P.B. Mukharji, C.J.
1. I have read the judgment about to be delivered by my learned brother B. C. Mitra, J. I agree and concur with his views. I wish, however, to add the following observations.
2. The Government of West Bengal through its Home Secretary and others are the appellants. The petitioner in the trial Court is the respondent in this appeal. The respondent made an application for a writ under Article 226 of the Constitution and prayed for a writ of mandamus, certiorari and prohibition for quashing the order for reversion or reduction in rank dated the 9th July, 1954, and notified in the notification in the Calcutta Police Gazette dated the 19th July, 1954, to the subordinate rank of Inspector of Police, Calcutta.
3. The respondent was first appointed to the Calcutta Police on the 10th November, 1925, as a Sub-Inspector of Police.
In 1939, the petitioner commenced officiating as Inspector of the Calcutta Police. On the 27th February. 1942, the respondent's name was empanelled in the list of persons fit for being promoted as Assistant Commissioner of Police. On the 3rd May, 1943, he was confirmed in the cadre of Inspector of Police. On the 7th May, 1948. he was appointed to act as Assistant Commissioner of Police. On the 22nd June. 1949, the respondent was declared to have passed with distinction the qualifying examination for promotion as Assistant Commissioner of Police and his name was included on the 8th February, 1952, by the Selection Board in the list of persons fit for confirmation in the rank of Assistant Commissioner of Police. Thereafter he was posted to the Bengal Police on the 30th January. 1954, to act as the Deputy Superintendent of Police. Enforcement Branch. Midnapore. The respondent joined the post as temporary Deputy Superintendent of Police at Midnapore on the 10th February, 1954. On the 9th July, 1954, this order reverting him to the substantive post of the Inspector of Calcutta Police was made.
4. On the 24th July, 1954, the Government wrote a letter to the respondent striking him off from the list of Inspectors fit for promotion to the rank of Assistant Commissioner of Police. On the 17th November. 1954, the respondent submitted a memorial to the Home Minister for reconsideration of the matter. Thereafter on the 4th of January. 1955, the respondent moved this Court challenging the validity of the said order of reversion dated the 9th July, 1954, and obtained the Rule. On the 1st January, 1958, the petitioner retired from service in due course. On the 7th June, 1963, this Rule was made absolute directing the issue of a writ of certiorari quashing the impugned order and a Writ of Mandamus directing the appellants not to give effect to this order.
5. The appellants thereafter in 1963 filed the present appeal.
6. The respondent's petition under Article 226 of the Constitution is beset with many difficulties. The obvious difficulty, in my view, arises from the following grounds:--
it is said in the judgment under appeal as follows:--
'Though it has not been contended on behalf of the respondents that the petition should fail on the ground that the petitioner has since retired from service under the respondents T should mention that the petition has not been rendered meaningless or infructuous by reason of the retirement of the petitioner because if the impugned order be quashed, he would get relief in respect of arrears of pay and pension on the footing that he has never been reverted from the post of Dy. Supdt., West Bengal Police. In this respect. I would like to refer to the observations of the DivisionBench in Rabindra v. General Manager, (1955) 59 Cal WN 859 at p. 869'.
7. The point that arises is that the main relief that the respondent sought in the petition became inappropriate when the judgment under appeal was delivered. He prayed for a writ challenging the order of the 9th July, 1954, as notified in the Police Gazette dated the 19th July, 1954, but then he having retired in the meantime, the question of wril has become useless. When he made the petition on the 4ih January, 1955, he had three more years to go and the relief that he claimed in the petition was in order. But then he retired on the 1st January, 1958, in due course. After retirement, he cannot claim in the form that he has prayed. When the Rule was being heard in 1963 and when the judgment was delivered on the 7th June, 1963, the Rule had become infructuous. There was no Rule praying for arrears of pay and salary and pensions. The respondent should have amended the petition, for the learned Judge said that the relief in respect of arrears of pay and pensions was claimed on the footing that he was never reverted from the post of Deputy Superintendent of West Bengal Police. But not having done so, I do not know how such a relief can be given to him today from 1958 until 1972 at the dale of hearing in this Court. In the appeal, the respondent never look any steps to amend the petition. A petition for amendment was filed in this Court when the hearing of the appeal was proceeding and when we had indicated that this was the main difficulty of the respondent.
8. The judgment under appeal has relied on two main decisions. The first case on which the learned Judge relied on was Dincshwar Bhattacharya v. Chief Commercial Supdt., Eastern Railway, reported in : AIR1960Cal209 . But it was overruled by the Supreme Court in : 3SCR550 . The second case on which the learned Judge relied on was Dhajadhari Dutta v. Union of India, : (1958)IILLJ392Cal , which again was overruled by the Court of Appeal in the decision reported in State of West Bengal v. Dhajadhari Dutta, : (1968)ILLJ633Cal . There it was held that the order of reversion from the officiating post to the substantive post cannot be vitiated on the ground that the State Government acted on the advice of the ad hoc Committee in that case. The State Government is the competent authority for making appointment to the post of Superintendent of Police which is a cadre post in the Indian Poliee Service. Therefore, if the appointing authority the State Government is competent to pass such an order of reversion, so long as the Government is the appointing authority the question how it formed its own mind by consulting the ad hoc committee cannot be relevant. When a person, who was officiating at the higher rank, has been reverted to the substantive post without giving him an opportunity to beheard, such a reversion is neither demotion, nor reduction in rank nor a penalty; because the very notion of a person officiating implies with it that he has no legal right to the post. It was also staled by the Supreme Court in Shitla Sahai Srivastava v. General Manager. North Eastern Railway, : (1966)IILLJ755SC , that losing some places in seniority list is not tantamount to reduction in rank within the meaning of Article 311(2) of the Constitution of India. It was held that the decision reported in : AIR1960Cal209 , has been overruled by the decision of the Supreme Court in the High Court, Calcutta v. Amal Kumar Roy. : 1SCR437 .
9. The position, therefore, is that that these two cases which were the foundation of the judgment under appeal can no longer be regarded as an authority for coming to the decision to which the learned Judge came. The whole point in this appeal is that the main and the only relief has become inappropriate. Only its consequential repercussions are under review, namely, whether the respondent would get any relief in respect of arrears of pay and pension on the footing that he has never been reverted from the post of Deputy Superintendent, West Bengal Police.
