RAM LABHAYA J.: This appeal arises out of a suit for recovery off a sum of Rs. 9307- on account of special contri­bution to plaintiff's provident fund. The claim was decreed by the Munsiff of Dibrugarh. On appeal the-learned Subordinate Judge, U. A. D. reversed the decree of the trial Judge and dismissed the suit on two grounds which are as follows: (1) that the suit by -plaintiff, a retired public servant, was not maintainable against the Union of India; (2) that the grant of special contribution to provident fund was in the absolute discretion of the controlling, officer and the Court had no power to interfere with that discretion. (2) The facts bearing on the contentions which prevailed in the lower appellate Court may be briefly stated. The plaintiff was an employee of the D. S. Railway. He entered service of that Rail­way on 30-6-1916. During the War, the Railway was acquired by the Government of India. On, 1-4-1945, it was merged into the then existing B. A. Railway. All full-time employees amongst others of the D. S. Railway were informed that they would cease to be employed by the Company with effect from 31-3-1945. The contents of the commu­nication which had been received by the D. S. Railway from the Ganeral Manager, B.A. Railway were also conveyed to them by notice (Exhibit 1). According to this communication, the employees referred to in the notice were informed that they will become the employees of the Government of India in accordance with legislative provision.-They were also informed that the present terms and conditions of service with the company shall be regarded as continuous with the period start­ing from 1-4-1945. The Government of India also accepted the liability for the payment of gratuities when due. (3) The non-gazetted staff of the D. S. Railway were taken in Government service on and from 1-4-1945 under the provisions of Essential Services (Dibru-Sadiya and Colliery Branch Railways) Ordinance No. 8 of 1945 during the existence of an emergency. By notice (Exhibit 2) from the General Manager B. A. Railway, they were given the option of electing to remain in Government service in a permanent or temporary capacity according to their service even after the emer­gency was over. They were given 30 clear days to exercise their option individually. By notice (Exhibit 2) from the General Manager B. A. Railway, they were given the option of electing to remain in Government service in a permanent or temporary capacity according to their service even after the emer­gency was over. They were given 30 clear days to exercise their option individually. The terms on which the Government was prepared to employ the non-gazetted staff were stated in the notice. In regard to pay and allowances, the condition was that the employees will be given the revised B. A. Railway scales of pay and allowances but the Government reserved the right to modify the scales of pay and allowances or abolition of posts on the D. S. Section of the B. A. Railway without compensation. In regard to Provident Fund, the condition was that the State Railway Provident Fund and gratuity rules will apply. The employees were further assured that the continuous service on the Dibru-Sadiya Railway up to 31-3-1945 will be treated as continuous with subsequent service on B. A. Railway from 1-4-1945. The Government did not reserve the right to alter the conditions of its offer relating to Provident Fund. The conditions of service in regard to leave, house rent, pass rules, medical attendance, passages, clothing, school fees and transfer were all separately stated. In regard to pass rules, the condition was that the rules as laid down from time to time by the Government of India for State-managed Railways shall apply. There was thus an implied reservation of authority to alter these rules. Similarly in regard to passa­ges, clothing and school fees, the right to revise the rules and conditions was reserved in express terms. Clause (ix) of the terms offered, was in the nature of a residuary clause. It dealt with other matters not covered by the terms relating to spe­cified conditions of service. This clause is as follows: "The State Railway rules as applicable to per­sons appointed on or after 1-4-45 will apply." 