Ramanugrah Jha v. State Of Bihar — 1965 DIGILAW 77 (PAT)

Judgment Mahapatra, J. 1. This is a plaintiffs appeal. He brought a suit in the Court of the Subordinate Judge, 1st Court, Patna, on the 10th of January 1951, against the State of Bihar and Mr. L.P. Singh, Chief Secretary to the Government of Bihar. He entered into Government service as a Deputy Collector and Deputy Magistrate in 1922, his date of birth being the 1st of December, 1898, and accordingly, he was due to retire on attainment of the age of superannuation (55 years) on the 1st of December 1953. On the 29th of May, 1945, the State Government framed certain charges against him and placed him under suspension and departmental proceedings and an enquiry by Mr. Lee, Member, Board of Revenue, ended by the orders passed by the State Government on the 16th of October, 1947, debarring him from any future promotions and entering in his character roll a censure for three proved charges; besides, the period of his suspension from the 29th May 1945 to the 14th September 1947, was ordered to be substantive punishment and that period was directed to be not treated as on duty or on leave. Subsequent to that, following the decision taken by the Council of Ministers on the 24th of December, 1947, he was ordered to be compulsorily retired with effect from the 12th of February, 1948, and the period from the date of his absence from Daltonganj (where he was posted as Deputy Magistrate), that is, from the 26th of November, 1947 to the 12th of February 1948, was ordered to be leave without pay (Ext. 10-w). This was communicated by the Government on the 14th January 1948 by express telegram to the Collector of Daltonganj for information of and compliance by the plaintiff, (Ext. 10-y), and the plaintiff received a copy thereof on the 16th or 17th January 1948, and he was made to make over charge of his office though under protest. In the suit, the plaintiff challenged the two orders of the Government of the 16th October 1947 and the 14th January 1948, as mala fide, illegal and ultra vires. He asked for a declaration that those two orders were of no effect, and that he was entitled to the tenure of his office till the date of superannuation and to receive his legitimate salary, and emoluments up to that date amounting to Rs. 89,115.53 NP. He asked for a declaration that those two orders were of no effect, and that he was entitled to the tenure of his office till the date of superannuation and to receive his legitimate salary, and emoluments up to that date amounting to Rs. 89,115.53 NP. Alternatively he asked for a decree for Rs. 3,52,615.63 N.P. against the defendants as damages for loss of service and arrear and future pay, promotions, emoluments, pension etc. which he would have earned but for the illegal orders. He prayed for a decree for Rs. 1,00,000 for damages for harassment, mental torture, physical discomfort, expenses and loss of prestige due to illegal and mala fide proceedings and void orders passed by the Government. A schedule consisting of two parts was attached to the plaint showing the calculation of the money he claimed. 2. Both the defendants filed separate written statements disputing the allegation of mala fide and stating that both the impugned orders were valid. The State specifically stated in paragraphs 36 to 38 of their written statement that: "Taking all these facts into consideration Government decided that there was no reason why they should continue to be generous in their treatment to an officer who was so undisciplined, so disobedient and had no little sense of responsibility and directed that the plaintiff should be compulsorily retired from 12th February, 1948. xx xx xx The provision contained in Note I to Article 465A of the Civil Service Regulation is a part of the conditions of service of a Deputy Collector which he accepts when he enters the service of Government. This defendant states that the order of Government, dated the 14th January 1948 retiring the plaintiff compulsorily was not ultra vires. The provisions of Sec.240 of the Government of India Act are not applicable to the plaintiffs case. It is submitted that it was not at all necessary to afford the plaintiff an opportunity to show cause against the order of forced retirement. The said order was passed in the interest of the public and further the plaintiff had become altogether useless as he was doing no work. It is further submitted that under Note I to Rule 465A of the Civil Service Regulations the Government were empowered to retire an officer compulsorily." 3. On these pleadings nine issues were framed and the parties went to trial. It is further submitted that under Note I to Rule 465A of the Civil Service Regulations the Government were empowered to retire an officer compulsorily." 3. On these pleadings nine issues were framed and the parties went to trial. The plaintiff examined seven witnesses including himself but the defendants brought no witness on their side. They, however, exhibited some part of their office records and notes. The plaintiff called for the whole file from the Appointment Department connected with his suspension, punishment and compulsory retirement and it was produced, though after objection, claiming privilege, which was ultimately overruled by this Court in an ancillary proceeding arising out of the suit. Several portions of that file has been marked as different exhibits for the plaintiff but for the sake of convenience and for ends of justice and to have a complete and connected picture of the situation, we thought it necessary to mark the whole file as Ext. X by way of additional evidence. 4. The Additional Subordinate Judge, Patna, before whom the suit came for trial held that the plaintiff was not entitled to get any relief and he dismissed the suit without costs. The order of compulsory retirement was found to be valid, and as such, plaintiffs claim for a money decree or declaration was negatived. Hence, he has come in appeal. 5. The main point urged on behalf of the plaintiff-appellant before us was about the invalidity of the two impugned orders, one of the 16th October 1947, by which he was reinstated after the departmental proceeding but with punishment, and the other order of the 14th of January 1948, compulsorily retiring him from service with effect from the 12th of February 1948. The ground on which, the former order was challenged was that the plaintiff was not given an opportunity to show cause against the proposed punishment after the completion of the departmental enquiry by Mr. Lee. Learned counsel referred to Sec.240, Clause (3) of the Government of India Act, 1935, which was then applicable. It provided that the holder of a civil post shall not be dismissed or reduced in rank until he was given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Lee. Learned counsel referred to Sec.240, Clause (3) of the Government of India Act, 1935, which was then applicable. It provided that the holder of a civil post shall not be dismissed or reduced in rank until he was given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Learned Counsel contended that though charges were framed against him before he was placed under suspension, he was not given an opportunity to show cause against the imposition of the punishment which the Government proposed for him after consideration of the enquiry report. The punishment, as I have already indicated, was that he was debarred from future promotions and was censured with an entry to that effect in his character roll, and the period of his suspension from the 29th May 1945 to the 13th September, 1947, was directed to be a substantive punishment under Rule 49 of the Civil Service (Classification, Control and Appeal) Rules, and that period was not to be treated as a period spent on duty or on leave, vide Ext. 10(z) 7. The punishment was thus neither dismissal nor reduction in rank, and, therefore, it did not call for any further opportunity of showing cause against such punishment. Learned counsel, however, urged that one part of the punishment was: "He is permanently debarred from holding charge of the office of the Additional District Magistrate or District Magistrate.", and as a matter of fact he was posted, after this departmental proceeding, as an ordinary Deputy Collector and Deputy Magistrate, though he was, before the proceedings, a Subdivisional Officer. Debarring the plaintiff from future promotions cannot be said to be a reduction in rank. The post of a Sub-divisional Officer does not give a substantive rank to a Deputy Magistrate and his posting as a Deputy Magistrate, after serving sometime as Subdivisional Officer, cannot be a reduction in rank. The plaintiff was a Subdivisional Officer at different places between 1942 and March 1945 when he was transferred from Begusarai to Bhagalpur as a Deputy Magistrate. Thus, before the proceedings were started against him, he was working as a Deputy Magistrate and after the proceedings when he was reinstated, he was also posted as such to Daltonganj. The contention that the punishment amounted to a reduction in rank has no substance. 