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TMI Blog1977 (1) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... , 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to. pay the same with interest. Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff. Maharashtra preferred an appeal against the decree. Madhya Pradesh preferred objections against the order of costs. The High Court confirmed the decree and the declarations. The High Court however modified the decree and held Madhya Pradesh liable. The claim of the plaintiff against Maharashtra was dismissed. The plaintiff was appointed Assistant Medical Officer in 1938. In 1939 he was appointed officiating Assistant Surgeon. He was posted at Elichpur (now Achalpur). In 1942 he was transferred to Hoshangabad. In 1943 he applied for medical leave for four months. The Civil Surgeon recommended leave for six weeks. The plaintiff again applied for leave in the month of August, 1943. The leave was sanctioned by the Civil Surgeon. The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keeping good health. The Civil Surgeon then reported to the Government that the plaintiff absented himself fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff. On 2 February, 1956 the plaintiff was removed from service. He appealed to the Governor. The appeal was dismissed. On 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur against Madhya Pradesh and Maharashtra. The plaintiff asked for a declaration that the order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 is illegal. The plaintiff asked for a declaration that he is deemed to continue in service. He claimed recovery of ₹ 64,588-2-0 as arrears of salary. The plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are liable to make good the plaintiff's claim the liability for which is not exclusive but joint and several . The alternative case. of the plaintiff in the suit was that if it will be held that the State of Maharashtra and not the State of Madhya Pradesh is liable or viceversa the plaintiff will claim the decree' against such State as would be liable . The Civil Judge passed the. decree on 25 April 1959' declaring: the order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 removing the plaintiff from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms. of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff. The High Court also said that at the time of the plaintiff's appointment in 1939 the plaintiff's services were available for the then entire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh. Therefore, the High Court said that section 87(b) of the Act would not apply. Under the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the appointed day not exclusively purposes of any of the two successor States. Madhya Pradesh raised three contentions. First, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the. suit filed by the. plaintiff in 1949 and was therefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claiming the salary and allowances for the period of 16 September, 1943 to 31 August, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to section 87 of the Act is that where the liability attaches under clause (c) the initial allocation of rights and liabilities made by this subsection shall be subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the central Government may by order direct. Section 88 of the Act provides that where before the appointed day, an existing State is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall (a) if there be only one successor State, be a liability of that State; (b) if there be two or more successor' States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and (c) in any other case, be initially a liability of the principal successor State, but subject to such financial adjustment as may be agreed upon between 'all the successor States concerned, of in default of such agreement, as the Central Government may by order direct. The claim for declaration that the order of suspension as welt as the order of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Province of Punjab v. Pandit Tara Chand ([1947] F.C.R. 89.) which held that a public servant had a right to bring a suit for arrears .of pay. The decision of the Judicial Committee in Lall's case (supra) takes a contrary view to the decision of the Federal Court in Pandit Tara Chand's case (supra). It it true that the decision of the Federal Court in Pandit Tara Chand's case (supra) was not brought to the notice of the Privy Council. Under section 208 of the Government of India Act 1935 the law declared by the Judgment of the Privy Council had to be followed by all the Courts including the Federal Court. Therefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in Lall's case (supra). This Court in State of Bihar v. Abdul Majid([1955] 1 S.C.R. 286) stated that a Government servant could ask for arrears of salary. Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid's case (supra) declared what the existing law has been, and, therefore, the plaintiff could not contend that it was not open to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted such a claim to be made. The decision of the Privy Council made it clear that no such claim could be made. The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood. The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions contained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit. The plaintiff could not have asked for arrears of salary on the law as it then stood. The plaintiff did not know of or possess any such right. The plaintiff, therefore, cannot be said to have omitted to sue for any right. Another reason why the bar under Order 2 Rule 2 of the Code of Civil Procedure cannot operate is that the plaintiff's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit. See Pavana Reena Saminathan v. Palaniappa(I.A. 142.). This Court in Jai Chand Sawhney v. Union of India ([1970] S.C.R. 222) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54. Therefore, the plaintiff's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953. The plaintiff's salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal. The rulings of this Court in Jai Chand Sawhney's case (supra) and Sakal Deep's case (supra) do. not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to the decree. The plaintiff's cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was suspended during the period of suspension._ The plaintiff w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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