State of Bihar vs Abdul Majid

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 70 of 1952

Decision Date: 11 February, 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Ghulam Hasan

In this case the Supreme Court of India delivered its judgment on 11 February 1954 concerning an appeal filed by the State of Bihar against a decree of the Patna High Court. The petition was titled State of Bihar versus Abdul Majid, and the bench that heard the matter comprised Chief Justice Mehar Chand Mahajan, Justice B.K. Mukherjea, Justice Vivian Bose and Justice Ghulam Hasan. The appellant was the State of Bihar and the respondent was Abdul Majid. The judgment was reported in the 1954 volumes of the All India Reporter (AIR 245) and the Supreme Court Reports (SCR 786), and it has been cited in several subsequent reports, including D 1954 SC 493, F 1955 SC 800, RF 1958 SC 36, RF 1958 SC 325, RF 1961 SC 751, RF 1962 SC 8, RF 1962 SC 933, R 1964 SC 72, R 1964 SC 600, R 1969 SC 1302, R 1977 SC 1466, F 1985 SC 1416 and R 1991 SC 2176. The appeal, Civil Appeal No. 70 of 1952, was taken by special leave from a judgment and decree dated 5 May 1949 of the Patna High Court, which had been rendered by Justices Manohar Lall and Mahabir Prasad. The State of Bihar was represented by the Solicitor-General for India, C.K. Daphtary, assisted by G.N. Joshi and Porus A. Mehta, while the respondent was represented by counsel P. Sinha with Nuruddin Ahmed. The High Court decree had awarded the respondent arrears of salary from 30 July 1940 up to the date the suit was instituted. The facts that were not in dispute were that the respondent had been appointed Sub-Inspector of Police by the Inspector-General of Police, Bihar and Orissa, in January 1920. The Court examined the question whether the rule of English law that a civil servant could not maintain a suit against the State for recovery of salary arrears applied in India. The Court held that this rule does not prevail in India because it has been displaced by statutory provisions, particularly Section 240 of the Government of India Act, 1935, which imposes mandatory restrictions on the exercise of the Crown’s pleasure. The Court explained that any breach of these statutory restrictions renders the matter justiciable, entitling the aggrieved party to appropriate relief under the ordinary law and the Code of Civil Procedure. The Court affirmed the principle that government servants are entitled to the same relief as any other person, citing Punjab Province v. Pandit Tara Chand as approved authority and distinguishing High Commissioner of India and Pakistan v. I.M. Lall. The judgment was delivered by Chief Justice Mahajan and formed the basis for the Court’s directions in this appeal.

The respondent was appointed as a Sub-Inspector of Police in the Provinces of Bihar and Orissa in January 1920. In 1937 departmental proceedings were initiated against him, and the inquiry found him guilty of cowardice as well as of failing to prepare required search lists. As a consequence he was demoted for a period of ten years. He appealed the findings, and the Deputy Inspector-General of Police, while confirming his guilt for cowardice, acquitted him of the charge relating to the failure to prepare search lists.

On 23 July 1940 the Deputy Inspector-General, still holding the respondent responsible for cowardice, issued an order dismissing him from service; the order was communicated to the respondent on 29 July 1940. Subsequent appeals to the Inspector-General of Police and to the Governor of Bihar were also rejected. Feeling aggrieved by the departmental action, the respondent instituted a suit before an additional subordinate judge, seeking a declaration that the dismissal order was illegal and void and that he should be considered to have remained in office. In the same suit he claimed a monetary sum of Rs 4,241 as arrears of salary for the period from 30 July 1940 up to the date the suit was filed.

The State of Bihar opposed the claim. It argued that the respondent served at the pleasure of the Crown and therefore could not question the grounds or reasons for his dismissal. Moreover, the State contended that the respondent had been reinstated in service from 30 July 1940, rendering the dismissal order ineffective and consequently making the suit infructuous. The additional subordinate judge, by judgment dated 2 February 1945, dismissed the suit on the basis that, because the Government had reinstated the respondent, he no longer possessed a cause of action. Regarding the arrears of salary, the judge held that any claim could be pursued only in accordance with the procedure prescribed in Rule 95 of Section 4 of Chapter IV of the Bihar and Orissa Service Code. This finding was affirmed on appeal by an additional district judge.

