1. This is an appeal by the original plaintiff against the dismissal of his suit by the learned Judge of the Bombay City Civil Court on 31st of October, 1960. The plaintiff had filed this suit for the recovery of a sum of Rs. 1,030.19, which according to him has been wrongfully deducted from his salary as and by way of 'supervisory element' and for the recovery of a further sum of Rs. 3,972.44 in respect of the charge allowance payable to him, and for certain declarations ancillary thereto. The facts of the case are that the plaintiff was employed as a clerk in the General Stores Inspection Department of the Army, that pursuant to the election given to him the plaintiff opted for the unified scale of pay and a unified scale of pay on the scale of Rs. 100-10-200 was accordingly adjusted as far as he was concerned and that in or about June, 1947 it was provided by a corrigendum to the earlier Army instructions that in the case of personnel whose rate of pay was Rs. 5/- to 7/- per day, a deduction of Rs. 40/- per month should be made in respect of the suppresser element so long as the pay after deduction would not be less then Rs. 100/- per month. The authorities however later on decided, and a communication in that behalf was sent to all concerned, that no recovery should be made on account of the deduction on the supervisory element upto 30th June, 1947 but inspite of those instructions the plaintiff's pay was reduced to that extent with effect from 1st September, 1944. The first made of the plaintiff's claim was, therefore, for this alleged wrongful deduction for the period form 1st September, 1944 to 30th June, 1947 aggregating to Rs. 1,030.19.
2. The facts in respect of the second head to the plaintiff's claim were that, in or about September, 1945, the Government of India introduced the grant of charge allowance to civilian personnel with effect from 1st May, 1945, and provided that a clerk was to be designated 'Head Clerk' and was to be eligible for a charge allowance of Rs. 50/- per month, if he was in actual independent charge of 12 to 25 clerks but was to be designated as 'Assistant Head Clerk', and was to be eligible for a lower charge allowance of Rs. 25/- per month if he was in charge of 10 clerks. The plaintiff's case is that he was in charge of 10 clerks from 1st September, 1944 to 30th April, 1946 but had not been paid the charge allowance of Rs. 25/- per month for that period as Assistant Head Clerk; that he was in charge of more then 12 clerks from 1st May, 1946 to 30th June, 1947 but was not paid the charge allowance of Rs. 50/- per month as Head Clerk; and that even for the period subsequent to the 1st of July, 1947 right upto the 12th of August, 1956, he had been paid a charge allowance of only Rs. 20 per month, instead of Rs. 50/- per month to which he was entitled as Head Clerk. It is in respect of the aggregate of these, payments by way of charge allowance, which according of the plaintiff are due to him, that the plaintiff has made the second head of his claim, aggregating to Rs. 3,972,44. What may be called the third head of the plaintiff's claim is in the nature of declarations ancillary to the above two money claims of the plaintiff, the declarations claimed being to the effect that the plaintiff would be entitled to benefits by way of security, confirmation, promotion and pay on the basis of the two claims.
3. Seven issues were framed by the learned trial Judge which are to be found in paragraph No. 12 of his judgment, but I am concerned in this appeal only with issues Nos. 2 and 4, which have been decided against the plaintiff by the learned trial Judge. As far as the remaining issues are concerned, the same have been decided in favour of the plaintiff except issues Nos. 6 and 7 which relate to the relief claimed by the plaintiff. I am, therefore not called upon to deal with the same in this appeal filed by the plaintiff.
4. The two main grounds on which the learned trial Judge has dismissed the plaintiff's suit are, (1) that the plaintiff's claim is not justiciable as it is not based on any contract of service between the plaintiff and the defendants which could be enforceable in law (see issue No. 2); and (2) that the plaintiff's claim in suit is barred by the law of limitation (see issue No. 4). I must proceed to deal with each of these grounds.