'Those employees who elect to remain in service under the aforesaid terms offered to them by the Government will be treated as having been re-employed under the State from 1-4-1945 and will be required to execute proper service agree­ment as enforced on the B. A. Railway. It should be noted here that such staff will be entitled to B. A. Railway scales of pay on and from 1st Octo­ber and not from 1-4-1945.' "Those who are not willing to serve the Gov­ernment under the terms stated above will con­tinue on their present D. S. Railway terms under the provisions of Ordinance No. 8 of 1945 referred to above until the present emergency is over when their services will be dispensed with. This offer was given to the employees on 13-9-1945.' (4-6) Plaintiff accepted the offer of re-employ­ment in accordance with the terms and conditions detailed in the General Manager's notice, dated 13th September by Exhibit 3. He retired on 16-3-1946 on his attaining the age of 55 according to the State Railway Rules. He claimed that under the State Railway Rules, which formed part of the terms and conditions of service that were offered to and accepted by him, he was entitled on retirement to 15 months' salary as special contribution to his provident fund. The special con­tribution, he averred was not paid to him in spite of his demands. He sent a notice under S. 80, Civil P. C. Its receipt was acknowledged. He was told that the matter was receiving attention. But after that no decision in the matter was commu­nicated to him. (7) The suit was resisted on several grounds. Apart from technical objections with which we are not concerned at this stage, the main defence put forward was that from 1-4-1945 up to the date of notice dated 13-9-1945, the plaintiff was under the State Railway on terms and conditions on which he was employed by the D. S. Railway. By the notice, Exhibit 2, he was offered terms which took effect from 1-4-1945. On accepting the terms and conditions contained in the notice of 13th September, he became bound by the State Rules in the matter of gratuity and other matters relat­ing to the conditions of his service. These rules it is pleaded could be altered with the approval of the Governor-General in Council who was the rule-making authority. On accepting the terms and conditions contained in the notice of 13th September, he became bound by the State Rules in the matter of gratuity and other matters relat­ing to the conditions of his service. These rules it is pleaded could be altered with the approval of the Governor-General in Council who was the rule-making authority. The General Manager of the B. A. Railway accor­ding to the directions received from the Railway Board issued a circular with the concurrence of the Governor-General in Council to the effect that in the case of the non-gazetted staff of the ex-D. S. Railway who were taken in service on and from 1-4-1945 and who were not eligible for gra­tuity (or special contribution to provident fund) under the D. S. Railway Company, Gratuity Rules, service for gratuity (or special contribution to the provident fund) shall count only from 1^-1945. The contention stated briefly was that this circular changed an important condition of service relat­ing to special contribution to provident fund which was incorporated in the offer made on 13-9-1945. It was inter alia pleaded that special contribution to Provident Fund could not be claimed as a matter of right. It was in the discretion of the con­trolling authority. It could be granted in certain cases and on certain conditions as a reward for good, efficient and faithful service. (8) In this notice under S. 80, Civil P. C., the plaintiff claimed in express terms that his service throughout had been good, efficient and faithful. Reference was made to this notice in para 8 of the plaint. In the written statement, it was plead­ed that no legal and valid notice under S. 80 had been served. There was no specific statement or plea that the plaintiff's service was not good, effi­cient and faithful nor was it averred that the con­trolling officer in his discretion had disallowed the claim to special contribution on the ground that plaintiff's service was not good, efficient and faith­ful or on any other ground for the matter of that. The plaintiff was not informed at any stage why payment on account of special contribution to Provident Fund was not being made. As stated above, the learned Munsiff decreed the claim. (9) The appeal in the court of the learned Sub­ordinate Judge was heard ex parte. The plaintiff was not informed at any stage why payment on account of special contribution to Provident Fund was not being made. As stated above, the learned Munsiff decreed the claim. (9) The appeal in the court of the learned Sub­ordinate Judge was heard ex parte. The learned Judge held relying on - 'Om Prokash Gupta v. United Provinces', AIR 1951 All 205 (A), that the suit against the Union was not maintainable. In his view, the principle of - ' AIR 1951 All 205 (A)', applied to the present case. He had no doubt that the B. A. Railway had offered certain terms to the plaintiff. He had accepted those terms and continued to work under these terms till his retire­ment. Notwithstanding this, he felt constrained to hold in view of the decision in - ' AIR 1951 All 205 (A) that no contract within the meaning of the Contract Act for payment of special contribu­tion to the Provident Fund of the plaintiff was made between the Assam Railway and the plain­tiff and in any case, the terms of that contract were not enforceable in the Courts of law. (10) In AIR 1951 All 205 (A), the suit was for a declaration that the order of dismissal of the plaintiff, a