Sh. Ram Dayal vs The State of H.P.

R.S. Pathak, C.J.—The Petitioner, Shri Ram Dayal Yadav, was appointed State Engineer in July 1946 in the State of Bilaspur on a salary of Rs. 350 p.m. He was confirmed in that office in 1947 and his salary was raised to Rs. 400. On the merger of the State of Bilaspur into the Dominion of India in 1948 he was absorbed as Divisional Engineer under paragraph 3 of the Bilaspur State (Administration) Order, 1948, dated January 28, 1949 in the Bilaspur Province Administration. It appears that the post of Divisional Engineer at Bilaspur was considered to be equivalent to the post of a Sub-Divisional Officer under the Himachal Pradesh Administration. By letter No. F. 21(2)-W/49, dated February 21, 1951, sanction was accorded by the Government of India to the creation of one post of Sub-Divisional Officer in Bilaspur in the scale of pay "250-25-500-25-750 (as for S.D.Os. in the Punjab and H.P.)". A subsequent letter No. F. 27(22)-S/51, dated September 23, 1952, similarly showed the post of a Sub-Divisional Officer carrying the scale of pay 250-25-500-25-750. That was followed by a further letter No. F. 10(1)-S/53, dated May 23, 1953, showing the same scale of pay for a Sub-Divisional Officer. The Petitioner continued to serve as Sub-Divisional Officer in that scale of pay until his transfer as Sub-Divisional Officer to the Sub-Division of Paonta in Himachal Pradesh by an order dated May 25, 1950. The Petitioner represented against the transfer on the ground that the post was inferior in status to that occupied by him at Bilaspur. The Chief Commissioner, Himachal Pradesh, dismissed him from service on October 17/21, 1950.

On January 13, 1955, the Petitioner filed a civil suit for a declaration that the order of dismissal violated Article 311 of the Constitution and he prayed for an order restoring him to service. The learned Senior Subordinate Judge, Sirmur, who tried this suit, held that the impugned order contravened Article 311 but refused relief on the ground that an employer could not be compelled to accept a servant in employment. Against the dismissal of the suit the Petitioner appealed, and on October 28, 1957, the learned District Judge allowed the appeal, set aside the order of dismissal and restored the Petitioner to service. No appeal was filed thereafter, and the decree of the learned District Judge became final. An attempt was made thereafter by the Himachal Pradesh Administration to reopen the case by filing a writ petition before the Judicial Commissioner, but on August 29, 1959, the writ petition was dismissed in limine. A petition under Article 133 of the Constitution met with the same fate. It was only thereafter on March 21, 1960, that effect was given to the decree of the learned District Judge, and the Petitioner was reinstated to his post with the direction that his pay and other emoluments would be fixed according to the rules in force. On May 12, 1960, the Petitioner took over charge of his post.

On July 6, 1961, the Government made an order that the Petitioner was not entitled to any pay and allowances from October 17, 1950, when he was dismissed from service, to January 13, 1955, when he filed the suit, as the claim was barred by time although for the purposes of pension his service would be counted as continuous from October 17, 1950. The Government allowed him full pay and allowances from January 13, 1955, to the date of reinstatement. A dispute was also raised on the question whether the scale of pay in the case of the Petitioner carried an Efficiency Bar at Rs. 550 p.m. The Petitioner contended that there was no such Efficiency Bar at all while the Government insisted that there was. The decision of that question, it is clear, affects the pay and allowances admissible to the Petitioner.

In the first of the two writ petitions before us the Petitioner prays for pay and allowances in the scale of Rs. 250-25-500-25-750 without the interposition of an Efficiency Bar and for the fixation of his seniority with reference to his original appointment in July, 1946. On June 10, 1970, during the pendency of the first writ petition, the Himachal Pradesh Administration made an order permitting the Petitioner to cross the Efficiency Bar at the stage of Rs. 550 p.m. with effect from May 30, 1960. The second writ petition was filed thereafter challenging the validity of that order on the contention, in the first place, that the scale of pay did not contain any Efficiency Bar and the Petitioner was entitled to all the increments which had accrued by virtue of his initial employment and, in the second place, assuming the application of an Efficiency Bar, permission to cross it should have been considered with reference to March 4, 1955, when the Petitioner would have reached the pay of Rs. 550 p.m. if he had not been illegally removed from service.

