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Akhil Kumar Bhattacharya Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 396 of 1958
Judge
Reported inAIR1960All193
ActsConstitution of India - Articles 229 and 311(2); Allahabad High Court (Conditions of Service of Staff) Rules, 1946 - Rules 12, 12(4) and 23
AppellantAkhil Kumar Bhattacharya
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateAmbika Pd., ;S.N. Misra and ;C.B. Saxena, Advs.
Respondent AdvocateK.B. Asthana, Adv.
DispositionPetition allowed
Excerpt:
constitution - power of chief justice - article 229 of constitution of india - chief justice empowered to employ and control high court employees - alone enjoys power to decide upon matter of a high court employee. - - (4) that the payments having been made to the petitioner voluntarily and in lieu of services rendered the recovery of the so-called overpayments is not justified in law, and in any case even if it be assumed that the registrar passed the order for making the deduction from the petitioner's salary the said order, having been passed under a misapprehension and on the advice of the state government, is bad in law. x x x x x' this provision clearly gives the chief justice or his nominee power not only to appoint the staff of the high court and to fix their salaries but also.....orderjagdish sahai, j.1. the petitioner akhil kumar bhattacharya is a graduate of arts. he joined the service of this court in the year 1927 as an assistant. at that time there was no time-scale of pay for the assistants working in this court. there were fixed grades of pay (hereinafter referred to as the pre-1931 grades). on27-2-1933 the u.p. government issued g.o. no. 1752/vii-2665(i)-1931 introducing two grades of pay for the general section of the high court office instead of the existing one common grade. these grades were termed as superior and subordinate. similarly, for the translation department two grades known 33 senior and junior were introduced instead of the one common grade which existed at that time. the g.o. provided that the revised grades will take effect from 1-4-1933......
Judgment:
ORDER

Jagdish Sahai, J.

1. The petitioner Akhil Kumar Bhattacharya is a Graduate of Arts. He joined the service of this Court in the year 1927 as an assistant. At that time there was no time-scale of pay for the assistants working in this Court. There were fixed grades of pay (hereinafter referred to as the pre-1931 grades). On27-2-1933 the U.P. Government issued G.O. No. 1752/VII-2665(i)-1931 introducing two grades of pay for the general section of the High Court office instead of the existing one common grade. These grades were termed as superior and subordinate. Similarly, for the translation department two grades known 33 senior and junior were introduced instead of the one common grade which existed at that time. The G.O. provided that the revised grades will take effect from 1-4-1933. With a view to fill up the posts in the superior grade, the then Chief Justice, the late Sir Shah, M. Sulaiman, decided to have an examination held. On 15-11-1933 the then Deputy Registrar of the High Court, Mr. S.E.J. Mills, sent the following letter to the petitioner :

'Mr. A. K. Bhattacharya,

Assistant Record Keeper, High Court,

at Allahabad.

You have been permitted to appear for an examination to be held on Saturday, 25-11-1933 in the High Court, for Superior service in the ministerial service of the High Court establishment. The starting pay of the post will be in the grade of Rs. 65--2--75 p.m.

The selected candidate will be on six month probation in the first instance which may be terminated by either side with one month's notice.'

2. The petitioner appeared at the examination and stood first in it. It is alleged by him that he was appointed substantively in the superior grade with effect from 1-1-1934, and his pay was fixed at Rs. 70/- p.m. under the orders. of the Chief Justice. There are some posts in the High Court which are known as posts of responsibility or trust requiring special qualifications and are called senior grade posts. The petitioner's case is that from 1-1-1934 he has been working on one of those posts. In 1946, during the Budget Session, the Government gave an assurance to the members of the Legislative Council that a pay committee would be appointed to consider the revision of salaries of Government servants. That committee was actually appointed in 1947. It also made certain recommendations with regard to the revision of salaries of the High Court staff. Three scales of pay were introduced with regard to the High Court staff on the basis of the recommendations of the pay committee with effect from 1-4-1947. They are as follows:

Class

Pre-1931scale

New scale from 1-4-1947.

Lower Grade!

From Rs. 20/- p. m. to Rs. 70/- p. m.

Rs. 60-4-100- 5-140

Reference Grade

From Rs. 75/- p. m. to Rs. 140/- p. m.

RS. 75-5-100- 5-160 75-5-100- 5-160

Upper Grade

From Rs. 145/- p. m. to Rs. 210/- p. m.

