Suraj Singh vs State of Himachal Pradesh and Others

T.U. Mehta, Acting, C.J.—The Plaintiff was serving as a General Manager, Transport in Himachal Pradesh and was recruited as such in the year 1949. He has filed this suit for recovery of arrears of salary and other allowances to be calculated on the basis of the salary admissible to corresponding post of Transport Controller of the adjoining State of Punjab at the relevant time, and he has, in the alternative, also prayed for recovery of the special pay of Rs. 225/- per month which, according to him, was admissible to him on account of the fact that he was discharging his duties as General Manager, Transport in Himachal Pradesh on a post which was caderised to be a Joint I.A.S. post. The Plaintiff has made further claims as regards gratuity and interest or damages on the amount remaining unpaid. It is further contended by the Plaintiff that though he applied for leave preparatory to retirement quite in time, the Government did not take any decision on that application for long with the result that ultimately he could avail of leave preparatory to retirement only for 25 days. He has, therefore, also claimed the amount of leave salary for 95 days. He has further contended that whatever salary is found due to him it is likely to result in the adjustment of his pension and, therefore, he has prayed for a declaration that he is entitled to get his pension on the basis of the enhanced pay and emoluments which he has claimed in this suit. It is found that on 1st August, 1963 the Plaintiff was deputed to a foreign service, as General Manager of Mandi-Kulu Road Transport Corporation which was, at the relevant time, under the Government of Punjab and, therefore, he has clamied deputation allowance at the rate of 15 per cent on the enhanced amount of pay which he now claims in this suit.

The suit is filed against the State of Himachal Pradesh as Defendant No. 1, Mandi-Kulu Road Transport Corporation, Mandi, as Defendant No. 2, and Himachal Road Transport Corporation, Simla, as Defendant No. 3. It is an admitted position that Defendant No. 2, Mandi-Kulu Road Transport Corporation was previously established by the Punjab Government, and subsequently, it has been re-named as Himachal Road Transport Corporation which is Defendant No. 3.

The case of the Plaintiff, shortly stated is that on 7th April, 1949, he was appointed as the first General Manager of Himachal Pradesh Government Transport. His salary was initially fixed in the scale of Rs. 600-25-750. However, from 4th September, 1952, this scale was raised to Rs. 600-30-900. The case of the Plaintiff is that the Central Government had given directives to Himachal Pradesh Administration and other Class ''C'' States that the salary of the officers functioning in these States should be at par with the salary given to the officers occupying a corresponding post in the neighbouring States. According to the Plaintiff, the duties and functions which he was discharging as General Manager were exactly the same as duties and functions discharged by the Transport Controller of the adjoining State of Punjab, and therefore his salary ought to have been fixed accordingly. In this connection, the Plaintiff has relied mainly on the demi-official letter written by Ministry of States, Delhi, and addressed to all Chief Commissioners on 5th June, 1950 (Ex. P.W. 1/E), and other related communications. Relying upon the above referred letter the Plaintiff contends that it was his right to get the salary which was given to the officer occupying the post of Transport Controller in Punjab. It is said that this scale was Rs. 800 to 1800 and therefore the scale of pay of Rs. 600-30-900 which was given to him, was not proper.

It is found that in this connection the Plaintiff started making representations to the concerned authorities from the year 1955. The earliest representation, which is found in the record of the case, is dated 25th January, 1955 found at Ex. P.W. 2/E. This representation is addressed by the Plaintiff to the Lieutenant Governor, Himachal Pradesh. In the next year, more or less similar representation was filed by him on 8-11-1956, as found at Ex. P.W. 2\\F. It is found from the record of the case that the authorities in the Himachal Pradesh Administration supported the case of the Plaintiff. This is evident from the letter written by Additional Secretary (Transport) to Himachal Pradesh Administration to Under Secretary, Government of India, on 19th June, 1957, (Ex. P.W. 2/B), and the letter written by the Lieutenant Governor, Himachal Pradesh, to Joint Secretary, Ministry of Transport, Government of India, on 14th April, 1958 (Ex. P.W. 2/A). It, however, appears that the Government of India did not accede to this request of the Plaintiff. The Plaintiff, therefore, went on making representations in the matter. There are several such representations produced in the record of the case, but it is not necessary to refer to all of them at this stage. It would be sufficient to mention that ultimately on 30th June, 1960, the Central Government agreed to revise the pay scale of the Plaintiff as from 25th February, 1960, in the scale of Rs. 900-50-1200, and thereafter again the scale was revised to Rs. 1300-50-1500 as from 1st February, 1968. The Plaintiff, however, was not satisfied by these revisions, because his contention throughout has been that it was his right to get the pay scale of the corresponding post in Punjab, namely, the scale of Rs. 800 to 1800. Since this scale was never given to him, the Plaintiff has claimed the difference of pay calculated on the strength of that scale, as found in Schedule-A which is attached to the plaint. Reference to this Schedule shows that on this count the Plaintiff has claimed the amount of Rs. 19,231 as the difference payable to him plus Rs. 2,885/- which is the deputation allowance at the rate of 15 per cent on this difference. The Plaintiff has added the amount of Rs. 3,460/- as the gratuity which would be payable to him on this difference and Rs. 4,779/- as leave salary for the refused leave preparatory to retirement, and Rs. 22,032/- as interest or damages on the above amount at the rate of 12 percent per annum from the date of retirement till the date of the suit. Thus, on the allegation that he is entitled to the difference between the pay which he has actually received and the pay that he was entitled to receive in the scale of the corresponding post in Punjab he has put forward the total claim of Rs. 52,387/-.

Facts of the case show that while the Plaintiff was in service of Himachal Pradesh Administration, the post of General Manager which he was occupying was caderised as Joint I.A.S. post with effect from 18th April, 1962. The Plaintiff, however, continued to occupy that post of General Manager till 31st July, 1963. In the year 1963, the Punjab Government wanted to utilise the services of the Plaintiff for Mandi-Kulu Road Transport Corporation as its General Manager. The Punjab Government, therefore, requested the Himachal Pradesh Administration to send the Plaintiff on deputation. The Himachal Pradesh Administration agreed to this with the result that the Plaintiff was sent on deputation on the said foreign service as from 1st August, 1963. On 24th July, 1963, the Government of India, Ministry of Home Affairs, addressed a letter to the Chief Secretary, Government of Himachal Pradesh, conveying sanction of the President to allow the Plaintiff to be on deputation as General Manager, Mandi-Kula Road Transport Corporation, on "his substantive pay plus his special pay in full and a deputation (duty) allowance at 15% of his substantive pay during his deputation" (Vide Ex. P.F). Pursuant to this letter, Government of Himachal Pradesh addressed the letter Ex. P.W. 8/8 to the Plaintiff on 29th July, 1963, conveying the said terms and conditions of his deputation and further adding that "formal orders about your deputation to Punjab Government will be issued by them in due course". It is thus found that on these terms and conditions the Plaintiff went on deputation to Mandi-Kulu Road Transport Corporation on 1-8-1963.

