JUDGMENT J. M. Lal, J. - This is a plaintiff's appeal who had been awarded a declaratory decree by the Civil Judge, Malihabad at Lucknow in the following terms: "It is declared that during the period between 16-11-1949 and 27-12-1952 the plaintiff as an officiating Income Tax Officer held a permanent post of an Income Tax Officer which was substantively vacant and on which post no officer had any lion and as such he is entitled to have his pen-son fixed under Article 486(h) of the civil service Regulation less any amount which the plaintiff had got commuted." On appeal filed by the defendant respondents the learned District Judge, Lucknow set aside that decree and dismissed the plaintiffs suit. Feeling aggrieved by that decision the plaintiff filed this second appeal. 2. The fact of the case so far as they are relevant for the decision of this second appeal are that the plaintiff joined service in the Income Tax Department as stenographer to the Commissioner Income Tax on 14-2-1926. He was then promoted as Assistant Inc me Tax Officer. He was appoints Income Tax Inspector in a substantive cava city on 3-4-1934. In April, 1941 he passed the departmental examination by a higher standard which qualified him for appointment as an Income Tax Officer. He was appointed as Officiating Income Tax Officer under an order dated 6-11-1941 and joined hat post on 8-11-1941. At that time there were 33 permanent posts of Income Tax Officers in the U. P. Cadre. Some of those permanent posts of Income Tax Officers were lying vacant when the plaintiff was appointed as officiating Income Tax Officer with effect from 8-11-1941. The plaintiffs case is that he was appointed as an officiating Income Tax Officer in one of the permanent posts which were lying vacant at that time. Besides the 33 permanent posts 7 temporary posts of Income Tax Officers were also created: 3 of them being created before the appointment of the plaintiff and 4 after that. The plaintiffs contention was that he was not appointed and shall not be deemed to have been appointed at any relevant time on any of those temporary posts. Besides the 33 permanent posts 7 temporary posts of Income Tax Officers were also created: 3 of them being created before the appointment of the plaintiff and 4 after that. The plaintiffs contention was that he was not appointed and shall not be deemed to have been appointed at any relevant time on any of those temporary posts. The lien of seven permanent Income Tax Officers on 7 out of the 33 permanent posts had been suspended and on those posts also persons junior to the plaintiff were appointed in officiating capacity, the plaintiff having already been appointed in one of the permanent posts lying vacant at the time of his appointment. He continued to hold that post continuously and in due course his officiating appointment on that post was made provisionally substantive as had been shown in the gradation list of Income Tax Department corrected upto 1-6-1946, a copy of which is Ex. 23. 3. On 13-10-1946 the plaintiff was illegally reverted to the post of Income Tax Inspector. He filed suit No. 272 of 1949 in the court of Civil Judge, Agra on 15-11-1949 challenging his reversion and claiming arrears of salary which he would have got on the higher post. His suit was decreed on 4-4-1951 and a declaration was granted that the reversion order was illegal and that he shall be deemed to have continued on the post of Income Tax Officer. But his claim for arrears of salary was disallowed. The plaintiff filed an appeal in this court and this court remanded the case to decide the plaintiff's claim for arrears of salary on merits. The suit was again decreed by the Civil Judge. Agra, on 7-8-1963 and this time the plaintiff's claim for arrears of salary was also decreed though not in full. Against that decision the Income Tax Department filed an appeal in this court while the plaintiff filed cross-object on. During the pendency of that appeal there was a compromise between the parties and thereafter both the appeal and the cross-objection was withdrawn. 4. In the meantime, the Income Tax Department passed another order dated 10-3-1950 reverting the plaintiff to his post of Income Tax Inspector with effect from 16-11-1949. This order was again challenged by the plaintiff by filing suit No. 50 of 1954 in the Court of Civil Judge, Agra, which was decreed on 4-9 1956. 4. In the meantime, the Income Tax Department passed another order dated 10-3-1950 reverting the plaintiff to his post of Income Tax Inspector with effect from 16-11-1949. This order was again challenged by the plaintiff by filing suit No. 50 of 1954 in the Court of Civil Judge, Agra, which was decreed on 4-9 1956. The reversion order was held to be illegal and void and it was declared that the plaintiff shall be deemed to have continued to hold the post of Income Tax Officer from 16-11-1949 to 27-12-1952 (the date on which the plaintiff retired from service). A decree for arrears of salary which he would have earned on the higher post was also passed in his favour except for the period from 16-11-1949 to 18-5-1951 for which the plaintiff's claim was held to be time barred. Against that decree the defendant filed an appeal which was dismissed. As a result of these decisions the plaintiff shall be deemed to have continuously officiated as Income Tax Officer from 8-11-1941 to 27-12-1952, the date when he retired. 