Appeal 1236 of 1970
Appeal by Special Leave from the Judgment and Decree dated the 6th November 1968 of the Allahabad High Court in First Appeal No 361 of 1964
Yogeshwar Prasad section K Bagga and section Bagga for the Appellant
section N Prasad and section P Nayar for the Respondent
The Judgment of the Court was delivered by BEG J
The plaintiff appellant s allegations in the suit which comes up by special leave before us may be stated as follows The appellant was appointed a Clerk on 29 7 1925 at Gorakhpur in the Accounts Department of what was then the Bengal North Eastern Railway
In January 1930 he was appointed Assistant Office Superintendent
The Railway was taken over by the State and renamed as Oudh Tirhut Railway 0
T R and subsequently it became the North Eastern Railway
In January 1949 the appellant was appointed officiating Assistant Secretary to the General Manager as a Class II Officer
On 11 5 1949 he was promoted to the post of Office Superintendent
But on that very date he was served with a charge sheet by the Deputy General Manager and called upon to explain within 3 days the use of certain first class passes issued to him
On 14 5 1949 he submitted his explanation and justified the use of these passes by quoting specific rules and similar instances
On 29 6 1949 the General Manager reverted the appellant from the Post of office Superintendent to that of the Assistant Office Superintendent with effect from 1 7 1949 without holding any enquiry at all as required by the Disciplinary and Appeal Rules of the Railway
The appellant s case is that despite his demotion he continued to perform the duties of the Office Superintendent presumably because he was efficient
On 27 7 1949 the appellant filed an appeal to the General Manager with the result that on 29 11 1950 the Deputy General Manager had to withdraw the charges with the remarks since the appellant had used the passes under a genuine and reasonable belief no stigma was attached
Thereupon the appellant applied to the General Manager for formal reinstatement in the post of Office Superintendent and payment of arrears of his salary
Curiously the General Manager while awarding an honorarium of Rs 40 per month for the additional work of Office Superintendent done by the appellant practically upheld the reversion order with the remark that the appellant s guilt was established
Against this order the appellant filed an appeal on 30 7 1952 to the Railway Board through the General Manager which was daily forwarded to the Railway Board on 19 8 1952
On 30th October 1954 the Railway Board sent a letter to the General Manager stating that the question raised by the appellant was not a live issue and therefore there was no reason to interfere with the General Manager s action
On 30 9 1959 the appellant retired at the age of 57 despite his claim that he was entitled to continue up to the age of 60 years
The appellant alleged that he received no intimation about the disposal of his appeal by 487 the Railway Board despite the fact that he went on sending reminders
to the Railway Board
On 15 12 1959 the Railway Board had asked for clarification from him
He had also been assured by the then General and Deputy General Managers in 1961 that his case would  be decided to his satisfaction
Furthermore he alleged that he wrote to the General Manager on 16 3 1962 and again on 22 3 1962 to find out the result of his appeal but he received no answer
Therefore finally he served a notice on 24 9 1962 under Section 80 Civil Procedure Code upon the General Manager North Eastern Railway Gorakhpur and the Union of India
He claimed that Rs 2108804 was due to him as arrears of salary and allowances
He filed his suit on 27 11 62  for a declaration that from 1 7 1949 the date of illegal reversion
up to 30 9 1959 the date of the appellant s retirement he was a Rail way employee on a salary ranging from Rs 450 to Rs 575 per month together with 20 special pay from 10 6 1956 to 30 9 1959 and increased gratuity and that after his retirement he became entitled to the appropriate pension and gratuity allowance
He had also demanded payment of a sum of Rs 19795  the details
of which were given in a schedule after relinquishing Rs 129304 and interest
The defendants  version was  The plaintiff who was an Assistant Office Superintendent from 29 9 1948 was promoted to officiate as
Office Superintendent with effect from 12 7 1948 in the scale of Rs 360 500 with a clear stipulation that the promotion was subject to the plaintiff s selection subsequently and would not give him any claim to the post
It was admitted that the plaintiff was appointed to officiate as Assistant Office Superintendent from 21 1 1949 but it was alleged that during the period of 18 days for which he held this
post upto 7 2 1949 and even after that the plaintiff had illegally utilised certain passes obtained under his signatures
