Judgement

GAJENDRAGADKAR, C.J.I. : This appeal which has been brought to this Court on a certificate granted by the Orissa High Court, raises a short question about the construction of R.6 of the Rules issued by the Governor-General in Council on the 15th September, 1936 for the protection of members of a Provincial or Subordinate service required to serve in, or in connection with, the affairs of Orissa (hereinafter called "the Protection Rules"). These Rules were framed by the Governor-General in Council in exercise of the powers conferred on him by S. 23 (2) of the Government of India (Construction of Orissa) Order, 1936, in view of the fact that a separate Province of Orissa had already been formed on the 1st April, 1936. The said question arises in this way.

2. The respondent, Durga Charan Das, joined as an Assistant in the old Bihar and Orissa Secretariat prior to the formation of the Province of Orissa. When the said Province was formed he was transferred to the Orissa Secretariat Home Department. In due course, he was promoted to higher posts, such as Junior Head Assistant and Senior Head Assistant,. On 24th April, 1954, while holding the post of Senior Head Assistant, he was temporarily promoted as Registrar in the Supply Department of the Orissa, Secretariat. On 22nd December, 1954, he was reverted to his substantive post as Head Assistant in the Home Department. Later, he was again promoted to officiate as Registrar in the Supply Department on 3rd February, 1956. In June, 1957, he was promoted to officiate as Assistant Secretary in the same Department, and ultimately he was confirmed as Registrar in the Orissa Secretariat on the 14th October, 1958. Eventually, he retired from Service on the 17th October, 1959.

3. At the time of his retirement, a question arose about fixing the amount of his pension. For the purpose of determining this amount, the relevant date was the date on he was confirmed as Registrar , because he held the post of the Assistant Secretary to which he was promoted for some time, only on an officiating basis. The appellant, the State of Orissa, fixed the pension of the respondent at Rs. 190 per month by reference to 14th October, 1958, which was the date on which he was confirmed as Registrar. The respondent then represented to the appellant that he should be deemed to have been confirmed as Registrar on the 24th April, 1954, and his pension calculated on that basis at the rate of Rs. 290 p.m. In the alternative, he urged that he should be deemed to have been confirmed as Registrar at the latest on the 23rd August, 1956; he pleaded this date, because his case was that on that date, Mr. J. N. Dutta, who was Junior to him in the cadre of the old Bihar and Orissa Secretariat, had been confirmed as Registrar in the Bihar Government. On this latter basis, the respondent would be entitled to get Rs. 240 p.m. as pension. The appellant rejected both the prayers made by the respondent, and that took the respondent to the High Court under Art. 226 of the Constitution. By this writ petition, the respondent claimed an appropriate writ calling upon the appellant to fix his pension either on the footing that he had been confirmed as Registrar on the 24th April, 1954, or, at any rate, on the 23rd August, 1956.

4. This plea was resisted by the appellant and it was pleaded by it that the claim made by the respondent was not justified by the provisions of R. 6 of the Protection Rules. The High Court has held that the respondent s claim to have his pension calculated on the basis that he should be deemed to have been confirmed as Registrar on the 24th April, 1954, was not well founded. It has, however, found in favour of the respondent in regard to the alternative claim made by him, and accordingly it has directed the appellant to re-fix the pension payable to the respondent on the footing that the respondent should be treated as having been confirmed as Registrar in the Orissa Secretariat with effect from 23rd August, 1