6. Thus, before the proceedings were started against him, he was working as a Deputy Magistrate and after the proceedings when he was reinstated, he was also posted as such to Daltonganj. The contention that the punishment amounted to a reduction in rank has no substance. 6. The more contentious question which was argued with vehemence was the order of the 14th January 1948, by which the plaintiff was compulsorily retired with effect from the 12th February 1948. Several objections against the validity of this order were raised. 7. In the written statement the defendants made it clear in paragraph 38 that the Government were empowered to retire him under Note 1 to Rule 465A of the Civil Service Regulations. Learned Government Advocate appearing for the defendants wanted to resile from that position and attempted to argue that Rule 465A was not the empowering provision under which the order was valid but Rule 4, published in the India Gazette on the 15th of November, 1919, under Government Resolution No. 1085-E.A. was the real source of authority to compulsorily retire a civil servant after he completed 25 years service without necessity to give reasons and without any claim for compensation in addition to pension. The material part of that rule was: "Government will have an absolute right to retire any officer after he has completed twenty-five years service, without necessity to give reasons and without any claim for compensation. ..." This change of front cannot be permitted in view of the specific case pleaded in defence in the written statement. Besides, the note of the Chief Secretary of the 14th December 1947 on which the Prime Minister (the Chief Minister was then so known) recorded his minutes and the Council of Ministers passed the order of compulsory retirement (Ext. D) clearly shows that action was taken against the plaintiff under Rule 465A, Note 1 which was fully quoted in that note. There are many other nothings on the file with reference to this compulsory retirement, at later stages, when it was discovered that the order was defective and in all of them it was noted that the order had been passed under Note 1 to Rule 465A (see Ext. 9(d) dated 9th to 13th November 1948, Ext. 9(e) dated 19th March 1949 and Ext. 9(f), note of defendant No. 2, dated 22nd March 1949). 9(d) dated 9th to 13th November 1948, Ext. 9(e) dated 19th March 1949 and Ext. 9(f), note of defendant No. 2, dated 22nd March 1949). There cannot be the least doubt that the State Government took action under Note 1 to Rule 465A, and when the Government did so, it cannot be open to them to say that they had taken action under some other provision of Law. No party can be allowed to depart from his definite case stated in his pleading. During trial the defendants also did not contend a different position. We have, therefore, to examine the validity of the order with reference to Note 1 to Rule 405A. 8. The historical background of this rule, also cannot lend any support to learned Government Advocates stand. On the 15th November, 1919, certain new rules relating to retiring pensions of the officers (other than military officers or members of the Indian Civil Service) and the services specified therein were published in the India Gazette following a resolution No. 1085-E.A. of the Finance Department, Government of India, of the same date. Those rules were applicable to officers joining the service after the 29th August, 1919. Rule 4 of those rules prescribed that Government will have an absolute right to retire any officer after he has completed twenty-five years service without necessity to give reasons and without any claim for compensation. Prior to this date the Government of India Act, 1915, was in the field which authorised the framing of such rules. On the 23rd December, 1919, the Government of India Act, 1919, was passed and Section 96B Clause (4) validated all the previous service rules. On the 10th May, 1920, a resolution of the Government of India No. 714-C.S.R. published in the official Gazette announced, that with a view to making clear the exact scope of the new pension rules in resolution No. 1085-E.-A., dated the 15th November, 1919, the Government of India intended to publish those rules in the form of amendments to the Civil Service Regulations. Accordingly, another resolution No. 1003-C.S.R., dated the 18th June 1920, published in the Gazette of India on the 19th June 1920, notified amendments to the Civil Service Regulations and one of them provided for the insertion in the Civil Service Regulations of a new Article 349-A stating that the rules in certain Articles including Article 465A would apply to officers specified therein. The amendments also provided for the insertion in the Civil Service Regulations of a new rule as Article 465A with two notes. Clause 2 of that rule stated that "a. retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years service or more. Note I was: "Government retains an absolute right to retire any officer after he has completed twenty-five years service without giving any reason and no claim to special compensation on this account will be entertained." By subsequent amendments, the present form of the Rule 465A emerged. The changes introduced were the requirement of completion of twenty-five years qualifying service before the right of compulsory retirement can be exercised and that right can be exercised only when it is in the public interest to dispense with the further service of an officer. Thus the original Rule 4 promulgated by the Government Resolution of the 15th November, 1919, was changed to what we find now in Note 1 to Rule 465A. In that view, the argument that the original rule (which prescribed completion of twenty-five years service and not qualifying service) was applicable to the plaintiffs case and the Government acted thereunder cannot be accepted. 9. Section 96B (introduced by the Government of India Act, 1919) in Sub-section 2, provided that the Secretary of State in Council may make rules for regulating the classification of the Civil Services in India, the methods of their recruitments, their conditions of service, pay and allowance, and discipline and conduct. Such rules may delegate the power of making rules to the Governor General in Council or to local Governments, or authorise the Indian legislature or local legislatures to make laws regulating the public services. Such rules may delegate the power of making rules to the Governor General in Council or to local Governments, or authorise the Indian legislature or local legislatures to make laws regulating the public services. In Clause (4) it was stated: "For the removal of doubts, it is hereby declared that all rules or other provisions in operation at the lime of the passing of the Government of India Act, 1919, whether made by the Secretary of State in Council or by any other authority, relating to the civil service of the Crown in India, were duly made in accordance with the powers in that behalf, and are confirmed, but any such rules or provisions may be revoked, varied or added to by rules or laws made under this section." Therefore, the original Rule 4 published under the Government Resolution of the 15th November, 1919, about absolute right of Government to retire a civil servant after twenty-five years service could be varied or added to by rules and laws subsequently made under Section 96B. The amendments changing the original Rule 4 to the present form of Note 1 to Article 465A were in accordance therewith and valid. Learned Counsel for the appellant contended that even Article 465A, Note 1, was no longer applicable to officers like the plaintiff after the Fundamental Rules were brought into force from January 1922. Clause (2) of Section 96B authorised the Secretary of State in Council to make rules about the conditions of service of the civil servants and also authorised him to delegate the power of making such rules to the Governor General in Council or the Local Governments. In pursuance thereto, the Secretary of State in Council made rules called the Fundamental Rules to come into effect from the 1st January, 1922. By a Resolution of the Finance Department of the Government of India on the 5th July 1924, (F 7(6)-C.S.R.