S. Ramachandra Iyer, C.J.
1. This appeal raises a question of limitation. The facts necessary for a due consideration of that question are these. The respondent was employed as a Sub-Inspector of Police at Orathanad in Tan-jore Dt. till 6-11-1948, on which date seven chargeg-of corruption were framed against him by the appropriate authority and he was placed under suspension. As a result of the enquiry that followed the charges were held proved and the Deputy Inspector General of Police passed the order dated 9-4-1950 dismissing him from service. After exhausting the remedies available to him by way of appeal to the Inspector General of Police and a memorial to the Government, both of which proved futile, the respondent initiated proceedings in this Court under Article 226 of the Constitution. Initially that met with no success as the petition (W. P. No. 844 of 1951) as well as an appeal from the judgment therein (W. A. No. 51 of 1955) were dismissed. The order in the appeal was passed on 1-8-1955. Sometime later, the respondent brought to the notice of the Court by means of a review petition that the officer who submitted the report on the charges did not have the necessary jurisdiction. This Court granted a review of its judgment in the writ appeal as a result of which the order of dismissal was quashed. It may be mentioned that the quashing of the order terminating the services of the respondent was not the result of exoneration of the charges laid against him, but purely on the ground that the order was vitiated by lack of jurisdiction in the particular authority that submitted the report. The judgment of this Court on the review petition was rendered on 22-4-1957. The Government then passed an order reinstating the respondent in service. But the respondent could not join duty forthwith owing to an intervening order of the Government which however was subsequently cancelled. He did so on 11-7-1957.
The charges originally laid against him which were pending were finally dropped on 7-6-1955. By that time the respondent had reached the age of superannuation and he retired from service on 31-10-1957. He was not, however, paid his salary for the period between 6-11-1948, when he was placed under suspension at the commencement of the enquiry and 11-7-1957, when he rejoined duty. The Inspector General of Police, informed him that the period in question would be treated as leave without pay and declined to grant him any salary. That order was challenged in this Court by means of W. P. No. 126 of 1959. That petition was dismissed. An appeal therefrom also failed. But the Court left open the question whether the respondent could resort to any other remedy under the law to recover the emoluments he had lost. The respondent then filed the suit out of which this appeal arises on 8-6-1960, claiming the arrears of salary, dearness allowance and house rent allowance after deducting therefrom the subsistence allowance paid to him by the Government. He also included in his claim the interest on the amounts due.
2. It is unnecessary to refer to the various grounds on which the claim was resisted as the only point argued before us by the learned Government Pleader on behalf of the appellant related to limitation. The learned District Judge decreed the claim in part by granting the respondent a decree for Rs. 12,398.40 nP. the arrears of basic salary, and dismissed his claim in regard to the dearness allowance, house rent allowance etc. The State Government has now filed the appeal against that decree. The respondent has followed it up with a memorandum of cross objections claiming the dearness allowance and also the interest on the plaint claim which had been disallowed by the lower Court.
3. It is beyond question that the respondent had the right to institute the suit for recovery oi arrears of salary as he had been dismissed illegally. A claim for salary by a public servant against the Government will be governed by Article 102 of the Limitation Act notwithstanding the fact that the- provision is expressed as one 'for recovery of wages'. That Article 102 will apply to such a case has been held in Punjab Province v. Tarachand, AIR 1947 FC 23 : 1947 2 MLJ 389. That decision has been accepted by the Sup-reme Court in Madhav Laxman v. State of Mysore, : 1SCR886 . The Article provides for a period of three years from when the salary accrues due. Normally the salary for every month will be payable at the beginning of the next month. But where a public servant had been dismissed or removed, his pay and allowance would cease from the date of such dismissal or removal. That is what is provided in F. R. 52. The question then will arise as to when in such cases, that is, where there has been a dismissal or removal which has been later on set aside as a result of subsequent proceedings the right to recover arrears of salary will accrue or arise. In neither of the two cases cited above was that question raised or considered.
4. In Union of India v. Akbar Sheriff, : (1961)ILLJ615Mad it has been held that so long as the dismissal order was in force against the plaintiff, he had no right to claim the salary and it was only after reinstatement that he could sue for recovery of salary for the period for which that dismissal was in force. Learned Government Pleader has challenged the correctness of this decision contending that it is inconsistent with the subsequent decision of the Supreme Court in : 1SCR886 . We shall consider that contention after a reference to the third column of Article 102.