10. Now, here comes the second difficulty of the respondent. A claim for money is not usually the subject-matter of a writ under Article 226 of the Constitution. But whether there can be made a claim under Article 226 of the Constitution for money or not, there is an insuperable difficulty on the way of the respondent. It is obvious here that the whole claim is barred by limitation. It is barred under Article 7 of the Limitation Act of 1963. When a claim is obviously barred by limitation, no writ would issue to claim a barred debt. Sec E. G. Barsay v. State of Bombay, : 1961CriLJ828 . The principle of granting refund of tax may be properly a subject-matter under Article 226 in some cases and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax. Therefore, the decision of Burmah Construction Co. v. State of Orissa, reported in : AIR1962SC1320 , does not apply. The Supreme Court held there that the order for payment of money can be made under Article 226 to enforce a statutory obligation. But there is no statutory obligation in this case. See also Suganmal v. State of Madhya Pradesh, : 56ITR84(SC) . Besides this being a case of an officiating appointment, Dhingra's case. Parshotam Lal Dhingra v. Union of India. : (1958)ILLJ544SC , in my view, has no application.
11. The Supreme Court decision in : 3SCR550 , in my view, is more appropriate to the instant appeal. That Supreme Court decision laid down that reversion within 5 years on administrative grounds of an officiating Superintendent of Police (whose name was included in List 2 of Indian Police Service Scheme) to his substantive post, assuming the Scheme provisions had the effect of statutory rules and regulations, does not amount to 'punishment'. Following that decision, it seems to me that this appeal has to be allowed.
12. The other point that was argued was on the basis of Article 166 of the Constitution of India where it is said that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor and the orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Further, the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation amongst Ministers of the said business with respect to which the Governor is by or under the Constitution required to act in his discretion.
13. It was the argument of the respondent that this order was not expressed in the name of the Governor. But here again Article 166 is directory and not mandatory as was held by the Supreme Court in Dattatraya Moreshwar v. The State of Bombay, : 1952CriLJ955 ; P. Joseph John v. State of Travancore-Cochin. : (1956)ILLJ235SC , and State of Rajasthan v. Sripal Jain, : 1963CriLJ347 . This, again, is a point which has become irrelevant, because the respondent has retired in 1958 in due course. I, therefore, do not think that it is profitable to refer to the Rules of Business and to other provisions in Article 166(2) and Article 166(3) of the Constitution of India.
14. On behalf of the respondent, the next anrumcnt is that there is a stigma in the order of reversion. Tt was argued that it was a strirma of penalty. The actual order reverting the respondent to his substantive rank of the Inspector of Police. Calcutta, will be found from the copy of the letter dated the 9th July, 1954, from the Under Secretary to the Government of West Bengal. Home (G. A.) Department, to the Commissioner of Police, Calcutta, which was as follows:
'Government have carefully considered the case of Shri Ram Chandra Chowdhury, Officiating Assistant Commissioner of Police, Calcutta, now temporarily employed as Deputy Superintendent of Police. Enforcement Branch, Midnapore, for continuance in that rank on an officiating basis. The Public Service Commission. West Bengal, who were consulted in the matter have advised that Shri Ram Chowdhury is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis and that he should be reverted to his substantive rank.
I am to add that Government have accepted the recommendation of the commission and have decided that Shri Choudhury should be reverted to his substantive rank of Inspector of Police.'
15. The Commissioner's order dated the 19th July, 1954, which followed is under these terms:--
'Government have carefully considered the case of Shri Ram Chandra Chowdhury, Officiating Assistant Commissioner of Police, Calcutta now temporarily employed as Dy. Superintendent of Police, Enforcement Branch, Midnapore, for continuance in that rank on an officiating basis in consultation with the Public Service Commission, West Bengal, and decided that Sri Chowdhury is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis and he should be reverted to his substantive rank of Inspector of Police.
Shri Chowdhury is accordingly reverted to his substantive post of Inspector of Police With effect from 9-7-54.
His name is taken off list No. 1 of Inspectors fit for promotion to the rank of Assistant Commissioner.'
16. It is the allegation of the respondent that his confidential character report and roll was taken into consideration and the remarks against him were not communicated to him and as such the order is vitiated.
17. The respondent gave his previous record, but in the affidavit-in-opposition on behalf of the Government affirmed by Suhas Ranjan Das, Under Secretary to the Government of West Bengal, Home Department, he stated that-
'The statements regarding rewards and punishments, as set out in part 1 of the Schedule annexed to the petition and marked 'A' suffer from a material omission and an extract copy of which from the petitioner's service book is set out as follows:-- 'A thoroughly unscrupulous, dishonest and unreliable officer. Has again been reduced for another 3 months until 14-7-36 for submitting false reports. Has also been transferred to North Town.'
Besides, the following fact appears from the affidavit-in-opposition. The Under Secretary. Home Department, says that the respondent's appointment as an officiating Deputy Superintendent of Police, Midnapore, was equivalent in rank and status to that of the officiating Assistant Commissioner of Police, Calcutta. Thereafter, in paragraph 12 of the affidavit-in-opposition, the case of the Government is put as follows:--
The respondent had been reverted to his substantive post of Inspector of Police in accordance with the recommendation of the Public Service Commission which had been accepted by the Government. The respondent was appointed to officiate as an Assistant Commissioner of Police in May1948 and, therefore, it was not considered necessary to consult the Public Service Commission as the said officiating appointment was not considered likely at that time to continue for more than a year; but subsequently, however, it happened that his appointment as such continued beyond one year in one chain of vacancy or the other. In November 1953, the Public Service Commission suggested that a scrutiny should be made in respect of all temporary and/or officiating appointments in the rank of Assistant Commissioners of Police which had been made without consultation with the Public Service Commission. The respondent's case along with those of others similarly appointed were accordingly referred to the Public Service Commission, West Bengal, for their opinion and/or recommendation as to whether the qualification of these officers were sufficient and also whether their records of service proved them to have the requisite character and ability for appointment as Assistant Commissioners of Police. By the end of January 1954, the Public Service Commission, West Bengal, advised that it was unable to agree to the officiating appointment of two officers including the respondent and recommended that he should be reverted to the substantive rank of Inspector of Police. The recommendation was accepted by the Government.
18. There was also an affidavit by Shri S. N. Roy, the then Chief Secretary to the Government of West Bengal. He affirmed on the 18th February, 1959, that he himself and the Home Secretary considered the advice of the Public Service Commission and that advice had been accepted by the Government. The Rules of Business in Part II being the orders of the Chief Secretary made under Standing Order No. 4 of the Standing Orders made by the Minister-in-Charge under Rule 15 of the Rules of Business may be referred to which gives to the Secretary of the relative department that 'the formulation of policy or departure from accepted policy are submitted to me before disposal, cases in the different branches of the Home Department listed in the column 1 below shall be disposed of, or when so required by any rule or order shall be submitted for orders of the Minister-in-charge, by, or under the orders of the officers respectively specified in column 2', Column 2 mentions the Secretary's name and Column 1 mentions the name of Police Branch, Political Branch. That seems to have made the order inviolable. AH the questions under Article 166, therefore, are not only irrelevant but also satisfied.
