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28. I have read the judgment prepared by brother T.S. Misra, J. and concurred in by my Lord the Chief Justice but, I respectfully regret, I cannot subscribe to the reasoning and the conclusion reached.

29. The full narration of facts is already contained in the judgment of brother Misra, J. However, facts essential for my reasoning are being set out in this judgment, Petitioner R.B. Hanifi was appointed as a clerk in the office of the Division d Superin tendent, Northern Railway on 1-10-1939 and he was confirmed on 13-10-1942. A show cause notice dated 19.10.1959 in terms of Rule 3 of the Railway Service (Safeguarding of National Security) Rules, 1954 was issued against the petitioner who was placed under suspension with effect from 10-10-1959. Ho replied to the show cause notice but the same was rejected and the General Manager. Northern Railway, by his order dated 7-12-1960 terminated the services of the petitioner in exercise of powers under Rule '149 of the Railway Establishment Code Vol. 1. This Rule 149 and Rule 148 ware struck down by Hon. Supreme Court in case, Moti Ram Deka v. General Manager, N.E. Railway supra). On 20-7-1965 a representation was submitted by Hanifi for review of order of termination of his service dated 6-12-1960. The representation was accepted and he was ordered to be reinstated in service and he took over on 23-1-1967 and was posted as a clerk at Moghalsarai The petitioner was treated as on duty froin20-10-1959 to 22-1-1967, but in the bill prepared for payment of arrears of salary it was mention. ed that petitioner was entitled to payment of arrears of salary for three years only prior to the date of reinstatement. This is Annexure 4. The petitioner filed the present writ petition in this Court feeling aggrieved by the non-payment of his salary for the period 20-10-1959 to 22-1-1964 inter alia on the ground that the reason contained in the impugned order for withholding his salary for the said period on the plea of its being barred by the law of limitation is not a valid reason in law. He prayed for issue of certiorari for quashing the order contain. ed in Annexure 4 and also for a writ or direction in the nature of mandamus commanding the opposite parties to pay his salary and allowances for the period 20-10-1959 to 22-1-64.

41. It now remains to be considered whether this Court in exercise of powers under Article 226 of the Constitution can or would issue mandamus for payment of Salary to Hanifi for the period from 20-10-1959 to 2211964 when it is manifestly barred by limitation.

42. It is clear from the order contained in Annexure 4 and the counter. affidavit that the appellant disallowed the salary not in terms of rule governing the conditions of his service but it refused payment on the ground of salary being barred by limitation. The relevant rule in the Indian Railway Establishment Code Vol. II is 2044, which reads as under:

44. The Court in O P, Saxena v. General Manager, N.E. Railway (W.P. No 94 of 1969, decided on 5-8-1971)(All) observed :

In absence of any form being pres. cribed the directions issued by the Railway Board or the General Manager in the form of circular letters for the guidance of subordinate authorities must be taken to be rules made by these authorities by virtue of powers conferred on them under the said Rules 157 and 158.

45. This circular of Railway Board has a force of law order para 157 of the Indian Railway Establishment Code and in any case under the Rule also after this amendment of the explanation time barred salary is irrecoverable.

In the case, Shyam Sunder Dorey v. Union of India (supra) the employee was suspended during the pendency of a criminal case. After acquittal departmental proceedings were started and the employee remained under suspension. During the suspension period ho was being paid subsistence allowance. The employee was placed under suspension on 12-9-1959 and was reinstated on 4-7-1961, hence there was no question of any arrears of salary having become barred by limitation. in Tarni Kumar v. Chief Commercial Super intendent (supra) the employee was suspended on 451956 and was dismissed OB 2971959 on account of his being convicted in a criminal case. Later on he was acquitted from the High Court and he was reinstated en 27-8-1961. It was observed by the Court that there was no difference in principle as between the pronouncement of civil and criminal Courts in this context and relying upon the Supreme Court decision. Devendra Pratap Narain Rai Sharman v. State of U.P. . it was held that Rule 2044 of the Railway Establishment Code, Vol. II had no application.