JUDGMENT B.K. Sharma, J.

1. Being aggrieved by the direction of the learned Single Judge to provide salary to the respondent/writ petitioner in the particular scale of pay stated to be the revised scale of pay and imposition of cost in respect of the writ proceeding, the respondent has preferred this appeal.

2. The respondent/writ petitioner is the law officer in the Manipur Pollution Control Board (Board). The controversy relating to admissible pay scale (revised) in respect of the post of law officer in the Board led to filing of the writ petition. The writ petitioner was appointed as the Law Officer in the time scale of pay of Rs. 2200-4000/- (pre-revised). He was so appointed by order dated 9.3.1998 issued under the signature of the Member Secretary of the Board. It will be pertinent to mention here that the post of Law Officer in the Board in the time scale of pay of Rs. 2200-4000 was created by Annex-ure-W/2 order dated 27.12.1997 issued in the name of the Governor of Manipur and under the signature of the Commissioner (Forest and Environment), Government of Manipur. Be it also stated here that the Forest Department, Government of Manipur is the nodal Department of the Board.

3. The pre-revised scale of pay in respect of the employees of the Government of Manipur was revised by the Manipur Services (Revised Pay Rules) of 1999 (in short ROP Rules of 1999). The Board by its W/3 Communication addressed to the Principal Secretary (Forest & Environment), Government of Manipur conveyed the decision of the Board to adopt the ROP Rules of 1999. By the said communication indication was made about the required amount for payment of salary to the employees. In the said communication, the revised pay scale for the post of Law Officer was shown as Rs. 8000-13200/-.

4. By Annexure-W/4 communication dated 16.10.2000 made by the Board to the Additional Chief Secretary (Forest and Environment), Government of Manipur while furnishing the details of the employees holding various posts and their pre-revised pay scale, it was also intimated that the ROP Rules of 1999 has been adopted by the Board in its 18th meeting held on 6.11.1999. In the communication it was mentioned that the Board is a statutory body of the Government and that expenditures towards payment of salary to the employees of the Board was being met from the grants-in-aid provided by the Government of Manipur. As regards the post of Law Officer in the Board, it was indicated that the in the ROP Rules of 1999 no such post carrying identical scale of pay is available. Referring to the post of Law Officer in the Department of Co-operation, Government of Manipur, which was at Rs. 2000-3500/- (pre-revised), it was also indicated that the said scale of pay did not tally with the scale of pay attached to the post of Law Officer in the Board. While requesting for approval of the proposal made as per the statement enclosed, it was also requested to provide a concrete decision as to which scale of pay (revised), for the post of Law Officer should be adopted.

5. From the further communications from the Government annexed to the writ appeal, it appears that no decision and/or approval has been accorded by the State Government till date. Rather from Annexure-W/7 communication dated 7.10.2003 a clarification was sought for in respect of granting the revised pay scale of Rs. 8000-13,500/- in respect of the post of Law Officer. It was indicated that the pay scale prescribed by the State Government for the post of Law Officer in the Co-operation Department is Rs. 6500-10,500/- (revised). In response to the clarification sought for, the Board by its Annexure-W/8 letter dated 9.10.2003 intimated the Government of Manipur that in tune with the revised pay scale provided to the post of Law Officer in the Co-operation Department, the revised scale of pay of Rs. 6500-10,500/-has been fixed for the post of Law Officer in the Board. It was also intimated that the salary in the revised scale of pay in respect of the Law Officer has been re-assessed. In the letter, budgetary provision amounting to Rs. 37,00,000/- under 2003-04 annual plan earmarked as grants-in-aid was also indicated with the further request to release a sum of Rs. 15,51,654/- for payment of salaries for the month of July and August 2003 and other expenditures. Details of the amount were indicated in the enclosed statement.

6. After the aforesaid developments, the Government of Manipur in the Forest & Environment Department requested the Board to forward the authority under which pay scale of the Law Officer was fixed at Rs. 8000-13,500/-. Further communications have been annexed to the writ appeal to show that the salaries of the employees of the Board are being paid by the State Government as grants-in-aid. By Annexure-W/13 letter dated 7.12.2004, the Board had intimated the Government in the Forest and Environment Department that there was no specific order/authority issued by the Board to provide revised scale of pay of Rs. 8000-13,500/- to the post of Law Officer. By the said letter a request was made to take necessary action in the matter at an early date. It was also indicated that the salary bill of the Law Officer i.e., the writ petitioner was prepared in the time scale of pay of Rs. 8000-13,500/- on the strength of an order passed by the Chairman of the Board. When by further communication at Annexure-W/14 dated 7.3.2005, the Member Secretary of the Board requested the Government of Manipur in the Forest and Environment Department to convey the decision regarding the revised scale of pay to be provided to the post of Law Officer of the Board, the Chairman of the Board by his Annexure-W/15 order dated 6.9.2004 conveyed the decision to provide revised pay of scale of Rs. 10,000-15,200/- in respect of the respondent/writ petitioner. By the said order, it was conveyed that earlier the Law Officer was wrongly provided with the revised scale of pay of Rs. 8000-13,500/-.

