- (1.) JUDGEMENT The petitioner was appointed the Secretary of the Municipal Board of Allahabad (now Nagar Mahapalika, Allahabad) on 13-8-1946 on probation on a salary of Rs. 200/- per month and was confirmed on 13-8-1947 when he was drawing Rs. 210/- per month. He was appointed on 12-12-1957 as Additional Executive Officer of the Municipal Board on a salary of Rs. 500-50-750 EB-1000. The post on which he was appointed on 12-12-1957 was created on a temporary basis by the Administrator, Allahabad, who also invested the petitioner with power to perform the functions and to discharge the duties of an Executive Officer in respect of the department under his charge. This post was created after the matter had been referred to the Government and sanction obtained from it to the creation of the post. A letter dated 6-12-1957 from the Commissioner, Local Bodies, and Secretary, L. S. G. Branch, U. P. Lucknow, to the Administrator, Municipal Board, Allahabad, indicating that the creation of the temporary post was sanctioned, states that the petitioners appointment will be a purely temporary arrangement and that, so long as the post of the Additional Executive Officer is continued, the post of the Secretary in the Municipal Board will be kept in abeyance with the petitioners lien on it.
(2.) IN the course of his service with the Municipal Board, Allahabad, the petitioner was given a chance to officiate as an Executive Officer for a short period of few weeks from 12-1-1948 to 17-2-1948 drawing salary at the rate of Rs. 750/-per month which was the minimum pay then for the Executive Officer of Allahabad Municipal Board. The petitioner reverted to his post of Secretary when the Executive Officer, who had gone on leave, returned. The petitioner, however, was made a permanent Secretary of the Municipal Board drawing a salary of Rs. 260/- per month on 1-1-1950. He also officiated on three other occasions as the Executive Officer, the first of these was from 13-2-1950, the second was from 1-4-1950, and the third was from 9-6-1952, before he was appointed an Additional Executive Officer on 12-12-1957. On each of the three last mentioned occasions, when the petitioner officiated as Executive Officer for short periods, the petitioner drew the pay of the Secretary in substantive capacity together with an additional salary for officiating as Executive Officer to make up Rs. 500/-. In other words, on the three occasions following the solitary occasion which arose on 12-1-1948, when the petitioner drew salary at the rate of Rs. 750/- per month, and before the appointment of the petitioner on 12-12-1957 substantively as an Additional Executive Officer, occupying a temporary post, the petitioner drew only Rs. 500/- per month, altogether, while officiating as Executive Officer. On 19-9-1960, when the petitioner was drawing Rs. 650/- per month, the petitioners post of Additional Executive Officer was given a new designation:"Up Nagar Adhikari II. " The petitioner has been getting his increments at the rate of Rs. 50/- per year. In 1963, the petitioner became aware of the existence of Fundamental Rule 22 which was one of the rules made by the Governor of U. P. under Section 241(2) (b) of the Government of India Act, 1935, which came into force on April 1, 1942. He, therefore, made a representation on 17-3-1963 to the Mukhya Nagar Adhikari, Nagar Mahapalika (The Municipal Board had been raised to the status of a Nagar Mahapalika by then) claiming the benefit of the Rule 22 of the Fundamental Rules, as explained by the Audit Instruction No. 4. The petitioners case was that he was entitled to a fixation of minimum salary of Rs. 750/- per month from 12-12-1957. This matter was referred to the Government of U. P. which, after several reminders, rejected the petitioners representation. The petitioner received a letter dated 1-2-1967 (Annexure D to the petition) informing him that the Government did not find it possible to accede to the petitioners request. The petitioner then filed the writ petition now before me, dated 1-5-1967, praying for the quashing of the alleged order of the State Government dated 1-2-1967 (Annexure D) by means of a writ of certiorari and for a writ of mandamus to command the opposite party nos. 1 and 2, the State of U. P. and the Administrator, Nagar Mahapalika Allahabad, to fix the initial salary of the petitioner at Rs. 750/- with effect from 12-12-1957. The petitioner also claims increments after the initial fixation of salary at Rs. 750/- per month on 12-12-1957 and a direction to the opposite parties to pay up the arrears of all the pay due to the petitioner on the assumption that the petitioners claim was justified.
(3.) THE first question which arises in this case is whether the Fundamental Rule 22, relied upon by the petitioner, is applicable at all to the Executive Officer of a Municipal Board. The relevant part of Section 241(2) of the Government of India Act, 1935, under which the Fundamental Rules were made, reads: "Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this Section, be such as may be prescribed; (a) in the case of persons serving in connection with the affairs of the Federation, by rules made by the Governor General or by some person or persons authorised by the Governor General to make Rules for the purpose: (b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province or by some person or persons authorised by the Governor to make rules for the purpose:" ;