ORDER
H.R. Krishnan, J.
1. This is an application in revision by the State of Madhya Pradesh from a decision on a preliminary issue by the trial Court. However, the issue goes to the root of the suit and is of very considerable importance. The question is, whether a retired Government servant can in the civil court sue for the pension, part or whole, or ask for a decree directing Government to pay Shim a larger sum as pension than what it has decided, at all events, when the pension had accrued before the commencement of the Constitution and in the absence of any pension rules made under Article 309 of the Constitution or any corresponding pre-existent statutory provision.
2. Another question has been suggested by the plaintiff (pensioner) to the effect that he has made an alternative pleading and whether, even if it is found that in these circumstances his claim for the pension is non-justiciable by the civil courts, he should be still allowed to proceed with the suit for the alternative relief he has sought. While the second question is quite simple, the first is somewhat complicated both on account of apparently conflicting judicial pronouncements, and also on account of the loose use of the word 'pension' itself and the change the making of pension rules under Article 309 has made in the opinion of some of the High Courts.
3. The facts of this case are by themselves simple and non-controversial. The non-applicant plaintiff used to serve in some of the different Slates which in 1948 merged into the United State of Madhya Bharat. Adding the actual terms of service he had put in in different States it was found in 1949 that he had served for 30 years and was liable to be retired, though he was only about 52 years, three years too short of 55. However, while applying their formula for pension-which it should be noted is not based on any statutory rules made under Article 309 or similar statutory provision, the Government found that part of this period, that is, that before 25-4-1925 was not established to be qualifying service. Accordingly, for this calculation they took into account only about 24 years, with the result that the pension actually granted was less than what it would have been had they treated the plaintiff's account of the term before 25-4-1925 also as qualifying service. The plaintiff, however, contended that he should get the larger amount as pension as he had calculated. After unsuccessfully representing to different authorities he filed this suit in 1961 setting out these facts and asking for two reliefs.
The wording is rather heavy and there have been amendments; but the gist is to the following effect; Firstly, that the order dated 17-3-1949 fixing his pension should be declared to be wrong, illegal, null and void and further it should be declared that he is entitled to pension on the basis of 30 years qualifying service, Secondly, that the court should declare that the plaintiff was entitled to be in Government service till 22-6-1952 on which date he would have completed 55 years of age. However, by the time the suit was filed in 1961 it was obviously impossible for him to be in service; there was no prayer for consequential relief for money-payment by way of arrear salary or compensation for the period between the actual retirement and 22-6-1952. A mere perusal of Section 42 of the Specific Relief Act and in fact the general common sense would show that the second relief was on the date of the suit altogether imaginary and impossible. What had actually happened was that originally he had made claim tor 'full pay and clearness allowance for the 'period betweea the date of retiremnt (1-4-1949) and 22-6-1952' But apparently, there was some difficulty about court-fees and he sot this consequential relief deleted and, without realising that it really killed the alternative relief.
4. The first point made by the plaintiff-opposite party and conceded by the defendant-applicant is that the English doctrine that a civil servant cannot in any case maintain a suit against the State or the Crown does not prevail in this country. As the Supreme Court has made it clear in State of Bihar v. Abdul Majid, AIR 1954 SC 245, that doctrine has been negatived by statute law in our country. In that case, however, the claim was for arrears of salary and there was no serious difficulty. Whether there can be a claim in the courts for pensions generally speaking has been subject matter of apparently difference of opinion; but the cases that bad been coming up before the Courts are not all quite similar. Actually there are three kinds of pensions. First, pensions that are expressly mentioned in the Pensions Act of 1871; claims for this pension are, under Section 4 of that Act not justiciable, and they continue to be so today. What has been stated in the Privy Council decisions reported in E. T. Rangachari v. Secretary of State, AIR 1937 PC 27, and R. Venkata Rao v. Secretary of State, AIR 1937 PC 31, is still a good law in regard to pensions coming under the said Act. Second, pensions granted either in British India or in the old Indian States before the commencement of the Constitution or to be more precise, before the making of Pension Rules in the different States or the Union Government. Under Article 309 of the Constitution as part of tbe conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or in State. In the instant case we are dealing with a pension of this kind. Third, pensions that have accrued after the commencement of the Constitution, and in areas where statutory pension rules under Article 309 had come into force. Frankly, the case law in regard to this class of pensions is still nebulous and there does seem to be difference of opinion between various High Courts. But the confusion deepens if we apply the rulings in regard to pensions of this category to cases where the pension concerned falls under the previous group.