provincial Civil Servant, was wrong and void and that the plaintiff continued a mem­ber of the Civil Service and was entitled to full pay and increment. It was laid down by Desai J. that there was no contract within the meaning of the Contract Act by the Crown to pay any salary to a public servant. There was a contract of service but it contains terms enforceable against the civil servant and not against the Crown. The promise by the Crown to pay salary at a certain rate to the civil servant was no more a contract enforceable in the Courts of law than a promise to dine with a friend. It was found that the appel­lant before the Court had no right either in the statute or under a contract to demand payment of arrears of his salary. Reliance was placed on the decision of their Lordships of the Privy Coun­cil in - 'High Commr. for India v. I. M. Lair, AIR 1948 PC 121 (B). Dayal J. also came to the same conclusion. Reliance was placed on the decision of their Lordships of the Privy Coun­cil in - 'High Commr. for India v. I. M. Lair, AIR 1948 PC 121 (B). Dayal J. also came to the same conclusion. (11) The question whether civil servant can maintain a suit against the Crown for recovery of arrears of pay came up for consideration recently before their Lordships of the Supreme Court in the - 'State of Bihar v. Abdul Majid', AIR 1954 SC 245 (C). Their Lordships after a consideration of all the relevant decisions including the case of I. M. Lall came to the conclusion that the rule of English law that a Civil servant cannot main­tain a suit against the Crown for recovery of arrears of pay does not prevail in India and it has been negatived by the provisions of the statute in India. Accordingly, a suit for recovery of arrears of salary by a civil servant of a State for the period that he was actually in office was maintain­able in a civil Court and the Court was entitled to give relief when due. Their Lordships approv­ed of the decision in - 'Punjab Province v. Tara Chand', AIR 1947 PC 23 (D). In view of this deci­sion, the principle laid down in - ' AIR 1951 All 205 (A)', has become obsolete. The learned Government Advocate realising this did not make any attempt to support the decision of the learned Subordinate Judge on the basis of the principle laid down in AIR 1951 All 205 (A). In view of the decision of their Lordships of the Supreme Court, it is not necessary to examine minutely or in detail the question of the right of a civil servant to maintain a suit against the Government for salary or for Provident Fund due under the rules particularly when the learned Government Advocate has declined to support the view of the learned Subordinate Judge on the ground on which he based it. He has however contended that the suit is not maintainable by reason of the provisions contained in S. 7 of the Provident Funds Act. This contention is wholly misconceived. Section 7 has no application to the facts of the present case. It affords protection to the officers acting bona fide under that Act. He has however contended that the suit is not maintainable by reason of the provisions contained in S. 7 of the Provident Funds Act. This contention is wholly misconceived. Section 7 has no application to the facts of the present case. It affords protection to the officers acting bona fide under that Act. No suit or action lies against any officer for any action taken by him bona fide under any provi­sion of Provident Funds Act. This suit is not directed against any officer for any action taken by him under any of the provisions of that Act. It is a claim against the Government for a sum which the plaintiff considers is due to him under the rules which govern his conditions of service. Such a suit is not within the ambit of S. 7, Provi­dent Funds Act, on which the learned Government Advocate relies. The contention has got no merit and is repelled. (12) The next important question though not dealt with by the learned Subordinate Judge is whether the plaintiff is precluded from claiming special' contribution to his Provident Fund by a change introduced in the terms and conditions of his service by the circular dated 25-7-46. The terms offered included the assurance of continuity of service in regard to claim under the rules relat­ing to Provident Fund. The offer contained in the notice Exhibit 2 was that the State Railway Provident Fund and gratuity rules shall apply to him, that continuous service on D. S. Railway up to 31st March will be treated as continuous with subsequent service on B. A. Railway from 1st April. For the purpose of Provident Fund and Gratuity, the continuity in the service of the administration was guaranteed. The re-employ­ment did not involve any break in service. So far as this condition of service was concerned, there was no reservation of a right to alter it. After his retirement, the condition is altered. According to that alteration, for the purpose of special contribution to Provident Fund, the service