19. The Public Service Commission was quite justified in making the recommendation under the provisions of the Constitution of India in those circumstances. Scanning Article 320 of the Constitution, it seems to us to be clear that the Public Ser-vice Commission has to be consulted on the principles to be followed in making appointments to Civil Services and posts and in making promotions or transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers. This is what the Public Service Commission has done in this case and they have advised that the respondent was not suitable. Taking an overall view of Article 320, we are satisfied that the Public Service Commission and the Government in this case acted reasonably well within the ambit of Article 320 of the Constitution.
20. Under Section 3 of the West Bengal Police Act, 1952, the action of the Government in employing him as Deputy Superintendent of Police temporarily in place of officiating Assistant Commissioner of Police, Calcutta, was quite justified. It provides:--
'It shall be lawful for the State Government to employ members of the police force of Calcutta or the suburbs of Calcutta in any general police district, and members of any general police district in Calcutta or the suburbs of Calcutta; and while so employed every such member of a police force shall be deemed to be a member of the police force of the area in which he is so employed and to be vested with the powers, functions and privileges, and to be subject to liabilities of a member of the police force of that area.'
21. The fact that it is a deeming provision shows clearly that he continued in the cadre of the Calcutta Police but temporarily employed as Deputy Superintendent of Police, Midnapore.
22. The confidential records and the Character Roll are intended to apprise the administration of the fitness of the officiating promotee. There is no legal right to a promotion. The administration is free to exercise its judgment on the basis of confidential report in the Character Rolls. Besides, there is no stigma and no penalty in this case. The Confidential Roll said that he was 'unsuitable' for the promotion. That is not a stigma, as was decided in the Supreme Court decision in Slate of Bombay v. F. A. Abraham, : (1963)IILLJ422SC . After all the promoting authorities should be judging whether he is suitable or unsuitable for the promotion. In saying that there is no stigma or penalty, see also in this connection the Division Bench decision of this Court in Mukunda Murari Shaw v. K. Sen. (A. F. O. O. No. 130 of 1970, delivered on the 5-3-1972 (Cal.)). There is a charge of mala fides. But it is only made as a submission. That is not enough to support a petition under Article 226 of the Constitution on a charge of mala fides. See C. S. Rowjee v. State of Andhra Pradesh, : 6SCR330
23. With these observations, I allow the appeal, set aside the judgment andorder appealed from and discharge the Rule.
24. There will be no order as to costs.
25. The application for amendment which was filed during the hearing of the appeal is also dismissed. The case of Cha-ran Das v. Amir Khan, 47 Ind App 255 = (AIR 1921 PC 50), has no application to the facts of this case.
B.C. Mitra, J.
26. The respondent entered into service as a Sub-Inspector in the Calcutta Police from November 10, 1925, and was promoted to the rank of Inspector of Police in 1939. He was confirmed in that rank on May 3, 1943. He was later selected by a Selection Board to officiate as Assistant Commissioner of Police and was also placed on the list of Inspectors fit for promotion to the rank of Assistant Commissioner. He was appointed in an officiating capacity to the post of Assistant Commissioner of Police on May 7, 1948. On January 30, 1954, he was appointed to act as Deputy Superintendent of Police, Enforcement Branch, Midnapore, and he joined that post on February 10, 1954.
27. On July 24, 1954, the respondent was informed by a letter that he had been reverted to his substantive post of Inspector of Police with effect from July 9, 1954, on the ground that he was unsuitable for promotion to the post of Assistant Commissioner, even in an officiating capacity. His name was also struck off from the list of Inspectors fit for promotion to the rank of Assistant Commissioner. He continued in the Police service until his retirement on January 1, 1958. Aggrieved by the order of reversion, the respondent obtained a Rule Nisi which was made absolute by a judgment and order dated June 7, 1963, against which this appeal has been preferred.
28. On July 9, 1954, the State Government made an order in which it was stated that the respondent's case was carefully considered for his continuance as officiating Assistant Commissioner of Police, Calcutta, and that the Public Service Commission was consulted, who advised that the respondent was unsuitable for promotion to the post of Assistant Commissioner of Police even on an officiating basis and should be reverted to his substantive rank. It was stated in the letter that the Government accepted the recommendation of the Public Service Commission and decided that the respondent should be reverted to his substantive rank of Inspector of Police. Pursuant to the order of the State Government, the Commissioner of Police made an order on July 19, 1954, directing that the respondent should be reverted to his substantive post of Inspector of Police with effect from July 9, 1954. Although the order was made by the Commissioner on July 19, 1954, counsel for the respondentcontended that it was actually communicated to his client on July 24, 1954. A point was taken on behalf of the respondent that in so far the reversion was retrospective in its effect, as it was given effect to from July 9, 1954, the order of reversion was a penalty and Article 311(2) of the Constitution was attracted. In other words, it was argued that the order of reversion, assuming it to have been a valid order was actually communicated to the respondent on July 24, 1954, but effect was given to the same from an earlier date, namely, July 9, 1954. It was submitted that the respondent was deprived of the higher pay retrospectively from July 9, 1954, though it should have been given effect to only from the dale of communication, namely, July 24, 1954. In my view, there is a fallacy in this contention on behalf of the respondent. Jf the order of reversion is a valid order, the fact that the order was brought to the notice of the respondent on a day later than the date from which effect was intended to be given, to it, the loss of remuneration at the higher rate can be no ground for holding that the order is invalid. The loss of pay at the higher rate is only consequential to the order of reversion, and if such an order is valid the injury caused by loss of pay cannot be held to be a penalty so as to attract Article 311(2) of the Constitution. The second infirmity from which the contention on behalf of the respondent suffers, is that the State Government's order dated July 9, 1954, did not purport to give effect to the respondent's reversion retrospectively. There is nothing in that order to suggest that the order is to be given effect to from any particular date. The order for reversion is the order of the State Government and that order cannot be challenged on the ground that it seeks to give retrospective effect to the order of reversion.