After the Plaintiff joined his duties on deputation, the Government of India is found to have taken some decision with regard to the regulation of pay and emoluments of the persons not belonging to I.A.S. Cadre occupying the post which falls within the list of Joint I.A.S. Cadre post (Ex. PW. 8/28). Copy of this letter was circulated by Officer-on-Special Duty, Government of Himachal Pradesh, by his letter dated 4th September, 1963. One copy was sent to the Plaintiff by the then General Manager, Himachal Pradesh Transport, along with his letter dated 30th April, 1964 (Ex PW. 8/10). In response to this the Plaintiff communicated to the Officer-on-Special Duty (Appointment Department), Himachal Pradesh Government, his option with reference to the regulation of his emoluments by his letter dated 6/7th May, 1964 as per Ex. PW. 8/11. At this stage it should be stated that the case of the Plaintiff is that option which he was given by the above referred letter of the Central Government, as found at Ex. PW. 8/28, was either to accept the revised pay scale of Rs. 900-50-1250 or to opt for his own grade pay plus special pay at the rate of Rs. 150/- plus Rs. 75/-. Plaintiff''s case is that since at the relevant time he was already in the scale of Rs. 900-50-1200 he opted for his own grade pay plus special pay at the rates mentioned in the above referred letter of the Government of India. It is averred by the Plaintiff that this special pay work out to Rs. 225/- per month but he was never paid this special pay in spite of his repeated demands as the Government had never fixed his pay accordingly. The Plaintiff has, therefore, claimed this special pay at the rate of Rs. 225/- per month from 27-9-1961 to the date of his retirement, i.e. 18-5-1968. At Schedule-B, which is attached to the plaint, the Plaintiff has mentioned how he has calculated this arrear of special pay. These calculations show that he has claimed Rs. 17,936/- on account of the special pay in arrears and Rs. 2,690/- on account of deputation allowance at the rate of 15 per cent on this special pay of Rs. 17,936/-. He has further claimed a gratuity of Rs. 1,000/- ansd leave salary of the refused leave before retirement at R. 4,809/-. He has added to this interest or damages at the rate of 12 percent from the date of retirement till the date of the suit amounting to Rs. 19,610/-. Thus, in all the Plaintiff has claimed on this count the amount of Rs. 46,045.00.

It should be mentioned here that the above referred claim of special pay and other amounts totaling to Rs. 46,045/- is claimed in the alternative to the first claim of Rs. 52,387/-.

The suit is resisted by the Defendants on various grounds. Defendants have taken preliminary objections stating that the plaint does not disclose any cause of action, that the suit is not properly valued for the purpose of Court fee and jurisdiction, that the suit is defective for want of non-joinder and mis-joinders of parties, that notices u/s 80 CPC are invalid, and that the Plaintiff has no enforceable right.

So far as the main claim of the Plaintiff with regard to obtaining the difference between the salary received by him and the salary which should have been paid to him on the basis of the pay scale of the corresponding post in Punjab is concerned, the contention of the Defendants is that this claim of the Plaintiff is totally misconceived as the Plaintiff had acquired no right to obtain the pay scale of the corresponding post in Punjab as the Government of India has not given any such decision in the matter. In this connection it is pointed out that in Punjab the post known as the post of a Transport Controller was manned by an I.A.S. officer drawing a senior scale of I.A.S. grade and, therefore, the scale of Rs. 800 to 1800 which that officer was receiving was not the scale of pay attached to the office of the Transport Controller. It was rather the scale which was attached to the I.A.S. cadre itself. The Defendants have further relied upon certain instances of the pay scales carried by the officers belonging to other departments of Himachal Pradesh to show that till 1970 even they were not carrying the pay in the scale which was fixed for the corresponding posts in Punjab. Defendants have also contended that at any rate this claim of the Plaintiffs is hopelessly barred by time because all throughout the years during which the Plaintiff has made various representations forgetting the scale prevailing in the corresponding post in Punjab, the Government of India have not at any time given him to understand that his representations had any substance. On the contrary, it is contended on behalf of the Defendants that the Plaintiff unequivocally was given to understand that his demand was not acceptable to the Government of India.

So far as the alternative case of the Plaintiff as regards the arrears of special pay at the rate of Rs. 225/- is concerned, the case of the Defendants is that the letter of the Government of India dated 23rd August, 1963 by virtue of which the Plaintiff is said to have exercised option never covered the case of the Plaintiff and the copy of that letter was sent to the Plaintiff not for the purpose of inviting the Plaintiff to exercise option but for the reason that such copies were sent to every officer of the Government. This was the contention raised by the learned Advocate of the Defendants during the course of the arguments. However, if a reference is made to paragraph 8 of the written statements filed by these Defendants it is found that with regard to the special pay the Defendants have averred as under:

"As the Plaintiff was not a member of the I.A.S cadre or on the select list the post of General Manager Himachal Pradesh Transport was held in abeyance in accordance with Ministry of Home Affairs letter No. 1/2/62-Delhi-L-DH (S), dated 23-8-1963 and the Plaintiff opted for his grade pay plus special pay instead of the revised scale of Rs. 900-50-1250 plus special pay vide his letter No. 1921-22/663/PE/E, dated 6/7th May, 1964.

It is evident by reference to above referred paragraph 8 and other portion of the written statement that nowhere a plea is raised therein to the effect that the Plaintiff was not covered by the Government of India''s letter, dated 23rd August, 1963, and that the copy of that letter was sent to him in usual course as it was sent to other officers also.

The Defendants have further pleaded that as the Plaintiff had a lien on the post of General Manager, Transport, and as the said post was caderised in Joint I.A.S. cadre in order to accommodate the Plaintiff a supernumerary post of General Manager was created on 24th May, 1965 with retrospective effect from 18-4-1962 which is the date on which the post of General Manager was brought into the Joint I.A.S. cadre. In this connection the Defendants have relied upon Government of India''s letter to the Chief Secretary, Himachal Pradesh, dated 24-5-1965 found at Ex. P.W. 8/31. It is contended that by this letter the Plaintiff''s pay scale was determined as Rs. 900-50-1200 with effect from 18-4-1962, and therefore the Plaintiff cannot claim anything more than this grade pay and other usual allowances.

Even with regard to this alternate claim, the Defendants have pleaded limitation and have contended that the cause of action to claim special pay arose every month and since this suit is filed as late as 10th September, 1974 the same is barred under Article 7 of the Limitation Act.

In view of these pleadings, my learned predecessor has framed the following issues on 2nd January, 1976:

(1) Whether the suit of the Plaintiff is within time. OPP

(2)Whether the plaint does not disclose any cause of action against the Defendants. If so, its effect. OPD

(3) Whether the suit has not been properly valued for purposes of Court-fee and jurisdiction. OPD

(4) Whether the suit is defective for non-joinder and mis-joinder of parties as alleged. OPD

(5) Whether the notices u/s 80 CPC served by the Plaintiff were invalid and ineffective. If so, its effect? OPD

(6) Whether the Plaintiff has no enforceable right. OPD

(7) Whether the suit for declaration is barred under the provisions of the Central Act No. 23 of 1871 as alleged. Has the Court no jurisdiction to try the suit for the reliefs claimed. OPD

(8) Whether the Central Government had decided that the pay scales of the General Manager (Transport) were to be similar to its corresponding post of the Controller (Transport) Punjab. If so, its effect OPP

(10) Whether the decision of the Central Government revising the pay scale of the Plaintiff with effect from 25-2-1960 as alleged in para 19(a) of the plaint was ineffective and inoperative. Was the Plaintiff entitled at any rate to the scale of Rs. 1600-2000 allowed to the officers of the Industrial Management Pool. OPP

(11) Whether the Plaintiff was entitled to the pay scales of Rs. 800-1800 with effect from 1-3-1956 to 31-1-1968 and Rs. 1800-2250from 1-2-1968 to 18-5-1968 and is entitled to get arrears of pay, pay for leave preparatory to retirement, deputation allowances and gratuity on the basis of these scales of pay. If so, to what amount is the Plaintiff entitled. OPP

(12) Whether the Plaintiff was not allowed to avail of his leave preparatory to retirement for 95 days. Is he entitled to claim emoluments for this period. If so, how much. OPP

(13) Whether the Plaintiff is entitled to interest as claimed on the amount due and payable to him as alleged in para 23 of the plaint. OPP

(14) Whether in the alternative the Plaintiff is entitled to his own grade plus the special pay of Rs. 225/- p.m. as alleged in para 24 of the plaint. If so, to what amount is the Plaintiff entitled. OPP

(15) Whether the Plaintiff is entitled to the declaration regarding fixation of his pension as alleged in para 21 (b) of the plaint. OPP

(16)Whether the cadrisation of the post of the Plaintiff into I.A.S. was illegal as alleged. Did it not in any manner affect the rights of the Plaintiff for the scale of pay claimed by him. OPP

(17) Whether the Plaintiff opted in May, 1964, for his grade pay plus special pay instead of the revised scale of Rs. 900-1200 as alleged. If so, its effect. OPD

(18) Could the Central Government alone decide the representation of the Plaintiff regarding the revision of pay? Was the decision of his representation by the Himachal Pradesh Government without jurisdiction as alleged. OPP

(19) To what relief, if any, is the Plaintiff entitled?

