Skip to content


The State of Andhra Pradesh Represented by the Chief Secretary to the Government of Andhra Pradesh, Hyderabad Vs. Mohd. KhutubuddIn Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberC.C.C. Appeal No. 39 of 1960 and Memorandum of Cross-objections and C.C.C.A. No. 59 of 1960
Judge
Reported inAIR1964AP491; (1966)IILLJ350AP
ActsConstitution of India - Article 311; Hyderabad Civil Services Regulations, 1956 - Schedule - Articles 78, 79, 85 and 161; Limitation Act, 1908 - Schedule - Articles 102 and 120; Code of Civil Procedure (CPC) , 1908 - Sections 34
AppellantThe State of Andhra Pradesh Represented by the Chief Secretary to the Government of Andhra Pradesh,
RespondentMohd. KhutubuddIn Khan and anr.
Appellant AdvocateA. Gangadhara Rao, Adv. for ;Prl. Govt. Pleader in No. 39 of 1960
Respondent AdvocateA. Gangadhara Rao, Adv. for ;Prl. Govt. Pleader in No. 59 of 1960, ;S.C. Venkatapathi Raju, ;K.S. Reddy and ;Durgaprasad, Advs.
DispositionAppeal allowed
Excerpt:
(i) constitution - temporary appointment - articles 78, 79, 85 and 161 of hyderabad civil services regulations, 1956 and article 311 of constitution of india - appointments to posts created on temporary basis for specific period or for specific job are temporary appointments - persons appointed temporarily to permanent posts cannot be said to be temporary appointment - officer member of hyderabad civil service holding substantive appointment deputed to fill temporary post - officer not to loose right on substantive post and to have right on temporary post till regular appointment of other officer - officer having right to post cannot be sent back to previous post without fulfilling provisions envisaged under article 311. (ii) right to wages - articles 102 and 120 of limitation act, 1908 -.....jaganmohan reddy, j. 1. c. c. c. a. no. 39 of 1960 is filed by the state of andhra pradesh, hereinafter called the 1st appellant, and c. c. c. a. no. 59 of 1960 is filed by the state of mysore, hereinafter referred to as the 2nd appellant, against the common judgment and decree passed by the additional chief judge, city civil court, hyderabad in o. s. no. 168 of 1953 declaring the respondent herein to be still a dist. collector, and awarding a sum of rs. 22,500/- i. g. against the 1st appellant in respect of the relief set out in clause (ii) of paragraph 36 of the plaint towards the difference in the pay of a district collector and a deputy collector to which past the respondent was reverted by an order of the then hyderabad government as from 1-4-1954. the appeal of the 1st appellant is.....
Judgment:

Jaganmohan Reddy, J.

1. C. C. C. A. No. 39 of 1960 is filed by the State of Andhra Pradesh, hereinafter called the 1st appellant, and C. C. C. A. No. 59 of 1960 is filed by the State of Mysore, hereinafter referred to as the 2nd appellant, against the common judgment and decree passed by the Additional Chief Judge, City Civil Court, Hyderabad in O. S. No. 168 of 1953 declaring the respondent herein to be still a Dist. Collector, and awarding a sum of Rs. 22,500/- I. G. against the 1st appellant in respect of the relief set out in clause (ii) of paragraph 36 of the plaint towards the difference in the pay of a District Collector and a Deputy Collector to which past the respondent was reverted by an order of the then Hyderabad Government as from 1-4-1954. The appeal of the 1st appellant is also directed against the decree for Rs. 2,646-8-0 (O. S.) equivalent to Rs. 2,262-8-0 (I. G.) in respect of the claim made in clause (v) of paragraph 36 of the plaint. The respondent has also filed a memorandum of cross-objections in respect of the allowances during the period of suspension which the trial Court had held to be barred by limitation as also for disallowance of interest on the sum awarded subsequent to the suit.