7. From the above, it will be seen that 3 different revised scale of pay have come to the forefront in respect of the pre-revised pay scale of the post of Law Officer in the Board. They are--Rs. 6500-10,500/-; 8000-13,500/-and 10,000-15,200/-.

8. The writ petition was filed amidst the aforesaid confusion regarding actual admissibility of the revised pay scale in respect of the post of Law Officer being held by the writ petitioner. The learned Single Judge by the impugned judgment and order dated 6.4.2005 upon a reference to the aforesaid Annexure-W/15 order dated 6.9.2004 issued by the Chairman of the Board as well as the letter dated 30.4.2004 issued by the member Secretary of the Board to the Joint Secretary, Forest and Environment Department, Government of Manipur has issued direction for payment of salary to the petitioner in the time scale of pay of Rs. 10,000-15,300/-. The writ petitioner has also been provided with Rs. 1500/- as the cost of the proceeding since according to the learned Single Judge, it was the appellant, who was the sole respondent in the writ petition was responsible for compelling the writ petitioner to approach the writ court. Both the aforesaid letter dated 30.4.2004 and the order dated 6.9.2004 on the basis of which the learned Single Judge has issued the direction in the impugned judgment and order, was by way of unilateral act on the part of the Board without there being any approval and/or sanction behind of the competent authority of the State Government.

9. Mr. N. Koteswar Singh, learned Counsel representing the appellant, upon a reference to the various provisions of the Water (Prevention and Control of Pollution) Act 1974 and the Manipur Water (Prevention and Control of Pollution) Rules, 1991 and so also to the various communications annexed to the writ appeal submitted that the respondent/writ petitioner could not have claimed the scale of pay of Rs. 10,000-15,200/- as the revised pay scale pursuant to the ROP Rules of 1999 as a matter of right and automatic entitlement. He submitted that in the ROP Rules, 1999, the post of Law Officer in the Board having not been mentioned, mere adoption of the said rules by the Board, cannot provide corresponding revised pay scale to the pre-revised scale of pay of Rs. 2200-4000/- without first ascertaining the status, responsibility, duties and rank attached to the post of Law Officer in the Board. He submitted that under no circumstances, the Board of its own could provide the purported revised scale of pay of Rs. 10,000-15,200/- to the respondent/writ petitioner without there being any approval and/or sanction behind of the competent authority of the State Government. He further submitted that the learned Single Judge could not have granted the prayer made in the writ petition in the nature and format in which the writ petition was presented.

10. Countering the above argument, Mr. Th. Ibohal assisted by Mr. M. Jiten, learned advocate representing the respondent/writ petitioner argued that the Chairman of the Board having conveyed his approval of granting revised pay scale of Rs. 10,000-15,200/-to the writ petitioner, the Member Secretary of the Board i.e., the appellant, who was the sole respondent in the writ proceeding could not have created confusion and chaos and there by deprive the writ petitioner of his salary in the time scale of pay of Rs. 10,000-15,200/-. He has also referred to the various provisions of the Act and the Rules referred to above to make the submission that no further approval and/or sanction of the State Government towards providing the revised pay scale of Rs. 10,000-15,200/- to the writ petitioner is required. According to him, since pre-revised scale of Rs. 2200-4000 stood revised to Rs. 10,000-15,200, the writ petitioner having held the post of Law Officer in the pre-revised scale of pay of Rs. 2200-4000/-, he is automatically entitled to the corresponding revised pay scale of Rs. 10,000-15,200/-. We have also heard Mr. Ibohal Singh, learned Additional Govt. Advocate, who also submitted that the Government sanction in the matter is required.