Upon further appeal, the High Court set aside the lower courts’ decisions and decreed that the respondent was entitled to arrears of salary in the amount of Rs 3,099-12-0. The High Court observed that Rule 95 of the Bihar and Orissa Service Code did not apply because, in its view, the respondent had never been dismissed within the meaning of that rule. The Court also held that the plaintiff could maintain a suit for arrears of pay, relying on the Federal Court’s decision in the case of Tara Chand Pandit, a decision whose correctness was not altered by subsequent Privy Council judgments in the cases of M. Lall and Suraj Narain Anand. The appeal before this Court therefore raised two principal questions: (1) whether the High Court was correct in holding that Rule 95 was inapplicable to the facts of this case; and (2) whether a civil servant may rightfully sue for arrears of salary in a civil court.

Rule 95 of the Bihar and Orissa Service Code states that when a suspension imposed on a Government servant as a penalty for misconduct is, on reconsideration or on appeal, found to be unjustifiable or only partially justifiable, or when a servant who has been dismissed, removed, or suspended pending an enquiry into alleged misconduct is reinstated, the revising or appellate authority may, for the period of the servant’s absence from duty, grant either the full pay the servant would have earned had he not been dismissed, removed or suspended together with any allowance previously received, if the servant is honourably acquitted, or such proportion of pay and allowances as the authority may direct in other circumstances. The purpose of these provisions is to give an appellate or revising authority the power to order the reliefs described when it makes a reinstatement order. The Court observed that these provisions did not apply to the facts of the present case. The respondent was dismissed by the Deputy Inspector-General of Police although his appointment had been made by the Inspector-General of Police. This dismissal contravened the provisions of section 240(3) of the Government of India Act, 1935, which forbids a subordinate authority from dismissing a person appointed by a higher authority. Nevertheless, the respondent’s appeal to the Inspector-General of Police was rejected, and his subsequent petition to the State Government met the same result, so that no revising or appellate authority ever reinstated him by order. It was only after the suit had been filed that the Government reinstated the respondent, and this reinstatement was not the result of any revisional or appellate proceeding. Consequently, the enabling provisions of Rule 95 could not be said to apply to the plaintiff’s case. The events that followed the filing of the suit were entirely outside the contemplation of Rule 95. After the suit was instituted, the Chief Secretary of the Government of Bihar, recognizing the untenability of the Government’s position, wrote to the Inspector-General of Police that the dismissal order should be treated as null and void and that the respondent should be reinstated. The reinstatement, effected by a telegram dated 30 December 1943, was therefore not carried out by any of the authorities named in Rule 95 exercising appellate or revisional jurisdiction, but was instead prompted by the defendant in the suit who realised that the dismissal order could not be sustained. For these reasons, the Court agreed with the High Court’s view that Rule 95 had no application to the facts and circumstances of this case and that its provisions did not bar the plaintiff’s action.

The Court observed that the provisions of rule ninety-five did not act as a prohibition to the plaintiff’s suit. It next considered the argument raised by the Solicitor-General that a civil-court action brought by a public servant against the State for the recovery of salary arrears could not be entertained. The Court found that contention to be without merit. It held that the issue had already been settled by the Federal Court in the case of Tara Chand Pandit, a decision with which the Court agreed. In that earlier case the Attorney-General had vigorously advanced every point that the Solicitor-General pleaded before the present Court, and the Federal Court had examined those points in great detail. The Federal Court ruled that the Crown’s prerogative power to dismiss its servants at will, which had been given statutory form by subsection (1) of section 240 of the Government of India Act 1935, could be exercised only within the limits set by the remaining subsections of that section. Consequently, whenever any of those statutory limits was breached, the affected public servant acquired a right to sue the Crown for appropriate relief, and there was no justification for limiting such relief merely to a declaratory judgment.

