GHULAM MOHAMMED, J. ( 1 ) THE petitioner has filed the writ petition seeking for a direction in the nature of writ of mandamus to declare clause 3 (i) of Circular no: PER: I R:40, dated December 5, 1989 as illegal and unconstitutional and to direct the respondent to pay subsistence allowance to the petitioner in the revised pay scales from May 6, 1987 onwards. ( 2 ) THE backdrop of the case, which led to the filing of this writ petition, is that the petitioner was placed under suspension by the 1st respondent with effect from May 6, 1987 vide reference VIG No. 0563, dated May 6, 1987 and in terms of paragraph 2 thereof, he was paid subsistence allowance as per Rule no. 50-A (7) (i) and (iii) of State Bank of India (Supervising Staff) Service Rules. The 3rd respondent was paying him the subsistence allowance, uninterruptedly from May 6, 1987 till July 31, 1990 every month regularly. But when he approached the 3rd respondent for payment of subsistence allowance for the months of August, 1990 and September, 1990, he refused to pay the same and issued the impugned order in reference No. SF23, dated October 23, 1990 stating that "the petitioner is not eligible for subsistence allowance with effect from august 13, 1990 vide H. O. instructions". No reasons are assigned for the same, as a result of which, the petitioner was deprived of getting the subsistence allowance. The H. O. instructions were not served on him. The petitioner was convicted and sentenced to suffer S. I. for one year in C. C. No. 17 of 1989 on August 13, 1990 against which he preferred an appeal in Crl. Appeal No. 833 of 1990 before this Court. He also preferred Crl. M. P. No. 2334 of 1990 wherein he was released on bail. He has no other means of living except depending on the subsistence allowance, which he had been getting. Since his contract of service has been subsisting with the respondent-Bank and since the Criminal appeal No. 833 of 1990 is pending before this court and this Court has already held in similar cases that subsistence allowance is payable under similar condition, he is entitled to be continued to be paid subsistence allowance. Since his contract of service has been subsisting with the respondent-Bank and since the Criminal appeal No. 833 of 1990 is pending before this court and this Court has already held in similar cases that subsistence allowance is payable under similar condition, he is entitled to be continued to be paid subsistence allowance. It is further averred that the salary scales for officers in the respondent-Bank have been revised resulting in substantial increase in the emoluments of the officers with effect from november 1, 1987 in terms of impugned : circular. Clause 3 (i) of the impugned Circular is illegal, arbitrary and unconstitutional inasmuch as a patent discrimination is made between the officers suspended prior to november 1, 1987 and the officers suspended on or after November 1, 1987. The impugned order dated October 23, 1990 stopping the payment of subsistence allowance without assigning any reasons, is illegal and unconstitutional. While the criminal appeal is. pending, he has no other means of living and he is still in service and not terminated from the service. In similar circumstances in W. P. No. 9700 of 1986 even when the petitioner therein was dismissed from service, this Court directed that subsistence allowance be paid to him and the Apex Court confirmed the above judgment and this cases is fully covered by the above judgment. ( 3 ) THE respondent-Bank has filed the counter inter alia contending that in terms of rule 50-A (7) (1), the employee who is placed under suspension, is entitled to receive subsistence allowance equivalent to half of his substantive salary and such other allowance as the appropriate authority decides. Since the petitioner was placed under suspension on May 6, 1987, the petitioner was eligible for subsistence allowance on the basis of his salary drawn prior to that date. The salaries of officers of the Bank were revised vide impugned circular. Since the petitioner was placed under suspension prior to the date of revision of salary i. e. November 1, 1987, he was not eligible for subsistence allowance on the revised pay scales. In compliance with the orders of this Court in W. P. M. P. No. 2093 of 1990 in W. P. No. 16291 of 1990, dated november 23, 1990, the petitioner was paid subsistence allowance as per pre-revised rates. The respondent-Bank vide its letter dated March 5, 1991, discharged the petitioner from service. In compliance with the orders of this Court in W. P. M. P. No. 2093 of 1990 in W. P. No. 16291 of 1990, dated november 23, 1990, the