M.M. Kumar, J. - (1.) THIS appeal has been referred to this Bench for decision on the following two substantial questions of law: 1. Whether as per Rule 4.2 -A, the qualification of LL.B., qualify for benefit as contained in Rules 4.2 -A of Civil Service Rules, Volume II?
(2.) WHETHER the underlying idea of the said enactment is to make one eligible for earning pension, if he is falling short of minimum service, for getting superannuation pension being late entrant only or to provide extra weight age for calculating the pension on account of his special qualification? 2. In order to put the whole controversy in its proper perspective it would first be apposite to notice the facts of the present case. The Plaintiff -Respondent Shri Mullkh Raj Mehta after doing his B. Com in the year 1966 and LL.B. in the year 1968 from the Panjab University, Chandigarh, was enrolled as an Advocate with the Bar Association Sirsa in August 1968. He practiced for over six years as an Advocate up to 17.12.1974 at Sirsa. On 18.12.1974, he joined the service as an Assistant District Attorney at Rohtak. On 30.11.2003, he retired from the post of District Attorney from Hisar on attaining the age of superannuation and started getting pension vide PPO No. 106402/S/HSR. It is conceded fact on record that his service is governed by the Punjab Civil Services Rules (as applicable to Haryana) [for brevity, 'the Rules']. In terms of Rule 4.2 -A of the Rules, the Plaintiff -Respondent applied to the Defendant -Appellants for addition of the period of 4 years and 33 days claiming a part of his total period of practice as an Advocate before joining Government service towards qualifying service for pension. However, the Defendant -Appellants only granted the benefit of 8 months and 4 days vide order dated 3/21.6.2002. Thereafter, he made a representation which was declined by the Director of Prosecution, Haryana, Panchkula vide order dated 5.3.2003/28.4.2003. Feeling aggrieved, the Plaintiff -Respondent filed a suit for declaration, with a prayer for declaring order dated 5.3.2003/28.4.2003 as illegal and further holding that the Plaintiff -Respondent is entitled to count the period of 4 years and 33 days as special addition to his qualifying service towards his pension under Rule 4.2 -A. The Plaintiff -Respondent also sought mandatory injunction directing the Defendant -Appellants to re -fix his pension and to pay arrears along with interest at the rate of 18% per annum from the due date till realisation.
(3.) THE Defendant -Appellants contested the suit by raising various objections such as the suit is not maintainable in the present form; it is time barred and that it is bad for want of impleadment of necessary parties. On merits it has been admitted that the service of the Plaintiff -Respondent was governed under Rule 4.2 -A of the 'Rules'. However, it has been denied that the Plaintiff -Respondent is entitled to the benefit of addition of the period of 4 years and 33 days towards qualifying service towards his pension. It has further been asserted that the Plaintiff -Respondent is only entitled for the benefit of 8 months and four days, which has already been granted to him vide order dated 3.6.2002/21.6.2002. They simply denied other averments and prayed for dismissal of the suit. On 9.5.2005, the following issues were framed by the trial Court: 1. Whether order/letter of the Government dated 05.03.2003 conveyed to the Plaintiff vide letter dated 28.04.2003 by Defendant No. 2 whereby the representation of the Plaintiff to count the period of 4 years and 33 days as practicing Advocate towards qualifying service for pension has been rejected, is totally illegal, arbitrary, against civil service rules applicable and as such not binding on the rights of the Plaintiff? OPP 2. Whether the Plaintiff is entitled to count his 4 years and 33 days period as special addition to his qualifying service towards his pension under Rule 4.2 -A Civil Service Rules Vol -II? OPP 3. Whether the Plaintiff is entitled to get mandatory injunction for directing the Defendants to re -fix the pension of Plaintiff and to pay arrears accordingly alongwith interest @ 18% per annum? OPP 4. Whether the suit is not maintainable? OPD.;