KAN SINGH, J. - (1.) I have before me the two appeals arising out of the judgment and decree of the learned Senior Civil Judge, Ajmer, in a suit filed by Shri M. M. Datta against the Union of India for a declaration (a) that the plaintiff on his absorption on the Western Railway was entitled in a substantive capacity to a basic salary of Rs. 230/- per month in the pre 1931 time scale of Rs, 185 15-350 plus Rs. 4/8/- as interim relief alongwith, other admissible allowances and to fixation of his seniority and benefits of future promotion and calculation of retirement dues and pension accordingly in the old scales on the basis of his N. W. R. selection Board Selection; (b) a consequential relief in the form of a money decree for the amount that may be found due after taking accounts to have been paid short to the plaintiff in salary, pension and other retirement dues with interest at the rate of 6% from the date of the suit: and (c) for a decree for Rs. 2592. 25 paise said to have been illegally deducted from the plaintiff's pay and retirement dues, with interest at the rate of 6% from the date of the suit. The case set up by the plaintiff was briefly this : The plaintiff entered into the service of the North Western Railway in Mughalpura Workshop with effect from 12-5 1925. In 1943 he earned bis promotion to the selection post of a Senior Chargeman in the pre 1931 scale of Rs. 185-15-350 after passing the prescribed Selection Board test he continued to work without any break on the said selection post till the partition of India.
(2.) REGARDING the allocation of the civil services of the undivided India on partition between what came to be formed as Pakistan and the Dominion of India, there was, according to the plaintiff, a guarantee provided by the Indian Independence Act and the India (Provisional Constitution) Order, 1947. According to the aforesaid guarantee the plaintiff was asked to give his option and accordingly he opted for service under the Dominion of India. The plaintiff claimed that according to the aforesaid guarantee he was entitled to be deemed to have been duly appointed in a substantive capacity to the corresponding post in India and to be fixed on the same pay in the said time scale and to be given seniority on the basis of the date of his selection by the North Western Railway Selection Board for the selection post of a Chargeman. In accordance with his option he was ordered to join the Ajmer Railway Workshop and was provisionally allowed to draw a basic monthly pay of Rs. 210/- plus Rs 4/8/- as interim relief in the pre 1931 scale of Rs. 210-275 prevailing on the ex-BB & C. I. Railway which later on came to be constituted along with a few other Railway systems as the Western Railway. The plaintiff's grievance was that inspite of the aforesaid guarantee his initial pay, grade, confirmation and seniority after absorption were not fixed by the Western Railway and that question remained pending till 23-12-60 when a final decision was communicated to the plaintiff informing him that during the period 1-1-47 to 21-12-55 the over payment of Rs. 2592. 25 paise had been made to him and that the same was proposed to be recovered from him in monthly instalment of Rs. 40/ -. This came to the plaintiff as a surprise as instead of fixing him finally in place of his provisional fixation and giving him all the usual benefits flowing from such final fixation the amount of Rs 2592 25 paise was wrongly recovered from the plaintiff The plaintiff consequently served a notice under sec 80 Civil procedure Code to the General Manager, Western Railway and instituted the suit on 17-11-62. The reliefs claimed by him have already been set out in the beginning. The Union of India contested the suit. It was denied that the plaintiff was entitled to be fixed up on the footing of the post of a Senior Chargeman held by him under the erstwhile North Western Railway. According to the defendant, the plaintiff was only officiating as Senior Chargeman in 1946 and substantively he was only a workman. He was holding the next higher post of a Journeyman in the grade of Rs. 100-10 170 (old Scale) officiating capacity and thereafter held the next higher post of Senior Chargeman in the grade of Rs 185-15-350 (Old Scale) also in officiating capacity. According to the defendant, the plaintiff was thus not even a confirmed Journeyman at the time of partition. It was also denied by the Union that he had passed the prescribed Selection Board test for the post of a Senior Chargeman. The defendant also denied that the Indian Independence Act, 1947 or the India (provisional Constitution) Order, 1947 afforded any guarantee to the plaintiff. In other words, according to the defendant, the petitioner was not entitled to be treated as the holder of the post of a Senior Chargeman or Chargeman substantively in India. Regarding the provisional fixation of the plaintiff's salary, the defendant averred that a salary of Rs. 210'- per month was given to him on the basis of his declaration