29. The first point urged by Mr. Basak, Counsel for the appellants, was that the respondent had no right to the officiating post which he held, namely, the Deputy Superintendent of Police in the West Bengal Police or the post of Assistant Commissioner of Police in the Calcutta Police. It was argued that as the respondent had no right to that post, which he held in an officiating capacity, the order of reversion did not have the effect of reducing him in rank. The question of reduction in rank, it was argued, could arise only if the respondent had a right to the higher officiating rank to which he was appointed. In support of this contention Mr. Basak relied on a decision of the Supreme Court ATR 1958 SC 36. In that case, it was held that if a Government servant had a right to a particular rank his reduction from that rank would operate as a penalty, for he would then lose the emoluments and privileges of that rank, hut if he had no right to the particular rank his reduction from the officialing higher rank to his substantive rank would not ordinarily be a punishment. Mr. Basak relied on another decision of the Supreme Court, State of Uttar Pradesh v. Madan Mohan Nagar, : (1967)IILLJ63SC . In that case, a writ petition was filed for quashing an order of compulsory retirement. In the order of retirement, it was stated that the public servant had outlived his utility. It was held that the statement regarding utility, attached a stigma to the public servant as anyone who read the order would consider that there was something wrong with him or his capacity to work. It was held that the order was violative of Article 311(2) of the Constitution. We do not, however, see how this decision is of any assistance in this appeal, because the question before the Supreme Court was one of compulsory retirement and the question in this appeal is one of reversion from an officiating higher rank to a substantive rank of an employee. Mr. Basak also relied upon another decision of the Supreme Court T. N. Saksena v. The State of Madhya Pradesh, : (1976)IILLJ154SC . That was also a case of compulsory retirement of a public servant and it was held that where the order contained express words from which a stigma could be inferred, that order would amount to removal within the meaning of Article 311. But where there were no express words in the order itself that, it would throw any stigma on a government servant, the Court could not look into the background resulting in the passing of such order, in order to discover whether some kind of stigma could be inferred. This decision again is of little assistance in this appeal because the question involved in this case was one of compulsory retirement. The next case relied upon by Mr. Basak was R. Jeevaralnam v. State of Madras, : (1967)ILLJ391SC . Reliance was placed on this decision for the proposition that even if that portion of the order which gave retrospective effect to the order was held to be bad, the substantive order of reversion was severable and should be held to be good. In that case it was held that an order of dismissal with retrospective effect was, in substance, an order of dismissal as from the date of the order with the super-added direction that the order should operate retrospectively as from an anterior date and also that the two parts of the order were severable. Relying on this decision, it was argued that even if the order of the Commissioner of Police, giving effect to the order of reversion from an anterior date was held to be bad, the substantive order of reversion could not be challenged on the ground, namely, that effect was sought to be given to it retrospectively. The two portions of the order, namely, the order of reversion and the direction that it should be given effect to retrospectively, in our view, are sevcrable. It seems to us that this contention of Counsel for the appellant is well-founded. Reliance was also placed on another decision of the Supreme Court : (1966)IILLJ755SC . In that case, it was held that where a panel was prepared by the Selection Board, an employee, whose name was in the panel, did not acquire a right to the post which was to be filled up by persons whose names appeared in the panel and that the deletion of an employee's name did not attract the provisions of Article 311. It was further held that if a Civil servant had a right to a particular rank, then his reduction from that rank would operate as a penally, for he would then lose the emoluments and privileges of that rank, but if he had no right to the particular rank, his reduction from an officiating higher rank lo his substantive rank would not be a punishment. Mr. Basak also relied upon a decision of this Court, : (1968)ILLJ633Cal . In that case it was held that when a person who was officiating in a higher rank, had been reverted to his substantive post without giving him an opportunity of being heard, such a reversion was neither demotion nor reduction in rank, nor a penalty, because the very notion of a person officiating in a higher post implied that he had no legal right to that post. The next contention of Mr. Basak for the appellant was that the trial Court had relied on a decision of this Court, : AIR1960Cal209 , for the proposition that where a name had been removed from a panel maintained for promotion, the person whose name was so removed would be affected, so far as his future right of promotion was concerned, and therefore an opportunity of showing cause, as to why his name should not be struck off from the panel, should have been given to the person concerned. This finding and conclusion were overruled by the Supreme Court in : (1966)IILLJ755SC (supra). This question was gone into by the trial court in connection with the removal of the respondent's name from List II, i.e., the list of Inspectors considered fit to officiate in a higher post. Mr. Basak further contended that the trial Court relied upon a decision of Sinha, J., in : (1958)IILLJ392Cal in which it was held that the test which was to be applied in determining the question of the validity of an order of reversion was to find out if the civil servant's future chances of promotion were affected. This decision again was reversed on appeal by the Division Bench in : (1968)ILLJ633Cal . Mr. Basak submitted that the foundation of the trial Court's conclusion were the two decisions mentioned above, both of which were over-ruled on appeal. It seems to us that this contention on behalf of the appellant must be upheld. Removal of the name of a civil servant from a panel of list of persons fit for promotion has the same effect as an order that a person is not qualified to officiate in a higher post. An order that a person should not in future be appointed even in an officiating capacity to a higher post, causes no greater prejudice or injury to a civil servant than removal of his name froma fit list or a list of persons earmarked for promotion.
30. Mr. Basak also relied upon another decision of the Supreme Court, : (1963)IILLJ422SC , in which the question whether an order of reversion to a substantive post was a reduction in rank came up for consideration. It was held that a person officiating in a post had no right to hold the same for all times. He might have been given the officiating post as the permanent incumbent was on leave and when the permanent incumbent came back, the person officiating was to be reverted to the original post. It was also held that sometimes a person was given an officiating post to test his suitability to be made permanent, and that it was an implied term of the officiating appointment that, if he was found unsuitable, he would have to go back, and further that if the authorities found him unsuitable for the higher rank and then reverted him hack to his original lower rank, the action taken was in accordance with the terms on which the officiating post had been given. It was also held that such an order of reversion, was not a punishment and was not therefore a reduction in rank. In this case, the impugned order of the State Government states that the respondent was found unsuitable for promotion to the post of Assistant Commissioner of Police by the Public Service Commission even on an officiating basis. This advice of the Public Service Commission was accepted by the State Government. The order of reversion cannot, therefore in our view, be held to be a reduction in rank merely because the respondent was found unsuitable for the higher post even in an officiating capacity. It cannot, therefore, be held that the order of reversion amounts to a reduction In rank and is a penal order so as to attract Article 311(2) of the Consti-tution.