petitioner was paid subsistence allowance as per pre-revised rates. The respondent-Bank vide its letter dated March 5, 1991, discharged the petitioner from service. The order of discharge of the petitioner from service was made in terms of Section 10 (l) (b) (l) of the banking Regulation Act r/w Rule 50-A (7) (1) of the State Bank of India Supervising Staff services Rules. Section 10 (l) (b) of Banking regulation Act reads as under:"no Banking company shall employ or continue the employment of any person (i) who is or at any time has been adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been convicted by a criminal Court of an offence involving moral turpitude. "rule 50 (7) of the State Bank of India (Supervising Staff) Service Rules reads as under:"notwithstanding anything contained in sub-rules (2), (3) and (4) where an employee is at any time or has been adjudicated insolvent or has suspended payment or has compounded with his creditors or has been convicted by a criminal Court of an offence involving moral turpitude the appointing authority may discharge the employee from Bank service without any notice whatsoever and no appeal shall lie against such discharge. " ( 4 ) IT is further contended that mere pendency of an appeal does not amount to setting aside the order of conviction passed by the Special Judge for SPE and ACB cases on September 13, 1990. Since the petitioner was discharged from service, he is not entitled to any subsistence allowance. The contention of the petitioner that by clause 3 (i) of the Circular, a discrimination has been made between the officers suspended prior to november 1, 1987 and the officers suspended on or after November 1, 1987, and as such, it is an obnoxious clause and it should be struck down, is not tenable. The petitioner has been paid subsistence allowance from august 1990 onwards in compliance with the interim orders of this Court in W. P. M. P. No. 20932 of 1990, dated November 23, 1990 in the pre-revised scales and that the petitioner is not entitled for payment of subsistence allowance on the revised pay scales. The petitioner has been paid subsistence allowance from august 1990 onwards in compliance with the interim orders of this Court in W. P. M. P. No. 20932 of 1990, dated November 23, 1990 in the pre-revised scales and that the petitioner is not entitled for payment of subsistence allowance on the revised pay scales. ( 5 ) DURING the pendency of this writ petition, the petitioner filed W. P. M. P. No. 7542 of 2001 seeking for an amendment to the main prayer in this writ petition as under:"to issue a writ or direction, preferably in the nature of writ of mandamus and declare clause 3 (i) of Circular No. PER: IR: 40, dated December 5, 1989 as illegal and consequently direct the respondents to pay the subsistence allowance to the petitioner in the revised pay scales from May 6, 1987 onwards and alternatively with a further direction to the respondents to pay the petitioner full pay from May 5, 1987 till march 5, 1991" ( 6 ) IT is inter alia averred by the petitioner in the Additional Affidavit filed in support of the above petition, that consequent on his conviction in C. C. No. 17 of 1989 on August 13, 1990, he was discharged from Bank service on March 5, 1991 and thereafter, he filed W. P. No. 6160 of 1991 before this Court and the same is pending. Criminal Appeal No. 833 of 1990 against C. C. No. 17 of 1989 was allowed and the conviction and sentence was quashed. On the representation made by him, the order of discharge was withdrawn on november 19,1996 and he was placed under suspension with effect from November 19, 1996. On July 8, 1994 second charge-sheet was filed by the C. B. I, contrary to the directions of this Court and the same was registered as C. C. No. 14 of 1994 and he was once again convicted. Questioning the same, he filed Crl. Appeal No. 402 of 1997. On may 26, 1997 the petitioner was once again discharged on being convicted. "by order dated May 26, 1997 the respondent-Bank has stated that the period of suspension will not be treated as on duty. The said order dated may 26, 1997 refers to the period of suspension with effect from November 19, 1996 to May 26, 1997. On may 26, 1997 the petitioner was once again discharged on being convicted. "by order dated May 26, 1997 the respondent-Bank has stated that the period of suspension will not be treated as on duty. The said order dated may 26, 1997 refers to the period of suspension with effect from November 19, 1996 to May 26, 1997. In so (sic) period he is entitled to get full wages because no such order was passed on March 5, 1991 when he was discharged from service. Denial