Further, according to the defendant, the plaintiff had really opted for the prescribed scales of pay although he had characterised that option as provisional and he had been allowed the benefit of the prescribed scales of pay on the post on which he worked from November, 1959 and later taken to have worked retrospectively with effect from 1-1-1947 In other words, the plaintiff was not entitled to claim the benefit of the pre 1931 scales of pay. Further, according to the defendant, the grade and pay of the plaintiff had been fixed under the prescribed scales of pay, on the pasia of his substantive pay under the North Western Railway Administration, on an equivalent post in the Western Railway. As regards the deductions made by the defendant it was averred that the provisional pay was allowed basis of his own declaration which was consequently subject to subsequent adjustments on fixation of his pay finally and as it was found that over payments had been made to the plaintiff the amount over-paid was recovered by monthly instalments. The defendant also raised the plea of limitation and further it was pleaded that the court fee paid by the plaintiff was insufficient. The defendant later on amended the written statement on 27-10-63 and raised one more plea therein that the suit for accounts was not maintainable. The trial court framed the following issues : - 1. "whether promotion to selection posts are earned as of right ? If so, was the plaintiff substantively promoted in the pre-1931 scale of Rs. 185-15-350, after passing the prescribed selection Board test to the selection post of senior chargeman in North Western Railway and continued in North Western Railway as such without break upto the partition of India, as alleged in para 2 of the plaint and was drawing Rs. 280/- as basic pay and Rs. 4/8/- as interim relief ? 2. (a) Whether any guarantee was given to the plaintiff at the time of the partition of India and he opted to serve in India in response to that guarantee ? (b) If so, in view of these guarantees, the plaintiff was entitled to be deemed to have been duly appointed substantively to the corresponding post in India and to the fixation of his seniority on the basis of the date of his selection as chargeman as alleged in para 6 of the plaint ? Is this question justiciable ? 3. (a) Whether the plaintiff was entitled after evacuation to India to a basic monthly pay of Rs. 230/-plus Rs. 4/8/- as Interim Relief in the pre-1931 Scale of Rs. 185-5-350 on the Ex.- B. B. & C. I. Rly. ? And whether the plaintiff finally opted for old scales of pay ? (b) If issue No. 3 (a) is decided in favour of the plaintiff, to what additional amount than already drawn would the plaintff be entitled to get and whether the plaintff is entitled to a money decree for the amount that may after taking accounts be found to have been short-paid to the plaintiff in salary, pension and other retirement dues on this basis with interest at six per cent from the date of suit ? 4. Was a sum of Rs. 2592 25 P. on account of over payments in salary irregularly and illegally recovered from the plaintiff and he is entitled to get it back ? 5. Is the Notice under sec. 80 C. P. G. bad as submitted in Para 13 of the written-statement ? 6. Is the plaintiff's suit barred by time ? 7. Is the suit properly valued, and court-fee paid is sufficient ? 8. Is the suit not maintainable for the reasons stated in para 19 of the writ ten-statement ? 9. Additional Issue - Is the suit for accounts not maintainable against the Unin of India ? 10. Relief" The plaintiff examined himself in his evidence and produced some documents. The defendant produced only one witness, one Deoki Nandan Misra, a senior clerk of the Office of the Deputy Chief Mechanical Engineer (Works), Ajmer. Under issue No. 1 the learned Judge considered the allegation of the plaintiff that in 1943 he had earned his promotion to the selection post of Senior Chargeman in the pre 1931 scale of Rs. 185-15 350 after passing the prescribed Selection Board test. The learned Judge observed in this connection that the only evidence adduced to prove this averment was the oral statement of the plaintiff as also a copy of an extract from North Western Railway Classified list of Subordinate Staff corrected upto 30-4-1945. Learned Judge felt that the plaintiff had not brought on record or shown any rules or regulations of the Northern Railway regarding the plaintiff's right to have earned promotion to selection post and consequently he found it difficult to believe that the North Western Railway employees used to earn promotion to selection post as a matter of right. He also referred to Ex. A/1, a letter dated 28-1-50 from the General Manager (Personnel), Lahore addressed to the Deputy Chief Mechanical Engineer, (W), B. B. & C I Railway, Ajmer regarding the post that the plaintiff was holding as officiating senior chargeman. It was mentioned in that letter that the plaintiff had not been confirmed even as journeyman and that his officiating pay as