2. The facts leading to the filing of the suit by the respondent are as follows: The respondent was a member of the Hyderabad Civil Service of the erstwhile Hyderabad State, having joined it on 20-7-1933, He was subsequently promoted to the post of a Deputy Collector in which post he was confirmed on 15-9-1943. In due course, he was promoted as First Talukdar (District Collector) on 13-3-1944 on a substantive pro tempore basis as from 24-3-I94S, and thereafter he was transferred to the post of a Deputy Commissioner of Customs on 3-3-1947 on a salary of Rs. 1,200/- and an allowance of Rs. 150/- per mensem in which capacity he was working till after the Police Action in September, 1948. During this period, he had also appealed against the confirmation of one of his juniors viz., Moulvi Bahauddin Khan. H. C S., on which appeal, the Chief Civil Administrator, Mr. Bhakle, had passed orders by and under which the respondent was declared to be senior to Shri Bahauddin Khan notwithstanding the fact that Bahauddin Khan was confirmed. About an year after the Police Action, the Government of Hyderabad, placed the respondent under suspension as and from 16-10-1949 and subsequently framed 24 charges and served a charge-sheet on him on 8-11-1949 basing them on the report of one Joshi, who was re-employed as a Commissioner of Customs and who, according to the respondent, was inimically disposed towards him. During the period of inquiry, it may also be stated the respondent was granted subsistence allowance under the Hyderabad Civil Service Regulations firstly amounting to one-fourth of the monthly allowance which was subsequently raised to one half.

The inquiry proceeded for about two years before the Board of Revenue, consisting of three members in it, both the respondent and the Government were represented by advocates. On the conclusion of the inquiry, a report was sent to the Government by the Board of Revenue on 21-7-1951 and the Government gave a notice to the respondent to show cause why he should not be made to retire on proportionate pension. After his showing cause, the Government, by its notification dated 15-3-1952, ordered that the respondent had retired from service with effect from 29-4-1952 on proportionate pension. Subsequently, however, by another notification dated 19-5-1952, the Government informed the plaintiff that he would get half of the salary during the period of suspension. Immediately thereafter, by another notification dated 31-5-1952, the order of retirement was cancelled. Along, with this notification, the Government issued a notice to the respondent on 30-5-1952 asking him to show cause why he should not be retired. The plaintiff submitted his representation on 31-7-1952 and, after about a year, he was served with a fresh charge on 13-4-1953 by which he was directed to show cause why be should not be removed from service on the basis of continued inefficiency. To this also, the respondent submitted an explanation on 7-5-1953. Thereupon, the Board of Revenue communicated to him an order dated 1-4-1954, reinstating him in service and at the same time reverting him as a Deputy Collector. After joining this post, the respondent asked the Government to furnish him the reasons for his being reverted, but he was informed by the Government in its letter dated 10-7-1954 that he was reverted to this substantive post on the ground of his being mediocre and on account of his inefficiency. Against the order of reversion, the respondent sent a representation to the Government on 22-7-1954 and as he did not get any reply, he appealed to the Rajpramukh on 9-10-1954. But that appeal was disposed of on 2-6-1955 by the remarks that the Government did not see any reason to alter the order already passed.

3. After the dismissal of his appeal, the respondent received another communication dated 18-9-1956 from the Board of Revenue informing him that he was allotted to Mysore State consequent upon the re-organisation of States. The respondent, by his application dated 20-9-1956, represented that, having regard to the fact that he belonged to Telangana and the suffering which he had undergone, he should be retained in this State; and if for any reason this request of his is not granted, he prayed to accord permission so as to enable him to retire on pension under G.A.D. Circular No. 35 dated 28-5-1956 and No. 94 dated 28-3-1956 which gave Government servants an option to retire till 30th September, 1956. In the meanwhile it appears that there was another Government servant, by name one Shri Ramachandra Asthana, who was prepared to go to Mysore. The respondent accordingly filed an application on 31-10-1956 for retaining him in the Andhra Pradesh State in the place of the person who (was) prepared to go to Mysore State and intimated that his previous application may be cancelled. No order seems to have been passed on this application as the persons allotted to the respective States had to take charge on 1-11-1956 which is the appointed day under the States Re-organization Act and since he continued to discharge his duties under the erstwhile Hyderabad Government, the Government of Andhra Pradesh directed him to hand over charge immediately and report himself for duty to the Liaison Officer appointed by the Mysore Government stationed at Hyderabad. Accordingly, the respondent was relieved on 3-12-1955 and he was said to have reported himself to the Liaison Officer of the Mysore State. But, according to him, no posting orders were given to him by the said Liaison Officer. For the period 1-11-1956 to 3-12-1956, the respondent claimed salary from the Andhra Pradesh Government which amount was ultimately paid by the Andhra Pradesh Government after the suit was instituted. At this stage, it may be pointed out that the respondent did not join duty and has been claiming that no posting orders were given to him while the Government has been taking the plea that the respondent did not ask for a posting order. The respondent, after waiting till August 1957, served suit notices under Section 80 of the Civil Procedure Code on the Andhra Pradesh Government and as wall as the Mysore Government for a declaration that he is still a Government servant as a Collector; for pay subsequent to his reversion and as well as pay prior to reversion during the period of suspension; for repayment of recoveries made on account of the alleged over payment; and for an injunction restraining the Government concerned from recovering any further amounts. After the suit notices were given, Writ Petition no. 705 of 1957 was filed by him in September 1957 on the ground that his allotment to Mysore State was bad and for a direction that he continued to be in the service of the Andhra Pradesh Government. After the said writ petition was filed, the respondent was made to retire by the, Mysore Government on 20-11-1957 with effect from 2-4-1957. After this order was passed, the suit out of which these appeals arise was filed on 3-12-1957 claiming the aforesaid reliefs which are identical with those specified in the notice annexed to the plaint.