has to be deemed to commence from 1st April. Plaintiff accepted service on the representation that the Provident Fund rules of the State shall apply to him and for the purpose of these rules, his service under the D. S. Railway will be re­garded as continuous with the subsequent service under the State. Plaintiff accepted service on the representation that the Provident Fund rules of the State shall apply to him and for the purpose of these rules, his service under the D. S. Railway will be re­garded as continuous with the subsequent service under the State. It was during the war and in a state of emergency that the D. S. Railway was acquired. Plaintiff had been in service since 1916. He had a few months of service left to be able to retire. On the faith of terms offered to him, he agreed to continue on in service. The basis of his employment is contractual. The Government did not reserve any right to alter the rules relat­ing to Provident Fund after the exercise of option by him to serve the Government. In the absence of any such reservation, the Government has no right or privilege to alter the terms of any agree­ment unilaterally and without the consent of the other party when conditions of service are embodied in an agreement. The learned Government Advocate has not been able to refer us to any provision of the statute, the rules or any authority in support of the pro­position that where a civil servant agrees to serve in certain specified condition of service, the Gov­ernment can alter the terms unilaterally, even when that power is not reserved in the agreement. It is worthy of note that the terms of service offered were fully stated under different heads and power to alter certain conditions was express­ly reserved. It is only in regard to Provident Fund Rules that no such reservation was made. We see no reason why plaintiff should be held bound by a circular which was issued without his know­ledge and consent and some months after his retirement. He had completed his service under the conditions to which he had agreed on receiv­ing notice on 13th September. On the completion of his service, he became entitled to certain rights. These rights which accrued to him on the completion of his service could not be taken away after that date. It cannot be con­ceded that the Government under its rule making power has any authority to change the rules, regulating the condition of service of a civil servant after his retirement in such a way that it could deprive him of rights which have become vested in him. It cannot be con­ceded that the Government under its rule making power has any authority to change the rules, regulating the condition of service of a civil servant after his retirement in such a way that it could deprive him of rights which have become vested in him. An alteration of this character should not operate or be effective retros­pectively. (13) The rules regulating the conditions of ser­vice of employees of the State Railways were made by the rule making authorities under sub-s. (2) of S. 241, Government of India Act. It is said that the alteration in the Provident Fund Rules affecting non-gazetted employees who were ori­ginally employees of D. S. Railway was made by a circular of the Railway Board which was issued with the concurrence of the Governor-General in Council. Assuming that the consent of the Gov­ernor-General in Council was duly obtained the circular could have no validity. Section 241 (2) does not confer on the Rule-making authority any power to issue any circular which can change conditions' of service of civil servants after their retirement even when 'these conditions form part of written agreements. No other basis has been suggested on which we can reasonably hold that plaintiff was bound by the circular which provides that for the purpose of the special contribution to Provident Fund, his service would be deemed to commence from 1-4-1945. The contention does not appear to have been pressed in the lower appel­late Court and as at present advised, I see no reason why it should prevail. In this view of the matter, the circular dated 25-7-46 cannot be allow­ed to stand in the way of the plaintiff. (14) It follows from what has been found above that the parties are bound by R. 1314 relating to special contribution to Provident Fund. Sub-r. (2) of the rule applies to subscribers who are not gazetted officers. Under this rule, if the case of a non-gazetted subscriber fulfils the requirement of any of the five clauses (a to e) of sub-r. (2), the controlling officer if satisfied that the service of the subscriber has been good, efficient, and faith­ful may order that in addition to the contribution credited under Rr. 1311 to 1313, the subscriber's Provident Fund shall be credited with his special contribution calculated in the manner prescribed by law. 1311 to 1313, the subscriber's Provident Fund shall be credited with his special contribution calculated in the manner prescribed