Sarma, J.:— This is an appeal by file defendant against the decree of the learned Assistant District Judge No. 2 at Gauhati decreeing in Part the plaintiff's suit.

2. The plaintiff Sri Gopal Krishna Mehra who retired from his service under the Government of Assam as Director of Veterinary and animal husbandry on 31-3-1963, filed the suit for the following reliefs:—(a) a decree declaring that the plaintiff is entitled to the whole of the amount of increment as due under the revised scales of pay which came into force with effect from 1-10-1956 till 31-3-1963, that is the date of retirement of the plaintiff, (b) a decree declaring the order contained in letter No. VET 129/62/25 dated 20-4-65 as illegal and inoperative, and (3) consequential relief of the amount of Rs. 26,437.50 p. being the total increments from 1-10-1956 till 31-3-4963.

3. The plaintiff's case in brief was feat he was appointed as the Principal of fee Veterinary College at Gauhati on contract basis with effect from 29-9-1948 in the scale of Rs. 800-50-1000/-. He was also allowed to hold charge of the Post of Director of Veterinary with effect from 11-11-1949 but without any extra remuneration. He was afterwards appointed as Director of Veterinary with effect from 11-11-1950 in the scale of Rs. 800-50-1000/- and was placed on probation for one year and them confirmed in the cost with effect from 26-9-1962. The plaintiff reached the maximum of his scale, that is. Rs. 1000/- per month in November, 1952. The plaintiff was placed under suspension on some charges with effect from 24-4-1956 and he remained on suspension till 11-3-1961. During this period some criminal cases as well as departmental proceedings were instituted against him. As those cases and departmental proceedings ended in his favour the plaintiff was reinstated be service wife, effect from 12-3-1961 and ultimately he retired from service on superannuation with effect from 31-3-1983, while he was drawing the Dasnnm in fee scale of Rs. 800-50-1000/-. During the period from 1956 to 1962 the pay scales of the employees of the Government of Assam were thrice revised — once in 1956, once in 1959 and again in 1962 According to the revision in 1956 the scale of Pay of the Director of Veterinary was fixed at Rs. 800-50-1100-E, B-50-1150. According to the revised scales of 1959 the ordinary scale of Day for the Director of Veterinary remained the same that is Rs. 800-1150/- but it created a separate scale of Rs. 1000-60-1300-E, B-50-1500/- for persons with merit and extra qualifications. In the revision of 1952 the Department of Veterinary was upgraded to a major department and the scale for the Director was fixed at Rs. 1000-1500/-. The revised scale of 1956 was given effect to from 1-10-1956, vide Government Notification dated 26-12-1956, subject to exercise of option by the employees concerned within six months from the date of the notification. The revised scales of 1959 were given effect to from 1-4-1959, vide Government notification dated 21-11-1959 and those of 1962 were given effect to, from 1-10-1962, vide Government notification dated 10-1-1963. There was no question of any option of the employees so far as these two scales-were concerned. It may be mentioned here that after reinstatement of the plaintiff in service on 12-3-1961 the Government decided and informed the plaintiff that his period of suspension would be counted towards leave, pension and increment as regards his Pay during the period of suspension, it was decided by fee Government that he would set three-fourths of his Pay and allowances during that period to be adjusted against the subsistence allowance already drawn by him. In spite of the Government order that the period of suspension would be counted towards increment etc. the Government did not allow him the benefits of the aforesaid revised scales. The plaintiff moved the Government to give him the benefits of those scales, to which he was legally entitled, but the Government by its letter No. VET 129/62/25 dated 20-4-1965 refused to give him the benefits of those scales. The plaintiff accordingly filed the present suit for the reliefs as mentioned above. The defendant (State of Assam) filed a written statement and contested the suit. Most of the facts alleged in the plaint were admitted by the defendant. According to the defendant the revised scale of 1956 could not be given to the plaintiff as he failed to exercise his option within the prescribed period as required under paragraph 4(1) of the Government resolution No. FEP 3/56/27 dated 26-12-1956. The revised scales of 1959 and 1962 could not be given to the plaintiff as he did not merit and quality for the said scales. The defendant further alleged that the plaintiff being under suspension from 1956 to 1961 and thus away from actual duties, was debarred from enjoying the benefits of 1959 scale as the Government did not get any opportunity to test his merit and as he did not possess the required Qualification. The suit was also resisted on various other grounds, which gave rise to the following issues:—

1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable?

3. Whether proper Court-fee for declaration has been paid?

4. Whether the plaintiff was entitled to the revised pay scales of 1956, 1959 and 1962 and increments thereunder, as alleged?

