DODDAKALE GOWDA, J. ,, J. ( 1 ) ( 2 ) THE question that requires consideration in this petition is whether the subsistence allowance should be paid as per the pay scale that was in force as on the date of suspension or on the basis of revised pay-scale ? ( 3 ) IT arises thus :- the petitioner was appointed as First division Clerk with effect from 2-8-1975 in first respondent establishment on pay. scale of Rs. 400-900. That scale was revised to Rs. 630-1,200 with effect from 1-1-1982. She was promoted to next higher cadre i. e. , as Superintendent with effect from 1-1-1985 in the pay scale of Rs. 860-1,650. First respondent has adopted karnataka Civil Services (Revised Pay) rules, 1987, which came into force with effect from 1-7-1986 and by virtue of this adoption, petitioner became entitled to the revised pay scale of the post of Superintendent with effect from 1-7-1986. ( 4 ) PETITIONER has been placed under suspension with effect from 19-6-1985 in contemplation of a departmental enquiry. Her request to pay/disburse subsistence allowance based on revised pay scale of the pest of a Superintendent which has come into force with effect from 1-7-1980 has been turned down, as per Annexure-E; the validity of which is challenged in this writ petition. ( 5 ) AS issue involved was a pure question of law and a matter of importance, learned High Court Government pleader was directed to take notice on 26-11-1987. By consent, this writ petition was treated as having been posted for hearing. ( 6 ) CONTENTION of respondent was that in addition to adopting revised pay scale of the State, it has also adopted guide lines/instructions issued from time to time re : disbursement of subsistence allowance. Official Memorandum, dated 10th August 1987, after referring to amended rule stated that a Government servant, under suspension, will now be eligible for subsistence allowance at an amount equal to the leave salary which he would have drawn if he had been on leave on half pay. ( 7 ) RELYING on Official Memorandum no. FD 21 SRS 86, dated 10-8-1987, it was contended that subsistence allowance now paid was in order. Official memorandum states that subsistence allowance of a Government servant placed under suspension shall be in accordance with the amended Rule 98 of K. C. S. Rs. ( 7 ) RELYING on Official Memorandum no. FD 21 SRS 86, dated 10-8-1987, it was contended that subsistence allowance now paid was in order. Official memorandum states that subsistence allowance of a Government servant placed under suspension shall be in accordance with the amended Rule 98 of K. C. S. Rs. Clauses 2, 5 and 6 read thus : -"2. According to the amended rule, a Government servant who is placed under suspension will now be eligible for subsistence allowance at an amount equal to the leave salary which he would have drawn if he had been on leave on half pay for the first six months instead of subsistence allowance equal to 75 percent of pay for the first twelve months. xxxx xxxx xxxx xxxx 5. The following instructions are issued for regulating the subsistence to a Government Servant who is already under suspension on 23rd July 1987. (a) If the period of suspension has not exceeded six months, subsistence allowance shall be paid at an amount equal to the leave salary which the government Servant would have drawn if he had been on leave on half pay. The leave salary on half pay has to be calculated with reference to the pay drawn on the date of suspension. (b) If the period of suspension has exceeded six months but has not exceeded twelve months, (i) the amount of subsistence allowance be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance specified in para 5 (a) above, provided the reasons for prolongation of the period of suspension are not attributable to the Government servant ; (ii) the amount of subsistence allowance may be reduced by a suitable amount not exceeding 50 per cent of the subsistence allowance specified at para 5 (a) above, if the reasons for prolongation of the period of suspension are attributable to the Government servant ; (iii) If the period of suspension has exceeded twelve months, the subsistence allowance payable shall be as specified in para 5 (b) (i) or (ii) as the case may be. 6. The payment of dearness allowance, house rent allowance, city compensatory allowance, if admissible, shall be regulated in accordance with Government Notification No. FD 21 SRS 87, dated 8-7-1987. 