by law. The proviso to sub-r. (2) has no applica­tion to the facts of this case. Sub-rules (3) and (4) lay down the method of calculation of the special contribution to the Provident Fund. Sub-rule (5) provides that the amount of special con­tribution calculated in accordance with sub-r. (3) or sub-r. (4) may in a particular case be withheld or reduced by the controlling officer. It is clear that it is only when the controlling officer is satisfied that the service of the subscriber had been good, efficient and faithful that he may order the addition of special contribution to the credit of the subscriber in his Provident Fund account. The controlling officer has also an authority to withhold or reduce the amount of special contri­bution calculated in accordance with the provi­sions contained in sub-rr. (3) and (4). In the written statement put in on behalf of the defendant-respondent, it is not averred that the controlling officer declined to order the addition of the special contribution to plaintiff's account under sub-r. (2) or decided to withhold it under sub-r. (5). The important plea raised was that under the circular dated 25-7-1946, plaintiff did not qualify himself for any special contribution to Provident Fund. That would be the position if his service is deemed to have commenced from 1-4-1945. The controlling officer did not act under any sub-rule of R. 1314. This has neither been pleaded nor proved. It appears from Exhibits 5 and 5(1) that the reason for not paying the amount due to the plaintiff as special contribution to his Provident Fund was the circular of 25-7-1946. The Railway officers who have been exa­mined, have not deposed that the controlling officer in the exercise of powers vested in him by R. 1314 declined to order the addition of special contribution or decided later to withhold it, in the exercise of his powers under R. 1314. There was no suggestion that the service of the plaintiff was found to be otherwise than good, efficient and faithful. If the controlling officer did not decide to act against the plaintiff under Rule 1314(2) or 1314(5) for valid reasons, the plaintiff will have a valid claim to special contribution under this rule against the Government. There was no suggestion that the service of the plaintiff was found to be otherwise than good, efficient and faithful. If the controlling officer did not decide to act against the plaintiff under Rule 1314(2) or 1314(5) for valid reasons, the plaintiff will have a valid claim to special contribution under this rule against the Government. Plaintiff was not informed at any stage that any such ac­tion has been taken. The controller has not taken the responsibility for taking a decision under R. 1314 against the plaintiff even during the pendency of this litigation. He alone has the power. His failure to take a definite decision under R. 1314 confirms the view that non-payment of special contribution, in spite of demands, was due to the Circular of 25-7-46, which the adminis­tration could not ignore. In any case, R. 1314 in the abstract cannot be relied on as a defence unless it is alleged and proved that the Controlling Officer, in the exercise of powers which vests in him, has decided not to permit the addition of special contribution to plaintiff's account or has decided to withhold it. Plaintiff cannot, in my opinion, be non-suited on the abstract proposition that the Controlling officer has what is described as unrestricted power to withhold payment. His claim cannot be resisted under B. 1314 without the controller coming to a decision adverse to the plaintiff on the facts of the case. This apparently has not been done. (15) The learned Subordinate Judge thought that the Controlling Officer may have found the service not good, efficient and faithful. He took this possibility into consideration on the grounds that the service record of the plaintiff contained two adverse entries. Notwithstanding these entries, there was no justification for taking this possibi­lity into consideration. It is not the case of the respondent that the Controller ever came to any decision in regard to the nature of plaintiff's service under R. 1314. No attempt has been made to prove it. No surmise or speculation about it is permissible. It is neither possible nor necessary for the Court to come to any decision as to the nature and character of plaintiff's service in the absence of any plea about it. No attempt has been made to prove it. No surmise or speculation about it is permissible. It is neither possible nor necessary for the Court to come to any decision as to the nature and character of plaintiff's service in the absence of any plea about it. It is in evidence that the immediate officer of the plaintiff was satisfied with the quality of his service, gave him a certificate to that effect and also pleaded that the circular, dated 25-7-46, should not apply to his case. (16) The learned Government Advocate has also argued that even