ORDER G. Mehrotra, J.
1. This is a petition on behalf of 15 employees of the Harness and Saddlery Factory Kanpur, under Article 226 of the Constitution for the following reliefs:
(i) to issue an appropriate writ, order or direction commanding the respondent to give effect to his order dated 27-12-1948.
(ii) to issue an appropriate order or direction commanding the respondent to refrain from giving effect to his order dated 1-3-1956.
(iii) to issue an appropriate order or direction to the respondent to refrain from making any deductions from the pay of the petitioners either on account of the order dated 1-3-1956 or on the order of the Controller of Defence Accounts dated 10-7-1956.
It should, however, be pointed out that since the filing of this writ petition the respondent has not deducted anything from the pay of the petitioners and consequently the third relief referred to above, is not pressed.
2. Briefly the facts are that the petitioners were employed in the Harness and Saddlery Factory Kanpur on various dates during the years 1939-40. They were employed on daily rate of wages. On various dates in 1941 they were promoted to 'B' grade clerks. In the year 1942, they were then promoted to 'A' grade clerks and some of them were subsequently promoted to Supervisor grade. After the termination of the war, however, they were all placed as 'A' grade clerks. The division of clerks before the implementation of the Pay Commission Report by the Central Govt. was divided into following grades:
In December, 1947 the report of the Pay Commission was published and the report recommended unification of some of the aforesaid grades and for fixation of the new scale of pay for the unified scale. After the publication of the report of the Pay Commission the Governor General made certain rules in exercise of his powers under Section 241(2) of the Government of India Act, 1935. These rules were called as Civilian in Defence Service (Revision of Pay) Rules 1947, and were published in the Gazette of India dated 31-12-1947. Under this rule different grades of the Clerks mentioned above were abolished and an option was given to the clerks to opt for the new scale of pay which was to be effective from January, 1947.
3. By a letter dated 10th December issue by the Controller, Army Factory Accounts Misc. Section Calcutta, the petitioners were given the benefit of 1947 rules. In accordance with the instructions issued in this letter the respondent fixed the pay of the petitioners by his order dated 27-12-1948. On 7-9-1949 in exercise of the powers conferred by Section 242(2) Government of India Act, certain amendments were made in the Schedule of the Civilian in Defence Service (Revision of Pay) Rules, 1947.
On 26-2-1952, the Controller Army Factory Accounts, Calcutta sent a letter to the respondent saying that the fixation of pay of the petitioners in accordance with the letter dated 10-12-1948, was wrongly done and should be corrected. The petitioners made certain representations against the letter dated 26-2-1952 and they were informed that pending their representations, no effect should be given to the directions contained in the letter dated 26-2-1952. By a letter dated 28-12-1953, however, the Controller 'Defence Accounts Calcutta informed the respondent that the directions contained in the letter dated 26-2-1952 would remain undisturbed and also issued some directions for the refixation of pay at an early date and recovery of over-drawn amount was to be made from the pay with effect from January, 1952. A representation was then made against this letter, and on 25-4-1956, the petitioners were informed that no change would be made in the decision taken on the letter referred to earlier. Meanwhile on 1-3-1956, the pay was refixed.
On 10-7-1956, the Controller Defence Accounts Calcutta directed the respondent to make monthly deductions of one-third of the total emoluments of the petitioners in accordance with the letter of 28-12-1953. On 20-8-1996 the petitioners filed the present writ petition.