RS. 120-8-200-10-300

3. The petitioner did not elect the new scales of pay immediately they were introduced because according to him he believed that he could do so at any moment favourable to him. He continued in the old grade and earned two increments, the first one in July 1947 and the other in October 1947 and thereafter in August 1948 he filed a declaration accepting the new scale of pay. He was thereafter put in the upper grade i.e., in the grade of Rs. 120--300 with effect from 1-8-1948 and his salary was fixed at Rs. 184/- p.m. It appears that the Government received some complaints with regard to the fixation of salaries of certain Government servants and, therefore, it passed a G.O. 3 copy of which was also sent to this Court whereupon the accounts department of this Court, with a view to comply with the directions given in the G.O., started looking into the cases of the employees of this Court to find outas to which of them had been fixed in a wrong grade and thus have been overpaid.

Some difficulty was felt with regard to the petitioner's case and it was not quite clear as to whether the petitioner had rightly been fixed in the scale of Rs. 120--300 on a starting salary of Rs. 184/-p. m. Thus correspondence was started between the Registrar of this Court (hereinafter referred to as the Registrar), the Accountant General, U.P. (hereinafter referred to as the Accountant General) and the State Government in 1950. The stand taken by the Accountant General was that under Fundamental Rule 23 a Government servant could defer the election of the new scales till his next promotion only when the old scales. comprised of graded system of posts or till next increment where the old scales had time-scales of pay. The Accountant General suggested to the High Court to refix the initial pay of the petitioneras also some other assistants working in this Court who were allowed to elect the revised scales of pay otherwise than in accordance with the above rule. The High Court, though maintained that the matter was not free from difficulty, did not accept the interpretation placed by the Accountant General on Fundamental Rule 23 and referred the matter to the State Government.

The Accountant General referred the matter to the Comptroller and Auditor General as also to the State Government. The view of the Comptroller and Auditor General was in support of the petitioner and, therefore, the Registrar allowed the petitioner to run in the scale mentioned above. The State Government, however, did not accept the view of the Comptroller and Auditor General as correct, & sent a G.O. to this Court through the Accountant General asking for refixing of the salary and the grade of the petitioner as also some others according to what was contained in the G.O. The relevant portion of the G.O. (a copy of which has been filed and marked as annexure D) runs as follows :

'....I am directed to say that after careful consideration of the question, the Governor has been pleased to decide as follows :

(i) Grade promotions of Government servants entitled to the pre-1931 rates of pay after 1-4-1947 will not be restricted to those pre-1931 grades of pay for which a common revised 1947 scale has been laid down and it is open to a Government servant to come over to the revised 1947 scale of pay after reaching any such grade.

(ii) Grade promotion after 1-4-1947 from one pre-1931 grade to another for which different revised 1947 scales have been prescribed are not permissible as that would amount to appointment to another post and not promotion to another grade. This follows from F. R. 23 and paragraph 3 of Audit Instructions thereunder which refers to grade promotions in cases in which a time-scale of pay has been substituted for a graded scale of pay.

2. I am now to request that fixation of pay of officials pending for want of a decision in the matter may be finalised.'

4. On receipt of that G.O. the Registrar accepted the Government's decision contained in it and held that inasmuch as the petitioner was on 1-4-47holding a post in the pre-1931 scale of Rs. 140/-, for which the revised scale of Rs. 75--5--100--EB--5--160 was prescribed, his election of the new scale with effect from 1-10-1947 after his promotion to the pre-1931 grade of Rs. 180/- was not permissible and therefore refixed his salary at Rs. 145/- p.m. in the scale of Rs. 75--5--100--EB--5--160 with effect from 1-4-47 and computed the amount of overpayment at Rs. 2,529/4/-.

Even though the Registrar did so he addressed a letter to the State Government on 27-5-1957 (annexure I to the petition) requesting the Government to allow the petitioner as a special case to elect the revised scale of pay on 1-10-1947 after his promotion to the pre-1931 grade of Rs. 180/- and to sanction the fixation of his initial pay at Rs. 184/-in the scale of Rs. 120--8--200--EB--10--300 with effect from that date. The State Government did not agree to the suggestion made by the Registrar and the latter was informed accordingly fay the Additional Secretary to the Government of U.P. by letter (G.O.) No. 1215/VII-490/57 dated 5-10-1957. That letter was concluded in the following words :

'I am accordingly to say that with the permission of the Court, recoveries may please be made from Sri Bhattacharya in such instalments as may be considered suitable.'