Out of these eighteen issues, issues Nos. 3 and 5 are not pressed. I find that several issues are overlapping and some of the issues do not bring about the real point in controversy between the parties. But this aspect of the matter will be taken care of at the time of determining these issues.

So far as issues Nos. 2 and 6 are concerned, they cover practically the same point, namely, whether any enforceable right in favour of the Plaintiff exists which would provide him a cause of action to file this suit. Whether the Plaintiff has got a right which could be enforced in a Court of law has to be decided from the averments contained in the plaint. Shortly stated, the case of the Plaintiff is that he was entided to certain pay and emoluments, and since they are not paid a decree ordering the payment of the same be passed against the Defendants. It is now well settled that the salary of a Govt. servant is not a bounty from the State and if it is found that a particular Government servant was entitled toa particular salary or emoluments he has got a legal right to recover the same from the State. Under the circumstances, it is difficult to comprehend how it can be said that the Plaintiff has not got any enforceable right and that therefore ''there is no cause of action in his favour. Issues Nos. 2 and 6 are, therefore, decided against the Defendants.

Issues Nos. 8, 9 and 10 are with regard to the Plaintiff''s main claim of Rs. 52,387/- based on his plea that he was entitled to get the pay scale of a corresponding post in Punjab. Out of these three issues, so far as issue No. 9 is concerned it was stated by the learned Advocate of the Plaintiff that he did not insist that the Plaintiff was entitled to get the pay scale of Rs. 1600-2000 allowed to the officers of the Industrial Management Pool. And so far as the first part of issue No. 9 is concerned, he clarified that the fixation of his pay in the scale of Rs. 900-50-1200 is challenged in the sense that the correct scale which should have been given to him was the scale of Rs. 800 to 1800 on the footing that he was entitled to the scale of a corresponding post in Punjab. As for issue No. 8, it was clarified that the decision of the Central Government which is referred to in that issue is the decision which can be spelled out from the Central Government''s letters found at Ex. PA dated 18-12-1948, Ex. PW. 1/E, dated 5-6-1950 and Ex. P.W. 1/A, dated 1-3-1956. In view of these clarifications it is evident that all these three issues, namely, issues Nos. 8, 9 and 10, are with regard to Plaintiff''s contention that from the very start he was entitled to get the pay scale obtaining on the corresponding post in Punjab. I will, therefore, presently proceed to decide whether the Plaintiff had any right to get his pay in the said pay scale. It should be noted at this stage that evidence which is recorded in the case makes it sufficiently clear that duties and functions discharged by the Transport Controller in Punjab were practically the same as those discharged by the Plaintiff as General Manager in the Government of Himachal Pradesh. It is, however, found from the deposition of P.W. 4 Jagdish Singh, who is Sectional Officer, Department of Personnel and Administration in the Punjab Civil Secretariat, Chandigarh, that the post of Transport Controller in Punjab was and is in the I.A.S. cadre ever since the year 1955. In other words, in Punjab, at the relevant time the post of Transport Controller was an I.A.S. cadre post and being the I.A.S. cadre post the officer functioning on that post belonged to I.A.S. cadre and was drawing his pay in the scale of Rs. 800-50-1000-60-1300-50-1800.

The real question on this point which arises to be considered is whether it can be spelled out from any of the letters of the Government of India that a substantive right was created in favour of the Government servants of Himachal Pradesh to automatically obtain the pay scale of a corresponding post in Punjab. Now, on this point the Plaintiff has put reliance on the above referred three documents, namely, Ex. PA dated 18-12-1948, Ex P.W. 1/E dated 5-6-1950, and Ex P. W. 1/A, dated 1-3-1956. I will presently refer to the contents of these documents with a view to consider whether any of these documents created any right in favour of the servants of the Himachal Pradesh Government to get the time scale pay of the corresponding post in Punjab. Exhibit PA is an extract from a letter written by Under Secretary to the Government of India, Ministry of States, on 18th December, 1948 to the Chief Commissioner Himachal Pradesh. This extract is as under:

"5. With reference to the last portion of paragraph 3 of the Ministry of States memorandum No. F. 30 (II)-E/48., dated 22nd November, 1948, the scales of pay for the staff of the Judicial Commissioner''s Court will be based on the East Punjab Government scales as it has now generally been decided to apply such scales to the entire staff in Himachal Pradesh except in the case of the Secretariat of the Chief Commissioner.

The learned Advocate of the Plaintiff has put emphasis on the last lines of the above quoted portion which say that the scales prevailing in East Punjab are decided to be applied to the entire staff in Himachal Pradesh except the Secretariat staff. It was contended, therefore, that the decision, as evidenced by the above referred extract was with regard to all the officers of the Non-Secretariat Departments.

So far as Ex. P.W. 1/E is concerned, it is, as already stated above, a demi-Official letter written by one A.B. Chatterji of Ministry of States New Delhi, to all the Chief Commissioners by name. This letter forms the main plank of the arugment and, therefore, requires to be quoted as a whole. It is dated 5-6-1950, and its contents are as under:

"At the Chief Commissioners'' Conference, held on the 21st March, 1950, minutes of which dave already been sent to you with this Ministry''s demi-official letter referred to above, it was decided that the staff working under your administrative control, should be allowed the same scales of pay and allowances as in the adjacent Part A State with effect from 1st April, 1950. This will mean very considerable additional burdon on the finances of the Central Government at a time of financial stringency and every effort should therefore be made to secure all possible economies in the administration. It has acordingly been decided that while dearness allowance on appropriate Part A State scales should be given with immediate effect from 1st April, 1950, the introduction of Part A States scales of pay should be given effect to only after the re-organization of the departments has been settled, surplus and inefficient personnel retrenched and the personnel from among the existing employees who will continue to serve in the re-organised departments are regarded. These new pay scales will be applicable to the personnel so retained for service with retrospective effect from 1st April, 1950.

With a view to implement this decision, the work of preliminary re-organisation, retrenchement and regrading of staff may now be taken up and proposals in this regard submitted without delay. If this is done through a Committee of senior officers it may render the work smooth and speedy and also obviate possible compliants later of partiality or lack of proper consideration. In any case it is considered that all necessary action should be completed within a period of six months from now.

An estimate of the total additional expenditure resulting from the revision of pay scales and the grant of dearness allowance in your State may be furnished to this Ministry urgently. Please also indicate bow the expenditure is proposed to be met.

The contention on behalf of the Plaintiff was that the letter evidences an unequivocal decision of the Central Government to allow the staff working under all the Chief Commissioners the same scales of pay and allowances as found in the adjacent Part A State for the corresponding post as from 1st April, 1950.

It is further pointed out that pursuant to the policy adopted by the Government, as evidenced from the above referred demi-official letter, an Under Secretary to the Government of India addressed one more letter on 1st March, 1956 to the Chief Secretaries of Himachal Pradesh and Vindhya Pradesh, as found at Ex. P.W. 1/A. It is dated 1st March, 1956 audits contents are as under:

"I am directed to state that the staff working under the administrative control of Part C States are allowed the same scale of pay and allowances as in the adjacent Part A States-vide late Ministry of States demi-official letter No. F. 11(10)-S/50 dated the 5th June, 1950. A question has now been raised whether the Government of Himachal Pradesh/Vindhya Pradesh/Bhopal can revise the scales of pay of their own staff as and when their adjoining Part A States viz., Punjab and Madhya Pradesh revise the pay scales of their staff. In the late Ministry of States letter No. F. 14 (20)-W/53 dated 28th May, 1954, powers have been delegated to the Governments of Himachal Pradesh /Vindhya Pradesh/ Bhopal to sanction pay scales obtaining for corresponding posts in the adjoining Part A States. I am accordingly to state that the President is pleased to authorise the Lt. Governor, Himachal Pradesh/Vindhya Pradesh and the Chief Commissioner Bhopal to revise the pay scales of their employees as and when the scales of pay are revised in the adjoining Part A States of Punjab/Madhya Pradesh so as to bring them at par with the pay scales obtaining for corresponding posts in the Punjab/Madhya Pradesh.