-24) it was notified that all orders issued by the Government of India prior to the 1st January, 1922, which were at variance with the Fundamental Rules or the Supplementary Rules framed under them, should be treated as cancelled with effect from that date. Rule 2 of the Fundamental Rules said that those Rules will apply to all Government servants. The Fundamental Rules did not include rules about pension and so the previously existing rules in that respect continued. Rule 2 of the Fundamental Rules said that those Rules will apply to all Government servants. The Fundamental Rules did not include rules about pension and so the previously existing rules in that respect continued. Article 465A, as it stood before the Fundamental Rules, related to pension but its Note 1 related to compulsory retirement. As far as it related to pension, it undoubtedly remained in force but it was argued that the other part, namely, Note 1 if at variance with the Fundamental Rules, must be deemed as repealed or cancelled. Same area cannot be covered by two different Rules. 10. Compulsory retirement is dealt with in Chapter IX of the Fundamental Rules. Rule 56(a), as it was revised with effect from the 31st March, 1936, says: "Except as otherwise provided in the other Clauses of this Rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. ....." This Fundamental Rule is at variance with the previously existing Rule 465A, Note 1, (or its predecessor Rule 4, dated the 15lh November, 1919) clothing the Government with a right to compulsorily retire a civil servant after twenty-five years of qualifying service. The previous rule should, the appellant urged, be treated as cancelled. 11. There are two difficulties in accepting this argument. Clause (2) of Article 465A says that a retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years qualifying service or more. This provision being a part of pension rules remained in force even after the Fundamental Rules as they did not provide rules regarding pension. If Note 1 is taken as repealed by the Fundamental Rules, Clause (2) will still presuppose the power of the Government to compulsorily retire a civil I servant. Note 1 specifies in what circumstances such a step can be taken. If that is taken out and Clause (2) remains as before, the civil servant will be exposed to the risk of arbitrary exercise of the power of compulsory retirement, even if that is not in public interest. That is to the disadvantage of the employee. Fundamental Rules cannot be taken to have intended that. Note 1 is an integral part of Clause (2) of Article 465A. If one remains, the other will also remain to complement it. That is to the disadvantage of the employee. Fundamental Rules cannot be taken to have intended that. Note 1 is an integral part of Clause (2) of Article 465A. If one remains, the other will also remain to complement it. Secondly, Fundamental Rule 56 is a general provision prescribing the ages for superannuation of civil servants of different cadres, same as was Article 459 of the Civil Service Regulations. The heading of the Chapter IX in which Fundamental Rule 56 is placed, no doubt, is "Compulsory Retirement." But that has no decisive meaning one way or the other. Retirement on superannuation is also a kind of compulsory retirement applicable to all civil servants, The enacting provision will prevail over the marginal note of the section or the heading of the chapter. It is well known that if there is a legal provision about a particular matter and a subsequent legislation is brought into force, legislating about matters in general, the previous legislation about the particular matter still holds the ground. Article 465A(2) was related to a particular class of cases or persons and therefore that would remain in force in spite of the Fundamental Rules, till specifically repealed or amended, as was sought to be done by the Bihar and Orissa Service Code Rule 75(d) in 1929. I do not also see any conflict between Fundamental Rule 56 and C. S. R. 465A(2) and Note 1 as they relate to two different kinds of retirement with pension. 12. Civil Service (Governors Provinces) Delegation Rules, 1926, were promulgated by the Secretary of State in 1926. Bihar and Orissa Service Code came to be prescribed by the Government of Bihar and Orissa in exercise of the powers conferred on it by Rule 4 of those Delegation Rules, to regulate the conditions of service, the pay and allowances, and the pensions of the Provincial Services, Special Officers and Subordinate Services under its administrative control. The plaintiff had joined the Provincial Service in 1923. The Code came into effect from the 1st June, 1929. The preface written by Mr. The plaintiff had joined the Provincial Service in 1923. The Code came into effect from the 1st June, 1929. The preface written by Mr. P. C. Tallents, Secretary to Government on the 28th March 1929, said that the rules in the Civil Service Regulations, the Fundamental and Supplementary Rules will cease to apply to Government servants to whom the rules in the Bihar and Orissa Service Code apply except to the extent that till the new Provincial Rules regarding pensions and procedure were ready and incorporated in the Code as Chapters X and XI, relevant provisions in the Civil Service Regulations, the Bihar and Orissa Supplementary Rules and the rules issued under the Fundamental Rules by the Governor General in Council and the Auditor General will continue to apply to the Government servants governed by the Code. Rule 3 of the Code said that the rules shall not operate to deprive any person of any right or privilege to which he was entitled by or under any law or by the terms of any contract or agreement subsisting between such person and the Government. 13. Rule 75(d) of the Code lays down: "The local Government may require any Government servant, who has completed twenty-one years of duty and twenty-five years of total service calculated from the date of first appointment, to retire from Government service, if it considers that his efficiency is not such as to justify his retention in the service; provided that the provisions of this clause shall not apply to any person who is in Government service at the time when these rules come in force, unless such person was liable, under the rules previously in force, to be called on to retire after completing twenty-five years service." It is to be noted that in this rule the period of twenty-five years, on the completion of which the Government may compulsorily retire a civil servant, is not said to be qualifying service as was stated in Note 1 of Clause (2) of Civil Service Regulation 465A. Secondly, completion of twenty-one years of duty was added as another condition preceding compulsory retirement. Secondly, completion of twenty-one years of duty was added as another condition preceding compulsory retirement. If C. S. R. 465A, Note 1, had not lapsed on the Fundamental Rules coming into effect in January 1922, then that was certainly a more advantageous term for the civil servant than the Bihar and Orissa Service Code Rule 75(d), and according to Rule 3 of the Code, that would be applicable to civil servants who were already in service before the Code, The proviso to that rule also says the same thing in another form. Thus Rule 75(d) did not apply to the plaintiff, and what is more important, the Government did not take action under that provision. 