1. The above second appeal has been referred to a Division Bench by Narayana Pai, J. because he found that the questions relating to limitation raised in this case were of importance and not free from difficulty and that he considered that it was desirable that the appeal should be heard by a Division Bench.
2. The legal representatives of the deceased respondent have not chosen to engage a lawyer. Narayana Pai, J. by an order appointed Mr. G. D. Shirgurkar, an Advocate of this Court as amicus curiae to assist the court in the disposal of this case. We thank Mr. G. D. Sirgurkar for the assistance rendered by him.
3. This second appeal arises out of a suit instituted by the plaintiff in O. S. 130 of 1962 on the file of the Second Munsiff, Mysore, against the State of Mysore for recovery of a sum of Rs. 648 by way of salary and dear-ness allowance for a period of seven months due to him from 30-1-1959 to 30-8-1959 and a sum of Rs. 30 towards notice charges. He also prayed for a declaration that the plaintiff was entitled to get from the defendant gratuity and pension calculated on the basis of the plaintiffs service upto 30-8-1959. The said suit was decreed by the Munsiff and the appeal filed by the State of Mysore against the said decree in Regular Appeal 61 of 1964 on the file of the Civil Judge, Mysore, was unsuccessful. Against the decree in Appeal, the State of Mysore has preferred this second appeal.
4. Briefly stated the facts of the case which have given rise to this appeal are thus : The plaintiff was employed in the Education Department of the Government of Mysore and was working as the Head Master of the Government Primary School, Nemmige, when he was served with an order dated 11-12-1956 by the District Education Officer, Mysore, that his services were continued for a period of one year from 30-8-1956 on the basis that the plaintiff would attain the age of superannuation on that date. It is not disputed that the plaintiff was born on 30-8-1901 and that he completed 55 years on 30-8-1956. According to the plaintiff, he being a trained teacher in the Education Department, he should have been retired on the completion of 58 years of age in view of note 4 to Rule 294 (a) of the Mysore Service Regulations which were in force in 1956. The plaintiff claimed that on the basis of the said provision in the Mysore Service Regulations, he should have been retired from service only on 30-8-1959 on which date he would have attained 58 years of age. Instead of doing so the plaintiff was ordered to be retired from service on 30-8-1957 two years earlier than the date on which he should have been retired from service. The claim of the plaintiff, therefore in the plaint was that the order prematurely terminating his services on 30-8-1957 was invalid, unconstitutional and of no effect and that he should be deemed to have been in service till 30-8-1959 and that he was entitled to the salary and allowances till 30-8-1959 and for computation of gratuity and pension on the basis that his services continued till 30-8-1959. The plaintiff issued a notice under Section 80 of the Code of Civil Procedure setting out his claim and demanding compliance with his request to the Government of Mysore. The Government of Mysore not having complied with the demand, he instituted the suit as stated above on 21-3-1962. In the plaint he confined his relief for a period of eight months only as the salary payable during that period alone would be within the period of limitation under Article 102 read with Section 15 (2) of the Indian Limitation Act, 1908 (hereinafter referred to as the Act). The State of Mysore the defendant in this case, contended, inter alia, that the suit was barred by time in view of Article 14 of the Act which prescribed a period of one year as the period of limitation for filing a suit against the Government for setting aside any order made by the Government. According to the defendant since the order terminating the services of the plaintiff had become effective from 30-8-1957 and the suit not having been filed within one year from that date was barred by time. It was also contended that the order retiring the plaintiff from the service had been issued in accordance with law. On the basis of the above pleadings, the trial court framed two issues namely:--
1. Whether the order of retirement with effect from 30-8-57 is illegal and is therefore plaintiff entitled to the benefits claimed now?