It was pointed out that the last portion of this letter clearly shows that in the implementation of the policy adopted by the Central Government as per the above referred demi-official latter of 5-6-1950, the President was pleased 10 authorise the Lieutenant Governor, Himachal Pradesh, to revise pay scales of the employees as and when the pay scales were revised in the adjoining Part A State of Punjab.

The contention based on the above referred three letters was that the Central Government had adopted a policy by which right was conferred on all the servants of the Himachal Pradesh to get their scales of pay revised and fixed in accordance with the scale of pay prevailing on the corresponding post in the State of Punjab, and therefore the Government was bound to accept the various representations made by the Plaintiff on this score.

Before considering the merits of the contentions raised by the Plaintiff on this point it would be necessary to note that thereafter in the year 1959 the Government framed rules called Conditions of Service of Union Territories Employees Rules, 1959. These rules have statutory force as they have been framed by the President under Article 309 of the Constitution. Rule 2 of these rules is as under:

"Conditions of Service of persons appointed to the Central Civil Service and posts under the administrative control of certain administrators.

The conditions of service of persons appointed to the Central Civil Services and posts Class I, Class II, Class III and Class IV under the administrative control of the Administrators of the Union territories of Delhi, Himachal Pradesh, Manipur and Tripura, shall, subject to any other provision made by the president, be the same as the Conditions of Services appointed to other corresponding Central Civil Services and Posts, and be governed by the same rules and orders as are for the time being applicable to the latter category of persons:

Provided that the scales of pay and dearness and other allowances granted to such employees shall, until any other provision is made in this behalf, continue to be governed by the orders in force immediately before the commencement of these rules:

Provided that in the case of persons appointed to services and posts under the administrative control of the Administrator, Himachal Pradesh, if they are drawing pay at the rates admissible to the corresponding categories of employees of the Punjab Government, it shall be competent for the Administrator to revise their scales from time to time so as to bring them at par with the scales of pay which may be sanctioned by the Punjab Government from time to time for the corresponding categories of employees.

It is evident that the above quoted Rule 2 is to some extent similar to the power granted to the Lieutenant Governor, Himachal Pradesh, by Government of India''s letter dated 1st March, 1956 found at Ex. P.W. 1/A. Neither this letter Ex. P.W. 1/A nor the above quoted Rule 2, can, standing by itself, be considered as sufficient to confer any right on the Government servant concerned to receive pay in the sacle prevailing with regard to the corresponding post in Punjab. They merely contain enabling provisions which authorise the concerned authorities to fix pay of a particalar servant in the scale obtaining with regard to the Corresponding post in Punjab, but they obviously do not confer any right on a Government servant to claim that pay. This particular position is sufficiently explained by the High Court of Delhi in Remesh Chandra v. Union of India reportedin AIR 1970 Del 129, and I find my self in agreement with the view expressed therein with regard to the interpretation of Rule 2 of the Conditions of Service of Union Territories Employees Rules, 1959. however, so for as the present case is concerned, the matter does not end there, because the Plaintiff has put reliance mainly on the above quoted demi-official letter Ex. P.W. 1/E which is dated 5-6-1950. This letter was not considered by the Delhi High Court in the above referred judgment. The contention of the Plaintiff is that it is this letter which creates rights in favour of the concerned servants to get the corresponding pay in Punjab. I, therefore, propose to scrutinise the contents of this letter already quoted above. A bare perusal of the letter shows that it is a demi-official letter written by Ministry of States to all the Chief Commissioners. It makes a reference to Chief Commissioners'' Conference held in March, 1950 wherein that Conference decided that the staff working under the administrative control of different Chief Commissioners should be allowed the same scales of pay and allowances as in adjacent Part A States. After making this reference to the decision taken at the Conference, the letter of the Ministry of States proceeds to state that the Government had decided that while D.A. on appropriate Part A scale should be given with immediate effect from 1st April 1950, introduction of Part A scales of pay should be given effect to only after the reorganisation of the departments has been settled, surplus and inefficient personnel retrenched, and the existing employees who continue to serve in the re-organised departments are regarded. Thus the decision which is incorporated in the latter portion of the first paragraph of this letter is not an absolute decision, but is conditional upon retrenchment and reorganisation of different departments working under the control of the Commissioner. The obvious intention was to know the finacial implications and to effectuate economy in the departments with a view to enable the Government to take proper decisions as regards the fixation of pay of the servants according other corresponding scales in adjoinng Part A States. In other words, the decision cannot be considered as an absolute one.

Perusal of the second peragraph of this letter shows that retrenchment and reorganisation contemplated above should be done through a Committee of senior officials and proposals in this regard should be submitted by the Commissioners to the Central Government.

Thus, the letter found at Ex. P.W. 1/E cannot be treated as conveying any final decision of the Government at the most it conveys an intended policy which was expected to be adopted, and if that is so, it is difficult to conclude that the expression of such intended policies made in a demi-officialletter, which was not expected to be made public, could vest the Government servants with any right to obtain the corresponding pay prevailing in the adjoining Part A States.

In this connection much emphasis was laid on the subsequent letters written by Additional Secretary to Himachal Pradesh on 19-6-1957 and thereafter by the Lieutenant Governor, Himachal Pradesh, on 14-4-1958 to the Government of India. As already noted above, these letters are found at Ex. P.W. 2/B and Ex. P.W. 2/A. A perusal of these letters does show that the Government as well as the Lieutenant Governor, Himachal Pradesh, gave complete support to the Plaintiff''s request for the corresponding scales in the adjoining State of Punjab. In fact, in his letter the Lieutenant Governor has complimented the work done by the Plaintiff as General Manager, Transport. Therefore, it was contended on behalf of the Plaintiff that the Additional Secretary (Transport), Himachal Pradesh Government, as well as the Lieutenant Governor, Himachal Pradesh, were the persons who were knowing the policies of the Central Government and also the justification of the Plaintiff''s claim and therefore when these persons strongly recommended the case of the Plaintiff to the Central Government it should be presumed not only that the post of the Transport Controller of Punjab was a corresponding post but also that the requiements of reorganisation of the departments working in Himachal Pradesh and the retrenchment contemplated by the above referred demi-official letter dated 5-6-1950 were completey satisfied. It was further contended that under these circumstances the condition precedent which attached to the giving of corresponding grade in the adjoining State contemplated by the above referred demi-official letter of 5-6-1950 were satisfied and if that were so the Government was bound to implement its policy to give corresponding grade to the Plaintiff.

I find myself unable to accept these contentions. In the first place there is nothing in the letters of the Additional Secretary (Transport), Himachal Pradesh Government, or in the letter of Lieutenant Governor, Himachal Pradesh, to show that the conditions mentioned for giving the corresponding grade in the above referred demi-official letter of 5-6-1950 were satisfied. Secondly, as already stated above, the demi-official letter dated 5-6-1950 was nothing but an expression of an intended policy, and such expressions cannot confer any substantive right on the employees of the Government. That being so, whatever be the opinion of the Additional Secretary (Transport) or of the Lieutenant Governor, Himachal Pradesh, the Government of India was not bound to accept this opinion.

In view of this, I find that the Plaintiff had no legal right to insist that his pay should be fixed in the scale obtaining in the corresponding post in punjab.

