Decided on March 08,1965

DEBI PRASAD Respondents

Referred Judgements :-



Oak, J. - (1.)THIS Second Appeal arises out of a suit to recover arrears of salary. Debi Prasad respondent was employed as a driver in the Government Roadways, Bareilly Division, at Shahjahanpur. He was dismissed from service on 19-2-1952. In 1952 he filed a suit against the State of Uttar Pradesh for a declaration that the order of dismissal dated 19-2-1952 was illegal and void. He also prayed for arrears of pay. That suit was decreed in Debi Prasad's favour on 24-9-1055. It was declared that the order of dismissal dated 19-2-1952 was void. The Court also passed a decree for Rs. 1,378/- for arrears of salary. In the year 1957 Debi Prasad filed against the Stale of Uttar Pradesh another suit to recover arrears of salary for the subsequent period. That is Original Suit No. 385 of 1957, out of which the present Second Appeal has arisen. In this suit filed on 22-2-1957 the plaintiff claimed a sum of Rs. 3,944/- on account of arrears of salary from 11-12-1953 to 10-2-1957. The claim was resisted by the defendant. The defendant pleaded that the plaintiff never reported for duty with the Government Roadways even after the decree dated 24-9-1955 in the previous suit. It was further pleaded in defence that the defendant was all along employed in the Tubewell Department of U. P. Government at Shahjahanpur. The plaintiff has already drawn salary from the Tubewell Department. Consequently the plaintiff was not entitled to recover any salary from the Government Roadways.
(2.)THE learned Civil Judge of Shahjahanpur held that the defendant was entitled to claim a set off on account of the salary drawn by the plaintiff from the Tubewell Department. Deducting Rs. 3,230/- on account of salary drawn from the Tubewell Department, the trial Court found that a sum of Rs. 714/- was due to the plaintiff as arrears of pay in the Government Roadways Department. THE Trial Court, therefore, passed in plaintiff's favour a decree for Rs. 714/- as arrears of pay with proportionate costs.
Both the parties were dissatisfied with the decision of the trial Court. The defendant appealed; and the plaintiff filed a cross-objection. The learned District Judge of Shahjahanpur dismissed the appeal, but allowed the cross-objection. In the result, the plaintiff's claim was decreed in toto. The State of Uttar Pradesh has now come up in Second Appeal. When the Second Appeal was argued before a learned Single Judge of this Court, he found that the Second Appeal involves an important question of law. He, therefore, referred the case to a larger Bench.

The respondent claimed arrears of salary for the period 11-12-1953 to 10-2-1957 for his services in the Government Roadways Department. It is common ground that during the material time the plaintiff was employed in the Tubewell Department of U. P. Government, and that he drew salary from that Department. The principal question for decision in the Second Appeal is whether the plaintiff is entitled to draw salary from the Government Roadways Department in addition to the salary drawn by him from the Tubewell Department.

(3.)PARTIES referred to various rules contained in the Fundamental Rules. The defendant relied upon Rule 17. According to Rule 17, an officer shall cease to draw salary as soon as he ceases to discharge duties. That rule is meant to govern cases, where an officer ceases to be in service. In the present case it was held in the previous suit that the order of dismissal dated 19-2-1952 was void. No subsequent order of dismissal was passed against the respondent. It must, therefore, be held that the respondent continued in service in the Government Roadways Department throughout the material period (11-12-1953 to 10- 2-1957). So, Rule 17 is not of much assistance to the defendant. The plaintiff relies upon Rule 52. According to Rule 52, the pay and allowances of a Government servant who is dismissed or removed from service cease from the elate of such dismissal or removal. It is true that the respondent never ceased to draw his salary under Rule 52. But the question remains whether the respondent is entitled to draw salary from one department after having drawn salary from another Department.
According to Rule 12, a Government servant cannot be appointed substantively, except as a temporary measure, to two or more permanent posts at the same time. According to that Rule, the respondent could not be appointed on two different posts, in the Government Roadways Department and the Tubewell Department, simultaneously. His employment in the Tubewell Department was due to the fact that, it was at one time thought that he had ceased to be an employee of the Government Roadways Department. That point was clarified by the Civil Court's decree, dated 24-9-1955. Yet the respondent continued his work in the Tubewell Department.


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