2. Whether the present suit is barred by time
In this second appeal Sri N. S. Chandrashekhara, the learned Government Pleader appearing for the appellant did not contest the finding of the court below that the order of retirement with effect from 30-8-1957 was illegal. But he however argued that the case fell within the scope of Article 14 of the Act and hence the suit was liable to be dismissed. His further contention was that without getting a declaration at the hands of the Court that the order of Government retiring the plaintiff from service was illegal the plaintiff was not entitled to claim salary or allowance for the period subsequent to 30-8-1957 and as long as that order was in force, the plaintiff would not be entitled to any relief at all. In support of the above contention, reliance was placed on a decision of the Madras High Court in State of Madras v. A. V. Anantharaman : (1963)IILLJ584Mad . The facts of that case were that a Sub-Inspector of Police in the service of the State of Madras was dismissed from service by an order dated 9-4-1950 by the Deputy Inspector General of Police. After exhausting the remedies available to him by way of appeal to the Inspector General of Police and a memorandum to the Government, both of which having become futile the Sub-Inspector of Police initiated proceedings in the High Court of Madras under Article 226 of the Constitution and ultimately by an order dated 224-1957, the order of dismissal was set aside and he was directed to be reinstated in service. Actually he was able to join duty on 11-7-1957 on the implementation of the order of the High Court. He thereafter instituted a suit for recovery of salary and allowances due to him till the date on which he was reinstated in service. It was held by the High Court that the claim for salary of a public servant against the Government was governed by Article 102 of the Act and that the suit was within time. According to the High Court of Madras, the terminus a quo for the suit for recovery of salary was the date on which the salary actually accrued. According to the fundamental rules, the cause of action accrued on the first of every month when the salary became payable on the dismissal of the officer, it was not open to him to recover salary earned without having the order of dismissal set aside and that order of dismissal having been set aside by the High Court, by its order dated 22-4-1957, the suit for recovery of salary and allowances for the period between 9-4-1950 on which date he was dismissed from service till he was reinstated in the year 1957 was in time even though the suit was filed thereafter. The High Court of Madras while deciding the above case relied on an earlier decision of the same High Court in Union of India v. Akbar Sheriff : (1961)ILLJ615Mad , in which it had been held that a Government employee had no right to claim salary until he was reinstated Into service and it was only after reinstatement that he could sue for recovery of salary for the period during which the order of dismissal was in force.
5. The learned Government Pleader, therefore, contended that unless and until the order terminating his services was set aside in an appropriate proceeding, no suit for recovery of arrears of pay and allowances for the period during which the order of termination of services was in force could be filed and on the above basis he contended that since the suit for setting aside the order of the Government terminating the services of the respondent in this case was barred by time by reason of Article 14 of the Act, the suit for recovery of arrears of salary was not maintainable even though the period in respect of which the salary claimed was within three years from the date of suit.
6. The learned Government Pleader relied on a decision of this Court in Dalvoy's Schools Managing Committee v. Nanjundaiah, (1968) 1 Mys LJ 496 in support of his contention that it was only after the order of reinstatement was passed by an appropriate Court, the cause of action for recovery of arrears of salary for the period prior to the date of order of reinstatement would accrue. In substance the contention of the learned Government Pleader was that the respondent's remedy for getting the order terminating his services having become barred by time in view of lapse of one year from the date on which the order was communicated to him, he would not be entitled to claim salary for the period during which he was kept out of service though wrongly, for the reason that the right to claim the salary would accrue to him only after the termination order was set aside. He, therefore, contended that the courts below should have held that the suit was barred by time under Article 14 of the Act in respect of the remedy for reinstatement into service, and, therefore, no further relief in respect of arrears of salary and allowances could be given by the courts below.
7. Mr. G. D. Shirgurkar who appeared amicus curiae in the case contended that in the instant case there was no need for the respondent to file a suit to get the order set aside at all for the reason that the said order terminating him prematurely from service was void and of no effect, and, therefore, it was a nullity. In support of this contention he relied on a decision of the Bombay High Court in Lady Dinbai Dinshaw Petit v. Dominion of India : AIR1951Bom72 , in which it was observed: 'Article 14 applies only to those acts or orders which are valid until they are set aside; therefore, if an order is bad from its inception, Article 14 would not apply to such an order because it would be unnecessary for the plaintiff to get the order set aside.' We agree with the above view taken by the High Court of Bombay that a plaintiff would be obliged to file a suit for getting an order of Government set aside only when it would be effective unless it is set aside. If on the other hand, the order relied on is a nullity and ineffective for whatever reason from its inception, he can ignore such an order and file a suit as if such an order had not been passed at all, in which event Article 14 of the Act cannot be applied as a bar to such a suit.
