1. AN WARUL HAQ, J.-This judgment will dispose of connected Civil ,Appeals bearing Nos. 39, 40 and 41 of 1973, which are between the same parties, and concern the fixation of the terms and conditions of service of Lt: Col. (Rtd.) J. D. Malik, in his capacity as a Member of the Pakistan Co-operative Board, set up by the Provincial Government with effect from the 7th of May 1962 in exercise of the powers conferred on it by section 3 of the 'West Pakistan Co-operative Development Board Ordinance (XIV of 1962).
2. His changed designation will be Member, Finance and Development (M. F. D.)".
3. On the 31st of August 1963, the Governor of West Pakistan issued orders laying down the scale of emoluments for the official Members of the Board. Paragraph 1 of these orders spelt out the general formula applicable to each category of officers, whereas paragraph 2 specified the emoluments payable to individual Members. It was stipulated that Lt.-Col. Malik will get pay equal to his basic pay last drawn in the Army (excluding pays and allowances like command pay, disturbance pay, deferred pay, appointment pay, good service pay, dearness allowance, etc.) plus a special pay of Rs. 300 less pen--sion. According to this formula the not amount payable to this Officer came to Rs.
4. 635, as the basic pay last drawn by him was Rs. 1,100 out of which his Army pension amounting to Rs. 765 was to be deducted.
5. Lt.-Col. J. D. Malik refused to accept the emoluments fixed by the Government orders dated the 31st August 1963 and represented, by means of a letter written in September 1963 (exact date not mentioned in the letter), that he had not been fairly treated in this behalf, as his monthly pay and allowances in East Pakistan, at the time of his appointment as Member of the Board, came to over Rs. 2,000 in addition to a partially furnished house and free transport. After pointing out that the pay offered to him for the job was Rs. 1,400 p m. In addition to his pension, he asserted that "the offer and its acceptance constituted a contract", and that the Chairman of the Board was fully competent to offer such a contract. He went on to add that "the con--tract pay plus my pension (Rs. 1,400 plus Rs. 600 equal to Rs. 2,000) does not exceed the maximum laid down under Note (3) of rule 9.6 of the West Pakistan Civil Services Pension Rules". He ended this letter with the follow--ing prayer:- "I, therefore, request that the contract which is a fait accompli in the eyes of law and which is in order in the context of the existing rules and regulations may please be honoured and a pay of Rs 1,400 in addition to pension be allowed."
6. The Government, however, turned down the representation by its letter dated the 26th of August 1964, and reiterated that the orders already passed in this behalf on the 31st of August 1963, shall stand. Thereupon, the officer served a legal notice on the Provincial Government and the Chairman of the Board on the 15th of September 1964. In paragraph 2 of this notice it was stated that Lt -Col. Malik had accepted the offer made to him by Mr. Riazud--din Ahmed, namely, pay of Rs. 1,400 p.m.
7. In addition to his pension. In paragraph 3 it was stated that "there were no other terms and conditions of service attached to the letter of offer which were communicated to my client and formally accepted by him, except what was contained in it". In the succeed--ing paragraphs of the notice reference was made to various rules, regulations and letters issued by the Central and Provincial Governments from time to time, with a view to showing that the offer made by Mr. Riazuddin Ahmed and accepted by Lt.-Col. Malik, did not in any way contravene these rules etc. In paragraph 19 of the notice it was claimed that the correct pay of Lt.-Col. Malik, in accordance with the terms of his contract, was basic pay Rs. 1,400, plus special pay of Rs. 330 p.m., plus allowances and amenities like house rent at 20 % of salary, free medical treatment, free transport and entertainment allowance. In paragraph 20 of the notice it was added that if the pay of the Officer was to be determined in accordance with the existing rules and regulations then he would be entitled to Rs. 2,300 p.m. As allowed to a Joint Secretary to the Central Government besides special pay and other allowances already mentioned. In the concluding paragraph of the notice, a request was made that the Government may fix the pay and allowances of Lt.-Col. Malik in accordance with the "above principles with effect from 13-5-1962 and pay his arrears at an early date".
8. The matter remained in correspondence between Lt.-Col. Malik, the Chairman of the Board and the Provincial Government for more than two years, during which time the West Pakistan Co-operative Development Board (Dissolution) Act 11 of 1966 was promulgated on the 22nd of December 1966, and the Board was dissso lved with effect from the 31st of December 1966, on which date Lt-Col. Malik and the other Members as well as the Chairman vacated office.
