R.S. Narula, J.
1. Dayal Saran Sanan (hereinafter called the petitioner) was appointed as a Sub-Divisional Officer on September 20, 1941, in a temporary capacity. By order, dated March 23, 1950(Annexure 'A' to the return read with item 39 of list 'G' attached thereto), the petitioner was confirmed with effect from August 15. 1947. The result was that with effect from August 15, 1947, the petitioner became a permanent Superintendent Grade II in the Military Engineering Service. Under order, dated September 30, 1950 (Annexure 'B' to the return), the petitioner, who had earlier been promoted to grade I was reverted to grade II. It is stated that he had subsequently been removed from service, but in pursuance of the decree of a competent Civil Court, he was reinstated by order, dated November 17, 1956 (Annexure 'E' to the return), and the earlier notification cancelling his permanent appointment was withdrawn. On October 24, 1962, the petitioner submitted an application (copy Annexure A-2 to his replication) to the Commander Works, Engineer, Chandigarh, for the grant of four months' leave preparatory to retirement from January 1, 1963, to April 30, 1963, as he was completing the age of fifty-five years on May 14 in that year. In Government's reply, dated December 28, 1962 (Annexure 'A-3'), the petitioner was informed that the leave applied for by him could not be granted as the age of compulsory retirement of Central Government servants had been raised from 55 years to 58 years. On December 24, 1964, an order was issued by the Chief Engineer, Western Command, Simla (copy Annexure 'H' to the return) directing the transfer of the petitioner from the establishment of the C.W.E. Chandigarh to that of the Chief Engineer, Delhi and Rajasthan Zone, Delhi Cantt. It was directed that the move should be completed forthwith. The petitioner's request to cancel his transfer wag admittedly refused. In the meantime, however, he continued on the pay roll of the Chief Engineer, Chandigarh, and admittedly received all the emoluments due to him for the period ending January 31, 1965.
In confidential letter, dated February 13, 1965 (Annexure H-I to the return), the Chief Engineer, Chandigarh, wrote to the Chief Engineer, Western Command, Simla, that the petitioner had not complied with the order of transfer, that his application for casual leave had not been sanctioned, and though he had been relieved of his duties on February 6, 1965, he had not collected the movement order and left station, i.e., he left Chandigarh on that day (February 6, 1965). In paragraph 6 of the said communication. It was stated that the petitioner was expected to return on February 13, 1965, but he was being struck off the strength. In the last paragraph of the letter, dated February 13, 1965, the Chief Engineer, Chandigarh, stated that the action of the petitioner showed indiscipline and this would bereflected in his report. The petitioner submitted an application, dated February 19, 1965 (Annexure 'P' to the return which corresponds to Annexure 'A-l' to the replication), to the Engineer Incharge Army Headquarters, New Delhi, wherein he complained that his transfer had been wrangled by some interested person as he had demanded an open Court of enquiry against a particular contractor on certain allegations. He then added in the application that he was to retire in May, 1966, after availing of his leave preparatory to retirement with effect from January, 1966, and he should not be disturbed from Chandigarh as one of his daughters was studying in M.A. English, and the second one in Higher Secondary at this place. He also requested for an Investigation into the alleged loss which the State had suffered on account of the alleged conduct of the contractor. The petitioner followed up the abovesaid communication with his letter, dated February 23, 1965 (Annexure 'N' to the return) wherein he again stated that he intended to avail of his leave preparatory to retirement with effect from January, 1966, and he prayed that the decision to transfer him be reconsidered and he may be allowed to continue at Chandigarh, failing which he might be granted leave preparatory to retirement due to him as his family circumstances did not permit him to leave his family alone at Chandigarh. The petitioner then wrote letter, dated June 10, 1965, to the Chief Engineer, Delhi Cantt that he had not so far received any movement order nor was he prepared to accept one as his transfer from Chandigarh had been made mala fide. It was added that the question of the petitioner's resuming duties at Delhi did not arise as he had referred the case to the Engineer In Chief, New Delhi, and to the Ministry of Defence, and as the direction for his transfer was contrary to the order of the Government of India because the petitioner was about 57 years old.