5. The dispute in the present case relates to the matter of fixation of his pension. Originally, his pension was fixed in February, 1957, on the basis that he retired as an Income Tax Inspector and ignoring his claim that he held or shall in the eye of law, be deemed to have held the post of Income Tax Officer right upto the date of his retirement. But after the result of the litigation referred to above the Presidents order dated 13-1-1965 which was issued in consequence of a compromise made between the parties during the pendency of the appeal and cross-objection arising out of suit No. 272 of 1949 filed in this Court, his pension was refixed. The same was, however, refixed by applying the provisions of Article 487-B of of the Civil Service Regulations on the assumption that the emoluments which the plaintiff received of the higher post of Income Tax Officer as a result of his suits being decreed by the courts would not be covered by the provision contained in Article 486 (h). On that basis the pension was fixed at a lower figure than it would have been done if these emoluments had been considered under Article 486(h) which, according to the plaintiff was clearly applicable to his case. On that basis the pension was fixed at a lower figure than it would have been done if these emoluments had been considered under Article 486(h) which, according to the plaintiff was clearly applicable to his case. His representation to that effect not being accepted by the Income Tax Department the plaintiff filed a suit out of which this second appeal has arisen claiming a declaration that during the period from 16-11-1949 to 27-12-1952 the plaintiff held a permanent post of Income Tax Officer which was substantively vacant and on which no officer had any lien and, as such he was entitled to have his pension fixed under Article 486(h) of the Civil Service Regulation instead of Article 487-B (1) of the said Regulation as had been done by the Accountant General, Uttar Pradesh. 6. The suit was contested by the defendant on a number of grounds. But all the pleas of the defendants were repelled by the learned Civil Judge who granted a declaration in terms mentioned above to the plaintiff. The learned District Judge before whom an appeal was filed by the defendants was, however, of the view that no such declaration could be granted to the plaintiff in view of Sec. 6 of the Pension Act, 1871. On merits he held that the plaintiff was never appointed substantively on the post of Income Tax Officer, that the entry in the gradation list that he was appointed Income Tax Officer provisionally substantively was based on some mistake, and that the plaintiff belonged to Indian Finance Department and as such the provisions of Article 486(h) would not be applicable to him. He was, therefore, of the view that his pension had been correctly fixed by the Accountant General, U. P. under Article 487-B. 7. The first question that arises for consideration is as to whether a declaratory decree as had been passed by the trial court could not be passed in the suit in view of Sec. 6 of the Pension Act, 1871. The first question that arises for consideration is as to whether a declaratory decree as had been passed by the trial court could not be passed in the suit in view of Sec. 6 of the Pension Act, 1871. This section provides : A civil Court, otherwise competent to try the same, shall take cognisance of any such claim upon receiving a certificate from such Collector Deputy Commissioner or other officer authorised in that behalf that the case may be so tried, but shall not make any order or decree in any sut whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly." The certificate as contemplated by this section had been obtained by the plaintiff so the civil Judge who was competent to try the suit proceeded with its trial and passed a simple decree for declaration without giving any direction to be Government to pay any amount of pension to the plaintiff. The learned District Judge, was however of the opinion that even such a declaration affected the liability of Government to pay such pension to the plaintiff and so it could not be granted. 8. In my opinion the grant of a declaratory decree, as had been granted in this case by he trial court, is not barred by Sec. 6, apart from the question whether the provisions of this Act are at all applicable to the pension admissible to a Government servant for his past services under statutory rules framed under Article 309 of the Constitution or that such pension can still be considered as a bounty from the Government after the decision of the Supreme Court in State of Bihar v. Abdul Majid, A.I.R. 1954 S.C. 245 and the Full Bench decision of the Punjab High Court in K.R. Erry v. State of Punjab, A.I.R. 1967 Punjab 279. If Sec. 6 is construed in a way as to debar as court from even granting a declaratory decree, it is not conceivable what other type of adjudication can be made by a competent