After receipt of this G.O. the Deputy Registrar of the High Court (hereinafter called the Deputy Registrar) sent the following letter to the Accoutnant General:

'Sir,

I am directed to send herewith a statement showing the amount of Rs. 2,529/4/- recoverable from Sri A. K. Bhattacharya. His pay has been fixed in the revised 1947 scale in the light of G O. No. G-I-1084/X-208-A/1947 dated 4-6-1954. The statement may kindly be verified and returned for necessary action. Enclosures :

1. Statement of recovery.

2. Statement showing fixation.

3. Service book V volumes.' (5) The statement of recovery sent along with the letter mentioned above reads as follows :

'Statement showing the calculation of initial pay in the revised scale 1947.

Name of incumbent and designationOriginal scale of pay (pre-1931 or post 1931)Present rate of pay.Date of appointment in the present post.Proposed scale of paySri Akhil Kumar Bhattacharya.Pre-1931RS. 140/-1-8-48Rs. 175-5-100- 5-160.Initial pay in the proposed scale -- Rs. 145/-Date of election -- 1-4-1947.'

Thereafter monthly deductions of Rs. 55/- were started to be made from the salary of the petitioner and a sum of Rs. 1,155/- had already been deducted from his salary when after the filing of the writ petition a stay order was granted by this Court. Now a sum of Rs. 1,374/4/- remains to be realised.

6. On these facts the present petition has been filed. The grounds on which it is founded and which have been pressed before me are as follows :

(1) That the petitioner has been reduced in rank and there is an infringement of Article 311(2) of the Constitution of India inasmuch as reasonable opportunity of showing cause against the refixing of his pay and the deductions sought to be made from his salary was not given to him.

(2) That the Chief Justice alone could deal with the petitioner and the Accountant General or the State Government had no jurisdiction to order the fixation of the petitioner on a particular pay and fordeducting the sum of Rs. 2,529/4/- by monthly instalments from his salary.

(3) That though it be assumed that he was refixed on a pay of Rs. 145/- per month in the grade of Rs. 75--5--100--EB--5--160 by the order of the Chief Justice and the deductions are being made by his order the said orders are invalid inasmuch as they amount to the reviewing of the order of the predecessor of the present Chief Justice.

(4) That the payments having been made to the petitioner voluntarily and in lieu of services rendered the recovery of the so-called overpayments is not justified in law, and in any case even if it be assumed that the Registrar passed the order for making the deduction from the petitioner's salary the said order, having been passed under a misapprehension and on the advice of the State Government, is bad in law.

(5) That the amount alleged to be overdrawn is not correct and the amount fixed is much higher than what has been actually overdrawn.

7. On behalf of the respondent No. 1 the State Government several counter affidavits have been filed in this case. It is not necessary to reproduce all that is contained in those counter affidavits. I am mentioning only those allegations which are material for the decision of the case. It has been stated that the petitioner was on 1-4-1947 in the pre-1931 grade of Rs. 140/- and had he opted to the newly created time-scale on that date he would have been placed in the grade of Rs. 75--5--100--EB--5--160. It is further alleged that the petitioner did not make his option on that date and continued to the pre-1931 grade and between April and September he got certain officiating chances and was promoted to the pre-1931 grade of Rs. 180/- on 1-10-1947.

It is further stated that in that grade he was only officiating. According to the counter affidavit, on 1-10-1947 the petitioner made his option to accept the revised time-scale and he was given the time scale which corresponded to the pre-1931 grade of Rs. 180, i.e. Rs. 120--8--200--EB--10--300 and he drew his pay in accordance with that time scale. It is, however, added that the petitioner was wrongly given that grade and he was entitled only to a salary of Rs. 140/- per month on 1-10-1947 in the time scale of Rs. 75--5--100--EB--5--160. It is stated that some time later this mistake was discovered and then certain correspondence took place between the Government and the High Court and finally the Government decided that the petitioner having been wrongly placed in the higher grade had drawn amounts in excess which he would have otherwise not been entitled to had he been placed in the correct time scale and it was ordered that the petitioner should refund the amount drawn in excess and this amount was to be realised by making deductions in suitable instalments, (see paragraph 9 of the counter affidavit dated 16-8-1959).