4. The 1st appellant, in its written statement, contended as follows : As the Public Service Commission did not agree with the orders of the Government to retire the respondent on proportionate pension, the matter was referred to the Council of Ministers and they accorded sanction for the compulsory retirement of the respondent. After the respondent gave his explanation and the matter was again referred to the Public Service Commission, the latter did not approve the action proposed to be taken against the respondent and insisted on a fresh inquiry. As such, fresh charges were framed and the plaintiff was called upon to answer. After due inquiry, it was decided that the plaintiff should be removed from service; and again when the matter was referred to the Public Service Commission, the Commission recommended that the plaintiff should be reverted to his substantive post as Deputy Collector whereupon the 1st appellant-Government passed the orders accordingly. Therefore, the order of reversion passed was legal and proper and the Court had no jurisdiction to interfere with that order. The respondent was not entitled to claim the salary as a Collector from the date of his suspension apart from anything more than the subsistence allowance given to him during the period of suspension which allowance itself is a matter of grace. The allotment of the respondent to the 2nd appellant State was quite lawful and the present suit was time barred.

5. The 2nd appellant contended that, since the order of allotment was being questioned by the respondent, he had no cause of action as against the State of Mysore. It adopted the written statement filed by the 1st appellant and denied that the respondent had any claim for full pay as Collector. It also averred that as the respondent had prayed for permission to retire prematurely, the said orders were passed accordingly retiring him from 24-1957 and since he requested for retirement, he is estopped from claiming that he is still in service. The 2nd appellant further contended that the claims for amounts said to be due to the respondent were time-barred, and that the respondent was bound to repay the excess that was paid to him towards his subsistence allowance.

6. A rejoinder was filed by the respondent who averred that his promotion to a permanent vacancy as 'substantive pro tempore' Collector was in fact a permanent promotion within the meaning of Regulation No. 85 of the Hyderabad Civil Services Regulation of 1956. that it was false that there was an inquiry after fresh charges were framed, that the order of reversion dated 1-4-1954 was passed as a measure of disciplinary action Without any inquiry in accordance with Rule 17 of the Hyderabad Civil Service (Classification, Control and Appeal) Rules of 1952, and as such, it contravened the provisions of Article 311 of the Constitution and that it was not correct to say that the plaintiff had accepted the order of reversion, and that consequently he was estopped from questioning it.

7. As many as fourteen issues were framed for trial on these pleadings. But, for the purposes of the present appeal, it is unnecessary to refer to all these in any detail.

8. The points which arise for consideration in these appeals including the cross-objections are firstly, whether the declaration given by the lower Court is proper; if so, should it also be given as against the 2nd appellant; secondly, if the declaration is valid, is the respondent entitled to the pay of a Collector for the period of his suspension and is his claim barred by limitation; thirdly, is the respondent entitled to the difference in the pay drawn by a Collector and the emoluments he was drawing as a Deputy Collector from the date cf his reinstatement and revarsion to the date he was allotted to the 2nd appellant-State; if so, to what extent he can recover; fourthly, is the order of retirement made by the 2nd appellant valid and effective; and lastly, whether interest should not have been allowed on the amounts decreed from the date of suit to the date of decree and from the date of decree to the date of realisation.

