Patna High Court
N. Baksi vs Accountant General And Anr. on 11 March, 1957
Equivalent citations: AIR1957PAT515, 1957(5)BLJR299, AIR 1957 PATNA 515, ILR 36 PAT 557
JUDGMENT Ahmad, J.
1. Mr. N. Baksi, I. C. S., at present Member, Board of Revenue, Bihar is the petitioner in this case. The prayer made in petition, which is one under Article 226 of the Constitution of India, is for the issue of a writ in the nature of mandamus, or, in the alternative, for any other appropriate direction, order or writ commanding the Accountant-General, Bihar, to discharge the statutory duty imposed upon him in law as laid down in the Superior Civil Services Rules read with Article 314 of the Constitution & in obedience thereto to pay the prescribed passage money for his wife and children as claimed by the petitioner.
It is founded on the complaint that the Accountant General, Bihar, though at the first instance on 20th June, 1956, had, as warranted in law, issued the necessary passage certificates to them along with the one to the petitioner but thereafter by his semi-official letter No. GA-ICS-B-4439, dated the 4th December, 1956, he has arbitrarily and without any legal justification refused to pay the same to his wife and children and has thus denied a right which the petitioner is entitled to in law.
2. Mr. Baksi was selected for the Indian Civil Service at the open competitive examination held In London in August 1924 and joined it in Bihar in November, 1925. His claim is that he entered into the service under a covenant with the Secretary of State for India assuring a guarantee for permanency as also for certain other rights and privileges in regard to his service as stipulated in what was then known as "The Superior Civil Services (Revision of Pay and Pension) Rules 1924" or for brevity called as "The Statutory Rules and Orders 1924" hereafter to be referred to as "The Statutory Rules".
It is not denied that these Statutory Rules did apply to the case of Mr. Baksi at the time when he entered the Indian Civil Service and were statutory in character, as is clear from the Resolution referred to in the despatch from the Secretary of State for India No. 27 -- Services and General, dated 11th-17th December, 1924 which was in the following terms:
"Resolution.
In the exercise of the powers conferred by Sub-sections 2 and 3 of Section 96 B of the Government of India Act, the Secretary of State for India, with the concurrence of a majority of votes at a meeting of the Council of India held this 9th day of December, 1924, makes the following rules, namely-
Those contained in the attached paper (Statutory Rules and Orders No. 1395 of 1924).'' And further it is not contested that the Secretary of State for India had then the power under Sub-sections (2) and (3) of Section 96B of the Government of India Act, 1919 to make those rules, as is also clear from the provisions made therein. Those sub-sections so far as they are relevant for the purpose of this case read as follows:
" "96B (2). The Secretary of State in Council may make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct ..........
....."
"96B (3). The right to pensions and the scale and conditions of pensions of all persons in the civil service of the Crown in India appointed by the Secretary of State in Council shall be regulated in accordance with the rules in force at the time of the passing of the Government of India Act, 1919. Any such rules may be varied or added to by the Secretary of State in Council and shall have effect as so varied or added to but any such variation or addition shall not adversely affect the pension of any member of the service appointed before the date thereof.
Nothing in this section or in any rule thereunder shall prejudice the rights to which any person may, or may have, become entitled under the provisions in relation to pensions contained in the East India Annuity Funds Act, 1874."
3. According to Mr. Baksi, the rights assured in the Statutory Rules, in spite of all amendments made therein from time to time, stand substantially unaltered and remain in force up-today and further that they have been all along since their inception affirmed and preserved in all the constitutional documents that have replaced the Government of India Act 1919 one after another including the present Constitution of India.
It has, therefore, been argued by Mr. Das appearing for him that the rights thus assured under the Statutory Rules and -thereafter all along affirmed and preserved by all the subsequent constitutional documents governing India including the present Constitution under its Article 314 cannot be whittled down or altered or amended even by any legislative measure and much less by an executive order unless the Constitution itself to that extent is amended or altered.
In the alternative, it has also been argued that the passage benefit as provided under the Statutory Rules is property and as such any denial thereof by the Accountant General is a contravention of the fundamental right as laid down in Article 31 of the Constitution. And, therefore, it is stated, the petitioner is entitled to the writ as prayed for.
4. "The Advocate General has appeared and shown cause both for the Accountant General, Bihar and for the Union of India, who, as impleaded in the petition, have appeared as respondents 1 and 2 respectively. It is, however, necessary to note here that in the course of the argument it has been conceded on behalf of the petitioner that the Union of India have been brought on the record only as a proper party with no claim against them.
5. The case pleaded on behalf of the respondents is that this right of passage benefit, as claimed by the petitioner, has not been affirmed or preserved by any provision in the Constitution of India and now on the enforcement of the new rules known as the All India Services (Overseas Pay, Passages and Leave Salary) Rules, 1957, purported to have been made by the Central Government on the 15th February, 1957, in exercise of powers conferred upon them by Sub-section (1) of Section 3 of the All India Services Act 1951 (61 of 1951), the petitioner cannot claim any such benefit.
They have also claimed that the passage benefit is not property and that in any view of the matter the petition as framed is not maintainable under Article 226 of the Constitution of India; and lastly in support of action taken by the Accountant General reliance has been placed, though not with much vehemence, on the executive order passed by the Government of India under their Memo No. 24/11/56-AIS (II) dated 12th July, 1956.
6. Thus, on the case, as stated by the parties, it is manifest that the facts involved here are not much in controversy and the decision on merit as also on the procedural part of the case rests exclusively on the interpretation of the Statutory Rules in regard to the passage benefit and the connected provisions as laid down in the statutory documents referred to above including the present Constitution as also on the validity of the new rules known as the All India Services (Overseas Pay, Passages and Leave Salary) Rules 1957 and that of the aforesaid executive order dated 12th July, 1956.
7. In the Statutory Rules the provision provided for passage benefit is to be found in Rule 12 read with Schedule IV as referred to therein. That rule says:
"12. In addition to the pay prescribed by these rules, passage pay shall be granted at the rates and subject to the conditions set out in Schedule IV, to the members of the services and holders of appointments enumerated in Appendix A to that Schedule."
And then Schedule. IV, referred to in this rule, sets out an elaborate scheme for the payment of that passage pay. It has got fourteen clauses which are known as Regulations. Some of them, namely, Regulations 3, 4, 5, 6, 8, 9, 11, 13 and 14, as they originally stood, have been specially referred to in the course of the argument. I would, therefore, better quote them here verbatim. They are as follows:
"3. There shall be payable to every officer with effect from the 1st day of April, 1924, passage Pay at the rate of Rs. 50 per mensem or at such different rate as the Governor General in Council may by order declare to be necessary or sufficient for the purpose of the provision of the benefits conferred by these regulations."
"4. The full amount of passage pay shall be payable to an officer on leave of whatever nature so long as he is in receipt of leave-salary and, notwithstanding anything contained in the fundamental Rules, passage pay shall not be taken into account for the purpose of computing the leave salary of an officer and shall be deemed to be leave-salary additional to the monthly maximum leave-salary to which he is entitled under those rules."
"5. A sum equal to the amount received by an officer as passage pay shall be deducted monthly from the officer's pay or leave-salary, as the case may be, and shall be credited to a General Passage Fund to be administered by the Governor General in Council".