of the same is illegal and arbitrary. However in view of the subsequent developments, he seeks permission to amend the prayer as stated above in the writ petition. ( 7 ) HEARD Mr. K. Lakshmi Narasimha, the learned counsel for the petitioner and Mr K. Srinivasa Murthy, the learned Standing counsel for the respondent-Bank. ( 8 ) THE learned counsel for the petitioner would contend that discharge is not a punishment contemplated under the regulations and when once discharge order is withdrawn on some technical ground and immediately, the petitioner was placed under suspension under the same proceedings dated november 19, 1996, the petitioner is entitled for salary from May 6, 1987 onwards. He would further contend that in the absence of any rule or regulation, the bank has issued impugned circular drawing distinction among the same class of officers by imposing clause 3 (i) with regard to the payment of subsistence allowance to the employees who are suspended prior to November 1, 1987 and who are suspended on or after November 1, 1987. He would further contend that when the revised pay scales are applicable to all the employees concerned with effect from november 1, 1987, the computation of the subsistence allowance both on pre-revised and revised scales under clause 3 (i), has no rational nexus to the object to be achieved, and as such, the said clause is in violation of Article 14 of the Constitution. ( 9 ) ON the other hand, the learned standing Counsel for the respondent-Bank would contend that the relief sought for in the writ petition, is without any statutory sanction and that in the absence of any rule or regulation, the Bank is at liberty to draw a distinction as to how the subsistence allowance has to be regulated during the period of suspension and that by issuing the impugned Circular, the rights of the petitioner much less the legal rights, have not been infringed. He would contend that there is no prohibition under the rules to pay the subsistence allowance in the pre-revised scales in case of revision of pay scales and that the relief what is sought in the writ petition, is nothing but seeking for an amendment to the impugned Circular which is impermissible. Unless the statute permits or sanctions under the rules contemplated, no one can (sic) claim any benefit as a matter of fact. When the statute or the rule is silent an the above aspects, the impugned Circular stands operated, and, it is purely an administrative act and that drawing such a distinction under clause 3 (i) is neither arbitrary nor discriminatory. ( 10 ) ON the rival contentions, the crux of the point that arises for consideration, is whether there is a justifiable criterion on the part of the respondent-Bank to draw a line between those who were suspended prior to november 1, 1987 and those who were suspended on or after November 1, 1987 as to the drawing of subsistence allowance and whether it is in violation of Article 14 of the constitution warranting any interference by this Court. ( 11 ) IT is the first contention of the learned. counsel for the petitioner that when once the discharge order was withdrawn and on the same ground, he was again placed under suspension under the same proceedings, the petitioner is entitled to full salary from the date of suspension till the date of withdrawal of discharge order. As a matter of fact, this writ is moved seeking for a direction to declare clause 3 (i) of the impugned Circular as illegal and for a direction to the respondent-Bank to pay the subsistence allowance in the revised pay scales from May 6, 1987. As a matter of fact, this writ is moved seeking for a direction to declare clause 3 (i) of the impugned Circular as illegal and for a direction to the respondent-Bank to pay the subsistence allowance in the revised pay scales from May 6, 1987. But, he filed an amendment petition seeking for amendment of the prayer to pay the subsistence allowance in the revised pay scales from May 6, 1987 onwards and alternatively to pay the full salary from May 5, 1987 till March 5, 1991. However, the question of payment of salary at this stage during the pendency of the criminal proceedings as admitted by the petitioner and in the absence of any final conclusion by the disciplinary authority, would not arise inasmuch as the petitioner challenges the impugned Circular alone and consequently seeks for payment of salary as an alternative relief. As such, the above contention as to the payment of salary cannot be accepted at this premature stage. ( 12 ) WITH regard to the relief sought for in the writ petition, it is the contention of the learned counsel for the petitioner that in the