9911796707
TMI Blog1967 (5) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... late very briefly the facts. On June 6, 1949 the Governor of Uttar Pradesh by G. O. No. 7691/PPD-114/48, sanctioned the creation of 500 temporary posts of Panchayat Inspectors in the scale of ₹ 120-8-180-EB-10-200, plus exclusive of Dearness Allowance. This order was passed by the Governor in the exercise of his powers under Section 241 of the Government of India Act, 1935 as it purported to create temporary posts and regulate their conditions of service. The order itself did not specify under what law it was passed but the State Counsel stated before me, in answer to a question from the Court, that he was instructed to state that it was passed under Section 241 of the Act of 1935. 2. The petitioner was appointed to one of these posts by the Director of Panchayat, U. P., by his order dated July 16, 1949. In 1951 he got into trouble with the authorities and disciplinary action was taken against him, and he was charged with having committed serious offences. During the disciplinary proceedings he remained suspended. On January 13, 1952 he was reinstated but a number of punishments were imposed on him. His salary was reduced to the lowest scale of ₹ 120/- per month, his i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice of 28th February, 1960 As stated above he had moved the Government by his application of 8th June 1959, but no decision was taken till 25th October 1960. On this date the impugned order was passed by the Government. The material portion of this order rum thus: "Government are advised that Hari Raj Singh Tyagi, Ex-Panchayat Inspector, should receive his salary and allowances only for the last three years as the payment of any emoluments to him for the remaining period of his absence from duty is barred by time. The Governor has accordingly been pleased to order that for the period from May 1, 1956 to April 30, 1959 Sri Hariraj Singh Tyagi should be paid his full pay together with such increments as he would have normally drawn had he not been dismissed from service He would also be entitled to receive dearness allowance at the rates admissible to him under the orders of Government issued from time to time." This order is Annexure F of the petitioner's affidavit. It was in the form of direction issued by the Government to the Director of Panchayat Raj. In pursuance of it the Director issued an order on 20th January 1961 that the petitioner was entitled to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. The question will arise only if the first is decided in favour of the petitioner. 5. Before deciding this question, I must make one or two points clear. The first is that the order Annexure F was passed by the State Government in the exercise of their powers under Rule 54 of the U. P. Fundamental Rules The order itself does not specify under which law it was passed, but learned counsel for the Government stated, in reply to a question from the Court, that he had been instructed to state that the order had been passed under Rule 54. This statement was recorded I asked learned counsel whether in the event of the Court holding that Rule 54 does not apply to this case, he could specify any alternative source of power, and he replied that he could not. It follows that if Government's jurisdiction to pass the order cannot be found in Rule 54 the order is without jurisdiction. 6. Secondly, the sole reason for Government's refusal to pay the petitioner salary for the period between 1953 and 1956 is that the Government thought the claim was time-barred The order itself gives no other reason, and I asked learned counsel if Government had any other reason for not paying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II, which bears the title "Dismissal Removal, and Suspension." It consists of three Rules 52, 53, and 54. which are a part of the U. P. Fundamental Rules which applied to the petitioner's case at all material times Rule 52 provides that 'the pay and allowances of a government servant who is dismissed or removed from service ceases from the date of such dismissal or removal " Rule 58 provides that a government servant under suspension is entitled to a subsistence grant of such amount not exceeding one-fourth of his pay, as the suspending authority may direct.'' Rule 54 provides for a situation which arises when a government servant who has been dismissed, removed or suspended is re-instated. It provides in effect that the competent authority shall consider what pay and allowances should be paid to a reinstated government servant for the period of his absence from duty. I shall consider the scope and effect of this Rule presently But at this stage it will suffice to point out that the reinstatement of a government servant does not automatically entitle him to all the arrears of pay and allowances for the period of his absence from duty. The question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salary of the petitioner for the period between 1953 and 1956 on the ground that his claim is time-barred is invalid because Government could not take into consideration the Limitation Act while considering what salaries and allowances were payable to the petitioner. 12. Government's reliance on the Limitation Act is due to a misunderstanding of the scope of the law of limitation. The Limitation Act is a complete code in itself, and outside it there is no law of limitation excepting specific provisions in specific Acts Learned counsel for the Government stated that the case of the State was based on Article 102 of the Limitation Act and no other law. 13. The Preamble of the Limitation Act states. "whereas it is expedient to consolidate and amend the law relating to the institution of suits, appeals, and certain applications to courts, . ... " (The rest of the Preamble is not relevant for this case). Section 3, which is the back bone of the Act, provides. "3. Subject to the provisions contained in Sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made after the period of limitation prescribed thereof by the first Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed orbit and usurps the prerogative of the Courts, and acts without jurisdiction. Alternatively, its decision is based on an extraneous and irrelevant consideration not permitted by law and therefore illegal Whichever way we look at it, the decision is vitiated by a defect which is fatal. 17. There is an additional reason why the Government of Uttar Pradesh. at the relevant time, could not take the law of limitation into consideration while deciding the petitioner's claim for arrears of salary In 1952, Government issued an order regulating the right of Government servants to seek redress of grievances arising out of their employment or conditions of service. This was Order No. O-3237/II-B-32-52, dated December 24, 1952 Paragraph 3 of this order provided, "In the matter of grievances arising out of a Government servant's employment or conditions of service the proper course for him will be to seek redress from the appropriate departmental and governmental authorities, in accordance with the instructions prescribed for this purpose. Any attempt by a Government servant to seek a decision on such issues in a Court of law (Even in cases where such a remedy is legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law and at the same time reserved to itself the right to apply the law of limitation against a Government servant who had allowed his claim to become time-barred while pursuing his departmental remedies. If Government had any such intention while issuing the G O. of 1952 or making Rule 26, both these provisions will have to be condemned as fraudulent and an abuse of the rule-making power under Article 309. The Court must presume that the Government acted honestly and therefore