1. This is a petition under Article 226 of the Constitution, by a permanent Government Servant in the Education Department of the Government of Orissa, who is now working as lecturer in Sanskrit and Oriya in Fakir Mohan College, Balasore. After working in various subordinate capacities he was posted to officiate as Principal, Purl Sanskrit College from 1-11-1944 on the scale of Rs. 144-7-200-40/2-400/- per month. He continued in that scale till the forenoon of 15-8-1947 when he was transferred as Superintendent of Sanskrit Studies which was a post in the junior branch of Class II of the Orissa Educational Service. Subsequently, on the recommendation of the Public Service Commission he was absorbed in that post.
2. While the petitioner was working as Principal, Sanskrit College Puri, the Director of Public Instruction -- as early as 22-3-1947 requested the Government to include that post in Class II of the Orissa Educational Service so as to enable him to appoint some other person to that post and transfer the petitioner who, in his opinion, was not suitable for the same. In pursuance of that request the Government of Orissa, in their Notification No. 2092-E dated 20-5-1957 declared the post of Principal, Sanskrit College, Puri, to be a gazetted one, under Clause II of Rule 17 of the Orissa Service Code Vol. 1.
But the petitioner was allowed to continue in that post till 15-8-1947. The Director of Public Instruction requested Government to issue another Notification declaring the post to be included in Class II of the Orissa Educational Service saying that merely declaring the post to be a gazetted one would not suffice. In response to his request the Government of Orissa, in the Education Department, in their letter No. 6536-E dated 29-12-1947. created with retrospective effect from 15-8-1947 the post of Principal, Puri Sanskrit College, in the senior branch of Orissa Educational Service, Class II.
3. Subsequently, the Government of Orissa in Finance Department Resolution No. 6752-E dated 7-8-1948, substantially accepted the recommendations of the Orissa Pay Committee, as regards scales of pay, dearness allowance, classification of services etc., and gave retrospective effect to that decision from 1-4-1947. In Appendix III to the Resolution the classification of the various Government services and posts under the Government was made and for the purpose of disposal of this application it is necessary to refer to a portion of paragraph (E) of that appendix which is as follows :
'(E) Class II--Provincial Service.
Class II--Provincial Service -- Rs. 200-15-260-25-
1. Provincial Civil Service (Executive).
2. Provincial Civil Service (Judicial).
3. Provincial Excise Service.
4. Provincial Forest Service.
5. Provincial Police Service.
6. Lecturers and Demonstrators in the Education Department.
7. District Inspectors and Inspectress of Schools. Head Masters, and Head-Mistresses of High English Schools for boys and girls and Headmasters and Secretary Training Schools.
8. Professor of Law, Ravenshaw College.
9. Principal Sanskrit College.
10. Supdt. Sanskrit Studies.'
It will be noticed that the post of Principal, Sanskrits College (item 9) was included in the aforesaid scale in Class, II of the Provincial Service. Though in the appendix it is not clearly stated that the post refers to the Principal, Sanskrit College, at Puri, it is conceded that at the time of the publication of the Resolution there was only one Sanskrit College in Orissa located at Puri, The Government Resolution expressly gave retrospective effect to the new scales as would be clear from the following passage in paragraph 2 :
'As they have already announced sometime ago, the revised pay scales approved by the Government together with the revised scales of dearness allowance will come into force with effect from the 1st of April 1947. Government will adhere to this decision and it is hoped that before very long all Government servants will be enabled to draw such ar-rear emoluments as may be due to them on account of the introduction of the revised scales of pay and dearness allowance.'
It was further stated in paragraph 6 :
'The scales of pay detailed in Appendix III to this resolution for different classes of Government employees represent the final recommendations off the Pay Committee as modified by Government in certain respects for some reasons or other, but mainly for reasons of economy. As has been stated above. Government have decided to bring into effect these scales of pay which have as far as practicable been made completely uniform for comparable services and which follow the basic or slab scales set out in Appendix I with effect from the 1st April 1947.'
4. The aforesaid Resolution is clear and unambiguous. Though it is dated 7-8-1948, Government unequivocally declared that the scales of pay for the various posts as fixed in Appendix III should be given retrospective effect from 1-4-1947 and Government servants holding such posts were authorised to draw arrear emoluments as may be due to them on account of the introduction of the revised scale of pay.
5. The petitioner's case is based mainly on this Resolution of Government. Admittedly, he worked as Principal, Sanskrit College, Puri from 1-4-1947 till the fore-noon of 18-8-1947. Thoughat that time the pay of that post was not fixed clearly yet when on 7-8-1948, it was retrospectively (i. e. with effect from 1-4-1947) fixed in the scale of Rs. 200-15-260-25- 435-E B. -25-610- E. B. -30-700/- per month the petitioner claimed that he was entitled to that scale from 1-4-1947.
6. To meet this argument the learned Advocate General contended that mere fixation of the scale of pay for a post and the inclusion of that post in Appendix III would not suffice but that a further notification declaring the post to be within the classification as given in Appendix was necessary. He conceded that the post of Principal, Sanskrit College, Puri, was one of the Posts included in paragraph (E) for which the scale of Rs. 200-15,260-25-435-E.B,25-610-E.B. -30-700/- per month was fixed witheffect from 1-4-1947, but urged that an express notification of the Government including that post inClass II of the Provincial Service was necessary before the petitioner can claim the pay of that post.
7. In my opinion, this argument of the learned Advocate General is not tenable. In fact, the Accountant General, Orissa in his letter No. 4 G.A.Edn. (39)-3538 dated 24-2-1950, addressed to the Government of Orissa in the Education Department, correctly summed up the position as follows : --
'I have the honour to state that the post of Principal, Puri Sanskrit College, has been included in Class II of Orissa Educational Service, with effect from 1-4-47 under the revised classification, along with the revised scales of pay, from that date. The post would, therefore, automatically be treated as agazetted one from that date in accordance with Rule 17(ii) of the Orissa Service Code.