absence of any rule or regulation, the bank has issued impugned Circular drawing distinction among the same class of officers by imposing clause 3 (i) with regard to the payment of subsistence allowance to the employees who are suspended prior to november 1, 1987 and who are suspended on or after November 1, 1987 and that when the revised pay scales are applicable to all the employees concerned with effect from november 1, 1987, the computation of the subsistence allowance both on pre-revised and revised scales under clause 3 (i), has no rational nexus to the object to be achieved, and, as such, the said clause is in violation of article 14 of the Constitution. ( 13 ) I have perused the entire material and the rules available on record. ( 14 ) CLAUSE 3 (i) of the Circular No: per:ir:40, dated December 5, 1989 reads as under:"officers under suspension: For officers in whose case the date of suspension is prior to the date of salary revision i. e. November 1, 1987, there will be no change in the subsistence allowance arising out of the. salary revision, unless the Disciplinary authority has taken a final view and the period under suspension treated as on duty. salary revision, unless the Disciplinary authority has taken a final view and the period under suspension treated as on duty. However, where an officer was placed under suspension on or after November 1, 1987, his fitment in the revised scales may be done as on November 1, 1987: consequently, the subsistence allowance payable to him may also be recalculated on the basis thereof and resultant arrears of , salary and subsistence allowance paid to him. " ( 15 ) AN employee who is placed under suspension is entitled to the subsistence allowance during the said period for the survival of his family. A perusal of the above clause clearly goes to show that a distinction is drawn in respect of the same set of officers as to the entitlement of subsistence allowance both on pre-revised scales and revised scales. The distinction drawn among the employees on the basis of the date of suspension under the above clause is not based on any rational principle and the same is not in consonance with the object to be achieved by the statute. ( 16 ) IN D. S. Nakara v. Union of India AIR 1983 SC 130 : 1983-I-LLM04 the Apex Court has held thus :"the fundamental principle is that Article ( 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. The doctrine of principle was evolved to sustain a legislation or State action designed to help weaker Sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if "it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but, correlate it to the objects sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but, correlate it to the objects sought to be achieved. Where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that cannot be done when they are in service, can that be done during their retirement? Expanding this principle, it can confidently be said that if pensioners form a class, their: computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. " ( 17 ) IN the instant case, the officers working in the same institution cannot be differentiated and afforded unequal treatment by different formula under the same beneficial clause i. e. clause 3 (i) of the impugned Circular. The principle laid down by the Apex Court in the above decision, clearly vitiates the differentia formulated under clause 3 (i) of the impugned Circular. In Pratap Singh v. Stale of Punjab AIR 1964 sc 72 : 1966- I-LLJ-458 the Apex Court has held thus at p. 465 of LLJ:"the Constitution enshrines and guarantees the rule of law and Art. 226 is designed to ensure that each and every authority in the State, including the government, acts bona fides and within the limits of its power and when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. " ( 18 ) IN the instant case, the revision of lay scales was made applicable to all the :mployees working under the respondent iank. But, when it comes to the payment of ubsistence allowance, in the absence of any ule or regulation governing the issue, the mpugned Circular had been issued drawing : distinction among the same group of ifficers that those who are suspended prior to November 1, 1987 are entitled to the ubsistence allowance in the pre-revised cales and those who are suspended on or. fter November 1, 1987, are entitled to the ubsistence allowance in the revised scales, mposing such a clause in the absence of any ule or regulation, amounts to abuse or misuse of power, which requires interference by this court. ( 19 ) IN State Bank of India v. T. J. Paul, air 1999 SC 1994 : 1999-II-LLJ-514, the apex Court