- (1.) THIS appeal is directed against the judgment and decree of the first appellate Court which on appeal reversed the judgment of the trial Judge and decreed the suit of the plaintiff.
(2.) THE respondent (hereinafter referred to as the plaintiff) was enrolled as a constable in Government Railway Police on April 1, 1938 He continued to serve in that rank till September 14, 1977 when he proceeded on leave Preparatory to retirement He retired from service on February 28, 1978 on attaining the age of superannuation. He was promoted as a Head Constable vide order dated September 21, 1977 when he was on leave preparatory to retirement. He made a claim to the appellant to accord him pensionary benefits admissible to him as Head Constable. The prayer was declined necessitating the filing of the civil suit for mandatory injunction to the effect that the defendants be directed to award salary in terms of promotion order passed by the Inspector General of police. The appellant declined him the relief only on the ground that he never joined duties as Head Constable.
(3.) LEARNED appellate Judge found that the statutory rules did not permit any employee who has proceeded on leave preparatory to retirement to return to duty save with the consent of the authority empowered to appoint him. Rule 8. 43 (1) and (2) of the Punjab Civil Services Rules, Volume I reads thus. " (1) A Government employee on leave may not return to duty before the expiry of the period of leave granted to him unless he is permitted to do so by the authority which granted him leave. (2) Notwithstanding anything contained in sub rule (1), a Government employee on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from returning to duty, save with the consent of the authority empowered to appoint him. (3) Return from leave on Medical Certificate. " The plaintiff could not join duty during the period he was on leave preparatory to retirement except with the permission of the authority competent to appoint him. The authorities were well within their rights to promote him to the next higher rank and direct him to join service immediately. This course was not followed The bar created under the statutory rules prevented the plaintiff from joining the duty. The appellants were not correct in refusing the benefit only on the ground that the plaintiff did not join duty after the promotion order was passed. The order declining the pensionary benefits is not sustainable either in law or in principle,;