A Selection Board which met on 12 2 1949 for selection to the post of Office Superintendent did not find the plaintiff to be the most suitable candidate
Hence the plaintiff was reverted to the post of Assistant Office Superintendent from 14 2 1949
The plaintiff was again promoted to officiate as Office Superintendent with effect from 11 5 1949 but he was again reverted to his substantive post with effect from 1 7 1949 as a result of the charge sheet against him
The Railway administration had decided to appoint a second Selection Board after canceling the appointment of the first one
The second Selection
Board which met on 11 11 1949 placed the appellant only second in order of merit so that the appellant had to continue as Assistant Office Superintendent
Hence no question of his promotion as Office Superintendent arose
Furthermore it was stated that the post of the Office Superintendent itself was held in abeyance from 1 7 1949 but another post
of Assistant Office Superintendent was created in its place
It was therefore submitted that the plaintiff could never have held a post which was in abeyance
it was asserted that the Plaintiff was given reasonable opportunity for showing cause against the action proposed to be taken against him before his reversion
and that after 1 7 1949 as a result of the representation made by the 488 plaintiff the General Manager gave the plaintiff a personal hearing and also appointed a Committee of three officers to examine the whole case of the plaintiff including alleged withdrawal of the charge against him
The Committee reported to the General Manager that the remark made by the Deputy General Manager that no stigma was attached to the plaintiff was not justified
Nevertheless the General Manager had directed payment of Rs 40 per month for the period from 1 7 1949 to 31 5 1951 for the extra work done by the plaintiff in addition to his duties as Assistant Office Superintendent
The jurisdiction of the Court to question the reversion from a merely officiating post was challenged
Furthermore it was alleged that the plaintiff had
knowledge of the dismissal of his appeal as he was working in the office of the General Manager as Assistant Office Superintendent
The plea of limitation was also raised in defence
The Trial Court while dismissing the suit in toto had held that the suit was maintainable
This finding was upheld by the High Court on the plaintiff s appeal which was allowed only to the extent that Rs 180 was decreed as within time as the suit for the remaining arrears of salary was held barred by Article 102 of of 1908
The Trial Court had denied any declaration to the plaintiff but the High Court had decreed the suit for declaration in the following terms  The suit therefore is also decreed for the declaration that the plaintiff on being superannuated became entitled to get gratuity and pension as admissible under the service rules applicable to the case on the basis that he retired as Office Superintendent in the grade of Rs 3605001 
It would of course now be open to the plaintiff to move the Authorities concerned for gratuity and pension in accordance with the declaratory decree passed by this Court in his favour
As regards the enquiry subsequently held with regard to the plaintiff s grievance the Trial Court held that it could not take the place of fullfledged enquiry to which the appellant was entitled under section 240 cl 3 of the Govt
of India Act and the procedural safeguards in a disciplinary action
It therefore held that the order of demotion passed against the appellant on 29 6 1949 was illegal
The High Court had on the plaintiff s appeal after considering the evidence held  Therefore the order of reversion which had been passed really as a penal measure cannot be held to be valid
The inevitable consequence of this finding would be that plaintiff was and remained legally entitled to hold the post of office Superintendent and as such to receive the salary etc
payable for that post until he retired
In this view of the matter the relief for declaration in the circumstances of the case was redundant and not an essential prerequisite to his claim for recovery of salary etc
attached to that post provided of course the claim was not barred under article 102 of the  489 The Trial Court had held that the order keeping the post of an Office Superintendent in abeyance being administrative in nature could not be questioned in a civil suit
But the High Court held The overall position therefore appears to be that the order of abeyance was not in reality a bona fide administrative order pure and simple but it was a device to obviate the difficulties which would otherwise have been created by the order of reversion itself as in the absence of an order of punishment duly passed the plaintiff would have a right to revert to the post of the Office Superintendent
In the instant case from the evidence on record and the relevant circumstances it clearly appears that the alleged order of abeyance of the post of the Office Superintendent had resulted in definite prejudice and loss to the plaintiff