31. In our opinion, the Rule must be held to have become infructuous. On the day on which the judgment was pronounced by the trial Court, namely, June 7, 1963, the respondent had retired from service, the superannuation having taken place on and from January 1, 1958. The prayers in the petition, such as they arc, are all directed against the order of reversion. The first prayer is for a writ in the nature of cer-tiorari for quashing the order of reversion dated July 9, 1954, and the Gazette notification dated July 19, 1954. The second prayer is for a writ in the nature of prohibition, directing the appellants not to give effect to the order of reversion or reduction in rank. The third prayer is for a writ in the nature of mandamus, directing the appellants to recall or cancel orders dated January 30. 1954. The fourth prayer is also for a writ in the nature of mandamus directing the appellants to recall the order dated July 9. 1954, and to forbear from giving effect to the same. The fifth prayer is for an injunction, restraining the appellants fromgiving effect to the order dated July 9, 1954, and from taking any proceedings against the respondent pending disposal of the application. These are the different reliefs prayed for by the respondent in the writ petition and the Rule Nisi was issued with regard to these reliefs and none other. As the respondent retired from service on superannuation on January 1, 1958, issue of any writ or order cancelling, quashing and recalling the order of reversion would necessarily become infructuous. In our view, no writ or order can be issued under Article 226 of the Constitution which would plainly become infructuous and ineffective. No order, made by this Court in exercise of its writ jurisdiction, could restore the respondent to the officiating appointment from which he was reverted, after his retirement on superannuation. That was the position on the day when the trial Court delivered its judgment.
32. This question came up for consideration before a Bench of this Court in General Manager, Eastern Rly. v. Kshirode Chandra Khasmobis, : AIR1966Cal601 . In that case, a Railway employee made several unsuccessful attempts to have the date of his birth changed in the service records. He retired from service on October 19, 1956, though he claimed that according to his correct age he should have retired in February, 1958. Between the date of his retirement on October 19, 1956, and the date when, according to him, he should have retired, that is to say, February 19, 1958, no steps were taken by him. Thereafter on May 15, 1958, he obtained a Rule Nisi which was made absolute by the trial Court. The Division Bench allowed the appeal and set aside the order of the trial Court. My Lord the Chief Justice (P. B. Mukharji, J., as he then was) held that the petitioner having retired, both according to the date in the Railway records, and according to the date when he should have retired, it was beyond the power of the Court to grant him any effective relief, even if the Court was satisfied about the merits of the petitioner's case on age. It was observed:
'No discretion under Article 226 of the Constitution should be used in vain. Any writ in such a case will be in vain, because no writ or order can give effective remedy to the petitioner. A tendency is going up in India today to make all kinds of miscellaneous declarations under Article 226 of the Constitution, even when the writs are in vain. We are of opinion that Article 226 of the Constitution should not be used and was not intended to be used as a medium or means for declaratory orders or declaratory reliefs, declaring acts and orders invalid even though, no relief could be granted to the petitioner. The Court under Article 226 of the Constitution should not issue writs of consolation or writs propounding theories and theses. That is not the function, scope and purpose of Article 226 of the Constitution. For instance, in this case, there can be no writ to reinstate the peti-tioner into service any more. The only use which the petitioner would make of any declaration, if this Court chose to make, it will be to enable him to found a claim for salary and pension on the basis of the disputed period and sue upon it. For that purpose the petitioner could have filed a suit for wrongful and premature retirement. This Court is of the opinion that Article 226 of the Constitution should not be allowed to be abused for such collateral purpose to be utilised as a foundation for subsequent claims in future legal proceedings.'
These observations, in my view, are very ap-propriatc in the facts of this case. Admit0tedly, the respondent retired on superannuation, and any writ or order that this Court could issue would be altogether infructuous, as the respondent cannot be re-instated either to the post of Assistant Commissioner of Police of the Calcutta Police or to the post of Deputy Superintendent of Police of the West Bengal Police. In the petition, and the prayers, as framed, no relief has been asked for payment of arrears of salary on the higher scale, pension or gratuity. In our view, keeping in mind the dictum of the Division Bench quoted above, the writ proceedings could not be and should not be allowed to be utilised for a collateral purpose, namely, as the foundation for a claim for recovery of salary, pension and gratuity.
33. In course of the hearing of this appeal, Counsel for the respondent asked for leave to move an application for amending the petition. No such leave was granted. Yet an application was moved for amending the writ petition to enable the respondent to claim salary, pension, gratuity and other emoluments. The prayer for amendment cannot be granted for reasons hereinafter stated. As for the claim for pension and gratuity, there is no refusal on the part of the State Government to pay to the respondent such pension and gratuity as is due to him for his holding the substantive rank of Inspector of Police from which he retired. In our opinion, the Rule Nisi obtained by the respondent should not have been made absolute, as the respondent was no longer in service and had retired on superannuation.
34. Faced with this situation, Counsel for the respondent sought to rescue this appeal by contending that a large sum of money would be due to his client on account of arrears of salary being difference between the pay of an Inspector of Police and a Deputy Superintendent of Police. Apart from the question whether this Court could direct payment of arrears of salary, in exercise of its writ jurisdiction, there is no prayer for an order directing payment of money to the respondent. But even assuming there was a prayer, no order could be made on such a prayer as the claim for arrears of salary was plainly barred by the law of limitation. Counsel for the respondent realising the difficulty that there was no prayer,submitted that his client should be given leave to amend the petition. Such leave cannot be granted for several reasons. In the first place, the claim for recovery of arrears of salary is Ex-facie barred by limitation, and no order for amendment can be made for agitating a claim which is barred by limitation. It is to be remembered that an amendment of the petition would relate back to the date of the filing of the same. In the second place, the jurisdiction of this Court under Article 226 of the Constitution, cannot be invoked by a petitioner for recovery of arrears of salary. Orders for recovery of money can be made by this Court in exercise of its writ jurisdiction, but only in a limited class of cases, namely, where the statutory provision under which money was paid was declared by this Court to be void or where money lias been paid under orders which have been struck down. The third and the more formidable obstacle to the amendment of the petition, at this stage, is that an amendment relating to recovery of arrears of salary would be wholly beyond the terms of Rule Nisi which was made absolute by the trial Court. This Court sitting in appeal over the judgment and order by which the Rule Nisi Was made absolute, cannot, at this strige, enlarge the scope of the Rule Nisi to which a return has been filed by the appellants, so as to enable the respondent to agitate the question of recovery of his arrears of salary.