In reply to the petitioner's complaint against the contractor, he was informed by the Chief Engineer, Western Command, Simla, in the latter's memorandum, dated September 16, 1965 (Annexure 'Q' to the return) that a departmental Court of enquiry had been ordered to investigate into the allegations made by the petitioner, but that the Court of enquiry had found that there was no substance in the petitioner's complaint. It was mentioned in the memorandum that it had been reported that the petitioner had been insolent and insubordinate to his superiors, and had not cared to study the provisions of the contract in question. In paragraph 3 of this communication, it was mentioned that the petitioner had been struck off the strength of Garrison. Engineer Lalru, on February 12, 1965,on permanent posting to the Chief Engineer, Delhi and Rajasthan Zone, but that the petitioner had not reported for duty at his new formation till then. At that stage the petitioner filed Civil Writ 2896 of 1965, in this Court on November 22, 1965. In that writ petition, the history of the case upto the reinstatement of the petitioner consequent upon the decision of the litigation in the Civil Court was mentioned, and it was then stated that though he had been reinstated, no order had been passed regarding the payment of the salary or other allowances for the period during which he had remained under order of dismissal. He then stated that in reply to petitioner's notice under Section 80 of the Code of Civil Procedure, he had been informed that he would get his arrears of pay and allowances which were within time, but that the salary etc. for the period commencing from November 1, 1950 to October 31, 1953, had become barred by time. He complained that a sum of Rs. 9,120/- due to him for the abovesaid period had been withheld from the petitioner. The petitioner complained that under Rule 193 (2)(b) (1-a) of Chapter 10 of the Indian Civil Services and Military Officers Rules, the petitioner was entitled to get arrears for the entire period beginning from the date of the order of his dismissal up to the date of reinstatement. It was prayed by the petitioner that the Union of India and the Chief Engineer, Western Command, Simla, be directed to decide his case of arrears of emoluments under the above-said rules; and to pay him the sum of Rs. 9,120/- as detailed above. No other complaint was made in the writ petition, and no other specific relief was claimed therein. The writ petition was dismissed in limine by the order of the Motion Bench (Falshaw. C. J., and Khanna, J.), dated November 23. 1965.
2. Resuming the narrative of the facts leading to the filing of the present petition, it may be stated that on January 29,1966, the Chief Engineer, Delhi Cantt., sent a memorandum to the petitioner (copy Annexure 'J' to the return) wherein it was stated that he was informed (SOS) by Garrison Engineer, Lalru, on the afternoon of February 12, 1965, that he was permanently posted to the office of the Chief Engineer, Delhi and Rajasthan Zone, Delhi Cantt., but he had not reported for duty till then. It was added in the communication that for the aforesaid reason, the petitioner had no lien on his appointment under Article 189 of the Civil Service Regulations. He was advised in the last paragraph of the letter to resume duty by the 15th of February, 1966, at the latest in his own interest. The petitioner ultimately sent his reply, dated March 1, 1966 (Annexure 'K' to the return corresponding to Annexure'A-4' to the replication) wherein he again referred to his letter, dated February 23, 1965, to the Chief Engineer, Western Command, Simla, and his letter, dated June 10, 1965, addressed to the Chief Engineer, Delhi Cantt. The petitioner reiterated in his letter Annexure 'K' that the question of his resuming duty at that stage did not arise at all, as he was over 55 years of age and was going to complete the age of 58 years on May 14, 1966. He claimed that in accordance with certain instructions of the Government of India, he stood retired on October 9, 1965, as he had given a notice with effect from June 11, 1965, in his letter, dated June 10, 1965. The petitioner prayed in the said communication that his pension papers may be completed and said that he would attend the office for signing the same as and when intimated to him by the Chief Engineer, Western Command. In confidential letter, dated March 15, 1966, from the Chief Engineer, Western Command, to the Engineer-In-Chief, Army Headquarters. New Delhi, information regarding various communications sent by the petitioner to the office of the Engineer-in-Chief was furnished. In the last paragraph of the communication, it was stated that the insolence and insubordination of the petitioner had been taken notice of prior to October, 1964, for which he had been warned verbally. The entire communication related to the petitioner's complaint against the contractor. On May 30, 1966, the Chief Engineer, Western Command, wrote to the Chief Engineer, Delhi Cantt. (copy Annexure 'M' to the return), in connection with the posting/transfer of the petitioner. Inter alia as follows:--
'Adverting to your letter No. 11549/ DRZ/BR/DS/63/EIO, dated 12th April, 1966, it is pointed out that Shri Dayal Saran had stated in his application dated 10th June, 1965 that he had applied to our office (Chief Engineer, Western Command) for leave preparatory to retirement and that the question of his resuming duty at Delhi did not arise. His statement that he had served the department with a notice of retirement in terms of paragraph 6 of Government of India, Ministry of Defence, letter No. 14(8)63/D (Appts), dated 4th December, 1962, is, therefore, not correct. The disciplinary proceedings should have been finalised by you ex parte in view of the fact that tie refused to submit his Defence Statement and returned the charge-sheet to you.