In the circumstances of the case in our opinion the suit was legally maintainable and the decision of the Court below to the contrary is erroneous
it therefore appears to us that the High Court had taken in view that the action against the appellant being penal and violative of the constitutional protection afforded by Section 2403 Govt
of India Act was void and therefore could be ignored as non est
Similarly the order abolishing the post of Office Superintendent having been passed with an oblique motive was not a bonafide order so that
it could be ignored
Even administrative action to be valid has to be honest and bonafide
On these findings the High Court appears to us to have been justified in giving the declaration it did give
The only question of some difficulty raised before us is whether Article 102 or Article 120 of the of 1908 would apply to the case
After having heard the attractive arguments of Mr Yogeshwar Prasad we have no doubt that a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable from a claim for wages
But our difficulty is that the question appears to us to be no longer open for consideration afresh by us or at any rate it is not advisable to review the authorities of this Court after such a lapse of time when despite the view taken by this Court that Article 102 of the of 1908 was applicable to such cases the of 1963 had been passed repeating the law contained in Articles 102 and 120 of the of 1908 in identical terms without any modification
The Legislature must be presumed to be cognizant of the view of this Court that a claim of the nature before us for arrears of salary falls within the purview of Article 102 of the of 1908
If Parliament which is deemed to be aware of the declaration of law by this Court did not alter the law it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt
If doubts had arisen it was for the Legislature to clear these doubts
When the Legislature has not done so despite the repeal of the of 1908 and the enactment of the of 1963 after the decisions of this Court embodying a possible questionable view we think it is expedient and proper to 490 over rule the submission made on behalf of the appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be reexamined by a larger Bench
This Court in Shri Madhav Laxman Vaikunthe V
The State of Mysore 1 following the case of the Punjab Province V Pandit Tarachand 2 had held that Article 102 of 1908 will apply to such a case
It reiterated this view in Jai Chand Sawhney V Union of India3 and again in State of Andhra Pradesh V Kutubuddin4
Furthermore the finding that the plaintiff had knowledge of the disposal of his appeal by the Railway Board in 1954 is one of fact
Even if this be a finding which is assailable we do not consider it to be baseless
We do not therefore propose to enter into evidence for the purpose of determining the correctness of this finding for ourselves
If this finding is correct as we are assuming it to be a suit filed on 27 11 1962 will be barred by time even if Article 120 of the were to be applied
Six years  period of limitation would have expired long before 1962 even if time were to begin to run as is submitted on behalf of the appellant from the time the appellant became aware of the decision of the Railway Board
The appellant s contention however is that even if suit was barred by time he would get three years more of arrears of salary as within time if Article 120 instead of Article 102 of 1908 was applied and each failure to pay the monthly salary due constituted a fresh cause of action
We cannot accept this view as we have for reasons already given held that article 102 of the Limitation Act 1908 was correctly applied
We think that the High Court was right in treating the order of reversion passed against the petitioner to be void and inoperative or non est The result was that no declaration was needed for the purpose of enforcing a claim which fell within 3 years 
Consequently only the amount which fell within three years of the suit filed could be decreed
So far as the remaining part of the declaration is concerned the amount claimable by reason of it would depend upon the rate at which the plaintiff would have been entitled to draw his salary if he had occupied the post which he should have held when he retired
It has to be therefore determined what would be the arrears of pension and gratuity to which the plaintiff would have been entitled if he had held the post of Office Superintendent to which he was entitled
We have been informed by the learned Counsel for the North Eastern Railway that as the appellant was entitled on the finding of the High Court to hold the post of an Office Superintendent he could draw a salary in the scale from Rs 450 to Rs 575 with effect from 1 7 1959
1 1962 1 SCR p 886 at 894
2  93 108
3 1969 III SCC p 642
4 Civil Appeal No 2289 of 1966 decided on 8 10 1969
