P L D 1954 Dacca 57 (PLP)

IBRAHIM, J.

‑This appeal was preferred by the Province of Bengal in the Calcutta High Court against the decree of reversal and is now prosecuted in this Court by the Government of East Bengal, the substitute of the original appellant. The suit out of which the appeal arises was instituted by the respondent Dr. Harsha Nath Bhattacharjee who was a Sub Assistant Surgeon in the employ of the Provincial Government He has now retired from service but was in service when he instituted the suit in February, 1945. The respondent was appointed as a temporary Sub‑Assistant Surgeon on the 8th of May, 1915, and was confirmed as such on the 12th of June, 1919. On the 27th of July, 1921, the Government introduced a new time‑scale of pay starting with Rs. 60 and rising to the maximum of Rs. 175 at the 21st year with two efficiency bars, one at the 7th and the other at the 14th year. Exh. 2 is the Government Resolution by which the time‑scale was introduced. Provision was made for a selection grade which was restricted to 12 per cent. of the Provincial establishment, and the selection grade pay was fixed at Rs.

200. The Resolution provided that the officers already in service would be permitted to count the whole of their service towards the new time‑scale. At that time the respon dent was in the 7th year of service from the date of his appointment but in the 3rd year from the date of his confirmation. There was a question as to the date from which the date of confirmation or the date of appointment‑he was entitled to count his service. The Surgeon‑General was of opinion that he was entitled to count his service towards the new time scale from the date of his confirmation : but the Accountant General, to whom the question was referred, opined that he was entitled to count from the date of his appointment. Accordingly the respondent was allowed the pay of an officer in the 7th year of service. Thereafter he duly crossed the two efficiency bars and reached the maximum of pay of Rs. 175 at the 21st year on the 8th of May, 1935. In the gradation list as corrected up to the 1st of January, 1941, he was, however, placed in the 42nd place. The gradation list is made under Rule 113 of the Bengal Audit Manual, which runs as follows "The names of men holding permanent posts should be entered in order of seniority as measured by substantive pay drawn and below those will be shown the posts left vacant and the men officiating in the permanent vacancies." According to this rule the respondent was entitled to the 7th place in the gradation list ; but the gradation list, as has been rightly found by both the Courts below, was not made in strict conformity with this rule with the result that the res pondent was placed below many of his juniors in service. From the 8th of May, 1935, when the respondent reached the maximum of his time‑scale of pay of Rs. 175, there was no recruitment to the selection grade till the 16th of December, 1941, when Dr. Jamini Kumar Mukherjee was promoted to that grade. This officer was junior to the respondent, but in the gradation list his length of service was shown as 26 years 5 months and 27 days, whereas the respondent's length of service was wrongly shown as 25 years and odd against his actual length of service which was 26 years 7 months and 27 days. On the 16th of August, 1942, several other officers were promoted to the selection grade. The respondent then made representations to the Surgeon. General and to the Government but received unfavourable replies from both the quarters. The Surgeon‑General told him that his case would be duly considered when his turn came. The Pro vincial Government replied

the fact that he was allowed to count his temporary service towards increment of pay does not entitle him to count the period of his temporary service towards seniority in service. His seniority in service dates from 12th June, 1919, on which day he was confirmed." This reply Exh. 5 was communicated to him on the 24th of June, 1944. The respondent then served notice of this suit on the Provincial Government on the 30th of November, 1944, and instituted the suit thereafter in February, 1945. He asks for a declaration that he was in the selection grade from the 16th of December, 1941, and as a consequential relief he prays for damage to the extent of Rs. 887‑14‑0 which represents the difference between the pay actually drawn by him and the pay of the selection grade, from the 16th of December, 1941, to the 30th of November, 1944, at the rate of Rs. 25 per month, Incidentally he asks for the correction of the gradation list, if necessary to give him the aforesaid reliefs, his case being that due to the incorrectness of this list be was deprived of the emolument of the selection grade. The defence contention is that the Sub‑Assistant Surgeons cannot as a matter of right claim promotion to the selection grade which is awarded to officers of proved ability. The matters which are taken into account in promoting a person to this grade are seniority, good confidential report and efficiency. The suit was dismissed by the trial Court but has been decreed by the Court of appeal below. The defendant has thereupon preferred this second appeal. In view of the fact that the respondent has retired from service since the institution of this suit, Mr. Asir, the learned Assistant Government Pleader, contends that the suit has become infructuous inasmuch as, even assuming that he is entitled to a declaration that he was in the selection grade during the alleged period, he cannot derive any practical benefit : he can not be placed in the selection grade now nor he can recover the arrears of pay by suit. This argument undoubtedly has considerable force, if the position at law is that a public servant cannot by suit recover his arrears of pay. Mr. Asir has relied on the decision in High Commissioners for India and Pakistan v.