The Court further noted that the Federal Court also held that, notwithstanding the Crown’s prerogative to dismiss a servant at will, a second purported prerogative could not be invoked to bar a servant from suing the Crown for arrears of pay that had already been earned and become due. Although section 2 of the Constitution Act preserved certain Crown prerogatives in India, the Federal Court presumed that the specific prerogative denying a Crown servant the right to recover earned salary had been abandoned in India by the provisions of the Code of Civil Procedure. Accordingly, it was untenable to accept the proposition that a creditor of a Crown servant could compel the Crown to pay a substantial portion of the servant’s salary under a decree while the servant himself had no comparable right. In a separate but agreeing judgment, Justice Kania rejected the Attorney-General’s position, remarking that the comparison between English and Indian law on this point required further examination, especially in light of the provisions of the Civil Procedure Code. He pointed out that section 60(1) of that Code, together with clauses (i) and (j) of the proviso and explanation (2), makes all property belonging to a judgment debtor liable to attachment, subject only to limited exemptions regarding what may not be attached and sold.

In this matter the Court observed that the provisions of the Code of Civil Procedure relating to the salary of a public servant were not considered in the decision of Lucas v. Lucas and High Commissioner for India because that case was decided in England, where the 1908 Code of Civil Procedure was inapplicable. The Court noted that section 60 of the Code of Civil Procedure expressly grants a creditor the right to attach the salary of a servant of the Crown, and that this proposition was not open to dispute. The Court explained that if the appellant’s contention were accepted, the consequence would be that a civil servant would be unable to recover money in an action against the Crown, yet the servant’s creditor could recover the same amount through execution of a decree against the civil servant. The Court pointed out that this right of the creditor to obtain payment in that manner had been recognised in numerous decisions of every High Court.

The Court further remarked that similar provisions existed in the earlier Civil Procedure Code of 1882. By virtue of section 292 of the Constitution Act, the Court held that the Code of Civil Procedure, 1908, remained operative despite the repeal of the Government of India Act of 1915. The Court then asked whether the Imperial Parliament, in enacting section 240 and being aware of the provisions of section 60, could have intended to give this privilege to a creditor while denying it to the officer himself. The Court concluded that to accept such a view would require an unreasonable and artificial stretching of the language of section 240 of the Constitution Act.

Moreover, the Court observed that explanation (2) to section 60 defined the term “salary”. In the proviso to section 60, clause (i) employed the word “salary” with reference to both private employees and Government servants. The Court explained that for a private employee the term “salary” denotes an enforceable right to receive the periodic payments described in the explanation, and it is not used in the sense of a bounty. Consequently, it would be improper to assign a different meaning to the same word when it is applied to a civil servant under the Crown within the same clause. From this the Court inferred that the Imperial Parliament had not embraced the principle that the Crown was exempt from the obligation to pay a servant’s salary for the period of his service, a principle that was sometimes said to apply to British India as part of the doctrine that service under the Crown was at His Majesty’s pleasure.

The learned Solicitor-General contended that the decision in Tara Chand Pandit’s case was no longer good law, that it should be considered dissented from and overruled by the Privy Council’s decision in I. M. Lall’s case, and that, in any event, the view expressed in the latter decision ought to be preferred to that expressed in Tara Chand Pandit’s case. The Court was unable to uphold this contention. The Court noted that, during the arguments in Lall’s case, the attention of the Privy Council judges had not been drawn to the decision of the Federal Court in Tara Chand Pandit’s case because the point was not directly involved in that proceeding. The Court therefore concluded that the earlier decision remained relevant for the issues presently before it.

The Court observed that the Federal Court had not considered the decision of the Federal Court in Tara Chand Pandit’s case because that particular point was not directly raised before it. In the Tara Chand Pandit proceeding the plaintiff had not asserted any claim for arrears of his salary. Instead, the plaintiff had instituted suit solely for a simple declaration that the order removing him from his position was illegal and that, consequently, he remained a member of the Indian Civil Service. The High Court granted this declaration. On appeal, the Federal Court replaced the High Court’s declaration with a new declaration stating that the plaintiff had been wrongfully dismissed. The Federal Court then remitted the case back to the High Court and directed the latter to take whatever action it deemed appropriate with respect to any application by the plaintiff for leave to amend the pleadings in order to seek damages.