5. The first of those questions requires a consideration of the authorities that were cited. In the case of R. Venkata Rao v. Secy. of State for India in Council , the appellant before the Privy Council was dismissed from Government service, and he brought the suit out of which the said appeal arose for damages for wrongful dismissal, and one of the questions which arose was whether the suit was maintainable as against the Government. The appellant's contention was that he had a statutory right, enforceable by action to hold office in accordance with the rules and that he could be only dismissed as provided by the rules and in accordance with the procedure provided therein, whereas the respondent's contention was that there was no actionable right conferred by statute upon the appellant. Sub-section (1) of S. 96B of the Government of India Act, 1919 laid down that subject to the provisions of the said Act and the rules made thereunder, every person in the Civil Service of the Crown held office during His Majesty's pleasure. The High Court of Madras confirmed the judgment of the trial Court dismissing the action of the appellant on the ground that he had no enforceable cause of action against the Government. On appeal to the Privy Council, that decision was confirmed. The Privy Council in its judgment referred to S. 96B and stated that that section in express terms laid down that office was held during pleasure and there was, therefore, no need for the implication of such a term and no room for its exclusion and observed as follows :-
'The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far-reaching to commend itself for acceptance'
(at p. 704 of Bom. L.R. (at p. 34 of A.I.R.). The Privy Council, therefore, came to the conclusion that the appellant had no right of action and they were unable to hold as a matter of law that a redress was obtainable from the courts by action (at p. 705 of Bom. L.R.) (at p. 34 of A.I.R). This decision of the Privy Council has been discussed by the trial Judge. The learned trial Judge has, however, not discussed the decision of the Supreme Court in the case of The State of Bihar v. Abdul Majid, : (1954)IILLJ678SC , which in my opinion, is important for the purpose of this case and to which I will now refer. The facts of that case were that a Sub-Inspector of Police appointed by the Inspector General of Police was dismissed by the order of the Deputy Inspector General of Police after a departmental inquiry, and that dismissal was confirmed by the higher authority. He thereupon filed a suit against the State for a declaration that the order of dismissal was void and for arrears of salary. It may be mentioned that subsequently, however, the Sub-Inspector was reinstated at the instance of the Chief Secretary to Government, but his claim for arrears of salary still survived, and one of the main questions which arose was whether the suit for arrears of salary by a civil servant was competent in a civil court. The trial Court dismissed the plaintiff's suit holding that the claim could only be made under Rule 95 of the Bihar and Orissa Services Code, and the order of dismissal was confirmed by the Additional District Judge, but was reversed by the High Court which decreed his claim for arrears of salary in the sum of Rs. 3,099.12.0. The State of Bihar thereupon appealed to the Supreme Court.
Dealing with the contention of the State that a suit by a public servant against the State for recovery of arrears of salary was not maintainable in a civil court, the Supreme Court agreed with the decision of the Federal Court in the case of Punjab Province v. Tara Chand A.I.R. 1947 F.C. 23, in which was held that the prerogative right of the Crown to dismiss its servants at will having been given statutory form in a sub-s. (1) of S. 240, it could only be exercised subject to the limitations imposed by the remaining sub-sections of that section, and that it must follow as a necessary consequence that if any of those limitations was contravened, the public servant had a right to maintain as action against the Crown for appropriate relief, and there was no warrant for the proposition that relief must be limited to a declaration and should not go beyond it. The Supreme Court referred to the observations of Kania, J. (as he then was) in regard to the provisions of S. 60 of the Civil P.C. to the effect that if the State's contention was to be accepted the result would be that a civil servant could not recover money in a suit against the Crown, but his creditor could recover the same in execution of a decree against the civil servant. It may be mentioned that a passage from the judgment of Kania, J. was quoted in the judgment of the Supreme Court, in which the world 'salary' was defined as an enforceable right to receive periodical payment.