14. Learned Counsel for the defendant-respondents urged, with reference to the case of Shyamlal V/s. State of Uttar Pradesh, AIR 1954 SC 369 that Rule 4 published in the Gazette of India on the 15th November, 1919, about the absolute right of Government to retire any officer after his completion of twenty-five years service remained valid and acquired statutory force by virtue of Section 96B, Clause (4) of the Government of India Act which came into force on the 23rd December, 1919. The subsequent resolutions of the 10th of May 1920 and the 18th of June 1920 only clarified the scope of that rule. The real purpose, of the incorporation of that rule in the Civil Service Regulations was not to confer on the Government any new right to compulsorily retire an officer but to declare that that right was still retained. I have already shown, on an analysis of other provisions under Section 96B of the Government of India Act, that the power to vary, amend and add to the pre-existing service rules was given to appropriate authorities, and accordingly the two resolutions of the 10th May 1920 and the 18th June 1920, ultimately inserting C. S. R. 465A with its two notes were brought into force and that was also subsequently amended to its present form. In Shyamlals case, AIR 1954 SC 369 , Das, J. also observed: "In short, the language of note 1 to Article 465A makes it abundantly clear that the Governments right to compulsorily retire an officer is not derived from note 1. In Shyamlals case, AIR 1954 SC 369 , Das, J. also observed: "In short, the language of note 1 to Article 465A makes it abundantly clear that the Governments right to compulsorily retire an officer is not derived from note 1. Note 1 only assumes its existence aliunde and indicates when that existing right is to be exercised and what consequences are to follow if that right is exercised." Scope of the original Rule 4 was specified by the subsequent amending resolutions of the Government. After Article 465A was introduced with its notes in the Civil Service Regulations by the appropriate authority, it qualified the powers of compulsory retirement that rested with the Government. Their Lordships of the Supreme Court had before them the consideration, in Shyam Lalls case, of an argument that C. S. R. 465A was not valid and operative as it was framed after the Government of India Act, 1919, came into force, and, therefore, not covered by Clause (4) of Section 96B of that Act. It is in that context that their Lordships held that the original Rule 4 was before the Government of India Act, 1919, and C. S. R. 465A was not a completely new provision but it only clarified the previous Rule 4. Power to amend the previous rule was also provided for in Section 96B. It cannot be urged, divorced from the context, that Shyamlalls case, AIR 1954 SC 369 laid down that original Rule 4 on the 15th November, 1919, without its modification as incorporated in C. S. R. 465A held the ground. 15. As I have already said, the impugned order was passed in exercise of the powers provided in Note 1 to C. S. R. 465A. We have to examine if the order passed by the State Government on the 14th January, 1948, was in conformity with that rule. That rule finds place in S. V of Chapter XVIII of the Civil Service Regulations. The Chapter is about conditions of grant of pension and the section deals with retiring pensions. We have to examine if the order passed by the State Government on the 14th January, 1948, was in conformity with that rule. That rule finds place in S. V of Chapter XVIII of the Civil Service Regulations. The Chapter is about conditions of grant of pension and the section deals with retiring pensions. Another article of the Civil Service Regulations, Rule 349A which was introduced, as already pointed out, under the Government Resolution of the 18th June, 1920, states that the rule in Article 465A will apply to officers (other than Military Officers and members of the Indian Civil Service) appointed substantively to the services or the appointments specified who joined their appointments after the 29th August 1919. The Provincial Civil Service, Executive and Judicial, including Deputy Collectors is one of the services specified in that Article. Article 465A reads as follows: "For officers mentioned in Article 349A, the rule for the grant of retiring pension is as follows: 1. An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Imperial Services of the Forest Geological Survey, Public Works, Railway and Telegraph Departments and any others covered by Article 635 who entered the service before the 6th day of December, 1932, not less than twenty years. 2. A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years qualifying service or more. Note 1.--(Government retains an absolute right to retire any officer after he has completed twenty-five years qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer). Note 2. ........." 16 Thus, though Article 465A primarily relates to retiring pension, yet while providing for a retiring pension for compulsorily retired officers before their superannuation or resignation, it was necessarily found imperative to indicate in what circumstances such compulsory retirement can take place, as no where else in the Civil Service Regulations that was referred. Note 2. ........." 16 Thus, though Article 465A primarily relates to retiring pension, yet while providing for a retiring pension for compulsorily retired officers before their superannuation or resignation, it was necessarily found imperative to indicate in what circumstances such compulsory retirement can take place, as no where else in the Civil Service Regulations that was referred. The purpose of the amendment introduced by the Government Resolution of the 18th June 1920 under Section 96R of the Government of India Act, 1919, was, as was earlier stated, in another Government Resolution of the 10th May 1920, to clearly indicate and specify the scope of the original rules including Rule 4 about compulsory retirement. Therefore, as Art. 465A stood in 1947 and 1948 when the State Government proposed and took action against the plaintiff, two conditions precedent were necessary to be fulfilled before an officer could be compulsorily retired; one was that it must be in the public interest to dispense with the further service of the officer concerned. In the present case the different notes made in the file concerning the plaintiff disclose that the Government thought that it was not in the interest of public to retain the officer any more in service. The five reasons leading to the impugned order, as mentioned in paragraph 36 of the written statement, amply indicate that if those allegations were true, that was a case of public interest in which dispensing with the plaintiffs service was thought necessary. The appellant, however, very strongly urged that those reasons were not true. We need not go into that question, for in absence of proof of mala fides or apparent falsity of the allegations, the subjective satisfaction of the Government about the existence of public interest will be prima facie sufficient to comply with one of the two requirements of Note 1 to Article 465A. The other requirement, if not more important, was that the plaintiff had completed twenty-five years qualifying service before the date of his compulsory retirement. He joined the Provincial Executive Service on the 12th of February, 1923. The other requirement, if not more important, was that the plaintiff had completed twenty-five years qualifying service before the date of his compulsory retirement. He joined the Provincial Executive Service on the 12th of February, 1923. By that date in the year 1948 he would complete twenty-five years but that entire period could not be qualifying service as the period of suspension from 29th May 1945 to 14th September 1947 was ordered, when he was reinstated after the departmental proceeding on the 16th October, 1947, not to be treated as on duty or on leave. Article 416 of the Civil Service Regulations lays down: "Time passed under suspension pending enquiry into conduct counts, if the suspension is immediately followed by reinstatement, but time passed under suspension adjudged as a specific penalty does not count." Accordingly, the period of plaintiffs suspension would not count as qualifying. Article 417 says: "If an officer, who has been suspended, pending enquiry into his conduct, is reinstated, but with forfeiture of any part of his allowances for the period of suspension this period does not count (save with the special sanction of the Head of the Department), unless the authority who reinstates the officer expressly declares at the time that it shall count. There was no declaration by the authority at the time he was reinstated on the 16th of October, 1947, that though his salary for the period of suspension was forfeited (except the subsistence allowance paid) as a measure of punishment, the period of suspension shall still count in his favour as qualifying service. If the declaration was not made at the time of the passing of the order of reinstatement itself, it cannot be so declared subsequently as the words "at the time" in Article 417 is the important essense of the exception, and that is why those words are mentioned in italics in that article. If this period of suspension of two years and three and a half months is deducted from the plaintiffs total period of service, then the period of qualifying service completed by the plaintiff before the date of his compulsory retirement was much less than twenty-five years, and, therefore, that did not comply with Note 1 to Article 465A; as such the Government was not competent to pass the