Somnath Ayyar, J.
1. There are 21 petitioners before us and they were all second division clerks in the district of Shimoga in the year 1951. During the years 1951 and 1952 they were entitled to increments in their pay-scale and those increments were paid notwithstanding their not having passed the prescribed departmental examinations.
2. On 5 August, 1955 by an order made by the State Government, officials who were in service on or before 15 June, 1951 and who were less than 42 years of age, were granted time till 15 June, 1956 to pass the departmental examinations and tests. There was meanwhile an audit objection to the payment of increments to the petitioner for the period between 15 June, 1951 and 1 April, 1952 and it was thought that that objection perished with the extension of the time granted by the Government for passing the departmental examinations.
3. But in his letter addressed to the Deputy Commissioner, Shimoga, it was pointed out that in the opinion of the Account-General, the Government order of 5 August, 1955 did not entitle the petitioners to any increment for the period prior to 1 April, 1952. This opinion was formed on the foundation that Art. 84 of the Mysore Service Regulations came into force only on that date. The Account-General, therefore, thought that since that article has no retrospective effect, the increments paid to the petitioners should be recovered from them.
4. On 30 May, 1962, the State Government, however, directed that the recovery of increments which had been paid to those officials who had not passed the departmental examinations and to whom in the opinion of the Account-General, Art. 84 of the Mysore Service Regulations was inapplicable, may be waived.
5. But between the date on which the Account-General expressed his opinion that the payment of increments to the petitioners should be recovered and the date on which the recovery was waived, the increments paid to the petitioners had been recovered. But what had been so recovered was, however, refunded to the petitioners on the basis of the Government order by which the recovery was waived. But there was another audit objection to such refund, and in consequence, the Government made an order on 26 July, 1963 directing the recovery of the amounts refunded, and it is this order which is challenged before us.
6. Although it is clear that at some stage in the history of the civil service of the former State of Mysore to which all the petitioners before us belong, departmental tests and examinations were prescribed for various categories of such service, it becomes obvious from the order of the Government of the former State of Mysore made on 15 June, 1951 on the recommendation of a committee appointed for that purpose, that the failure to pass a departmental examination or test did not entail the stoppage of increments where a civil servant was entitled to a progressive pay in the scale applicable to him. The committee was of opinion that in the case of persons to be newly appointed, they should be put on probation for a specific period during which they should pass the departmental tests and that their services should be terminated if they do not do so. But in the case of persons who were already in service and who were below 42 years of age it was said that they should pass the tests within a period of three years failing which their services should be terminated. They made other recommendations in regard to persons who between 42 and 45. Government made an order in accordance with those recommendations.
7. The petitioners before us were admittedly less than 42 years of age during the period with which we are concerned, namely, the period between 25 June, 1951 and 1 April, 1952.
8. Government made it clear in another part of their order that increments should be earned only by a person who has who has demonstrated to be satisfactory in his work and conduct.
9. It is also clear from Art. 77 of the Mysore Service Regulations which were operating during the prior to 1 April, 1952, when Art. 84 upon which the Account-General placed dependence came into force, that there was no correlation between the passing of a departmental tests or examination and the increment to which a civil servant became entitled in the progressive pay-scale. Chapter VII of the old Civil Service Regulations regulated increments, and, Art. 78 provided that an increment accrued from the day following that on which it was earned. It was also made clear by Art. 79 that the payment of a periodical increment depended upon good conduct, and that its payment or otherwise depended upon the opinion of the authority having the power to withhold the increment, in regard to that matter. Article 81 as it was during the relevant period provided that an increment was forfeited when there was a reduction to a lower grade or post or to a lower stage in the time-scale, or for misconduct or inefficiency. The true position during the period antecedent to 1 April, 1952 was that an increment could be withheld either for misconduct or for inefficiency but not for failure to pass a departmental test or examination. The right to earn increment to no extent depended upon success in any test or examination. We were not shown any other statutory provision or a notification by which the right to earn an increment was made dependent upon success in a departmental test or examination.
10. In that view of the matter, the payment of the increment to the petitioners for the period between 15 June, 1951 and 1 April, 1952 was unexceptionable. The increment could have been withheld under the old Service Regulations either for misconduct or inefficiency and there was none, and on the contrary the authority which could withhold the increment paid them.
11. In this view of the matter it becomes clear that the justification for the payment of the increments to the petitioners need not have been founded on the notification of the Government made on 5 August, 1955. That order would have been necessary to validate the payment made to the petitioners only if the increments had been wrongly allowed. But since it is clear that the petitioners were entitled to the increments which were paid to them, no question of ratification or validation of such payment can arise under the notification of 5 August, 1955.
