1. This is a petition under Article 226 of the Constitution of India for the issue of a writ of Mandamus or any other suitable direction.

2. The petitioner has alleged that the Inspector of Schools, District Morena, vide his letter No. 3/(1)44/20028 dated 17th December 1954 (Anuex-ure 2) appointed him as a Craft Teacher on a pay, the scale of which was Rs. 40-3-70. In the letter of appointment it was said that the applicant, who was appointed as a Craft Teacher, shall not be taken in the general line (teaching line) and he was further told that he would not be allowed to appear in any examination. These were the conditions of his appointment. After his appointment as a Craft Teacher, he was asked to work in the general line as a Teacher at Vagwaj. The petitioner wrote to the Inspector of Schools that this was in breach of the conditions of his appointment. In spite of his protest he continued to be in the teaching line.

He worked in the Middle School Bhesroli, Pargana Jaura as a teacher from where he was transferred to Vijaypur Middle School, which he joined on the 15th November 1957. He was assigned the task of teaching the adults in the night school. After he had taken over the charge of the Night School, he found that there was no arrangement for light and he wrote letters to the higher authorities to make provision for it. In reply the Department wrote to the petitioner that he might meet the expenses from his own pocket and later on he would be paid. The Inspector of Panchavat Samaj Sewak Vijaypur and the Secretary Teachers' Association visited the school and found the work of the petitioner satisfactory, but in the report they said that as there were no proper arrangements for the light and seating the adult education could not be continued properly.

It seems that the Inspector of Schools also inspected the Adult School, and, in his report he made a remark to the effect that if the work or the petitioner would not bo found satisfactory, his salary would not be disbursed to him. On these observations of the Inspector, the Assistant Inspector of Schools stopped the salary of the petitioner and since then the applicant is without obvious means of subsistence. The order of the Assistant Inspector of Schools is Annexure 2. The complaint of the petitioner is that in spite of the repeated reminders for his salary, he has not been paid his emoluments from the month of January 1959. The main grievance of the petitioner is that "stoppage of his salary is illegal" and without jurisdiction and that it is no fault of his, if Adult Classes could not be carried on properly owing to the lack of provision of light by the Department itself.

3. In the return filed by Mr. Ramesh Datt. Mishra, Inspector of Schools, on behalf of himself and the Government of Madhya Pradesh, he seems to make light of the assurance given to the petitioner that he will not be taken in the teaching line and he contends that the Government Department is not bound by such assurances. He has stated that the term in the letter of appointment binds the petitioner and that his Department is not bound to observe it. I have referred to this part of the Return for what it is worth. In this petition I am only concerned with the stoppage of the salary, which 5s a punishment imposed upon the petitioner. In passing, I may observe that I am really surprised at the stand taken by the Department in respect of the assurance given to the petitioner. How far the Department is justified in driving a round peg in a square hole is a question which I leave to the discretion of the Education Department. But the attitude taken is one which requires reconsideration.

4. The question which I now propose to examine is whether the Education Department was justified in stopping the pay of the petitioner. The Education Department admits that when the petitioner asked for the provision of light for night classes, he was told that he should spend his own money to get the light and then Submit his bill to the Department tor payment, This is a very queer way of running a Government institution. It has argued at the bar that the petitioner did spend some money of his own for the light he provided but that not only have the bills remained unpaid but to boot his salary was also stopped.

5. With regard to the stopping of salary it is said jn the return that on 11-3.2-58, when Mr. R. L, Bhagherwal, Inspector of Schools, Morena, visited the School, he passed an order (Annexure D) dated 19-12-1958 which reads as follows:

‘‘प्रौढशिक्षाका कार्य विल्कुल नहीं हो रहा है। पाठक का कहना है कि वे यह काम करने में असमर्थ है। उनको समझना चाहिये कि उनकी नियुक्ति इसी काम के लिये है। अगर वे इसको करने में असमर्थ है तो सेवायें समाप्त करने के सिवाय दूसरा कोई रास्ता नहीं रह जाता है। प्रधान पाठक कक्षाओं के काम से उनको अविलम्ब रिलीव्ह कर उनका वास्तवित कार्य उनको करने के आदेश दे और साप्ताहिक रिपोर्ट भेजे। अगर उनको सफलता न मिलती हो तो उनका वेतन वितरण न करें।’’ From this order, it appears that the petitioner protested to the Inspector that he was not capable to do the teaching work in general line. But the Inspector seems to have forced the work upon him, and, in the concluding part of his report, the Inspector said that the Head-Master of the School should relieve him of the other work he was doing, and entrust him with adult education, the classes of which are conducted in the night. The Head-Master was further asked to give a weekly report about the progress of his work and it was said that if his work would not be satisfactory, his pay would be stopped. There is no weekly report of the Head-Master to the effect that after the inspection by the Inspector, the work of the petitioner was found unsatisfactory. The learned Government Advocate has not been able to place before us any such report. In the circumstances, it is difficult to understand why his pay was stopped.

6. The stopping of pay is a punishment of a most severe nature. Let us see if it is provided in the Rules. To stop pay and then to ask some one to work is almost asking a person to do 'Begar', In the Return (para 14, a) it is said that the pays of the petitioner was temporarily withheld in pursuance of the punishment rules given on page 27, of the Gwalior State Educational Manual of 1936. No doubt there is such a provision in the Manual referred to above, but the Education Department seems to be oblivious of the fact that under Article 309 iof the Constitution of India, the Government of Madhya Bharat had made Rules (regulating the condition of service of persons in the employment of the State) and these rules provided punishments as well.

7. NO doubt before the advent of Madhya Bharat, these punishment Rules of the Manual were valid. But on the formation of the Madhya Bharat, the Government of Madhya Bharat in exercise of the powers conferred by Article 309 of the Constitution and in supersession of the previous orders and rules on the subject, made rules relating to punishment and appeals of the persons in Civil posts. These rules were known an (Madhya Bharat Civil Services (Punishment and Appeals) Rules of 1950'. They were, however, later on repealed and a new set of Rules, known as Madhya Bharat Civil Service Classification Control and Appeal Rules, 1956, were published in the Madhya Bharat Government Gazette dated 31st October 1956. These rules made under Article 309 of the Constitution of India made a clean sweep of all the punishments provided on the subject in the Covenanting States that formed Madhya Bharat.

It, therefore, follows that the various punishments in the Gwalior State Education Department Manual 1936. ceased to exist and a civil servant could only be punished according to the Rules of 1956 referred to above. A teacher holds a civil post and no punishment can be awarded to him outside the Rules of 1956. The pay of the petitioner was stopped from 1st January 1959. On going through the Rules of 1956, I find that they do not provide for the withholding of any pay by way of punishment. Thus the order passed regarding, the temporarily withholding of pay is ultra vires of the Rules of 1956, which have the force of law. The reason why withholding of pay is not one of the punishments retained in the Rules made under Article 309 of the Constitution of India, is that Article 23 of the Constitution of India prohibits 'Begar'. To ask a man to work and then not to pay him any salary or wages savours of Begar. It is a fundamental right of a citizen of India not to be compelled to work without wages. In this view of the matter, the stopping of pay and making the teacher to work is not only against the Rules of 1956 referred to above, but it also offends against the spirit of Article 23 of the Constitution.

8. I am, therefore, of the opinion that the imposition of penalty, namely, that of stopping of pay is without jurisdiction. If the Department was not satisfied with the work of the petitioner it could have dispensed with his services in a proper manner.

9. I, therefore, allow this petition and quash the order of the Assistant Inspector of Schools and direct that the petitioner should be given his salary. The petitioner is allowed costs and the fee of the counsel is fixed at Rs. 100/-.

Shiv Dayal, J.

10. The petitioner's appointment as a teacher is admitted in the Return. It is not the case of the respondents that the petitioner was suspended or removed from service. As such there can be no doubt that he was entitled to his salary. A Government servant so long as he continues to be in service must be paid his salary. That is his legal right and it is the duty of the State Government to pay it. The learned Government Advocate has not been able to place before us any law or Rule or Regulation in force under which the Government can withhold the salary of an employee. The action of the Education Department in stopping the petitioner's salary is high handed, arbitrary and without jurisdiction. This is, therefore, a clear case for the issue of mandamus.

(The rest of the judgment (paras 11-12) does not contain any law point and is omitted for the purpose of this report -- Ed.)