9. On the first question, it is contended by the learned advocates for the 1st and 2nd appellants that the reversion of the respondent to the substantive post is valid inasmuch as the appointment of the respondent was temporary, and that no public servant who has been appointed temporarily has a right to the post. If he has no right to the post, the Government can revert him without assigning any reasons. In support of this contention, the decision in P. L Dhingra v. Union of India, : (1958)ILLJ544SC , has been relied upon. Their Lordships of the Supreme Court in that decision held that a person holding a temporary post has no right over the post and the appointing authority can revert him without assigning any reasons but even in the case of a temporary appointment -- if it is by way of punishment or in some way affecting the forfeiture or attaching a stigma -- the Government servant cannot be reverted unless the provisions of Article 311 of the Constitution are complied with. Das, C. J., delivering the judgment of the majority of the Judges constituting the Bench, Bose, J., dissenting -- observed at p. 47:

'..... if the, termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.'

The learned Chief Justice summed up thee position and proceeded to observe at p. 48 thus:

'Shortly put, the principle is that when a servant has right to a post or to a rank either under the term of the contract of employment, express or implied, of under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and 'prima facto' a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant had no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any tight and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2), will apply to those cases where the government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311.'

It is apparent from the aforesaid observations and from the subsequent decisions of their Lordships of the Supreme Court in Madhav v. State of Mysore, : [1962]1SCR886 and Sukhbans Singh v. State of Punjab, : (1963)ILLJ671SC , that where a public servant has a right to the post, he cannot be reverted or punished in any way without fulfilling the requirements of Article 311. The question that has to be determined in this case is whether the respondent's appointment 'sub pro tempore' to the post of a District Collector is, under the Hyderabad Civil Services Regulations, purely a temporary appointment, or whether it conferred any right upon him to the post of a substantive character or of a quasi-permanent character. If it is the former, then it is not denied by the learned advocate for the respondent that the reversion would be valid but not if it is the latter. In order to determine this controversy, it Is necessary to examine the order of appointment as well as the relevant Regulations governing civil services as applicable to the respondent.

10. The respondent, as we have already stated, was appointed by the then Government of Hyderabad by its order No. 75 dated 28th Antibehist of 1355 Fasli (Exhibit P-4) corresponding to 24-3-1946 in file No. 126 of 1958. Under the said order, out of the fifteen permanent posts of Collector's cadre, sanction was accorded to the confirmation of only fourteen Collectors who were evidently than acting in the posts. Sanction was also accorded to 'sub pro tempore' appointments of whom the respondent was at Ho. 2. The order relating to him reads thus:

'Molvi Mohammed Kutubuddin Khan Saheb, H. C. S. Collector of Mahabubnagar District is appointed 'Sub on tempore' on the post of Collector In the place of Sri Habib Mohammed Saheb, H.C.S., Subedar, Warangal.'

From this order as well as the order in respect of other persons appointed 'sub pro tempore' it would appear That they were already holding the posts of District Collectors and discharging their respective functions at various places, and that their sub pro tempore appointments were now being sanctioned. Subsequently to this order, as we have already stated the respondent was transferred as Deputy Commissioner of Customs on 3-3-1947 and his representation regarding the confirmation of a junior of his Sri Bahauddin Khan who was already acting as a Deputy Director of Customs, resulted in the order passed by the Chief Civil Administrator, Military Government of Hyderabad under Exhibit P-5, dated 3-4-1358 F., which is as follows:

'In spite of Sri Bahauddin Khan Saheb, Deputy Director of Customs being confirmed as per the opinion of the Public Service Commission, Sri Kutubuddin Khan Saheb, H. C. S., Deputy Director of Customs is held and declared to be senior to the officer mentioned first.'

From these documents, it is apparent that the respondent was not confirmed in the 'substantive pro tempore' post but despite it, it was conceded that he was senior to another person who was his junior though confirmed. It is difficult to hold, as the learned advocate for the respondent contends, that the order of the Chief Civil Administrator under Exhibit P-5 should be deemed to be a confirmation because it 'pro tanto' amounts to that when he is directed to be placed above a confirmed person in order of seniority. If that was the intention, the order would have said so. Whatever be the significance of the order vis-a-vis the question of confirmation, what we have to determine, as already indicated, is whether an appointment 'sub pro tempore' confers a right to the post on the respondent. Mr. Gangadhara Rao, the learned advocate for the 1st appellant, contends that, under the Rules since the respondent has no lien over the post, it should he deemed to be a temporary post and as such, the Government Is justified in reverting him without assigning any reasons.

11. We may now refer to the relevant Articles of the Hyderabad Civil Services Regulations relating to the nature of the 'sub pro tempore' appointments. They are as follows:

78. 'A temporary appointment' is an appointment carrying a definite rate of pay sanctioned for a definite period or for a specified duty on completion of which the incumbent thereof will be discharged unless previous sanction of the competent authority is obtained in time for an extension in the period of the appointment.