11. We have given our anxious consideration to the submissions made by the learned Counsel for the parties as well as to the materials available on record. Before proceeding to deal with the merit of the case, we first deal with the contention raised in the appeal that the writ petition itself was not maintainable being bad for non-joinder of necessary parties. The writ petition was filed against the present appellant as the sole respondent in his personal capacity holding the post of the Member Secretary, Manipur Pollution Control Board. The Board itself was not made party as one of the main respondents, but was made proforma respondent. Referring to the various provisions of the Act and the Rules as well as the copies of the communications annexed to the writ appeal, it has been argued by the learned Counsel for the appellant that the Board being under the deep and pervasive control of the State atleast in respect of grants-in-aid from the State Government towards payment of salary etc. to its employees, the State Government in the appropriate department was a necessary party and the direction issued by the learned Single Judge only to the Member Secretary of the Board i.e., the present appellant is not implementable in absence of any concurrence of the State Government.

12. We have gone through the writ petition and from the tenor of the pleadings, it appears that the writ petition was filed to vindicate the personal vendetta on the respondent in his personal capacity and this is precisely the reason as to why the present appellant was the only respondent with the Board as the proforma respondent. Certainly the appellant was neither the State nor an authority within the meaning of Article 12 of the Constitution of India and thus the writ petition was not maintainable and if that be so, no mandamus could have been issued to the respondent/appellant who has arrayed as the sole party respondent only in his personal capacity. It is true that the Board was made the proforma respondent in the writ petition, but no grievance was raised against it nor any prayer was made for any direction to the Board as such. It was also not indicated as to who represented the Board.

13. In the case of Ranjeet Mai v. General Manager, Northern Railway, New Delhi and Ors. Reported in some what a similar question arose when the writ petitioner in that case made a challenge to the order of removal from service passed by the General Manager, Northern Railway, without, however, making the Union of India a party respondent. It was contended that the General Manager was the authority to hear the matter regarding removal etc. and thus he was the appropriate party and there was no necessity to make the Union of India as such a party respondent. The Apex Court upholding the decision of the Trial Court as well as the Division Bench observed thus:

The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.

14. In the case of State of Bihar and Ors. v. Kameswar Prasad Singh and Anr. As , the Apex Court has held that in absence of necessary party to the writ proceeding, the same is liable to be dismissed. In the instant case, not even the Board was arrayed as a necessary party not to speak of making the State of Manipur in the appropriate Department as party respondent under whose grants-in-aid, the Board survives. The Board itself was not made party respondent, but was made only a proforma respondent. Main and the sole respondent in the writ petition, was the present appellant and that too in his personal capacity. In such a situation, the writ petition was not maintainable and consequently no relief could have been granted.

15. In the present appeal filed by the said sole respondent, apart from the writ petitioner, the State of Manipur in the Forest and Environment Department and the Principal Secretary, Finance Department, Government of Manipur have been made proforma respondents. Such a course of action have been adopted by the appellant in view of the fact that the Forest and Environment Department is the nodal Department of the Board and in view of the stand of the appellant that unless necessary concurrence, approval and/or sanction is given by the Government of Manipur in the Finance Department, the Board itself cannot provide a particular pay of scale to its officers and/or employees.

16. Although, in view of our above findings, the writ petition itself being not maintainable is liable to be dismissed upon setting aside the impugned judgment and order, but having regard to the facts and circumstances involved in the case and also to avoid further litigation and in view of the fact that we have heard learned State Counsel in the matter, we deem it fit and proper not to take recourse to such a course of action and instead we decide the matter on merit.

17. On a total reading of the provisions of the Act and the Rules as have been referred in the writ appeal, on the basis of which learned Counsel for the Board extensively argued, we have no hesitation to hold that in the matter of prescription of a particular pay scale in respect of an officer of the Board, ultimate authority for approval of the same is the State Government. It is the State Government which provides grants-in-aid to the Board and budgetary allocation etc. towards payment of salary to the employees of the Board. If that be so, the Board of its own cannot take the plea that it is the sole authority to provide any particular scale of pay to its employees and the State Government is bound to accept the same. At best the Board could request for providing a particular scale to an officer/employee, but the final authority lies with the State Government inasmuch as, it is the State Government, which will have to sanction the amount towards payment of salary.

18. Section 35 of the Act provides for contribution by the State Government and Sections 38 and 39 of the Act deal with the budgetary sanction by the Central Board or the State Board, as may be the case. Section 40 makes provision for maintaining proper account by the Board in such form as may be prescribed by the Central Government or the State Government, as the case may be. Rule 23 of the rules provides for creation of post by the Board, but in case of creation and appointment of posts carrying the scale, maximum of which is above Rs. 3300/- the prior sanction of the State Government is required to be obtained. The power, function and duties of the Chairman and the Member Secretary have been defined in the rules. The Chairman of his own could not have issued the order dated 6.9.2004 providing the particular pay scale to the respondent/writ petitioner. The said order is of no consequence unless the same is approved by the State Government in the appropriate Department.