There is one important hurdle against this case of the Plaintiff and it is one of limitation. The case of the Plaintiff on the question of limitation is that his representations, right from the year 1955 to the year 1968 when he retired, for getting the corresponding pay of Punjab have remained undecided and therefore it cannot be said that any period of limitation began to run against him. This contention of the Plaintiff is not acceptable, because at no stage from the year 1955 the Plaintiff had any reason to believe that the Government of India had not rejected his representations. It may be recalled that even after, the Lieutenant Governor, Himachal Pradesh, strongly recommended his case, the Government of India did not allow the Plaintiff to draw pay in the corresponding scale in Punjab, and it was practically two years after the letter of Lieutenant Governor, (which was written in 1958) that the Government of India by its letter dated 30th June 1960 (Ex. P.W. 2/C) gave the Plaintiff the scale of Rs. 900-50-1200. This was a clear indication that the Plaintiff''s request or the grade of Rs. 800 to 1800 was rejected by the Government of India. Eeven otherwise, it is found from the record of the case that the Plaintiff was specifically given so understand that Government of India was not inclined to give him pay in the scale of Rs. 800 to 1800. One such letter from which this can be found out is written by Deputy Secretary to the Himachal Pradesh Government to the Plaintiff on 12th October, 1964. It refers to the Plaintiff''s representation dated 11th April, 1963, found at Ex. P.W. 8/17, and states that the Government of India, Ministry of Transport and Communication, to whom the matter was referred, have expressed their inability to agree to the revision of pay scale of the post of General Manager from Rs. 900-1200 to Rs. 1300-1600. On April 11, 1966, one Shri Chandel, Joint Secretary to the Government of Himachal Pradesh addressed one letter to the Plaintiff in reply to the representations filed by him in the month of May, 1964, and February 1965. These representations were with regard to his demand that his pay should be fixed in the corresponding scale of Punjab. Even this letter makes a statement that earlier representations on the subject had already been rejected by the Government of India and therefore the Himachal Pradesh Administration found no force in further representations on the same grounds. This letter is found at Ex. P.W. 8/18. Under these circumstances, it is clear that the Plaintiff''s claim to get the corresponding pay scale prevailing in Punjab was long ago rejected by the concerned authorities. If that is so, it cannot be said that Plaintiff''s representations on this point were kept pending by the authorities.

It is an admitted fact that frorn 18th April, 1962 the post of General Manager on which the Plaintiff was serving was taken into joint I.A.S cadre. This becomes clear by reference to Ex. P.W. 8/4, which is a letter dated 2nd March, 1963 written by Deputy Secretary, Government of India, Ministry of Home Affairs to the Chief Secretary, Himachal Pradesh Administration; the subject of this letter is "Revision of the scale of pay of the post of General Manager, Himachal Pradesh Government Transport", and the contents of this letter are as under:

"I am directed to reter to Shri V.P. Bhatnagar''s D.O. letter No. 6-3/60-Apptt., dated 5-2-1963. It seems that the Administration have made a proposal to the Ministry of Transport and Communications suggesting the revision of the scale of pay of the post of General Manager, Himachal Pradesh Government Transport to Rs. 1300-1600. Since the post has been included in the Joint I.A.S. cadre for Delhi and Himachal Pradesh with effect from 18th April, 1962, the incumbent of the post will be entitled to get pay in accordance with the relevant provisions of the I.A.S. (Pay) Rules and the necessity of revising the scale of pay of the post does not, therefore, arise.

This letter clearly reveals that the post of General Manager on which the Plaintiff was functioning was taken into the I.A.S. cadre from 18th April, 1962 and therefore the pay for that post was to be governed by I.A.S. (Pay) Rules. The Plaintiff''s request for getting the corresponding pay grade prevailing in Punjab was thus completely negatived by this letter by necessary implication, because if the Plaintiff was not entitled to hold this post which was taken into the I.A.S. cadre, the questri on of the revision of his pay scale stood completely negatived. Evidence reveals that subsequent to this letter the Plaintiff was given an opportunity to be selected in I.A.S. cadre, but the Union Public Service Commission rejected him and therefore he could not enter the I.A.S. cadre. Since he could not enter the I.A.S. cadre, he could not get the pay scale obtained by I.A.S. people. But it is quite evident that at least by the above referred letter Ex. P.W. 8/4 the Plaintiff''s case was completely negatived.

In view of above, the question of limitation assumes importance, because cause of action is found to have arisen even earlier to 1963 and latest by the year 1963 March. The suit, so far as this claim is concerned, is therefore clearly barred by time. Under these circumstances, I hold that the claim of the Plaintiff for obtaining a decree for Rs. 52,387/- on the ground that he was entitled to get pay in the scale obtaining m the corresponding post in Punjab must fail.

This disposes of issues Nos. 8, 9 and 10.

In view of this finding, Mits necessary to consider the alternative claim of the Plaintiff regarding his Special Pay of Rs. 225 per month which the Plaintiff has claimed from 27th September 1961, till the date of his retirement. This forms the subject-matter of issues Nos. 13 and 16. With regard to this claim, two clarifications are necessary, namely

(1) On no account he can claim this Special Pay from 27th September, 1961, because even according to his own case he would be entitled to the Special Pay as mentioned in Government of India''s letter dated 23rd August, 1963 found at Ex. P.W. 8/28 only from the date on which he was discharging duties of a post which was caderised as an I.A.S. post. This caderisation admittedly took place, as already stated above, on 18/4-1962. Therefore, even believing that the Plaintiff has got some claim to the Special Pay as mentioned in Government of India''s letter dated 23-8-1963, he cannot get that pay for any period before 18-4-1962. Hence his claim to get this pay from 27th September, 1961 is totally unfounded. This particular position was clearly conceded by the learned Advocate of the Plaintiff.

(2) Another clarification with regard to this claim is that even if it is believed that the Plaintiff can get some Special Pay in accordance with the terms mentioned in Government of India''s letter dated 28-3-1963, Ex. P.W. 8/28, he cannot get it at the rate of Rs. 225/-. The letter in question, as found at Ex. P.W. 8/28, clearly shows that if he can get any Special Pay it will be only at the rate of Rs. 150/. The Plaintiff has added Rs. 75/- more as Special Pay, but this rate of Rs. 75/- is allowable to the members of civil service of other States. The Plaintiff was not a member of civil service of any other State. Even this position is clearly admitted by the learned Advocate of the Plaintiff.

The result of these clarifications therefore is that even if the Plaintiff is found entitled to Special Pay in terms of Government of India''s letter dated 23-8-1963, he would get at the rate of Rs. 150/- and that too from 18th April, 1962.

The contention of the Defendants in connection with this claim of the Plaintiff is about limitation. It was contended that the matter is governed by Article 7 of the Limitation Act, which contemplates a suit "for wages in case of any other person", and prescribes a period of three years from the time "when the wages accrue due". It was contended that if, according to the Plaintiff, he was legally entitled to receive the Special Pay of Rs. 150/- from 18-4-1962, such Special Pay accrued due to him from month to month and, therefore, limitation with regard to this pay would begin to run against him under Article 7 on every month after 18-4-1962. It was contended that on this view of the matter the Plaintiff''s suit to recover this amount filed on 10th September, 1974 is obviously barred by time.

While considering this question, some important facts have to be borne in mind. These facts are that after the Plaintiff exercised his option about Special Pay on 6/7th May, 1964, the Government had not taken any decision either allowing it or refusing the same. Another fact which should be taken into account is that ultimately it was on 27-7-1971 that the Government issued a notification found at Ex. P.W. 5/D in the following terms:

"The Governor of Himachal Pradesh, in consultation with the Punjab and Haryana Governments is pleased to accord ex-post-facto sanction to the deputation (foreign service) of Shri Suraj Singh, a substantive General Manager, Himachal Government Transport, as General Manager, Mandi Kulu Road Transport Corporation, Mandi with effect from afternoon of 31st July, 1963 upto 18th May 1968 (A.N.) when he was retired from Government service on attaining the age of superannuation.