order of compulsory retirement against him with effect from the 12th February, 1948. To get over this apparent and clear difficulty, the learned Government Advocate wanted from the very beginning to insist upon the continuance of the original service rules including Rule 4 of the 15th November, 1919, which did not require the completion of twenty-five years "qualifying" service, in spite of the subsequent amendments to that rule leading to Article 465A, Note 1. In the case of Moti Ram V/s. General Manager, North-Eastern Frontier Rly, AIR 1964 SC 600 , their Lordships of the Supreme Court observed: "In regard to servants holding substantively a permanent post who may conveniently be described hereafter as permanent servants, it is similarly well settled that if they are compulsorily retired under the relevant service rules, such compulsory retirement does not amount to removal under Article 311(2), Similarly, there can be no doubt that the retirement of a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of Article 311(2)." It is thus clear that compulsory retirement before superannuation must be in accordance with the relevant service rule in which case it will not amount to a "removal" within the meaning of Article 311(2) of the Constitution (or dismissal under Sec.240, Clause 3 of the Government of India Act, 1935). Otherwise the requirements of Article 311 or Sec.240(3) will be imperative and the officer concerned must have to be given a chance to show cause against the proposed action. In the present case, it is admitted that no such chance was given to the plaintiff. Though the note of the Chief Secretary recommending the compulsory retirement of the plaintiff (Ext. D) of the 14th December, 1947, mentioned that explanation had been called for in respect of one matter but was not received from him, the evidence is otherwise and to the effect that the Government letter dated the 31st October 1947, calling for that explanation was not forwarded to the plaintiff till the 6th of January, 1948, and his reply of the same date was not in the hands of the Government before the decision about his compulsory retirement was taken finally in the Council of Ministers on the 24th December, 1947. Similar was the position with the Government letter dated the 4th December, 1947, calling for an explanation in another matter. Exts. 10(t) and 10(x) will show that. Similar was the position with the Government letter dated the 4th December, 1947, calling for an explanation in another matter. Exts. 10(t) and 10(x) will show that. The learned Government Advocate admitted the position that in regard to the action of compulsory retirement no opportunity was given to the plaintiff to show cause against such action. The plaintiff was entitled to such a notice in accordance with Clause (3) of Sec.240 of the Government of India Act corresponding to Article 311(2) of the Constitution when the termination of the service was not in conformity with Article 465A, Note 1, of the Civil Service Regulations. That would invalidate the action of the Government. 17. The doctrine of pleasure enshrined ire Sec.240(1), as in Article 310(1), is modified or curtailed by the other provisions of Sec.240 (and Article 311). Apart from the principles of natural justice, the specific procedure laid down in Sec.240 to give an opportunity to the civil servant concerned before he is dismissed (or his service is terminated) otherwise by way of compulsory retirement according to the service rules is mandatory and failure in that respect will render the final orders nugatory. 18. Learned Counsel for the defendants brought to our notice that at a subsequent stage the period of plaintiffs suspension from service during departmental enquiry was notified to be treated as qualifying service and, according to him, that would cure the defect, as it was, at the time when the order of compulsory retirement was passed. Ext. 9(d) contains some of the office notes in the secretariat file in respect of the plaintiffs case, from 9th April to 13th August 1948, when the Accountant General pointed out the illegality of the order of the compulsory retirement. The note said: "The position with regard to Babu Ramanugrah Jha resolves to this that recourse to Article 465A C. S. R. to get rid of him was not correct since a necessary ingredient of the Article was not fulfilled i.e. he had not, on the date of order retiring him compulsorily, a total of 25 years of service to his credit. Finance Department have advised that since he had not to his credit a total service of 25 years he is entitled to no pension. It does not however appear to be the intention of Government that Mr. Jha should not get any pension. Finance Department have advised that since he had not to his credit a total service of 25 years he is entitled to no pension. It does not however appear to be the intention of Government that Mr. Jha should not get any pension. There are therefore now only two courses open: 1. The period from 29-5-1945 to 13-9-1947 during which he was under suspension may be treated as spent on duty and the period of leave without pay granted subsequent to 13-9-1947 may be allowed as a pay; or 2. Take action under Article 921(a) C. S. R. Taking action as in (1) above would mean a revision of Government orders and perhaps it is not desirable...... Mr. Jha has been removed from service as a disciplinary measure and the indulgence referred to in Article 921 (a) C. S. R. is not meant to be extended in such cases...... Finance Department had not been consulted before this proposal was made and no enquiry was made whether Mr. Jha actually had 25 years of qualifying service which is a condition to be fulfilled before the Government servant can be retired compulsorily. Hon ble Prime Minister, vide his minute on the same page, agreed with the Chief Secretary and the matter was placed before the Council of Ministers..... It would appear that on the basis of Appointment Department memo, which was drawn up without consulting the Finance Department it was decided that Mr. Jha should be granted leave without pay with effect from the date of his absence up to 12-2-1948 and he should be compulsorily retired with effect from the latter date under Note 1 to Rule 465 of the C. S. R..... This mistake of the Appointment Department has landed Government in a very awkward position. In actual fact Mr. Jha, although he completed 25 years from the date of his entry into Government service, was before 12-2-1948 on suspension from 29-5-1945 to 13-9-1947 i.e. about two years and four months and then after reinstatement he was on leave without pay from 2-11-1947 to 2-1-1948. In the result a period of over 2 1/2 years of his total service was not spent on duty or on authorised leave and the qualifying period of his service is reduced to only 22 1/2 years..... In the result a period of over 2 1/2 years of his total service was not spent on duty or on authorised leave and the qualifying period of his service is reduced to only 22 1/2 years..... As the officer had not completed 25 years of qualifying service before 12-2-1948 the order of compulsory retirement is bad and ineffective. Mr. Jha cannot draw any pension unless he has 25 years qualifying service at his credit and cannot be retired also under Note 1 to Article 465A. A way has to be found out as how to regularise the order of compulsory retirement or if that cannot be done, some way out of it must be found. Clearly at would be inexpedient for Government to revise the order of compulsory retirement if at can be helped. The order of compulsory retirement can be made legal only if his period of suspension and the period during which he was on leave without pay are counted as having been spent on duty or on authorised leave. In the present case not only no pension is admissible but the very order of compulsory retirement is bad and ineffective. Question of indulgence may arise if under valid order an officer suffers a special hardship. Here is a case of an officer against whom there is no valid order. The question of indulgence therefore does not arise. Government must therefore follow one of the courses indicated above. It may be added that if after recall of Mr. Jha to service it is sought to retire him compulsorily he will have to be given a hearing before an order is passed as required under Sec.240(3) of the Government of India Act, 1935. Government of India have, in a recent letter, interpreted compulsory retirement under Note 1 to Article 465 of the C. S. R. as amounting to removal from service or dismissal within the meaning of Sec.240(3) of the Government of India Act, 