though no specific decision of the Controlling Officer under R. 1314 has been relied on, the claim to Special Contribution can­not be made as of right. He points out that if the service is good, efficient and faithful, the sub­scriber under sub-r. (2) becomes eligible if his case falls under any of the five clauses of sub-r. (2). He does not become entitled to it. The Controlling Officer may, if he is eligible, order the addition of special contribution to his credit to his Provident Fund account. He is not bound to do so. If he orders addition and calculation is made under sub-r. (4), the Controlling Officer has still the power to withhold or reduce the amount. The non-gazetted subscriber acquires no title even if his service is good, efficient and faithful. His contention in short is that even in cases where conditions specified in sub-r. (2) are satisfied, the Controlling Officer has an absolute and unrestrict­ed authority to order or not to order the addition of special contribution to the subscriber's account at his sweet will or pleasure without conforming to any objective standard for determining whether Special Contribution may be allowed or refused. He further claims that even when addition of special contribution is ordered under sub-r. (2), it may be withheld under sub-r. (5). The power under sub-r. (5) is also claimed to be absolute. The special contribution, in the view of the learn­ed Advocate is merely a reward or bounty for exceptionally meritorious service. (17) The word 'may' in sub-r. (2) is the basis of the contention that the Controlling Officer has an absolute discretion in the matter and where he does not order addition of the contribution to a subscriber's account, the subscriber has no right of action. (17) The word 'may' in sub-r. (2) is the basis of the contention that the Controlling Officer has an absolute discretion in the matter and where he does not order addition of the contribution to a subscriber's account, the subscriber has no right of action. (18) Rule 1306 provides that an account will be opened in the name of each subscriber in which shall be credited his contribution made under Rr. 1311 to 1313, interest provided by R. 1320 on the subscription and contribution and the special contribution made under R. 1314. This rule re­quires that the special contribution shall be added under R. 1314. The requirement of that Rule (1314) undeniably is that the service should be good, efficient and faithful before Special contribution may be added to the subscriber's account. The word 'may' in that Rule, it has been argued by the learned Counsel for the plaintiff-appellant, ought to be read as 'shall'. He argues that after it has been found that the service is good, effi­cient and faithful, there would be no reason for the Controlling Officer to decline ordering the addition of special contribution to the subscriber's account. Any exercise of power against the subs­criber would be arbitrary and capricious and may in most cases be discriminatory. It would not be a correct interpretation of the Rule to hold that even when a subscriber has satisfied the require­ments of sub-r. (2) the controlling officer has still an overriding power in the exercise of which he may decline to order addition of the amount at his pleasure. If that had been the intention, there was no need to lay down the condition that the • service should be good, efficient and faithful before special contribution could be added to a subscriber's account. He argues that sub-r. (5) has to be read with sub-r. (2). Even sub-r. (5) could not be said to have been intended to confer on the Controlling Officer any power or authority which could be exercised in an arbitrary manner. Reading the two together, he argues that what was intended was that where service of the subs­criber was not good, efficient and faithful, the Controlling Officer may decline to pay the whole or any part of the Special contribution that a subscriber may otherwise have earned. There is considerable force in this, argument. Reading the two together, he argues that what was intended was that where service of the subs­criber was not good, efficient and faithful, the Controlling Officer may decline to pay the whole or any part of the Special contribution that a subscriber may otherwise have earned. There is considerable force in this, argument. The word 'may' in sub-r. (2) may not be treated as substi­tute for word 'shall' and yet it may not bear the meaning given to it by the learned Government Advocate. It is conceivable that the word 'may' was used to confer the authority to order addition of special contribution to a subscriber's account. What was meant to be conveyed could easily have been that when a subscriber fulfils the condition of sub-r. (2), the Controller is authorised to order addition of the Special contribution to his account. It would not be necessary in this view to read the word 'may' as 'shall', nor would it be necessary to read