5. Before recapitulating case law in respect of each of these categories, it is convenient to indicate what that word itself purports. The reference in Section 4 of the Indian Pensions Act is to
'Pension or grant of money or land revenue conferred or made by the Government or any former Government whatever may have been the consideration.... .and whatever may have been the nature of the payment. '
In Section 11 there is a reference to
'Pension granted by Government on political considerations or on account of past services or present infirmities or as a companssionale allowance. '
Though there is no formal definition, the description is wide and unmistakable and involves two incidents first, that the payment whenever in money is periodical, usually, though not invariably, monthly; if by assignment of revenue, it is still periodical by implication coming due on the dates on which the revenue itself would be payable. It is as if the signee pays the land revenue to Government the appropriate dates, and immediately the Government gives it back to him as a pension. The second distinguishing element is it is for something not being done immediately or to be done in the future, but what has been done already or is deemed to have been done. Compassionate allowances may not partake of this character; but they would in no' event create the least difficulty as they are undeniably ex-gratia. In the matter of periodicity and only in that regard, pension payments resemble salaries. Therefore, the analogy of a salary cannot be carried so far as to make it justiciable. Most often they also partake of the nature of gratuity in the sense that the grant or payment is for something done in the past.
6. In reported cases we have any number of descriptions all substantially to the same effect; some times, especially in cases relating to post-Constitution pensions, the descriptions are coloured by the Court's own prepossessions in. regard to whether or not the pensioner can make a claim in the court. For example, in the Allahabad case reported in Shaukat Hussain Beg v. State of Uttar Pradesh AIR 1959 All 769, it was held--
'It implies periodical payments of money. Two essentials are necessary. It must be periodical and it must be a grant not in respect of any right, privilege, perquisite or office, but on political considerations or on account of past services or present infirmities or as a compassionate allowance. It is a bounty for past services rendered to the public or to the State mainly designed to assist the pensioner in providing his daily wants. '
This is in effect a quotation from tbe Pensions Act, Sections 4 and 11. Similarly in the Madras case reported in M. Sajjanam v. Stale of Madras, AIR 1963 Mad 49, it was held.
'A pension is an ex-gratia payment made to a Government servant in respect of his past conduct and service out of the discretion of the Government. . . There is no legal right to claim pension.'
On the other hand, in the judgment of the East Punjab case reported in S. Gurdip Singh v. Union of India, AIR 1962 Punj 8 the very description of pension is made so as to import the idea of a right or at any rate a reasonable expectation based on equity, if not on a contract straight and simple.
'The word 'pension' must be given a meaning of periodical payment by a Government to a person in consideration of past services. It must be construed so as to stimulate efforts in performance of duty by a Government servant. Therefore in achieving this object it may well be suggested that the right must not be made to depend on the arbitrary and uncontrolled whim of the authorities.'
The rest of the description is in effect an argument in support of the theory that a pension is the matter of right and not of the grantor's sweet will and pleasure. But the greatest common measure in these decisions is that a 'pension' is a periodical payment in respect of something the pensioner (or his ancestor if it is a Political pension under the Pensions Act 1871) as actually rendered or is deemed to have rendered.
7. Till the commencement of the Constitution the pensions granted were by unilateral orders of Government either the Government for the time being or those of former Governments which were ratified by their successors. As far as they were concerned, there was no element of contract or quid pro quo between the pensioner and the grantor. If the pensioner had rendered services of any kind to me grantor he had already been paid his salary; or the service if of a political nature, was on a purely voluntary basis. When later on the Government did grant, it certainly intended to reward. But there was no sanction in the legal sense except the grantor's will and pleasure. No doubt, the reward given to one pensioner had the effect of encouraging those in service or those similarly placed in rendering better service in the expectation that they would also be similarly rewarded; but that did not give the pensioner an actionable right.
