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r (1) S.C.R. SUPREMECOURT REPORTS 505 (2)( i) of BiharAnnulFinanceAct intended to effect a temporaryamendmentin thepreviousdefinition of the word "dealer" in cl( c) of s. 2 oftheAct. Thecontention is thereforerepelled. It was alsosubmitted that the assent of the Presidentwas not givento theBiharAnnual Fin ance Aot 1950. In our opinion that submission iJ equallywithoutforce because tax on sale of goont.itlerl unrfor R.f'gnla.tion r. * * *" "14. No personwhosoevershall h&Vfl any claimon th" Genera.I PassageFund beyond the provi11ion of the benefits,if any, conferrr:'d on him by these rcgulation11 and anv balanceremaining at the crC'dit of any person aftersuch pe!"lonbas ceaB<'d to be eligiblefor any such benefitsshall lapse to the Fund." Passage benefitproviderl under Rule 12 was clearly part of the salaryto be paid out of a fundcalled theGeneral Pa.RSagc Fundwhichwas formedout of the paslllge pay. Several amendmentswore made to these Rules from time to time, but we a.re concernedwith the amendmentsmade by NotificationsNo. F-178/ 11/1/24 dated October Ii, 1921i, and No. F-li-15/26 dated June 16, l!l'.:!6. Rule 12, as a.mended, read11 nR follows:- "12. In addition to the pay prescribed bytheseRules, passages shall be· granted, subject to theconditions set out in Schedule IV, to the members ofthe service11 andholders of appointmentsenumerated in Appendix A to that Schedule.'' TheRegulationsunder Sch. IV were,after the amedment, ca.lied Revision of Pay, Passage and -· (1) S.C.R. SUPREME COURT REPORTS 511 Pension Regulations. Original regulations 3, 4 and 5 wereomittedand regulations 6, 8, 11 and H were amended.The effect of theseamendmentswas that instead of allowing as part of salary, a paRsage pay of Rs. 50/- and carryingover that amount to the credit of the officer concerne9 in theGeneral Passage Fund,by cl. 6 of the Regulations it was directed that aseparate "passageaccount" be open ed foreachofficerand if he be marriedfor hiR wife andchildren, if any. Subject to Regulation 8, the accountswere to be creditedrespectivelywith the number of passages to which the officer,his wife andchildrenwere entitledunder the new re gulations. Within the limits of thesecredits, theofficerwas entitled to draw for himself, hiswifeand his childrenrespectivelythe cost of a journeybetween a port in India and a port outsideAsia. Whereas by theRules as originallyframed in 1924 an additionalsalary of Rs. 50/- per mensemwas awurded to each offiPer as passagepay whichwas to be credited to the General Passage Fundout of whichpassage bene fits to Officers were provided,accordingto the scheme of theRulesas amendedin 1926, a separate passageaccount was to be maintained for. each officer for themaximum benefits prescribedby Rule 3 and thedisbursementin respectthereofwere to be made of the GeneralRevenue of the State. By the amendmentmade in theRulesin 1926, the passage benefit. ceased to be a part of thesalary andbecamean allowanceor privilege. Therespondentobtained benefit of these passages in 1930,1950-51 anrl 1952-53 for himself andthe members of hisfamily. In 1957 he was not grantedthe passagelienefi.t for his wifeand hischildren,and he has filedthis petitionunder Art. 226 for anorder that the Unionof Indiaand theAccountantGeneral do carryout their Statutory obligations. 1961 Th~ .4.ccoll'11'1">it Oeri1Tol, BihtJr v. N. Bokshi Sah J. IHI 7li Acco1111,.., Om11ai Biliar •. N. Bakslri SMA J. 512 SUPREME OOURT REPORTS [1962) SUPP. The conditions or eervioe to which membe!'ll of theIndian Civil Service were entiledunder the Governmentof India Aot, 1919, were guaranteed tothemby s.247(1) of theGovernmentof India Act, 1935. Thatsectionprovided: "247 (I). 1The conditions of service of all persons appointedto a civil 11ervice or civilpost by theSecretaryof State shall :- (a) as respects pay, leave andpension and generalrights in regard to medicalat tendance, be such as may be prescribedby rules to be made by the Secretary or State; (b) as respeot.B other matters with res pectto which exprell8 provisionis notmade bythischapter, be suchas may be prescribed by rules to be made by the Secretary of State in 10 far as he thinks fit to make suchrules,· and, in so far and so long as provision is not madeby such rules, by ruleB to be made, as respeote pel'Bons serving in con nectionwith the affail'B of theFederation, bytheGovernor-Generalor some pel'Bon or persons suthorisedby the Governor-General