12. Even otherwise, we take the view that no other interpretation is possible on the notification of 5 August, 1955 than that the payments made to the petitioners stood validated. By that notification those in service on 15 June, 1951 and who were less than 42 years of age were allowed time till 15 June, 1954 to pass the departmental tests and examinations. We are not concerned with the other parts of the notification which refer to the other category. The clear meaning of the extension of time in that way for passing the examination is that a consequence which would have ensued by reason of the omission to pass the departmental test or examination, does not ensue or occur. Even on the supposition that the failure to pass a departmental test or examination would have entailed a forfeiture of the increment - and we have no doubt in our mind that it did not - the civil servants who were in service on 15 June, 1951 and who were less than 42 years of age were relieved against such forfeiture by the Government order which extended the time for passing the examination till 15 June, 1956. If that is the plain and incontrovertible consequence of the order made by the Government, it is not easy to understand how the petitioners could have been required to refund the increments which had been paid to them.
13. We were informed that the time allowed for success in the departmental tests and examinations has been extended time and again by the State Government and that even today the civil servant has still time to pass the tests and examinations. It is obvious that such extension emanates from the recognition of the manifold difficulties which confront a civil servant in his endeavour to pass a departmental test or examination including the difficulty generated by the disappearance of the reading habit by a person who enters Government service where he can find little or no time to spare for the studies which have to be made for passing an examination, if he zealously devotes himself to honest performance of his duties.
14. However that may be the increments paid to the petitioners could be justified as already observed, for two reasons. The first is that the increments were payable notwithstanding the omission to pass a departmental test or examination. The second is that, even otherwise, any increment which had been withheld became payable in consequence of the order made by the Government on 5 August, 1955.
15. We learn that in the year 1962 under the rules made by the Governor in the exercise of his power under the proviso to Art. 309, success in a departmental test or examination is correlated to the right to earn an increment. But those rules have no application to the case of the petitioners who earned the increments long these rules came into force and so received.
16. The dependence which the Account-General placed on Art. 84 of the Service Regulations which came into force on 1 April, 1952 was unavailable to him. That article reads :
'After the initial salary of an officiating Government servant is fixed in an appointment, the drawal of increments will be regulated in accordance with the rules in force in respect of holders of substantive appointment.'
17. The meaning of this article is that the stage at which the drawal of increments could be regulated is the stage at which the salary of a Government servant is fixed in an appointment. This article has no relevance to the case of the petitioners or to the question whether success in a departmental test or examination is the source of the right to earn an increment. The petitioners were not officiating Government servants when they were paid the increments and so Art. 84 had no application to them.
18. Increments used to be earned by civil servants even before 1 April, 1952 when Art. 84 came into operation. That is so because progressive of pay were applicable to the posts held by civil servants even before the article came into being. That that is so is clear from Chap. VII of the old Civil Service Regulations which contained elaborate provisions in regard to increments which may be earned when there is a progressive scale of pay. We find it difficult to understand how the fact that Art. 84 which merely fixed the stage at which the drawal of increments could be regulated, can, to any extent, disentitle the petitioners to the increments which were rightly paid to them during the period between 15 June, 1951 and 1 April, 1952. We are of the opinion that the objection to the payment of those increments was groundless.
19. We are also of the view that the order for the recovery which had been refunded to the petitioners after they had been recovered from them was equally indefensible. After the objection to the payment of the increments preferred by the Account-General, the petitioners were directed to pay back what they had received in the form of such increments. But after those amounts were recovered from them, there was the Government order on 26 July, 1963 waiving the recovery. It was on the basis of that order that the amounts recovered from the petitioners were again returned to them. The unsupportable audit objection to the refund was that the Government order authorized a waiver and not a refund of the money which had already been recovered. It is plain that this construction of the Government order is both unreasonable and artificial. The plain meaning of the Government order is that no increment which had been paid to a civil servant notwithstanding the failure on his part to pass the departmental test examination, should be recovered back from him. This order emanated from the recognition of the hardship to which the civil servant would be subject in the event of such recovery. The waiver of such recovery was found on the assumption that the increment had not been earned and enough has been said by us to demonstrate that that supposition was unsupportable.
20. However that may be, the meaning of the Government order waiving the recovery is that the increments which had been paid should remain with the civil servant and that they should belong to him. If such is the consequence flowing from the waiver, it makes no difference whether before the recovery was waived the increments paid had been recovered from the civil servant or whether he had not paid it to the Government. Any other interpretation would result in an unreasonable discrimination against those who in obedience to the earlier order of the Government paid back the moneys which they had received while those on whose part there was no such obedience became entitled to the protection of the waiver. An interpretation productive of such incongruous consequences cannot be right.
21. In our opinion, the amounts which were refunded to the petitioners belonged to them and should remain with them. We make an order setting aside the impugned order by which their recovery from the petitioners was directed and we forbid such recovery.
22. In the circumstances, we make no order as to costs.