8. As far as the instant case is concerned, the different erstwhile Indian States in which the plaintiff in the suit had served, did not have any statutory terms of service incorporating a condition that pension would be given, of one in accordance with a prescribed formula. As far as such pensions are concerned, the position was that there is no claim enforceable in the law courts. They would certainly be governed by the dicta in the Allahabad and the Madras rulings (supra) the spirit of which has already been indicated in the portions already cited. The Allahabad High Court goes further and states:
'The provisions of the Pensions Act clearly reveal that a claim to pension cannot be enforced in a court of law and that the proper remedy is to make a departmental representation. The provisions of the Civil Service Regulations (which provide for the pensions) also point in the same direction. Thus a person cannot claim pension as of right. In any case, the right to recover pension is not actionable'.
In the Madras case, the claimant had been a servant in the erstwhile State of Travancore. He laid a claim for a higher pension and asked for a re-settlement of the pension on the formula pleaded by him. Thus that case is very similar to the present one. There the Court held
'It is well known that no Government servant has an enforceable right to pension. A person is an ex-gratia payment ....... in respect of his past conduct and service out of discretion of the Government. It is open to them to refuse a pension though such refusal must be based on grounds set forth in the Civil Service and Pension Rules. No suit would lie to declare a right to a pension. The suit would not be a suit cognizable by a civil Court because the Government servant has no right to any property or any office such as is cognizable under Section 9 Civil Procedure Code.'
The implication is, whether the pension rules are altered unilaterally or whether they are violated, the aggrieved pensioner cannot go to a law court though he may by a representation invite the Government to reconsider the matter. Whether or not the Allahabad and the Madras views are too widely expressed, and ignore the possible effect of rules made after the Constitution under Article 309, they embody a principle applicable without doubt to pensions that accrued before the commencement of the Constitution.
9. After the commencement of the Constitution, Article 309 enables the Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. There is a proviso to the effect that till such legislation is made the President or the Governor as the case may be, or other persons under their direction, are competent to make rules regulating the recruitment and the conditions of service of such services. Wherever there are such rules they have for one thing the effect of statute, and for another, in the view of the Punjab High Court, bilateral cont--facts. That Court says--
'The law of pension is basically statutory. The provision which lays down the revised pension rates (arid this is post-constitutional) also suggest that pensions arc not gratuitous but the person in whose favour they are sanctioned is entitled to claim them so long as the provisions under which they are sanctioned remain enforceable. The fact that they are liable to be changed unilaterally would not affect the question of their enforceability.'
Actually, the Punjab view seems to be that a pension is a contractual incident of the service just like a salary; if a claim for a salary is justiciable as undoubtedly it is that Court's view seems to be that the claim to a pension is equally justiciable. On the other hand, the Allahabad and Madras views already stated do not at all accept that there was change in the state of affairs after the Constitution and proceed on the assumption that the claim of any pension is still nonjusticiable just as it was when the Pensions. Act was enacted. In our own High Court there is an unreported Single Bench judgment (Mir Mashookali v. State of Madhya Pradesh Second Appeal No 442 of 1962 (MP), which generally follows the Punjab view; but that is also a case where the pension accrued after the commencement of the Constitution and the making of Pension Rules under Article 309 by the Rajpramukh of Madhya Bharat. In regard to pensions accruing after such a state of affairs, there is conflict of views which will have to be cleared in an appropriate case by a Divisional or A Full Bench. But the claim in this case is one, for a period in 1949 and there is no confusion. At all events, a claim for pension accrued at that time is nonjusticiable by the civil courts.
10. As already noted, the alternative relief is altogether meaningless after the striking. off, by an amendment, of the claim for money on account of salary for the period mentioned there.
11. The application is allowed and it is decided that the suit of the plaintiff should be dismissed.