35. I will now turn to another contention of Mr. Banerjee that although no prayer has been made in the writ petition for arrears of salary and pension, as there is a prayer for such further and other reliefs as to this Court may seem fit and proper, the claim for arrears of pay and pension should be treated to have been duly raised and orders should also be made for recovery of the same. In support of this contention reliance was placed by Counsel for the respondent on a decision of the Supreme Court Satya Narain Singh v. District Engineer. P. W. D., Ballia, : AIR1962SC1161 . In that case the appellant was a lessee of a right to collect Tolls from persons, vehicles etc., crossing a river by public ferry. A notification was issued by the State Government which exempted vehicles crossing the river on public or District Board service. The Government also made an order that Railways motor vehicles would be exempted from payment of Tolls including the operational staff accompanying such vehicles on duty. The appellant claimed abatement of rent because of Tolls payable by the Government vehicles. It was found, however, that there was no prayer in the writ petition for an order that roadways buses which carried passengers and were used by the Government for carrying goods, were of a commercial undertaking, and therefore no exemption could be claimed for such buses. This praver for this relief was not in the petition and it was held that this relief could be granted as there was a prayer for furtheror other orders to which the appellant might be found to be entitled to. The facts, in this case, are entirely different from those with which we arc concerned in this appeal. What the respondent is contending, is that he should be allowed to raise the question of arrears of pay and pension, although no such prayer was made in the petition, because there is a prayer for such further and other reliefs. As we see it, the claim for arrears of pay and pension cannot be said to be the subject-matter of the writ petition and is altogether outside the scope of the petition in which the only challenge is to the order reverting the respondent to his substantive post of Inspector of Police, we cannot, therefore, hold that the respondent is entitled to raise the question of his claim to arrears of salary and pension on the ground that there is a prayer for further and other reliefs in the petition. Besides, it is to be noticed that this question was not raised before the trial Court and is sought to be raised for the first time in appeal.
36. Counsel for the respondent next raised another question, namely, that his client was appointed to the post of Deputy Superintendent of Police, which is a cadre post in the West Bengal Police, and since the order of reversion stated that he was being reverted from the post of officiating Assistant Commissioner of Police, Calcutta, the respondent was not affected by the order of reversion and continued to hold the post of Deputy Superintendent of Police. It is not necessary for us to go into this question as the respondent has ceased to be in service, either of the West Bengal Police or the Calcutta Police, upon his retirement. As the respondent has retired, it is futile to enter into a discussion whether the order of reversion affected him, as he was not holding the cadre post in the Calcutta Police.
37. It appears that the trial Court noticed the fact that at the time the judgment was delivered, the respondent had retired from service, but the learned Judge went on to hold that in spite of such retirement the writ petition had not been rendered meaningless by reason of the retirement of the respondent because, if the impugned order was quashed, the respondent would get relief in respect of arrears of pay and pension on the footing that he never reverted from the post of Deputy Superintendent, West Bengal Police. We are unable to agree with this view of the trial Court. The learn-ed Judge was clearly in error in not considering that on the day the judgment was delivered, the respondent's claim for arrears of pay and pension, assuming he had a valid and lawful claim, stood barred by the law of limitation. In the writ petition itself no relief was asked for, with regard to arrears of pay and pension. The trial Court was, therefore, not justified in holding that relief could be granted to the respondent in the writ petition, although he had retired from service. No grounds have been laid in thepetition for a claim for arrears of pay and pension. The Rule Nisi issued by the Court below did not call upon tne appellants (respondents in the writ petition) to show cause why the arrears of pay and pension should not be paid to the respondent. The claim for arrears of pay and pension, undoubtedly, involves an investigation into questions of fact which cannot be adjudicated upon in a summary proceeding, sueh as this. Counsel for the appellants strenuously denied and disputed the respondent's alleged claim for arrears of pay and pension. Furthermore, the writ proceedings cannot, in our view, be treated to he an action for adjudicating upon disputed questions of fact connected with recovery of money.
38. Before proceeding any further I should refer to one other matter which seems to me to be of some importance. The Rule Nisi was made absolute by the trial Court on June 7, 1963. The judgment and order, as it stands, do not enable the respondent to recover any money from the appellants for arrears of pay and pension, nor have the appellants been directed by the order to give any consequential relief to the respondent. Yet Counsel for respondent ad-mitted that no steps had been taken by the respondent for recovery of arrears of pay and pension. Almost 9 years have passed since the Rule was made absolute and no proceedings have yet been commenced by the respondent for obtaining any relief regarding his alleged claim for arrears of pay and pension. There is no order staying the opcral ion of the judgment and order dated June 7, 1963, and the respondent was not only at liberty to pursue his alleged claim further, but it was his duty to do so, assuming such a claim to be a valid claim. Quite apart from the question of limitation, this complete inaction for such a long period on the part of the respondent is a matter to be taken into consideration by this Court, in dealing with the question whether relief should be granted to the respondent in the writ jurisdiction of this Court. This indeed is a subsequent event, but this Court should take notice of this subsequent event in considering whether a discretionary relief under Article 226 of the Constitution should be granted to the respondent.
39. Mr. Banerjee relied upon a number of decisions to which I will now refer. Reliance was placed on a decision of the Supreme Court Debesh Chandra Das v. Union of India, : 1SCR220 . In that case the appellant held a post of the Secretary, Department of Social Security. He was asked to revert to the original post he held in the State of Assam, or to proceed on leave preparatory to retirement or to accept some lower post than that of the Secretary to the Government of India. The appellant was unwilling to accept the suggestion and made representations which were turned down and his services were placed at the disposal of the State of Assam. The appellant treated this to be a reduction in rank as thepay of a Secretary to the Government of India (I. C. S.) was Rs. 4,000/- and the highest pay in Assam (I. C. S.) was Rupeei 3,500/-. His contention was that there being no equal post in Assam, his reversion to the Assam Service meant a reduction, not only in his emoluments but also in his rank. It was also contended by him that he held a five years' tenure post and the tenure was to end on July 29, 1969, but was wrongly terminated before the expiry of 5 years. It was in these facts, that it was held that breaking into the appellant's tenure period close to its end, taken in conjunction with the alternatives given to him, demonstrated that the intention was to reduce him in rank by sheer pressure of denying him a Secretaryship. It was also held that the appellant's reversion by Government of India to a lower post was a reduction in rank, and that as Article 311(2) was not complied with, the order of reversion could not be sustained. This decision, to our mind, is of no assistance to the respondent in this case, as he was not holding a tenure post for a fixed term and he was not reverted to a lower post from a tenure post carrying a higher salary. Reliance was also placed by Mr. Banerjee on several other decisions namely : (1970)IILLJ514SC We do not think it necessary to deal with these decisions at length, having regard to the fact that the respondent is not entitled to any relief in the writ petition.