1935--vide flag 70 (which is same as Ext. 10(z)8 in this case).... Government of India have, in a recent letter, interpreted compulsory retirement under Note 1 to Article 465 of the C. S. R. as amounting to removal from service or dismissal within the meaning of Sec.240(3) of the Government of India Act, 1935--vide flag 70 (which is same as Ext. 10(z)8 in this case).... To me the best solution seems to be to withdraw the order of compulsory retirement and start a proceeding under Sec.353 of the C. S. R. for removal of the officer from service on ground of misconduct or inefficiency." It appears that in the same file dated the 26th March, 1949, the Hon ble Minister passed an order for issue of notice to the plaintiff to show cause against his removal from service, obviously after withdrawing the order of compulsory retirement. Rut this, however, did not materialise because the opinion of the Accountant General, Bihar, was received that "if the period of Mr. Jhas pension from 29-5-1945 to 13-9-1947 is allowed to count as qualifying service for pension under the special sanction of the head of the department under Article 417 C. S. R. and if the period of leave with effect from 2-11-1947 to 2-1-1948 is also modified as leave with allowance, he will complete 25 years of qualifying service for pension. Finance Department concur in the action being taken according to the Accountant Generals advice." (see Ext. 9(e) ). Accordingly a notification was published in the official Gazette on the 25th of June, 1949, to that effect. This is contended to have cured the initial illegality of the order of compulsory retirement. I am unable to concede to this. The impugned order has to be examined as it was on the date on which it was made. If it was void at that time, it cannot be validated by the subsequent action. Secondly, the conversion of the period of plaintiffs suspension to a period to count as qualifying service for pension amounts to a revision of the order of punishment which was passed by the Council of Ministers on the 24th of December, 1947, at the end of the departmental enquiry and communicated to the plaintiff. It is not shown nor does it appear from the file that this revision was effected by the same authority, the Council of Ministers. It is not shown nor does it appear from the file that this revision was effected by the same authority, the Council of Ministers. As is clear from the different office notes, quoted above, the Government decided by way of "suitable manipulation" to notify the period of suspension as qualifying service more than a year and a half after the illegal order of compulsory retirement. Article 417 of the Civil Service Regulations insists upon the reinstating authority to expressly declare at the very time of the reinstatement that the period of suspension will count as qualifying service. Subsequent to that time, that authority or the Government has no power to make such a declaration. In that view, the notification in this respect on the 25th of June, 1949, cannot be valid and cannot extend the period of qualifying service of the plaintiff so as to retrospectively validate the order of compulsory retirement. 19. For the appellant it was pressed that the compulsory retirement was not one such simpliciter but that action was taken as a punitive measure against the plaintiff. It was by way of punishment, and, therefore, the provisions under Sec.240(3) of the Government of India Act, 1935, were applicable; but as no notice of the proposed action was given to him for showing cause against that, that order was in contravention of the constitutional provision. This line of reasoning gains support from the observations of Subba Rao, J. in AIR 1964 SC 600 , but the majority view in that case reiterated the position initiated in Shyamlals case, AIR 1954 SC 369 . In Shyam Lalls case the officer was compulsorily retired under Article 465A, Note 1, but it was preceded by a departmental enquiry and he was given an opportunity to show cause against such action. From the beginning it was made clear to the officer that action was proposed to be taken under Note 1 to Article 465A. The charges which the officer was called upon to explain disclosed his misconduct. The question arose whether the compulsory retirement which was obviously on consideration of the inefficiency and misconduct of the officer concerned amounted to removal so as to attract the constitutional safeguard in the shape of a second notice. The charges which the officer was called upon to explain disclosed his misconduct. The question arose whether the compulsory retirement which was obviously on consideration of the inefficiency and misconduct of the officer concerned amounted to removal so as to attract the constitutional safeguard in the shape of a second notice. It was held: "It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the direction in the last sentence in Note 1 to Article 405A makes it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity." About the enquiry that was held in the case it was observed: "In other words, the enquiry was to help the Government to make up its mind as to whether it was in the public interest to dispense with his services." 19a. In the case of State of Bombay V/s. Sauhagchand M. Doshi, (S) AIR 1957 SC 892 the relevant rule under which compulsory retirement of an officer was ordered involved reasons of inefficiency or dishonesty. But the Supreme Court observed that the real criterion to ascertain whether the order amounted to removal, was to see if it involved any loss of benefits previously earned by the officer, and following the decision in Shyamlals case, it was held that compulsory retirement there was not "dismissal" or "removal". It was, however, observed that if compulsory retirement was provided by any service rule without fixing minimum period of service after which the rule can be invoked, termination of the service of a permanent civil servant by the application of such a rule would be dismissal or removal under Article 311(2). It was, however, observed that if compulsory retirement was provided by any service rule without fixing minimum period of service after which the rule can be invoked, termination of the service of a permanent civil servant by the application of such a rule would be dismissal or removal under Article 311(2). In another case which went to the Supreme Court, Dalip Singh V/s. State of Punjab, AIR 1960 SC 1305 , the order of compulsory retirement stated that it was for administrative reasons, but subsequently on an insistence of the officer concerned, he was supplied with grounds which had led to that action, and they disclosed that it was for his misconduct and inefficiency; yet the Supreme Court held that there was no basis for saying that the order of retirement contained an imputation or charge against the officer because the order itself on the face of it did not say so. The previous decision in Shyamlals case, AIR 1954 SC 369 was followed. In Moti Rams case, AIR 1964 SC 600 constitutional validity of Rules 148(3) and 149(3) of the Indian Railway Establishment Code came for examination. Those rules provided that the service of railway servants was liable to termination on notice on either side for the specified periods. Their Lordships found that the impugned rules authorised the railway administration to terminate the services of the permanent servants to whom the rules applied merely on giving notice for the specified period, or on payment of salary in lieu thereof, and, therefore, they held that those rules clearly amounted to the removal of the servant in question and called for the application of the provisions contained in Article 311 (2) of the Constitution. Since those rules did not provide what was prescribed in Article 311(2), they were struck down as invalid. The orders of termination of service were quashed as they were not preceded by the enquiry prescribed by Article 311(2). In that case it appears that a distinction was maintained between the temporary or probationer servants and permanent servants. Since those rules did not provide what was prescribed in Article 311(2), they were struck down as invalid. The orders of termination of service were quashed as they were not preceded by the enquiry prescribed by Article 311(2). In that case it appears that a distinction was maintained between the temporary or probationer servants and permanent servants. In paragraph 13 of the judgment in case of the former class of employees, it was observed: "In every such case courts examine the substance of the matter, and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules, Article 