The Petitioner claims that he is entitled to pay and allowances for the period from October 17, 1950, when he was illegally dismissed from service, to January 13, 1955, when he filed the suit challenging his dismissal. The Respondents have denied him his emoluments for that period on the ground that the claim is barred by time. To my mind, the ground which has prevailed with the Respondents is misconceived. The bar of limitation prescribed by the Limitation Act is a bar imposed upon the institution of a suit or other proceeding in a court of law after a prescribed period of time. It is a bar to the exercise of the right to sue. But while it bars the remedy it does not destroy the right. In the present case, the Petitioner''s right to the pay and allowances would not be destroyed, only the remedy to which the Limitation Act applies would be barred. Now, if the Petitioner''s right to the pay and allowances continues to subsist, the corresponding liability of the Government in that regard continues equally to subsist. Therefore, while the Petitioner may not be entitled to pursue the remedy contemplated by the Limitation Act, he is entitled to apply to the Government for payment and, whatever else may be the reason for rejecting it, the defence of limitation cannot be raised against it.

The Respondents contend that in any event the Petitioner has been guilty of laches in claiming the relief for payment of the pay and allowances. If the Petitioner had filed a suit, they point out, the suit would have been barred by time. And therefore, it is said, the delay is so great that relief should not be granted. There is force in that contention. In the absence of special circumstances there is no reason why on a writ petition the court should grant relief if a suit filed for the same relief would have been barred by limitation. To adopt a different course would be to encourage suitors, who have rights to assert by way of suit but have slept over them, to invoke the extra-ordinary jurisdiction of the High Court by a writ petition and claim relief which would have been denied them in a suit. It would result in undermining the operation and efficacy of the law relating to limitation. In State of Madhya Pradesh Vs. Bhailal Bhai and Others, , Das Gupta, J., speaking for the Court observed:

It appears to us, however, that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where delay is more than this period it will almost always be proper for the Court to hold that it is unreasonable.

While the law of limitation does not apply to writ petitions, the doctrine of laches, which issues from the maxim "vigilantibus, non dormientibus, aequitas subvenit" Hanbury''s Modern Equity: 656, 674, prescribes that equity assists those who are vigilant and not those who sleep over their rights. In England, when claims are made in equity which are not, as regards equitable proceedings, the subject of any express statutory bar, but the equitable proceedings correspond to a remedy at law in respect of the same matter which is subject to a statutory bar, a court of equity, in the absence of fraud or other special circumstances, adopts, by way of analogy, the same limitation for the equitable claim Halsbury''s Laws of England, Vol. 14, p. 647, para 1190, See Knox v. Gye (1872) 5 L.R. 49 per Lord Westbury, At the same time, it may by made clear that while a writ petition, in certain circumstances, may be entertained so long as the period of limitation for a suit for a corresponding relief has not expired, that does not detract from the general principle that the utmost expedition is the sine qua non for claiming relief on a writ petition. See Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, per Hidayatullah C.L., The Petitioner relies on Hari Raj Singh v. Sanchalak Panchayat Raj, U.P. Government, Lucknow and Ors. 1968 (2) SLR 849, where a learned single Judge of the Allahabad High Court granted relief to the Petitioner even though the period of limitation for filing a suit for such relief had expired. It seems to me that the considerations to which I have [adverted above were not placed before the learned Judge. Further, I find myself, with respect, unable to agree with all that has been said in that case.

The Petitioner contends that he could file the present writ petitions only after the decree of the civil court had been passed directing his reinstatement. It is urged that the cause of action arose on the date of that decree. Reference has been made to Fundamental Rule 52 which provides:

The pay and allowances of the Government servant who is dismissed or removed from service cease from the date of dismissal or removal.

The submission is that by reason of Fundamental Rule 52 the Petitioner could not have claimed his pay and allowances so long as the order of dismissal or removal continued. In my opinion, Fundamental Rule 52 is concerned with an order of removal or dismissal which is effective in law. If the order is null and void, it is non est and docs not operate at all in law. An order void ab initio is an order which never comes into existence in law. It is now settled law that the requirements of Article 311(2) of the Constitution are imperative and mandatory, and that an order which does not comply with those requirements is null and void. Therefore, the order dated October 17, 1950, dismissing the Petitioner from service, being a null and void order, will not bring Fundamental Rule 52 into play.

