1. The only question raised in this petition by the petitioner is whether the respondent-Railway can recover the salary and wages paid to the petitioner employed on a promotional post on which he has actually worked for number of years before he was reverted to the lower cadre on account of adjustment of his seniority vis-a-vis other employees.
2. At the outset I may say that it is a very sorry state of affairs for a mighty administration like the Railway to come out with the order at Annexure-C dated 7th September, 1977 directing recovery of the excess salary claimed for the period from 19th April, 1961 to 31st December, 1976 amounting to Rs. 5,777-40 ps. from the petitioner.
3. The petitioner was recruited in the respondent-Railway as Tracer in the year 1955 and was promoted to the post of Junior Draftsman on 19th April, 1961. The petitioner was there after further promoted to the post of Junior Estimator from 23rd December, 1962 and thereafter to the post of Senior Estimator on 16th March, 1966. According to the petitioner he was promoted strictly in accordance with the orders of promotion passed by the competent authority. It appears that some of the employees who were treated as juniors to the petitioner had filed civil suit in the Court of Civil Judge. Senior Division, Bhavnagar and the said suit was decreed in favour of the plaintiffs. In consequence thereof the Divisional Office of the respondent-Railway passed an order on January 30, 1976, readjusting the seniority of the petitioner vis-a-vis those employees who succeeded in the suit and the petitioner was placed below them. It appears that thereafter an order dated 21st December, 1976 was passed by the Divisional Office at Bhavnagar, withdrawing the benefits of proforma fixation granted to the petitioner in the year 1962; and by the impugned order dated 7th September, 1977, an amount of Rs. 5,777.40 ps. was ordered to be recovered from the petitioner in the manner laid down therein. Being aggrieved by the said recovery order the petitioner has filed this petition and challenged the order.
4. The contention of the learned Advocate appearing on behalf of the petitioner is that the petitioner was not only promoted to the higher cadre of Junior Draftsman in April, 1961, treating those persons of the civil suit as junior to him, but the petitioner also received two further promotions to the higher posts of Junior Estimator and Senior Estimator and throughout fifteen years the petitioner has worked on those posts and discharged his duties as Junior Draftsman, Junior Estimator and Senior Estimator respectively. It is not disputed by the Railway Administration that the petitioner was promoted to the respective higher cadres by the orders passed by the competent authority; that he has worked on those promotional posts, discharged his duties, taken responsibilities of those posts and received salary available to those posts. Therefore, the impugned order passed by the Railway Administration for recovery of the difference of salary is arbitrary, discriminatory and illegal, according to the petitioner and he prays for appropriate writ to quash and set aside the said order.
5. The learned counsel appearing on behalf of the petitioner states that even on the principle of quantum meruit the petitioner is entitled to the salary of that post on which he has actually worked though ultimately his promotional order may be found not strictly in accordance with the rule. The petitioner has further stated that the Railway having promoted the petitioner after rejecting the objections of the alleged junior persons and having taken work from the petitioner and paid salary, is estopped from contending that the payment has been wrongly made. On the aforesaid contentions, let me now examine the argument raised by the petitioner.
6. It is no doubt true that the petitioner was promoted by orders passed by the competent authority and the petitioner has worked on the respective promotional posts and has been paid salary earmarked for those posts. It is a settled principle of law of contract that once a person has worked on a post he is entitled to the wages agreed upon, though the contract may not be strictly legal or may not be strictly enforceable on account of procedural irregularities. This principle is known as quantum meruit. This learned counsel appearing on behalf of the Railway could not say as to why the principle of quantum meruit is not applicable in such a case. It is not out of place to mention here that this principle has been accepted in several service laws and one of such service laws is Bombay Civil Service Rules 57-A. I do not propose to say that this rule is applicable to the railway employees. I am quoting this rule only with a view to show that this sound principle of law of contract has been recognised by the rules framed by the then Bombay Government and continued by the Government of Gujarat, which reads as under :
'57-A (i) Notwithstanding the provisions contained in these rules, the pay of a Government servant whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, i.e., incorrect seniority, failure to apply any relevant rules or orders correctly shall be regulated in accordance with any general or special orders issued by the Government in this behalf.
(ii) When any rule or order regulating pay is made with retrospective effect, the pay of a Government servant affected by such order or rule, shall, be fixed notionally as if the rule, order were applicable in his case but the Government servant concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances.'
According to my opinion this rule is well recognised. When service is taken from an employee on a higher post, though his appointment may not be strictly regular, he cannot be deprived of the salary of such promotional post. Wages or salary is the condition of service qua the said promotional post. One cannot put the clock back; though the employer may revert the concerned employee and stop making further payment. According to my opinion, so far as the recovery is concerned it would be unconscionable and opposed to all the canons of justice to ask such servants who have discharged higher duties and responsibilities to refund the amount of wages attached to the said post.
7. The concept of service has its foundation in a contract. Originally all services are the outcome of a contract between the employer and the employee; no doubt, the Government servants acquire status and their condition of service is governed by rules that may be enacted from time to time. Even then it cannot be said that a person who has been promoted though irregularly, and has discharged his duties on the promotional post he is not entitled to the salaries attached to the said post because under the Rule an employee discharging duties even in officiating, temporary or probationary capacity is entitled to salaries fixed for that post.
8. The learned counsel appearing on behalf of the Railway could not point out any provision whether in such circumstances the Railway Administration has any power to recover the wages paid to an employee who has been promoted by the Railway and has actually discharged his duties and received the salary, or the power given by any statutory rules or law for passing the impugned order. Since the impugned order is not supported by any authority of law the same cannot be enforced against the petitioner. The impugned order admittedly affects the petitioner prejudicially and, therefore, under the well established principles of natural justice the petitioner must be heard before such offending order is passed against the petitioner. The learned counsel appearing on behalf of the petitioner says that except Annexure-B and C he has not received any notice nor has he been heard on this point. The order is, therefore, contrary to and violative of the well settled principles of natural justice and is void and cannot be enforced against the petitioner. Therefore, the petition shall have to be allowed and the petitioner is entitled to the relief prayed for.
9. I, therefore, quash and set aside both the impugned orders at Annexure-B and C dated 21st December, 1976 and 7th September, 1977 respectively. If any amount is deducted or recovered from the petitioner in pursuance of the said orders the same shall be returned to the petitioner. In the result the petition is allowed. Rule is made absolute with no order as to costs.