The matter subsequently reached the Privy Council on appeal. The Privy Council altered both the decree and the order issued by the Federal Court. The Privy Council held that, in its opinion, the declaration should be varied so as to declare that the alleged dismissal of the respondent on 10 August 1940 was void and ineffective, and that the respondent continued to be a member of the Indian Civil Service as of the date the suit was filed, namely 20 June 1942. The High Commissioner for India also appealed the Federal Court’s order that the case be remitted to the High Court for amendment of the plaint. The plaintiff did not seek to maintain the Federal Court’s remand order before the Privy Council, as recorded in the citation (1) [1947] F.C.R. 89 (2) 75 I.A. 225. Nevertheless, the plaintiff contended that he was entitled to recover, within the same suit, the arrears of his pay that accrued from the date of the purported dismissal up to the date of the action, even though such a claim for arrears had never been part of the relief he originally sought.

The Privy Council rejected this additional claim. Their Lordships explained that no tortious action could be brought against the Crown and that any such claim must be founded either on a contractual basis or on a statutory provision. The Privy Council endorsed the judgment of Lord Blackburn in the Scottish case of Mulvenna v The Admiralty (1) [1926] S.C. 842. Lord Blackburn, after reviewing a range of authorities, had articulated the rule that the authorities dealt only with the Crown’s power to dismiss a public servant, but they nevertheless established conclusively certain important principles. First, the terms of service of any public servant were subject to qualifications imposed by public policy, irrespective of whether the servant belonged to a naval, military, or civil service, and irrespective of the rank or position held. It was sufficient that the individual was a public servant and that public policy, for any reason, required such qualification. The second principle was that these qualifications were to be implied into the engagement of a public servant, whether or not they were expressly mentioned at the time of the engagement.

The Court noted that an implied term concerning the engagement of a public servant is to be read into every such engagement, irrespective of whether the term was expressly mentioned at the time the engagement was created. In the Court’s view, the authorities cited by Lord Blackburn support the conclusion that a public-policy rule, which has been applied to members of the military, prevents those servants from suing the Crown for remuneration on the basis that their only claim is a grant of the Crown rather than a contractual debt. The Court held that the same public-policy rule must extend to all public servants. Consequently, this qualification must be read as an implied condition in every contract between the Crown and a public servant, producing the effect that, under the terms of their contract, a public servant possesses no right to enforce his salary in a civil court of justice; the only remedy available under the contract is an appeal of an official or political nature. The observations made in the Scottish case of Mulvenna v. The Admiralty could not have been expressed if Scottish law contained provisions comparable to the various sections of the Code of Civil Procedure referred to by the Federal Court in the Tara Chand Pandit case. The Court further observed that a similar view had been adopted by Pilcher J. in the case of Lucas v. Lucas and the High Commissioner for India, where the issue before the court was whether the overseas sterling pay of an Indian civil servant constituted a debt within the meaning of rule 1 of Order XLV of the Rules of the Supreme Court and therefore could be attached to satisfy an order for payment of alimony. The substantive question in that case was whether the whole or any part of the salary of a member of the Indian Civil Service could be subject to attachment in England to satisfy a judgment debt. It appeared that the learned Judge was not directed to consider section 60 and other relevant provisions of the Code of Civil Procedure, and instead applied Lord Blackburn’s dictum from Mulvenna to the Indian civil servant’s situation. Because the application was made in England, where the Civil Procedure Code does not apply, those statutory provisions were not taken into account. Accordingly, the Court expressed the opinion that the rule laid down by the Privy Council in M. Lall’s case, having been formulated without reference to the relevant Code of Civil Procedure provisions and without regard to the reasoning of the Federal Court in the Tara Chand Pandit case, cannot be treated as the final authority on the matter, especially since the issue was not directly raised in the suit. The Court affirmed that it is not bound by the decision rendered in Tara Chand Pandit’s case, nor by the Privy Council’s decision in I. M. Lall’s case.