"6 (1). The maximum benefits to which officers shall be entitled shall be passages of a total value equal to the cost of the number of passages between Bombay and London by P. & O., 1st class B, shown below-
(A) in the case of officers appointed on or after the 1st day of April, 1924-
(a) for the officer himself four return passages;
(b) for his wife the number of return passages shown in the following scale:
Officer's length of service at date of marriage.
Number of return passages.
Less than 7 years ...4
7 years, but less than 14 years ...3
14 years, but less than 21 years ...2
21 years and over ...1
(c) for each child one single passage; and (B) in the case of officers appointed before 1st day of April, 1924-
(a) for the officer himself the number of return passages shown in the following scale:--
Officer's length of service on 1st April, 1924.
Number of return passages.
Less than 7 years ...4
Seven years, but less than 14 years ...3
14 years, but Jess than 21 years ...2
21 years and over ...1
(b) for his wife the same number of return passages to which the officer himself is entitled;
Provided that in the case of an officer who has been married on or after the 1st day of April, 1924, the scale of benefits for his wife shall be that laid down in Clause (A) (b); and
(c) for each child one single passage.
(2) Notwithstanding anything in this regulation, the Governor General in Council may in the case of officers appointed after attaining the age of 25 years and of officer holding His Majesty's commission to whom these regulations apply, by general or special order determine the maximum benefits to which such officers shall be entitled for themselves, their wives and their children."
"8. A separate account shall be opened in sterling in the case of each officer, and, if such officer is married, for his wife, and, if he has children, for each child. These accounts shall be credited respectively with the cost of the passages to which the officer, his wife and children are entitled under Regulation 6, and no transfer of any credit shall be made from one account to another.
Within the amount of these credits the officer shall be entitled to receive passages by sea between a port in India and a port outside Asia for himself, his wife and his children respectively, provided the cost of no single or return passage by sea shall exceed the cost of a single or return passage, as the case may be, between Bombay and London by Peninsular and Oriental, 1st class B; provided further, should the cost of any passage engaged be less than the cost of a passage by sea between Bombay and London by Peninsular and Oriental, 1st class B, and the individual concerned perform any part of the journey between port and port by land, it shall be permissible to draw from the General Passage Fund, subject to such regulations as may be made by the Governor General in Council, the actual cost of the railway fare, but not exceeding the difference between the cost of the passage engaged and the cost of a passage by sea between Bombay and London by Peninsular and Oriental steamer, 1st class B."
"9. The payment for all sea passages shall be made from the General Passage Fund direct to the steamship companies. Payment on account of journeys by land shall be made to the officer making the claim."
''11. When the cost of a passage by sea between Bombay and London by Peninsular and Oriental steamer, 1st class B, is increased or decreased, the balance at credit of each account referred to in Regulation 8 shall be increased or decreased, as the case may be, in proportion to the increase or decrease in the cost of passages."
"13. If an officer has himself or on behalf of his wife or children incurred expenditure before a date to be appointed by the Governor General in Council, in respect of a benefit to which he or they is or are entitled under these regulations he may draw against the amount at his credit or at that of his wife or child, as the case may be, the amount of such expenditure, subject to the maximum provided in Regulation 8.
In the case of a journey performed on a return ticket the first-half of which was utilised for a journey commenced before 1st April, 1924, the expenditure incurred shall be deemed to be half the cost of such ticket. If the officer has taken in advance from the Government for a passage in respect of which money is drawn under this Regulation, the sum so drawn shall be applied forthwith to repay the outstanding balance of advance."
"14. No person whosoever shall have any claim on the General Passage Fund beyond the provision of the benefits, if any, conferred on him by these regulations and any balance remaining at the credit of any person after such person has ceased to be eligible for any such benefits shall lapse to the Fund".
A bare reading of these regulations along with Rule 12 makes it clear, as is also conceded by the learned Advocate General, that the passage benefit as originally provided therein was a part of salary and accordingly it was thereunder designated as passage pay and was to be paid along with salary on a certain notional basis to be subsequently debited from the salary account to a fund named there as the General Passage Fund out of which the members of the Indian Civil Service in the mode and manner prescribed and to the extent laid down in Regulation 6 could draw from time to time to meet the cost of their passage.
Regulation 6 laid down the maximum passage benefit to which the members of that service could be entitled to and it is not denied that at the time when it was originally framed Clause (1) (A) of that Regulation did apply to the case of the petitioner and thereunder he was entitled to as many as four return passages and his wife and children as many as shown in the columns given therein. It is stated in the petition that it was on the strength of this provision that the petitioner in the past on the three occasions claimed and got passage costs for going to Europe -- one in 1930 and the second in 1950-51 and the third in 1952-53 and so his wife when she went with him.
Further on the strength of the aforesaid regulations it is also stated that there is still one more return passage due to the petitioner and so to his wife and children as claimed in the petition and in proof thereof reliance has been placed on the letter dated 6th March 1956, addressed by the Deputy Accountant General, Bihar, to Mr. Baksi, which is referred to in the petition as "annexure A". The main question therefore, that now falls to be decided is as to whether Mr. Baksi in the state of law as it stands now can still claim what is said to be still standing due in favour of his wife and children with regard to the passage benefit under the aforesaid Regulation.
8. Before, however, I proceed further, I may state here one more small point that has been raised on behalf of the respondents. That is based on the ground that the claim of the petitioner as set out in the petition rests on the statutory rules as they originally stood and not on what they say now, and therefore on that ground alone it should be held that the petitioner has failed to make out any case, In my opinion, this contention is based on fallacy for though technically it is true to say, as is also now admitted, that from time to time a number of amendments have been made in the original statutory rules but unless it is found which is one of the principal questions to be decided in this case that those amendments subsequently made therein had the effect of withdrawing the passage benefit as originally provided in the Statutory Rules, the mere mistake in referring to the original statutory rules in place of those as they now stand as a result of the amendments made cannot in any way less entitle the petitioner to the passage benefit as claimed in the petition.
AS for why the claim advanced in the petition is founded on the Statutory Rules as they originally stood, the case of the petitioner is that till the time his petition was drafted he in spite of all efforts on his part could not know that the statutory rules have been subsequently amended nor his attention was drawn to it at any time in the course of the long correspondence that he had with the Government of India on one side and the Accountant General; Bihar, on the other before filing his application.
In my opinion, there is nothing improbable in this explanation and further there is no material to controvert the same. Therefore, I see no reason why this explanation should not be accepted. Accordingly the objection raised on that score has to" fail.
9. Now, I come to the main controversy as stated above. It raises two main points for consideration (1) as to whether the rights claimed by the petitioner for the passage cost for his wife and children have been in any way substantially affected by the subsequent alterations made in the statutory Rules and (2) even if they remain unaffected, whether the rights laid down in those statutory Rules still stand guaranteed under the present Constitution of India.
10. As for the amendments made in the statutory Rules, there is now at least no controversy, rather now it is the admitted case of both the parties that a number of alterations and amendments have been made in those rules since they were first framed. But it is apparent that all these amendments were not brought about all at the same time. They were made as and when they were needed. The first set of amendments in the Statutory Rules were made in the year 1928 and that was by Notification No. P-178/11/1/24 dated 5th October, 1925, and Notification No. F-17-15/26 dated 16th June, 1926.