The Supreme Court in Abdul Majid's case : (1954)IILLJ678SC , then referred to the judgment of the Privy Council in the case of High Cammr. for India v. I. M. Lall , on which reliance was placed on behalf of the State, and pointed out that the attention of the Privy Council was not drawn in that case to the decision of the Federal Court in Tara Chand's case A.I.R. 1947 F.C. 23. The Supreme Court further observed that the decision in Lall's case , had been given without consideration of the provisions of S. 60 of the Civil P.C. relevant to the inquiry and held that the rule of English law that a civil servant could not maintain a suit against the State or against the Crown for recovery of arrears of salary did not prevail in this country and had been negatived by the provisions of statute law in India. It further held (para. 14) that there was no warrant for the proposition that relief must be limited to the declaration and cannot go beyond it, and that to the extent that the rule that Government servants hold office during pleasure has been departed from by statue, Government servants are entitled to relief like other persons under the ordinary law and the relief had to be regulated by the Code of Civil Procedure. The Supreme Court, therefore, came to the conclusion that it was difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant though his creditor can take it would be based or sustained and that what could be claimed in England by Petition of Right can be claimed in this country by ordinary process (para 17). The Supreme Court, therefore, dismissed the appeal before it and confirmed the decree passed by the High Court for arrears of salary in favour of the respondent.
6. Both the decisions, of the Privy Council in Venkata Rao's case , as well as the decision of the Supreme Court in Abdul Majid's case, : (1954)IILLJ678SC , were considered by a Division Bench of this Court in the case of S. Framji Union of India 60 Bom. L.R. 1302 :A.I.R. 1960 Bom. 14, in which the same question arose in regard to a suit filed by a guard of North Western Railway for a declaration, that he was entitled to certain promotions and to receive certain payments and allowances, as well as for an order that the various monuments due to him be paid to him. Chagla, J., who delivered the judgment of the Bench, formulated the question which arose before him in various ways, one of them being whether the statutory rules framed by the Railway authorities relied upon by the plaintiff in the said case were mere rules of guidance and administrative rules, or whether they constituted a contract between the Union of India and, its employees. After considering the provisions of Arts. 309, 310, 311 and 312 of the Constitution and considering the decision of the Privy Council in Venkata Rao's case , as well as the decision of the Supreme Court in Abdul Majid's case, : (1954)IILLJ678SC , Chagla, C.J. formulated the legal position emerging on the authorities in the following terms (at p. 1311 of Bom. L.R.) (at p. 17 of A.I.R.) :
'But subject to these exceptions, the exception of Art. 311 and the exception enunciated by Abdul Majid's case, : (1954)IILLJ678SC , with regard to the recovery of arrears of salary, it is not suggested, with respect, by the Supreme Court in its judgment that the doctrine of a Government servant holding office during king's pleasure has been in any way further limited or cut down.'
The learned Chief Justice then stated that it was clear from the record before it that the said case was not a case where there was any special contract between Union of India and civil servant by which the Union had undertaken the obligation or conferred the right upon the plaintiff in respect of which the said suit was filed, and, therefore, it was possible to dispose of the appeal before them on the narrow issue, that in the absence of any contract, the rules by themselves not constituting, the contract, the plaintiff was not entitled to sue the Union of India. The appeal before them was dismissed by the Division Bench.
7. The position, therefore, is that, to the rule that a Government servant holds office during pleasure, there are only two exceptions, one under Art. 311 with which I am not concerned in the present case, and the other the exception enunciated in Abdul Majid's case, : (1954)IILLJ678SC , with regard to the recovery of arrears of salary. The 2nd exception which is based on the decision of the Supreme Court in Abdul Majid's case, : (1954)IILLJ678SC , has been cited with approval by the Supreme Court in at least three later cases, and they are, (1) State of Madhya Pradesh. G. C. Mandawar, : (1954)IILLJ673SC : (2) Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC Tirath Ram Lakhanpal v. Union of India A.I.R. 1964 S.C. 680. In the first of these 3 cases, Abdul Majid's case, : (1954)IILLJ678SC , is construed as laying, down that salary was not in the nature of bounty and whatever was recovered by Petition of Right in England could be recovered by action in this country. In the last of those, cases, the bases of the decision of the Supreme Court in Abdul Majid's case, : (1954)IILLJ678SC , has been explained by the Supreme Court itself as being that the rule of English law that public servants hold office during pleasure has not been fully adopted either by S. 214 of the Government of India Act, or by Art. 310(1) of the Constitution and that to the extent to which that the rule has been modified by the relevant provisions of Art. 311, Government servants are entitled to relief like any other person under the ordinary law and 'that relief must be regulated by the Code of Civil Procedure.'