79. An officer holding a substantive appointment may be deputed to fill a temporary or permanent appointment without losing lien on his substantive or 'substantive pro tempore' appointment or even his officiating appointment so long as it is not resumed by an officer having a superior lien.

35. An officer may be appointed 'substantivaly pre tempore' on full pay, if the absentee draws no part of the pay of his appointment. ' The status of an officer appointed 'substantively pro tempore' will for all intents and purposes be that of a permanent incumbent except that the lien of the absentee will not be prejudiced thereby. The pay of the appointment of the officer thus appointed 'substantivety pro temporal may in like manner be given to a substitute similarly appointed.

Note (1): An absentee who receives absentee allowances draws, within the meaning of this article, part of the pay of his appointment.

Note (2): A substantive pro tempore appointment cannot be made in the case of a vacancy caused by suspension, or by deputation to an appointment for less than six months, or in case of lease. (See also note under Article 83).

Note (3): An officer holding a progressive appointment if appointed 'sub pro tem.', to another post will not, on reverting to bis progressive appointment, be entitled to any increment merely by reason of his having enjoyed a higher pay in 'sub pro tem.', appointment.

161. An officer on long leave retains a lien on his substantive appointment and also on the appointment which he holds 'substantively pro tempore' but has no Men on an acting or a temporary appointment. If an officer who has a temporary or an officiating appointment without holding any substantive appointment is granted leave under Articles 213 and 217, his lien will not be supposed to have been affected.'

12. From the above Regulations, it may be gathered firstly that there is a difference between a 'sub pro tem-pore' appointment, a temporary appointment, an officiating and an acting appointment. A 'temporary appointment' as stated in Article 78 is an appointment carrying a definite rate of pay sanctioned for a definite period or for a specified duty on completion of which the incumbent thereof will be discharged unless previous sanction of the competent authority is obtained in time for an extension in the period of the appointment. From this definition it is clear that the appointment of the respondent is neither for a definite period, nor is it conditional on his being discharged on the completion of the specified duty. There are no other rules in the Hyderabad Civil Service Regulations similar to those in the Andhra Service Rules for appointment of persons temporarily in permanent posts. In fact, Article 30 says that:

'When under the preceding article a temporary post is created, and is filled by a person holding a substantive appointment, his pay shall be fixed with due regard to:

(a) the nature and responsibility of the work, and,

(b) the present pay and the suitability of the Government servant for his selection to the post.

It is, therefore, apparent that temporary appointments are only those that are created on a temporary basis for a specific period or for a specified job and do not envisage the appointment to permanent posts of persons temporarily. Article 79, while stating that an officer holding a substantive appointment may be deputed to fill a temporary or permanent appointment without losing lien on his substantive post, also goes on to say that he may be so appointed without losing a lien on his 'substantive1 pro tempore' appointment or even his officiating, appointment so long as it is not resumed by an officer having a superior lien. In other words, an officer appointed 'sub pro tempore' has a lien ever that post which lien is only subject to the lien of an officer who has a superior lien whether that person is appointed 'substantive pro tempore' or permanently appointed to the post. This is made further clear when the Regulations deal with the pay and allowance. Article 85 clearly lays down that the status of an officer appointed 'substantively pro tempore' will, for all intents and purposes, be that of a permanent incumbent except that the lien of the absentee will rot be; prejudiced thereby. It further goes to say that the pay of the appointment of the officer thus appointed 'substantive pro tempore' may in like manner be given to a substitute similarly appointed in his place. When dealing with the liens to the posts of several categories of officers who go on leave, Article 161 also treats the person holding the post 'sutstantively pro tempore' in par with an officer holding a substantive appointment subject of course to the superior lien of the former over the latter. It also in specific terms says that an officer has no lien on an acting or a temporary appointment subject of course to such a lien as he may have if an officer appointed temporarily or on an officiating basis is granted leave on medical certificate or extraordinary leave under Articles 213 and 217. We are, therefore, clear in our minds that the 'substantive pro tempore' appointment of the respondent confers a right on the post subject only to the superior lien of another officer in whose place he may have been appointed; but on confirmation of that officer in the post to which he was promoted or on his retirement or dismissal, there will be no such superior Iien. Be that as it may, there is no doubt that the respondent has a right to the post. At any rate, the appointment is certainly not one of a temporary character as to entitle the Government to revert him without complying with the provisions of Article 311(2) of the Constitution. The long history of the inquiries to which this officer was subjected to runs over a period of 4-1/2 years and in spite of the elaborate inquiry where the Government was represented by an advocate, the Government was not able to bring home any of the charges to the respondent; or at any rate, the Public Service Commission was not in agreement with the majority recommendations, and consequently the Government had to rescind its previous orders and reinstate the offer as a District Collector followed immediately by his reversion as Deputy Collector. The reasons given for the reversion in answer to the query made by the respondent were that he was mediocre and inefficient, basing the conclusions, no doubt, upon certain confidential and adverse remarks which were, however, not communicated to him in accordance with Circular No. 361/GAD-SNC/35/50 dated 23-5-1S51 wherein under paragraph 4 it is stated thus :