Other amendments came thereafter but the learned Advocate General has conceded that so far as the right involved in this case is concerned, that was not the subject matter of the amendments which came after 1926. Therefore, in dealing with the alterations brought about in the Statutory Rules we have to confine our attention only to what was done in the year 1926 as a result of the notification referred to above. A close reading of those amendments at once shows that the basic idea underlying them was that the passage benefit was not to be treated thereafter as part of salary or designated as passage pay, The result was that Rule 12 was modified to what its principal part now reads leaving the proviso which has been added subsequently. It is as follows :
"12. In addition to the pay prescribed by these rules, passage shall be granted, subject to the conditions set out in Schedule IV, to the members of the services and holders of appointments enumerated in Appendix A to that Schedule."
Likewise similar consequential changes were introduced in the regulations also. Of them, the key change is to be found in Regulation 1, namely, that the words "revision of pay and pension" were substituted for "Revision of pay, passage and pension". Then Regulations 3, 4 and 5 were completely deleted and the reason for that is quite understandable -- the passage benefit not being any more a part of salary did not require to be any further credited to the salary account nor it was thereafter necessary for any amount to be debited for its being credited to the General Passage Fund or to allow any transaction to be entered into on the footing of the existence of the General Passage Fund.
Further in Regulations 6, 8, 9, 11 and 14 which on amendment were renumbered as Regulations 3, 6, 10, 12 and 14 respectively, it was made clear that the passage benefit shall thereafter be paid out of the General Revenues and in the mode and manner as prescribed therein. They on amendment read as follows:
"3 .(1) The maximum benefits to which officers shall be entitled shall be:
(A) In case of officers appointed on or after the 1st day of April, 1924:
(a) for the officer himself, four passages: (b') for his wife, the number of passages shown in the following scale:--
Officer's length of service at the date of marriage.
Number of passages.
Less than 7 years 4 7 year but less than 14 years 3 14 years but less than 21 years 2 21 years and over.1
(c) for each child, one passage and (B) In the case of officers appointed before the 1st April 1924-
(a) for the officer himself, the number of passages shown in the following scale:
Officer's length of service on 1st April, 1924.
number of passages.
Less than 7 years 4 7 years but less than 14 years 3 14 years but less than 21 years 2 21 years and over 1
(b) for his wife, the same number of passages as for the officer himself:
Provided that where the officer was first married on or after the 1st day of April 1924, the scale of benefits for his wife shall be that laid down in Sub-clause (b) of Clauses (a) and (c) for each child one passage.
(2) Notwithstanding anything in this regulation the Governor General in Council may, in the case of officers appointed after attaining the age of 25 years and of officers holding His Majesty's commission to whom these regulations apply by general or special order determine the maximum benefits to which such officers shall be entitled for themselves, their wives and their children.
(3) An officer, shall be entitled for a second or subsequent wife to either the benefits set out. In the table in Clause (A) (b) of the sub-regulations (1) or any benefits which were available to him, hut were not utilised, for the wife by the immediately prior marriage whichever are less, (4) When an officer passes without a break in service from one post or service included in Appendix A to this schedule to another such post or service he shall carry with him to the new post or service the amount at credit in his passage account when he quitted the old post or service. A similar transfer of credit shall be made in respect of his wife and children if any."
"6. A separate account shall be opened for each officer and if he is married for his wife and for each child. Subject to the provisions of Regulation 8, these accounts shall be credited respectively with the number of passages to which the officer, his wife and children are entitled under Regulation 3, or Regulation 4, as the case may be and no transfer of any credit shall be made from one account to another.
Within the amount of these credits, the officer shall be entitled to draw for himself, his wife and his children respectively the cost of a Journey between a port in India and a port outside Asia; provided that the amount drawn from an individual account shall not exceed the standard single fare in the case of a single journey, and a standard return fare in the case of a return journey, save in respect of a child under 12 in Whose case the amount shall not exceed the cost of a half standard single or return fare as the case may be."
"10 (1) Payment for all sea and air journeys other than journeys permitted during the period of probation with the express sanction of the Secretary of State in Council shall be made from general revenues to the steamship/air transport companies either direct or through recognised firms of passenger/their accredited agents and not to the officers themselves.
(2) Payment on account of journeys expected in sub-regulation (1) and journeys by land route shall be made to the officer making the claim."
''12. When a standard fare is increased or decreased, the balance at credit of each account referred to in Regulation 6 shall be increased or decreased, as the case may be, in proportion to the increase or decrease in that fare."
"14. Any balance remaining at the credit of any person in his or her personal account after such person has ceased to be eligible any benefits under these regulations shall lapse to Government."
Further in regulation 2, which is the definition clause some new definitions were also simultaneously provided, the most important of them being those of "passage" and "Standard fare". They read as follows:
"2 (a) 'passage' means a unit of credit in an individual passage account, and represents in the case of an officer or his wife one standard return fare & in the case of a child one standard single fare :
(b) 'Standard fare' means the cost for the time being according to the table of rates published by the P and O Company, of an ordinary as distinct from off season ticket for an adult giving first class B (first class C in the case of officers specially recruited after the 11th February 1937 in Europe to the Central Services and Posts (in respect of which power to make rules is delegated to the Governor General in Council) included in Appendix A to Schedule IV) grade accommodation for a journey between Bombay and London by maii steamer of that Company;
"Standard single fare" means a standard fare for a journey one way only and 'standard return fare' means a standard fare for a journey both ways."
Therefore to this extent the learned Advocate General is right in his contention that the effect of these amendments made in the year 1926 was ' as already stated, that thereafter the passage benefit was not to be treated as a part of the salary. But that does not directly or indirectly support his other contention which alone as a matter of tact on the footing of these amendments has been raised before us namely that the passage benefit did not thereafter retain its old character of Statutory Rules when made in 1924.
11. Then it is well known that these Statutory Rules in the year 1924 were framed on the basis of a report submitted by a Royal Commission with Lord Lee as the Chairman which had been appointed to report on the pay, allowance and disciplinary conduct of the superior Civil Services in India. A reading of that report, especially that of its Chapter VII, dealing with passages, throws a flood of light en the entire history, origin and the development of the present claim for passage benefit.
It shows that previously the Government never provided any passage benefit for the officers when travelling to Civil Service or their families when travelling to Europe OK leave. In those days the principle adopted was that the emoluments should be fixed on a scale sufficient to cover the cost of passages and that the officers should be left to make their own arrangements. The evidence, however, that was led before the commission showed that the inadequacy of the rates of pay then existing combined with the great rise in Shipping rates in those days had made it increasingly difficult for officers to meet passage charges.
Therefore, the commission thought it advisable to recommend that in certain cases passages on the scale provided therein should be granted to the members of the Superior Civil Services as also to their wives and children as specified therein. There were, however, as it appears from the report originally, certain difficulties which the commission thought lay in the way of suggesting any definite mode of payment to be provided for the passage money and, therefore, they had to express themselves on that point in the following words:
"In seeking a way out of this dilemma we have regarded it as fundamental that the relief which We are recommending should be real, and not exposed to political or other risks.