9. Ultimately, on the 6th of November 1967, the Provincial Government agreed to allow Lt.-Col. Malik the emoluments offered to him by the then Chairman of the West Pakistan Co-operative Board, namely, basic pay of Rs. 1,400 p.m. In addition to his Army pension. In implementation of this order, Lt.-Col. Malik was called upon to refund a sum of Rs. 26,471.04 which he was found to have overdrawn during the period of his tenure of Office from 13-5-62 to 31-12-66. It was discovered that in addition to drawing salary at the provisional rate of Rs. 1,000 p.m, Lt.-Col. Malik had also drawn the following amounts:-
(a) Medical Allowance at the rate of 7.5 % of his salary with effect from 16-1-63 to 31-12-66;
(b) House Rent at the rate of 15 % of his pay with effect from 1-10-1966 to 31-12-1966;
(c) A lump sum advance of Rs. 16,000 ;
(d) T. A. Advance amounting to Rs. 3,101 ;
(e) Rs. 8,224.07 from the funds of Rahwali Co-operative Sugar Mills ; and
(f) Rs. 20,000 from the funds of Shahdara Pioneer Flour Mills.
10. The last two industrial concerns were among the projects placed under the control of the officer as a Member of the Board.
11. The officer refused to comply with the Government demand for refund of Rs. 26,471.04 on the plea that the Government had not determined his emoluments correctly by its orders dated the 5th of November 1967, and that in any case he was not liable to refund any amount. He made several representations justifying the drawal of medical allowance and house rent etc.,as well as the other amounts mentioned above. These representations were finally rejected by the Provincial Government on 12-3-1971 on the ground that Lt: Col. Malik's emoluments had been correctly fixed according to the terms of his contract and he was not entitled to any remuneration beyond that contract. A final order was accordingly made on 26-3-1971 for the recovery of the overdrawn amount in 12 equal installments of Rs. 2,205 each.
12. Aggrieved by these orders of the Provincial Government, Lt.-Col. J. D. Malik instituted Writ Petition No. 661-S of 1971 in the Lahore High Court, but the same was dismissed by a learned Single Judge of that Court by his order dated the 22nd of December 1971. The learned Judge held that the question of the emoluments of the petitioner before him was governed by the contract which had come into existence as a result of the offer made by Mr. Riazud--din Ahmed on 16-2-1962, and accepted by Lt.-Col. Malik when he assumed office as Member of the Board with effect from the 12th of May 1962.
13. The learned Judge also observed that this position having been ultimately accepted by the Provincial Government by its letter dated the 6th of November 1967, the two further letters of the 12th and the 26th of March 1971 were merely in the nature of consequential action and did not call for any interference by the High Court.
14. Dissatisfied with the order of the learned Single Judge, Lt.-Col. Malik filed an appeal (No. 7 of 1972) under clause 10 of the Letters Patent which has been accepted by a Division Bench of the High Court by its order dated 1-8-1972. The learned Judges have expressed a doubt as to whether the offer contained in Mr. Riazuddin Ahmad's letter dated 16-2-1962 could be regarded as a valid and legal contract, although they have given no reasons for entertaining this doubt. They have further observed that "it is arguable if the concept of pay, as mentioned in the letter of Mr. Riazuddin Ahmad, denoted the not salary, to the exclusion of all other allowances: It cannot, therefore, be held that the contract, if any, excluded the payment of allow--ances payable to other holders of the office to which the appellant was appointed. In fact, the matter of remuneration and allowances is not dealt with in its entirety in the letter dated 16-2-1962 issued by Mr. Riazud--din Ahmad. In our opinion, therefore, the remuneration and allowances of the appellant have not yet been determined, as warranted by law, and that the Government has still to perform the statutory duty cast upon it by the provisions of section 4(3) of the Ordinance in this respect." They have gone on to add that when the Provincial Government letter, dated the 31st August 1963 was issued regarding the remuneration and allowances of the Members and the Chairman of the Board, a letter issued by the Establishment Division of the Central Government on 21-2-1963 on the subject of the emoluments payable to Chairman and Members of various autonomous Cor--porations was already in the field, with the result that the remuneration and allowances payable to Lt-Col. Malik had to be determined in terms of that letter. On this view of the matter, the learned Judges of the Division Bench have declared Government letters, dated 6th of November 1967, 12th of March 1971 and the 26th of March 1971 to be without lawful authority and of no legal effect, and they have further directed that the emoluments and allowances payable to Lt.-Col. Malik be determined afresh by the Provincial Government in the light of the Central Government letter just mentioned.
