STATE OF PUNJAB Vs. GHANSHYAM DASS MALHOTRA

JUDGEMENT

(1.) This judgment will dispose of two cross-appeals. The State of Punjab v. Ghanshayam Dass (Regular Second Appeal No. 203 of 1958) and Ghanshyam Dass v. The State of Punjab (Regular Second Appeal No. 310 of 1058), which arise out of a suit brought by Ghanshyam Dass against the State of Punjab for the recovery of Rs. 1,241/4/10 as arrears of special pay and consequential allowances for 19 months and 3 days, i.e. from 29th of August, 1953 to 31st of March, 1955, at the rate of Rs. 65/- per mensum. The trial Court decreed the suit for Rs. 273/- for the period 1st of September, 1953 to 7th of January, 1954 and disallowed the arrears for the remaining period. Two appeals were instituted against this decree one by the State of Punjab saying that the plaintiff's suit should have been dismissed in its entirety and the second by the plaintiff in which he claimed that the trial Court should have decreed the suit in toto. Both these appeals were dismissed by the learned District Judge, Gurdaspur. Against his decision the present two appeals have been filed.

(2.) It is common ground between the parties, as observed by the learned District Judge, that before the partition of the country the plaintiff was holding the post of Head Clerk, Haveli Project Colony, Multan (now in West Pakistan), and was drawing Rs. 150/- in the scale of Rs. 80-10-110/10-150 as substantive pay plus Rs. 50/- as special pay, besides consequential allowances. It is also agreed that during the period in dispute the plaintiff held the post of an Assistant in the office of the Deputy Commissioner Gurdaspur, and was paid at the rate Rs. 150/- per mensum plus consequential allowances. He was, however, not allowed special pay of Rs. 50/- and the allowances due thereon, namely Rs. 15/-. It is further agreed that with effect from 1st of April, 1955 the plaintiff's basic pay was fixed at Rs. 200/- per mensum, though, according to the Government, this was done on compassionate grounds, and it was made clear that the plaintiff would not be entitled to recover any arrears on that account. The plaintiff's case was that on the partition of the country in 1947 every Government servant was given a guarantee that his pre-partition. He was consequently entitled to be posted as Head Clerk in the office of the Colonisation Officer, Jullundur on the same terms and conditions of service. The case of Government, on the other hand was that the plaintiff was posted as Head Clerk, Colonisation Office, Multan, but he held that post in a provisional substantive capacity and not in a permanent substantive capacity. His substantive capacity was of a Senior Clerk in the pay-scale of Rs. 60-4-80/5-120. It was admitted that the guarantee mentioned by the plaintiff had been given to the Government servants, but under it the plaintiff could not claim the terms and conditions of a post which he held only in a provisional substantive capacity; he could claim the same in respect of the post which held in a permanent substantive capacity. The scales of pay of an Assistant in a Deputy Commissioner's office and of a Head Clerk in the Colonisation office were the same and the special pay of Rs. 50/- was attached to the post of Head Clerk, Colony, and was not the personal pay of the plaintiff.

(3.) It is in evidence that after the partition of the country a supernumerary post of Head Clerk had been created for one Shri Fateh Chand Gera formerly a permanent Head Clerk in the Colonisation Office, Haveli Project Colony, Multan. Since Fateh Chand Gera was confirmed in the Government of India on 22nd of July, 1950, the Punjab Government decided on 15th of September, 1953 (vide letter, Exhibit P.W. 2/6.) that his lien against this supernumerary post be suspended and provisional lien against this post be given to the plaintiff till 22nd of July, 1950 and thereafter he should have a clear lien against it "till he gets a lien on some other post". It was also decided that this supernumerary post should be abolished as soon as the plaintiff was confirmed against some other permanent post. It is also in evidence that the plaintiff was absorbed permanently as an Assistant in the office of the Deputy Commissioner, Gurdaspur, on the retirement of one Durga Dass on 7th of January, 1954. That means that the plaintiff had a clear lien against the supernumerary post upto 7th of January, 1954 and was, therefore, entitled to the terms and conditions of that post till that date. The special pay of Rs. 50/- (along with consequential allowances) was attached to the supernumerary post. Both the Courts below were, therefore, right in holding that the plaintiff was entitled to Rs. 65/- per mensum, i.e. Rs. 50/- special pay plus Rs. 15/- consequential allowances, from 1st of September, 1953 to 7th of January, 1954. It may be mentioned that the suit regarding arrears of pay for three days of August (29th to 31st) 1953, had been held to be barred by time by the trial Court and this finding was not challenged before the lower appellate Court.