During the period Shri Suraj Singh remained with the said Corporation, he will be treated on deputation and will be entitled to his substantive pay in the scale of Rs. 900-50-1200 plus a deputation allowance @15 % of his substantive pay, as sanctioned by the Government of India, Ministry of Home Affairs, vide eir letter No. 8/38/63-DH(S), dated the 24th July, 1963. In addition, he will be entitled to the free use of staff car or official purposes and such dearness allowance as admissible to a Punjab Government Officer drawing a similar scale of pay.

The other terms and conditions of deputation will be the same as contained in Chapter III of the Mandi-Kulu Road Transport Corporation Rules, 1958, as notified by the Punjab Government vide their notification No. 3489(C)HI-58/10640 dated the 18th April, 1958.

The matter regarding counting Rs. 100/- as special pay for the purposes of deputation allowance, is still under consideration of the Government.

It is an admitted position that this notification was issued in 1971 only after the Plaintiff served his first notice u/s 80 of the CPC which was issued by him on 12th May, 1971 (vide Ex. P.W. 8/22).

Now, in view of the above facts the contention of the Plaintiff with regard to the question of limitation is that since the Government had not expressly rejected the Plaintiff''s claim to the Special Pay of Rs. 150/- at any time before the above referred notification of 27th July, 1971, the Plaintiff had no cause of action to file this suit to claim his Special Pay. It was contended that even the notification dated 27th July, 1971 does not expressly deal with the Plaintiff''s claim of the Special Pay of Rs. 150/- pursuant to the letter Ex P.W. 8/28. But it can be taken for granted that the Plaintiff''s demand for that Special Pay was rejecttd by the Government by necessary implication when it issued this notification dated27-7-1971.

It should be noted that for the recovey of an-mount which is an amount of salary due to a particular officer, there are two rival Articles of the Limitation Act which should be taken into consideration: One Article is Article 7 on which the reliance is placed by the Defendants, and other Article is Article 55 which contemplates suits "for compensation for the breach of any contract, express or implied not herein specially provided for". If the matter is covered by this Article the period of limitation is three years and it begins from the time "when the contract is broken or (where there are successive breaches) when the (breach in respect of which tie suit is instituted occurs or (where the breach is continuing) when it ceases". It is obvious that this Article 55 applies to cases wherein relationship between the ''parties is ex contractu. The terms of service of a Government iservant arc no doubt borne out of a contract at the initial stage when he enters into the service. But after entering into the Government service he acquires a status of a public servant and hence the terms and conditions of service can be varied unilaterally by the Government as was done in this case when options contained in Government of India''s letter Ex. P.W. 8/28 dated 23-8-1963 were offered to the Plaintiff. It is obvious that this offer was unilateral, i.e. not made in consultation with the officers concerned. That being the position, Article 55 would not, in my opinion, apply of such to cases. Moreover, Article 7 is the Specific Article for recovering the amount of "wages" which ''term also includes "salary" and other monthly emoluments.

Therefore, the question is what is the position of limitation if Article 7 applies to the facts of this case. One important peculiarity of Article 7 is that unlike many other Articles of the Limitation Act, this Article does not specifically and expressly provide that the limitation would begin to run when breach occurs or when the right to receive wages is denied. It provides that limitation begings to run "when the wages accrue due". It is, however, very much implicit in this Article that cause of action arises only when wages are not paid by the employer or not collected by the employee even though they have accrued due. If the wages which accrue due are in fact paid by the employer or collected by the employee, the cause of action would obvtiously not arise and there would be no question of any period of limitation having started to run. In other words, the limitation contemplated by Article 7 would begin to run when wages accrue and yet are not collected by the wage earner or not paid by the employer.

If this Article is read in this light, the question is when, looking to the facts of this case, the limitation can be treated as having started to run. When the Plaintiff was asked to exercise his option by the letter Ex. P.W. 8/28 dated 23-8-1963, and when pursuant to that letter he did exercise his option, the matter was complete so far as the Plaintiff was concerned, because the final decision as regards the actual regulation of his pay was to be taken by the Government according to the re-relevant Fundamental Rules. The relevant rules are found in Chapter IV under the heading "Pay" of the Fundamental Rules. They begin from Fundamental Rule 19. Fundamental Rule 23 provides as under:

"The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay; provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the scale, or until he vacates his posts or ceases to draw pay on that time-scale. The option once exercised is final.

Thus, according to this rule, when the pay of the holder of a post is changed, the holder of the post concerned should be treated as if he were transferred to a new post on the new pay. And if that is so, his new pay has to be determined and regulated by the Government under F.R. 22 and other rules which are found in Chapter IV. The learned Advocate of the Plaintiff also drew my attention to Supplementary Rule No. 196, which says that a record of the services of a gazetted Government servant will be kept by such audit officer and in such from as the Comptroller and Auditor General may prescribe. My attention was drawn to Chaudri''s Compilation, Volume II, 6th Edition, 1975, and the Government of India''s decision cited below the above referred Supplementary Rule 196. The learned author notes therein as under:

(1) Ministry of Home Affairs O.M. No. 13/41/53-Ests. dated the 4th August, 1954 and No. 33/6/56-Ests. (A) dated the 9th April, 1957 lay down that all important events in the official-career of the gazetted Government servant affecting his pay and other conditions of service including retirement from Government service, should be notified in the Gazette.

It is further observed that even in case of proforma promotion, such a promotion was an important event in the official carreer of a gazetted servant and should therefore be notified in the Gazette. Relying upon these notes, the contention raised on behalf of the Plaintiff was that since the Government failed to regulate the Plaintiff''s special pay to issue a gazette notification declaring the said pay, and since it also failed to adopt other necessary formalities which would enable the Plaintiff to collect his speical pay at the rate of Rs. 150/- per month, it was not possible for the Plaintiff to collect his special pay, and therefore, cause of action cannot be said to have arisen till the Government gave final decision in the matter.

Having regard to the above interpretation of Article 7 of the Limitation Act, the real question to be considered is whether the special pay which had accured due to the Plaintiff was ever collected by the Plaintiff or the payment thereof was ever denied by the Government before issuing the notification dated 27-7-71.

On the interpretation of Article 7 which I have made in the foregoing discussion, cause of action under that Article arises only when the wages which have accrued due are either not collected or not paid. Therefore, while considering the issue of limitation, the questions which should arise for conideration are (1) whether the Plaintiff failed to collect his wages which accured due or (2) whether, though the wages accured due, the Government failed to pay the same. Looking to the facts of this case it is not possible to say that the Plaintiff "failed" to collect his wages which accrued due to him. The reason is that it was not possible for the Plaintiff to collect these wages on account of the failure of the Government to take necessary action for fixing his special pay in accordance with the relevant Fundamental Rules. On the other hand, till the above referred Notification Exhibit P. W. 5/D was issued by the Government on 27-7-1971 it was not possible to say that the Government had rejected the Plaintiff''s claim to the special day of Rs. 150/- per month, and hence it was not possible to say before the date of that notification that the Government failed to pay the wages which had accrued due to the Plaintiff. In my view, therefore, cause of action arose in favour of the Plaintiff and against the Government only when the above referred notification Ex. P.W. 5/D was issued and it became clear by necessary implication that Plaintiff''s claim of the Special pay of Rs. 150/- was rejected by the Government.

In The State of Punjab v. S. Bhagwan Singh Grewal reported in AIR 1968 PH 58, the contention about limitation was the same in this case, and facts which gave rise to this contention were also almost the same. The Plaintiff in that case was working in the pay-scale of Rs. 80-8-220 and the next annual increment raising his pay from Rs. 88 to Rs. 96 per mensem fell due on 13-3-1949. He was to get next increment on 13-3-1950 when the would have drawn Rs. 104 per men-sem. In the meantime, on 1-3-1950, his pay grade was revised to that of Rs. 100-10-200/10-250. In spite of this, the Accountant General, Punjab, decided that he was only entitled to get Rs. 100 in the revised scale with effect from 1-3-1950 and that he would get an increment of Rs. 10 per men-sem every year from 1-3-1951. According to the Plaintiff, however, he was to get Rs. 110 per mensem with effect from 13-3-1950 with an increase of Rs. 10 every year from 13-3-1951. It was 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.