491 Before parting with the case we may observe that on the findings of the High Court about the correctness of which we have no doubt the appellant was not treated justly
He was even denied promotion due to an order which was not a bonafide one inasmuch as its object was to deprive the appellant of the rights he would have otherwise enjoyed
It is regrettable that a subordinate Govt
servant should be treated in this manner by his superior officers
We hope that although the claim of the appellant has been found to be barred by limitation the Union of India will consider the equities of the case and see its way to giving such relief to the appellant as we are precluded under the law from granting to him due to the operation of the law of limitation
The result is that we modify the decree passed by the High Court to the extent that we hold that the amount which falls due to be paid to the appellant within three years of the filing of the suit ie within the period of limitation in accordance with the above mentioned statement of the learned Counsel for the North Eastern Railway will be calculated on the correct basis now stated to us by the learned Counsel
To this extent we allow the appeal but we dismiss the rest of the appellant s claim
In the circumstances of the case the parties will bear their own costs throughout
PBR Appeal allowed in part


Summary:
The appellant who was Assistant Office Superintendent was promoted as Office Superintendent but immediately thereafter was reverted after issuing a charge sheet but without holding an enquiry
He however continued to perform the duties of Office Superintendent
A few months later charges against him were withdrawn with the remark that no stigma was attached to him
Thereupon the appellant applied to be reinstated in the post of Office Superintendent and for payment of arrears of his salary
But his reversion order was upheld with the remark that his guilt was established
The appellant retired in 1959 and filed a suit in 1962 claiming arrears of salary and allowances and for a declaration that from the date of reversion to the date of retirement he was a Railway employee on a salary ranging from Rs 400 to 575 and for certain other benefits
The trial court while dismissing the suit in toto had held i that the suit was maintainable but denied any declaration to him and ii that the order of demotion passed against him was illegal
The High Court decreed the suit and held that the suit for arrears of salary except to the extent of Rs 180 was barred by article 102 of the Limitation Act 1908
The High Court further held that the action against the appellant being penal and violative of the constitutional protection afforded by section 2403 of the Government of India Act 1935 was void and therefore could be ignored as non est
489F H On the question i whether article 102 of the Limitation Act would apply to the case and ii whether a declaration was needed for enforcing a claim which fill within time
Allowing the appeal in part
HELD  1 In Shri Madhav Laxman Vaikunthe vs The State of Mysore   which view was reiterated in two later decisions it was held that article 102 of the Limitation Act would apply to a case of this kind
Though a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable from a claim for wages the question is no longer open for consideration afresh
it is not advisable to review the authorities of this Court after such a lapse of time when despite the view taken by this Court that article 102 of the Limitation Act 1908 was applicable to cases of this kind the Limitation Act of 1963 had been passed repeating the law contained in article 102 of the Limitation Act 1908 in identical terms without any modification
The legislature must be presumed to be cognizant of the view of this Court that a claim of the nature as in the instant case falls within the purview of article 102 of the Limitation Act 1908
If Parliament which is deemed to be aware of the declarations of law by this Court did not alter the law it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt
It was for the legislature to clear these doubts
When the legislature has not done so despite the repeal of the Limitation Act 1908 and the enactment 1 of the after the decision of this Court it is inexpedient to reexamine the correctness of the view adopted by this Court in its decisions on the question
489 FH The Punjab Province V Pandit Tarachand  93 108 Jai Chand Sawhney vs Union of India 1969III SCC p 642 and State of Andhra Pradesh vs
Kutubuddincivil Appeal No 2289 of 1966 decided on 8 10 69 referred to
2The High Court was right in treating the order of reversion to be void and inoperative or non est
Therefore no declaration was needed for the purpose of enforcing a claim which fell within three years
Consequently only the amount which fell within 3 years of the suit could be decreed in accordance with the statement of the counsel for the respondent
490F 486