4. The main contention raised by the petitioners is that the fixation of pay was not made in accordance with the provisions of the rules framed by the Governor General in the year 1947 and amended in the year 1949. According to that rule, the petitioners having opted for new scale of pay with effect from 1-1-1947 the fixation had to be done in accordance with the Salary drawn by each of the applicants on 1-1-1947, and any revision in the pay of the petitioners during the period between 1-4-1947 and 1-1-1948, was irrelevant for purposes of the fixation of their pay. As refixation has been done taking into consideration the promotion and demotion of the petitioners during the period of 1-4-1947 to 1-1-1948, the fixation has not been done in accordance with the provisions of the rules framed by the Governor-General in the year 1947 and amended in the year 1949. The order of refixation should therefore, be quashed.
counter-affidavit is that the fixation of pay has been done in accordance with the Civilian in Defence Service (Revision of Pay) Rules, 1947, as amended in 1949 and various notifications issued in accordance with the rules apply not only to nerrick or daily rated workmen but also to the petitioners who were holding the appointments of 'A' grade and 'B' grade clerks in the Defence Service.
6. A number of preliminary points were raised by the Standing Counsel. It was urged by him that the petitioners had an alternative remedy by way of an appeal and representation to the higher departmental authorities against the reduction in pay. It was secondly contended that the respondent has only carried out the orders issued by the Accounts Department. Calcutta and as no writ can be issued to the Controller of Accounts, Calcutta, any writ against the opposite party will be infructuous and should not be granted. In this connection it was further contended that the Controller Defence Accounts, Calcutta was a necessary party to the petition.
It was further contended by the Standing Counsel that the power of fixation, exercised, by the respondent was nothing but' exercise of pleasure of the President under Article 310 of the Constitution. The pleasure of the President is only subject to the limitations embodied in Article 311. Apart from Article 311, the pleasure of the President was absolute and as in the present case, order passed by the opposite party is only the exercise of the pleasure of the President it cannot be interfered by this Court under Article 226 of the Constitution. It was further urged that the rules made by the Governor General an the year 1947, and amended in 1949, were in the nature of departmental instructions and have not got the force of statutory rules such as can be enforced by means of a writ of mandamus under Article 226 of the Constitution.
7. I shall first take up the preliminary points raised by the Standing Counsel briefly.
8. The first question raised by the opposite party is that in view of the provisions of Article 310 of the Constitution the applicants have no right of action and are not entitled to any relief under Article 226 of the Constitution. Article 309 provides that subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts In connection with the affairs of the Union or of any State.
In the proviso to Article 309 it is also provided that the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate authority will be regulated by the rules made by the President and Governor. Legislation under this article and any rules so made shall have effect subject to the provisions of any such Act.
Article 310 then provides that every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor as the case may be. Article 311 places the restriction on the exercise of the pleasure of the President and the Governor.
It is argued that the pleasure of the President is only subject to Article 311 and any violation of the guarantee given under Article 311 is only actionable.
The pleasure of the President cannot be fettered in any other manner. Any rules framed under Article 309 regulating recruitment and condition of service of person appointed to public services cannot be regarded as express provisions of the Constitution so as to fetter the exercise of pleasure by the President. Reliance was placed on the following observation in the case of Jagannath Prasad v. State of U. P., AIR 1954 All 629 (A), made at p. 632 of the report:
"The Governor's power to dismiss at pleasure is subject only to express provisions of the Constitution. Power is conferred upon the Governor by Article 309 to make rules regulating the conditions of service of civil servants of the State Government, but such power is subject 'inter alia', to the provisions of Article 310, and no rules can be made which fetter or restrict his power to dismiss at pleasure. We find ourselves in agreement, if we may say so with respect, with the views of Dixit J., on this point in Mrs. LilawatI Mutatkar v. State of Madhya Bharat, AIR 1952 Madh-B 105 (B). The disciplinary Rules were made prior to commencement of the Constitution, and assuming they were validly made they can, in our opinion, have no greater effect or stand on a higher footing than rules made by the Governor under Article 309. These rules (Except Rule 10'(1) ) are in our opinion administrative rules, and the contravention of their provisions will not confer upon the petitioner a cause of action."
The short answer to this question is that fixation of scale of pay and grades cannot be said to be an exercise of the pleasure to terminate the services. All that Article 310 deals with is that every civil servant holds' his post during the pleasure of the President. In the exercise of that pleasure it may be open to the President to terminate the services of all the employees, but the fixation of scales cannot be considered as an exercise of the pleasure under Article 310 of the Constitution.