8. The question for consideration therefore, is whether in the instant case, the order prematurely terminating the services of the respondent was void and of no effect and, therefore, a nullity. In order to decide the above question, it would be necessary to set out a few facts which are undisputed in this case. The respondent, as already stated, was a trained teacher and was the Head Master of a Government Middle School. His date of birth was 30-8-1901. Under Note 4 to Rule 294 (a) of the Mysore Service Regulations (8th Edn.) which was in force immediately prior to Reorganisation of States in the former State of Mysore, the age of retirement of trained teachers in the Education Department had been fixed at 58 years and they were normally entitled to continue in service till they completed 58 years unless the Director of Public Instruction or Government, as the case may be, was of the opinion that they had not a good record of service and were not upto the mark. The position, therefore, was that a trained teacher could only be retired at the age of 55 years if the Director of Public Instruction or the Government as the case may be, thought that he had not a good record of service and was not upto the mark. In this case, admittedly there was no such finding given either by the Director of Public Instruction or the Government that the respondent had not a good record of service or was not upto file mark. It is therefore clear that he should have retired from service only on 30-8-1959. On a wrong interpretation of the relevant rule, the Government appears to have taken action during the period between 7-6-1957 and 28-10-1958 to retire many trained teachers, of whom the respondent was one, from service on the basis that their age of superannuation was 55 years and that they were not entitled to be in service till they completed 58 years of age. When the Government noticed that such an order could not be passed without seeking the previous approval of the Central Government under the proviso to Sub-section (7) of Section 115 of the States Reorganisation Act, the Governor of Mysore issued a notification promulgating a rule under the proviso to Article 309 of the Constitution of India read with Sub-section (7) of Section 115 of the States Reorganisation Act, 1956 as follows:--
'Notwithstanding anything contained in Note 4 to Article 294 of the Mysore Service Regulations (Eighth Edition), Government servants who have been retired from service on the attainment of the age of fifty-five years, during the period between the 7th day of June 1957 and the 28th day of October, 1958, shall be deemed to have been validly retired from service on superannuation.'
9. Some of the trained teachers who were affected by the executive order of Government dated 22-8-1957, pursuant to which they had been retired and the rule quoted above, questioned their validity under Article 226 of the Constitution of India before this Court. This Court by its order dated 27-9-1961 reported in Padmanabhacharya v. State of Mysore, (1962) 40 Mys LJ 146 = (AIR 1962 Mys 280) held that the teachers concerned were governed by Note 4 to Article 294 (a) of the Mysore Service Regulations which prescribed the age of their superannuation as 58 years and that It is only in such of those cases of individual teachers where the Director of Public Instruction or the Government, found that the teacher concerned had not a good record of service or he was inefficient, the teacher concerned could be retired earlier than 58 years of age. It was further held that the notification issued by the State Government on August 22, 1957, which was in the nature of an executive order had not the effect of modifying Note 4 to Article 294 (a) of the Mysore Service Regulations which had been issued under the proviso to Article 309 of the Constitution of India by the Governor. With regard to the notification issued under the proviso to Article 309 of the Constitution of India by which the orders of retirement of some of the trained teachers between 7-6-1957 and 28-10-1958 were ratified, it was held that the said notification was outside the scope of the powers of the Governor under Article 309 of the Constitution of India. In any event, since the previous approval of the Government of India had not been obtained under the proviso to Section 115(7) of the States Reorganisation Act for altering the conditions of service of trained teachers with regard to their retirement, the action of the Government and the Director of Public Instruction retiring trained teachers on the basis of the Government order before they completed 58 years of age, was held to be invalid. The above decision of the High Court was taken up in appeal to the Supreme Court in State of Mysore v. Padmanabhacharya : (1966)IILLJ147SC in which the Supreme Court confirmed the decision of this Court. The Supreme Court observed that such a rule as one made by the Governor on 25-3-1959 validating the retirement of trained teachers between 7-6-1957 and 28-10-1958 could not be made under the proviso to Article 309 of the Constitution of India. The Supreme Court observed in the course of the order as follows:
'So far as untrained teachers are concerned there is no doubt that Note 4 carved out an exception to Rule 294 (a) which provides, that the normal age of retirement is 55 years and it is for the Government to decide whether to grant extensions to persons after they completed 55 years and this grant of extension was on the basis of such persons remaining efficient in the opinion of Government after the age of 55 years. But Note 4 made a change in that position so far as trained teachers were concerned. That change was that in the case of trained teachers the normal age of retirement was to be 58 years. The latter part of the note however, gave power to the Director of Public Instruction to retire even trained teachers in the non-gazette cadre provided they had not a good record of service and were not upto the mark. In such a case the Director had the power to retire them at the age of 55 years if he was of the view that they had not a good record of service and were not upto the mark. Thus under Rule 294 (a) as it was before April 29, 1955 the normal age of retirement was 55 years for all including trained teachers and it was for the Government to give extension on the ground of fitness. But after Note 4 was added to Rule 294 (a), the position with respect to trained teachers was changed and trained teachers were normally entitled to continue in service till the age of 58 years unless the Director or the Government as the case may be, was of the opinion that they had not a good record of service and were not upto the mark. Therefore after the change made on April 29, 1955, trained teachers could only be retired at the age of 55 years if the Director of Public Instruction or the Government, as the case may be, came to the conclusion that they had not a good record of service and were not upto the mark. If such a conclusion was not arrived at, they would be entitled under Note 4 to continue in service upto the age of 58 years. It is not disputed on behalf of the appellants that no such decision namely, that the respondents had not a good record of service and were not upto the mark, was taken.'
10. It is, therefore, clear that the respondent in this case who was in the same position as those teachers who had filed writ petitions before this Court, should be deemed to have been continued in service till he attained 58 years of age. But it was argued that since the respondent had not filed a writ petition as was done by other teachers whose cases terminated in the Supreme Court the respondent could not get the benefit of these decisions unless in his case also the order terminating his service was set aside in similar proceedings. The question for consideration as already stated earlier is, whether the action taken against the respondent prematurely retiring him pursuant to an executive order of Government which was in contravention of a rule framed under the proviso to Article 309 of the Constitution of India is a nullity and of no effect.
As held by this Court and by the Supreme Court in Padmanabhacharya's case : (1966)IILLJ147SC the action of the Director of Public Instruction terminating the services of the respondent before he attained 58 years of age was illegal and ultra vires for it was in contravention of an express rule contained in Note 4 to Article 294 (a) of the Mysore Service Regulation and if the notification of the Governor was given effect to Article 311(2) of the Constitution of India would also be violated.
11. Before proceeding further it is necessary to point out that the difference between a void and a voidable administrative decision or action is well recognised. While an error of law involved in an administrative decision or action taken within the scope of jurisdiction conferred by law, renders the decision or action only voidable, such decision or action, which is ultra vires the provisions of the Constitution, statute or a rule having force of law governing it and totally without authority is automatically void.
12. In this connection it may be useful to refer to the decision of the Court of Appeal in Barnard v. National Dock Labour Board, 1953 (1) All ER 1113. In that case certain persons who were registered as dock workers were suspended from work in contravention of the provisions of Dock Workers (Regulation of Employment) Order, 1947, by the Port Manager who had no power to do so. Under the said Order, the power of suspension was exercisable under Clause 16 (2) (b) of the order by the Local Board, but the Local Board had delegated its power under that clause to the Port Manager even though it had no such power to delegate the power of suspension to anybody else. The court in that case was called upon to examine the validity of the action taken by the Port Manager. It was held by the Court that the power of suspension conferred by Clause 16 (2) (b) on the local Board was a judicial or quasi-judicial function and the Local Board had no power to delegate it or subsequently to ratify a decision by a person to whom the power of suspension had been improperly delegated, and therefore, the suspension of the plaintiffs by the Port Manager was a nullity; the court had power in their discretion to make a declaration relating to the validity of the decision of a statutory tribunal; and in the circumstances would grant the plaintiffs a declaration that their suspension was wrongful and a nullity.
