1. This is a plaintiff's appeal against the judgment of Khosla J., dated 4-10-1949 allowing the appeal of the Government against the appellate order of the Senior Subordinate Judge whereby he had decreed the plaintiff's suit.
2. The plaintiff Hari Ram, a revenue Patwari, was suspended by the order of the Collector on 27-3-1940, He was then prosecuted under Section 409, Penal Code but the case was withdrawn and the plaintiff was re-instated on 5-8-1942. During the period of his suspension he was paid one-fourth of his emoluments as subsistence allowance. He then applied to the Collector for the balance of his pay for the period of suspension. This application was rejected as also the appeal which was taken to the Commissioner and the Financial Commissioner confirmed the order on 14-12-1945.
3. Hari Ram then brought a suit on 20-2-1947 for the recovery of Rs. 500/- as arrears of pay and the suit was dismissed on 20-1-1948but on appeal was decreed by the Senior Subordinate Judge, Hissar, which decree w.as reversed by a learned Single Judge of this Court who held that the case was governed by the rule laid down by their Lordships of the Privy Council in -- 'High Commissioners for India and Pakistan v. I.M. Lall', AIR 1948 PC 121 (A) and therefore the plaintiff was not entitled to sue on' the basis of contract. The learned Judge also held that there were no statutory rights entitling a revenue Patwari to recover his pay. In regard to limitation the learned Judge held that the right of, the Patwari, if it was based on contract, would be governed by Article 115, Limitation Act and, therefore, the suit would be barred by time as it was brought more than three years after the breach of contract which was on 21-9-1943.
4. Mr. Pandit tried to distinguish AIR 1948 PC 121 (A) by submitting that their Lordships confined the case to action in tort but they did not decide that a servant of the State cannot sue on the basis of any statutory or contractual provision. He particularly relied on the following observation of Lord Thankerton at p. 127 -
'It is unnecessary to cite authority to establish that no action in tort can lie against the Crown and therefore any right of action must either be based on contract or conferred by statute.'
As far as contract is concerned their Lordships referred to the judgment oft Lord Blackburn in a Scottish case -- 'Mulvenna v. The Admiralty', (1926) 1926 Sc C 342 (B) where it had been said that there is an implied condition into every contract between the Crown and a public servant to the effect that they (public servants) have no right to their remuneration which can be enforced in a Civil Court of Justice, and that their only remedy is by way of an appeal of an official or political kind. No doubt their Lordships then went on to consider if there was any statutory right in a civil servant to recover arrears of pay by suit in a Civil Court and their Lordships found that none existed in the Government of India Act of 1935.
5. Taking advantage of these words Mr. Pandit submitted that the Patwari had a statutory right to enforce the payment of arrears of nay. He first referred to Section 28, Punjab Land Revenue Act which deals with the appointment, dismissal and pay of village officials which include a Patwari. He also referred to Standing Orders which he says have been made under the Punjab Land Revenue Act. Part 14 of these Standing Orders deals with the nay of Patwaris which, according to R. 36, is regulated under the orders of the. Financial Commissioners and it is significant to note that in this very rule the following words occur :
'No payment is authorised to any person who does not himself discharge duties for which the pay is sanctioned. To this no exception can be allowed. In every case the full pay sanctioned for a patwariship and all the fees attaching to the post must go to the person who actually discharges the duties.' Rule 36 deals with preparation of salary bills but there js no statutory rule which gives to the Patwari an exceptional right of recovering arrears of pay by means of bringing a suit. The rules to which reference has been made make no such provision.
In view of this it is not necessary to discuss the case decided bythe Federal Court -- 'Punjab Province v. Tara Chand', AIR 1947 FC 23 (C), where reference was made to a judgment of the Probate Division of England -- 'Lucas v. Lucas', (1943) LR (1943) p 68 (D), but the judgment of the Federal Court was before the judgment of their Lordships of the Privy Council and therefore cannot have any precedence in regard to authority over that of their Lordship's judgment I would, therefore, hold that the learned Single Judge has rightly held that the plaintiff was not entitled to bring a suit in the Civil Court for recovery of arrears of his pay, and dismiss this appeal with costs.
6. I agree.