Since Shri Dayal Saran attained the age of superannuation on 14th May, 1966. It is no use to pursue the disciplinary aspect of the case any more. He should however, be informed that since he ceased to hold any Hen on his permanent appointment in terms of Article 189 CivilService Regulations, he is not entitled to any pension under the Rules. The formation concerned should be directed to publish the event of his having lost the lien on the permanent appointment in his Part II Orders.'
On the other hand, the petitioner sent his application, dated June 29, 1966 (Annexure 'O' to the return corresponding to Annexure 'A-5' to the replication) praying for the completion of his pension papers as he had retired from service with effect from October 9, 1966. This was followed up by petitioner's letter, dated October 5, 1966 (Annexure 'A-6' to the replication corresponding to Annexure 'A' to the writ petition), wherein the petitioner's request for completion of his pension papers was repeated. The correspondence relating to the petitioner which has been placed on the record of this writ petition ended with letter, dated November 22, 1966, from the Chief Engineer, Western Command, Simla, to the Engineer in Chief, Army Headquarters, New Delhi. After referring to the previous history of the case, it was stated in the letter that the petitioner did not retire from service after giving due notice to the Department, but on the other hand he had failed to join his new appointment within the joining time in spite of reminders. On that basis, it was mentioned in the letter that the petitioner had 'ceased to have a lien on any appointment in terms of Article 189 CSR.' In the next paragraph of the letter, it was stated that the Chief Engineer. Delhi and Rajasthan Zone, was being directed to apprise the petitioner of the abovementioned position with reference to his application, dated October 5, 1966, addressed to the Chief Engineer, Western Command, Simla. The claim of the petitioner for the grant of pension and gratuity etc. having thus been finally refused by the Government, he came to this Court on March 29, 1967, under Articles 226 and 227 of the Constitution for the issuance of an appropriate writ, order or direction to the respondents to finalise the case of the petitioner regarding the pension and gratuity due to him, and to pay the arrears of salary and other payments which were due_ to him. At the hearing of the writ petition, however, the prayer of the petitioner has been confined to the grant of a direction for finalising his pension and gratuity case, and for paying the same to him.
3. In the written statement filed in this case by Shri K. L. Bawa, Superintending Engineer, Commander Works Engineer (Projects), Chandigarh, on behalf of the respondents (the Union of India, the Chief Engineer, Western Command, Simla, the Chief Engineer, Chandigarh, and the Commander of Works,Chandigarh), reference has been made to the various communications of which I have already given the details and the impugned order refusing to grant pension and gratuity to the petitioner has been justified in the following words:--
'On his (petitioner's) failure to comply with orders for resuming duty, he was treated as absent without leave by Chief Engineer, Delhi and Rajasthan Zone, and he was informed that he had ceased to have any lien on his appointment in terms of Article 189 of Civil Service Regulations.'
After repeatedly stating that the petitioner had ceased to hold any lien on his appointment in terms of Article 189 of the Civil Service Regulations, it has been stated in the return:--
'In view of the fact that the petitioner ceased to have lien on his substantive appointment, he has no claim for gratuity and pension under the rules.'
4. Besides the abovesaid reply on merits, the respondents have also taken up two objections of a preliminary nature in their return. The first is to the effect that the grant of pension and gratuity is not founded on any legal right as it is a matter of grace and bounty. In that connection it has been added that the Union of India having sole jurisdiction to proceed under Article 189 of the Civil Service Regulations, the Government was competent to issue necessary orders under the said provision of law which cannot be challenged in _ writ proceedings. The second objection is that the petitioner is estopped from filing this writ petition on account of his acts of omission and commission. By this the learned counsel for the respondents states was intended to be conveyed that the petition is barred on principles of constructive res judicata on account of the dismissal in limine of the petitioner's earlier application under Article 226 of the Constitution. i.e. Civil Writ 2896 of 1965. In his replication, dated May 4, 1968. the petitioner has reiterated his previous stand, on the merits of the controversy. In reply to the first preliminary objection he has stated that the grant of pension and gratuity is not a matter of grace or bounty and the petitioner has got a legal right to get the same paid in accordance with the relevant service rules. In reply to the other objection it has been stated that the same is absolutely vague as no acts of omission or commission have been specified in the return.