chargeman was Rs. 230/- in the scale of Rs. 185-15-350. In view of this the learned Judge held that what the plaintiff was able to establish was that he was getting Rs. 230/- per month as basic pay in the grade of lis. 185'15-350 on the post of a senior chargeman in the officiating capacity and that he had failed to prove that he had passed the prescribed Selection Board test for of the selection post of senior chargeman of the North Western Railway and was substantively promoted to such a post of senior chargeman. Regarding issue No. 2 (a) about the guarantee on which the plaintiff relied, the learned Judge came to the conclusion that the plaintiff exercised his option for serving under the Dominion of India and in doing so he characterised it as provisional nevertheless, according to the learned Judge, it was a final option. In the result, the learned Judge held that the plaintiff had been able to prove that the guarantee was given to him and that it was in response to such guarantee that he had opted to serve under the Dominion of India. Regarding issue No. 2 (b) the learned Judge held that there was no breach of the guarantee given to the plaintiff under the India (Provisional Constitution) Order, 1947. For this the learned Judge relied on State of Mysore vs. M H. Bellary (AIR. 1965 S. C 868 ). Regarding issue No 3 (a), the learned Judge observed that on his transfer from the North Western Railway to the B. B. & C. I. Railway the plaintiff was entitled to the substantive pay to which he was entitled on the post of Workman in North Western Railway, but as he was officiating on a higher post of senior chargeman, he was entitled! to a basic monthly pay of Rs. 230/- in the pre 1931 scale of Rs. 185-15-350 till he was to be considered as continuing to officiate on the corresponding post of a senior chargeman. The learned Judge then proceeded to consider the impact of the Railway Services (Revision of Pay) Rules, 1947 which came into force after the transfer of the plaintiff to the B. B. & C. I. Railway. According to rule 7 (4) of the Rules, the option regarding the revised pay scales which were known as the prescribed scales of pay was held by the learned Judge to be final. These Rules were given retrospective effect from 16-8-47. In this behalf the learned Judge took into consideration two documents Ex. 4/6 and Ex A/8 and held that even though the plaintiff had characterised his option as provisional it could be only a final one and, therefore, the same could not subsequently be allowed to be changed. Regarding this issue the finding of the learned Judge was as follows : "the result of the above discussion is that the plaintiff was entitled after evacuation to India to the basic monthly pay of Rs. 230/-plus Rs. 4/8/-per month as interim relief in the pre-1931 scale of Rs. 185-15-350 on his posting on the B. B. & G. I. Rly. on the ground that he was getting such pay in such scale while officiating on the post of senior chargeman immediately before 15-8-1947. But as the plaintiff exercised his option under Rule 3 (a) to elect the prescribed scales of pay, he became entitled to the pay admissible to him under the prescribed scales of pay and not in the pre-1931 scale of Rs. 185 15-350 " Regarding issue No. 3 (b) the learned Judge observed that the officiating pay of the plaintiff was actually re-fixed at Rs. 240/- in the prescribed scale of Rs. 200-10-300 in accordance with the formula laid down in rule 8 of the Railway Services (Revision of Pay) Rules. 1947. For this the learned Judge referred to the relevant entry in Ex. 1, the service sheet of the plaintiff. The learned Judge found that the plaintiff had reported of duty on the B. B. & C. I Railway on 17-10-47 and had continued on the post of a chargeman vice one Abdul Hamid till October, 1961 (vide Ex. A/2 and Ex. 4/7-B ). The learned Judge further pointed out that the actual amount drawn by the plaintiff during this period as provisional pay was Rs. 10333/-and according to the officiating pay re-fixed at Rs 240/- in the scale of Rs. 200-10 300, the plaintiff was entitled to the amount of Rs. 12460/- having regard to the annual increments that the plaintiff had earned during this period. Consequently the learned Judge reached the conclusion that an amount of Rs. 2122/- had been paid short to plaintiff for the period 17-10-1947 to 31-10-1961. The learned Judge also considered a contention advanced by the Union that the claim for this amount would be time barred, but he repelled the contention. Regarding issue No. 4, the learned Judge found that the amount of Rs. 2592. 