13. The above view of the Court of Appeal expressed in Barnard's case, 1953 1 All ER 1113 was later approved by the House of Lords in Vine v. National Dock Labour Board, (1956) 3 All ER 939. In the case before the House of Lords, the plaintiffs was a registered dock worker employed in the reserve pool by the National Dock Labour Board under the Scheme set up under the Dock Workers (Regulation of Employment) Order, 1947. By Clause 3 (3) of the scheme, the National Board had the duty of delegating as many as possible of their functions to Local Boards. By Clause 16 (2) (c) the Local Boards were given power to give seven days' notice of termination of employment to any registered dock worker who failed to comply with any provision of the scheme. In 1948 the National Board approved the delegation of, inter alia, powers to disciplinary committees set up by the Local Boards. In October, 1952, the plaintiff failed to obey a valid order to report for work with a company of stevedores, and the Local Board instructed their disciplinary committee to hear the case. That committee, having heard the case, and purporting to act under Clause 16 (2) (c), gave seven days' notice in writing to the plaintiff terminating his employment and their decision was upheld by the appeal tribunal. The plaintiff ceased to work for the National Board in November, 1952. Thereafter he claimed damages for wrongful dismissal and declaration that his purported dismissal was illegal, ultra vires and invalid. The plaintiff having been granted damages and the declaration, the National Board appealed to the Court of Appeal who struck out the declaration. The plaintiff appealed to the House of Lords against the striking out of the declaration and the National Board cross-appealed against the finding that the dismissal was invalid and the award of damages. The House of Lords on the aforesaid facts came to the conclusion that the plaintiff's purported dismissal was a nullity since the Local Board had no power to delegate its disciplinary functions. Viscount Kulkuir, L. C. in the course of his opinion, in that case, observed as follows:--
'First it follows from the fact that the plaintiff's dismissal was invalid and his name was never validly removed from the register, and he continued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case. There if the master wrongfully dismisses the servant either summarily or by giving insufficient notice, the employment is effectively terminated albeit in breach of contract. Here, the removal of the plaintiff's name from the register being in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute that statute conferred on him.'
The above decision of the House of Lords in Vine's case, 1956-3 All ER 939 was considered by the Supreme Court in Executive Committee of U. P. State Warehousing Corporation, Lucknow v. Chandrabiran Tyagi : (1970)ILLJ32SC . Even though the Supreme Court distinguished the decision in Vine's case 1956-3 All ER 939 on facts from the case which they are considering, it did not dissent from the opinion of the House of Lords in the course of its decision, the relevant portion of which is extracted below :--
'From a review of the English decision referred to above, the position emerges as follows : The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the employee is a claim for damage for wrongful dismissal or for breach of contract. This is the normal rule and that was applied in Barber's case, 1958-1 All ER 322 and Francis's case, 1962-3 All ER 633. But when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will then be a mere case of a master terminating the services of a servant. This was the position in Vine's case, 1956-3 All ER 939.'
14. The legal position, therefore, is that if a Government servant is prematurely retired from service in violation of a rule framed under the proviso to Article 309 of the Constitution of India, then it should be deemed that the order so retiring him would be a nullity since it is one passed without jurisdiction. The Government can order the retirement of an employee only in the manner prescribed under the rules governing his service when rules have been made for that purpose. By an executive order, the Government could not order the retirement of officials prematurely in contravention of a rule made under the proviso to Article 309 of the Constitution of India. It should, therefore, be held that in the instant case, the order which was communicated to the respondent terminating his services before he attained the age of 58 years, was void from its inception and it should also be held that the respondent could not be retired at the age of 55 years in view of the exception carved out by Note 4 in general provision contained in Rule 294 (a). In effect that is what the Supreme Court observed in Padmanabhacharya's case : (1966)IILLJ147SC .
15. The above view received support from a decision of the High Court of Madhya Pradesh in Union of India v. P. V. Jagannath Rao : (1968)IILLJ792MP . In that case the services of a railway employee who was working under the Government of India were terminated with effect from 18-7-1946 in contravention of the provisions of Section 240 of the Government of India Act, 1935, the language of which was similar to the provisions of Article 311 of the Constitution of India. He instituted a civil suit in the year 1949 claiming a declaration that the order of termination of his services was illegal. That suit was ultimately decreed by the High Court of Madhya Pradesh on 13-12-1957, in appeal. It was found by that High Court that the order terminating the services was grounded on misconduct and as no enquiry had been held as required by Section 240 of the Government of India Act, 1935, the termination order was invalid. After that decision, the railway employee was reinstated in service by an order passed on 2-1-1959; he joined his post on 30-1-1959. He thereafter claimed in a suit the arrears of salary due to him for the period between 18-7-1956 upto 29-1-1959. That suit having been decreed by the trial Court, the matter was taken up in appeal by the Union. of India. In that appeal it was contended for the Union of India that the suit for recovery of arrears of salary instituted by the Railway employees was governed by Article 102 of the Act, and, therefore, the suit in respect of salary which had accrued prior to three years from the date of suit was barred by time. On behalf of the employee reliance was placed on the decision of the Madras High Court in : (1963)IILLJ584Mad and it was contended that the cause of action for institution of the suit commenced on the date on which he was ordered to be reinstated in service. The High Court of Madhya Pradesh disagreed with the view expressed by the Madras High Court and held that in view of the fact that the order of dismissal had been declared invalid earlier as being in contravention of the express provisions of the Government of India Act, 1935, that in spite of the purported order of dismissal passed against him, the employee continued to be in service and was entitled to receive his salary every month from the date of the order of dismissal, and hence in respect of the salary due for the period prior to three years from the date of the institution of the suit, the cause of action had accrued every month in respect of the salary that was due to him. Therefore, the Court held that in respect of that salary, the suit was barred by time under Article 102 of the Act, as the period of three years had elapsed from the time the salary had become due. Similar is the view expressed by the Andhra Pradesh High Court in State of Andhra Pradesh v. Sabhanuddin : (1965)IILLJ356AP . In that case the High Court of Andhra Pradesh held that Article 14 of the Act did not apply to a case where the order terminating the services of a Government employee was null and void. The High Court of Punjab has taken the same view in Union of India v. Ram Nath Chitory , it held 'If the dismissal or removal itself is illegal, logically it must follow that any rule made by the Government which prevents accrual of pay and allowances from date of such dismissal or removal would never, in the eye of law, come into operation.' The Punjab High Court also disagreed with the decision of the Madras High Court in : (1963)IILLJ584Mad . Same view has been expressed by the Privy Council in Laxmanrao v. Shrinivas . While dealing with Article 14 of the Act, this is what the Privy Council observed, 'If an order was illegal and without jurisdiction, the plaintiff was not bound to file a suit to set it aside.'
16. It is, therefore, clear that the respondent in this case was not bound to file a suit for setting aside the order terminating his services which was opposed to Note 4, Rule 294 (a) of the Mysore Service Regulation and Article! 311(2) of the Constitution of India.
17. We are of the opinion that the decision of the Madras High Court in : (1963)IILLJ584Mad does not lay down the law correctly. The other decision of this Court in (1968) 1 Mys LJ 496 is of no assistance to the appellant since that was not a case in which the termination of service was in contravention of any statute and the matter related to a school run by a private institution.
18. We are, therefore, of the opinion that the argument of the learned counsel for the appellant that in view of Article 14 of the Act, suit is barred by time, is not tenable.
19. The suit in respect of the salary claimed in this case is, therefore, not barred as it has been filed in time. The question of applicability of Article 102 of the Act to a case of this type is no longer in doubt. In Madhav Laxman Vaikunte v. State of Mysore : 1SCR886 the Supreme Court has held that Article 102 of the Act applies to a suit filed by an employee of Government for recovery of his salary also. It is not disputed by the appellant that the salary claimed in this suit by the respondent accrued within the time prescribed by Article 102 read with Section 15 (2) of the Act.
20. In the result, the appeal fails and is dismissed with costs.