5. Mr. Jawahar Lal Gupta, learned counsel for the petitioner, has pressed only two points in support of the claim of his client He has firstly stated thatunder the relevant rules raising the age of superannuation from 55 to 58 years, the petitioner was entitled as of right to retire from service on giving three months' notice at any time after attaining the age of 55 years, and inasmuch as he had given the requisite notice (Annexure 'A-2' to his replication), the petitioner was deemed to have retired after the expiry of three months from the date of the said notice. I am unable to find any force whatever in this submission of Mr. Gupta for more than one reason. Firstly, the communication, dated October 24, 1962 (Annexure 'A-2') does not even purport to be a notice of retirement, but is a plain application for leave preparatory to retirement, submitted on the assumption that the age of compulsory retirement was 55 years. Secondly, the question of serving a three months' notice for retiring between the age of 55 and 58 years could not arise in October, 1962, as the first communication by which the age of retirement of Central Government servants was raised from 55 to 58 years was the circular letter of the Government of India, dated November 30, 1962, referred to in Annexure 'A-3'. On October 24. 1962, when submitting application Annexure 'A-2' the petitioner could not possibly have dreamt of the change of the rule enforced on November 30, 1962, with effect from December 1 in that year, and of the permissive clause under that rule which entitled the Government as well as the employee to terminate the services of an incumbent at any time after his attaining the age of 55 years and before attaining the age of 58 on giving three months' notice on either side. Thirdly it is significant that the period referred to in the application Annexure 'A-2' was to expire before the petitioner was to attain the age of 55 years. Fourthly, the stand now taken by the petitioner about his application, dated October 24, 1962, being a three months' notice is inconsistent with what was explicitly stated by him in his subsequent communications. In his letter dated June 10, 1965 (Annexure 'L'), the petitioner stated that he was about 57 years old and had applied to the Chief Engineer, Western Command, for leave preparatory to retirement. In his application, dated March 1. 1966 (Annexure 'K'), the petitioner stated that he stood retired on October 9, 1965, as his notice started from June 11 in that year, vide his letter of June 10, 1965 (Annexure 'L'). The abovesaid four factors and other circumstances of the case taken together conclusively show that the communication, dated October 24, 1962 (Annexure 'A-2') neither intended to be nor can the same be construed to be a three months' notice claiming retirement between the age of 55 and 58 years. At the hearing of this petition it has not been claimed on behalfof the petitioner that he ever gave any other notice for that purpose though an insinuation has as already stated, been made in some of his communications that he gave such a notice on June 10, 1965, Even the period referred to in letter, dated June 10, 1965 (Annexure 'L'), read with his letter dated March 1, 1966 (Annexure 'K') is of four months and not of three months. I, therefore, hold that the petitioner never gave any three months' notice or any other notice of his intention to retire before attaining the age of superannuation.
6. The only other ground pressed by Mr. Gupta is that the order of the Government (Annexure 'G' to the return), dated November 22, 1966, amounts to the petitioner's removal from permanent Government service, and inasmuch as the said order has been passed and the petitioner's services deemed to have been terminated with effect from February 19, 1965, without complying with the mandatory requirements of Clause (2) of Article 311 of the Constitution, the petitioner is entitled to have_ the impugned order of termination of his service quashed on that short ground. Before dealing with the merits of this submission of Mr. Gupta, it appears to be appropriate to dispose of the two preliminary objections raised in the return of the respondents, and pressed by Mr. Rekhi who appears for them. The question of this petition being barred on principles of constructive res judicata does not appear to raise in the circumstances of this case. The petitioner is confining himself in the present case to the prayer for the payment of pension and gratuity. His claim in this respect was finally settled only on November 22. 1966, by the order of the Chief Engineer, Western Command (Annexure 'G' to the return). It could not possibly have been called in question while filing the earlier writ petition. Moreover, the question of the purported termination of the petitioner's services consequent upon Ms not reporting to the transferee office did not even impliedly arise in the previous case, I have, therefore, no hesitation in repelling this objection of the respondents. Nor is there any force in the second preliminary objection. Mr. Rekhi has relied on the judgment of a learned Single Judge of the Allahabad High Court in Shaukat Husain Beg Mirza v. State of Uttar Pradesh, AIR 1959 All. 769, wherein a writ petition was dismissed on the ground that pension cannot be claimed as of right; and a claim for pension is barred under the Pensions Act The bar to a claim under the Pensions Act is, in my opinion, restricted to ordinary civil proceedings, and cannot possibly extend to affect the extraordinary original Jurisdiction of a High Court under Article 226 of the Constitution. With the greatest respect to the learnedSingle Judge of the Allahabad High Court, I am of the opinion that if a retired Government servant is found to be entitled, according to his service rules, to payment of pension which has been refused to him on an extraneous or irrelevant ground, the High Court should normally interfere and set aside the order of refusal to grant the pension.