court in a suit instituted by a plaintiff on a certificate of the competent authority as contemplated by Sec. 6. In that case it will only be an exercise in futility for the court to adjudicate on any right of the plaintiff in such a suit. In that case it will only be an exercise in futility for the court to adjudicate on any right of the plaintiff in such a suit. An interpretation which has the effect of making any provision of law nugatory was to be avoided. In my opinion, what is intended by this section is that no executable decree shall be passed by the court which might make the Government liable to pay any amount as pension or enhanced pension to the plaintiff only by the force of that decree. A declaratory decree is not an executable decree. It only decides the rights of the parties and after that it is for the Government to make payment of the pension to the plaintiff in accordance with that declaration. But it is not bound to do so and if it chooses not to respect that decree no further proceedings can be taken against the Government under that very decree, though the Government being committed to rule of law is expected to abide by that declaration and pay the pension to its employee in accordance with it. The Privy Council in Secretary of State v. Parashram Madhavrao, A.I.R. 1934 P.C. 108, had held that under Sec. 6 of the Pensions Act, 1871 it is not open to the plaintiff to obtain an order for payment. He, however can obtain a declaration of h s right. I, therefore, hold that the granting of a declaratory decree, as had been done in the present case by the trial court is not barred by Sec. 6. 9. We have now to see on what basis the pension of the plaintiff-appellant was to be fixed. Article 474 of the Civil Service Regulations provides that the pension admissible to a Government servant would be a fraction of the average emoluments the proper fraction to be selected from the fractions gIven there n according to length of service of the servant. The expression "average emoluments has been defined in Article 487 as meaning the average calculated upon the last three years of service. The terms "emoluments" as used in Articles 487 and 474 includes various items mentioned in clause (a) to clause (j) of Article 486. The expression "average emoluments has been defined in Article 487 as meaning the average calculated upon the last three years of service. The terms "emoluments" as used in Articles 487 and 474 includes various items mentioned in clause (a) to clause (j) of Article 486. For the purposes of the present case we are concerned only with items of pay mentioned in clause (a) and acting allowance" mentioned in clause (h) "Pay has been defined in Article 38 as meaning "monthly substantive pay". "Acting allowance" has been defined in Article 86 as the allowance given in-addition to substantive pay (if any) to an officer who is appointed to officiate in an appointment of which either there is no holder or of which the holder is an absentee. 10. It is an admitted fact that the plaintiff was never appointed substantively as Income Tax Officer. As such the salary which he received under the decrees passed in suits No. 272 of 1949 and No. 50 of 1954 for three years prior to his retirement with a declaration that during this period he shall be deemed to be holding the post of officiating Income Tax Officer. cannot be included in the term "pay" as defined in Article 38. cannot be included in the term "pay" as defined in Article 38. The substantive pay which he was entitled to draw on the post of Income Tax Inspector which he substantively received will alone be treated as pay, while the remaining amount that he received over and above that while officiating as Income Tax Officer, would be treated as acting allowance The real controversy between the parties is whether the whole of this acting allowance received by the plaintiff during the three years preceding his retirement should be included in "emoluments" under clause (h) of Article 486, or only a part thereof should be so included under Article 487-B. The plaintiff's case is that his officiating appointment as Income Tax Officer is covered by clause (h) of Article 486 which provides : "(h) Acting allowance of an officer without a substantive appointment if the acting service counts under Article 371 and allowance drawn by an officer appointed provisionally under Article 89 or appointed substantively pro-tempre under Article 90 or in officiating capacity under the rules in Sec. 1 of Chapter VI to an officer which is substantively vacant and on which no officer has a lien or to an office temporarily vacant in consequence of the absence of the permanent incumbent on leave without allowance or on transfer to foreign service." Three types of cases of acting allowance received by an officer without a substantive appointment are contemplated by this provision. (i) When an officer is appointed provisionally under Article 89. (ii) When is appointed substantively pro-tempre under Article 90. (iii) When is appointed in an officiating capacity under the rules contained 4 in Sec. 1 of Chapter VI to an office which is substantively vacant and on which no officer has a lien. 11. Article 89 provides that if an officer is transferred to duty which is such that retains no connection with his own appointment and which there is reason to believe will not terminate within three years, the Central Government may if it thinks fit, suspend his lien upon his own appointment altogether and fill up that appointment substantively reserving only the tight to reverse the arrangements thus made in case he absent officer at any time reverts to his original appointment. 