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 Constitu tion 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 doctri

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