TYAGI, J. - (1.) THIS is a plaintiff's second appeal in a suit for arrear of salary filed by the plaintiff against the State of Rajasthan and arises out of the following circumstances.
(2.) THE plaintiff was in service of the erstwhile State of Jodhpur and at the time when he was selected as Upper Division Clerk as a result of integration he was working in the office of Sud-divisional Officer, Sojat. THE Divisional Commissioner, Jodhpur vide his letter dated December, 19, 1951 (Ex. 3) notified that all the government servants in the Ministerial Service of the Revenue Department working in Jodhpur division including the Treasury Staff have been selected for substantive appointment to the new classification and their seniority had been fixed in accordance with the rules as amended. THE selection was, however, confined to the pre-covenant entrants. Two lists were prepared in pursuance of the said letter; one of the Upper Division Clerks and the other of the Lower Division Clerks. Sampat Raj was at item No. 14 of the list of Upper Division Clerks. It was shown that through the process of integration Sampat Raj was appointed as an Upper Division Clerk in the office of the Sub-divisional Officer, Sojat. In this very letter the Divisional Commissioner notified for the option to be exercised by the incumbents to elect the new pay scale prescribed under the Rajasthan Civil Services (Unification of Pay Scales) Rules, 1955. THE relevant portion of the letter issued by the Commissioner is as follows : "all the Government servants must exercise their option to elect the new scale or the old scale in accordance with the Rajasthan Civil Services (Unification of Pay Scales) Rules, which will have effect from the 1st April, 1950, within a period of one month from the date of this order. . . . . . " It is not disputed that the plaintiff opted for new pay scales prescribed by the Government and started drawing salary from 1-4-1950 in the grade of Upper Division Clerk. Later on an objection was raised by the Accountant General that the plaintiff was not entitled to draw his salary in the grade of an Upper Division Clerk from 1-4-1950 According to the view taken by the Accountant General the plaintiff could draw the salary of grade of an Upper Division Clerk from 21-2-1952 after adding one advance increment when he was actually asked to function as the Upper Division Clerk. THE Commissioner, however, did not agree with this view of the Accountant General and wrote a letter an 27-6-1955 (Ex. 6) mentioning in that Sampatraj was actually selected as an Upper Division Clerk vide order dated 19-12-1951 As such he should be allowed to draw the of Upper Division Clerk's grade from 1. 4. 1950 in view of the Dy. Secretary to the Government G. A. D. letter No. G. A. D. F. 36 (Int. A/50 dated 18-11-1953) (copy enclosed for ready reference ). It was an ad-hoc arrangement and due to the process of integration persons were allowed to work without dislocation when they were categorised and fixed in the Unified Pay Scales except in the case of surplus hands all were given the benefit of the Unified Pay Scales from 1 4-1950 and Shri Sampatraj should, therefore, get the same benefit and be fixed as Upper Division Clerk from 1-4-1950. It may be mentioned that the letter of the Dy. Secretary to the Government G. A. D. was not placed on the record either by the plaintiff or by the defendant State, but it is clear that on account of the view taken by the State on the advice of the Accountant General Sampat Raj was required to refund the pay that he had drawn from 1-4 1950 to 21-2-1952 in the grade of Upper Division Clerk and he was declared entitled to draw the salary of lower Division Clerks Sampat Raj, therefore, refunded Rs. 1585/- which had been, according to the State, overdrawn. It is for this amount that Sampat Raj filed the suit in the Court of Additional Munsif Magistrate No. 2, Jodhpur City. The State joined issues with Sampat Raj and came up with plea that Sampat Raj was entitled to draw his salary in the grade of Upper Division Clerks only from the date when he was 'appointed' on that post and since the appointment had taken place on 21-2-1952 he could not draw the salary in the grade of Upper Division Clerks. The plea of the State was accepted by the learned trial court and the suit was dismissed. Appeal was preferred by the plaintiff in the court of Senior Civil Judge No. 1 Jodhpur against the decree and judgment of the trial court. At the appellate stage the State Government raised the plea of limitation, but that plea did not find favour with the appellate Court. However, the learned appellate Judge endorsed the view taken by learned trial court about the right of Sampat Raj to draw the salary in the Grade of Upper Division Clerks only from the date he was appointed as such by the competent authority. The appeal was, therefore, dismissed. It is in these circumstances that the second appeal has been preferred by the plaintiff-appellant. It cannot be denied that Sampat Raj was pre-covenant entrant as defined in the Rajasthan Civil Services (Unification of Pay Scales) Rules, 1955. According to the definition a pre-covenant entrant is a Government servant who held in a substantive capacity, a permanent post in one of the Covenanting States or had a lien on such a post or would have held a lien, if it had not been suspended. The contention of the learned counsel appearing fur the appellant is that Rule 3 of the aforesaid Rules confers a substantive right on the pre-covenant entrant to draw the salary of the grade in which he has been selected by the process of integration from 1. 