According to the counter affidavit, at the time when the writ petition was filed the petitioner had been promoted in the normal course to the next time scale of Rs. 120--8--200--EB--10--300 and his appointment in this higher grade is not disputed. The counter affidavit goes on to say that there is no question of there being any reduction in rank or punishment and the Government in recovering the amount of Rs. 2,529/4/- from the petitioner's pay by monthly instalments is only correcting a mistake which was inadvertently committed by the authorities concerned in placing the petitioner in upper division assistant's grade on 1-10-1947. (See para 15 of the counter affidavit dated 16-8-1958).

8. In the supplementary counter affidavit which is sworn by Sri A.P. Shah, Additional Secretary to U.P. Government, (Judicial Department) it has been stated that the pay of the staff of the High Court is met from the Consolidated Funds of the State on the basis of annual budget, and the rules relating to the conditions of service of the staff of the High Court are approved by the Governor of the State so far as they relate to salaries, allowances, leave and pension. It is further stated in this counter affidavit that the petitioner is now under the control of Hon'ble Chief Justice, being an employee of the High Court, but in respect of fixation of grades, pay and allowances etc., the rules applicable to other Government servants ace equally applicable in the case of the petitioner. With regard to the petitioner's allegation that Hon'ble Chief Justice had passed orders in the case of the petitioner fixing his pay at Rs. 184/- in the scale of Rs. 120--300 it has been stated that the deponent of the counter affidavit has no knowledge.

This counter affidavit goes on to say that the grade and pay of the petitioner were refixed by the office of the High Court, and a sum of Rs. 2,529/4/-was found recoverable from him. The petitioner made representations to the Registrar of the Court and the Hon'ble Chief Justice whereupon the Registrar movedthe Government to allow the petitioner as a special case to elect the revised scales of pay on 1-10-1947, after his promotion to the pre-1931 grade at Rs. 180/-and to sanction the fixation of his initial pay at Rs. 184/- per month in the scale of Rs. 120--300 with effect from that date but the Government refused to agree because it was considered that this would amount to discrimination in favour of the petitioner.

9. I will first deal with the second submission of the learned counsel for the petitioner. Clause 6 of the Letters Patent of this Court runs as follows :

'And we do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Allahabad from time to time as occasion may require and subject to any rules and restrictions which may be prescribed by the Lieutenant-Governor of the United Provinces of Agra and Oudh to appoint so many and such clerks and other Ministerial officers as shall be found necessary for the administration of justice and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent. And it is Our further will and pleasure and We do hereby for Us Our heirs and successors give grant direct and appoint that all and every the Officers and Clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall from time to time appoint for each office and place respectively and as the Lieutenant-Governor of the United Provinces of Agra and Oudh subject to the control of the Governor-General in Council shall approve of.

Provided always and it is our will and pleasure that all and every the Officers and Clerks to be appointed as aforesaid shall be resident within the limits of the jurisdiction of the said Court so long as they shall hold their respective offices but this proviso shall not interfere with or prejudice the right of any Officer of Clerk to avail himself of leave of absence under any rules prescribed by the Governor-General in Council and to absent himself from the said limits during the term of such leave in accordance with the said rules.'

10. Therefore originally the Chief Justice had the power to not only appoint the officers of the Court and the staff but also to fix their salaries. This position continued at least until the Government of India Act of 1915 was passed. Section 106 of the Government of India Act, 1915, provided that the jurisdiction of the High Court would

'include all such powers and authority over and in relation to the administration of justice including power to appoint clerks and other ministerial officers of the Court as are vested in them by Letters Patent.'

It is clear, therefore, that the Government of India Act of 1915 did not make any change and the provisions of Clause 6 of the Letters Patent remained unaffected.

11. Then came the Government of India Act of 1935. Section 241 of the said Act provides for the recruitment and conditions of service of such persons and prescribes the various authorities who can make the appointments and frame the rules relating to conditions of service. Section 242 of that Act, inter alia, provides that Section 241 in its application to appointments to and to persons serving on the staff attached to a High Court shall have effect as if, in the case of a High Court, for any reference to the Governor in para (b) of Sub-section (1), in para (a) of Sub-section (2) and in Sub-section (5) there was substituted a reference to the Chief Justice of the Court.