6. The payment of dearness allowance, house rent allowance, city compensatory allowance, if admissible, shall be regulated in accordance with Government Notification No. FD 21 SRS 87, dated 8-7-1987. "first respondent has faithfully adhered to this Official Memorandum and prima facie, it looked as though the subsistence allowance paid by it was strictly in accordance with the instructions contained in official Memorandum. If that is so. then the Court will have to examine whether these instructions are in conformity with the rules referred to therein or run counter to it. Rule 98 of the Rules reads thus:- before Amendment amended Rule 98. A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments namely: - 98 (1) A Government servant who is placed or deemed to have been placed or continuous to be under suspension shall be entitled to the following payments, namely : - (A) Subsistence Allowance at an amount equal to 75 per cent of the pay which the Government servant was in receipt of or which he would have received but for his proceeding or being on leave immediately prior to the date of suspension and in addition, dearness allowance, if admissible, on the basis of the amount of such subsistence allowance : (a) Subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary, and (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provided that where the period of suspension exceeds twelve months, the authority which made or deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the First twelve months as follows : - rule 118 of the Rules, as amended, reads thus : -"118 (1) A Government servant who proceeds on earned leave is entitled to leave salary equal to the pay drawn immediately before proceeding on such leave. Note.-'pay' for this purpose means the pay as defined in sub-rule 32 of rule 8 of these rules and the rate at which it is admissible immediately before the date of commencement of leave. xxxx xxxx xxxx xxxx (3) A Government servant on half pay leave or leave not due shall be entitled to leave salary equal to half the amount specified in sub-rule (1 ). "'leave Salary' means the monthly amount paid by the Government to a government Servant on leave. 'pay' is defined to mean the amount drawn monthly by a Government servant as the pay including Technical pay, special gpay, personal pay. Special pay or pay granted in view of his personal qualification and any other emoluments which may be specifically classed as Pay by government which has been sanctioned for a post held by him substantively or in en officiating capacity or to which he is entitled by reason of his position in a cadre. ( 8 ) UNDER old Rule 98, a Government servant was entitled to subsistence allowance at the rate of 75 per cent of the pay as on the date of suspension. As suspension of petitioner was prior to the date of revision of pay, subsistence allowance was calculated and paid on the basis of pay then in force. If revision of pay had not intervened, probably, there would not have any dispute regarding quantum of subsistence allowance payable to the petitioner. On a comparison of old and amended rule 98, one would notice the change brought about by the omission of words"was in receipt of or which he would have received but for his proceeding or being on leave immediately prior to the date of suspension". The amended rule though not artistically worded, let me assume that it intends payment of subsistence allowance on half pay leave. 'leave Salary' and 'leave on half pay', as per sub-rules (1) and (3) of Rule 118 are equivalent to the pay and half of it respectively. Sub-rules (1) and (3) of rule 118 quantity the amount payable as 'leave Salary' and half pay for an official proceeding on leave. Rules 98 and 118 deal with different subjects. 'leave Salary' and 'leave on half pay', as per sub-rules (1) and (3) of Rule 118 are equivalent to the pay and half of it respectively. Sub-rules (1) and (3) of rule 118 quantity the amount payable as 'leave Salary' and half pay for an official proceeding on leave. Rules 98 and 118 deal with different subjects. Assuming that a delinquent official would be entitled to half pay as per these rules instead of 75 percent, as they do not specifically refer to date of suspension, as referred to in old rule 98, no assistance can be derived from these rules for the purpose of fixation of subsistence allowance payable to the petitioner. So also, amended rule 98 does not stipulate that subsistence allowance payable should be based on the pay which an official was getting as on the date of suspension. The quantification of subsistence allowance varies with the revision of pay scale. If petitioner was entitled to revised pay-scale, necessarily, she would be entitled to subsistence allowance on the basis of revised pay scale. Considering definition of leave Salary' and 'pay', which means the revised pay scale, petitioner would be entitled to subsistence allowance on the basis of revised pay. In this view, the later part of para 5 (a) of the Official memorandum, dated 10th August 1987 which reads thus : -"the leave salary on half pay has to be calculated with reference to the pay drawn on the date of suspension. "runs counter to the scheme of amended rule 98. Right conferred under a rule framed in exercise of power conferred under proviso to Article 309 of the Constitution of India cannot be anulled or taken away by means of a clarification issued by State Government. Hence, it must be held that subsistence allowance paid on the basis of old pay scale was arbitrary and illegal. ( 9 ) FOR the reasons stated above' writ petition succeeds. A writ in the nature of mandamus shall be issued directing the respondents to pay subsistence allowance on the basis of Revised Pay rules with effect from the date on which the Revised Pay Rules came into force. Rule made absolute. Writ petition allowed. --- *** --- .