Case: The Accountant General, Bihar And Another Vs. N. Bakshi

2. After passing the competitive examination held in London in August 1924 the respondent N. Bakshi was admitted in November, 1924 to the Indian Civil Service and was, after his arrival in India, posted in the Province of Bihar. He continued to serve in the State of Bihar after independence.3. On February 3, 1956, the respondent enquired of the Accountant General of Bihar about the number of passages to which he and the members of his family were entitled under the Superior Civil Services (Revision of Pay and Pension) Rules, 1924--hereinafter called the Statutory Rules. The Accountant General, by letter dated March 6, 1956, stated that ? 284-6s. stood in the respondents credit ? 841-3-5d. stood in the account of his wife and ? 138 stood credited in the separate accounts of each of his four children. The respondent then arranged to travel to the United Kingdom and on June 20, 1956 obtained "passage certificates" from the Accountant General, Bihar. On July 12, 1956, the respondent was informed that the Govt. of India were of the opinion that the passage benefits admissible to officers of Indian domicile under the said Statutory Rules, were inconsistent with the existing circumstances and it was decided with effect from the date of issue of the order that the benefits shall cease and the passage accounts of Indian Officers of the former Secretary Of State Services shall be closed and passage credit" left over will lapse to the Government.4. On February 5, 1957 the Government of India framed, in exercise of the powers conferred by sub-s. (1) of S. 8 of the All India Services Act, 61 of 1951, the All India Services (Overseas Pay, Passage and Leave Salary) Rules, 1957. By cl. 3 of the Rules passage benefits provided by the statutory Rules ceased with retrospective effect from July 12, 1956 to apply to the members of the Indian Civil Service. The appellant protested against the cancellation of the passage benefits for himself and the members of his family. The Government of India waived the original order of July 12, 1956 in favour of the respondent and ordered that he be granted passage benefit for himself but declined to relax the order in favour of the wife and children of the respondent. The respondent accompanied by his wife and children proceeded to the United Kingdom as originally arranged and on his return filed a petition under Art. 226 of the Constitution for a writ in the nature of mandamus against the Accountant General, Bihar commanding him to pay the prescribed passage money in, respect of the respondents wife and children out of the amounts which stood to their credit in the General Passage Fund Account and to issue appropriate direction, order or writ in that behalf. This petition was granted by the High Court and a writ of mandamus as prayed was issued. The Accountant General and the Union of India have appealed to this court against the order with certificate of fitness granted by the High Court.

Court's reasoning:
The expression "remuneration" was defined in S. 19 (4) of that Act as inclusive of leave pay, allowances and the cost of any privileges or facilities provided in kind. By Art. 314 of the Constitution, persons who were appointed by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India and continued on and after the commencement of the Constitution to serve under the Government of India or of a State were to receive from the Government of India and the Government of the State which they were from time to time Serving, the same conditions of service as respects remuneration leave and pension which they were entitled to immediately before such commencement. The Parliament of India enacted the All India Services Act, 61 of 1951, to regulate the recruitment and the conditions of service of persons appointed, to the all India Services common to the Union and the States, and by S. 3 of that Act the Central Government was authorised to make rules for the regulation of recruitment, and the conditions of service of persons appointed to the all India Service. By S. 4 it was provided that all rules in force immediately before the commencement of the Act and applicable to an All-India service were to continue to be in force and were to be deemed to be rules made under the Act. On September 8, 1954, the Central Government framed rules called the Indian Administrative Services Recruiting Rules and by Rule 2(d) the members of the Indian Civil Service who continued to serve off and after the commencement of the Constitution were to be regarded for the purpose of the rules as members of the Indian Administrative Service.There is no definition of remuneration in the Constitution, but that is not a ground for holding that the expression is used in any limited sense as merelyexpression remuneration appears to have been used in the Constitution in this wide connotation. As already observed, the right to passage was originally made a part of the salary, but under the Rules framed in 1926, the provision for setting apart a fixed sum of money as salary out of the General Passage Fund was altered and passages were credited to the account of members of Civil Services and debited as and when they were availed of out of the general Revenue of the State. This alteration was made merely for administrative convenience and did not alter the character of the benefit. Under the Rules of 1924, the provision for passage was part of the remuneration and it continued to be such even after the amendment of the Rules in 1926.14. The right to passage benefits was statutory, and was under the Indian Independence Act in the nature of an allowance, or in any event privilege or facility paid in kind. It was expressly made part of the remuneration earned by the members of the Indian Civil Service. The conditions of service as to remuneration having been guaranteed, the right to this benefit remained guaranteed to those members of the Indian Civil Service who were entitled to it before the Constitution. This guarantee which was continued in force even after the commencement of the Constitution was for the first time by rules made in June 1957 by retrospective amendment of the Statutory Rules from July 12, 1956 sought to be cancelled. But the Central Government in exercise of Rule making power was incompetent to destroy or cancel a constitutional guarantee.The High Court was, therefore, in our judgment, right in holding that rule 3 of the All India Services ((Overseas Pay, Passage and Leave Salary) Rules, 1957, was ultra vires.