5. Whether valid and sufficient notice under Section 80 of the CPC was served?

6. Whether the suit is barred by limitation?

7. Whether the suit is barred by principles of res judicata?

8. Whether the plaintiff is entitled to the declarations and relief prayed for?

9. To what relief the parties are entitled?

4. The learned Assistant District Judge answered the issues Nos. 1, 2 and 5 to 8 in favour of the plaintiff. In deciding issue No. 3 it was held that the plaintiff was liable to Day a separate court fee for the declaration and accordingly the plaintiff paid the same. While deciding the issue No. 4 the learned Assistant District Judge held that the plaintiff was not entitled to get the benefits of the revised scale of 1956 as he failed to exercise his option within the prescribed period. But so far as the other two revised scales are concerned, the plaintiff was found to be entitled to get the benefits of the same, subject however to the condition that for the period of suspension of the plaintiff, he would get only three-fourths of his pay and allowances as may be admissible under the 1959 revised scale, as the Government had already decided to Pay and the plaintiff also agreed to accept at such rate for the said period. In this view of the case the learned Assistant District Judge found the plaintiff to be entitled to get a decree for Rs. 6,768/- on account of his arrear pay and allowances according to the revised scales of 1959 and 1962. The suit was accordinerly decreed for this amount with proportionate costs with a declaration that the impugned Government order dated 20-4-1965 refusing to give the benefits of the revised scales to the plaintiff was bad in so far as it debarred the plaintiff from getting the benefits of the last two revised scales.

5. Being aggrieved by the judgment and decree of the learned Assistant District Judge, the defendant has come up with the present appeal.

6. Mr. S. Ali, the learned counsel appearing for the appellant, urged only two points before us. His first submission was that the respondent, who was appointed on a contract, basis, was not entitled to the benefits of any of the revised scales. His next contention was that the learned Assistant District Judge should have held that the plaintiff's suit was barred under article 7 of the First Schedule to the Indian Limitation Act, 1963.

7. The first contention is evidently without any force. Though the plaintiff was initially appointed as the Principal of the Veterinary College on a contract basis, it has been admitted now by the defendant in its written statement that he was later appointed on probation as Director of Veterinary Department with effect from 23-7-1931 and later confirmed in that post with effect from 26-9-1962 vide Government Notification AGV 35/63/38 dated 29-2-1964.

8. So far as the other point is concerned the contention of Mr. S. Ali is that the trial Judge was in error in holding that the plaintiff's claim regarding arrears of his salary was within time. According to him article 7 of the Indian Limitation Act, 1963, which prescribes limitation of three years from the date when the salary accrued due, would apply in the present case. Salary for each month, he submitted, accrued due on the first of the next month. The plaintiff retired from service on 31-3-1963 and the suit was filed on 20-6-1968, that is after more than 5 years of his retirement. That being the Position, the suit was barred, according to him even in regard to the salary for the last month of the plaintiff's service, that is for the month of March 1963, not to speak of his salary for any earlier period. In support of this contention the learned counsel for the appellant relied on two decisions of the Supreme Court in Madhav v. State of Mysore, AIR 1962 SC 8 and Jai Chand Sawhney v. Union of India, (1969) 3 SCC 642.

9. There is no dispute that ordinarily, if a Government servant files a suit for recovery of his arrear salary, article 7 will apply because the salary of the employee accrues due every month. Mr. P.C Kataki the learned counsel for the respondent, however, submitted that the recovery of arrear salary, under the revised Day scale stands on a different footing, as a Government servant is not entitled to draw his salary at the revised scale unless and until the Government fixes his salary according to the same. That being the position, he submitted, till the salary of a Government servant is fixed by the Government according to the revised scale, it cannot be said to have accrued due and so article 7 of the Limitation Act will not apply. Article 113 of the Limitation Act 1963, according to him, would apply in such a case. This article prescribes a period of limitation for three years from the date on which the right to sue accrues. In the instant case, it was submitted, the right to sue arose as soon as the Government refused to fix the salary of the plaintiff according to the revised scales by its letter dated 20-4-65. The present suit having been instituted within three years from the said date, it is well within time according to the learned-counsel for the respondent. In support of this contention he relied on a decision of the Punjab High Court in State v. Bhagwan Singh, AIR 1968 Punj 58.

10. In the case reported in AIR 1962 SC 8 a Government servant, who was reverted from a higher post, filed a suit for declaration that the order of reversion was void and for a decree of Rs. 12,886/- as arrear Day and allowances representing the difference between the pay and allowances actually drawn by him during a period spreading over about seven years and those to which he would have been entitled but for the wrongful order. The point urged before the Supreme Court in this case was that Article 102 of the Limitation Act 1908 (which corresponds to article 7 of the Limitation Act, 1963), which is applicable in case of “wages” is not applicable in such a case, as “salary” is not included in the term “wages”. The Supreme Court rejected this contention and allowed the claim of the appellant for arrear salary and allowances in respect of three years only preceding the suit.