40. I will now briefly refer to some of the other decisions on which Mr. Basak relied in support of his contention that the respondent's claim is barred by limitation, and for that reason, no relief could be granted to the respondent in his writ petition. The first of these decisions was : AIR1962SC1320 . In that case, a firm executed several contracts for buildings, bridges etc. This firm was registered in the Orissa Sales Tax Act and was taxed in respect of sale of certain poods. On a writ petition filed by the firm, the High Court declared that the assessment of Sales Tax was not in accordance with law. Following the judgment of the Supreme Court in the State of Madras v. Gannon Dunkerley & Co. Ltd., : 1SCR379 , the High Court also directed the refund of tax paid, if recovery was not barred under Section 14 of the Orissa Sales Tax Act on the date of the filing of the application. The firm appealed to the Supreme Cottrt challenging the order in so far as its claim for refund, was partially declared to be barred by limitation under Section 14 of the Orissa Sales Tax Act. In dealing with the question of refund, the Supreme Court held that the High Court normally did not entertain a writ petition to enforce civil liability arising out of breach of contract or tort to pay an amount of money due to the claimant and it was for the aggrieved party to agitate the question in a civil suit. It was further held that an order for payment ofmoney might sometime be made in a writ petition against a State or its Officers to enforce statutory obligations. It was also held that such obligations could not be enforced without regard to the restrictions which had been imposed by the legislature. The next case relied upon by Counsel for the appellant, was also a decision of the Supreme Court, A. V. Venkateswaran v. Ram Chand Sobhraj Wadhwani, : 1983ECR2151D(SC) . In that case, it was held that if a petitioner has disabled himself from availing himself of the statutory remedy by his own default in not doing so, within the prescribed time, he could not be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour. The third decision relied on by Counsel for the appellants was also a decision of the Supreme Court Suganmal v. State of Madhya Pradesh, : 56ITR84(SC) . Tn that case, it was held lhat though the High Courts have power to pass any appropriate order in the exercise of powers under its writ jurisdiction, a petition solely praying for the issue of a writ of mandamus, directing refund of money illegally collected by the State as tax, was not ordinarily maintainable for the simple reason that a claim for such refund could be made in a suit against the authority which made the illegal collection, and in such a suit, it would be open to the State to raise all possible defences to the claim.
41. The respondent, in our view, misconceived the remedy available to him for his alleged grievance. Even if the Rule Nisi was made absolute at a time when he was in service, the writs and orders issued by this Court in making the Rule absolute, would not have enabled him to recover the arrears of salary claimed by him. Such a relief could have been obtained by the respondent only by an action for recovery of his claim, unless the same was paid by the State Government on demand. But he did not choose to take recourse to the only remedy available to him. Instead of doing that, he pursued the writ petition to its final hearing and having obtained the order by which the Rule Nisi was made absolute, he chose to remain silent and inactive for a long period of 9 years, hoping that he would be entitled in law to proceed against the Slate Government for recovery of his claim, if this Court upheld the judgment and order of the trial Court. He made no attempt to amend the petition before the hearing of the Rule Nisi though we do not see how such an amendment, even if granted would have enabled him to obtain an order for recovery of arrears of salary. After obtaining the order making the Rule Nisi absolute, during this long period of 9 years he took no steps for recovery of his claim nor did he realise that even if such a claim was put forward, it would undoubtedly have been resisted by a plea of limitation. His conduct in alt that has happened in this case is such as to dis-entitle him altogether from any relief in the discretionary writ jurisdiction of this Court There was little justification, still less any ground for conviction, that writs and orders prayed for by him would be in the nature of a money decree in an action for recovery of debt. We are not persuaded by the various pleas advanced on his behalf by his Counsel that any relief ought to be granted to him in the writ petition.
42. I now turn to the question of mala fides. The Court below came to the conclusion that the order of reversion was made by the appellants mala fide. In dealing with this question, it is to be seen what are the allegations regarding mala fides in the respondent's petition. The only reference to mala fides is a paragraph 18 of the petition. Except for a bare statement that the order of reversion has been made mala fide, nothing else has been alleged, no particulars of mala fides have been set out or referred to. Nor is there any pleading as to circumstances from which the Court may reasonably infer mala fides. But what is more remarkable, however, is that the statements in paragraph 18 of the petition have been verified as submissions to the Court. On this verification, the averment of mala fides cannot be treated as allegation of fact or as evidence which the Court can look into for the purpose of determining, if the order has been made mala fide. This is a question of facts which has to be pleaded in order to make out a case of mala fides. No such facts have been pleaded in this case and as I noticed earlier, the only suggestion of mala fides in the petition has been verified as a submission to the Court. In our view, the Court below was not justified in giving its opinion on mala fides having regard to the nature of pleading of mala fides and complete absence of any facts in the pleading. It is not for the Court to make out a case for a petitioner in a writ petilion when he has failed to make out such a case himself. Our attention was drawn by Counsel for the appellants to a decision of the Supreme Court dealing with the question of mala fides. This is : 6SCR330 . The observations of the Supreme Court regarding allegations of mala fides are very pertinent and were as follows:
'It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation in fact, are made in several of the cases which have come up before this and other Courts, and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently, it has become the duty of the Court to scrutinise these allegations with care so as to avoid beingin any manner influenced by them, in cases where they have no foundation in fact.'
43. When persons and authority are charged with mala fides or improper conduct they should be given the opportunity to meet the charges made against them. If no facts are pleaded in support of mala fides or improper conduct and yet the Court, relying on materials not brought on the record, goes on to give a finding on mala fides, such a finding cannot but be held to be in violation of the rules of natural justice, because it amounts to condemning a person unheard. In such a case, that is to say when the Court goes on to make a finding as to mala fides, the person or authority whose order is condemned on the ground of the mala fides, Would not know what the charges are, and would be completely denied the opportunity of meeting such a charge. In this case, we find that there is no charge of mala fides at all. A submission that an order has been made mala fide, without any facts whatsoever does not amount to a charge of mala fides. In a case, such as this, the Court will not be justified in carrying on an investigation on its own and then coming to a finding of mala fides on materials which the person charged with mala fides had no opportunity of controverting.