A formal notification declaring the post as a gazetted one with effect from 1-4-1947 may however be issued in modification of G.O. No. 6536-E dated29-12-1947 on the subject.'
8. It would appear from this letter of the Accountant-General that though a formal notification declaring the post to be a gazetted one, with effect from 1-4-1947 was suggested, yet the post became a gazetted one automatically from that date when the Government in the aforesaid Resolution dated 7-8-1948, accepted the recommendations of the pay Committee and gave retrospective effect to the classifications and scales from 1-4-1947. It is true that the giving of retrospective effect must lead to certain anomalies, but the intention underlying the Resolutiondated 7-8-1948 is absolutely clear. Government wanted to give extra benefits to their employees retrospectively with effect from 1-4-1947 and authorised them to draw pay in accordance with the revised scales of pay, as fixed in the Appendix III attached to that Resolution, retrospectively.
The Resolution itself was published in the Official Gazette and no further notification including the various posts specified in Appendix III (E) in Class II of the Provincial Service was legally necessary, though, as pointed out by the Accountant General, a formal notification would have been much better. It is true that on 20-5-1947 the Government declared the post of the Principal Sanskrit College, Puri to be a gazetted one and in their subsequent letter No. 6536-E dated 29-12-1947 they declared that the post to be included in Class it of Orissa Educational Service (Senior Branch) with effect from 15-8-1947. But this was a decision taken prior to their acceptance of the Pay Committee's recommendations. The resolution of the Government of Orissa dated 7-8-1948 must be held to have suppressed all previous notifications on the question of scales of pay.
9. The Advocate General then raised an in-genious contention based on Section 266 of the Govern-ment of India Act 1935 which was in force in 1948. Under that section, the State Public Service Commission was entitled to be consulted regarding the suitability for appointment to a gazetted post of a particular Government servant. Hence according to him, merely by creating a post in Class II of the Provincial service, an officer though holding that post, cannot be deemed to have been appointed to that post unless the Public Service Commission had been consulted as regards his appointment. As no such consultation could possibly be made in a case of this type, it must be held, as a matter of construction, that the petitioner cannot validly claim to have been retrospectively appointed as a Member of the Provincial Service Class II so as to be entitled to the pay fixed for the post.
It has however been held by their Lordships of the Supreme Court in the State of U. P. v. M.L. Srivastava, (1958) S.C.J. 150 : ((S) AIR 1957 SC 912) that consultation with the Public Service Commission as laid, down in Article 320(3)(c) of the Constitution (corresponding to Section 266 of the Government of India Act 1935) is only directory and not mandatory and that failure to consult the Commission would not render the order of the Government invalid. Hence, even if the giving of retrospective effect to the Resolution dated 7-8-1948 produces the anomalous result of a person being appointed to a gazetted post, without consultation with the Service Commission, yet that will be no ground for depriving him of the benefits of such restrospective effect. Government should have thought of this contingency while giving retrospective effect to that Resolution and should nave provided adequate safeguards.
But when without any reservation whatsoever, they stated that the revised scales of pay for the posts detailed in appendix III to the Resolution would be given retrospective effect from 1-4-1947, any officer holding any one of the posts included in that appendix may legitimately claim that scale of pay from that date. If any formal notification is required to regularise the grant of such pay Government should have issued such a notification as suggested by the Accountant General in his letter, quoted above.
10. Some argument was advanced to the effect that though the petitioner was promoted as Principal, Sanskrit College, Puri. and remained in that post and he was transferred to some other equivalent post like that of Superintendent of Sanskrit studies. In the peculiar circumstances of this case, the fitness or unfitness of the petitioner is immaterial. Whether fit or unfit he was allowed to officiate in the post of Principal, Sanskrit College, Puri from 1-4-1947 till 15-8-1947 and he is entitled to the pay fixed for that post retrospectively with effect from. 1-4-1947.
11. It is unnecessary to consider in this application whether prior to the commencement of the Constitution in 1950, Government could have, by an express order, directed that a Government Servant, though he might have held a post in the Provincial service Class II, was yet not entitled to the scale of pay fixed for that post, but only to a lower scale of pay on account of special reasons. Such an order passed after the commencement of the Constitution might possibly be hit by Article 14. But in the Government of India Act 1935 there was no provision corresponding to1 Article 14.
In the present case, however, Government did not rest their stand on any such power, nor is there any express order of the Government to that effect. Neither in the counter affidavit nor in the submissions made by the Advocate General was such a contention put forward. The argument of the learned Advocate-General was based mainly on an interpretation of the Government Resolution dated 7-8-1948,bearing in mind the relevant provisions of the Government of India Act, and not on the competence of the then Government to fix a specially reduced scale of pay for a particular post so long as it was held by a particular officer.
Hence, we express no opinion on this question. On a strict interpretation of the above resolution in the light of admitted facts, I must hold that the petitioner was entitled to the scale of Rs. 200-15-260-25-435-E.B, 25-610--E.B.-30-700 per month with effect from 1-4-1947.
12. This application is, therefore allowed, and a writ shall issue directing the Government of Orissa in the Education Department to fix the scale of pay of the petitioner in the aforesaid Class II of the Orissa Provincial Service, viz.; Rs. 200-15-260-25-435-E.B.-25-510-E.B.-30-700/-- per month, with effect from the 1st April 1947 in supersession of all previous notifications on the subject.
The petitioner is entitled to costs. Hearing fee is assessed at Rs. 100/- (Rupees one hundred only).
13. I agree.