11. In the case reported in (1969) 3 SCC 642 (supra), the appellant filed a suit against the respondent in the Court of the Subordinate Judge for setting aside the order of his removal from service and claimed a decree of Rs. 20,399/- being the amount of arrears of salary and damages for wrongful termination of his employment. The trial Court held that the dismissal order was illegal and decreed the claim for Rs. 9,735.35 for arrear of salary. The High Court in appeal awarded arrears of salary for three years only prior to the suit. In appeal before the Supreme Court the appellant contended that under Article 102 (now Article 7) of the Limitation Act the period of three years commences to run from the date on which the order of dismissal is set aside and that the cause of action in a suit by a dismissed employee arises on the date of institution of the suit, if the Court sets aside the order of dismissal or removal. It was held by the Supreme Court that if the order of dismissal is set aside, the public servant is deemed to be in service throughout the period during which the order of dismissal remained operative and his right to sue for salary arises at the end of every month in which he was unlawfully prevented from earning his salary, which he could, but for the illegal order of dismissal, have earned. In that view of the case it was held that the High Court was right in holding that the plaintiff's claim was governed by Article 102 and in allowing his claim for a period of three years only preceding the suit.

12. In the case reported in AIR 1968 Punj 58 relied on by the learned counsel for the respondent the Day scale in the post held by the plaintiff was revised in 1950 but the Government finally decided the matter of fixing the plaintiff's Pay in the revised scale on 13-2-61. In such circumstances it was held by the High Court that the wages at the enhanced rate fell due on 13-2-61 and not earlier. In this case the respondent relied on an earlier decision of the same Court in Union of India v. Ram Nath Chitory, AIR 1966 Punj 500, the facts and the decision in which are exactly similar to those in (1969) 3 SCC 642 (supra). The Court, however, held that this case has not no bearing as the facts are distinguishable. In deciding this appeal the Court held:

“It is undisputed that the Government and not the Accountant-General, Punjab, was the proper authority for fixing the plaintiff's pay in the new time-scale. The Government decided this matter on 13-2-1961, vide Exhibit P-1, by which the claim of the plaintiff was admitted. If the decision of the Government had been against the plaintiff, it is only then that he could file a suit in a civil court. He could not go to the civil court earlier than that date, because in that case, the same would have been dismissed as premature because the proper authority which had to fix his Pay in the new time-scale, had not given any decision against him. It is only to challenge an adverse decision that one goes to a civil Court to get it rectified. In the instant case, the appropriate authority had not given any decision against the plaintiff. The plaintiff's pay was rightly fixed on 13-2-1961 and consequently, it would be on this date that the wares at the enhanced rate fell due to him. Admittedly, the suit was brought within three years from this date.”

13. We have no hesitation to hold that the two cases of the Supreme Court relied on by the learned counsel for the appellant have got no bearing on the present case.

14. In those cases there was no dispute as to the salary of the public servant concerned, but for the order of reversion in one case and the order of dismissal in the other case. As those impugned orders were set aside, the salaries to which they were entitled, about which there was no dispute, were deemed to have accrued from month to month even during the period in which these orders were operative, as these were ‘non est’ in law. In the instant case there is no dispute that the respondent could not be entitled to draw his salary according to the revised scales, unless his salary was fixed according to these scales, by the Government. There is also no dispute that the final decision of the Government denying the plaintiff the benefits of the new scales was communicated to him by the letter dated 20-4-65 (Ext. 1). We are in respectful agreement with the view taken in AIR 1968 Punj 58 (supra) that in such a case the plaintiff had no cause of action to come to the civil Court before the Government decision went against him. In the instant case, unlike in the Punjab case, the Government decision having gone against the plaintiff, it cannot be said that his salary, according to the revised scales, accrued due with effect from the Government order dated 20-4-65. In such a case, we agree with the learned counsel for the respondent. Article 7 will not apply. As there is no specific provision in the first Schedule to the Limitation Act governing such a case, we agree with the learned counsel for the respondent that the residuary Article 113, which provides limitation of three years from the date on which the right to sue accrues, is applicable. As the suit was filed by the plaintiff within three years from 20-4-65 on which date the cause of action for the suit arose, the suit was rightly held to be within time by the trial Court, in our opinion.

15. In the result, the decree appealed against is affirmed and the appeal is dismissed with costs.

16. Baharul Islam, J.:— I agree.

17. Appeal dismissed.