In our subsequent Chapter on Safeguards (Para 85) we make certain recommendations with regard to the execution of a legal covenant, enforceable in the Courts, between every officer, in the Superior Services and the authority which has appointed him. In such covenant, all details of the Officer's terms and conditions of services should be clearly set forth so that, in case of any breach of contract, he should seek the appropriate legal remedy.
This safeguard, to which we attach great importance as an ultimate security, must be best involve a slow and cumbersome procedure for the individual officer, who meanwhile unless an until the authorities concerned have accepted the principle and executed the covenants, will have no protection at all with regard to allowances or concessions which are votable.
In the face of these circumstances, we propose the following solution which, in our opinion, obviates, so far at least as passages are concerned, the difficulties above referred to."
And it is the solution referred to in the passage that was finally incorporated in the Statutory Rules as originally made. That being so there is no escape from the conclusion that so far as the Royal Commission was concerned, they were very particular to see that this passage benefit, whatever be the mode and form of its payment, should be not only a right permanent but also guaranteed under a covenant to be entered into between the members of the Superior Civil Services and the Secretary of State for India and in order to make it perfectly effective they clearly laid down that the covenant was to be made enforceable in law. The reference of this report is specifically made in the despatch already referred to sent by the Secretary of State for India to the then Governor-General of India in Council, which stated:
"I forward, for the information of your Excellency's Government, a copy of the Regulation, which I have adopted in Council, making the rules required to carry into effect the decisions reached with the approval of his Majesty's Government on the recommendations of Lord Lee's Commission with regard to the pay and pension of the Superior Civil Services."
Thus the history and background of this right of passage benefit also being against the probability that the aforesaid amendments of the Statutory Rules as made in the year 1926 could in any way be intended to affect the nature of guarantee given therein as to passage benefit, there is all the more reason to hold that the contention of the learned Advocate General is without substance though it has to be conceded that they did no doubt bring about a change in so far as it was no more to be treated as a part of the salary.
Therefore, my conclusion is that even after the amendments made in the year 1926 the gua-
rantee given under the Statutory Rules with regard to the passage benefit remained substantially unaffected and the members of the Indian Civil Service were still entitled to the same as a part of emoluments for the service rendered by them though in a form different to what was originally provided under those Statutory Rules.
12. Then comes the question as to how far the right of passage as provided in the Statutory Rules has been affected or preserved by the successive constitutional documents that have taken the place of the Government of India Act 1919 one after another, particularly the Constitution of India. In the latter the only Article relied upon by Mr. Das in support of his contention is Article 314. That Article falls in Chapter 1 of Part XIV of the constitution and reads as follows:
"Except as otherwise expressly provided by this constitution, every person who having been appointed by the Secretary of State or Secretary of State in India continues on and after the commencement of this Constitution to serve under the Government of India or of a State shall be entitled to receive from the Government of India and the Government of the State, which he is from time to time serving, the same conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement."
On this Article the controversy in this case has mainly centred round the point as to whether the passage benefit as it now stands in the Statutory Rules after their amendment in the year 1926 is remuneration as provided there and is as such a party of the conditions of the service or is only a right as spoken therein similar to the right as respects disciplinary matters and as such is subject to variations according to the changed circumstances.
13. For the moment keeping aside this controversy, this much, I think, may be stated at the outset without any fear of contradiction that if it is found that the members of the Indian Civil Service were entitled to the passage benefit as provided in the Statutory Rules until the Constitution of India came into force then it has to be held that under Article 314 that right even thereafter remained preserved as a statutory guarantee though subject to limitation, if any, as stated therein and to this extent the learned Advocate General also agrees.
Therefore, it has first to be seen as to how far this right of getting passage benefit was at all available to the members of the Service just at the time when the present constitution came into force.
14. This will take us to a restrospect of the various constitutional enactments governing India that have been enacted from time to time since the year 1924. In the year 1924 the Constitution in force was the Government of India Act 1919. As already stated, it was under Section 96 B of that Act that the Statutory Rules had been framed, as provided therein, for regulating, amongst others, the conditions of service, pay and allowance and disciplinary conduct of the Civil Services in India.
It was obviously for that reason, therefore, that the Statutory Rules as originally framed in the year 1924 were called "The Superior Civil Services (Revision of Pay and Pension) Rules 1924 and thereafter when the passage benefit ceased to be a part of the salary as a result of the amendments made in the year 1926 they came to be called, as already referred to above, "The Superior Civil Services (Revision of Pay and Pension) Rules 1924."
Now it has not been contended that the power given to the Secretary of State under section 96 B of the Government of India Act 1919 was in any way thereafter, so long as that Act was in force, altered or modified. Therefore, if my conclusion is correct that the amendments of the Statutory Rules made in the year 1926 did not in any way affect the right of passage benefit as provided in the original Statutory Rules then on the facts admitted it has to be held that at least till the time the Government of India Act, 1919 remained in force they continued to be valid and effective as such.
Then came the Government of India Act 1935, the third part of which, as is well-known, came into force on 1st April 1937. Therein section 241 while dealing with the powers to frame rules for the recruitment to and conditions of civil service in India made special reference in Sub-section (3) (a) of the exsting rules that were then in the field and made special provision for the preservation of the rights that were under them available to those members of the service who Were in employment from before. It read:
"241 (3) (a). The said rules shall be so framed as to secure -
that, in the case of a person who before the commencement of part III of this Act was serving His Majesty in a civil capacity in India, no order which alters or interprets to his disadvantage any rule by which his conditions of service are regulated shall be made except by an authority which would have been competent to make such an order on the eighth day of March nineteen hundred & twenty-six, or by some person empowered by the Secretary of State to give directions in that respect."
Further section 276 of the Government of India Act 1935 for the transition period provided as follows:
"276. Until other provision is made under the appropriate provisions of this Part of this Act, any rules made under the Government of India Act relating to the civil services of, or civil posts under, the Crown in India which were in force immediately before the commencement of Part HI of this Act, shall, notwithstanding the repeal of that Act, continue in force so far as consistent with this Act, and shall be deemed to be rules made under the appropriate provisions of this Act."
That being so, it follows that the Statutory Rules which were in force up to the date when the Government of India Act 1935 came into force continued to operate even thereafter and the passage benefit as provided therein was not in any way altered or amended as a result thereof. Then it is not denied that so long as that Act remained in force no other rule at least concerning the right in dispute was ever framed or made.
And it was in this state of law that on and from 15th August 1947 a complete and radical change as brought about in the constitutional status of the country under the Indian Independence Act 1947 and the power was transferred from the British Crown to the Dominion of India. But that was done subject to certain safe guards in respect to matters specifically enumerated therein. One of them was relating to Secretary of State's services, etc. About them section 10 (2) provided as follows:
"10 (2) Every person who -
(a) having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; or
(b) having been appointed by His Majesty before the appointed day to be a Judge of the Federal Court or of any Court which is a High Court within the meaning of the Government of India Act, 1935, continues on and after the appointed day to serve as a judge in either of the new Dominions, shall be entitled to receive from the Governments of the Dominions and Provinces of parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time judge, 'the same conditions of service' as respect remuneration, leave and pension, and the same rights as respects disciplinary matters or as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day.'' Further in section 19 (4) a definition was also provided for the word 'remuneration.' That read as follows :
" 'Remuneration' includes, leave pay, allowances and the cost of any privileges or facilities provided in kind."
