BASANT LAL MALHOTRA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a petition filed by Basant Lal Malhotra, retired Additional District and sessions Judge Under Articles 226 and 227 of the Constitution of India for issuance of writ of mandamus or any other appropriate writ, direction o order directing respondents Nos. 1 and 2 to refix the pension of the petitioner by allowing him the benefit of rule 4. 2 of the Punjab Civil Services Rules (Volume II ).

(2.) THE facts as alleged in the petition ar that the petitioner was recruited or enlisted to the P. C. S. (Judicial Cadre) as a result of the competitive examination held by the Lahore High Court in the year 1935 and thereafter having been declared medically fit and having passed the departmental examination in the higher standard and having undergone the prescribed course of six months revenue and judicial training: the petitioner was appointed as a Subordinate Judge in October, 1938. The petitioner on acquiring superannuation at the age of 55 years eventually retired from service in April , 1962. As Additional District and sessions Judge. According to the petitioner, the provisions as contained in rule 4. 2 of the Punjab civil Services Rules (Volume II ) marked a distinction between the cases of officers recruited to the services before 11th of September , 1937, and of those recruited after the said date in the matter relating to the condonation of a period not exceeding five years for the purposes of pension and on the interpretation of this rule the petitioner claimed that his actual period of 23 years and 6 months ' service be counted for the purposes fixation of pension as 28 years and 6 months. For this purpose, the petitioner moved the Punjab Government through the registrar, Punjab High Court i9n the year 1956 to obtain the confirmation for his being entitled to the benefit of five years period of service for the purposes of fixation of pension. In due course, respondent No. 1 (State of Punjab) vide its letter dated 25th of June, 1956 sent a reply to the effect that the petitioner would not be entitled to the benefit of the said rule because he had been appointed to the P. C. S. (Judicial Branch) after 11th of September , 1937. It was further alleged that a representation was also made to the Accountant general , Punjab at Simla , as also to the State of Punjab, but again he was informed that as he was appointed after the 11th of September , 1937, he would not be entitled to the benefit for rule 4. 2 of the Pension Rules referred to above. According to the petitioner, absolutely wrong interpretation has been put on rule 4. 2 as respondents 1 and 2 are confusing the expression 'recruitment' with the expression 'appointment '. According tot he petitioner, the very fact that a candidate on recruitment to the P. C. S. (Judicial Branch) under the rules was required to produce a certificate of medical fitness and to undergo six months' revenue and judicial training receiving a stipend of Rs. 80/- P. M. and to pass a departmental examination in higher standard as conditions precedent to his appointment in service, was indicative of the vast difference between the terms 'recruited' and 'appointed' Respondents 1 and 2 in utter disregard to the difference between th said two terms have declared the petitioner as disentitled to the benefit of rule 4. 2 and this action of respondents is unwarranted and clear breach of the fundamental rules governing the pension and conditions of service of the petitioner.

(3.) IN the joint written statement filed on behalf of respondents 1 and 2, it was emphatically asserted that the petitioner jointed service as Subordinate Judge on 4th of October, 1938 , i. e. , after the crucial date of 11th of September 1937 and as such he could not claim to have been recruited to the post or service earlier than 4th of October , 1938, even though he got training for the period from 12th of March, 1937 to 2nd of August, 1937, and from 1st of September, 1937 to 10th of October, 1937. For purposes of rule 4. 2, no distinction could be drawn between the expression ' recruitment' and 'appointment'.