12. 12. Article 90 provides that an officer to whom the rules in Sec. 1 of Chapter VI do not apply may be appointed substantively pro-tempore on full pay, without prejudice to the lien of the absentee, in place of an absentee who draws no part of the pay of the appointment or of an officer on deputation provided that when the absence is due to a temporary appointment or the officer is on deputation, the temporary appointment or deputation lasts for six months or more. 13. The plaintiffs case from the very beginning was that in November, 1941 when he was for the first time appointed as Income Tax Officer a number of permanent posts in the Cadre of Income Tax Officer which at that time consisted of 33 posts were lying vacant and he was, therefore, appointed to officiate in one of these vacancies. In due course his officiating appointment was treated as provisionally substantive as had been shown in the gradation list of the Income Tax Department corrected upto 1-6-1946 a copy of which is Ex. 23. In this gradation list not only the plaintiff but a few other Income Tax Inspectors who were junior to the plaintiff and who like the plaintiff were officiating as Income Tax Officers were also shown as being appointed on provisionally substantive basis. In the alternative the plaintiff's claim was that in any case for three years preceding his retirement, under the decree passed in suit No. 272 of 1949 and No. 50 of 1954 he shall be deemed to be officiating in one of the posts of Income Tax Officers which was substantively vacant and on which no officer had a lien. 14. The trial court found that the plaintiff's appointment was provisionally substantive and in any case he was officiating in a post that was substantively vacant and on which no officer had any lien. He was, therefore, entitled to avail of the benefit of clause (h) of Article 486. 15. The learned District Judge held that since no order had been produced by the plaintiff showing that he was appointed in a provisionally substantive capacity on one of the posts of Income Tax Officers, the entry in the gradation list appears to have been made under some mistake. 15. The learned District Judge held that since no order had been produced by the plaintiff showing that he was appointed in a provisionally substantive capacity on one of the posts of Income Tax Officers, the entry in the gradation list appears to have been made under some mistake. In my opinion the learned District Judge was no justified in making a presumption about the incorrectness of an official record published under the authority of the defendant in the absence of relevant material being placed before the court by the defendants showing in what circumstances that mistake had been committed in the record. The plaintiff had summoned his service book from the defendants which was not produced on the plea that it had been lost. No other material was placed by the Income Tax Department to show that the plaintiff or person junior to him were never treated as provisionally substantive Income Tax Officers as shown in the gradation list. The learned District Judge was, however right in holding, differing from the trial court, that the judgments in the previous suits did not opera e as res judicata to bar this plea that the plaintiff was not appointed in a provisionally substantive capacity. This point was not directly in issue in those cases nor was decided in any of those suits. Those suits were decreed on the ground that the punishment of reduction in rank had been imposed on the plaintiff without following the provisions of the Constitution. If, however, the plaintiffs appointment had been treated as provisionally on or before 1-6-1946 it can very well be assumed that it remained so even upto October, 1946 when the plaintiff was reverted. That reversion order was quashed by the court and under the decrees passed in those suits the plaintiff shall be deemed to have continued to hold the post of Income Tax Officer upto the date of his retirement. 16. Even if for any reason the plaintiff's claim, that his appointment had become provisionally substantive is not accepted, his case would clearly fall in the third category that he was appointed in officiating capacity in a post substantively vacant on which no officer had a lien. 16. Even if for any reason the plaintiff's claim, that his appointment had become provisionally substantive is not accepted, his case would clearly fall in the third category that he was appointed in officiating capacity in a post substantively vacant on which no officer had a lien. In this connect on it may be pointed out that the defendants had also admitted in the better particulars of their written statement that the plaintiff was never appointed in any of these 7 temporary posts that existed in this cadre besides 33 permanent posts. This fact supports the plaintiff's contention that he was from the very beginning appointed as officiating Income Tax Officer in one of the permanent vacancies. 