44. I will now briefly deal with another contention of Mr. Banerjee namely, that the order of reversion was illegal because it was not expressed to be made by the Governor, who alone could make such an order having regard to Article 166 of the Constitution. It was argued that the order appointing the respondent to the officiating post of Assistant Commissioner of Police and Deputy Superintendent of Police was made by the Governor, but no order has been produced to show that the order of reversion was made in the name of the Governor in whom all executive power of the State vested. The order was communicated to the Commissioner of Police by the Undersecretary of State, Home Department. We have looked into the rules of business and we find that the order relating to the Police Department is required to be made by a Secretary to the Govt. An Affidavit has been affirmed by the Chief Secretary to the State Government in which it is stated that the order was made by the Home Secretary in consultation with the Chief Secretary. Therefore it is clear to us that the rules of business have been complied with in making the order of reversion. As to the contention that the order was not expressed to have been made by the Governor, even assuming that is so, it cannot now be held that the order is bad, because it was not expressed to have been made by the Governor : 1952CriLJ955 . The view taken by the Supreme Court in Dattatraya's case namely, that the requirements of Article 166 were directory only and non-compliance with such requirements does not result in the order being invalid, was reaffirmed by the Supreme Courtin later decisions P. Joseph John v. State of Travancore, Cochin, : (1956)ILLJ235SC , R. Chitralekha v. State of Mysore, : 6SCR368 , State of Rajasthan v. Sripal Jain, : 1963CriLJ347 , and Major E. G. Barsay v. State of Bombay, : 1961CriLJ828 .
45. Keeping in view these decisions, there can hardly be any room for debate that the provisions of Article 166 of the Constitution are only directory and not mandatory and non-compliance with the same will not vitiate the order made by the State Government. In that view of the matter, the contention of Counsel for the respondent that the order is bad, because it was not expressed to be made in the name of the Governor, must be rejected.
46. There remains only one other decision to be referred to, on which reliance was placed by Mr. Bancrjee. That is a decision of the Supreme Court Ghaio Mal and Sons v. State of Delhi, : 1SCR1424 . This decision was relied on, for the proposition that the order of reversion not having expressed to be made in the name of the Governor, is invalid and also that under the Rules of Business, the order should have been made by the Chief Minister. In this case, under the relevant Rule of the Delhi Liquor Licence Rules, 1935, the Chief Commissioner of Delhi was the only competent authority empowered to grant L-2 licence for wholesale and retail sale of foreign Liquor. There was no evidence that concurrence of the Chief Commissioner was obtained, nor was there anything to show that the Chief Commissioner had made the order. There was a letter from the Under-Secretary, Finance Department, in which it was stated that the Chief Commissioner had made the order. It was held that there was no valid order, granting the L-2 Licence and the letter, communicating the grant of licence, was a inter-departmental communication. This decision to our mind is of no assistance to the respondent in this case, because it appears from the Standing Order No. 4 of the Standing Orders framed under Rule 15 of the Rules of Business that the Chief Secretary was authorised to direct, with the approval of the Minister, that certain classes of cases, as may be specified in the order of the Chief Secretary, may be disposed of in the manner provided in the order. In exercise of the power under Standing Order No. 4, the Chief Secretary made an order which provides that certain classes of cases may be disposed of by the Officers shown in Column II of the order. So far as Police branch cases are concerned, the order provides that they may be disposed of by the Secretary. In this case, therefore, the order of reversion has been made in compliance with the Standing Orders framed under the Rules of Business. Mr. Banerjee, however, contended that the order of reversion is a disciplinary matter, and therefore should have been placed before the Minister-in-charge of the de-partment under Item 12 of the Schedule of Matters to be brought to the personal notice of the Minister-in-charge. We are unable to accept the contention that the order of reversion is a disciplinary matter and therefore the order should have been made by the Minister and is invalid, because it has been made by the Secretary. In our view, the Secretary, Home Department, was competent under the orders made by the Chief Secretary in accordance with the Standing Order No. 4, to make the order of reversion and the impugned order cannot be held to be invalid, as it was not made by the Minister-in-charge.
47. All in all it seems to me that this appeal ought to be allowed, and the judgment and order under appeal should be set aside. The Rule is discharged. Each party to pay its own costs.
B.C. Mitra, J. (28-3-1972)
48. This is an application for amending the writ petition by adding the following prayer as prayer No. H:,
'A writ of or in the nature of mandamus or a suitable direction be issued to the respondents to pay to the petitioner such salary, pension, gratuity and other emoluments as he is entitled to on the footing of his having retired on the 1st January, 1958, as an officiating deputy Superintendent of Police'.
I have noticed in my judgment in the appeal, the leave asked for by Counsel for the applicant in this application, to move a petition for amending the writ petition. This Court did not grant such leave. Yet this application has been moved for amendment of the Writ petition by incorporating the above prayer in the same. I have already given reasons for which such an amendment cannot be allowed in the judgment in appeal. In my view, this application is altogether misconceived and must be dismissed for the reasons set out in my judgment in the connected appeal.
49. Counsel for the applicant, however, pressed this application, relying upon a decision of the Judicial Committee Charan Das v. Amir Khan, 47 Ind App 255 = (AIR 1921 PC 50). In that case a suit was filed for a declaration of the plaintiffs' right of pre-emption over certain land. Such a suit does not lie having regard to the proviso to Section 42 of the Specific Relief Act. An application for amendment of the plaint claiming possession on preemption was made and this application was refused, as the time for a decree for possession had expired. In these facts, it was held that although the power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect was to take away from the defendant a legal right which has accrued to him by lapse of time, yet there may be cases in which that consideration was outweighed by the special circumstances of the case. This decision, in myview, is of no assistance to the applicant, inasmuch as, the possession was a consequential relief to a decree declaring the ownership. The Judicial Committee agreed with the view of the Judicial Commissioner that however defective the frame of the suit might be, the plaintiffs' main object was to pre-empt the land and their cause of action was one and the same whether the suit was for possession or not. The amendment was allowed as it was found that the plaintiffs threw some clumsy blundering attempt to assert right they undoubtedly possessed under the Statute in a form which the Statute did not frame. In this case, on the other hand, the applicant could not, in our view, have asked for a writ or order directing payment of arrears of salary, pension and gratuity in these proceedings. Furthermore, it is clear to us that what the applicant was seeking in the writ petition was a cancellation of the order of reversion and there is nothing to suggest in the pleadings as they arc, that the applicant's intention was anything other than the prayers for which a Rule Nisi was issued. Secondly, the claim being clearly barred by limitation, discretion allowing an amendment of the nature prayed for, should not be exercised in favour of the applicant. Thirdly, the amendment cannot be allowed as this Court, dealing with the appeal, cannot enlarge the scope of the Rule Nisi which was made absolute by the trial Court. This is not a case of mistake, omission, or blunder and entirely new cause of action is sought to be introduced by the proposed amendment, and such amendment, in our view, cannot be done in a writ petition in the appellate Court. This application must, therefore, be dismissed and we order accordingly. There will be no order as to costs.