Jagat Narayan, J.
1. This application is directed against an appellate order of the District Judge under the Payment of Wages Act. It purported to be under Section 115, Civil Procedure Code and under Article 227 of the Constitution. It was held in Mewar Textile Mills, Bhilwara v. Girdharl Singh 1957 R.L.W. 77 : I.L.R. Raj. 1077 that the authority appointed under Section 15 of the Payment of Wages Act is not a Court within the meaning of the Civil Procedure Code and no revision lies against an appellate order passed under the Payment of Wages Act. This application has been entertained under Article 227 of the Constitution.
2. The facts necessary for the disposal of this application are these. The applicant Vishwa Deo, who is a graduate, was recruited as a Clerk in the Jodhpur Railway in 1938. He was in grade Rs. 55-3-85-E.B.-4-125-5-130, when as a result; of the recommendation of the Central Pay Commission, the railway board issued circular No. 49-CPC/Pet/32, dated 8 October 1949, the material portion of which runs as follows:
It has been represented to the board that clerks who were recruited with stipulation that the minimum qualifications for recruitment was a university degree have been placed in the prescribed scales of Rs. 55-130 and Rs. 80-160 instead of the scale Rs. 80-5-120-E.B.-8-200/0/2-220 recommended by the Civil Procedure Code. The Government of India have reviewed the position and have decided that clerks recruited with the stipulation of a minimum qualification of a university degree should be allowed the scale of Rs. 80-5-120-EB.-8-200/2-220 as personal to themselves. No separate cadre for the posts on the scale of Rs. 80-200 will be created and the granting of the scale as personal to the Incumbents win not affect their present seniority and promotions.
3. The applicant claimed that he was entitled to be treated as a clerk recruited with the Stipulation of a minimum qualification of a university degree. The claim was not allowed by the departmental officers. He made a representation to the higher authorities which was rejected. The Jodhpur Railway invited applications from graduates for the post of clerks by means of an advertisement inserted in the Jodhpur Government Gazette, dated 4 June 1948. The applicant had filed an applications for being recruited as a clerk on 1 June 1938 before this advertisement was published. His case is that he was subjected to a written test along with other candidates who had filed applications in pursuance of the advertisement appearing in the Jodhpur Gazette, dated 4 June 1938 and was selected as a graduate clerk under that advertisement. As the departmental officers did not accept his claim, he filed a representation to the higher authorities which was rejected in 1956. Thereafter he preferred a claim under Section 15 of the Payment of Wages Act, 1936, alleging that he was entitled to get wages In the scale of Rs. 80-5-120-E.B.-8-200/0/2-220. The claim was opposed by the railway. The Authority under the Payment of Wages Act went into the question as to whether the applicant was or was not recruited a graduate clerk in 1938 and found in his favour. The claim was accordingly allowed. Against that order the railway preferred an appeal to the District Judge under Section 17 of the Payment of Wages Act. Reliance was placed on the decision of the Supreme Court in Costa (A.V.D.) v. Patel (B.C.) 1955--I L.L.J. 363. The learned District Judge held that the decision was not applicable to the facts of the present case and dismissed the appeal. Against that order to present application has been filed.
4. Having heard the learned Counsel for the parties, I am satisfied that the decision in Costa (A.V.D.) case 1955--I L.L.J. 363 (supra) is applicable to the facts of the present case. The applicant in that case was a casual labour employed in the railway. When twenty posts were made permanent in the grade of Rs. 55-3-85-4-125-5-130, he claimed that he was entitled to be made permanent in one of these posts. He was however not promoted to any of these posts and some other persons junior to him were promoted. He filed a claim under Section 15 of the Payment of Wages Act. The authority decided that be was entitled to be on the scale of Rs. 55-130. Against the order of the authority, the railway moved the High Court by an application under Article. 226 of the Constitution for quashing the order on the ground that it was beyond Jurisdiction. This application was rejected by a learned single Judge. A Letters Patent Appeal was then filed which was also rejected by a Division Bench of the Bombay High Court. A special appeal was preferred to the Supreme Court against the order of the Bombay High Court which was allowed.
5. The case was heard by four Judges, three of whom were of the opinion that the authority has exceeded its jurisdiction. Jagannadhadas, J. held in a dissenting judgment that it had not exceeded its jurisdiction.
6. Apart from the question of jurisdiction, the defense was two fold:
(1) The applicant being a daily-rated casual labourer charged to works, the directive of the railway board did not apply to him.
(2) Even if it applied to a person in the situation of the applicant, he was not entitled to be brought on to the monthly rates of pay in the skilled grade, without his previously passing a trade test to establish himself as skilled in his trade and he did not pass the test.
The judgment of Jagannadbadas, J. says that the authority proceeded on the view that the applicant was presently entitled to fee treated as a monthly-rated temporary employee and not as a daily-rated casual labour, by virtue of the directions of the railway board for the implementation of the scheme of classification and that therefore he was entitled to the appropriate highest wage.
7. The learned Judge observed:
We have not been shown any material to indicate that this higher classification of the applicant depended not on the mere application, of the classification scheme and the rules thereunder, to him but upon any determination by a departmental higher authority.
He was of the opinion that a claim to a higher potential wage cannot be brought in under the category of
claims arising out of deduction from the wages or delay in payment of the wages,
if that wage depended on the determination by a superior departmental or other authority as to whether or not a particular employee is entitled to the higher wage--a determination which involves the exercise of administrative judgment or discretion or certification, and which would, in such a situation, be a condition of the playability of the wage. Evidently this criterion was not accepted by the majority of the learned Judges who decided that case. They held that the claim could not be treated as a deduction and that the grievance of the applicant really was that he had not been paid wages on the scale to which he claimed that he was entitled. This, they held, was beyond the scope of the Payment of Wages Act. It was observed that if the applicant had been on the cadre of monthly wages and If the railway had withheld his rise in wages to which he was automatically entitled, without any orders of his superior officers, he might justly have claimed the redress of his grievance from the authority under the Act, as it would have amounted to an under payment:
But in the present case, on the case as made on behalf of the applicant, orders of the superior officers were necessary to upgrade him from a dally wage earner to a higher cadre. The authority under the Act has not been empowered under Section 15 to make any such direction to chose superior officers. The railway is responsible to pay the applicant only such wages as are shown in the relevant register of wages presumably maintained by the department under the provisions of the Act, but it cannot be directed to pay the applicant higher wages on the determination by the authority that) he should have been placed on the monthly wages scheme.
In the present case the matter as to whether or not the applicant was a clerk recruited. with the stipulation of a minimum qualification of a university degree required determination by a superior officer before he could be entitled to draw pay In the scale of Rs. 80--220. In view of the majority decision In the above Supreme Court case, this is beyond the scope of the Payment of Wages Act. I accordingly hold that the decision of the authority which was confirmed on appeal by the District Judge is beyond jurisdiction. I accordingly set aside the decisions of both the Courts below.
8. In the circumstances of the case, I direct that parties shall bear their own costs.