311(2) may not be applicable to such a case. If however, the termination of a temporary servants service is substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Article 311(2) would be attracted. In regard to servants holding substantively a permanent post.......it is similarly well settled that if they are compulsorily retired under the relevant service rules, such compulsory retirement does not amount to removal under Article 311(2)." That means the order of termination of service in case of a temporary or probationer civil servant should be examined by Court to find out if in substance it is punitive in which case it will be taken as "removal". But in case of permanent servants, if termination by way of compulsory retirement is in accordance with the relevant service rules, it will not be necessary to go behind the order to find if that was in substance by way of punishment. In their case the two tests to be applied are whether the order in terms involves a stigma against the officer and whether by that order the officer loses the benefits which he has earned by his past service. If one of the two is there, then compulsory retirement will amount to dismissal or removal from service. Viewed in that light, the order passed in the instant case, on the face of it, did not in fact, disentitle the plaintiff to the benefits of his past service, that is pension. In that sense the order will remain above assail. If one of the two is there, then compulsory retirement will amount to dismissal or removal from service. Viewed in that light, the order passed in the instant case, on the face of it, did not in fact, disentitle the plaintiff to the benefits of his past service, that is pension. In that sense the order will remain above assail. But the payment of pension (admittedly the plaintiff is drawing his pension though, according to him, it is less by a few rupees than what he should have got) depended upon completion of twenty-five years qualifying service by the time of retirement. Since the plaintiff did not complete that period, he was not entitled to pension. The subsequent order passed by the Government under Article 417 of the Civil Service Regulations increasing the period of qualifying service was invalid. The plaintiff, therefore, has been paid pension before the 1st December 1953 without the authority of law, and such illegal payment shall have to be excluded from consideration while examining the effect of the order of compulsory retirement. That order as passed on the 14th of January, 1948, following the decision of the Cabinet on the 24th of December, 1947, exposed the plaintiff to the loss of the benefit of his past service, namely, the pension. In that view, the termination of plaintiffs service amounted to removal or dismissal and was invalid because it was not preceded by a compliance with the provisions under Sec.240(3) of the Government of India Act, 1935. The conclusion reached by the different processes of reasoning is inevitably against the impugned order, and it has to be declared as not operative against the plaintiff. He was entitled to continue in service till his age of superannuation which was to occur on the 1st of December 1953. He will be deemed to have been in service till then and entitled to all benefits including salary and pension as would have been available under the law. 20. The plaintiff claimed in addition to the declaration of the illegality of the two impugned orders and the continuity of his service till superannuation and his title to pay and emoluments of the office, a money decree for Rs. 89,115.53 against the defendant No. 1. The schedule appended to the plaint gives a breakdown of this amount as follows: Rs. The plaintiff claimed in addition to the declaration of the illegality of the two impugned orders and the continuity of his service till superannuation and his title to pay and emoluments of the office, a money decree for Rs. 89,115.53 against the defendant No. 1. The schedule appended to the plaint gives a breakdown of this amount as follows: Rs. Balance of pay for the period from 29-5-1945 till 12-2-1947 calculated at the rate of Rs. 850 per month15,187.24 For the Period from 13-2-1947 to 15-9-1947 5,658.60 From 16-9-1947 to 12-2-1948 254.92 Total20,091.76 Salary from 13-2-1948 to 30-11-1963 (date of superannuation being 1-12-1953).69,023.87 Total89,115.53 Alternatively, the plaintiff asked for a money decree only for Rs. 3,52,615.63 or such amount as he may be found entitled to against the defendants or any of them for damages for loss of service and arrear and future pay, promotions, emoluments, pensions etc. which the plaintiff might have earned if allowed to continue in service and if the illegal orders had not been passed. The calculation of this amount also was given in the schedule. Besides these two reliefs, he asked for a decree for damages for harassment, mental torture, physical discomfort expenses and loss of prestige due to illegal and mala fide proceedings and void orders. He estimated this at one lakh of rupees but left that amount to be determined by the Court. For the defendants it was urged that the plaintiff cannot get any amount that may have been due to him after the institution of the suit which was on the 10th of January 1951. Order 20, Rule 12 Civil Procedure Code, was pointed in this connection which provides for a decree for future mesne profits in a suit for recovery of possession of immoveable property and mesne profits. Learned Counsel contended that except in a suit of that nature the Court cannot pass a decree for any dues that may accrue after the institution of the suit. Reliance was placed on the case of India Electric Works Ltd. V/s. B.S. Mantos, AIR 1956 Cal 148 . Learned Counsel contended that except in a suit of that nature the Court cannot pass a decree for any dues that may accrue after the institution of the suit. Reliance was placed on the case of India Electric Works Ltd. V/s. B.S. Mantos, AIR 1956 Cal 148 . That was a suit by an owner of property for declaration of his right to pull down and remove the shed that had been constructed by his lessee on the land and for a mandatory injunction on the defendant to remove their machineries for three months or such period as the Court thought reasonable for the convenience and speedy removal of the shed and also for rent, taxes find damages. It was held that the suit was a purely money suit and not a suit for recovery of possession of immoveable property and mesne profits under Order 20, Rule 12, Civil Procedure Code, and, therefore, a decree for rent and taxes after the date of the institution of the suit could not be passed in favour of the plaintiff. The suit before us is not a purely money suit. It is a declaratory suit with consequential reliefs. Whatever relief will flow as a consequence of the declarations will be within the purview of the suit. The plaintiff gets the declaration that he was entitled to continue in service till the 1st December 1953 and to receive his legitimate emoluments as the order retiring him compulsorily on a previous date was invalid and inoperative. Following this declaration the consequential relief will be a decree for money against defendant No. 1 to which the plaintiff was entitled. Superannuation has occurred in this case after the suit was instituted and the Court is competent to take note of the subsequent event. It is not necessary to send the plaintiff for another suit to recover his dues from the defendants. He has paid court-fees on the amount that he claims till the date of his superannuation. When the suit was filed the date of superannuation was to come but the time the suit was decided it was passed. In such a case the declaration, though sought for relating to a future date, should have to be granted with reference to what has already happened during the pendency of the suit. When the suit was filed the date of superannuation was to come but the time the suit was decided it was passed. In such a case the declaration, though sought for relating to a future date, should have to be granted with reference to what has already happened during the pendency of the suit. Otherwise, neither the ends of justice nor the avoidance of harassment of multiplicity of litigation can be achieved. The defendant being the State Government, it is reasonably expected that after the title of the plaintiff to continue in office till superannuation is found in his favour, there will be no objection to the payment of his legitimate dues of salary and pension after deducting whatever he might have received in the meanwhile. 