tomake rulea.Jor the purpose and, asrespects personseening in oonnection with the affairs of a Province, by theGovernorof theProvince orsome person or personsauthorised by the Governorto make rules forthepurpose: Provided that norulemadeunder this au b-sectionshall have effectso as to giveto any person appointed to a civilserviceor civil post by the Secretary of State Iese favour· ableterms ae respeot.e remunerationor pension thanweregiven to him by the rules in force on thedateon which he waafirst appointed to his service or wasappointed to hiE rest." Theproviso makes it abundantlyolear that the power to make rulescannot be exercised by the ,. (I) S.C.R. SUPREME OOURT R:Ei'OR±S 5i:J Secretary of State so as to giveto any officer of the class specifiedterms less favourable as respects remunerationor pension than weregivento himby the rules inforceon the dateon whichhe was firstappointedto hisserviceor tohispost.This guaranteewas confirmedby s. IO, sub·s. (2) of the IndianIndependenceAct, 1947,wherein it was provided,in sofar as it is material, that "Every person who- ( a)haviningbeen appointed by the Secretary of State orSecretary of State in Council, to a civilservice of the Crown in Indiacontinueson and after the appointed day to 8erve underthe Government of either of the newDominionsor of any province or part thereof; or (b) **** shall be entitledto receivefrom the Govern-· ments of the Dominionsand Provincesor partswhichhe is from time to timeserving or,as thecasemaybe ** • the sameconditions of serviceas respects remune ration,leave and pension, and the samerights asrespectsdisciplinarymatters or as the case may be, asrespectsthe tenure of his office, or rightsas similartheretoas changed circum stancesmay permit, as -that personwas entitled to immediatelybefore the appointed day." Theexpression "remuneration" was defined in s. 19(4) of that Act as incl usive of leaye :!Jay, allowances and the cost of any privilegesor facilitiesprovided iu kind.By Art. 314 of the Constitution, persons who were appointed by the Secretary of State or Secret,ary of State in Council to a civilservice of the Crownin India and continuedon and after the comme:O:ce ment of the Constitutionto serveunderthe Gov ernment of India or of a State were to receivefrom ~ the Government of India and theGoverumentof 1 the State which they were from ti.mo to time • ' 1911 Tiu A.cc.un.tt1nt Gen6T•l, Bihttr Y, N.Bahhi S"4h J. 1961 Tiu Accountant OeNro/ 1 BiMr v. N, BaJ;shi Shah J, 514 SUPREME COURT REPORTS [1962) SUPP. serving, the same conditions of service as respects remunerationleave and pension which they wc·rc entitled to immediatelybefore such oommmenoe ment.The Parliament of Indiaenactedthe All India. ServicesAct, 61 of 1951, to regulatethe recruitment,and the conditions of service of per· sonsappointed, to tho allIndia Services common tothe Union and tho States, and bv s. 3 of that Actthe Central ·Government wasauthorisedto make rulesfor thereguhtion of recruitmPnt,and the conditions of serviceof personsappointed,to the AllIndia Service. By s. 4 it wasprovided that all rulesin forceimmediatelybefore the com menccmentof theActand applicableto an All India Service were to continue to b9 in force and were t-0 be deemedto berulesmadeunderthe Act. On September 8, 1954,the CentralGovernment ·framed rules called the IndianAdministrative Ser vices RecruitingRules and hy Rule2(d)the mem, hors of the IndianCivil Service who continuedto serveon and after thecommencementof the Con stitutionwere to be regardedfor thepurposeof the rules as members of theIndianAdministrative Seryice. On February 15, J9fi7, the AllIndia Ser vices (Overseas Pay, P888age andLeave Salary) Rules, 1957, werepromulgated in exercise of the powersconferredby sub-s( 1) of s.3 of the AllIndia Services Act, 1951, andtherebypassagebenefits in favour of the memtiers of the Indian Administra tive Service, who wereoriginally mt1mbers of the Indian Civ,JService werecancelled. Theonlyquestionwhich falls to be deter minedin thisa ppcal is whether cl. 3 of theAll India Services(Overseas Pay, Passage and Lea1•c Salary) Rules, 1957, was competentlyenacted, hav· ing regard to tho guarantee containedin Art. 314 of the Constitution as to tb.e conditions of serviceas respectsremunoration,leave and Pf'n· sion of the personsappointedby tht Secretary of Seate or Secretary of State for Indiain Councilto acivilsorvice of the Crown in India. • ' • I • I • r (1) S.C.R. SUPREME