17. The learned District Judge did not record any specific finding on this point but he took the view that this last portion of clause (h) will not be applicable to the plaintiff's case because he was not appointed as an officiating Income Tax Officer under the rules contained in Sec. 1 of Chapter VI. In this connection he referred to Article 104 which provides : "The rules in this section apply to all Imperial Services and to any other service, except the Ind an Finance Department, which is organised on a time-scale basis". 18. It is an undisputed fact that the service of Income Tax Officers which is at present called as Indian Revenue Service was organised on a time-scale basis. So the rules contained in Sec. 1 would be applicable to Income Tax Officers unless it can be shown that those officers being to the Indian Finance Department. The learned District Judge held that the Income Tax Officers belonged to the Indian Finance Department and it was on this ground that the plaintiff was deprived of the benefit of clause (h) of Article 486. This finding is seriously challenged on behalf of the plaintiff-appellant, 19. The first grievance of the plaintiff appellant is that it involved a question of fact and this plea was never taken by the defendants before the trial court and no issue was framed on it. It was for the first time taken during arguments before the lower appellate court. Thereupon the plaintiff applied to summon additional evidence to disprove this contention of the defendants. It was for the first time taken during arguments before the lower appellate court. Thereupon the plaintiff applied to summon additional evidence to disprove this contention of the defendants. His application was ordered to be put up on a certain date but no final order was passed on that application and the case was disposed of. Apart from that, this finding that the Income Tax Officers belonged to Indian Finance Department is also based on no evidence. 20. On behalf of the plaintiff it has seriously been contended that there is no such thing as Indian Finance Department at present in the Government of India and that what was at one time known as Indian Finance Department was subsequently re-designated as Indian Audit and Accounts Department, as would be apparent from a note contained in Article 36 which states that the Government of India have decided that Assistant Accounts Officers of the Indian Finance (now Indian Audit and Accounts) Department should be considered as non-ministerial officers for the purpose of the Civil Service Regulations. The learned District Judge appears to have equated the Indian Finance Department with the Ministry of Finance, Government of India. That Ministry has got several departments under it including the Revenue Department to which the Income Tax Officers belong. 21. The note that existed below Article 104 indicated that the officiating promotion and acting allowance of officers of the Indian Finance Department are regulated by rules which were in force prior to the September 11, 1920. The learned District Judge does not appear to have ever referred to those rules to see whether they were at all applicable to Income Tax Officers. In fact the Income Tax Department itself came into existence in the year 1922 and it did not exist on 11-9-1920. So this finding that the Income Tax Officers belong to Indian Finance Department and as such the rules contained in Sec. 1 of Chapter VI did not apply to them by virtue of Article 104, and for that reason the acting allowance drawn by such officers cannot be taken a into consideration under Article 486 (h) is not correct. Article 90 as mentioned above, in fact relates to substantively protemper appointments of officers to whom the rules in Sec. 1 of Chapter VI do not apply. Article 90 as mentioned above, in fact relates to substantively protemper appointments of officers to whom the rules in Sec. 1 of Chapter VI do not apply. If the plaintiffs appointment is deemed to be substantively pro-temper, he will be entitled to avail of the benefit of Article 486 (h) even if it is held for arguments sake that the rules in Sec. 1 of s Chapter VI do no apply to Income Tax Officers. If, however, those rules apply to Income Tax Officers as they do apply, in my opinion, the plaintiff would be entitled to avail of the benefit of Article 386 (h) whether his appointment as Income Tax Officer is treated as provisionally substantive, or only in an officiating capacity in a permanent post on which no other officer had a lien. In either case the plaintiff's pension ought to have been fixed by calculating his emoluments under Article 486(h) and not on the basis of Article 487-B (1). 22. As a result of the above finding the appeal succeeds. The judgment and decree passed by the lower appellate court are set aside and the decree passed by the trial/court is restored with costs through out.