That, in my opinion, was done merely ex abundanti cautela. Craies on Statute Law, Fifth Edition, at page 199 says:
"Sometimes a term is defined in an interpretation clause merely ex abundanti cautela --that is to say, to prevent the possibility of some common law incident relating to that term escaping notice. Thus in Wake field Board of Health v. West Riding etc., Ry. (1865) 1 QB 84 at p. 86 (A), it appeared that by Section 3 of the Railways Clauses Consolidation Act, 1845, the term 'justice of the peace' is defined as 'a justice of the peace acting for the..........place where the matter requiring the cognizance of a justice shall arise, and who shall not bo interested in the matter'. It was therefore argued that by this definition jurisdiction was altogether taken away from a justice who was interested in the matter, and that this objection could not be waived. But it was held that the latter words of the definition were merely declaratory of the common law, and Were only added ex abundanti caatela West Riding Justices v. R., (1883) 8 AC 781 at p. 796 (B), ''in the apprehension', as Cockburn, C. J., said that justices, if not warned of what the law is, might act although interested."
Now reading Section 10 (2) as a whole along with either provisions of the Act this is abundantly clear that though the covenant which the petitioner had originally entered into automatically disappeared as a result thereof yet the very enactment which brought about that change provided a substitute in place of it in the form of statutory guarantee under that section. The result was that in the case of those members of the Civil Services who like the petitioner continued on or after the establishment of the Dominion to serve under the Government of either of the new Dominions or of any province, the old conditions of service which were applicable to them at the time when the Act came into force, that is, on the 15th August, 1947, remained fully affirmed and preserved State of Madras v. K. M. Rajagopalan, (S) AIR 1955 SO 817 (C).
If that is so then there can be no justification to say that the rights thus preserved did not include passage benefit as provided in the Statutory Rules. Thus, to my mind it is firmly established that till the time the Constitution came into force, the rights as provided in the Statutory Rules including the one in controversy, namely, the passage benefit, were available to the members of the Civil Services and till -then they could not be deprived of them otherwise than in accordance with law. Then came the Constitution of India wherein Article 314, as already quoted above, makes a special provision for the protection of those members of the Civil Services who continued to serve even thereafter either under the Government of India and the Government of the State.
That Article speaks of two things--(1) the conditions of service as respects remuneration, leave and pension, (2) and the rights as respects disciplinary matters or rights as similar thereto and then it says "as changed circumstances may permit". In my opinion, on a plain reading of the entire Article as also on a grammatical construction of it appears to me that the phrase "as changed circumstances may permit" refers to the second topic and not to the first, that means, it qualifies only the phrase ''the same rights as respects disciplinary matters or rights as similar thereto" and not the earlier phrase the same conditions of service as respects remuneration, leave and pension." In M. K. Ranganathan v. Government of Madras, 1955-2 SCR 374 : ( (S) AIR 1955 SC 604) (D), the Supreme Court while dealing with a similar question of construction laid down :
"It is a well recognised rule of construction that when two or more words which are susceptible of analogous meaning are coupled together noscunter a socus, they are undestood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general. (Maxwell on Interpretation of Statutes, Tenth Edition; p. 332). The Judicial Committee of the Privy Council also expressed itself in similar terms in Angus Robertson v. George Day, (1879) 5 AC 63 at p. 69 (E) :
'It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found "in immediate connection with them.'"
Here also following the same logic, I may say that having regard to the context in which these words "as changed circumstances may permit" have been used in juxta-position with "the rights as similar thereto," it would be a legitimate construction to be put upon them that they refer only to "the same rights as respects disciplinary matters or rights as similar thereto" and not to the "conditions of service as respects remuneration, leave and pension." If that is so, the consideration of changed circumstances with apply only to the rights as respects disciplinary matters or rights as similar thereto and not to the conditions of service as respects remuneration, leave and pension; that means, the question of changed circumstances will bear its relevancy only in relation to the rights specified but not in relation to remuneration, leave and pension.
Further, such a construction is not only consistent with the previous history of the statutory rights, which cannot be said to have no relevancy with the matter in issue but also with the very purpose for which a measure like this is incorporated in a Constitution. In case the phrase "changed circumstances" is read to qualify the entire subject-matter including "the conditions of service as respects remuneration, leave and pension" then the very purpose of providing such a provision in the Constitution will be lost and all conditions of service including those like remuneration, leave and pension, which undeniably originally constituted the essential terms of contract of these services, will stand exposed to an arbitrary variation as and when circumstances change or are claimed to have changed.
If that were the intention of the framers of the Constitution, they could have easily left that matter to be dealt with by the appropriate legislatures but they did not do that. Therefore, it follows that the intention was to put certain restrictions on the power of the legislatures in the matter of enacting any measure on that subject. In re, Central Provinces & Eerar Sales of Motor Spirit and Lubricants Taxation Act, 1938, 1939 RCR 18: (AIR 1939 FC 1) (F), Sir Maurice Gwyer C. J., dealing with the rule of construction of a statute like this expressed himself thus:
"The judicial Committee have observed that a Constitution is not to be construed in any narrow and pedantic sense James v. Commonwealth of Australia, (No. 2), (1936) AC 578 at p. 614 (G). The rules which apply to the interpretation of other statutes apply, it is true equally to the interpretation of a constitutional enactment. But their application is of necessity conditioned by the subject-matter of the enactment itself; and I respectfully adopt the words of a learned Australian Judge.--Although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting,--to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be': Att. Gen. for New South Wales v. Brewery Employees Union, (1908) 6 Com WLR 469, (H). Especially is this true of a federal constitution, with its nice balance of jurisdictions.
I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors. A Federal Court will not strengthen, but only derogate from its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed a ut res magis valeat quam pereat."
Therefore, looked at either from the point of construction or of interpretation, there is no escape from the conclusion as already stated above. And as a matter of fact, the learned Advocate-General has also at least to this extent conceded but his submission on this Article is that the passage benefit as contemplated by Article 314 is not remuneration but only a right like the one relating to disciplinary maters and aa such liable to variation as changed circumstances may demand. In support of this contention reliance has firstly been placed by him on the provisions of law as originally raid down in Section 247 (1) of the Government of India Act, 1935. That section reads :
"247 (1). The conditions of service of all persons appointed to a civil service or a civil post by the Secretary of State shall -
(a) as respects pay, leave and pensions, & general rights in regard to medical attendance, be such as may be prescribed by rules to be made by the Secretary of State ;
(b) as respects other matters with respect to which express provision is not made by this chapter, be such as may be prescribed by rules to be made by the Secretary of State in so far as he thinks fit to make such rules, and, in so far and so long as provision is not made by such rules, by rules to be made, as respects persons serving in connection with the affairs of the Federation, by the Governor General or some person or persons authorised by the Governor General to make rules for the purpose and, as respects persons serving in connection with the affairs of a province, lay the Governor of the Province or some person or persons authorised by the Governor to make rules for the purpose : Provided that no rule made under this sub-section shall have effect so as to give to any person appointed to a civil service or civil post by the Secretary of State less favourable terms as respects remuneration or pension than were given to him by the rules in force on the date on which he was first appointed to his service or was appointed to his post."