5. The terminus a quo for a suit under that provision is the accrual of the salary. In other words, the cause of action is not any fixed point of time (e. g., on the 1st of the succeeding month) but when it accrues. By reason of F. R. 52 the right to salary ceases the moment an order for dismissal or removal is made. That is to say, the salary though payable prior to such dismissal at the beginning of next month, ceases to be so after the dismissal and it would not be open to the employee to recover the salary earned without having the order of dismissal set aside. The learned Government pleader however contended that F. R. 52 would disentitle an aggrieved public servant from recovering salary only in eases where the dismissal is set aside in a departmental appeal for reasons other than the invalidity of the order of dismissal, but where the order of dismissal is void ab initio like the one passed contravening the rules of natural justice or without jurisdiction, the case will be one where the public servant had not been lawfully dismissed from service and he should therefore be deemed to be in service entitled to salary as if no order of dismissal had been passed against him. In such a case it is contended that he would have the right to recover the salary as and when it accrued and that limitation for the recovery of arrears would be the same as in the case of a public servant who is in office. We are, however, unable to appreciate the distinction in this regard between the setting aside of an order of dismissal of a public servant for a mere irregularity or misappreciation of evidence by the departmental authorities and a case of more substantial error like an error of jurisdiction when set aside by a Civil Court. The only argument in support of the contention is that in the latter case, that is, where the disciplinary action taken was beyond the jurisdiction of the punishing authority, the concerned public servant is deemed to have been in actual service as the order of dismissal would have no legal existence.
6. Learned Government Pleader recognises that this is a mere fiction and does not represent the actualities. But he relies on the following observation of Lord Asquith in East End Dwellings Co., Ltd. v. Finsbury Borough Council, 1952 AC 109, which has been cited with approval in Ven-katachalam v. Bombay Dyeing and Mfg. Co., Ltd., : 34ITR143(SC) :
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it .....The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
It is argued that once the order of dismissal of the respondent is found to be invalid, one must imagine that he was in service right through without interruption and as a logical consequence of that fiction, the salary due to him must be held to have accrued every month. There is a fallacy in the argument. The fiction that a person who had been illegally dismissed continues to be in service, though one in law, is not a statutory fiction to warrant the application of the rule stated above. Again the purpose of the fiction is merely to regard a public servant as if he had not been legally removed or dismissed. But that cannot necessarily justify the importation of another fiction, namely, that while he was in such fictitious service, his salary also accrued every month. No principle of law warrants the second fiction. As we said, the terms of F. R. 52 are clear and no public servant who had been dismissed albeit only by an invalid order can ask the Government to pay him his salary. His right to it will flow only when the order of dismissal has been set aside. We are also of opinion that no distinction can exist between an irregular and improper order which had been set aside by the departmental authorities and one declared to be invalid by a Civil Court so far as this matter is concerned. It is true that in AIR 1947 FC 23, the Federal Court while applying Article 102 to a claim for arrears of salary of a dismissed public servant whose dismissal was held to be invalid, upheld the decision of the High Court only in respect of such period of service as fell within three years immediately preceding the institution of the suit. But the Applicability of F. R. 52 was not considered in that case. : 1SCR886 was not a case in which F. R. 52 prevented the accrual of salary, there the Government servant had been reverted from an officiating post to his substantive post resulting in loss of seniority in that post. Such reversion was later held to be one by way of punishment and the procedure under Article 311 of the Constitution not having been followed it was held to be invalid, The only point argued in that case was whether the salary due to the Government servant would come within Article 102 of the Limitation Act and that question was answered in the affirmative.
7. In a later case before the Supreme Court reported in Davendra Pratap v. State of Uttar Pradesh, : (1962)ILLJ266SC , the claim by a public servant whose dismissal had subsequently been set aside by a decree of Court was allowed without any question being raised as to its being barred by Article 102. We are therefore of opinion that in the case of the dismissal of a public servant which has been subsequently set aside as in the present case, the right to recover arrears of salary would accrue only when that order of dismissal has been set aside either in departmental appeal or by a Civil Court. Viewed in that light, the instant claim must be held to be in time. The appeal therefore fails.
8. The memorandum of cross-objections which relates to the payment of dearness allowance is sought to be supported by the decision of the Supreme Court in : (1962)ILLJ266SC . But we find from paragraph 9 of the judgment of the learned trial Judge that the respondent's advocate conceded that he could not press the portion of his client's claim in regard to the dearness allowance. It is not stated in the memorandum of cross-obfections that the advocate did not so concede. We are therefore unable to entertain the memorandum of cross-objections in relation to the claim for dearness allowance as the matter had been conceded before the lower Court.
9. Interest has been claimed only by way of damages. The respondent will be entitled to the same from the date of demand on the amount of arrears of basic salary.
10. The result is that the appeal will be dismissed with costs. The memorandum of cross-ojections will stand allowed in part. There will be no order as to costs. The respondent will pay the court-fee due to Government on the memorandum of cross-objections.