Court of India in Gurdev Singh's case (supra), is applicable in the

present case. The relevant paragraphs of the said judgment are as under:-

" 4. First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limita- tion has not been set up as a defence, Section-2(J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Court's function on the presentation of plaint is simply to examine whether, on the assumed facts the plaintiff is within time. The Court has to find out when the "right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fail within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residu- ary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article

113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words

3 of 5

Neutral Citation No:=2024:PHHC:047588

"right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the 'cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is insti- tuted (See: (i) Mt. Bole v. Mt. Koklam and Ors., AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. The Union of India, AIR 1970 SC 1433).

8. It will be clear from these principles, the party ag- grieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.

11. The Allahabad High Court in Jagdish Prasad Mathur and Ors. v. United Provinces Government, AIR 1956 All 114 has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is gov- erned by Article 120 of the Limitation Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil v. Secre- tary of State and Anr., AIR 1943 Oudh 368. That in our opinion is the correct view to be taken. A suit for declara- tion that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act The decision to the contrary taken by the Punjab & Haryana High Court in. these and other cases ((i)State of Punjab v. Ajit Singh,. [1988] 1 SLR 96 and (ii) State of Punjab v. Ram Singh, [1986] 2 SLR 379 is not correct and stands overruled."

7. Not only this, by placing reliance upon the judgment of the

Gurdev Singh's case (supra), the Hon'ble Supreme Court of India in Civil

Appeal No. 10269 of 1995 titled as Punjab State Vs. Darshan Kumar,

4 of 5

Neutral Citation No:=2024:PHHC:047588

decided on 02.11.1995 as well as in SLP(C) No. 2944 of 1994 titled as

State of Punjab Vs. Rajinder Singh, decided on 25.03.1996, passed order

again reiterating that the period of limitation to challenge an order is three

years.

8. Keeping in view the settled principle of law, the order dated

02.05.1990 was required to be challenged within a period of three years,

which has not been done by the appellant-plaintiff as the suit was filed only

in the year 2005 after 15 years of the retirement, which is impermissible.

9. Qua the argument that the claim of the appellant-plaintiff is

covered by the judgment in B.D. Joshi's case (supra), it may be noticed that

the judgment of the Hon'ble Supreme Court of India in Gurdev Singh's

case (supra), Rajinder Singh's case (supra) and Darshan Kumar's case

(supra), have not been noticed. Once the Hon'ble Supreme Court of India

held that even the void orders needs to be challenged within the time framed

of limitation of three years, no benefit of the judgment in B.D. Joshi's case

(supra) can be extended to the appellant-plaintiff.

10. No other argument was raised.

11. Keeping in view the above, no ground is made out for any

interference by this Court in the present appeal.

12. Dismissed.

April 08, 2024                   (HARSIMRAN SINGH SETHI)
harsha                                  JUDGE


            Whether speaking/reasoned : Yes/No
            Whether reportable       : Yes/No




                                      5 of 5