15. Civil Appeal No. 39 of 1973, by the Provincial Government and the Administrator of the Co-operative Development Fund and Projects (successor---in-interest of the Board), is directed against this judgment, dated 1st of August 1972 of the Division Bench of the High Court in Letters Patent Appeal No. 7 of 1972. officials to finalise the matter by mutual discussions, the Division Bench made an order on 10-1- 1973 that it would be appropriate if Lt: Col. Malik were to file a fresh Writ Petition to challenge the latest decision taken by the Provincial Government and em--bodied in its letter, dated the 14th of December 1972, by which he was called upon to refund a sum of Rs. 68,668 instead of Rs. 26,471.04 as determined earlier under the orders, dated the 12th and the 26th of March 1971.
(1) Pay:
(a) Pay from 13-5-1962 to 30th of June 1963 at Rs. 2,600 p.m. Vide Central Civil Services (Revision of Pay) Rules, 1951;
(b) From 1-7-1963 to 31-12-1966 at Rs. 2,300-100-2,600, first increment due on 31-12-1962 vide Pay Revision Rules, 1964. This basic pay was to be admissible in addition to the Army pension of Lt.-Col. Malik. In short, he was eligible to the pay of Joint Secretary to the Central Government plus his Army pension.
(2) House Rent: There was no reason why the petitioner should be required to refund the house rent allowance drawn by him from 1-10-1965 at the rate of 15 % of his basic pay vide resolution adopted at a meeting of the Board held on the 20th of October 1965.
(3) Medical Allowance: There was no dispute.
(4) Car Allowance:.
16. There was no dispute.
(5) T. A./D. A.: There was no dispute.
(6) Leave Salary: Claim for 3 --months leave salary was correct.
17. Civil Appeal No. 41 of 1973, again by the Provincial Government and the Administrator of the Co- operative Development Fund and Projects, is directed against this order, dated the 1st of March 1973.
18. Lt.-Col. Malik also felt dissatisfied with the order made by the High Court in W. P. No. 107-S of 1973, and Civil Appeal No. 40 of 1973 is on his behalf. His grievance is that in some material respects the learned Judges have, altered their previous judgment in L. P. A. No. 7/72, in invoking Pay Revision Rules of 1951/1964 as against Rule 9.6 of the Pension Rules, which had been previously relied upon.
19. He contends that the learned Judges were in error in omitting special pay while fixing the monthly salary admissible to him. He is also aggrieved by the observations of the Division Bench to the effect that there was no dispute regarding medical allowance and some other ancillary matters. the two appeals by the Provincial Government and the Administrator of the Co-operative Development Fund and Projects, it is contended by Sh. Ghias Mohammad-
(a) that the emoluments of Lt.-Col. J. D. Malik, on his appointment as Member of the Board, having been fixed on the basis of a contract between the parties, the High Court was in error in thinking that the said contract was not binding on the respondent ;
(b) that the respondent had himself all along been insisting that his pay be fixed according to the contract based on the offer made to him by Mr. Riazuddin Ahmad, as Commissioner of Co- operative Societies, West Pakistan, namely, pay of Rs. 1,400 p.m. Plus Army pension, and this claim having been accepted by the Provincial Government on 6-11-1967, the respondent could not now be permitted to repudiate this contract with reference to rules, regulations and memoranda issued by the Provincial and Central Governments from time to time, as these had no bearing on the terms of his contract;
(c) that in the absence of a binding contract the matter was to be governed by orders made by the Provincial Government under section 4 of the Ordinance, and not by the directions contained in the letter issued by the Central Government in the Establishment Division on the 21st of February 1963 ; and
(d) that the respondent had drawn medical allowance and house rent allowance on his own authority, and had also withdrawn huge amounts, without proper authorisation, from the funds of the industrial projects placed under his control, and the High Court was in error in holding that these unauthorised withdrawals were not liable to be refunded by the respondent.
20. He has next asserted that in any case from the 15th of June 1963 onwards he became entitled to these emoluments owing to a change in his designa--petition and the sphere of duties entrusted to him as Member, Finance and Development, particularly after the promulgation of Public Investments (Financial Safeguards) Ordinance (XLVI of 1960). Another contention put forward by him is that as the offer made to him by Mr. Riazuddin Ahmed dealt only with basic pay, the ancillary matters regarding special pay and allowances payable to him were to be governed by the relevant rules and instructions as held in K. M. Sana v. Government of West Pakistan (PLD 1962 Lah.