In reviewing the authorities, the Court considered the judgments in Chand Pandit’s case (2) and the decision of the Privy Council in I. M. Lall’s case (1). The cited authorities also included the reports [1926] S.C. 843 (1), [1943] P. 68 (3), [1947] F.C.R. 89 (2) and 75 I.A. 225 (4). After examining the reasoning in these two decisions, the Court concluded that the English common-law rule which prevents a civil servant from suing the State or the Crown to recover arrears of salary does not apply in India. The Court observed that this rule has been expressly displaced by the statutory provisions governing civil service matters in India, and therefore cannot be invoked in the present context.

The learned Solicitor-General further relied on the Federal Court’s decision in Suraj Norgin Anand v. North West Frontier Province (2). In that case, the plaintiff, Suraj Narain, had been appointed as a Sub-Inspector of Police in the North West Frontier Province by the Inspector-General of Police of that Province. He was later dismissed by the Deputy Inspector-General of Police. Unable to obtain relief through departmental channels, the plaintiff instituted a suit before the Court of the Senior Subordinate Judge at Peshawar. The subordinate judge dismissed the suit as unsustainable, and the Court of the Judicial Commissioner upheld that dismissal. The Federal Court, however, held that the lower courts were not justified in dismissing the suit and that the plaintiff was entitled to a declaration that the dismissal order was void. Accordingly, the Federal Court set aside the decree of the Judicial Commissioner, remitted the case, and ordered that a declaration to that effect replace the appealed decree, with any further directions as may be required. The Province appealed this judgment to the Privy Council. Initially, the Board allowed the province’s appeal, reversing the Federal Court’s decision, on the basis that the North West Frontier Province Police Rules 1937 had become operative before 25 April 1938, the date of the plaintiff’s dismissal, and that Rule 16(1) was a valid rule made under the authority of section 243 of the Government of India Act 1935, as noted in 75 I.A. 225 and [1941] F.C.R. 37. Consequently, the Board held the plaintiff’s suit to be rightly dismissed. Subsequently, the plaintiff petitioned the Board to reconsider, arguing that the Police Rules 1937 were actually printed and published on 29 April 1938, i.e., four days after his dismissal. Upon hearing further arguments, the Board accepted this allegation, applied the reasoning of its earlier judgment, reversed its former order, and restored the Federal Court’s judgment, declaring the plaintiff’s dismissal void and inoperative.

The Privy Council referred to section 60 of the Code of Civil Procedure and to the Federal Court’s decision in Tara Chand Pandit’s case (1). It also noted that, following the remand of the case to the Judicial Commissioner by the Federal Court order dated 4 December 1941, the respondent had obtained a decree for payment of Rs 2,283 against the appellant for arrears of pay from the date of his dismissal up to the filing of the suit. When the appeal was placed before the Board for further hearing on 6 August 1948, the Board’s members caused a letter to be sent to the solicitor for the appellant, informing him that the Board now proposed, humbly, to advise His Majesty that the appeal should be dismissed and that the order as to costs would not be altered. The letter explained that, if this advice were made and accepted by His Majesty, the declaratory judgment of the Federal Court would remain in force. It further referred to the award of Rs 2,283 to the respondent by the Judicial Commissioner, which, according to counsel for the appellant, could be challenged, and asked whether the appellant wished the opportunity to persuade the Board that the point was open for argument and to be heard on it. By direction of the Board, a copy of this letter was also sent to the respondent.

An intimation was later received by the Privy Council that the appellant did not wish to present any further arguments. The respondent also indicated that he did not desire an opportunity to argue that he should now be awarded arrears of pay from the date the suit was instituted onward. In view of these positions, the Board declined to consider the matter further and advised His Majesty that the declaratory judgment of the Federal Court should be restored. The Board observed that the respondent could pursue any remedy that flowed from that declaratory judgment in an appropriate court. The judgment concluded with these observations: “Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs 2,283 which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay. It is unnecessary, owing to the very proper attitude of the appellant, to express any view as to the former question, and the latter question does not arise in this appeal which is from the decision of the Federal Court. If that decision is affirmed the respondent who did not himself enter an appeal, cannot now ask for anything more.” Thus, the Board explicitly declined to give any opinion on whether the respondent was entitled as of right to the amount awarded by the Judicial Commissioner.