4. 1950 irrespective of the fact that whether his selection or appointment to that post had taken place after 1. 4. 1950. The view taken by both the learned lower courts is that Sampat Raj was no doubt selected for the post of Upper Division Clerk by the integrating authority vide order dated December 19, 1951, when the Divisional Commissioner notified his selection but according to both the learned lower courts this selection cannot be taken to be the posting or appointment of the persons selected on the posts for which the selection had taken place and, therefore, Sampat Raj, who was undoubtedly selected as an Upper Division Clerk from 21. 21952 cannot claim his salary of the grade on Upper Division Clerks from 1. 4. 1950. The letter Ex. 3 gives choice to all the permanent pre-covenant entrants to inform about their election of pay scales whether they would like to opt the new pay scales prescribed by the Unification of the Pay Scales Rules or they would like to elect the old pay scales drawn by them in the pre-covenanting states. It was made expressly clear in this letter that if new pay scales were opted they would have effect from 1. 4. 1950. The question which arises for the determination of this court is whether the plaintiff, who was selected for the job of Upper Division Clerk and who opted for the new pay scales in that grade after he was actually declared selected for the post of Upper Division Clerk was entitled to draw the salary of the Upper Division Clerk from 1. 4. 1950 or from the date he actually took over the charge of the post. This contention raised by the learned counsel can be resolved by referring to the provisions of Rules 3 of the Unified Pay Scales Rules, which govern the case of plaintiff. Rule 3 of the aforesaid Rules reads as under : - "the rates of pay shown in the schedule shall apply with effect from 1st April, 1950 to: - (a) all Post-1950 entrants; (b) Pre-1950 entrants who may be appointed after 1st April, 1950 to a post borne on the cadre of an integrated service, (c) Pre-Covenants entrants, who, being appointed to posts in an integrated service elect these rates of pay," The case of the plaintiff is governed by clause (c) of Rule 3 as he is undoubtedly a pre-covenant entrant, Clause (c) lays down that the rate of the pay scales in the schedule shall apply with effect from 1. 4. 1950 to all pre-covenant entrants who are appointed to posts in an integrated service and who elect for new rates of pay. This clause does not lay down that the new scale of pay shall be available to him from the date of his appointment The only reqirement of clause (c) of this Rule is that if a pre-covenant entrant is appointed to post in an integrated service and if he elects for the rate of pay given in the schedule, then the new rates of pay shall be available to him from 1-4-1950 irrespective of the fact whether he was selected to the integrated service after 1st of April, 1950 and actually took charge of that office after the said date. This construction of clause (3) makes it clear that a pre-covenant entrant when appointed to the post in an integrated service shall be entitled to draw the rates of pay shown in the schedule to these rules from 1-4-1950 provided he elects for such pay scales, It is not denied that the plaintiff had elected the new pay scales prescribed by the said Rules. It is also not denied that he was selected in 1951 to the cadre of Upper Division Clerks in an integrated service and that it was only due to the administrative exigencies that he was actually asked to work on that post from 21 -2-1952. The substantive right to draw salary on the post in an integrated service is conferred on a pre-covenant entrant whose services have been integrated and he was selected for that post in an integrated service by Rule 3 of the said Rules. This Rule cannot be interpreted in any other manner except that when pre-covenant entrant was appointed to a post in an integrated service and he opted for the new scale of pay then he is entitled to draw the rates of pay shown in the schedule annexed to the Rules from 1-4-1950. In my opinion both the courts below have erred in not [correctly realising the import of Rule 3 which is couched in an unambiguous language admitting no other meaning except the one as clarified above.
(3.) LEARNED counsel appearing for the State urged that the suit was time barred, and therefore, it cannot be decreed by the Court even if Rule 3 is interpreted in the manner in which it has been interpreted by this Court. It may be mentioned that the State did not press the plea of limitation before the trial Court. In the first appellate court this plea was, however, pressed by the State but it was rejected by the learned appellate judge. Since the plea of limitation was [abandoned by the State at the trial stage, it cannot be allowed to be raised at the appellate stage as the question is not purely a question of law but a mixed question of law and fact. For the reasons mentioned above the appeal is allowed. The judgment and decree of both the courts below are set aside and a decree is passed against the State for Rs. 1585/- with costs throughout. .;