21. 509 It is further submitted by the respondent that all appointments to autonomous Corporations are in the nature of contractual appointments, and, therefore, there could be no discrimination between the terms and conditions allowed to him, as a re-employed Army Officer, and to others who may be on deputation from their parent departments. Finally the respondent has endeavoured to furnish a detailed justification for the drawal of various allowances by him and the grant of special pay etc., in terms of the various instructions issued by the Central Government and the Pay Revision Rules.
22. It will be seen that it is common ground between the parties that the appointment of Lt.-Col. Malik as a Member of the Board came about as a result of a specific offer made to him by Mr. Riazuddin Ahmed and its acceptance by the respondent. The question is whether a valid and binding contract thus came into existence between the parties ; and if so, was there any legal impediment in the way of this contract taking effect according to its own terms, without being affected by extraneous factors like memoranda or instructions issued by the Central Government, or rules made by the Provincial Government prescribing certain terms and conditions for the office- bearers of the Board.
23. As already stated, the Board was established under subsection (1) of section 3 of the West Pakistan Co-operative Development Board Ordi--nance (XIV of 1962). Subsection (3) of section 4 of the said Ordinance provided that "the Chairman and the Members appointed by Government shall hold office during the pleasure of the Governor, on such terms and conditions, and shall receive such remuneration and allowances, as may be determined by Government". The respondent was appointed Member of the Board by the Notification issued by the Provincial Government on the 12th of May 1962, and he assumed office as such on the very next day, namely, the 13th of May 1962. The post had been offered to him by Mr. Riazuddin Ahmed, by his letter of the 16th of February 1962. In that letter Mr. Riazuddin Ahmed had described himself as Commissioner, Co-operative Societies, West Pakistan. In the Notification issued by the Provincial Government on the 12th of May 1962, constituting the Board under section 3(1) of the Ordinance, it was stated that the Secretary to Government of West Pakistan, Co-operation, Labour and Social Welfare Department, shall be ex officio Chairman of the Board. It is admitted that Mr. Riazuddin Ahmed was the first ex officio Chairman of the Board. We can, therefore, presume that Mr. Riazuddin Ahmed acted, on behalf of the Provincial Government, in offering the appointment in question to the respondent. The Provincial Government has at no stage contested the capacity of Mr. Riazuddin Ahmed to offer the appointment to the B respondent on terms mentioned in his letter of the 16th of February 1962, although it sought to regulate these terms subsequently by reference_ to the orders issued by it on the 31st of August 1963. It follows, therefore, that a valid and binding contract did come into existence between the parties, namely, the Provincial Government and the respondent.
24. The respondent was, therefore, right in insisting, in his letter of Septem--ber 1963, that his pay was to be regulated by the contract which had been offered to him by Mr. Riazuddin Ahmed and accepted by him when he assumed charge of his functions as Member of the Board with effect from the 13th of May 1962. We consider that this contract clearly amounted to a determination of the remuneration and allowances of the respondent c in terms of subsection (3) of section 4 of the Ordinance, and the Provincial Government could not unilaterally vary these terms by the subsequent, omnibus orders issued in this behalf on the 31st of August 1963. The decision taken by the Government on the 6th of November 1967, allowing! To the respondent pay in terms of the offer made to him by Mr. Riazuddin Ahmed was, therefore, correct, and the parties were bound by it. It is clear that the determination of the terms and conditions applicable to the Chairman and the Members of the Board could be carried out either in relation to individual officers on a contractual basis, or in the shape of a general determination applicable to Chairman and Members recruited from specified sources.
25. Such a determination having already taken place in the case of the respondent, there was no necessity or justification, in law, for a fresh determination fifteen months after the respondent had assumed office as Member.
26. We may now examine whether there was any impediment in the way of the enforcement and operation of this contract. According to the res--pondent, the contract offered to him, and of course accepted by him, involv--ed a contravention of the directions contained in Memo. No. O- 2/13/61-CB, dated the 5th of September 1961 issued by the Government of Pakistan, President's Secretariat (Establishment Division), which contemplated that hereafter the Chairman and Members of the various autonomous Corporations set up by the Central and Provincial Governments shall, as a maximum, be given the emoluments as admissible to the persons concerned on appointment as Secretary and Joint Secretary respectively to the Central Government. In the case of the Chairman an appropriate sump--tuary allowance will be given where necessary and justified. In Paragraph 3 of this Memorandum it was added that these orders would also apply to the existing incumbents of the posts if and when they were re-appointed to the post held by them for a fresh term.
