- (1.) THIS is a petition under Art. 226 of the Constitution praying for the quashing of two orders passed respectively by the Government of Uttar Pradesh and the Director of Panchayat Raj, Uttar Pradesh, in both of which it was held that the petitioner was not entitled to his salary for the period between 23 May, 1953 and 30 April, 1956 on the ground that his claim was time-barred. It raises an important question of law, namely, whether the Government, while considering what salaries and allowances should be paid to a Government servant who was removed from service but whose removal is set aside by the civil Court and who is consequently reinstated in pursuance of the Court's decision, can take into consideration the provisions of the Limitation Act and decide that any part of his salary shall not be paid on the ground that his claim is time-barred. The petitioner's case has had a long and chequered history and it is necessary to relate very briefly the facts. On 6 June, 1949 the Governor of Uttar Pradesh, by G.O. No. 7691/PPD-114/48, sanctioned the creation of 500 temporary posts of panchayat inspectors in the scale of Rs. 120-6-180-E.B. - 10 - 200, plus exclusive of dearness allowances. This order was passed by the Governor in the exercise of his powers under S. 241 of the Government of India Act, 1935, as it purported to create temporary posts and regulate their conditions of service. The order itself did not specify under what law it was passed but the State Counsel stated before me, in answer to a question from the Court, that he was instructed to state that it was passed under S. 241 of the Act of 1935.
(2.) THE petitioner was appointed to one of these posts by the Director of Panchayat, Uttar Pradesh, by his order dated 16 July, 1949. In 1951 he got into trouble with the authorities and disciplinary action was taken against him, and he was charged with having committed serious offences. During the disciplinary proceedings he remained suspended. On 13 January, 1952 he was reinstated but a number of punishments were imposed on him. His salary was reduced to the lowest scale of Rs. 120 per month, his increment was stopped for one year, and it was directed that at the end of this period the question whether he should receive any increment would be considered. An adverse remark was made against him in his character roll. Before the year was out, he again got into trouble and serious charges of misconduct were framed against him. He was suspended once again. As a result of the inquiry, he was removed from service by an order of the Joint Director, Panchayat Raj, dated 12 May, 1954. His appeal against this decision was dismissed by the Government on or about 18 May, 1956 and then he filed a petition in this Court under Art. 226 for the quashing of the order of dismissal and for directing the State to treat him as continuing in service and pay him the arrears of salary due to him up to date. This petition was heard by me and during its hearing the State conceded that the order removing the petitioner from service was illegal as it was passed by an authority which was subordinate to that by which he was appointed. Thereupon this Court quashed the order of removal on the ground that there had been a violation of the provisions of Art. 311(1) of the Constitution. The Court did not consider the relief with regard to the payment of arrears of salary because counsel for the State Government submitted that the Government might pass a fresh order for his removal or commence fresh proceedings against him. In pursuance of the decision of this Court, the petitioner was reinstated in service on 1 May, 1959. On 8 June, 1959, he applied to the Director of Panchayat Raj, for payment of all the arrears of his salary. No decision on the question of arrears of salary due to him was taken for some time. But the disciplinary proceedings which resulted in its removal were not revived and he continued in service till 28 February, 1960. On that date he was served with a notice purporting to terminate his service after one month's notice. He challenged the legality of this order by filing a writ petition in this Court which was dismissed by Dwivedi, J., on 3 April, 1961. His appeal from this decision was also dismissed on 12 November, 1966. The question of arrears of the salary due to him for the period of his suspension, between 24 May, 1953 and 1 June, 1959 was decided by the Government, after his service had been terminated a second time by the notice of 23 February, 1960. As stated above he had moved the Government by his application of 8 June, 1959, but no decision was taken till 25 October, 1960. On this date the impugned order was passed by the Government. The material portion of this order runs thus: "Government are advised that Hari Raj Singh Tyagi, ex-panchayat inspector, should receive his salary and allowances only for the last three years as the payment of any emoluments to him for the remaining period of his absence from duty is barred by time. The Governor has accordingly been pleased to order that for the period from 1 May, 1956 of 30 April, 1959, Hari Raj Singh Tyagi should be paid his full pay together with such increments as he would have normally drawn had he not been dismissed from service. He would also be entitled to receive dearness allowance at the rates admissible to him under the orders or Government issued from time to time." This order is annexure F of the petitioner's affidavit. It was in the form of direction issued by the Government to the Director of Panchayat Raj. In pursuance of it the Director issued an order on 20 January, 1961 that the petitioner was entitled to receive his arrears of salary for three years prior to his reinstatement on 1 May, 1959 at the rate of Rs. 120 per month plus dearness and other allowances, if any. This order is annexure E of the petitioner's affidavit. Aggrieved by this decision of the Government the petitioner has come to this Court once again. Originally he asked for a writ in the nature of mandamus ordering the State Government to give effect to the order of the High Court dated 10 October, 1958, and not to withhold his salary and allowances for the entire period from 23 May, 1953 to 1 May, 1959. During the hearing of this case the petitioner, on a suggestion from the Court, amended his petition and added a prayer for the quashing of the two orders of the State Government dated 25 October, 1960 and 20 January, 1961 (annexure E), in both of which it was verbally held that his claim for salary for the period between 1953 and 1956 was barred by time. The petition is opposed by the State Government. In the counter-affidavit filed on its behalf it is conceded that the petitioner is entitled to salary for the period between 1 May, 1956 and 1 June, 1959 and it is stated that "the State Government is willing to pay the salary to the petitioner as is admissible under the rules subsequent to the period 1 May, 1956." As regards the salary for the period between 24 May, 1953 and 1 May, 1956 it is admitted that the Government decided not to pay this salary on the ground that it had become time-barred, but it is contended that the petitioner is not entitled to it under the law. The case of the State is stated in Para. 9 of the counter-affidavit thus: "That the question whether the petitioner was entitled to the arrears of salary was considered by the Government and it decided that since the salary prior to 1 May, 1956 which had become time-barred on the date on which he rejoined his duties was not admissible to the petitioner."
(3.) THE main question in this petition is whether the reason given in the order annexure F that the petitioner should receive his salary and allowances only for the last three years because his claim for the earlier period is time-barred is a valid reason in law, and if not, whether it makes the order itself invalid. The next question will be whether this Court can interfere and if so, what relief it can give the petitioner. The question will arise only if the first is decided in favour of the petitioner. Before deciding this question, I must make one or two points clear. The first is that the order annexure F was passed by the State Government in the exercise of their powers under rule 54 of the Uttar Pradesh Fundamental Rules. The order itself does not specify under which law it was passed, but learned counsel for the Government stated, in reply to a question from the Court, that he had been instructed to state that the order had been passed under rule 54. This statement was recorded. I asked learned counsel whether in the event of the Court holding that rule 54 does not apply to this case, he could specify any alternative source of power, and he replied that he could not. It follows that if Government's jurisdiction to pass the order cannot be found in rule 54, the order is without jurisdiction.;