In suppor of the contention that the cause of action arose only when the decree was passed directing his reinstatement the Petitioner relies on a number of cases. In Union of India v. Akbar Sheriff AIR 1961 Mad. 486, the Madras High Court held that the period of limitation under Article 102 of the Limitation Act for a suit for recovery of past salary of a reinstated Government servant commences to run from the date of the order of reinstatement. The view was reiterated in State of Madras v. A.V. Anantharaman AIR 1963 Mad. 425. Reference was also made before us to Sudhir Kumar Das v. General Manager, N.F. Railway 1968 (2) SLR 654, but I do not find that the application of Article 102 was considered at all in that case. In Union of India v. Gian Singh Kadian 1970 SLR 563 the Delhi High Court held that the cause of action for claiming full pay and allowances did not accrue to the Government servant during the period of his suspension but accrued only when the order of suspension stood, revoked. Similarly, in Satya Narain Lal v. Divisional Superintendent, Northern Railway, Allahabad 1971 (1) SLR 431, the Allahabad High Court took the view that a reinstated employee had a cause of action to apply for past wages on the date of the order holding his removal to be illegal. It is not clear from the judgment in that case whether the order dismissing the employee contravened any mandatory provision of law such as Article 311(2) of the Constitution. The decision appears to have proceeded on the basis that it was merely illegal. Reference may be made next to Laxmiben Girdharilal Patel v. State of Gujarat 1971 (2) SLR 695, where the Gujarat High Court laid down that the limitation for recovery of arrears of pay commences to run from the date when the order of removal is set aside by the civil court. The learned Judges were considering Rule 150 of the Bombay Civil Services Rules (corresponding to Fundamental Rule 52), and held that it was only upon the setting aside of the order of dismissal or removal that Rule 150 ceased to have effect and thereupon the wages would be deemed to accrue.

With great respect to the learned Judges who decided the cases mentioned above, it seems to me that the language of Article 102 of the Limitation Act and the circumstance that an order of dismissal or removal contravening Article 311(2) is void were not truly appreciated. Under Article 102 the period of limitation is three years from the date "when the wages accrued due". Salary accrues according to the terms of the contract of employment, and ordinarily it would accrue from month to month. The fact that there is an order of dismissal can be of no moment in determining when the salary accrues if that order is void. In Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, , the Supreme Court explained the effect of a decree holding an order of dismissal invalid to be "that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous". In other words, the Government servant must be deemed never to have been removed or dismissed from service but to have continued in service throughout. The mere circumstance that an order dismissing or removing him has been passed need not prevent a Government servant from filing a suit praying for quashing the order of removal or dismissal and also for salary. Indeed, in State of Madhya Pradesh v. Syed Q amarali 1967 (1) SLR 228 the Supreme Court has held that it is not even necessary for the Government servant to have the order of dismissal set aside by the court when claiming recovery of pay and allowances if that order is totally invalid and has no legal existence. The defence of limitation, which was based on the contention that the order had to be set aside by a court before it became invalid, was rejected. A Full Bench of the Punjab and Haryana High Court in Jagdish Mitter v. Union of India 1969 SLR 376 after reviewing the case law held that a public servant after his dismissal or removal had been declared to be unlawful could claim wages or salary only up to a period of three years and two months (the two months being the period of notice u/s 80 Code of Civil Procedure) from the date when the cause of action accrued. It was observed that as the order of dismissal was found to be void the period of dismissal in consequence must be regarded as a period for which the dismissed employee was deemed to be in service, and therefore, the salary of the employee must be deemed to have continued to accrue during the period of dismissal. The Rajasthan High Court adopted the same view in State of Raj as than v. Rattan Lal Sogani 1970 SLR 87, It was pointed out that despite the void order of dismissal the cause of action for the salary would arise on the date the salary of a particular period became due under the terms and conditions of employment.

In my opinion, the cause of action for a suit for salary by a Government servant, who was dismissed or removed and subsequently reinstated on the finding that the order of dismissal or removal violated Article 311(2) of the Constitution, is not determined by Fundamental Rule 52 but by Article 102 of the Limitation Act read with the term in the contract of employment specifying when the salary becomes due. As the first of the two writ petitions before us was filed in 1968, the Petitioner is guilty of laches in claiming relief in respect of the pay and emoluments due for the period October 17, 1950 to January 13, 1955.

It is urged on behalf of the Petitioner that the delay in claiming the pay and allowances should be condoned, specially when he continued to make representations to the Government against the dismissal order ever since it was passed. It has not been shown that the representations were made pursuant to any legal provisions contemplating such representations. In K.V. Rajalakshmiah Setty v. State of Mysore AIR 1967 SC 993, the Supreme Court observed that the mere writing of letters from time to time to the Government for relief was not sufficient to explain the laches in filing the writ petition. I am not satisfied that the gross delay in claiming the relief for pay and allowances should be condoned.

In the circumstances, it is not necessary to consider the objection of the Respondents that the Petitioner''s claim to pay and allowances is barred by Order 2, Rule 2, Code of Civil Procedure.

