Sudhamay Basu, J.
1. This Appeal is from the judgment and order passed by Amiya Kumar Mookerjee, J., dated the 24th of May, 1974 discharging the Civil Rule No. 7465 (W).
2. The appellant is an Officer of Survey of India who was appointed as a Probationary Officer, Surveyor (Class II) against a permanent post on the 1st of October, 1954. As he was not confirmed till 1964 he moved this Court in an application under Article 226 of the Constitution, Pursuant to direction given by this Court in the said writ petition the appellant was confirmed on the 15th of February, 1971 with effect from 1st of April, 1964. The appellant, thereafter, made a representation to the authorities claiming arrears of increment from the 1st of October, 1955 to 31st of March, 1964 which was turned down on the plea that the appellant's increments were to be regulated under Rule 21 of the Survey of India, Class II (Recruitment) Rules, 1962. Feeling aggrieved the appellant moved this Court in an application under Article 226 of the Constitution and obtained a Rule which was, as noted earlier, discharged.
3. The respondents contended before the Court below and in this Court that the appellant's case was governed by Rule 21 of the Survey of India, Class (Recruitment) Rules, 1962. Earlier Recruitment Rules of 1953, it is admitted by all the parties, have been repealed and the new Rules of 1962 came into force in their place. The Court below held that there was no provision as regards payment, of arrears of pay and increment of a probationer in the 1953 Rules. In its view the 1962 Rules were applicable but the appellant's claim was not sustainable.
4. On a close examination of the said 1962 Rules and specially Rule 21(f) we are, however, constrained to differ from the Court below. In our view, in the facts and circumstances of this case, Rule 21(f) entitles the appellant to claim arrears of increment prior to the date of confirmation.
5. The relevant provisions of Rule 21 are as follows:
(a) Appointment will be made on probation for a period of 3 years subject to the provisions hereinafter made.
(d) After successfully completing the first two years of training and while undergoing the job training mentioned in sub-para, (c) above, a probationer shall be required to pass during the third year of his probation such theoretical and practical tests in survey work as may be prescribed from time to time by the Surveyor General of India. A probationer failing to pass these tests during the third year of his probation shall be liable to be discharged provided that the Government may, if it so thinks fit in any case, extend the period of probation by another year and permit such probationer to sit for a re-examination in any test or tests which he had failed to pass. No officer shall be kept on probation for more than four years except after consulting the Commission.
(f) A probationer on confirmation is entitled to claim retrospectively the increments which he would have received in the ordinary course but for his probation, if, however, a probationer is confirmed after an extended period of probation under Sub-rule (d) above, his pay and increments at the end of the probationary period will be regulated on the basis of what he would have drawn but for his probation, but no arrears on -this account will be allowed to him for the period prior to the date of confirmation.
6. The first part of Rule 21(f) makes it clear that ordinarily a probationer, on confirmation is entitled to claim retrospectively increments which he would have received in the usual course but for his probation. The next part of the Rule provides an exception to the above rule. If a probationer is confirmed after an extended period of probation under Sub-rule (d), no arrears of increment would be allowed to him at the end of the probationary period. In other words, the claim to increments would be defeated only if a probationer is confirmed in accordance with Clause (d). The ease of the appellant is clearly not one governed by Clause (d) of the aforesaid Rule. There is northing before us to show that he was required ,to pass during the third year of his probation any theoretical or practical tests in terms of the said Rule or that he failed to pass these tests during the third year or that on such failure his period of probation was extended. Moreover, Clause (d) clearly contemplates that no officer could be kept on probation for more than four years except after consulting the Commission. There is nothing to indicate that the Commission was consulted. The appellant was on probation for about ten years and, therefore, his case could hardly be governed by the said Clause (d). If, therefore, he was nut confirmed under Sub-rule (d) he became clearly entitled to claim the increments which he would have received in the ordinary course but for his probation in terms of the opening clause of Rule 21(f). We are unable to appreciate how this Rule could be construed by the Government of India in consultation with the Ministry of Law to hold, as conveyed by the Accounts Officer in the office of Accountant General, Uttar Pradesh, by his letter dated the 15th of June, 1972 that no arrears were to be allowed to (the appellant for the period prior to his confirmation. It appears to us that Rule 21(f) was not quoted in its entirety in the said letter of the Accounts Officer and it is more likely than not that the entire provision was also not brought to the knowledge of the lower Court. In our view, a fair reading of Rule 21(f), in its entirety, clearly entitles the appellant to claim increments retrospectively, that is to say, what he would have received in the ordinary course but for his probation.
7. The other question which remains to be considered is whether the appellant can be granted any relief as the same would involve payment of money. Mr. Majumder, appearing for the Union of India contended that this Court exercising a writ jurisdiction should not entertain or grant relief in a case which involves claim for money. He relied in this connection, on the case of State of Madhya Pradesh and Anr. v. Bhailal Bhaz reported in : 6SCR261 . That was a decision concerning sales tax. The learned advocate relied on an observation that 'the special remedy provided under Article 226 is not intended to supersede completely the modes of obtaining relief by an action in civil Court or to deny defences legitimately open in such actions. It was also emphasised in that case that the power to giant relief under Article 226 is discretionary. Yet in the same paragraph the Court also noted that whether the pay-meet should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. The Count expressly held.' It is not easy nor is it desirable to lay down any rule for universal application. The Court, generally speaking is not to lend its aid to a party when there has been an unreasonable delay or where the conseqential relief prayed for raises, prima facie, a triable issue as regards the availability of such relief on the merits on grounds like limitation. In such cases sound use of discretion would leave the party to seek his remedy by ordinary mode of action in civil Court. In the said case, sales tax, as assessed and paid by the dealer, was declared by a competent Court to be invalid in law. The payment of tax already made was under mistake within Section 72 of the Contract Act. The High Courts in the exercise of its jurisdiction under Article 226 of the Constitution of India directed repayment of the money realised by the Government. On the facts and circumstances of that case the Supreme Court also upheld the said decision of the High Court.
8. Mr. Dutt, the learned advocate appearing in support of the rule, drew our attention to a recent decision of the Supreme Court, viz., The State of Mysore v. C.R. Seshadri and Ors., reported in : (1974)ILLJ301SC . in that case, the petitioner sought (i) to quash an order denying him credit for service while he was private secretary to three ministers and (ii) a direction for payment, of such amounts as he would have got his dues 'inter se seniority and promotion' been accorded to him. The petitioner retired on the day before the judgment of the High Court. The Supreme Court noted that what was a service issue was reduced to one of money payment. The Court directed the State of Mysore 'to consider primarily the claim of the petitioner in the light of the directions and make payment of what was his due--if so found--on or before April 15, 1974.' The said case, which is a recent one, therefore, seems to indicate that in appropriate circumstances it is not impermissible to order payment of money.
9. Mr. Dutt also relied on another case, namely, Burma Construction Co. v. The State of Orissa, reported in A.I.R. 1962 S.C. 1320. In that case, also, the Supreme Court while noting that the High Count normally does not entertain petition under Article 226 of the Constitution to enforce civil liability arising out of breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit held that an order for payment of money may sometimes be made in a petition under Article 226 of the Constitution against the State or an officer of the State to enforce a statutory obligation.
10. The present appeal primarily involves construction of some relevant rules so as to determine if the appellant is entitled under them to claim increment retrospectively during his prolonged period of probation. The view we have taken of the rules goes in his favour. The next question is the question of consequential relief flowing from the afore- said determination. The obligation which the appellant seeks to enforce flows from the rules, and is, therefore, in the nature of a statutory obligation. We do not set why in the facts of this case appropriate direction for payment should not be made simply because it involves payment. The directions we propose to give will not also involve, prima, facie, any triable issue. We are fortified, in our view, by the judgments referred (to above. We also take note of the fact that when the present petition under Article 226 was filed in 1972 the claim for money was not barred. Keeping in view, therefore, the decision in the case of State of Mysore v. S.R. Sesadari : (1974)ILLJ301SC and the observation made in the case of Burma Construction Company (supra) we direct the respondents to determine what amount would be due to the appellant on account of his pay and increments at the end of his probationary period on the basis of what he would have drawn but for his probation, and on such determination, make payment of such dues.
11. The judgment and order of the Court below are, therefore, set aside. The appeal is allowed. The rule is made absolute. There will be no order as to costs.
S.K. Mukherjea, J.
12. I agree.