Judgment

SHAH, J. : This is an appeal against the judgment of the High Court of Judicature at Patna from an order commanding the Accountant General of Bihar, Ranchi to pay certain passage allowance due under the Superior civil services (Revision of Pay and Pension) Rules, 1924, to the wife and/the children of the respondent.

2. After passing the competitive examination held in London in August 1924 the respondent N. Bakshi was admitted in November, 1924 to the Indian Civil Service and was, after his arrival in India, posted in the Province of Bihar. He continued to serve in the State of Bihar after independence.

3. On February 3, 1956, the respondent enquired of the Accountant General of Bihar about the number of passages to which he and the members of his family were entitled under the Superior Civil Services (Revision of Pay and Pension) Rules, 1924--hereinafter called the Statutory Rules. The Accountant General, by letter dated March 6, 1956, stated that £ 284-6s. stood in the respondent s credit £ 841-3-5d. stood in the account of his wife and £ 138 stood credited in the separate accounts of each of his four children. The respondent then arranged to travel to the United Kingdom and on June 20, 1956 obtained "passage certificates" from the Accountant General, Bihar. On July 12, 1956, the respondent was informed that the Govt. of India were of the opinion that the passage benefits admissible to officers of Indian domicile under the said Statutory Rules, were inconsistent with the existing circumstances and it was decided with effect from the date of issue of the order that the benefits shall cease and the passage accounts of Indian Officers of the former Secretary Of State Services shall be closed and passage credit" left over will lapse to the Government.

4. On February 5, 1957 the Government of India framed, in exercise of the powers conferred by sub-s. (1) of S. 8 of the All India Services Act, 61 of 1951, the All India Services (Overseas Pay, Passage and Leave Salary) Rules, 1957. By cl. 3 of the Rules passage benefits provided by the statutory Rules ceased with retrospective effect from July 12, 1956 to apply to the members of the Indian Civil Service. The appellant protested against the cancellation of the passage benefits for himself and the members of his family. The Government of India waived the original order of July 12, 1956 in favour of the respondent and ordered that he be granted passage benefit for himself but declined to relax the order in favour of the wife and children of the respondent. The respondent accompanied by his wife and children proceeded to the United Kingdom as originally arranged and on his return filed a petition under Art. 226 of the Constitution for a writ in the nature of mandamus against the Accountant General, Bihar commanding him to pay the prescribed passage money in, respect of the respondent s wife and children out of the amounts which stood to their credit in the General Passage Fund Account and to issue appropriate direction, order or writ in that behalf. This petition was granted by the High Court and a writ of mandamus as prayed was issued. The Accountant General and the Union of India have appealed to this court against the order with certificate of fitness granted by the High Court.

5. To appreciate the grounds on which the impugned order was made it is necessary to refer to the Statutory Rules for passage benefit framed in 1924 by the Secretary of State in Council and the amendments thereof in the light of constitutional development since that date.

6. The Statutory Rules were framed by the Secretary of State for India-in-Council under S. 96B (2) and (3) of the Government of India Act, 1919 on December 9, 1924. Rule 12 of the Statutory Rules provides :

"12. In addition to the pay prescribed by these Rules passage pay shall be granted at the rates and subject to the conditions set out in Schedule IV, to the members of the services and holders of appointments enumerated in Appendix A t