One more submission of the Petitioner on this part of the case may be noticed. The Petitioner contends that the order dated July 6, 1961, denying him pay and allowances has been made under Fundamental Rule 54, and as that provision docs not apply the order should be quashed on that ground alone. He relies on Devendra Pratap Narain Rai Sharma (supra) in support of the proposition that Fundamental Rule 54 has no application to a case in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. A perusal of the order dated July 6, 1961, shows that Fundamental Rule 54 has been applied by the Himachal Pradesh Government only in respect of the period of absence from August 21, 1950 to October 16, 1950, and that the Petitioner has been denied his pay and allowances for the period October 17, 1950 to January 13, 1955, on the ground that his claim is barred by time. No question, therefore, arises of considering Fundamental Rule 54 in respect of the latter period.

The second part of the case involves the question whether any Efficiency Bar was contained in the scale of pay applicable to the Petitioner. The Petitioner says that upon the material on the record it cannot be said that any Efficiency Bar was laid down. It is true that in the letters dated February 21, 1951, September 23, 1952 and May 23, 1953, to which I have referred above, the scale of pay specified therein does not expressly refer to an Efficiency Bar at any point. But the scale of pay mentioned in the letter of February 21, 1951, carried with it the legend "as for S.D.Os. in the Punjab and H.P." It is apparent that the same scale of pay was intended as in the case of S.D.Os. in Punjab and Himachal Pradesh. It is not disputed that in the case of Sub-Divisional Officers in Punjab and Himachal Pradesh an Efficiency Bar is interposed at Rs. 550. The subsequent letters, dated September 23, 1952, and May 23, 1953, do not alter the terms specified in the letter of February 21, 1951. To my mind the scale of pay to which the Petitioner was admitted must be read as imposing an Efficiency Bar at the point when the Petitioner attained the salary of Rs. 550 per mensem.

Finally, the Petitioner urges that even if an Efficiency Bar has been included in his scale of pay, he must be taken to have reached Rs. 550 per mensem on March 4, 1955, and it is not open to the Respondents to permit him to cross the Efficiency Bar only with effect from May 30, 1960. Now, the Petitioner has served in office up to October 17, 1950, and but for the invalid order dismissing him from service he would in fact have ordinarily continued in office, and if he had continued the question would have arisen on March 4, 1955, when he would have become entitled to Rs. 550 per mensem, whether he should not be permitted to cross the Efficiency Bar. There is material on the record to demonstrate the quality of the Petitioner''s work up to October 17, 1950. If it is not possible to adjudge the quality of his work thereafter upto March 4, 1955, it is not for any fault of the Petitioner but because of an invalid order of the Respondents dismissing him from service. There is no reason why the Petitioner should be made to suffer. The order dated June 10, 1970, permitting the Petitioner to cross the Efficiency Bar with effect from May 30, 1960, only cannot be justified on any reasonable basis. Since the order of dismissal was void, the Petitioner must be deemed to have continued in service throughout and, therefore, the scale of pay to have run without interruption and the pay and allowances to continue to have accrued in accordance with it. The increments determined by that scale must accordingly be deemed to have continued to accrue to him. It is not disputed that he would have been entitled to Rs. 550 per mensem on March 4, 1955. The reason given by the Respondents in their return for not considering any earlier date than May 30, 1960, for the crossing of the Efficiency Bar is that the Petitioner was not entitled to recover the pay and allowances for the period between October 17, 1950 and January 13, 1955. It is clear that the Respondents have confused the accrual of the pay (including increments) with the right to sue for them. In the circumstances, the Respondents must consider whether the Petitioner should not be permitted to cross the Efficiency Bar with effect from that date. That is a matter to which they will now apply their mind.

It is urged on behalf of the Respondents that the Petitioner is estopped from raising the question as to the date on which he should cross the Efficiency Bar because he has already drawn his pay in accordance with the determination made by the Government in that behalf. Reference is made to Haridas Mafatlal Gagalbhai Vs. Vijayalakshmi Navinchandra Mafatlal Gagalbhai and Others, , and The State of Assam v. Harnath Barua 19. AIR 1957 Ass 77, I am unable to discover any rule of law in those decisions which, having regard to the facts and circumstances of this case, can be taken to deprive the Petitioner of his right to the relief mentioned above.

Accordingly, I allow the writ petitions in so far that the order dated June 10, 1970, permitting the Petitioner to cross the Efficiency Bar with effect from May 30, 1960, is quashed and the Respondents are directed to consider whether the Petitioner should not be allowed to cross the Efficiency Bar with effect from March 4, 1955. On such determination the Respondents will give to the Petitioner all consequential benefits to which the Petitioner may be entitled. The remaining reliefs are refused.

In the circumstances, there is no order as to costs.

Chet Ram Thakur, J.

I agree.