19. From the various communications annexed to the writ appeal as well to the counter affidavit filed in the writ appeal by the writ petitioner, there is not even iota of doubt that it is the State Government which provides necessary fund to the Board towards payment of salary to its officers/employees. If that be so, such a funding authority cannot be burdened with something having financial implication without its approval.

20. The whole basis of the claim of the writ petitioner as could be gathered from the writ petition is that the ROP rules of 1999 having been adopted by the Board, the petitioner is entitled the corresponding revised pay scale to the pre-revised pay scale of Rs. 2200-4000/-. There is no dispute that the particular post i.e., the post of Law Officer in the Board did not find mention in the ROP rules of 1999. However, the writ petitioner has drawn the analogy from the revised pay scale as has been provided to the post of Joint Registrar of Co-operation Department in respect of which the pre-revised scale of pay was Rs. 2200-4000/- revised to Rs. 10,000-15,200/-. However, in the same very Department, the post of Law Officer had the pre-revised scale of pay of Rs. 2000-3500/-which stood revised to Rs. 6500/-10,500/-. On the other hand, in respect of Law and Legislative Affairs Department, the posts of Under Secretary (Law); Research Officer (Law) and Language Officer (Law) have been provided with revised pay scale of Rs. 8000-13,500/- in respect of which posts the pre-revised scale of pay was Rs. 2000-3500/-. The pre-revised scale of Rs. 2200-4000/-provided to the Deputy Director in the planning Department has been revised to Rs. 8000-13,500/- as per the ROP rules of 1999. The pre-revised scale of pay of Rs. 10,000-15,200/- which has been claimed by the writ petitioner has been provided to the post of Special Officer (Technical) in respect of which the pre-revised scale of pay was Rs. 3000-4500/-.

21. From the above revelations from the ROP rules of 1999, it cannot be said that the revised pay scale of Rs. 10,000-15,200/- in respect of pre-revised scale of Rs. 2200-4000/- is automatic. Various other factors such as rank of the post, duties, responsibilities and functions involved in the post are also to be considered while providing a particular pay scale in respect of a particular post. As noticed above, the ROP rules of 1999 did not specifically provided the revised pay scale of pay in respect of the post of Law Officer of the Board. This is precisely the reason as to why the Finance Department, Government of Manipur by its communication referred to above asked for the clarification as to on what basis the writ petitioner was sought to be provided with revised scale of pay Rs. 8000-13,500/-. All these factors have not been considered by the learned Single Judge and the impugned judgment and order has been passed solely on the basis of the letter and the order quoted in the judgment.

22. From the materials on record, what has emerged is that as to whether the writ petitioner is entitled to the corresponding revised pay scale ofRs. 6500-10,500/-or Rs. 8000-13,500/- or Rs. 10,000-15,200/-. Since no decision and/or approval towards reviving the pay scale of the post of Law Officer in the Board to Rs. 10,000-15,200/- has been conveyed by the appropriate Department of the State Government, we are of the considered opinion that the learned Single Judge could not have issued mandamus for providing the said pay scale to the writ petitioner. The appellant was not at any fault in not providing to the said pay scale to the writ petitioner in absence of any approval and/or sanction of the State Government. Further, in the frame work of the writ petition, the sole respondent, who is the appellant herein, could not have been saddled with the cost as has been awarded by the learned Single Judge.

23. In view of the above, we are of the considered opinion that the direction as contained in the impugned judgment and order is not sustainable and liable to be interfered with. Consequently, the writ appeal is allowed. The impugned judgment and order dated 6.4.2005 passed by the learned Single Judge in WP (C) No. 38/2005 stands set aside and quashed. However, it is hereby provided that the State Government in the competent department (s) shall take a decision in the matter as to what should be the revised pay scale for the post of Law Officer in the Board. Consequent upon such decision, the writ petitioner shall be paid his admissible monthly salary both arrear and current. The decision shall be so taken by the State Government in the appropriate department (s) as expeditiously as possible preferably within 4 (four) months from today. Pending such decision, the writ petitioner, subject to further adjustment shall continue to draw his salary in the time scale of pay in which he is or was being paid his salary.

Writ appeal is allowed subject to the above observation. However, there shall be no order as to costs. Writ appeal is allowed.