4. 'Communication of unfavourite remarks: All unfavourable remarks whether through an ordinary or Special Report mentioned in instruction (5) should be communicated to the officer concerned and a note to the effect should be made in the report as well as the manner of communication. Where a report shows that an officer has made successful efforts to remedy defects to which his attention has been drawn previously it should be communicated to him so that he knows that his effort to improve have not passed un-noticed.'

The ultimate decision of the Government to revert the officer does not even purport to be in compliance with the requirements of Article 311, and since we have held that the respondent has a right to the post, his reversion would be invalid and has, in our view, quite properly been declared to be so by the trial Court.

13-17. (Paras 13 to 17 have been omitted as they do not contain any point of law worth being reported:)

18. Now coming to the other question viz., whether he is entitled to the pay of a Collector during the period of his suspension, it is not denied by the learned advocate for the appellants that he would be so entitled if the order of suspension was found to be invalid. But the contention of the 1st appellant is that the claim made by the respondent is barred by limitation as it was filed beyond three years from the date when his right to wages accrued under Article 102 of the Indian Limitation Act. The learned advocate for the respondent, on the other hand, says that Article 120 will apply because the rigit does not accrue until the Court gives a declaration that the order of Suspension is invalid. In support of this contention, he has cited several decisions viz Muthu Korakkai Chetty v. Madar Animal, ILR 43 Mad 185 : (AIR 1920 Mad 1) (FB), Suryaprakasa Rao v. Maharaja of Pithapuram, G2 Mad LW 879 : (AIR 1948 PC 175); Radhakrishna Chettiar v. Ramaswami Aiyar, 67 Mad L W 583 and Devendra Pratap v. State of Uttar Pradesh, AW 1962 SC 1334. Mr. Gangadhara Rao has referred to two decisions of Punjab Province v. Tara Chand, AIR 1947 F C 23 and : [1962]1SCR886 , as cases where the question of limitation -- whether under Article 120 or under Article 102 -- was directly raised and decided, and that on the strength of those decisions, he invites us to hold that the claim of the respondent for the salary as a Collector during the period of suspension after deducting the amounts already received by him is time-barred.

The case in ILR 43 Mad 135 : [AIR 1920 Mad 1) (FB) is one under Article 180 of the Schedule to the Limitation Act the third column of which does not use the words 'when the right to sue accrues' as found in Article 102. This case, however, has been referred to for the proposition that the language of the third column of the First Schedule should be so interpreted, that is to say, by dating the cause of action from a date when the remedy is available to the party (vide observations of Seshagiri Ayyar, J, at p. 213 (of ILR Mad) : (at p. 13 of A I R). According to the learned advocate for the respondent, the remedy was available to him only when his claim was rejected by the Accountant-General which was on 8th February 1955. The other decision viz., 62 Mad LW 870 : (AIR 1948 PC 175) is a case dealing with possession on mesne profits which a land-holder could get only if he was registered as such, and consequently when an order which entitled a land-holder to be registered as a land-holder was reversed, the person who was held subsequently entitled to be the land-holder could only have a cause of action from the date when he was registered as such. It was held that the right of the appellants therein to sue for the recovery of the amounts collected by the person who was previously registered as a land-holder and whose right was set aside by the subsequent judgment was not barred by limitation and started only when he was registered as the land-holder under the provisions of the Estate Land Act. Their Lordships of the Privy Council specifically observed that they were of the opinion that the decision in that case decended on the meaning and effect of the provisions of the Madras Estates Land Act and of the rules made thereunder (vide: observations of Lord Normand at p. 880 (of Mad L W) : (at p. 176 of AIR):