25 paise had been wrongly recovered by the defendant from the plaintiff's pay and gratuity. The learned Judge came to the conclusion that there was no over payment to the plaintiff for the period October, 1947 to October, 1961 as alleged. Consequently the learned Judge held that the plaintiff was entitled to get back this amount from the defendant. Under issue No. 5, the learned Judge discussed the validity of the notice under sec. 80 Civil Procedure Code and held that the notice cannot be said to be invalid. The other issues were disposed of by the learned Judge partly in favour of the plaintiff and partly in favour of the defendant, but in as much as nothing turns on these issues at this stage, I need not refer to them. As regards the additional issue the learned Judge observed that the plaintiff was entitled to ask for a money decree for the amount that may, after taking the accounts be found to have been short paid to the plaintiff during the relevant period. The suit for accounts, according to the learned Judge was, therefore, maintainable. 13. In view of the conclusions he had reached on the various issues, the earned Judge decreed the plaintiff's claim in respect of two items namely, (1) for an amount of Rs. 2122/- less paid to him during the period from 17-10-1947 to 15-10-1951, and (2) for an amount of Rs. 2592 25 paise recovered from the plaintiff's pay and gratuity. In the result, he awarded the plaintiff a decree for a sum of Rs. 4714. 25 paise with proportionate costs and disallowed his remaining reliefs.
(3.) IT is in these circumstances that both the parties have filed appeals to this Court. I may first take up the appeal of the Union. Learned counsel for the Union raised a two-fold contention; the first one was suit being one for arrears of salary was governed by Art 102 of the Limitation Act; and consequently, it could have been filed within 3 years of the plaintiff earning the salary. Learned counsel maintained that the arrears claimed were for a period ending 1951 and as the suit was filed in 1962, it was obviously time barred. Then as regards the item relating to deductions, the learned counsel submitted that as the challenge was against an order of the officers of the Government, the suit should have been filed within one year of the order as required by Art. 14 of the Limitation Act. I may read Art. 102 of the Limitation Act, 1908 : "art. 102. For wages not otherwise expressly provided for by this Schedule. " Three Years. When the wages accrue due. Now the cause of action will arise when the wages of the servant can be said to have accrued to him. A servant of the Railways is the holder of a civil post under the Union. Wages or emoluments of civil servants under the Union may be governed either by an agreement or by a rule made by the President under Art. 309 of the Constitution This is not a case of wages or salary being payable to the civil servant according to any written agreement The salary or wages could, therefore, necessarily be such as would be payable under the relevant rules and under orders of a competent authority who is entitled to determine the salary or wages of the civil servant concerned. I may, to start with, refer to the order that was passed regarding the salary of the plaintiff on his transfer to the B. B. & C. I. Railway. It is Ex A/2 which I may read : "loco & Carr. Supdt's Office, Ajmer. dated 15-10-1947 No. E/tr/1nd/6583 To The Turner Foreman, C. S. Ajmer. Transfer of Staff from Pakistan. On transfer from Pakistan the bearer Mr. Madan Mohan S/o Sardar Bhag Singh is posted in your Deptt. as a Chargeman vide Abdul Hamid T. No. 961 being transferred to Pakistan. The date he starts work should be advised to this office and the H. T. K. as usual. He will be paid Rs. 310/ P. M. provisionally till further orders. " This order unmistakably shows that Rs. 310/- per month were fixed provisionally till further orders, as the salary payable to the plaintiff. The order shows that the fixation of salary was provisional till further orders and could be revised later on in accordance with the rules that may be in force for the time being. The plaintiff came to be fixed at a salary of Rs. 240/- per month effective from 16-8-1947 by an order that was issued by the competent authority on 2-11-05. This position is admitted on behalf of the Union. That being so, the right to claim wages at the enhanced rate or scale could accrue to the plaintiff only when his salary or wages were finally determined by the competent authority. Shri Gupta invited my attention to a case reported as State vs. Bhagwan Singh (l), wherein Art 102 of the Limitation Act in a case about recovery of arrears of pay was considered. The learned Judges held : "art. 102 will apply, if the Government servant had to file a suit for the recovery of arrears of his pay. Such a suit has to be brought within three years from the date when the wages accrued due. Where the pay-grade of the plaintiff was revised in 1950 but the Government finally decided the matter of fixing the plaintiff's pay in the new time-scale on 13-2-7961. The wages at the enhanced rate fell due on 13-2-1951 and not earlier. " I am in respectful agreement with the above observations. The plaintiff's claim, therefore, cannot be said to be time barred in respect of the difference in salary for the period 1510-47 to 15 11-1951. There is, therefore, no force in the contention that the suit regarding these arrears was barred by time. ;