The result of the provisions of Section 242 read with Section 241 of the Government of India Act of 1935 was that not only the powers of the Chief Justice withregard to appointments of the members of the High Court staff were kept intact but statutory provisions were created for the first time which expressly declared what was impliedly said in Clause 6 or the Letters Patent. It may also be mentioned that rules were framed under Clause (b) of Sub-section (2) of Section 241 read with Section 242(4) of the Government of India Act of 1935 by the Chief Justice. These rules so far as they relate to salaries, allowances, leave and pension were also approved by the Governor of the State. They are known as the 'Allahabad High Court (Conditions of Service of Staff) Rules, 1946,' (hereinafter called as the Rules).

11a. Thereafter came the present Constitution, Article 229 of the Constitution runs as follows :

'229. (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as be may direct:

Provided that the Governor of the State in which the High Court has its principal seat may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission,

(2) Subject to the provisions of any law made by the legislature of the Slate, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State in which the High Court has its principal seat.

X X X X X'

This provision clearly gives the Chief Justice or his nominee power not only to appoint the staff of the High Court and to fix their salaries but also to deal with them subject to the rules. The proviso however requires that the rules so far as they relate to salaries, allowances, leave or pensions must be approved by the Governor of the State.

12. In the case of Pradyat Kumar v. Chief Justice of Calcutta : [1955]2SCR1331 , the Supreme Court held that the members of the High Court staff are under the administrative control of the Chief Justice who under the Constitution has the power to appoint and remove them and to otherwise deal with their cases. The legal position, therefore, is that the Chief Justice alone has the power to deal with the case of a person serving in the High Court. In the present case, however, it appears that the order directing monthly deductions from the salary of the petitioner was passed by the Registrar.

It is true that originally the position taken in the counter affidavit was that the Government had passed the order refixing the salary of the petitioner and directing the deductions at Rs. 55/- per month from his salary. However during the course of arguments it has been admitted by both the parties that the order was actually passed by the Registrar and not by the Government. The Registrar was delegated the powers of the Chief Justice by Sir J. G. Thom the then Chief Justice by an order dated 14-4-1938. The said order runs as follows :

'In exercise of the powers conferred by Section 241(1)(b), read with Section 242(4) of the Government of India Act, 1935, and of all other powers conferred in that behalf, I hereby direct that all appointmentsto the staff attached to the High 'Court of Judicature at Allahabad, other than those to the posts of the Deputy Registrar and Assistant Registrar, shall be made by the Registrar of the said High Court.'

By virtue of this order only the power to appoint was delegated to the Registrar and he had no power to refix the salary of the petitioner and to direct the deduction from his salary. It is true that under the provisions of Rule 12 of the Rules the Registrar also has got the power to pass certain orders. Rule 12 runs as follows :

'12. Punishment -- Subject to the provisions of Rule 17, the following penalties may, for good and sufficient reason, be imposed by the Chief Justice or the Registrar upon persons serving on the staff attached to the High Court:

(1) Censure;

(2) Withholding of increment or promotion;

(3) Reduction to a lower post or time-scale or to a lower stage in the same time-scale;

(4) Recovery of deduction from the pay of the whole or part of any pecuniary loss caused to the Provincial Government by negligence or breach of ciders;

(5) Suspension:

(6) Removal from the staff attached to the High Court without a disqualification for future employment;

(7) Dismissal from the staff attached to the High Court with a disqualification for future employment. Provided that --

(a) in the case of the Deputy Registrar and the Assistant Registrar the penalty of dismissal or removal shall be imposed only by the Chief Justice:

(b) no person on the staff attached to the High Court shall, unless it be on the ground of conduct which has led to his conviction on a criminal charge or unless the Chief Justice or Registrar, as the case may be, is satisfied that for some reason to be recorded by the Chief Justice or the Registrar, it is not reasonably practicable to give such person an opportunity of snowing cause, be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, Explanation -- The discharge of person --

(a) appointed on probation, during the period of probation,

(b) appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of appointment, or

(c) engaged under contract, in accordance with the term of his contract, shall not be deemed to be a removal or dismissal within the meaning of the rule.'

