P L D 1961 (W (PLP)

(2) If issue No. 1 is not proved, whether the defendant was competent‑ to recover over‑payments, by way of deductions from the plaintiff's salary?

2. The trial Court found the first issue against the plaintiffs and the second in their favour. As a result of these findings, .the suits were decreed in part, and the District Board was. prohibited from recovering the excess payments made to the respondents. The District Board did not challenge the finding of the trial Court on the second issue by finding an appeal or cross‑objections in the appellate Court, but the two respond ents challenged the decision of the trial Court on the first issue. The learned Senior Civil Judge, Gujranwala, by means of two separate orders passed on the 13th October 1958, accepted the appeals reversed the finding of the trial Court on the first issue, and decreed the plaintiff's suit, as prayed for. The District Board has now come up to this Court, in second appeal, and prays that the judgments and decrees of the lower Appellate Court be set aside.

3. In the plaint the validity of the Deputy Commissioner's order had been challenged, but the issue framed by the Court did not refer to that matter and only related to the validity of the resolution passed by the District Board on the 5th September, 1957. While dealing with this issue, the lower Appellate Court considered the question of the validity of the Deputy Commis sioner's order, without framing any new issue, as the resolution ofthe District Board was passed in consequence of the directions contained in the aforesaid order. The lower appellate Court did not go into the question as to whether the District Board was entitled to recover over‑payments said to have been made to the respondents, because the finding on the second issue, which was against the District Board, was not challenged. That matter, therefore, cannot be gone into in the present appeal, and the only point requiring determination is whether the decision of the lower appellate Court on the first issue is correct or not.

4. Section 27 of the District Boards Act, under which the Deputy Commissioner's order purports to have been passed, is worded as follows :‑ "Subject to the provisions of this Act and to any rules which may be made under this Act in' this behalf, every District Board may employ and pay such officers and servants as may be necessary and proper for the efficient execution of its duties "Provided that if, at any time, in the opinion of the Deputy Commissioner : (a) the number of persons employed by a Board under this section, or the remuneration assigned by the Board to those persons, or to any of them, is excessive, or (b) any such person is unfit for his employment, the Board shall, on the requirement of the Deputy Commissioner, reduce the number, or remuneration of those persons, or, as the case may be, dismiss the unfit person : *********************

5. The view of the learned Senior Civil Judge was that the District Board could fix remuneration of such of its employees, under section 27 of the Act, whose pay is not regulated by any rules and if the pay of any employee was regulated by the rules, then neither the District Board could act under section 27, nor the Deputy Commissioner could reduce the pay of such employees in exercise of the powers conferred by this section. The Court also came to the conclusion that the pay of these two respondents could neither be enhanced, nor reduced, either by the District Board or by the Deputy Commissioner, in pursuance of the powers conferred by section 27 of the Act. The contention raised by the respondents that protection was afforded to them by section 240 of the Government of India Act, 1935, in the matter of issue of a "show‑cause" notice, was repelled, and it was held that the District Board was under no obligation to serve such a notice on the respondents before reducing their salaries.

6. In my opinion, the view of the case taken by the learned Senior Civil Judge is not correct. A reference to the provisions of section 27 of the Act, reproduced above, would show that in the matter of appointment of employees the power of the District Board is subject to the provisions of the Act and of any rule made there under, but the Deputy Commissioner's power is not so controlled. This means that if the District Board has made an appointment, which is not in accordance with the relevant rules, its action would not have any validity, and if the appoint ment is in accordance with the relevant rules the order of the District Board would be a valid one, but still the Deputy Com missioner has the power to reduce the number, or remuneration,) of such an employee. If this had not been so, the supervisory power conferred on the Deputy Commissioner by section 27 would become meaningless. Under section 20 (1) (c) of the District Boards Act, the Board is empowered to establish schools and under section 55 (1) (i) of the Act the Provincial Government is empowered to make rules for the employment, payment, suspen sion and removal of officers and servants under section

27. In pursuance of the powers so conferred, certain rules have beer framed by the Provincial Government. The relevant rule: provide that 80 % of the posts of teachers are to be under the ordinary scale of pay, namely, Rs. 60‑4‑100/105‑7‑140 and 15 of such posts are to be in the selection grade of Rs. 140‑8‑220 Tire resolutions of the District Board granting two advance increments to the respondents and promoting them to the selection grade have not been shown to be in valuation of the relevant rules and, therefore, the validity of its action could not be challenged on the ground that the same came into conflict with the relevant rules. In spite of the fact that the resolutions, of the Board granting advance increments and making promotion to the selection grade were not invalid, the Deputy Commissioner bad the power to direct that the remuneration of these two promoted employees be reduced and, as such, his action could not be challenged by the employees.

7. The learned counsel for the appellant pointed out that this very question came up for consideration recently before a Division Bench of this Court and it was held that the Deputy Commissioner's power, in this respect, is not controlled by the relevant rules. The case in question is Liaqat Husain v. District Board, Gujranwala (Writ Petition No. 886 of 1957), decided on the 26th February 1959. The facts of this case were that the. petitioner, Liaqat Husain, was employed as a teacher in the Municipal Board High School, Wazirabad, in the grade of Rs. 110‑7‑180 and in the month of October 1955 was drawing a salary of Rs. 131 P. M. He applied for appointment, as a teacher, in .the District Board, Gujranwala, and, on the recommendation of the Inspector of Schools, he was appointed in the grade of Rs. 110‑7‑

180. He‑was, however, allowed the maximum salary of the grade, namely, Rs. 180 per mensem. The appointment was on probation for a period of one year and that period having expired, the petitioner was confirmed with effect from the 6th November 1956. The Deputy Commissioner, in pursuance of the powers conferred by section 27 of the District Boards Act, by means of an order dated the 20th April 1957, directed that the remuneration payable to the petitioner be reduced from Rs. 180 per mensem to Rs. 100 per mensem with effect from the date of his appointment. Feeling aggrieved by that order, he filed a writ petition in this Court. The Court, after dealing with various other points which had been raised, came to the conclusion that the rules referred to in subsection (1) of section 27 of the Act were only in regard to employment and pay of officers and servants of the Board and that those rules could have no reference to what was contained in the proviso to section 27 and were, obviously, not contemplated to control and power conferred on the Deputy Commissioner. On this view of the case, the Court refused to grant the writ asked for and dismissed the petition, though the Court was of the opinion that the order of the Deputy Commissioner, reducing the pay of the petitioner, from Rs. 180 per mensem to Rs. 100 per mensem, had hit him very hard and could not be supported on any ground of equity or necessity.

8. Keeping in mind the views expressed by this Court in the case referred to above and the language of the proviso to section 27 of the Act, I am of opinion that the power of the Deputy Commissioner to reduce the remuneration of an employee of the Board is not controlled by the relevant rules, and hence the Deputy Commissioner's order, reducing the remuneration of the respondents, and the resolution of the District Board passed thereon, were in accordance with law. In view of the finding given above, I accept both the appeals, set aside the judgments and decrees of the lower appellate Court, and restore those of the trial Court. In the peculiar circumstances of the case, however, I make no order as to costs. K. B. A. Appeal accepted.