1. B

3. Lall (52 C W N 761 (PC)). There is no doubt that that decision fully supports the con tention of Mr. Asir. There I. M. Lall's dismissal was found to be void and inoperative and he was given a declaration to that effect : but the Privy Council set aside the order of remand passed by the Federal Court to assess the arrears of pay. The Privy Council held that a public servant had no right to recover his arrears of pay by suit. But in Suruj Narayan's case (A I R 1949 (PC) 112.), which was decided subsequently, the Privy Council did not interfere with a similar order of remand ; on the other band, their Lordships observed‑

If in accordance with their Lordship's humble advice the declaratory judgment of the Federal Court is restored, it will be open to the respondent to pursue any remedy which flows from that declaratory judgment in the appropriate Court. The remedy which formed the occasion for this observation was the claim for arrears of pay. This is the latest pronouncement of the Privy Council on the question and the view expressed in this last decision does not amount to a disapproval of the view taken by the Federal Court of India in The Punjab Province v. Pandit Tara Chand (52CWN (FR)2.) where it has been held‑

So far as India is concerned the salary of a public servant, once it has become payable, has always been treated as a debt due to him which is liable to attachment in satisfac tion of a decree against him. The provisions of section 60 and Order 21, Rule 48 of the Code of Civil Procedure, 1908, are utterly inconsistent with any notion of a public servant's salary being a matter of the bounty of the Crown. "As servant of the Crown in India dismissed in contra vention of the provisions of section 240 (2) of the Government of India Act, 1935, has a right to maintain a suit for his arrears of pay." In this state of the authorities and having regard to the reasons given in Tara Chand's case (supra), I am of opinion that a public servant has a right to sue for his arrears of pay. The material question, therefore, is whether the respondent is entitled to a declaration that he was in the selection grade during the alleged period. If he was, then he is entitled to a decree for arrears of pay. In approaching this question, it is necessary to point out that the Court can only declare an existing right but cannot create or confer one. It is as clear as anything that as a matter of fact the respondent never occupied a place in the selection grade. In fact, his representation for promotion to that grade was turned down first by the Surgeon‑General and then by the Government. But can it be said that though not in actual fact, in the eyes of law, he was in the selection grade evidently not. It will be noticed that the time‑scale starts at Rs. 60 and rises up to Rs. 175, by annual increments. Within these two termini anofficer is carried by the tide of time from one step to another, subject only to the two efficiency bars. But once the officer has reached the grade of Rs. 175 the time factor ceases to work ; the time‑scale ends. Beyond that lies the selection grade. But the lift to that grade is determined by factors other than time. One such factor of course is that there should be a vacancy. But that is not all, an officer does not automatically pass over to the selection grade as soon as a vacancy opens in that grade. The senior most officer drawing Rs. 175 per month cannot occupy a place in the selection grade unless an appropriate order is passed by the competent authority. The Resolution Exh. 2, by which the time‑scale of pay was introduced with the selection grade as an additional prospect of service, does not make any provision for automatic lift. It does not say that the senior‑most officer occupying the Rs. 175 grade will automatically pass over to the selection grade without anybody's order. There is also no rule laying down any such process ; at least none has been brought to my notice. In actual practice also no such rule appears to have been followed. It is the respondent's own case, and he has adduced evidence to show, that on several occasions junior officers were preferred. It is no doubt his case that this was the result of the incorrectness of the gradation list. It must no doubt be admitted that in the preparation of the gradation list, Rule 113 of the Bengal Audit Manual was not strictly followed. But I find no finding in the judgments of the Courts below nor has any evidence been pointed out to show that in every case the topmost man in the gradation list was promoted to the selection grade. It appears to me that the promotion to the selection grade, is made by selection and the Surgeon‑General is the authority to make it. An officer has no right to occupy the selection grade unless he is selected by the Surgeon‑General. The Court has no say in the matter ; it cannot usurp the function of the Surgeon‑General to say B who is to be and who is not to be or who ought to have been or who ought not to have been selected. There can be no doubt that the respondent was eligible for the selection grade; but the fact is that he was never selected by the Surgeon. General whose judgment alone counts, subject to such revision by the Government as may be provided for. It is immaterial in these circumstances to consider whether the officers who were promoted to the selection grade were better to worse than him, or what matters are taken into account in making the selection. Whatever the matters are, the judgment of the selecting authority is final and cannot be replaced by a judgment of the Court. In these circumstances, it appears to me that the respondent has made out no case that he was in the selection grade from the 16th December, 1941, to the 30th November, 1944, and cannot have any declaration to that effect. The claim for arrears of pay necessarily fails. The other reliefs asked for are obviously of no importance now. The suit, in my opinion, is misconceived. I, therefore, allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. The respondent has succeeded in showing that the gradation list was not maintained in strict conformity with the rule and that he was eligible for con sideration for the selection grade. These matters though not of any practical importance now, were of importance to him at the time of the institution of the suit. Considering this aspect of the matter, I do not like to saddle him with any cost. A. H. Appeal allowed.