13. In my opinion Rule 12 deals with punishments and what is contemplated by Rule 12 (4) is recovery or deduction from pay for any pecuniary loss caused to the Provincial Government by negligence or breach of orders and not recovery of amounts paid bona fide to a member of the High Court staff for services rendered by him. I am of the opinion that the various clauses of Rule 12 of the Rules deal with punishments for faults and do not cover a case like the present one. Therefore the Registrar could not have passed the order which is impugned in the present case even under Rule 12 of the Rules.

Nothing has been shown to me to justify a finding that the Chief Justice had delegated to the Registrar the power to refix the salary of a member of the High Court staff and to direct deduction from his salary on the ground that he had been overpaid because he had been fixed in a wrong grade. In myopinion, therefore, the Registrar could not have passed the impugned order. The Registrar though a party has not filed a counter affidavit.

14. Now, I shall deal with the petitioner's ground No. 1, i.e., whether the present order amounts to an order of reduction in rank. It is true that the petitioner's salary was refixed at Rs. 145/- p.m. though he was drawing Rs. 184/-. The answer to the above question would depend upon a decision as to whether or not the petitioner was entitled as of right to the salary of Rs. 184/- which he was drawing and to be in the grade of Rs. 120--300 in which he was at the time when his salary was refixed at Rs. 145/-per month. It was held in the case of P.L. Dhingra v. Union of India : (1958)ILLJ544SC as follows :

'A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment.

The real test for determining whether the reduction, in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty.'

The case of the Government is that grade promotion after 1-4-1947 from one pre-1931 grade to another for which different revised 1947 scales have been prescribed is not permissible as that would amount to appointment to another post and not promotion to another grade. On behalf of the petitioner it is contended that the expression 'grade promotion' occurring in Audit Instruction No. 3 under Fundamental Rule 23 does not debar a Government servant from retaining his old pay until he had promotion to a next higher grade. Fundamental Rule 23 runs as follows :

'23. The holder of a post the pay of which is changed shall be treated as if he were transferred to a new post on the new pay; provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time-scale. The option once exercised is final.

Audit instructions regarding Rule 23.

X X X X X

3. The expression 'subsequent increment on the old scale' in the proviso to Rule 23 should be held to include grade promotion in cases in which a time scale of pay has been substituted for a graded scale of pay.'

In my opinion this rule supports the contention of

the petitioner. It was open to the petitioner under this rule to retain his old pay until he had earned promotions in July 1947 and October 1947 and if does not appear to me that such a course as this was in conflict with the provisions of Rule 23 of the fundamental Rules. That being so the petitioner was rightly fixed in the scale of Rs. 120--300 on an initial salary of Rs. 184/-, and his subsequent fixation on a lower salary by the Registrar was not in my opinion justified. That being so it must be held that the petitioner was reduced within the meaning of Article 311 of the Constitution of India. Admittedly he was not given an opportunity of showing cause before that order was passed. There has thus been an infringement of Article 311(2) of the Constitution of India.

15. In my opinion there is not much in the petitioner's contention that the amount alleged to be overdrawn is not factually correct. Learned counsel for the petitioner has not been able to point out anything which would show that the amount is wrong. I therefore, overrule this contention of the learned counsel.

16. The only contention that now remains to be considered is the petitioner's objection with regard to the recovery of the amount on the ground that it has been voluntarily paid to him in lieu of services rendered. Rule 81 of the Account Rules (Financial Hand Book, Vol V) runs as follows :

'When the Accountant General disallows a payment as unauthorized, the treasury officer must not only recover the amounts disallowed without listening to any objection or protest, hut also refuse to make further payments in future till the Accountant General authorizes the payment to be resumed. That no warning slip has been received by the Government servant affected, or that, being received, it has been answered, are facts with which the treasury officer has no concern.'

These rules have been made applicable to the High Court staff by 1946 Rules of this Court. It appears to me that under the provisions of Rule 81 quoted above, amounts can he deducted from the salary of a Government servant in the circumstances as the present one i.e. on the ground of over payment.

17. Even though I have repelled the last twogrounds raised by the petitioner the petition must beallowed because I have held firstly that the Registrarhad no jurisdiction to order a deduction from thepetitioner's salary and to refix the same and also because I have held that the provisions of Article 311(2)of the Constitution of India have been infringed. I,therefore, allow the petition and issue a writ of mandamus calling upon the respondents to forbear fromdeducting any amounts from the petitioner's salary.I also direct that the respondents shall refund to thepetitioner the amount which they have already deducted from his salary. I direct the parties to beartheir own costs.


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