has held thus at p. 515 of LLJ:"taking up the definition of gross misconduct in paragraph 22 (iv), it is obvious that clause (h) does not apply because the charge is not one of insubordination or disobedience of specific orders of any superior officer. Coming to clause (1) of paragraph 22 (iv), the doing of any act prejudicial to the interests of the bank, or gross negligence or negligence involving or likely to involve the Bank in serious loss is gross misconduct. In other words likelihood of serious loss coupled with negligence is sufficient to bring the case within gross misconduct. The inquiry Officer s finding of gross misconduct on the ground of not obtaining adequate security is, therefore, correct and cannot be said to be based on no evidence as held by the High Court. This can be contrasted with paragraph 22 (vi) (c) under minor misconduct which deals with neglect of work and negligence in performing of duties . In our view, the contention of the learned senior Counsel for the appellants Sri T. R. Andhyarujina is, therefore, entitled to be accepted. " ( 20 ) THE facts and circumstances in the above decision are quite different to that of the case on hand. The question of interpretation of the gravity of charge does not arise in this case inasmuch the respondent-Bank has not issued any charge-sheet nor conducted any enquiry in the instant case. Therefore, with due respect to the principles laid down by the Apex Court, the above decision has no application to the facts of the case on hand. ( 21 ) IN the instant case, there is no bar to initiate disciplinary proceedings by framing charges. But, no such enquiry is initiated and no charge memo has been served on the petitioner. The petitioner was suspended basing on the information that a charge-sheet had been filed by the police and the said proceedings are not yet concluded inasmuch as the criminal appeal and writ petition are. pending before this Court. But, no such enquiry is initiated and no charge memo has been served on the petitioner. The petitioner was suspended basing on the information that a charge-sheet had been filed by the police and the said proceedings are not yet concluded inasmuch as the criminal appeal and writ petition are. pending before this Court. For such a prolonged suspension, denying the benefit by regulating the subsistence allowance with that of the revised pay scales of 1987 with effect from November 1, 1987, in my considered view, is arbitrary and discriminatory. ( 22 ) THE power to issue a writ of prerogative under Article 226 of the constitution is plenary in nature and is not limited by any other provision of the constitution and this Court having regard to the facts of the case has discretion to entertain or not to entertain a writ petition. In the instant case, there was no justifiable criterion in the respondent-Bank to draw the line between those who were suspended prior to november 1, 1987 and those who were suspended on or after November 1, 1987 as to the entitlement of subsistence allowance in the revised pay scales and that such a differentia among the same set of officers working in the same Institution, would defeat the purpose of the object to be achieved and is contrary to fair play and justice. When the employees under clause 3 (i) form the same set of officers, the subsistence allowance in the revised pay scales should be made available to all of them whether they had been suspended prior to November 1, 1987 or on or after November 1, 1987. Such a denial of the subsistence allowance in the revised pay scales to some of the employees would be arbitrary and fall in foul on the touchstone of Article 14 of the Constitution of india. The facts and circumstances of the instant case fall on line in ratio of the decision in Nakara s case (supra ). ( 23 ) IN this view of the matter, I am of the opinion that the ends of justice would be met if the respondent-Bank were directed to regulate the subsistence allowance as per the revised pay scales of 1987. ( 23 ) IN this view of the matter, I am of the opinion that the ends of justice would be met if the respondent-Bank were directed to regulate the subsistence allowance as per the revised pay scales of 1987. ( 24 ) IN the result, the writ petition is allowed and the respondent-Bank is directed to calculate the subsistence allowance as per the revised pay scales from November 1, 1987 till November 19, 1996 and pay the same after deducting the subsistence allowance, if paid in the pre-revised scales, to the petitioner within a period of 8 (eight) weeks from the date of receipt of copy of this order. ( 25 ) THAT Rule Nisi has been made absolute as above.