Under the terms of this section the conditions of service have been divided into two classes --the first covering matters like pay, leave and pensions and the second matters with respect to which express provision had not been made in the chapter whereunder Section 247 fell. The rules as to the former had to be made by the Secretary of State and those with respect to the latter either by the Secretary of State, if he so liked, or in the absence thereof by the authorities referred to therein, and this was so most likely for the reason that the matters covered under the second head were less important matters or matters which could admit of variation to suit local needs and changing circumstances like travelling allowance, house allowances etc. But in either case, as is obvious from the provisions made, the power to frame rules was made subject to the conditions as stated in the proviso to the section. That proviso laid down that the rules, if any, framed in exercise of power given in that section could not be such as to give any person already appointed to a civil service of civil post by the Secretary of State less favourable terms as respects remuneration or pension than were given to him by the rules in force on the date on which he was first appointed to his service or was appointed to his post. In other words, the conditions of service which related to remuneration and pension could not be adversely altered or changed as against those who had already been in service from before.
That being so, it is difficult to infer from this Section 247, as contended by the learned Advocate General that the word 'remuneration' as used therein did not include matter like passage benefit. Next he has also drawn our attention to Section 10 (2) of the Indian Independence Act, 1947.
On fee strength of that section read with the definition of the word 'remuneration' as provided in Section 19 (4) of the Act, he has contended that the very fact that a definition for remuneration had to be provided under the Act suggests that the word in its plain and natural meaning left without the definition provided could not include right like passage benefit.
In other words, his contention is that had the definition been not there, the passage benefit could not fall in the clause 'conditions of service as respects remuneration leave and pension'; rather it should have in that case fallen in the clause 'rights as respects disciplinary matters or rights as similar thereto." In my opinion, this contention is also without substance. It is true that generally definitions in statutes or enactments are provided in order to give some artificial meaning to words or phrases used therein but it does not follow nor there is any such rule of law that once a phrase or word is defined in a statute or enactment that definition is necessarily artificial and something different to its natural or grammatical meaning. The word 'remuneration' is a well-known word and one of common use in the contract for services. 'Remuneration' as defined in law Lexicon is a wider term than salary. Stroud's Judicial Dictionary says :
" 'Remuneration' means a quid pro quo, whatever consideration a person gets for giving his services seems to me a 'remuneration' for them. Consequently, if a person was in receipt of a payment or of a percentage, Or any kind of payment which would not be an actual money payment, the amount he would receive annually in respect of this would be 'remuneration' (per Blackburn J., R. v. Post Master General, (1876) 1 QBD 658 at pp. 663 and 664 (I)".
In Webster's Dictionary 'remuneration' is defined as equivalent for salary, loss or suffering. .Similar is the view expressed in Dothie v. Robert Macandrew & Co., (1908) 1 KB 803 (J), where Fletcher Moulton L .J., observed as follows:
"Under the Act no person not employed in manual labour is a 'workman' within the meaning of the Act if he receives a remuneration exceeding 250 a year. If he receives less than that, then he is entitled in cases of accident coming within the purview of the Act to compensation based on the remuneration which he was actually receiving. The same word is used in the Act in both cases, and in my opinion the Court is bound to give exactly the same meaning to the word 'remuneration' when it is estimating compensation as when it is deciding whether a person 3s a 'workman' within the meaning of the Act.
Now let us suppose that a workman is within the Act and claims compensation. He is in the receipt of certain monetary payments, but he is also in receipt of his food. Now it is incontestable that you must reckon the value of the food as part of the remuneration he gets. It is remuneration in the sense that it is something which he receives for his labour; it is remuneration in the sense that it is something the expense of which has to be borne by his master in order to procedure that labour."
It is, therefore, clear that the definition as provided in Section 19 (4) of the Indian Independence Act, 1947 includes nothing what is not conveyed by the word remuneration in its natural and plain meaning. Then as to why any definition of this word was at all provided in the Act, the reason is obvious and it is that the word 'allo-
wance' as used in the Government of India Act, 1919 and that of 1935 in relation to the conditions of service was deleted from the corresponding provision of the Indian Independence Act, 1947 and a word wider implication, namely, 'remuneration' was introduced and in order to make it further clear a definition was also provided separately for the word 'remuneration' saying that it includes leave, pay, allowances and the cost of any privileges or facilities provided in kind.
Further is difficult to conceive that the framers of the Constitution of India were not aware of this definition as provided in Section 19 (4) of the Indian Independence Act, 1947, specially in view of the fact that the very authority where under they framed the Constitution was derived from that Act. Therefore, if they had intended to change the meaning of the word 'remuneration' as provided in Section 19 (4) of the Act, they must have done it expressly and as the Constitution does not provide any specific definition of the word 'remuneration', I think it can be reasonably inferred that the definition as provided in Section 19 (4) was by implication endorsed and the word 'remuneration' was used by them in the Constitution with the same implication; for it is a familiar rule of construction that when legislature has deliberately used a term which has a known legal significance in law, it must be taken that the legislature has attached to that term that known legal significance Lewis Pugh v. Ashutosh Sen, AIR 1929 PC 69 (K) and Bibi Nazma v. R. P. Sinha, AIR 1954 Pat 43 (L). Therefore, it follows that even on the enforcement of the Constitution of India the right of passage benefit as provided in the Statutory Rules has not been in any way altered or amended and as provided therein it does not depend on changed circumstances.
15. Lastly, on the merit of the claim, it has been contended on behalf of the respondents that even if the right of passage benefit as claimed by the petitioner is accepted to have been originally preserved under Article 314, the same has been now withdrawn by the new rules framed on the 15th February, 1957, known as the All India Services (Overseas Pay, Passages and Leave Salary) Rules, 1957 hereafter to be called as the "New Rules." Clause (2) of Rule 1 of the New Rules declares:
"2. They apply to persons -
(a) who are members of the Indian Administrative Service and who before becoming members thereof were members of the Indian Civil Service; and
(b) who are members of the Indian Police Service and who before becoming members thereof were members of the Indian Police ;
and who at the time their appointment to the Indian Civil Service or the Indian Police, as the case may be, had their domicile in Asia." Then in Rule 3 it provides :
"The provisions of Rule 12 and Schedule IV of the Superior Civil Services Rules shall cease to apply to persons to whom these rules apply and the right of any such person to obtain passages under the said provisions shall cease."
Further under Clause (3) of Rule 1 the operation of the New Rules has been made retrospective from the twelfth day of July 1956. Therefore 'prima facie' there is much force in the cintention that these New Rules, as they stand, have the effect of withdrawing and withdrawing retrospectively the right of passage benefit as provided in the Statutory Rules and they, as they stand, are applicable even to those members of All India Services who were originally members of the Indian Civil Service and have thereafter on the commencement of the Constitution continued to serve as provided in Article 314 of the Constitution. But the contention of Mr. Das is that to the extent to which the New Rules deny the passage benefit to the latter class of officers are unconstitutional and ultra vires and, therefore, void and nullity.