The contention of the petitioner is that the Governor General made certain rules in the exercise of his powers under Section 242 of the Government of India Act, 1935. These rules have statutory force and if any of these rules are not observed it is open to the person affected by such a non-observation to approach this Court for relief under Article 226 of the Constitution and a writ of Mandamus can be issued directing the opposite party to enforce those rules.
In my judgment there is, therefore, no substance in the contention raised by the learned standing counsel. The rules do not in any way put limitation on the exercise of the pleasure of the President. The question of fixing the scale cannot be regarded as exercise of pleasure under Article 310 of the Constitution.
9. The expression 'at pleasure' In Article 310 concerns itself with the tenure of office of the Civil servant and does not relate to the conditions of service. In the case of State of Bihar v. Abdul Majid, AIR 1954 SC 245 (C), it was observed as follows at page 250:
"The rule that a civil servant' holds office at the pleasure of the Crown has its origin in the Latin phrase "durarate bene placlto" meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their services."
"This law has not been fully adopted in Section 240. It follows therefore that "wherever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the Court."
10. It was next urged that the rules framed under Section 241 of the Government of India Act are mere directions issued by the Governor General to his officers and the breach of those rules gives no cause of action to an employee to make an application under Article 226 of the ^Constitution.
It is sufficient to point out that the rules framed tinder Section 241 of the Government of India Act deal with the conditions of service, they have therefore a statutory force. These rules in so far as they regulate the conditions of service and do not affect the pleasure of the President or the Governor to terminate the services of his employees under Article 310 of the Constitution, they cannot be regarded anything but statutory rules, a breach of which will be enforcible in proper cases by means of a writ.
It has been held by the Supreme Court referred to above that it is open to an employee to bring a suit for recovery of arrears of, the salary. Under the terms and conditions of employment he is entitled to get his monthly salary and non-payment of such salary gives a right of action to an employee. I see no reason why if there is a breach of the rules in respect of matters other than payment of salary an employee will not have a right of action.
It is argued by the Standing Counsel that the Supreme Court has only held that for the past work done an employee had a right to bring aa action but that does not give an employee a right to enforce the breach of rules which have the effect of curtailing the pleasure of the President. The only limitation placed on the exercise of pleasure by the President is to be found in Article 311. Any other breach gives no cause of action to an employee.
In my opinion, the case referred to above does not rest only on the grounds that an employee has a right to bring his suit for the arrears of the salary for the work done by him. As I have already indicated the rules which have the effect of putting a limitation on the pleasure of the President may be regarded as mere instructions but the rules which have the effect of regulating the conditions of service and do not deal with the exercise of the pleasure of the President under Article 310 of the Constitution cannot be regarded as mere instructions to the officers.
It is, however, not necessary for me for the purposes of this case to decide whether the rules which deal with the exercise of the pleasure of the president under Article 310 of the Constitution are such that a breach of those rules will give a cause of action to an employee to come to this Court under Article 228 of the Constitution or not.
11. Coming to the merits of the case, it ie necessary to refer to some of the paragraphs of the rules made by the Governor-General under S 241 of the Government of India Act, dated 31-12-1947. The definition Clause (2) of the notification defines the basic pay as the amount drawn monthly by a Government servant as the pay, other than special pay/overseas, pay/duty allowance/charge allowance technical allowance, or pay granted in view of his personal qualifications which has been sanctioned for a post held by him, substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre. Existing scale means the scale of pay including a unified scale applicable to a Government servant in respect of his substantive or officiating post as the case may be, on the date from which his pay has been refixed in the prescribed scale. "Present pay" means the basic pay of a Government servant in the existing scale at the time or fixation of his pay . in the prescribed scale.