On these facts, the contention which was raised on behalf of the State that the wages had accured due to the Plaintiff in that case right from 13-3-1950 when, according to the Plaintiff, he became entitled to the rate of pay claimed by him. It was contended on behalf of the State that if the Government was not making payment according to that rate, the Plaintiff could have filed a suit for declaration within the three years of the date of the payment becoming due.

This contention was rejected by the High Court which observed that it was only when the Government had given decision against the Plaintiff that the Plaintiff could have filed a suit in a civil Court. High Court further observed that the Plaintiff could not go to a civil Court earlier than that date, because it would have been dismissed as premature before the Government gave its decision fixing the Plaintiff''s pay. All this will be clear from the following observations made by the High Court in that case:

"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 .... If the decision of the Government had been against the Plaintiff, it is only then that 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 wages at the enhanced rate fell due to him. Admittedly, the suit was brought within three years from this date.

This decision thus can be safely cited in support of the view which I am taking in this case.

Limitation under Article 7 would, therefore, in my opinion, run in this case from 27-7-1971 against the Plaintiff when the Government indicated by necessary implication that the Plaintiff''s option for Special Pay stood rejected. The limitation of three years and 2 months (of statutory notice u/s 80 Code of Civil Procedure) would, therefore, be over on 26-9-1974. But the suit is filed on 10th September, 1974, that is, about sixteen days prior to the last date of limitation. Under the circumstances, I hold that the Plaintiff''s claim to get Special Pay pursuant to the letter of the Government of India Ex. P.W. 8/28, dated 23-8-1963 was not barred by limitation when the suit was filed.

In this connection it was contended by Shri Khanna that the Plaintiff has already got Special Pay of Rs. 100/- which he was getting as General Manager, Himachal Government Transport. The question, therefore, would be whether the Plaintiff was entitled to get two types of Special Pay. It is not possible for me to go into this question, because in the written statement no pleading of this type is raised and, therefore, there has been no issue on the point. Therefore, I do not touch this question in this suit.

This disposes of issues Nos. 13 and 16.

Issue No. 12 is with regard to the interest which is claimed by the Plaintiff. It would be proper to take up this issue in connection with the above discussed issues. The case of the Plaintiff is that he has demanded interest on the amounts due in both of his notices, namely, the first notice which was given on 12-5-1971 and the second notice which was given on 4-7-1974. It is, therefore, contended on behalf of the Plaintiff that since interest is demanded in both these notices, the Plaintiff should be awarded interest u/s 1 of the Interest Act from the date of the first notice dated 12-5-1971. On perusal of the first notice it is found that so far the alternative case of the Plaintiff is concerned, he has claimed the amount at the rate of only Rs. 75/- per month in paragraph 12 thereof. The claim which is made in the plaint is of the amount at the rate of Rs. 225/- per month, and the claim which is proved is at the rate of Rs. 150/- per onth only or the period from 18-12-1962 to 24-5-1965. Now, paragraph 13 of his first notice dated 12-5-1971 claims interest in Clause (a)(v) thereof on the amount stated in paragraph 9 of the notice. Reference to paragraph 9 of the notice shows that it makes a claim not of the alternative amount which is awarded in this case but on the amount which would be payable to the Plaintiff on the basis of this claim of the Punjab scale. Therefore the interest which is claimed in Clause (a)(v) of paragraph 13 is not the interest on the alternative claim. Paragraph 13 refers to the alternative claim in Clause (c), reference to which shows that the Plaintiff has not claimed any interest on the alternative claim which was put therein at the fate of Rs 75/-per month. Under the circumstances I find that the first notice dated 12-5-1971 has made no demand of interest on the alternative claim.

So far as the second notice which is dated 4-7-1974 is concerned, it also refers to the alternative claim, but at an enhanced rate of Rs. 225/- per month. Interest is claimed in Annexure E which forms part of that notice. Reference to this Annexure shows that it makes a claim from 19-5-1968 to 18-5-1974. The contention of the Plaintiff, therefore, is that at least this second notice has definitely made a demand for interest. To this, the learned Advocate of the Defendants has submitted that this claim is not for future interest but for the interest of the past period, namely, the period upto 18-5-1974. In this connection it was pointed out that the second notice was given by the Plaintiff on 4-7-1974, i.e. about two months after the date upto which the interest has been claimed. According to the learned Advocate of the Defendants, therefore, even this second notice cannot be construed as amounting to a demand for future interest.

In view of the above it was contended on behalf of the Defendants that Interest Act, Section 1, has no application, and therefore, no interest should be awarded even from the date of the second notice.

Reference to the provisions contained in Section 1 of the Interest Act shows that interest can be given on a sum certain payable at a certain time at a rate not exceeding current rate of interest from the time when the said sum certain becomes payable by virtue of some written agreement and if not, then from the time when the demand of payment has been made in writing, so that such demand gives notice the debtor that the interest would be claimed from the date of such demand until the term of payment. The question, therefore, is whether the demand, as contempted by Section 1 of the Interest Act, has been made by the second notice or not. It may be recalled that the second notice does make a demand for the past period. It is true that this demand does not coterminate with the date of the notice and is silent about future interest. But the question is whether it can be said that the Plaintiff who made the demand for the past priod was by implication not making any demand or the future period. I find it difficult to believe that the person who makes demands for past several years was not making the demand for future also. In any case, even if it is believed that the first part of the Section 1 of the Interest Act which speaks of the demand for the future interest [does not apply to the facts of this case, the proviso thereto is applicable to the facts of the present case. This proviso of Section 1 says that interest shall be payable, in all cases in which "it is now payable by law". Obviously, the proviso intended to protect those cases wherein on the date of the application of the Act interest was payable by law. The question is what is meant by the expression "law". In other words, whether the expression "law", as used in Section 1 of the Interest Act, is comprehensive enough to cover even the cases in which interest was payable under equity. I find that this question has been considered earlier by the Privy Council in AIR 1938 67 (Privy Council) wherein the Privy Council has observed as under:

"This priviso applies to cases in which the Court of equity exercises jurisdiction to allow interest. As observed by Lord Tomlin in (1929) A.C. 631:

In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equimtable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance''. These observations of the Privy Council have been cited with approval by the Supreme Court in Union of India (UOI) Vs. Watkins Mayor and Co., It follows, therefore, that even under the Interest Act, Section 1 interest can be awarded if circumstances are found to exist which would justify its award under equitable jurisdiction of the Court. The High Court of Patna has considered this aspect of the matter along with different pronouncements of the Supreme Court on the subject in Jaggernath Singh Vs. Narayan Sarogi, and has held that under equitable jurisdiction the Court can decree the claim of the Plaintiff for interest under .the above referred proviso which is attached to Section 1 of the Interest Act. The Calcutta High Court has also taken the same view in Province of West Bengal Vs. Basant Properties Ltd., wherein it is held that the proviso to Section 1 of the Interest Act obviously includes cases where interest is payable by way of damages under some recognised principle of equity and, such equity arises when money is wrongfully withheld or detained.

In view of these decisions, therefore, the question which arises to be considered is whether this is a fit case in which interest can be awarded from the date of the second notice, i.e. from 4-7-1974 or not. In my view, since the Plaintiff has come forward with a clear demand of the principal amount and also the demand for the interest for the past period upto the month of May, 1974, equity demands that he should also be awarded interest for the future period. I, therefore, hold that the Plaintiff would be entitled to interest .from 4-7-1974 upto the date of the suit. From the date of the suit he would be entitled to interest u/s 34 of the CPC upto the date of payment of the amount due to him.

