A claim to pension is a legal right and is enforceable in a Court of Law.

Dua, J.

1. The short though by no means easy question, which calls for determination in this case, is whether claim to a pension is a legal right and is enforceable in a Court of Law.

2. The facts and circumstances giving rise to this appeal may briefly be stated. The plaintiff-appellant S. Gurdip Singh joined the erstwhile Patiala State army some time in February, 1924, and by honest and hard work he in due course became a subedar in that Army. In 1942, he was given commission and as a result of his services in the Second World War he was later given a regular commission. In October, 1947, he was placed in April, 1950, he was retired from service. The Plaintiff thus served the army for a little more than 26 years; for two years he was a regular officer and for about three years he served as an Emergency Commissioned officer and for 2 1/2 years as a Reserve Officer. For the remaining period he served as V.C.O. or N.C. O. He was granted pension of Rs. 75/- per mensem which was later on raised to Rs. 101/- per mensem. In the present suit he has alleged after narrating the above history that his pension according to the rules should have been fixed at the rate of Rs. 228/- per mensem and has, therefore, claimed that he is entitled to Rs. 8,516/4/3 as arrears due with effect from 1st of April, 1950 to 16th of October, 1955.

3. The defendants-respondents resisted the suit inter alia on the ground that the suit relating to pensions could not be proceeded with in a Civil Court. In the written statement, the amount of pension actually fixed was also sought to be justified on the merits.

4. On the pleadings of the parties, the following issues were settled by the Court below:-

1. Whether claim to pension is a legal right and is enforceable in a Court of law?

2. Whether this suit for declaration simpliciter is competent?

3. whether the plaintiff issued a legally sufficient notice to the defendant as contemplated by section 80 of the Code of Civil Procedure? and

4. Whether the plaintiff is entitled to pension at the rate of Rs. 228/- per mensem?

5. The trial Court decided issue No. 1 against the plaintiff and came to the conclusion that pension right of the plaintiff could not be enforced through Civil Court and it is principally on this finding that the plaintiff s suit has been dismissed. Under issue No.2 the suit in the present form was held competent and decision on issue No. 3 also was given in favour of the plaintiff. Under issue No. 4, the plaintiff was held entitled to a pension at the rate of Rs. 240/- per mensem from the date of his release i.e., from the 1st of April 1950, but as he had claimed pension only at the rate of Rs. 228/- per mensem and the arrears amounting to Rs. 8,516/4/3 he was held disentitled to claim more than what he had asked for in his complaint, with the result that the Court below held him entitled to pension at the rate of Rs. 228/- per mensem and arrears amounting to Rs. 8,516/4/3. But, as already observed, decision on issue No.1 had gone against the plaintiff and his suit was dismissed, but the parties were left to bear their own costs.

6. On appeal preferred by the plaintiff to this Court, the only question canvassed at the Bar, as already indicated, is the one covered by the first issue, namely, whether the right to pension is justifiable and can be enforced through Civil Court. The decision of the lower Court on the merits was not challenged on behalf of the respondents. The main contention raised on behalf of the respondent in support of the decision of the Court below and against the competency of the present suit is principally based on two decisions of the Privy Council reported as R. T. Rangachari V/s. Secretary of State, AIR 1937 PC 27, and R. Venkata Rao V/s. Secretary of State, AIR 1937 PC 31. In Rangacharis case AIR 1937 PC 27, the facts as discernible from the report were as follows:-

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Some time before July, 1927, Rangachari was Sub-Inspector of Police in the Presidency of Madras