All NotesCivil LawTransfer of Property Act (TPA)

Transfer of Property Act (TPA)

Transfer of the Salary of a Public Officer under Section 6(f): Why It Is Barred Before and After It Becomes Payable

Most personal entitlements the Act protects are protected only so long as they lie in the future. Maintenance may not be assigned, but arrears of maintenance may. The salary of a public officer is the exception. Section 6(f) forbids its transfer whether before or after it has become payable, so that even wages earned, admitted and awaiting collection at the treasury remain beyond the reach of an assignment. Those seven words make this clause the sharpest of its kind in the section.

Figure 1: The two moments at which an assignment might be attempted, and the single point at which the protection ends

1. The Clause

Section 6(f), TPA

'A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.'

Two prohibitions in one sentence. The first concerns the office; the second concerns the salary attached to it, and it is the second that this topic takes up.

2. Who Is a Public Officer

The Act does not define the term. The working definition is taken from section 2(17) of the Code of Civil Procedure, 1908, which includes, among others, judges, members of the civil and military services, officers of a court whose duty it is to investigate or report upon matters of law or fact or to execute process, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of a public duty.

Person

Within section 6(f)?

A government servant, civil or military

Yes

A judge or a judicial officer

Yes

An officer of a court charged with executing process

Yes

A person remunerated by fees or commission for performing a public duty

Yes

An employee of a private company or firm

No — his accrued salary is an ordinary debt

An employee of a statutory corporation or local authority

Depends on the statute constituting it and the character of the duty; the salary of a servant of a local authority is separately protected from attachment by the Code

3. What 'Salary' Covers

Salary means the periodical remuneration attached to the office and payable for the performance of its duties. Three points follow.

  1. It is remuneration for the office, not for the man. It is fixed by reference to the post, and whoever holds the post draws it.
  2. Allowances attached to the post ordinarily share its character, since they form part of what the officer receives for holding it; allowances that are pure reimbursement of expenses stand on a different footing.
  3. Money once paid ceases to be salary. What the officer has actually received is no longer remuneration due to him but money in his hands, and it is ordinary property.

4. The Crucial Phrase: 'Whether Before or After It Has Become Payable'

An ordinary entitlement changes character when it falls due: what was an expectation becomes a debt, and a debt is an actionable claim assignable under Chapter VIII. Clause (f) prevents that change from happening here.

The attempted transaction

Effect

An officer assigns his salary for the coming year to a money-lender

Void — the clause covers salary before it has become payable

An officer assigns salary for a month already worked, the amount being admitted but undrawn

Void — the clause covers salary after it has become payable

An officer agrees to create a charge on his salary as security for a loan

No charge is created; what cannot be transferred cannot be charged, and the agreement is ineffective against the salary

An officer executes a promissory note and promises to repay it out of his next salary

The personal promise may stand as a contract; but it fastens nothing on the salary itself

An officer, having drawn his pay, deposits it and assigns the deposit

Perfectly good — the money has been received and is ordinary property

A decree-holder seeks to attach the officer's salary in execution

Governed by section 60 of the Code of Civil Procedure, which exempts a specified portion, with a narrower exemption where the decree is for maintenance

5. The Contrast With Clause (dd)

The distinction to carry into the examination hall

Maintenance — clause (dd): future maintenance is not transferable; arrears already accrued are, because what has accrued is a debt.

Salary of a public officer — clause (f): future salary is not transferable, and neither are arrears, because the clause says so in terms.

The difference is deliberate. The maintenance rule protects future subsistence. The salary rule protects something more: the officer's independence while he serves, which would be compromised by a creditor waiting for him at the treasury counter.

6. Why the Law Takes This Position

  1. Independence of the office. An officer whose pay is pledged serves two masters, and the public loses the impartiality it is entitled to.
  2. Efficiency and maintenance. Salary is granted so that the officer may live decently and give the office his whole attention; an officer who has assigned it away has neither the means nor the freedom.
  3. Consistency with the law of attachment. The Code of Civil Procedure keeps part of the salary out of the reach of creditors. If the officer could assign it voluntarily, the exemption would be defeated by the first loan he took.
  4. Protection against improvidence. The clause operates as much against the officer's own imprudence as against the pressure of his creditors.

7. The Position of Private Employment

The clause has no application to an employee in private service. His salary, once it has accrued, is a debt due from the employer, and a debt is an actionable claim transferable under sections 130 to 137 — subject to any term of the contract of employment forbidding assignment and to any statute governing wages. The law's concern in clause (f) is with the public character of the office, not with the relationship of employment as such.

Retention aid

Earned, due, undrawn — still untransferable. Salary escapes the clause at exactly one moment: when it is counted into the officer's hand. Up to that instant it belongs to the office; after it, it belongs to the man.

8. Related Topics and Provisions

  • Transfer of Public Office, Section 6(f) — the first limb of the same clause
  • Pensions and Stipends, Section 6(g) — the companion clause covering deferred remuneration
  • Right to Future Maintenance, Section 6(dd) — the clause with which the contrast is most instructive
  • Section 2(17), Code of Civil Procedure, 1908 — the definition of a public officer
  • Section 60, Code of Civil Procedure, 1908 — salary exempt from attachment in execution
  • Sections 130 to 137, TPA — actionable claims, and the assignment of ordinary accrued debts