His main reasons in support of this contention are two. His first contention is that the rights provided in the Statutory Rules having been affirmed and preserved by the Constitution of India cannot be altered or amended by any ordinary legislative measure. In other words, he contends that what is protected and preserved under the Constitution is not open in law to be negatived in any form or manner, may it be done by any legislative measure or an executive order as long as the Constitution stands. In my opinion, as a proposition of law this is uncontro vertible and if any authority is needed in support of it, I may refer here to the case of 1936 AC 578 (G).
Then on the merit of the claim, I have already held that for the members of the Indian Civil Service, who are referred to in Article 314, the passage benefit as provided in the Statutory Rules is guaranteed. That being so, it is obvious that to the extent to which the New Rules deny the right of passage to the members of the Indian Civil Service, they stand in direct conflict with the provisions of the Constitution and as such to that extent they are unconstitutional and ultra vires.
16. The other contention of Mr. Das in support of this conclusion is based on the history and interpretation of the parent Act itself, namely, the All India Services Act, 1951 (61 of 1951), whereunder these New Rules have been framed. According to him even under this parent Act, apart from any other reason, the Rule 3 as framed cannot be held valid and constitutional. The Act 61 of 1951 is a small Act of four sections. Of those, only three are relevant for the purpose of our discussion here. They are as Sections 3 (1), 2 and 4 and read as follows :
"3 (1). The Central Government may, after consultation with the Governments of the States concerned, make rules for the regulation of recruitment, and the conditions of service of persons appointed, to an All India Service."
"2. In this Act, the expression 'All India Service' means the service known as the Indian Administrative Service of the service known as the Indian Police Service."
"4. All rules in force immediately before the commencement of this Act and applicable to an All India Service shall continue to be in force and shall be deemed to be rules made under this Act."
A bare reading of these sections is sufficient to show that they have not in any way adversely affected the conditions of service as provided in the Statutory Rules nor they imply to suggest that under the powers given thereunder those rules are open to be varied or adversely modified. When carefully read it appears to me that the purpose and scope of this Act is in a sense limited and it is meant to provide rules only on those matters of All India Services which are not otherwise dealt with in the Constitution.
This is not only indicated in the statement of its objects and reasons but also follows from the terms of Article 312 whereuner that Act has been enacted. The objects and reasons of the Act (See the Gazette of India, 1951, Part II, Section 2, page 748) state that on the enforcement of the Constitution of India, the Central Government in the absence of any specific rules had to deal with many of the matters connected with All India Services as referred to in Article 312 by means of non-statutory executive orders. That undoubtedly was neither Quite satisfactory nor justifiable.
Therefore, in order to meet that situation, this Act came into force & in that it has done two things, firstly it has given statutory recognition to the rules already in force & secondly it has provided power for the framing of other rules if and when required. Now as this legislation has been enacted under the provisions of Article 312, it necessarily implies that the power given thereunder has to be exercised in consonance with the terms of that Article. That Article says :
"(1). Notwithstanding anything in Part XI, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more All India Services common to the Union and the States and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.
(2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article."
Now so far as Clause (2) is concerned, that no doubt goes a long way to support the contention advanced by the learned Advocate General that on the transfer of power from the Crown to the Dominion of India the old Indian Civil Service ceased to exist and in its place a new All India Service was created, namely, the Indian Administrative Service, wherein those persons were also included who originally belonged to the Indian Service but thereafter continued to serve as contemplated by Article 314, as is also evident from the first set of rules that have been framed under this Act, namely, the Indian Administrative Service (Recruitment) Rules, 1954.
But this change thus effected cannot necessarily lead to the conclusion that as a result thereof the member of the Indian Civil Service were not only deprived of the name of their service but also of its conditions and privileges as provided in the Statutory Rules. On the contrary, Article 312 when read with Article 314, which falls in the same Chapter, clearly implies that though the old service ceased to exist yet the conditions of service as regards to those of its members who continued to serve even thereafter as provided in Article 314 are not to be adversely affected.
And this is so for two reasons. Firstly for the reason that the two articles forming parts of the same living and organic document have to be read consistently. Secondly for the fact that Article 312 specifically directs that the powers provided therein are subject to the other provisions of the chapter wherein it falls. That being so, the Act 61 of 1951 having been enacted under that Article could not be intended in any way to contravene the provisions that are laid down in Art. 314. And it is I think for that reason that under the Indian Administrative Service (Recruitment) Rules, 1954, a special saving clause has been provided in Rule 3 (2) which says :
"3 (2). Nothing contained in these rules shall be construed to affect the provisions contained in Article 314 of the Constitution, in so far as the said provisions apply to the members of the Indian Civil Service."
Unfortunately this point completely escaped the attention of the framers of the New Rules in lying down in Rule 3 what it means to say, namely, that "the provisions of Rule 12 and Schedule IV of the Superior Civil Services Rules shall cease to apply" even to those members of the Indian Administrative Service who have been absorbed therein from the old Indian Civil Service. That on the face of it is in direct conflict with the terms of Article 314. Therefore, there is no justification for the contention that what has been done under Rule 3 of the New Rules is within the powers provided under the All India Services Act, 1951.
That Act, as already stated, has to be read subject to the powers provided in Article 314 and as such no rules framed thereunder can transgress the limits imposed under Article 314. Looked at therefore, from this point of view also, the New Rules to the extent stated above are ultra vires.
And if that is the position in law of the New Rules made under the delegated legislation then the executive order referred to above in support of the respondents' case is all the more without any legal justification and cannot derive any legal sanction either prospectively or retrospectively from those rules. That being so, the refusal on the part of the Accountant General, Bihar to grant the passage benefit to the wife and children of the petitioner, as claimed in the petition, is arbitrary and unwarranted.
17. Now I come to the next question as to whether the petitioner is entitled to the issue of a writ as prayed for by him. Mr. Das in support of his contention that it is the duty imposed under the statute on the Accountant General to grant passage benefit to the members of the Indian Civil Service, as provided in the Statutory Rules read with Article 314, had drawn our attention to Articles 149. 150 and 178 of the Audit Code, First Edition (Re-print) and paragraphs 1, 2, 3 and 6 of Appendix 1 of the Audit Manual.
So far as Articles 149, 150 and 178 are concerned, they provide for the form of account, duties and powers of the Auditor General and passage concessions while paragraphs 1, 2, 3 and 6 of Appendix 1 of the Audit Manual give the procedure as to how passage has to be booked. In that connection reference has been made in paragraph 3 (b) to the passage certificate which In this case as claimed by the petitioner had already been originally issued to Mr. Bakshi and the members of his 'family though subsequently refused to be respected so far as it related to his family members.
On the strength of these provisions it has been argued that it is not discretionary on the part of the Accountant General to grant or not to grant the passage certificate. On the contrary, it is said, it is the duty imposed upon him and as such any refusal on his part is arbitrary. In my opinion, the contention is not without force. The Audit Code, as it appears from paragraph 2, of the Preface, derives its authority from Article 149 of the Constitution of India and the provisions of Government of India (Audit and Accounts) Order, 1936, as adapted by the India (Provisional Constitution) Order, 1947. Therefore, it has to be read along with those provisions. Article 149 says:
"The Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor-General of India immediately before the commencement of this constitution in relation to the accounts of the Dominion of India and of the Provinces respectively".