27. At the time this Memorandum was issued the Board, with which we are dealing, was not in existence, and it is, therefore, difficult to accept the proposition that this Memorandum was intended to regulate the terms and conditions of office-bearers of a body which had not yet been established, and even the legislation dealing with it had not yet been conceived and enacted. A fair reading c f the Memorandum would indicate that it was intended to regulate the terms and conditions applicable to Chairman and Members of the autonomous Corporations which were in existence on the date of the issue of this letter. However, even if it be interpreted as being applicable to the Chairman and Members of even such autonomous Corporations as may be established in future under legislation still to be enacted, it is clear that the executive instructions contained in this Memo--randum could not override the statutory powers conferred on the appropriate authority by the statute under which such a Corporation was to be established.
28. Reference to Article 5 of the Laws (Continuance in Force) Order, 1958, is irrelevant in this context, for clause (2) of this Article contemplates specific directions given to the Governor by the President or by the Chief Administrator of Martial Law in regard to the exercise of powers conferred on the Governor by clause (1) of the said Article. In the circumstances, the determination of the terms and conditions by the Memorandum of the 5th of September 1961 cannot be regarded as fulfilling this requirement in relation to the Board with which we are dealing, as this Board had not been created, nor the relevant legislation promulgated, when the Memorandum was issued, Another interesting feature about the directions contained in this Memorandum is that it only prescribes the maximum emoluments admissible to a Chairman or a Member of an autonomous Corporation. That being so, the Governor would be perfectly within his powers in fixing lower emoluments, even if the Memorandum was applicable in terms to the office-bearers of the Board.
29. Accordingly, the contract offered to the respondent would not in any way be violative of the directions contained in this Memorandum.
30. The next letter which needs consideration in this context is the one, dated the 21st of February 1963, again issued by the Establishment Division of the President's Secretariat of the Government of Pakistan. A perusal of this letter leaves no doubt that the Central Government was endeavour--ing to attain uniformity in the matter of maximum emoluments admissible to the Chairmen and Members of the various autonomous Corporations set up by the Central Government and Provincial Governments. The letter nowhere contemplates that lower emoluments cannot be paid to the office-bearers of these Corporations. Paragraph 3 of the letter contemplates that "where Government feels committed that the existing terms of his appointment do not permit of a change in the case of a Chairman or a Member already holding charge as such, the case shall be reported to the Central Government for decision. The first opportunity, such as expiry of the term of appointment of the officer will, anyhow, be taken to bring the emoluments of these incumbents in line with the above orders".
31. We consider that this letter of the Central Government cannot over--ride the statutory powers given to the Provincial Government under subsection (3) of section 4 bf the Ordinance. This letter was issued after the Martial Law had been lifted, and the 1962 Constitution of the Islamic Republic of Pakistan had been promulgated, with the result that the argument earlier presented by the respondent with reference to the plenary powers of the President under Article 5 of the Laws (Continuance in Force) Order, 1958, would not be available in regard to this letter. Even otherwise, the letter itself made it clear, in paragraph 3 thereof, that it was not necessary to affect the existing contracts of service, and the new scale of emoluments prescribed therein was to be made effective if the existing incumbent was to be offered re-employment. It seems to us, therefore, that the learned Single Judge in the High Court was right in refusing to accept the respondent's contention that he was governed by this Memorandum. The learned Judges of the Division Bench, who decided the Letters Patent Appeal, were clearly in error in directing that the respondent's emoluments be fixed in terms of this Memorandum.
32. For the foregoing reasons, we are of the view that a binding and valid contract had come into existence between the parties, and the emoluments payable to the respondent were to be regulated in accordance with this contract. There was no legal impediment in the way of this contract taking effect according to its own terms. The respondent bad himself insisted, in protest against the orders issued by the Provincial Government on the 31st of August 1963, that he was governed by this contract and no other terms could be imposed upon him. He could not subsequently be per--mitted to repudiate this contract, and claim extra emoluments on the basis of instructions contained in the Memoranda issued by the Central Government from time to time. ' application in a case where the terms of appointment are regulated by a specific contract freely entered into and accepted by the Officer concerned.