21. Learned counsel also urged that the suit was barred by limitation and relied upon Article 115 of the Limitation Act for the purpose. That Article, in my view, has no application here because it is in respect of a suit for compensation for the breach of any contract. The present suit is more in the nature of a suit for a declaration of title and the consequential reliefs. Even if that Article was attracted, the cause of action for the suit having arisen on the 14th of January, 1948, when the order was passed and the 16th or 17th of January, 1948, when the plaintiff received that order, the suit was instituted within three years of that, on the 10th of January, 1951, though in regard to the other impugned order dated the 16th of October, 1947, the suit will be barred. The plaintiff invoked Article 120 and urged that a period of six years limitation was available to him from the date on which the right to sue accrued to him. That is a residuary article applicable for a suit for which no period, of limitation is provided elsewhere. Article 131 is about a suit to establish a periodically recurring right and the cause of action for that arises when the plaintiff is first refused the enjoyment of the right. That is a general provision which may apply to the present case and will, therefore, exclude Article 120. Article 131 is about a suit to establish a periodically recurring right and the cause of action for that arises when the plaintiff is first refused the enjoyment of the right. That is a general provision which may apply to the present case and will, therefore, exclude Article 120. But the more appropriate article, in my view, for the present suit is Article 102 which provides three years to institute a suit for wages not otherwise expressly provided for by the Schedule of the Act and the period is to be counted from the date when the wages accrue due. "Wages" has not been used in this article in the restricted sense of remuneration for mechanical or manual labour, but is used in the large sense of remuneration of service of an employee (see the case of the Province of Punjab V/s. Tarachand, AIR 1947 FC 23). Where a particular article can be applied, the more general article should be excluded, and in that view Article 131 should be ignored for a suit of the present nature. The plaintiff was debarred from his monthly salary with effect from the 12th of February, 1948, from which the compulsory retirement was to lake effect. The suit has been instituted well within three years from that date. In my view, therefore, there will be no bar of limitation as far as his claim for salary from that date to the date of superannuation is concerned. He can also recover his "wages" from the 10th November, 1947 (three years and two months for the statutory notice under Section 80, Civil Procedure Code) but not for any period preceding that (see Madhav Laxman Vaikunthe V/s. State of Mysore, AIR 1962 SC 8 ). 22. There was slight controversy between the parties during the argument that the amount of pension which has been paid to the plaintiff is less by a few rupees than what he is entitled under the rules. Learned Counsel for the respondents conceded that if on proper calculation his pension will be higher the defendant No. 1 will pay that. 23. Another point pressed for the appellant was that he was entitled to the time scale increment in salary from Rs. 800 to Rs. 850 after his reinstatement as that was not curtailed by the order of reinstatement passed on the 16th of October, 1947, or by any order thereafter. 23. Another point pressed for the appellant was that he was entitled to the time scale increment in salary from Rs. 800 to Rs. 850 after his reinstatement as that was not curtailed by the order of reinstatement passed on the 16th of October, 1947, or by any order thereafter. This contention is valid and should prevail. It was not opposed by the respondents. The schedule of claim in the plaint adopted this basis. 24. At some length, learned Counsel for the appellant urged that the actions of both the defendants were tainted with mala fides. He pointed to some observations made by defendant No. 2 in his office notes where he expressed some aversion to the plaintiff but that was with regard to his conduct as an officer. The view taken by the defendants of the plaintiffs action may or may not be correct, but even if incorrect that will not necessarily mean mala fides. The different entries in the character roll of the plaintiff exhibited in the case reveal that at different times, much earlier to the recent controversies, different superior officers had taken different views about the plaintiffs work, temperament and official conduct. The evidence on record does not establish mala fides against any of the two defendants. 25. The plaintiff asked for damages in his suit for harassment, mental torture, physical discomfort, loss of prestige and expenses suffered by him on account of the impugned proceedings and orders. If mala fides could be established a decree for damages would have been irresistible. It appears particularly from the different office notes recorded after the order of compulsory retirement was passed that that decision was arrived at without carefully examining the ingredients and the conditions precedent as provided in Note 1 to Article 465A of the Civil Service Regulations, and without taking the concurrence of the Finance Department who, usually, are more meticulous in their examination of the rules particularly involving financial matters. The Accountant General was also not consulted about the total period of service available to the credit of the plaintiff for earning pension. The haste with which that order was passed and the absence of necessary care and caution before it were attributed by learned Counsel to mala fides of the defendants. They by themselves, cannot prove lack of bona fides. The haste with which that order was passed and the absence of necessary care and caution before it were attributed by learned Counsel to mala fides of the defendants. They by themselves, cannot prove lack of bona fides. The anxiety to get rid of the obstinate and opposing attitude of the plaintiff appears to be more responsible for the action taken. There is also room for consideration that defendants thought, with reference to their mistaken impression about the continuity of the original service Rule 4 of 1919, that expiry of twenty-five years after a plaintiffs entry into service may justify his retirement without losing his earned pension. It is however, true that the plaintiff must have suffered some mental harassment and expenses. But since the order in terms did not speak of any stigma against the plaintiff, there was no question of any loss of prestige. Taking all the facts into consideration, I shall allow a nominal damage of Rs. 1,000 for all that the plaintiff has suffered on account of the impugned order. 26. To sum up, I have held: (1) The order dated the 16th October, 1947, was valid. (2) The order of compulsory retirement dated the 14th January, 1948, was invalid and inoperative. (3) The part of the notification dated the 25th June, 1949, by which the period of suspension from the 29th May 1945 to the 13th September 1947, was declared as qualifying service to count for pension was invalid. (4) The plaintiff was entitled to continue in service till the date of his superannuation (1st December 1953). (5) The plaintiff was entitled to the monthly salary of Rs. 850 after his reinstatement on the 16th October, 1947 till the 30th November 1953 and thereafter pension according to rule. (6) The plaintiff is entitled to a decree for damages for Rs. 1000 against defendant No. 1. 27. The suit is, therefore, decreed in part for the above with proportionate costs against defendant no. 1. The suit is dismissed against defendant no. 2 but without costs. The plaintiff will be entitled to his costs against defendant no. 1 for both the Courts. The appeal is allowed in part and the judgment and decree of the trial Court are set aside. 28. 1. The suit is dismissed against defendant no. 2 but without costs. The plaintiff will be entitled to his costs against defendant no. 1 for both the Courts. The appeal is allowed in part and the judgment and decree of the trial Court are set aside. 28. The defendant No. 1 is allowed a period of three months from today to pay the decretal amount to the plaintiff, failing which the plaintiff will be entitled to recover the same through execution with interest at the rate of 6 per cent per annum from the date of the decree to the date of realisation. G.N.Prasad, J. 29 I agree.