8. That being the legal position emerging from the authorities discussed above, the narrow question to which I must address myself is whether the claim in the present suit falls under the exception carved out by Abdul Majid's case, : (1954)IILLJ678SC . If what the plaintiff claims in the present suit is a part of salary, or is property which is attachable under S. 60 of the Civil P.C. Though called allowance or designated by any other name, it would fall within the ratio of the decision in Abdul Majid's case, : (1954)IILLJ678SC , and the plaintiff would be entitled to enforce payment of the same against the State in a court of law, as laid down in that case. I have already pointed above to basis of the plaintiff's claim in this suit. The first claim is for wrongful deduction from salary which, it is not disputed, had been fixed on the unified scale of pay for which the plaintiff had opted under the option given to him. What the plaintiff claims under that head, is therefore, a part of what was his salary, and I have no doubt that the same would be covered by the exception laid down in Abdul Majid's case, : (1954)IILLJ678SC . As far as the second head of the plaintiff's claim is concerned, charge allowance, whether it can strictly be called salary or not, is certainly property which is attachable under the provisions of S. 60 of the Civil P.C. as it has not been shown to fall within any of the clauses of the proviso to sub-s. (1) thereof. That being the position, the ratio of the decision in Abdul Majid's case : (1954)IILLJ678SC , is certainly applicable to the plaintiff's claim for charge allowance which forms the second head of his money claim in the suit. The declarations which the plaintiff has claimed are merely ancillary to those money claims, and, without deciding whether the same are maintainable on other grounds and whether the plaintiff is entitled to those declarations in the wide terms in which the same have been formulated. I have no hesitation in holding that the relief in respect thereof cannot be said to be non-justiciable. In that view of the matter it is not necessary for me to consider whether the Army Instructions in the present case constituted a contract between the State and the appellant before me, or to deal with decision of K. K. Desai, J., in the case of Tarasingh v. Union of India 61 Bom. L.R. 1185: A.I.R. 1960 Bom. 101, to which the learned trial Judge has referred.
9. That brings me to the next question, and that is the question of limitation. In may opinion, from its very terms Art. 36 of the Indian Limitation Act, 1908 can have no application to the plaintiff's claim in this suit which does not seek any damages or compensation at all. It has been laid down by the Supreme Court in the case of National Bank of Lahore v. Sohanlal Saigal, : 3SCR293 that Art. 36 applies to acts or omissions commonly known as torts to English lawyers. I am unable to take the view that the plaintiff's suit could, by any stretch of language, be constructed as a claim founded in torts for unliquidated damages or compensation. It is in essence a claim for specific sums of money by way of arrears of salary as well as charge allowance and I am unable to see how it could be held to fall within Art. 36 of the Limitation Act, as the learned trial Judge has held it to be. In my opinion the proper article to apply to the plaintiff's claim for recovery of a part of the salary as well as of charge allowance is Art. 102 of the Limitation Act, and indeed, it has been so laid down by a Division Bench of this Court in the case of Dr. V. D. Angal v. State of Maharashtra, : (1968)IILLJ177Bom , in a case where the claim was of a very similar nature. Under the said Art. 102 the starting point of limitation is the date when the amount accrued due and limitation must, therefore, be computed accordingly for the purpose of finding out what part of the plaintiff's claim in this suit is within time. It may be stated that there could be no doubt that the whole of the plaintiff's claim is not within time, and it will be for the trial court to find out from the material placed before it as to what part of the money claims in this suit is barred, and what part, if any is within time. As far as the declaratory reliefs claimed by the plaintiff are concerned, the same would be governed by the provisions of Art. 120 of the Limitation Act. As already stated above, it will be for the trial court to consider whether to declarations sought by the plaintiff in the present suit are in proper form, and whether the plaintiff is entitled to them, apart from the questions decided by this judgment. I therefore allow the appeal and set aside the order of the trial Judge dismissing the plaintiff's suit with costs. I order that the suit be remanded to the trial court for disposal on merits in the light of this judgment. The costs of this appeal will be costs in the suit. The parties will be at liberty to apply for the framing of such further issues as they may think fit. It will be of course for the trial Court to decide which of them should be framed.