33. It was, however, contended by the respondent that the contract in any case stood rescinded with effect from the 15th of June 1963 when his designation was changed and extra duties were entrusted to him by the Chairman of the Board. We have already referred to the order made by the Chairman of the Board on the 15th of June 1963 by which he had directed that pending the appointment of a permanent Member for Finance, Lt: Col. J. D. Malik would also function as Finance Member of the Board and his changed designation would be Member, Finance and Development (M. F. D.). The question is whether this order of the Chairman of the Board had the effect of rescinding the earlier contract governing Lt: Col. Malik's appointment to the Board.
34. The answer to this question must obviously be in the negative. It will be recalled that the respondent himself did not adopt any such position in the letter of protest which he addressed to the Provincial Government in September 1963 against the orders dated the 31st of August 1963. By that time, the Chairman's order of the 15th of June 1963 had already taken effect, and the respondent's designation had been changed as stated above. In spite of this change the respondent had formally asserted that his emoluments were to be governed by the contract offered to him by Mr. Riazuddin Ahmed, a contract which was, to use his own words, "a fait accompli in the eye of law and which was in order in the context of the existing rules and regulations". In the second place, a mere change in designation or a re-distribution of duties in the same organization, cannot amount to a termination of the earlier contract and the appointment based thereon, unless the intention of the parties is clearly to change the status or the nature of the assignment, and the duties pertaining thereto. In the present case, no such intention can be spelt out from the Chairman's order of the 15th of June 1963, as the respondent continued to occupy the post of a Member of the Board, and at the relevant time he did not interpret the re-allocation of duties as amounting to a termination of the previous appointment and the commencement of a new assignment. We have, therefore, no hesitation in repelling the contention that the contract between the parties came to an end on the 15th of June 1963, so as to entitle the respondent to claim new terms and conditions of service under the Memorandum of the Central Government dated the 21st of February 1963.
35. It appears that the order dated the 15th of June 1963 was made by the Chairman of the Board in pursuance of the requirements laid down by the Public Investments (Financial Safeguards)
36. Ordinance (No. XLVI) of 1960, and at one stage the respondent was even offered the whole time appointment of General Manager of the Co-operative Investment and Management Agency Limited at salary of Rs. 1,800 p.m. In the scale of Rs. 1,700-100-2,700, but the respondent did not accept this appointment. In these circumstances, there is no ground for holding that his previous contract and appointment came to an end, giving way to re-appointment on new terms.
37. It is also to be noticed that the terms of the contract between the Provincial Government and the respondent having been reduced to writing, it was not permissible for the respondent, in terms of sections 91 and 92 of the Evidence Act, to seek to vary the terms of the contract by extraneous evidence. It is true that the provisos to section 92 contain certain exceptions to this rule, but the case set up by the respondent regarding the grant of extra facilities and allowances, as well as higher remuneration equivalent to the pay of a Joint Secretary to the Central Government, is not covered by any of these exceptions. For this reason as well the respondent stands precluded from adducing evidence to vary the contents of the contract of his service.
38. The final and simple position which, therefore, emerges in this case is that Lt-Col. J. D. Malik was entitled to emoluments at the rate of Rs. 1,400 p.m. In addition to his Army pension in terms of the contract offered to him by Mr. Riazuddin Ahmed and accepted by him when he assumed office as Member of the Board with effect from the 13th of May 1962. He was not entitled, as of right, to claim any other allowances, privileges, facilities or special pay, by reference to any orders issued by the Central Government from time to time, nor could his terms be varied by the Provincial Government's orders, dated the 31st of August 1963. On this view of the matter, he is liable to refund any amounts or advances which he has drawn in excess of his true entitlement, and which have not been otherwise authorised by the competent authority. It is of course always open to the Government to make any ex gratia payment if it so desires.
39. On this view of the matter Civil Appeal No. 39 of 1973 is accepted, the judgment of the Division Bench, dated the 1st of August 1972 in Letters Patent Appeal No. 7 of 1972 is set aside, and that of the learned Single Judge dated the 22nd of December 1971 in Writ Petition No. 661-S of 1971 is restored.
40. Civil Appeal No. 41 of 1973 is also accepted, judgment of the High Court dated the 1st of March 1973 in W. P. No. 107-S of 1973 is set aside, and the said Writ Petition is dismissed.
41. Finally, C. A. No. 40 of 1973, arising out of W. P. No. 107-S of 1973, is dismissed as being without merit.