hold that these provisions made the law of limitation inapplicable to cases where a departmental remedy was provided. The petitioner in the present case has established that he pursued his departmental remedies before coming to the court for relief. On 24th May 1953 he was suspended on charges, and on 4th May, 1954 he was removed from service. On both these dates G. O. No. O-3237/II-8-32-52 dated December 24, 1952 was in force and the petitioner could not have filed a suit challenging the legality of his removal or recovery of his salary and allowances before exhausting his departmental remedies. He filed an appeal from the decision of the Joint Director of Panchayat Rai. On 13th May 1956 he was informed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent servant's claim on reinstatement to be paid his salary and allowances. Therefore though Article 102 of the Limitation Act bars a Civil suit for the recovery of salary or wages due if it is filed beyond time, it has no application when a competent authority is considering what salary and allowances are payable to a Government servant after he is reinstated in service in pursuance of a decision of the Court. If that authority rejects the claim of the Government servant on the ground that it is barred by limitation, its decision is based on an irrelevant or extraneous consideration and illegal. In the present case the Slate Government has held that the petitioner should not be paid his salary and allowances for the period between 1952 and 1956 because its recovery in a court of law is time-barred. This decision if vitiated and must be set aside. 19. There is an additional reason for setting aside this decision. Learned counsel for the Government stated, in an answer to a question from the court, that the decision of the Government was made in the exercise of its powers under Rule 54 of the Fundamental Rules. The counsel further stated that the Government did not rely on any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but has no application where a Government servant is re-instated in pursuance of a decision of the Court. Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh. AIR 1962 SC 1334. Therefore, Government had no jurisdiction under Rule 54 to withhold the petitioner's salary for the period between 1953 and 1956 As the order Annexure F was passed before the decision of the Supreme Court and in ignorance of the law declared by that Court, I asked Mr Mehrotra, learned counsel for the State whether the Government could point to any other rule or principle of law under which the order Annexure F could have been passed. He took time to obtain instructions and ultimately informed the Court that he had been instructed to state that Government relied on Rule 54 and no other provision. But In view of the decision of the Supreme Court, this Rule could not be invoked against the petitioner who had been reinstated in pursuance of the decision of this Court. Therefore the direction in the order Annexure F not to pay the petitioner's salary and allowances for the period between 1953 and 1956 is without jurisdiction. 21. The next question is: what relief should be granted to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the U. P. Fundamental Rules Clause (21) of Rule 9 defines pay as follows:-- "(21) Pay means amount drawn monthly by a Government servant as -- (i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for post held by him substantively or in an officiating capacity, or which he is entitled by reason of his position in a cadre, and (ii) overseas pay technical pay, special pay and personal pay, and (iii) any other emoluments which may be specially classed as pay by the Governor. " 24. The definition of pay is in the widest possible terms, and certainly wide enough to include the pay of a temporary servant. 25. The concept of pay occupies an important position in the Fundamental Rules. The difference between a temporary and a permanent post is based on the difference in pay Clause (22) defines permanent post as, "a post carrying a definite rate of pay sanctioned without limit of time," and Clause (30) defines temporary post as "a post carrying a definite rate of pay sanctioned for a limited time''. The words "sanctioned" and "carrying" are significant. "San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the right of an employee to receive the amount of wages earned by him is a property right was affirmed. In the present case the petitioner was illegally removed from service and reinstated by an order of this Court. The effect of this Court's decision, to borrow the words of the Supreme Court in Devendra Pratap Narain Sharma's case, AIR 1962 SC 1334, was to declare that the petitioner "had been wrongfully prevented from attending to his duties as a public servant" and that "it would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work." If the petitioner's right to receive his salary and allowances for the period between 1953 and 1956 is a property right, it is also a fundamental right which can be enforced by this Court under Article 226 of the Constitution. 27. Learned counsel for the State contended that the Court should not exercise its powers under Article 226 to enforce a time-barred debt and argued that the remedy under Article 226 is not intended to supersede completely the ordinary remedies in the law Courts. He cited a Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in that case the jurisdiction of the High Court could have been invoked by a Reference under the statute. In the present case the petitioner has been left with no remedy. But it is noteworthy that in this very judgment the Supreme Court affirmed the principle enunciated in its earlier decisions that the jurisdiction of the High Court (under Article 226 of the Constitution) is couched in wide terms and is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article". It however added that "the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to self-imposed limitations." 28. The question whether any particular relief should be granted under Article 226 depends upon the nature and facts of each case. The guiding principle in all cases is promotion of justice and prevention of injustice. In the present case, the petitioner has been deprived of his statutory right to receive his salary and allowances for reasons which are manifestly illegal. He had no option under the rules but to exhaust his departmental remedies before coming to the Court for relief. Meanwhile, his suit for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered by him due to non-payment of his dues. In AIR 1952 Raj 74 the Rajasthan High Court directed the State to pay the money value of the stock of grain illegally seized by it. I think this precedent can be extended to payment of interest on money which was illegally withheld for seven years. 32. There was no justification for not paying the petitioner his salary and allowances in 1960. The salary for three years prior to May 1956 was refused for reasons which are legally invalid and morally discreditable. Government framed a rule prohibiting its servants to seek their remedies in the law courts before exhausting their departmental remedies and then took advantage of its own rule and of the fact that the petitioner in obeying it had allowed his suit to become time-barred. If a private employer had done this he would be regarded as having played a trick on his servant. The employer's code of conduct cannot be different when the employer is the State. Even the pay and allowances for the period between 1953 and 1956 which were due to the petitioner was not paid to him. As a result the petitioner has been deprived for seven years of the use of the money due to him and the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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