In the matter before the Court, the issue arose whether the respondent could recover arrears of salary that had been awarded to him by the Judicial Commissioner, even though the Court had been alerted to the Federal Court’s decision in Tara Chand Pandit’s case. The Court observed that the Federal Court decision could not be said to endorse the position advanced by the Solicitor-General. The Court further noted that, despite the earlier judgment in M. Lall’s case, the judgment delivered on 4 November 1948, which came after the decision in M. Lall’s case, did not reaffirm the propositions laid down in that earlier case and instead refrained from expressing any opinion on the point.

It was submitted to the Court that the proper interpretation of a statutory provision stating that an office is held “at pleasure” is that the phrase means exactly that – the office is held at pleasure – and that no rules or regulations may alter or modify this meaning. The submission further contended that section 60 of the Code of Civil Procedure, which had been enacted by a subordinate legislature, could not be used to interpret an Act of a superior legislature. Another argument advanced was that the words “holds office during His Majesty’s pleasure” could not be ignored and should be given the meaning assigned to them by the Privy Council in M. Lall’s case.

The Court held that these suggestions rested on a misunderstanding of the scope of the expression “holds office at the pleasure of the Crown.” The Court explained that the expression relates solely to the tenure of a civil servant’s office and does not imply that the civil servant serves the Crown gratuitously or that the salary constitutes a bounty. Consequently, the expression has no bearing on the question of whether an action may be brought to recover arrears of salary against the Crown. The Court pointed out that the two rules in question arise from different sources and operate in distinct fields.

The Court traced the rule that a civil servant holds office at the pleasure of the Crown to the Latin phrase “durante bene placito,” meaning that, unless a statute provides otherwise, the tenure of a civil servant may be terminated at any time without cause. The Court emphasized that even where a special contract exists with a civil servant, the Crown is not bound by it. In effect, civil servants may be dismissed without notice and have no right to claim damages for wrongful dismissal. The Court referred to authorities such as Fraser’s Constitutional Law, page 126; Chandler’s Constitutional Law, page 186; Shenton v. Smith; and Dunn v. The Queen for support. Finally, the Court observed that this rule of English law has not been fully incorporated into section 240, which itself imposes certain restrictions and limitations on the exercise of the Crown’s pleasure.

The statutory provisions must be given effect, as they are expressed to be imperative and mandatory by the legislature and therefore cannot be ignored by the administration. Consequently, whenever the Government or the Crown breaches the statutory restrictions, the matter becomes justiciable and the aggrieved party may seek appropriate relief from the court. The judgment earlier observed that there is no authority to limit the relief solely to a declaration, and the court may grant broader remedies where necessary. Thus, to the extent that the statutory scheme departs from the traditional rule that government servants hold office during pleasure, those servants acquire the same right to relief as any other person under ordinary law. Accordingly, any such relief must be governed by the procedures laid down in the Code of Civil Procedure. Section 292 of the Government of India Act, 1935, provides that the law existing in British India immediately before the Act’s commencement shall continue in force until altered, repealed, or amended by a competent legislature. Sections 100 to 104 of the same Act confer legislative powers upon the various legislatures established in the country. Item four of the concurrent list in the Seventh Schedule states: “Civil Procedure and all matters included in the Code of Civil Procedure, at the date of the passing of this Act.” Therefore it is that the Indian legislatures, by virtue of the Government of India Act, 1935, were empowered to regulate aspects of actions against the Crown and to prescribe the relief such actions may invoke. These provisions of the Government of India Act, 1935, stand independently of section 240. Consequently there is no conflict in holding that section 60 of the Code of Civil Procedure, which carries the sanction of the 1935 Act, does not rank below the rule laid down in section 240. The English law rule that the Crown could not be sued by a civil servant for money, salary, or compensation derives from the feudal principle that a sovereign could not be sued by its vassals. Accordingly, the sovereign’s courts were deemed unable to entertain actions against the Crown. From this theory English common-law jurists formulated two propositions: first, that the King can do no wrong; second, that a matter of procedure prevents action from being brought in the King’s courts against the Crown. In that situation, the aggrieved civil servant could only seek redress by filing a petition of right, which required prior permission from the Crown. Such permission was granted through a fiat justitia issued by the Crown. In practice the Crown rarely refused a petition where the claimant possessed a legitimate claim, making the procedural disadvantage more theoretical than substantial. Petitions of right and other special forms of English procedure applied exclusively to actions against the Crown.