12. Paragraph 3 provides that the rates of pay shown in the schedule shall apply to:
(a) Pre-1931 entrants who may elect these rates of pay; and
(b) All post-1931 entrants, provided that a post-1931 entrant other than the holder of a non-permanent post, may, if the maximum of the prescribed scale, elect to continue in his existing scale until he vacates the post or ceases to draw pay in that scale.
13. Paragraph 6 of this rule provides that a pre-1931 entrant who elects the scales of pay prescribed in the schedule as well as a post-1931 entrant other than a Government servant who retains his existing scale in exercise of the option contained in the provision to Rule 3 (b) shall, subject to such conditions as may be prescribed by the Governor General, have the further option of becoming subject to these rules either from 1-1-1947 (or in the case of those who have entered service after that date from the date of such entry) or 1-1-1948, as the Government servant may elect.
14. Clause 8 provides that:
(1) unless in any case the Governor General by special order otherwise directs, and except as provided in Rule 9, the initial pay a post-1931 entrant other than a person holding a post on a unified scale; shall be refixed in the prescribed scale with effect from the date from which he elects the scales of pay prescribed in the schedule, separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, or his pay in the officiating post held by him, at the lowest pay admissible under the following clauses:
(a) the pay in the prescribed scale at the stage next above the present pay;
(b) the pay that would be admissible if the following amounts are added to the present pay and the next higher stage in the prescribed scale is taken.
15. The contention of the petitioners is that as they had expressed their option to be governed by the new scale of pay, the fixation of their pay and scale should have been done having regard to the pay which they were drawing in January, 1947, and any demotion between the period of 1-1-1947 and 1-1-1948, should not be taken into consideration at all. On 26-2-1952, the Controller of Army Factory Accounts, Calcutta sent a letter to the Superintendent Government Harness and Saddlery Factory, Kanpur, pointing out that the fixation of pay of the petitioners in accordance with the letter dated 10-12-1948, had wrongly been made and should be corrected.
The direction was that the fixation shall be made in accordance with the answers to questions 5 and 10 appended to Ministry of Defence Officer Memorandum dated 30-9-1948. Thereafter, the petitioners made representations, but they were turned down and ultimately on 10-7-1956 the Controller of Defence Accounts, Calcutta, directed the respondent to make a monthly deduction of one-third of the total emoluments of the petitioners in accordance with the letter dated 28-12-1953.
The stand taken by the Defence Department was that the fixation of scale of the employees In accordance with the new rules should be viewed as promotions or reversions with reference to the scale of pay attached to them and as such pay in the prescribed scale has to be re-fixed on each ?ccasion of such movements agreeably to the answers of questions 5 and 10 appended to the Ministry of Defence Office Memorandum dated 30-9-1948.
The rules framed under Section 241 under which a certain unification of scale was brought about do not in express terms lay down the procedure for refixation of the pays of the existing employees in accordance with the unified scale. It only gives an option to an individual to make his choice whether he would like to be governed by the unified scale or stick on to his existing scale. The present petitioners having expressed their option to be governed by the unified scale were entitled to take advantage of that scale with effect from 1-1-1947.
But the rules framed under Section 241 do not, to my mind, give any indication in what manner the fixation of scale of pay is to be done and in so doing whether the promotions or reversions in the existing scale are to be regarded as promotions or demotions with reference to the scale of pay attached to them and the pay has to be refixed on each such occasion of such movements or not.
If the principle as contended for by the petitioner is accepted the effect of that would be that all those persons who were promoted during the period of 1-1-1947, to 1-1-1948, for the purposes of refixation of their pay such a promotion will have to be ignored. That would have resulted in great hardship to a number of persons.
The Government has adopted a uniform policy regarding promotions and demotions. It cannot be said in these circumstances, at any rate, that the opposite party has failed to carry out any provisions of rules framed under Section 241 for which the petitioners are entitled to a writ of mandamus. The petitioners on merits, in my opinion, are not entitled to the reliefs claimed.
16. There is, therefore, no force in this petition and it is rejected; but in the circum stances of the case, however, the parties will bear their own costs.