Plaintiff''s next claim is about the refusal of leave preparatory to retirement for 95 days. Short facts with regad to this claim are that the Plaintiff applied for leaveon 13-10-1967. There were 120 days of leave to his credit and. he was to retire on 16-5-1968. He, therefore, proposed to go on leave from 20th January, 1968. His leave application, however, remained undecided and it was for the first time on 30th March, 1968 that the Plaintiff was informed by the Government''s under:

"With reference to your application dated 13th October, 1967, regarding grant of leave preparatory to retirement, I am to inform you that it has been decided that you may avail of leave if you so desire. In case however, you wish to continue till the date of superannuation you may please communicate your consent in this regard. It may be pointed out that your service will not be extended beyond the date of superannuation. Your consent, in case you do not wish to avail leave preparatory to retirement, should be sent within two days of the receipt of this Memo.

Thus, the Government expressed its clearcut attitude only by this memorandum on 30th March, 1968 which appears to have been received by the Plaintiff on 8th April, 1968. Soon after receiving this memo, the Plaintiff replied on that very day, i.e. 8th April, 1968 (Ex. P.W. 8/24) wherein he mentioned that he was already granted 8 days casual leave and allowed to prefix and suffix and also to avail of intervening holidays with effect from 9-4-1968 to 22-4-1968 both days inclusive. He further requested by this letter that the Government should issue formal orders as regards the date from which he was allowed to avail of leave.

In reply to this letter, Joint Secretary (Transport), Himachal Pradesh Government, wrote back to the Plaintiff on 18th April, 1968 the letter found at Ex. P.W. 8/25 as under:

"In case you do not wish to continue till the date of superannuation and would like to proceed on leave, complete charge may be handed over to Shri Surjeet Singh Ghai, Deputy General Manager, M.K. Road Transport Corporation, who will look after the work of the General Manager, M.K.R.T.C. pending final orders regarding appointment of your successor. The date from which you proceed on leave preparatory to retirement may please be intimated so that formal orders could be issued.

It semes that thereafter on 24th April, 1968 the Plaintiff informed the Government by his letter found at Ex. P.W. 8/26 that he was relinquishing his charge on that day.

The Plaintiff now claims that he could not leave his charge on leave preparatory to retirement before 24th April, 1968, on account of the dilatoriness shown by the Government in sanctioning his leave. Therefore, out of 120 days which had accrued to him he could avail of only 25 days, and for the remaining period of 95 days he has claimed leave salary.

I find that the Government by its memorandum dated 30th March, 1968 had clearly indicated to the Plaintiff to go on leave if he so desired. This letter was received by the Plaintiff on 8th April, 1968 and, therefore, there was nothing to prevent the Plaintiff from going on leave on 9th April, 1968. The moment he knew that the Government had allowed him to go on leave, he should have relinquished his charge and should not have insisted on the 8 days casual leave prefixing and suffixing to holidays as done by him. Therefore, I find that it was open to the Plaintiff to go on leave on 9th April, 1968.

In this connection it should be noted that according to Fundamental Rule 86, which was in existence at the relevant time, following provisions were made:

(a) Leave at the credit of a Government servant in his leave account shall lapse on the date of compulsory retirement provided that if in sufficient time before that date he has:

(1) formally applied for leave due as preparatory to retirement and been refused, or

(2) ascertained in writing from the sanctioning authority that such leave if applied for would not be granted

in either case the ground of refusal being the requirements of the public service, then the Government servant may be granted, after the date of retirement, the amount of leave so refused subject to a maximum of six months.

This rule shows that so long as the Government does not sanction leave it would not be open to the officer concerned to relinquish his post. There is no explanation to show why the Government had delayed saying anything about Plaintiff''s leave application upto 30th March, 1968. Shri Khanna, the learned Advocate of the Defendants, drew my attention to Plaintiff''s letter found at Ex. P.W. 8/24 wherein he has referred to borne informal talks which he had with the then Transport Minister who, according to him, had desired that he should continue to work on the post till the age of his superannuation. Shri Khanna, therefore, contended that the Plaintiff did not avail of his leave not because the Government failed to take any decision in time but because he wanled to continue to serve upto the date of superannuation so that he would get full salary for the leave period. I find that if that was so, it was open to the Government to thwart the Plaintiff''s plan by taking an immediate action on his application dated 13-10-1967 by which he had officially applied for leave. It is not the intention of the Plaintiff which matters on this point. When the Plaintiff had given an official application he was entitled to see that the Government was vigilant enough to dispose of that application in time. In my opinion, therefore, the Plaintiff would be entitled to the leave salary from 20th January, 1968 to 9th April, 1968, because the Plaintiff can be held to have been refused leave for this period on public grounds.

Question of limitation was raised even with regard to the Plaintiff''s claim of this leave salary. It was contended that cause of action to obtain this leave salary accrued to the Plaintiff on the date of his retirement, i.e. on 18-5-1968 and therefore the suit is barred. This contention is unacceptable, because under Fundamental Rule 86 the Government has to apply its mind on the question whether leave should be refused, and if so, for what period. The Government is not found to have issued any notification evidencing the application of such a mind. Therefore, the Plaintiff''s claim or this leave salary is not found to be barred by limitation.

This disposes of issue No. 11.

Issues Nos. 7 arid 14 are with regard to Plaintiff''s claim to a declaration as regards his pension, and I find that the Plaintiff cannot get this relief in view of Sections 4 and 6 of the Pensions Act, 1871. According to Section 4, there is a bar to the civil Court to entertain any suit "relating to any pension". Section 6 is more specific and says that a civil Court otherwise competent to try a suit, shall take cognizance of such suit only on receiving a certificate from Collector or Deputy Commissioner or other officer authorised in that behalf, but shall not make any order or decree in any suit whatever by which the liability of the Government to pay any pension or grant is affected directly or indirectly. Therefore, these provisions of the Pensions Act are comprehensive to cover any suit which directly affects a question of pension. In this connection my attention was drawn by the learned Advocate of the Plaintiff to the decision given by Oudh Court in AIR 1925 210 (Oudh) It is held in this case that a declaratory suit with regard to pension can be maintained even in spite of Sections 4 and 6 of the Pensions Act. With great respect to the learned judicial Commissioner, who has given this decision, I find that the language of Sections 4 and 6 does not give any scope for the contention that a declaratory suit with regard to pension can be entertained, by Court. Therefore, the prayer made by the Plaintiff with regard to pension is rejected and issues Nos. 7 and 14 are decided accordingly.

This disposes of all points involved in this suit. The result, therefore, is that the Plaintiff is found entitled to Special Pay at the rate of Rs. 150/- per month from 18-4-1962 to 24-5-65, i.e. for three years, one month and six days. This amount comes to Rs. 5,580/-. The parties are directed to give proper calculations about leave salary and interest upto the date of the suit on the amount to be decreed.

Parties were directed as above to give proper calculations about leave salary and interest upto the date of the suit. As already noted above, the Plaintiff is entitled to special pay at the rate of Rs. 150/- per month from 18-4-1962 to 24-5-1965. This amount, as already noted above comes to Rs. 5,580/-. The claim of the Plaintiff as regards the deputation allowance on this special pay, already stands rejected. Now, so far as his leave salary is concerned, he is found entitled to the same from 19-1-1968 to 8-4-1968. The Plaintiff claims this leave salary at the rate of Rs. 1,300 per month. However, so far as this record is concerned, I find that his last pay was at the rate of Rs. 1,200/- per month. At this rate his arrears for leave salary come to Rs. 3,224.40.

Thus, the total claim of the Plaintiff which is proved in this suit comes to Rs. 8,804.40 P. Interest should be calculated on this amount from the date of the second notice, i.e. from 4-7-1974 to 10-9-1974 which is the date of filing of the suit. I award interest at the rate of six per cent per annum from the date of the second notice upto the date of filing of the suit and at the same rate from the date of the filing of the suit till the date of the recovery. It is, therefore, ordered that the Plaintiff shall be entitled to recover the principal amount of Rs. 8,804.40 P. with interest at the rate of six per cent per annum from 4-7-1974 upto the date on which the amount is paid up together with cost of this suit. In so far as the Plaintiff has failed to prove the rest of his claim, he shall suffer the cost of the other side. Decree accordingly.