A.N.Grover, J. - (1.) THE facts which have led to the institution of the present petition under Articles 226 and 227 of the Constitution have been fully set out in the reference order and may again be recapitulated.
(2.) THE Petitioner joined the Lahore High Court as Senior Clerk on 24th November, 1930, and retired as a Senior Translator of this Court on 14th August, 1956. The period of service of the Petitioner may be split up under three heads i.e. 24th November, 1930 to nth August, 1940, 12th August 1940 to 20th June, 1942 and 21st June, 1942 to 13th August, 1956. For the first period which came to 9 years, 8 months and 19 days he was officiating in leave and other short term vacancies with frequent interruptions as unpaid candidate etc. For the second period which was of the duration, of ,I year, 10 months and 9 days he was continuously officiating in leave or other short term vacancies without break and during the third period he was indisputably officiating against vacant posts or as substantive provisional or substantive permanent qualifying for pension in full. As the Petitioner was admittedly governed by the New Pension Rules contained in Appendix. 2 of the Punjab Civil Services Rules, Volume II, only "qualifying service was to be treated as service which would count towards pension. Full period of service rendered in substantive posts is qualifying service but service which is temporary or is not continuous or is interpreted by breaks is not treated as such although half of the temporary continuous service is treated as qualifying service." In normal course, therefore, the Petitioner was to have the benefit of 15 years and 27 days as qualifying service in respect of the last two items. Half of the service rendered by him for the period covered' by the first head could also be counted provided the appropriate authority relaxed the rule in his favour under Note 2 to Rule 18 of the Punjab Civil Services Rules, Volume 1, Part 1. As the Petitioner had put in a number of years of service, interrupted by breaks and he stood to lose a fair amount of pension, his case was considered to be a hard one. He had continuously been working as a clerk even when he was reverted as unpaid. The Registrar of this Court addressed a memorandum dated 30th May, 1956, (Annexure 'A') to the Accountant General, Punjab, forwarding his pension papers and conveying the, decision of the Chief Justice under Note 2 to Rule 18, read with Article 229 of the Constitution, that the periods of unpaid service between 24th November, 1930 and nth August, 1940, be treated as continuous temporary service as he had actually worked in the High Court and that he be allowed to add half of the entire service, both paid and, unpaid, to his qualifying service after excluding therefrom the period of extraordinary leave under Rule 7(1) of Section IV of the New Pension Rules. In this way the period of his service qualifying for pension would come to 19 years, 9 months and 3 days. The Accountant General, Punjab, raised an objection (memorandum dated 23rd May 1956 - -Annexure 'C') that interrupted service prior to 12th August, 1940, could not be taken into account for pension. This objection was met in a reply sent by this Court dated 30th May, 1957 (Annexure 'D'). Thereupon the Accountant General, Punjab, agreed to give the benefit of half of the service for the first period from 24th November, 1930 to nth August, 1940. The pension was finally calculated on that basis and fixed at Rs. 47.64 and the gratuity at Rs. 1,863/ - vide certificate and report of the Accountant General, Punjab, (Annexure 'E'). The Registrar then sent the following communication (Annexure 'F') to the Accountant General, Punjab: 1. Please refer to your certificate and report No. Pen(R) K -14/56 -57/2493 dated 27 -6 -1957. 2. The Hon'ble the Chief Justice and Judges are pleased to sanction the grant of a superannuation pension of Rs. 47.64 nP. per mensem with effect from 14 -8 -1956' and the payment of death -cum -retirement gratuity of Rs. 1,863/ - to Shri Kidar Nath, retired Senior Translator of the Punjab High Court, subject to the condition that should the amount be proved afterwards to be in excess of those to which he is entitled under the rules, he shall be called upon to refund the excess. The Petitioner continued to receive the pension at the rate of Rs. 47.64 nP. from 14th August, 1956 to 31st October, 1959, and had also received the death -cum -retirement gratuity amounting to Rs. 1.863/.
(3.) IN November, 1959, the Accountant General, Punjab, addressed a letter to the Secretary, Finance Department, Punjab Government, that the grant of the pension at the rate of Rs. 47.64 nP. and of the gratuity as above to the Petitioner was not correct as he, was not entitled to the benefit of half of the temporary/officiating service which was interrupted by breaks as unpaid candidate. His pension case was purported to be revised and a revised certificate and report dated 3rd November, 1959, was issued according to which he was to be entitled to a pension or Rs. 39.69 nP. per mensem and gratuity of Rs. 1,552.50 nP. The excess amount paid was to be recovered back from the Petitioner, Thereupon this Court issued a sanction, at the revised rata and the Accountant General, Punjab, authorised the Treasury Officer, Chandigarh, to pay pension and gratuity at the revised rate. The Petitioner made a representation to this Court against those orders and by means of a letter (Annexure 'K') dated 22nd April, 1960, the Registrar conveyed to the Home Secretary the entire background of the case and the relevant rules on the basis of which the Chief Justice had decided previously to allow the benefit of half of the service to the Petitioner for the period in question. It was also intimated that the Hon'ble Judges had recommended that as a special case the Petitioner should not be required to refund the amount overpaid to him and his pension should not be reduced. The Petitioner had addressed a letter to the Governor of the Punjab to which he received a reply on 4th March, 1960, (Annexure 'L') in which it Was stated: * * * the Governor is of the view that the matter is to be decided exclusively by the Chief Justice. The Petitioner had also sent a representation to the Chief Minister to which he received as reply from the Home Secretary to Government, Punjab, dated 18th November, 1960, (Annexure 'N') saying that the decision already arrived at could not be altered. It was in these circumstances that the present petition was filed in this Court challenging the orders of the Government revising the pension and the amount of gratuity payable to the Petitioner and demanding the refund of the excess amounts paid.;