OOURT REPORTS 515 Since the All In:liaServices Act was enactedthere is manifestlyno existingservice known as the Iadian Civil Service. The members of the Indian CivilService who wereappointed by the Secretary of State for India becamemembersof theIndian Administrative Service, buttheirrights in the matter of conditions of serviceas respects remu· m:ration, leave and pensionstood guaranteedby Art.314. In dealingwith the status of the membersof theformerIndian Civil Service sincethe Indian Inde· pendenoeAct, 1947,this Court in 8tate of Madras v. K. M. Rajagop£1lan (1 ) held: thiit (1) the conferral of independence on India broughtabout an automaticand legal termination of serviceon thedate of Inde· pendence; (2) all personspreviouslyholding civil postsin India are deemed to havebeen appointed and hence to continuein service, exceptthose governedby generalor special ordersarrangementsaffecting their respecti vo cases; (3) the guaranteeabout prior conditions of serviceand the previous statutory safe guardsrelatingto disciplinaryaction conti nues to apply to thosewho are thus deemed tocontinuein st>rvice but not to others; and (4) thosepreviouslyholding civil posts inIndiahad the right, and werein fact given the option,of decliningto "continue in service" under the newregime and in the event of theirexercising that optionthey ceased to serveon andfrom the date of the passing of theconstitution. (!) [1955] 2 S. C.R. 54!. 1961 Tiu Accouirt.mt '.Jenera/, Bihar v. N. Bakshi Shah J. Tht Accounlant Get.tr al, BJtar v. N. Bt1kJlii Slu;h J. 510 ~UPRRME O)URT REPORTs (1962] SUPP. l.:11dcr the Statulnry RuleH framed in 1!1:!4 passage benefits granted to personsemployedin the Indian Civil Service, their wives am! children wne expresslymade part of the sllary or rcmu lleration. Cnder the amendment of 19:W, these pas· sagebenefits atqniredthe eharacter of allowance, privilege or facility ofoffice.By the Act ,,f 1935 (s. 2-li) priviJ.,gcs, iriter al·itationmeans "reward,recom pense, pay, wages or salary for servicerendcrd" In R. v. Po8trrwster General(') Blackhurn, ,J., obser · ved, "I think th" word 'rcmnnreatfon' ...... means a quid pm quo. If a ma.n gives his services; what.over consideration he gets for giving his services scL·ms to lie a rcmuncrat.iun forthem. ConH1.•quc11tly, I think if a person wai; iu receipt. of a paym .. nt., or in receipt of apercentage, or any kin1 of paym<•nt whichwouldnot be actualmoney payment, theamount.he would receive annually in rcsppct of thi•would he remuneration." Th11 expression 'r<·mune1 .. •tio11° appears to have been used in the Constitutionin thiswide con notation. As alreadyobserved, the right to passage (I) (187611 Q. B. D. 6SB. I (I) S.C.R. SUPREMECOURT REPORTS 517 wasoriginally marle a part of the salary, but under theRulesframedin 1926,the provisionfor setting apart a fixer! sum of moneyas salaryout of the General PaRsagcFunrl was alt<>rcd anrl passages wc·re crNlited to the account of members of Civil Services and debitedas and when they were availed of out of the generalRevenue of the State. This alte ration was made merelyfor administrative conveni ence and did not alter the character of the benefit. Under theRules of 1924, the provision for passage was part of theremuneration and it continued to he sucheven after tlw amendment of the Rules in 1926. The right to passagebenefits was statu tory, and was under the Indian IndependenceAct inthe nature of an allowance,or in any event privilege or facility paid inkind. It was expresslymade part of the remuneration earned bv themembers of the Indian Civil Service.·The conditionK of service as to remune mtion having been guaranteed, the right to this benefitremainedguaranteedto thosemembers of the Indian Civil Serviee who were entitled to it before the Constitution.This guaranteewhich was continut•d in forceeven after the commencement of the Constitutiouwas for th" first timv by Rules madein June 19.)7 by rotr'ospective amendment of the St.atutoryRules from July 12, 1956 sought to be cancelled. But theCentralGovernment inexercise of Rule making p0wcr was incompetent to destroyor cancel ii C<>nst.itutiowil guarantee. TheHigh Court was,thcr 3fore, in our judg· ment,right in holding that rule3 of the All India Services(Overseas Pay, Passage and Leavl!Salary) Rnles, l95i, was ultm vi'.res. In that view of the case thi:< appealfails al' is dismissedwith costs. Appeal dismissed. 1961 The Accountant General, Bihar Y, N. Bakshi' |