The Crown Proceedings Act of 1947 eliminated the old rule that actions by or against the Crown required a special sanction. Under that statute, any future claim against the Crown could be enforced as a matter of right, without needing the royal fiat. Moreover, the Act provided that such claims should proceed by the ordinary rules of civil procedure, applying the procedural regulations of either the High Court or the County Court, depending on the nature and value of the case. In England, before the 1947 reform, arrears of salary were actually recovered through the antiquated mechanism of a petition of right. The case cited as Bush v. R. illustrates this point: the judgment in that matter was rendered in favour of the petitioner, who sought the salary that was due to him in his capacity as Master of the Court of Queen’s Bench in Ireland. The authorities, such as Robertson’s treatise on civil proceedings against the Crown, record that the claim concerned the amount of salary owed for the period he held that office.

In contrast, the Indian legal system never adopted the petition of right and instead prescribed the procedure for suing the Crown within the Code of Civil Procedure from its earliest enactments. The same approach appears to have been followed in Australia and other British colonies. For example, Section 56 of the Australian Judiciary Act of 1903 states that a person making any claim against the Commonwealth, whether based on contract or tort, may bring a suit against the Commonwealth in either the High Court or the Supreme Court of the state where the claim arose. The New South Wales Act, chapter 39 Vict. No. 38, expressly provides that the colonial government can be sued in both tort and contract actions. Similarly, Section 65 of the Government of India Act of 1858 granted the right of suit against the Government, declaring that “all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of State in Council of India as they could have done against the said company” (the East India Company). This provision was later superseded by Section 32 of the Government of India Act of 1915, whose sub-section 2 repeated that every person would enjoy the same remedies against the Secretary of State as if the earlier 1858 Act had not been enacted. Section 176(1) of the Government of India Act of 1935 again restated these principles. Consequently, the Crown in India was liable to be sued for acts that, in England, could be pursued only through a petition of right. However, concerning torts committed by its servants while exercising sovereign powers, neither the East India Company nor the Crown in India bore liability unless the act in question had been expressly ordered or ratified by the Crown. That limitation, the court observed, does not apply to the present matter, which concerns arrears of salary earned by a public servant for the period he actually occupied office.

In this case, the Court observed that the claimant sought compensation only for the period during which he actually held office, and that his claim did not arise out of any tortious conduct but was instead grounded on a quantum-meruit or contractual basis, which entitled the court to grant relief. The Court explained that the procedural rules governing all kinds of suits, as set out in the Code of Civil Procedure from 1859 through 1908, remained substantially the same, particularly the provisions of section 60 and Order XXI, and that these procedural mechanisms had been reaffirmed in every Government of India Act enacted since 1858. Accordingly, the salary owed to a civil servant, even though it was in the possession of the Crown, was subject to the jurisdiction of the civil courts, and could be attached and seized pursuant to a decree issued in execution of a judgment. The Court therefore found it difficult to accept any argument that the Crown could not be sued directly by a civil servant for arrears of salary, even if a creditor of the civil servant might pursue the claim. It was noted that a claim which, in England, would have required a petition of right could in this jurisdiction be pursued through the ordinary civil process. On the basis of these considerations, the Court concluded that the appeal lacked any legal merit, dismissed it, and ordered that the costs be awarded. The appeal was dismissed. Agent for the appellant: R.H. Dhebar. Agent for the respondent: S.P. Varma.