In 67 Mad LW 583, the Article that was held applicable was Article 120. That Article was said to apply from the date when the right to sue accrued which was the date of the confirmation of the sale. The facts of the case in 67 Mad LW 583, have no relevance to the point under consideration except that the Division Bench of the Madras High Court was referring to the observations of their Lordships of the Privy Council, 62 Mad LW 879 : (AIR 1943 PC 175), where they held that a right of action to recover rents and profits accrued to the plaintiffs only after the Collector's order dated 12th January 1924 recognising the defendant as landlord was cancelled in consequence of the decision of the Privy Council dated 15th July, 1935 and the plaintiffs therein were recognised as the landholders by the subsequent order of the Collector dated 7th September, 1935. Their Lordships of the Supreme Court in AIR 1962 SC 1334, however, did dot consider the question of applicability of Article 102 or Article 120. On the facts of that case also, it does not help the respondent. In that case, the officer was suspended in 1952 and was dismissed in 1953 and the suit was filed in 1954. That suit was dismissed by the lower Court, but the High Court reversed the decree and the Officer was reinstated in 1959 after which he applied to the Accountant General for his salary from 1952 to 1959. The Accountant General refused to pay these amounts and referred the case of the officer to the Government. On the matter being agitated, the Government fixed Rs. 76-11-0 as the pay during the period of suspension and by the same order suspended him again with a token pay of Re. 1/- per mensem from the date of dismissal to the date of reinstatement. The officer filed a writ petition under Article 226 for declaring the second suspension order invalid and for a direction permitting the appellant to draw his full salary and allowance with all increments and for an order to the Accountant-General to issue pay slips at the rate of Rs. 325/- p.m. from the date of taking over charge with dearness allowance and house allowance etc. The High Court held that the appellant could not be deemed to have been confirmed with effect from April 1953 and that because the appellant had not claimed the salary for the period April 21, 1952 to November, 24, 1954 in the civil suit filed by him, he should be deemed 1o have relinquished that part of his claim. In respect of the latter findings of the High Court, their Lordships of the Supreme Court observed thus at p. 1337:

'The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of Order 2, Rule 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.'

These observations do not indicate that their Lordships were laying down any proposition as submitted by the learned advocate for the respondent viz., that the wages accrue only after the respondent is being declared as entitled to the same. In Om Prakash Gupta v. State of Uttar Pradash, (S) : (1956)ILLJ1SC , the salary decreed was for less than the period of three years and two months which is within the period allowed under Article 10Z read with Sub-section (2) of Section 15 of the Limitation Act. Mo question of limitation was either raised or decided in that case. We agree with the learned advocate for the 1st appellant that a right to wages accrues and in the term 'wages'' is included salary, on the date when it falls due viz., each month if it is an employment on a monthly basis or each day or week if it is an employment tor a day or week as the case may be. The right to wages does not accrue only when the Court declares it so but when it is in fact due.

19. In AIR 1947 FC 23, it was held that the term 'wages' in Article 102 includes pay or salary and the period of limitation for a suit to recover arrears of pay is governed by Article 102 and not by Articles 115, 120 or 131. The point that arose for consideration in that case was that a police officer, who was dismissed from service on 19-3-1938 after exhausting His remedies by way of a departmental appeal, instituted on 14-4-1942 a suit against the Punjab Province for a declaration that the order of dismissal was void and of no effect and claimed arrears of pay from 20-3-193S till 2-1-1941, the date on which he was normally due 1o retire from service. It is, therefore, clear that though the period for which he was asking for arrears was for three years, nonetheless he filed a suit in 1942 and consequently only a part of those arrears would fall within the period of three years before the date of the suit. Several Articles of the Limitation Act were sought to be applied which gave a longer period of limitation in order to protect the claim from being barred by time. But their Lordships of the Federal Court permitted both sides to raise the questions in respect of Limitation and considered the applicability of Articles 115, 120 and 131 as well; and held that Article 102 was applicable for recovery of arrears of salary. Since we are concerned only with Article 120 or Article 102, we will refer to that passage where their Lordships dealt with this aspect of the matter. Zafrulla Khan, J., delivering the judgment observed at p. 29 thus :

'Article 120 is applicable to suits for which no period of limitation is provided elsewhere in the Schedule. In our judgment the period of limitation for a suit to recover arrears of pay is provided for in Article 102 and Article 120 is thus not applicable.'