That being so, the duties imposed on the Comptroller under the Audit Code are obviously statutory and the powers given thereunder in regard to the payment of passage benefit have to be exercised as warranted in law. It is a well-established rule of law that where the power is conferred in the nature of trust, there is an obligation to exercise it for the benefit of ces que trust Julius v. Bishop of Oxford, 1880-5 AC 214 (M). Further there can be no denying that where there is a statute prescribing terms of service and the mode of dismissal, the statute controls the common law doctrine of the pleasure of the Crown and governs the right of civil servants Gould v. Stuart, 1896 AC 575 (N).
Therefore, on the findings already arrived at, it has to be held that the Comptroller in refusing the claim of the petitioner has acted capriciously. Further, on the facts of this case, which substantially remain uncontroverted, it is difficult to hold that any other remedy equally effective is available to the petitioner to vindicate his rights to which he is undoubtedly entitled to in law. If that is so, then the contention of the learned Advocate General that it is not a fit case in which the writ in the nature of mandamus as prayed for should issue fails.
18. Now remains the last contention that has been stressed on behalf of the petitioner. That is to the effect that passage benefit is property and as such any denial of it is a contravention ef the fundamental right as provided in Article 31 ef the Constitution. In my opinion, in view of what I have already held above, it is not necessary to decide this point.
Further, it is clear that even if passage benefit is property, a person may be deprived of it by authority of law. Therefore, in ultimate analysis, this point will also rest on the consideration as whether the All India Services (Overseas Pay, Passages and Leave Salary) Rules, 1957, is a valid piece of legislation or not. In case it were held that it is a valid piece of legislation then it is not denied that it could have legally deprived the petitioner of the right claimed in the petition independent of the fact whether it is property or not. But if the same is invalid and unconstitutional, as already held, his claim to that right as provided in the Statutory Rules cannot be denied. Therefore, the controversy as to whether passage benefit is property or not is more or less academic on the facts of this case.
However, as some argument has been specifically advanced in support of that contention, it is. I think, necessary at least to give a brief summary of that. The contention of Mr. Das is that any right that can be converted in terms of money is property and in support of this contention reliance has been placed by him on certain passages in Basu's commentary on the Constitution of India (3rd Edition at page 221) and Willis on Constitutional Law (page 815) as also on the decisions in Mata Din Kasodhan v. Kazim Hussain, ILR 13 All 4S2 (O) and Ex parte Huggins, In re Huggins, (1882) 21 Ch D 85 (P).
Basu in his commentary on the Constitution of India at page 221 dealing with what is property says.
"Whatever a man produces by the labour of his land or his brain, whatever he obtains in exchange for something of his own, and whatever is given to him, the law will protect him in the use, enjoyment, and disposition of. So nothing can be the subject of property which is not recognized by law to be such.
And when law withdrawn such recognition, a thing ceases to have the attribute of property (Cooley, Constitutional Law, p. 392; Bentham, Theory of Legislation, p. 113)."
While the relevant passage in Willis on Constitutional Law at page 815 is in the following terms:
"What property may be taken by the power of eminent domain? In general it may be said that any and all property may be taken. Land, buildings, water, an easement as distinguished from general property, a contract, and a franchise may be taken. Property already once taken may be taken again, if the new use is more urgent or important than the old. The public property of a state or an instrumentality of a state may be taken .............."
So far as the two decisions, referred to above, are concerned, they have to be read in their own context, In Kasodhan v. Karim Hussain, ILR 13 All 432 (O), the discussion centered round the point as to what is property as contemplated under the Transfer of Property Act. Dealing With that subject, Mahmood J., observed:
''I take it as a general rule of interpretation that words when employed in a statute must be understood in their most generic sense unless a restricted meaning is indicated by some provision in the same statute or in any other governing former statute. The rule is too well-known to require any citation of authorities, and I have thus to resort to statute law for the purpose of ascertaining whether or not the word 'property' has been used in its most generic and comprehensive legal sense in the Transfer of Property Act (IV of 1882).
Unfortunately that enactment contains no scientific or comprehensive definition of the term: but that enactment must be read subject to the interpretation required by the 'General Clauses Act' (I of 1868). In Clauses (5) and (6) of Section 2 of that enactment, definitions of immoveable and moveable property have been attempted though in an incomprehensive manner. In the Transfer of Propertv Act itself in Section 3, the phrase immoveable property is not fully explained any more than the word 'property' itself.
But I think that Section 6 of that enactment In making exceptions to the capability of transfer of property must be understood to use the term propertv in its widest and most generic legal sense, for otherwise, the exceptions would be wholly unnecessary. That sense is, I think, well represented in the meaning assigned to the word in Wharton's Law Lexicon where it is represented to mean: 'the highest right a man can have to anything, being used for that right which one has to lands or tenements, goods or chattels, which does not depend on another's courtesy, property is of three scorts: absolute, qualified, and possessory."
The other case, namely, (1882) 21 Ch D 85 (P), refers to property as contemplated under Sections 15 & 17 of the Bankruptcy Act, 1869. Therein Jessel, M. R. dealing with those sections expressed himself as follows:
"If a man died possessing nothing but French or Italian bonds no one would say that he had died without any property. Such bonds are not choses in action in the ordinary sense, and that cannot be the definition of property. The mere fact that you cannot sue for the thing does not make it not 'property'. I am not going to attempt to define 'property', that would be too dangerous.
But there can be no doubt that these foreign bonds, both in common language and in the language of lawyers, are 'property'. Nor can I doubt that if a man had a bond for £10,000 of the British Government it would be 'property' ......
Just in the same way the salaries and pensions of servants of the Crown in this country cannot be paid until they are voted by Parliament, and yet no one would say that they are not the property of the persons who receive them.
There are, no doubt, some salaries and pensions which are not assignable. But when this is so it is always referable to one of two grounds. It is said to be contrary to public policy that payments made to induce persons to keep themselves ready for the service of the Crown, as the half-pay of officers in the army or navy, or payments for actual service rendered to the Crown, should be assigned.
The other class of cases is that of pensions, like the "retiring allowance of a beneficed clergyman, which are by statute expressly made not assignable. But still I think these are all property. The large definition of 'property' given in Section 4 of the Bankruptcy Act goes far beyond choses in action. My view of the meaning of the provisions of the Bankruptcy Act is this.
Sections 15 and 17 vest all the property of the bankrupt in the trustee, but this vesting is subject to exceptions such as that which is made by Section 23 of leases and onerous contracts which the trustee is authorized to disclaim."
I, however, think though tentatively that passage benefit is not property. In my opinion, it is at best a right which the petitioner may be entitled to so long as he is in service and on terms as stated in the Statutory Rules. Property is defined to be "the unrestricted and exclusive right to a thing; the right to dispose of a substance of a thing in every legal way; to use and exclude every one else from interfering with it."
If this is the correct definition then the claim of passage benefit in any case as now provided in the Statutory Rules after their amendments made in the year 1926 is difficult to be accepted.
19. In the result, however, for the reasons already given. I hold that this application should be allowed & accordingly a writ in the nature of mandamus is directed to issue commanding the Accountant General, Bihar, Ranchi, to pay the passage money as provided in the Statutory Rules, to the wife and children of the petitioner as prayed for. But, in the circumstances of the case, there will be no order as to costs.
Choudhary, J.
20. I agree.