into rule an absolute, arbitrary and unres­tricted power to allow or not to allow special contribution even in cases where admittedly the' conditions of sub-r. (2) are satisfied. There would also be justification for reading, sub-rr. (2) and (5) in such a way that they do not produce any conflict. If no arbitrary power was meant to be conferred by sub-r. (2) on the Con­trolling Officer, sub-r. (5) would also not have that effect. If sub-r. (5) is so read as to confer any arbitrary power on the controlling officer, not, only would it conflict with sub-r. (2) it will also make sub-r. (2) completely redundant. It would in these circumstances be very difficult to hold, if it were necessary, that the Controlling Officer can at his pleasure refuse payment of the Special contribu­tion and that he is under no obligation to justify his act before a Court of law or that he is not bound by any objective standard by which to , judge each case. (19) It is also difficult to subscribe to the proposi­tion that Special Contribution to Provident Fund is in the nature of a bounty or reward and is not at all grounded in right. (19) It is also difficult to subscribe to the proposi­tion that Special Contribution to Provident Fund is in the nature of a bounty or reward and is not at all grounded in right. If the intention of the rule-making authority was to treat it as a bounty or reward for exceptionally good service in select­ed cases, it would have been dealt with, not as an item to be added to the usual Provident Fund which a subscriber can admittedly claim as of right. A very elaborate rule (1314) should not have been necessary. The qualifications for it, and the amount that may be allowed, the method of calculation, the nature of service expected from a subscriber, the expectation that the rule raises in an employee, are all facts which go against the view. If Special contribution is merely a bounty, it could easily have been provided as in R. 1503, that it is at the discretion of the Government; it will be granted if service was good, efficient and faithful, but that it shall not be claimed as of right. The absence of these provisions which apply to .gratuities, points to the conclusion that special contribution to Provident Fund was not meant to be placed on the same footing as gratuities. The heading of R. 1503 also is significant. It shows the subject-matter of the rule which is the 'Condition of eligibility'. The rule embodies a clear declaration that the gratuity cannot be claim­ed as of right. The heading read with the provi­sion, brings into clear relief the intention behind the rule. Rule 1314 does not purport to lay down conditions of eligibility as argued by the learned Government Advocate, nor does it provide that special contribution cannot be claimed as of right. Rule 1336(1) provides a mode of devolution of the Special Contribution. The contribution added under R. 1314 becomes payable to the widow or widows or/and dependent children of the deceased . subscriber in such cases as the Controlling Officer ' may determine. This rule has been held to be a condition of service Vide - 'Sunil Kumar Bose v. Ajit Kumar Bose', 58 Cal W.N. 483 (E). The contribution added under R. 1314 becomes payable to the widow or widows or/and dependent children of the deceased . subscriber in such cases as the Controlling Officer ' may determine. This rule has been held to be a condition of service Vide - 'Sunil Kumar Bose v. Ajit Kumar Bose', 58 Cal W.N. 483 (E). If R. 1336 (1) is a condition of service, it would be anomalous to hold that R. 1314 embodies no enforceable con­dition of service even when the Controller does not, in the exercise of his authority, decide to withhold Special Contribution wholly or partially. The question may not be free from difficulty but the weight of reasons seems to be entirely against the interpretation placed on R. 1314 by the learned Government Advocate, and if it had been necessary to decide this question, I would I have preferred to hold that if the conditions of sub-r. (2) are satisfied and the Controlling Officer does not decide to disallow or withhold it acting under R. 1314, a subscriber could enforce his right to special contribution. The scheme of the rules points to that conclusion. It is not necessary, however, to base the decision on this 'interpreta­tion' of R. 1314, for, the controlling officer not having exercised his powers under sub-r. (2) or sub-r. (5), there is, in my opinion, no impediment in the way of plaintiff suing for recovery of special contribution that should have been credit­ed to his account in the absence of any adverse decision by the Controller. (20) In the view of the matter that I take, plaintiff must succeed in his claim. The appeal is, therefore, allowed. The decree of the lower appellate Court is reversed and that of the trial Court restored. Plaintiff-appellant shall have his costs of the entire litigation. (21) SARJOO PROSAD C. J. : I agree. Appeal allowed.