20. In that case also, the question could have been raised that the three-year limitation period would start from the date of declaration and since Article 120 applies to declaratory suits, the same period of three years should also be applied for arrears. Though it is riot raised, we must hold that such a contention was not raised at it was untenable. Nor is the further contention viz., that he could only sue for arrears on such a declaration being obtained is tenable. Article 120 has in our opinion no application whatever to suits for arrears when there is a specific Article like Article 102 which applies to recovery of arrears.

21. The other contention viz., that the respondent was pursuing the departmental remedies and as such, his right accrues only from the date when his appeal is disallowed has also no merit, in that once a right accrues on the date when the salary is due, limitation begins to run and it cannot stop; nor can it be made dependent upon any departmental remedy. The learned advocate for the respondent brought to our notice a Circular of the erstwhile Hyderabad Government in which it was stated that even though officers (employees) of the Government have legal remedies, if they proceed with them without having recourse to the departmental remedies thereof, they will be considered as subversive of good discipline and may well justify the initiation of disciplinary action against them by the Government. He accordingly contends that in the presence of this Circular, he could not file a suit for recovery of arrears. What he could not do in compliance with the Rules governing his service is one thing and what he could do under the law and has to do in order to bring his claim within the period of limitation is another matter. Merely because of this circular, his right cannot be said to accrue only after the departmental remedy has been exhausted. The law of limitation has specifically extended the period of limitation or excused delays in certain specified matters such ss those indicated in Section 5 or Section 14 or 15 and unless the period spent during the pursuit of departmental remedy was also excluded by any specific provision of the Limitation Act, there would be no scope for holding that the starting point of limitation for purposes of Article 102 commences from the time when the appeal is disposed of. In AIR 1962 SC 3, the decision of the Fedaral Court in AIR 1947 FC 23 was approved by Sinha, C, J. in the following words at p. 12:

'In our opinion, no good reasons have been adduced before us for not following the aforesaid decision of the Federal Court.'

In the above case, the claim for arrears was for a period of about six years and the High Court had allowed, by applying Article 102 read with Section 15(2) of the Limitation Act, a claim for three years and two months which decision was held to be valid applying the principles laid down in AIR 1947 FC 23. We have no doubt whatever that it is Article 102 that applies for recovery of arrears of salary, as in our view, 'monthly salary' is nothing else but an euphemism for monthly wages.

22. The trial court is right in holding that the pay during the period of suspension was barred by limitation. Applying the same principle, the respondent would only fee entitled to claim the difference in the salary of Collector and that of a Deputy collector only for a period of three years and two months from the date of the suit. In that view, the claim beyond the period will be disallowed. The respondent was reinstated and reverted on 1-4-1954 and the suit was filed on 3-12-1957. His claim, therefore, would only be allowable from 3-10-1954 to 3-12-1956 which is the date on which he was relieved by the Andhra Pradesh Government. No claim has been made against the 2nd appellant for the period from 3rd December, 1953 to the date of his retirement viz., 24-1957. So, no directions are given in this behalf. The claim In respect of the earlier period which was also allowed by the trial Judge will be barred by limitation and therefore the decree, to that extent, will have to be varied.

23. Further, the amount which the learned Judge has included as arrears is also made up of interest for every month on the amount due each month to which the respondent is not entitled, and it must accordingly be disallowed. After disallowing the interest, any amount worked out as directed above will be incorporated in the decree.

24. In respect of future interest, though the respondent has not asked for the same, he is entitled to it under Section 34 of the Civil Procedure Code from the date of the suit to the date of the decree and thereafter till realisation at five per cent per annum. In so far as the declaration as to suspension and injunction against the 2nd appellant are concerned, it cannot apply to the 2nd appellant. The lower Court has given this declaration and injunction as operating against both the appellants. As such, it has to be varied inasmuch as it cannot be made against the 2nd appellant.

25. In the result, C. C. C. A. No. 39 of 1960 preferred by the 1st appellant is partly allowed. The appeal of the 2nd appellant viz., C. C. C. A. No. 59 of 1960 is also partly allowed and the only operative relief against the 2nd appellant would be the remedy for a definition that the respondent is a District Collector up to the date of his retirement viz., 2-4-1957. The cross-objection of the respondent is allowed to the extent of interest pendente lite and subsequent to the decree. The respondent will pay court-fee to the Government to the extent of his claim disallowed. Each of the parties will pay and receive costs to the extent of their success or failure. The appellants will bear the costs of the respondent to the extent of claim allowed. In all other respects except to he extent specified above, the decree of the lower Court is confirmed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //