Dhavan, J.:— This is a petition under Art. 226 of the Constitution praying for the quashing of two orders passed respectively by the Government of Uttar Pradesh and the Director of panchayat Raj Uttar Pradesh in both of which it was held that the petitioner was not entitled to his salary for the period between 23rd May, 1953 to 30th April, 1956 on the ground that his claim was time-barred. It raises an important question of law—namely, whether the Government, while considering what salaries and allowances should be paid to a Government servant who was removed from service but whose removal is set aside by the Civil Court and who is consequently rain-stated in pursuance of the Court's decision, can take into consideration the provisions of the Limitation Act and decide that any part of his salary shall not be paid on the ground that his claim is time-barred. The petitioner's case has had a long and chequered history and it is necessary to relate very briefly the facts. On June 6, 1949 the Governor of Uttar Pradesh, by G.O No. 7691.PPD-114/48, sanctioned the creation of 500 temporary posts of Panchayat Inspectors in the scale of Rs. 120-6-180-EB-10-200, plus exclusive of Dearness Allowance. This order was passed by the Governor in the exercise of his powers under Sec. 241 of the Government of India Act, 1935 as it purported to create temporary posts and regulate their conditions of service. The order itself did not specify under what law it was passed but the State Counsel stated before me, in answer to a question from the Court, that he was instructed to state that it was passed under Sec. 241 of the Act of 1935.
2. The petitioner was appointed to one of these posts by the Director of Panchayat, U.P by his order dated July 16, 1949. In 1951 he got into trouble with the authorities and disciplinary action was taken against him, and he was charged with having committed serious offences. During the disciplinary proceedings he remained suspended. On January 13, 1952 he was reinstated but a number of punishments were imposed on him. His salary was reduced to the lowest scale of Rs. 120/- per month, his increment was stopped for one year, and it was directed that at the end of this period the question whether he should receive any increment would be considered. An adverse remark was made against him in his Character Roll. Before the year was out he again got into trouble and serious charges of misconduct were framed against him. He was suspended once again. As a result of the inquiry, he was removed from service by an order of the Joint Director, Panchayat Raj, dated the 12th May 1954. His appeal against this decision was dismissed by the Government on or about May 18, 1956 and then he filed a petition in this Court under Article 226 for the quashing of the order of dismissal and for directing the State to treat him as continuing in service and pay him the arrears of salary due to him upto date. This petition was heard by me and during its hearing the State conceded that the order removing the petitioner from service was illegal as it was passed by an authority which was subordinate to that by which he was appointed. Thereupon this Court quashed the order of removal on the ground that there had been a violation of the provisions of Article 311(1) of the Constitution. The Court did not consider the relief with regard to the payment of arrears of salary because counsel for the State Government submitted that the Government might pass a fresh order for his removal or commence fresh proceedings against him. In pursuance of the decision of this Court, the petitioner was re-instated in service on the 1st of May, 1959. On the 8th of June, 1959, he applied to the Director of Panchayat Raj for payment of all the arrears of his salary. No decision on the question of arrears of salary due to him was taken for some time. But the disciplinary proceedings which resulted in his removal were not revived and he continued in service till the 28th February, 1960. On that date he was served with a notice purporting to terminate his service after one month's notice. He challenged the legality of this order by filing a writ petition in this court which was dismissed by Dwivedi, J. on 3rd of April, 1961. His appeal from this decision was also dismissed on 12th November, 1966. The question of arears of the salary due to him for the period of his suspension, between 24th May, 1953 and 1st June, 1959 was decided by the Government, after his service had been terminated a second time by the notice of 28th February, 1960. As stated above he had moved the Government by his application of 8th June, 1959, but no decision was taken till 25th October, 1960. On this date the impugned order was passed by the Government. The material portion of this order runs thus:
“Government are advised that Hari Raj Singh Tyagi, Ex-Panchayat Inspector, should receive his salary and allowances only for the last three years as the payment of any emoluments to him for the remaining period of his absence from duty is barred by time. The Governor has accordingly been pleased to order that for the period from May 1, 1956 to April 30, 1959 Sri Hari Raj Singh Tyagi should be paid his full pay together with such increments as he would have normally drawn had he not been dismissed from service. He would also be entitled to receive dearness allowance at the rates admissible to him under the orders of Government issued from time to time.”
3. This order is Annexure F of the petitioner's affidavit. It was in the form of direction issued by the Government to the Director of Panchayat Raj. In pursuance of it the Director issued an order on 20th January, 1961 that the petitioner was entitled to receive his arrears of salary for three years prior to his re-instatement on the 1st of May, 1959 at the rate of Rs. 120/- p.m plus dearness and other allowances, if any. This order is Annexure E of the petitioner's affidavit. Aggrieved by this decision of the Government the petitioner has come to this Court once again. Originally he asked for a writ in the nature of mandamus ordering the State Government to give effect to the order of the High Court dated 10th October, 1958, and not to with-hold his salary and allowances for the entire period from 23rd May, 1953 to the 1st of May, 1959. During the hearing of this case the petitioner, on a suggestion from the Court, amended his petition and added a prayer for the quashing of the two orders of the State Government dated October 25, 1960 and January 20, 1961 (Annexure E), in both of which it was verbally held that his claim for salary for the period between 1953 and 1956 was barred by time.
4. The petition is opposed by the State Government. In the counter-affidavit filed on its behalf it is conceded that the petitioner is entitled to salary for the period between 1st May, 1956 to 1st June, 1959 and it is stated that “the State Government is willing to pay the salary to the petitioner as is admissible under the rules subsequent to the period 1-5-1956”. As regards the salary for the period between 24th May, 1953 and 1st May, 1956 it is admitted that the Government decided not to pay this salary on the ground that it had become time barred, but it is contended that the petitioner is not entitled to it under the law. The case of the State is stated in paragraph 9 of the counter-affidavit thus:
“That the question whether the petitioner was entitled to the arrears of salary was considered by the Government and it decided that since the salary prior to 1st May, 1956 which had become time barred on the date on which he rejoined his duties was not admissible to the petitioner.”
5. The main question in this petition is whether the reason given in the order Annexure F that the petitioner should receive his salary and allowances only for the last three years because his claim for the earlier period is time barred is a valid reason in law; and if not, whether it makes the order itself invalid. The next question will be whether this court can interfere and if so, what relief it can give the petitioner. The question will arise only if the first is decided in favour of the petitioner.
6. Before deciding this question, I must make one or two points clear. The first is that the order Annexure F was passed by the State Government in the exercise of their powers under Rule 54 of the U.P Fundamental Rules. The order itself does not specify under which law it was passed, but learned counsel for the Government stated, in reply to a question from the Court, that he had been instructed to state that the order had been passed under Rule 54. This statement was recorded. I asked learned counsel whether in the event of the Court holding that Rule 54 does not apply to this case, he could specify any alternative source of power, and he replied that he could not. It follows that if Government's jurisdiction to pass the order cannot be found in Rule 54, the order is without jurisdiction.
7. Secondly, the sole reason for Government's refusal to pay the petitioner salary for the period between 1953 and 1956 is that the Government thought the claim was time-barred. The order itself gives no other reason, and I asked learned counsel if Government had any other reason for not paying the salary for this period and he replied that it had none. It follows that if this solitary reason is held invalid, the order cannot be justified on any other ground.
8. Thirdly, the petitioner's claim for salary and allowances for the period between 1956 and 1959 has been conceded by the State Government both in their counter-affidavit and arguments before me. Counsel for the Government stated, in answer to a question from the Court, that Government are ready and willing to pay the salary and allowances for this period. It was also admitted that these have not been paid till now. Therefore, in any case, the petitioner is entitled, in my opinion, to an order directing the State Government to pay the petitioner's salary and allowances for the period between May, 1956 and May, 1959. The only dispute is with regard to the salary for the period between 1953 and 1956. Learned counsel for the petitioner, Mr. Asif Ansari, initially took his stand on the decision of this Court in Writ Petition No. 1182 of 1957 quashing the order of the Joint Director Panchayat Raj purporting to remove the petitioner from service. He argued that this Court's decision automatically entitled the petitioner to be re-instated and to receive all his arrears of salary from 1953 till 1959. He contended that the Government was under a duty to implement the Court's decision by taking the petitioner back in service and paying him his full salary for the entire period of suspension; but the Government only partially implemented it when they re-instated him but refused to pay his salary for three years prior to May, 1956. He argued that the petitioner was entitled to an order from this Court directing the State to implement its decision by paying the petitioner the arrears of his salary.
9. This argument is based on a misunderstanding of the nature of this Court's order in the earlier Writ petition and its effect. The order simply quashed the Government's order removing the petitioner from service. This meant that the petitioner would be deemed never to have been removed and to have been in service as if the order had never been passed. This also entitled him to the arrears of his salary and allowances, but only in accordance with the statutory rules governing such cases. These rules are contained in Chapter VIII of the Uttar Pradesh Financial Hand Book Volume II, which bears the title “Dismissal, Removal, and Suspension.” It consists of three Rules 52, 53 and 54, which are a part of the U.P Fundamental Rules which applied to the petitioner's case at all material times. Rule 52 provides that “the pay and allowances of a government servant who is dismissed or removed from service cease from the date of such dismissal or removal.” Rule 53 provides that a government servant under suspension is entitled to a subsistence grant of such amount, not exceeding one-fourth of his pay, as the suspending authority may direct.” Rule 54 provides for a situation which arises when a government servant who has been dismissed, removed or suspended is re-instated. It provides in effect that the competent authority shall consider what pay and allowances should be paid to a re-instated government servant for the period of his absence from duty. I shall consider the scope and effect of this Rule presently. But at this stage it will suffice to point out that the re-instatement of a government servant does not automatically entitle him to all the arrears of pay and allowances for the period of his absence from duty. The question of his pay and allowances must be considered by the competent authority which must pass an order sanctioning the exact amount to be paid. If such an order is passed it cannot be said that Government has not implemented the Court's order setting aside the removal. Of course it is open to the Government servant to challenge this order as invalid and ask the court to hold that a proper order has not been passed according to law, but as long as the order is there he cannot contend that the decision quashing his removal has not been implemented.
10. In the present case this Court quashed the order of the Joint Director, Panchayat Raj, removing the petitioner from service. On 24-4-1959 the State Government directed his re-instatement. He continued to work till 19-2-1960 when his services were once again terminated by another order. He filed a petition challenging the legality of this order but failed. Therefore, as regards re-instatement, the decision of this Court was implemented. As regards pay and allowances, the petitioner made an application demanding full pay and allowances. On 4th August, 1960, Government passed an order directing the payment of full pay and allowances for three years between 1956 and 1959, but refusing to pay anything for the period between 1953 and 1956 on the ground that the petitioner's claim was time-barred. The decision may be illegal, but as long as it stands, the petitioner cannot contend that this Court's decision dated 10-10-1958 has not been implemented.
11. During the hearing, I suggested to learned counsel for the petitioner that the proper course for the petitioner was to pray for the quashing of the two orders Annexures E and F, and for a writ in the nature of mandamus directing the State to pay his salary or consider his claim according to law. It is they duty of this Court while hearing a petition under Article 226 to keep in mind the interests of justice as paramount and to suggest the appropriate relief even if the petitioner has not asked for it or has asked for the wrong relief. I, therefore, suggested to the petitioner's counsel that he should amend his petition and ask for the quashing of the two orders, Annexures E and F, and for an appropriate order of mandamus. Counsel accepted the suggestion and the amendment was permitted to be made.
12. In my opinion, the order of the State Government withholding the salary of the petitioner for the period between 1953 and 1956 on the ground that his claim is time-barred is invalid because Government could not take into consideration the Limitation Act while considering what salaries and allowances were payable to the petitioner.
13. Government's reliance on the Limitation Act is due to a misunderstanding of the scope of the law of limitation. The Limitation Act is a complete code in itself, and outside it there is no law of limitation excepting specific provisions in specific Acts. Learned counsel for the Government stated that the case of the State was based on Article 102 of the Limitation Act and no other law.
14. The Preamble of the Limitation Act states, “whereas it is expedient to consolidate and amend the law relating to the institution of suits, appeals, and certain applications to courts;………..”. (The rest of the Preamble is not relevant for this case). Sec. 3, which is the back-bone of the Act, provides, “3. Subject to the provisions contained in Secs. 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made after the period of limitation prescribed thereof by the first Schedule shall be dismissed, although limitation has not been sent up as a defence.” Reading the Preamble and Sec. 3 together, it is manifest that the Limitation Act applies only to suits or appeals or applications filed in Courts. Its object is to compel litigants to be diligent in seeking their remedies in courts of law by prohibiting the hearing of state claims. It has no application to any proceedings outside the law Courts.
15. The Limitation Act is a procedural law. It bars a suit for the enforcement of a right but does not extinguish the right itself. (The only case where lapse of time extinguishes the title is in Sec. 28 of the Act which provides that on the expiry of the period of limitation for a suit for possession of any property the right to such property shall be extinguished. But this Section has no application in the present case). “The statute of limitation only bars the remedy but does not extinguish the debt ………. Lapse of time does not extinguish the right of a person.”—Bombay Dyeing and Manufacturing Co. v. The State of Bombay A.I.R 1958 S.C 328..
16. Since limitation bars a suit for the enforcement of a right but does not destroy the right itself. A defendant in a suit can set up a right in defence though he could not have enforced that right by a suit. There is no limitation against a defence. This again indicates how limited is the scope of the law of limitation even in suits.
17. In the light of these principles, let us examine the meaning of the concept “time-barred”. It means simply that a particular remedy, called suit, for the enforcement of a right is no longer available. For example, if a Government servant files a civil suit for the recovery of his salary after the expiry of the prescribed period of limitation it shall be dismissed by the Court as time-barred. But the right (or debt) is not extinguished and all other lawful means of enforcing the claim are not affected by limitation. The concept “time-barred” cannot be extended to proceedings outside the law courts. It follows that if Government in the performance of its statutory duty (or exercise of its powers) has to decide what salary and allowances are pay able to a re-instated servant, it cannot take into consideration the law of limitation. If it does, and rejects the claim as “time-barred” it extends the law of limitation beyond its prescribed orbit and usurps the prerogative of the Courts, and acts without jurisdiction. Alternatively, its decision is based on an extraneous and irrelevant consideration not permitted by law and therefore illegal. Whichever way we look at it, the decision is vitiated by a defect which is fatal.
18. There is an additional reason why the Government of Uttar Pradesh, at the relevent time, could not take the law of limitation into consideration while deciding the petitioner's claim for arrears of salary. In 1952, Government issued an order regulating the right of Government servants to seek redress of grievances arising out of their employment or conditions of service. This was Order No. 0-3237.II-B-32-52, dated December 24, 1952. Paragraph 3 of this order provided, “In the matter of grievances arising out of a Government servant's employment or conditions of service, the proper course for him will be to seek redress from the appropriate departmental and governmental authorities, in accordance with the instructions prescribed for this purpose. Any attempt by a Government servant to seek a decision on such issues in a Court of law (Even in cases where such a remedy is legally admissible), without first exhausting the normal official channels of redress, can only be regarded as contrary to official propriety and subversive of good discipline, and may well justify the initiation, of disciplinary action against the Government servant”. The effect of this order was that a Government servant who was removed from service could not file a suit for a declaration that his removal was illegal and for recovery of his salary until and after he had exhausted his departmental remedies by way of appeal or revision or represntation to higher authorities. If he did he was liable to be punished after re-instatement. In 1954 the provisions of this Order were incorporated in the Uttar Pradesh Government Servants' Conduct Rules. Rule 26 of these Rules provided, “Litigation on service matters—No government servant shall attempt to seek in a court of Law a decision on grievances arising out of his employment or conditions of service, even in cases where such a remedy is legally admissible, without first exhausting the normal official channels of redress.” Paragraph 3 of the G.O of 1952 and Rule 26 of the U.P Government Servants Conduct Rules 1956 are substantially the same. Both were issued in the exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India. This is expressly stated in the 1956 Rules. The 1952 G.O does not mention Article 309, but it is manifest that it could only have been issued under that Article, for it stated that the Governor had issued the instructions contained in it under his “rule-making control”. The Governor's “rule making control” is derived from Art. 309. Thus at all material times rules framed or orders issued under the Constitution prohibited a Government servant who had been dismissed or removed from service to file a suit for a declaration that his removal was illegal or for the recovery of his salary and allowances before exhausting his departmental remedies. This prohibition clearly implied that the law of limitation could not apply to cases where a Government servant had been provided with a departmental remedy which he was expected to pursue on pain of disciplinary action. It is unthinkable that Government imposed an obligation on its servants to pursue departmental remedies before availing of their remedies in a court of law and at the same time reserved to itself the right to apply the law of limitation against a Government servant who had allowed his claim to become time-barred while pursuing his departmental remedies. If Government had any such intention while issuing the G.O of 1952 or making rule 26, both these provisions will have to be condemned as fraudulent and an abuse of the rule-making power under Article 309. The Court must presume that the Government acted honestly and therefore hold that these provisions made the law of limitation inapplicable to cases where a departmental remedy was provided. The petitioner in the present case has established that he pursued his departmental remedies before coming to the court for relief. On 24th May, 1953 he was suspended on charges, and on 4th May, 1954 he was removed from service. On both these dates G.O No. 0-3237.II-8-32-52, dated December 24, 1952 was in force and the petitioner could not have filed a suit challenging the legality of his removal or recovery of his salary and allowances before exhausting his departmental remedies. He filed an appeal from the decision of the Joint Director of Panchayat Raj. On 13th May, 1956 he was informed that his appeal had been rejected by the State. Within a year, on 6th May, 1957, he filed a petition under Article 226 for the quashing of the order of removal and for a direction to the State to pay him his arrears of salary. On 10th October, 1958 this Court allowed the petition and quashed the order of removal but did not grant any other relief because the State counsel stated that Government might continue the disciplinary proceedings against him. On 1st May, 1959 the petitioner re-joined his duties. The effects of the quashing of the order of removal was that the petitioner was never removed from service and continued to be in service. The second effect was that it became his duty, under the Government Servants Conduct Rules, to apply to the State authorities for the payment of his salary and allowances during the period of his suspension before he could avail of his remedies in the courts. Accordingly on 18th June, 1959 he applied to the Director Panchayat Raj for payment of all the arrears of his salary. The Government's decision rejecting his claim for the period between 1953 and 1956 was made on 25th October, 1960 (Annexure F) and communicated to him by the Director of Panchayat Raj on 20th January, 1961 (Annexure E). Meanwhile, on 19th February, 1960 his services were terminated a second time—before the decision with regard to his salary and allowances was announced. On 21st March, 1960 he filed a writ petition challenging the notice terminating his services. On 3rd April, 1961 the petition was dismissed and on 18th November, 1966 his appeal was also dismissed. On 20th March, 1966 he filed the present petition challenging the Government's order partially rejecting his claim for salary as time-barred, and the Court directed that the petition would be heard after the disposal of the Special Appeal. When that appeal was dismissed this petition was listed before me.
19. My conclusions on the point of limitation may be summed up thus. The Limitation Act applies only to suits, appeals, and applications filed in a court but has no application outside these proceedings. Furthermore, the Government by issuing the G.O of 1952 and framing Rule 26 of the Government Servants Conduct Rules requiring its servants to exhaust their departmental remedies before seeking their remedies in Court impliedly conceded that the law of limitation did not apply to a Government servant's claim on reinstatement to be paid his salary and allowances. Therefore though Art. 102 of the Limitation Act bars a civil suit for the recovery of salary or wages due if it is filed beyond time, it has no application when a competent authority is considering what salary and allowances are payable to a Government servant after he is re-instated in service in pursuance of a decision of the Court. If that authority rejects the claim of the Government servant on the ground that it is barred by limitation, its decision is based on an irrelevant or extraneous consideration and illegal. In the present case the State Government has held that the petitioner should not be paid his salary and allowances for the period between 1952 and 1956 because its recovery in a court of law is time-barred. This decision is vitiated and must be set aside.
20. There is an additional reason for setting aside this decision. Learned counsel for the Government stated, in an answer to a question from the court, that the decision of the Government was made in the exercise of its powers under rule 54 of the Fundamental Rules. The counsel further stated that the Government did not rely on any other rule or source of power. In my opinion, the Government had no jurisdiction under rule 54 to reject the petitioner's claim for salary and allowances on the ground of limitation. Rule 54 on the material date was as follows:—
“54(1) When a Government servant who has been dismissed, removed, or suspended is re-instated, the authority competent to order the re-instatement shall consider and make a specific order—
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) Where such competent authority holds that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be, together with any allowance of which he was in receipt prior to his dismissal, removal or suspension.
(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.
Provided that the payment of allowances under clauses (2) and (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall not be so treated.”
21. In my opinion, this rule does not permit the State to reject the Government servant's claim for salary and allowances on the ground that it is time-barred. It gives the Government power to fix the pay of a re-instated Government servant in certain cases which are specified in the Rule. But it says nothing about Government taking into consideration the law of limitation. If limitation had been a relevant consideration rule 54 would have said so. The ground of limitation cannot be imported into the rule at the desire of the Executive when the rule itself does not provide for it.
22. Moreover rule 54 applies only where a Government servant has been re-instated as a result of departmental proceedings, but has no application where a Government servant is re-instated in pursuance of a decision of the Court Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh A.I.R 1962 S.C 1334.. Therefore Government had no jurisdiction under Rule 54 to withhold the petitioner's salary for the period between 1953 and 1956. As the order Annexure F was passed before the decision of the Supreme Court and in ignorance of the law declared by that Court, I asked Mr. Mehrotra, learned counsel for the State whether the Government could point to any other rule or principle of law under which the order Annexure F could have been passed. He took time to obtain instructions and ultimately informed the Court that he had been instructed to state that Government relied on Rule 54 and no other provision. But in view of the decision of the Supreme Court, this Rule could not be invoked against the petitioner who had been reinstated in pursuance of the decision of this Court. Therefore the direction in the order Annexure F not to pay the petitioner's salary and allowances for the period between 1953 and 1956 is without jurisdiction.
23. The next question is: what relief should be granted the petitioner? Learned counsel for the petitioner contended that he is entitled to an order directing the State Government to pay his salary and allowances for the entire period of suspension. But learned counsel for the State submitted that the Court should issue an order of mandamus directing the Government to pass a fresh order according to law. In my view the petitioner is entitled to an order directing the State to pay his salary.
24. The petitioner's right to receive his salary and allowances for the six years is not only a contractual right but also a statutory right. In 1949 the Governor of Uttar Pradesh passed an order in the exercise of his powers under Sec. 241 of the Government of India Act, 1935, creating 500 temporary posts of Panchayat Inspectors. The conditions of service of these posts, including the scale of pay and allowances, were stated in this order. Therefore, the pay and allowances attached to these posts became a part of the statutory conditions of service. The petitioner was appointed to one of these posts and was entitled to receive his salary in accordance with the statutory conditions of service detailed in the Governor's order of June 6, 1949. He remained under suspension for nearly six years during which his salary was not paid. His removal was set aside by this Court and he was re-instated. After his re-instatement he became entitled to his full salary for the entire period of suspension, but the Government refused to pay him his salary for the period between 1953 and 1956 on the ground that his claim is time-barred. (Annexure F). The finding of this Court is that this decision is without jurisdiction and illegal. It follows that the petitioner is entitled to enforce his statutory right to receive his salary. In Devendra Pralap Narain Rai Sharma v. State of Uttar Pradesh the Supreme Court held that the effect of the decree of the Civil Court declaring an order of dismissal as invalid is that the Government servant must be deemed never to have been lawfully dismissed from service and to declare that he had been wrongfully prevented from attending to his duties as a public servant. The Court held that “it would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.”
25. That the right of a Government servant to receive his pay is a statutory right is borne out by the U.P Fundamental rights. Clause (21) of Rule 9 defines pay as fellows:
“(21) Pay means amount drawn monthly by a government servant as—
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre, and
(ii) overseas pay, technical pay, special pay and personal pay, and
(iii) any other emoluments which may be specially classed as pay by the Governor.”
26. The definition of pay is in the widest possible terms, and certainly wide enough to include the pay of a temporary servant.
27. The concept of pay occupies an important position in the Fundamental Rules. The difference between a temporary and a permanent post is based on the difference in pay. Clause (22) defines permanent post as “a post carrying a definite rate of pay sanctioned without limit of time”, and Clause (30) defines temporary post as “a post carrying a definite rate of pay sanctioned for a limited time”. The words “sanctioned” and “carrying” are significant. “Sanctioned” means sanctioned under the rules and “carrying” means that the post carries with it a certain rate of pay under the rules and the holder of the pay is entitled to that pay. As he is so entitled under a statutory rule, the right to draw a pay is a statutory right in addition to being a contractual right. Again. Rule 19 enjoins that “the pay of a government servant shall not exceed the pay sanctioned by a competent authority for the post held by him”. The word “sanctioned” means sanctioned under the law. Then again the Rules 22, 29 and 31 govern time scales of pay. Rule 22 regulates the initial substantive pay of a government servant who is appointed substantively to a post on a time scale of pay. This rule is too long to be quoted here. Time scale of pay itself is defined in Clause (31) of Rule 9 as “pay which, subject to any conditions prescribed in these rules, rises by periodical increments from a minimum to a maximum.” A perusal of the U.P Fundamental Rules makes it clear that the time scale of pay or any pay attached to a particular post is sanctioned under statutory rules and gives the government servant concerned a statutory right to draw the pay and allowances attached to his particular post. The petitioner's post was created and the time scale of pay attached to this post was created by an order of the Governor (G.O No. 7691.PPD-114/48 dated June 6, 1949) passed in the exercise of his powers under Sec. 241 of the Government of India Act, 1935. Therefore his right to receive his pay and allowances is a statutory right and can be enforced by an order of mandamus.
28. Furthermore, if the pay has already accrued, the right to receive it becomes a right of property and a fundamental right. In Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay the Supreme Court held that “when an employee has done his work, the amount of wages earned by him becomes a debt due to him from the employer, and its property which should be assigned under the law.” The Phrase “wages earned by him” includes wages which the employee would have earned if he had not been wrongfully prevented from earning them. Then again, in Jayantsinghji v. State of Gujarat A.I.R 1962 S.C 821. the Supreme Court held that the right of a seller of property to get the purchase price is undoubtedly a right to property. (Page 832). In that case the principle enunciated in Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay that the right of an employee to receive the amount of wages earned by him is a property right was affirmed. In the present case the petitioner was illegally removed from service and reinstated by an order of this Court. The effect of this Court's decision, to borrow the words of the Supreme Court in Devendra Pratap Narain Sharma's case, was to declare that the petitioner “had been wrongfully prevented from attending to his duties as a public servant” and that “it would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work”. If the petitioner's right to receive his salary and allowances for the period between 1953 and 1956 is a property right, it is also a fundamental right which can be enforced by this Court under Article 226 of the Constitution.
29. Learned counsel for the State contended that the Court should not exercise its powers under Article 226 to enforce a time-barred debt and argued that the remedy under Article 226 is not intended to supersede completely the ordinary remedies in the law Courts. He cited a Supreme Court decision in which it was observed that “where government raises a prima facie triable issue such as limitation the High Court should ordinarily refuse to issue the writ of mandamus for such payment.” State of Madhya Pradesh v. Bhailal Bhai A.I.R 1964 S.C 1006 at p. 1011.. I am not much impressed by this argument. In this case Government has not raised any issue which is even prima facie triable. The only ground on which the petitioner's claim to salary and allowance for the period between 1953 and 1956 has been rejected is that it was time-barred. I have already held that the law of limitation does not apply. Government has conceded the petitioner's claim for salary and allowance for the period between 1956 and 1959, and counsel for the State admitted that if the law of limitation does not apply there is no difference between the claim for the earlier and the later periods. The powers of the High Court are very wide and meant to be exercised in every case where injustice has been done and a right has been infringed and the aggrieved person, through no fault of his own, has been left with no order adequate remedy. In several cases the Supreme Court directed the payment of money compensation, by way of damages or otherwise, to an aggrieved person. In Sales Tax Officer v. Kanahya Lal Makund Lal Saraf A.I.R 1959 S.C 135. the Court confirmed the order of the High Court directing the refund of sales tax illegally collected. In Firm A.T.B Mehtab Majid and Co. v. State of Madras A.I.R 1963 S.C 928. the Supreme Court itself ordered the refund of an amount illegally collected as tax. In Firm Udairaj v. Commissioner Civil Supplies A.I.R 1952 Rajasthan 74., the Rajasthan High Court (Wanchoo, C.J and Bapna, J.) awarded a substantial sum as compensation to a dealer whose stock of grain had been illegally taken away by the Government. Therefore in suitable cases the High Court can order the State to refund monies illegally taken by the State, or pay monies due but illegally retained by Government, or pay a sum of money as compensation for damage caused by a wrongful act of the State. Counsel for the State cited a decision of the Supreme Court in Than Singh v. Superintendent of Taxes A.I.R 1964 S.C 1419. in which the Supreme Court affirmed the decision of the High Court refusing relief on the ground that the petitioner had an alternative remedy. But in that case the jurisdiction of the High Court could have been invoked by a Reference under the statute. In the present case the petitioner has been left with no remedy. But it is noteworthy that in this very judgment the Supreme Court affirmed the principle enunciated in its earlier decisions that the jurisdiction of the High Court (under Article 226 of the Constitution) is couched in wide terms and is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article”. It however added that “the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to self-imposed limitations.”
30. The question whether any particular relief should be granted under Article 226 depends upon the nature and facts of each case. The guiding principle in all cases is promotion of justice and prevention of injustice. In the present case, the petitioner has been deprived of his statutory right to receive his salary and allowances for reasons which are manifestly illegal. He had no option under the rules but to exhaust his departmental remedies before coming to the Court for relief. Meanwhile, his suit for the recovery of a portion of the salary due became time barred. If this Court refuses to grant him any relief, a great injustice will be done to a poor man.
31. Lastly counsel for the State suggested that the Court should pass an order directing the government to re-consider the case according to law. The short answer to this argument is that there is nothing to consider or re-consider. The government have stated that they are willing and ready to pay the petitioner's salary and allowances for the period between 1956 and 1959. They have also admitted that the claim for the period between 1953 and 1956 has been rejected on the ground of limitation and no other. In these circumstances, to ask the Government to re-consider its decision will be a farce and cause unnecessary delay in payment of the petitioner's salary and allowances. In my opinion, in a case under Article 226 where the decision of the State or other competent authority is set aside by the High Court as invalid, and there is no scope for the exercise of discretion by the State and the petitioner's claim is established beyond doubt, it is desirable that the High Court, instead of asking the State to re-consider its previous decision and decide the matter according to law, should be given immediate relief by passing the necessary orders itself.
32. For reasons detailed in this judgment I quash the letter No. 3499 P/XXXIII-233/60 dated October 25, 1960 addressed by Shri R.C Pant, Up-Sachiv, Uttar Pradesh Shasan Vibhag addressed to the Nirdeshak Panchayat Raj U.P Lucknow (Annexure F of the petitioner's affidavit) and also the Adesh (Order) in Hindi of the Nirdeshak Panchayat Raj Uttar Pradesh, No. 4, Sha/645/60-480/49 dated January 20, 1961, (Annexure E of the petitioner's affidavit) and direct the respondent State of Uttar Pradesh to pay to the petitioner his salary and allowances for the entire period of his absence from duty, from 23rd May, 1953 to April 30, 1959 together with such increments as he would have normally drawn had he not been removed from service, and dearness allowance at the rates admissible to him under the orders of Government issued from time to time.
33. Furthermore, I think this is a fit case for awarding interest to the petitioner. The powers of this Court under Article 226 are very wide and it can compensate an aggrieved person in any reasonable manner for any loss suffered by him due to non-payment of his dues. In Firm Udairaj v. Commissioner Civil Supplies the Rajasthan High Court directed the State to pay the money value of the stock of grain illegally seized by it. I think this precedent can be extended to payment of interest on money which was illegally withheld for seven years.
34. There was no justification for not paying the petitioner his salary and allowances in 1960. The salary for three years prior to May, 1956 was refused for reasons which are legally invalid and morally discreditable. Government framed a rule prohibiting its servants to seek their remedies in the law courts before exhausting their departmental remedies and then took advantage of its own rule and of the fact that the petitioner in obeying it had allowed his suit to become time-barred. If a private employer had done this he would be regarded as having played a trick on his servant. The employer's code of conduct cannot be different when the employer is the State. Even the pay and allowances for the period between 1953 and 1956 which were due to the petitioner was not paid to him. As a result the petitioner has been deprived for seven years of the use of the money due to him and the State has retained this amount. This is not the first case in which bureaucratic indifference has resulted in several years' delay in payment of dues to a citizen. I think it is just and equitable that Government should pay compensation by way of interest for monies which it illegally retained for several years. I therefore direct that Government shall add to the sum found due to the petitioner interest at the rate of six per cent per annum from October 25, 1960 till the date of tender of payment.
35. The petitioner shall get his costs from the respondents. This petition was strongly opposed by the respondent State and the hearing lasted for several days. I assess the petitioner's costs at Rs. 400/-/-.
Petition allowed.