Learned counsel for the respondents also referred to the judgment of a Division Bench of the Madras High Court in G. Kothandaramiah v. Secretary of State, AIR 1916 Mad, 492. In that case it was held that under Articles 458 and 464 of the Civil Service Regulations, it is essential that an officer to be entitled to pension must be in the service on the date of his retirement and therefore, an officer removed by Government from service before that date, can have no claim for any pension. There is no doubt that if it is ultimately found that the petitioner has been removed from service, the order of the Government refusing to grant him pension cannot possibly be assailed. But this submission of the counsel appears to be wrought with graver consequences than the learned counsel for respondents appears to envisage. If it is found that the petitioner has been removed from service and if the order of removal is called in question on the ground that the same has been passed without compliance with Clause (2) of Article 311 of the Constitution, the order of removal itself may have to be quashed, and in that event, the impugned decision refusing the grant of pension will vanish. Article 458 states inter alia that a superannuation pension is granted to an officer in superior service entitled or compelled, by rule, to retire at a particular age. The argument of the learned counsel is that inasmuch as the petitioner was never compelled to retire at a particular age, he is not entitled to any pension. This submission of the_ learned counsel appears to be misconceived as superannuation pension has to be granted under Article 458 in two contingencies, viz. (i) that an officer in superior service Is entitled by rule to retire at a particular age; or (ii) that such an officer is compelled to retire at a particular age. No doubt the petitioner was not compelled to retire at a particular age, but he was certainly entitled to retire at the age of 58 years. It cannot, therefore, be said that his case could not possibly fall under Article 458. In the case before the Madras High Court, it was the admitted case of both sides that the Government servant concerned had been removed from the State service long before attaining the age of superannuation. The crucial question that therefore, calls for decision is whether the petitioner continued in Government service when and till he attained the age of 68 years.
7. Coming back to the merits of the second submission of Mr. Gupta, it is significant that no such point has been specifically taken in the writ petition. It has not even been urged in the petition that the petitioner has been removed from service or that his services were terminated contrary to the requirements of Clause (2) of Article 311 of the Constitution. In this view of the matter, I cannot allow counsel to raise this new point during arguments . In this writ petition. Adopting such a course would seriously prejudice the respondents as they have had no opportunity to meet such a challenge. Mr. Gupta states that from the record produced by the respondents themselves this point emerges for consideration, and should, therefore, be allowed to be urged. The record produced by the respondents comprises of correspondence between the petitioner and the various Government departments and it is a matter of regret that the petitioner withheld the same from the Court while filing the writ petition and did not even state specifically in the writ petition that the had refused to comply with the order of transfer and had been told that his lien had been terminated on that account. Be that as it may, the situation appears to me to be this. The petitioner admittedly did not comply with the order of joining the transferee post to which he was lawfully posted. His application for the grant of leave or casual leave as the case may be, had been refused. He did not resume duty, and has to face the consequences which ensued under regulation 189. This clearly caused a break in his service within the meaning of regulation 420 of the Civil Service Regulations. This amounted to an interruption in the service of the petitioner and by operation of regulation 420 which states that an interruption in the service of an officer entails forfeiture of his past service, he forfeited all his past service. His case does not fall under any of the exceptions (a) to (g) of the rule contained in the purview of regulation 420. He never resumed duty after the interruption or break in service and no question of granting any pension to him can, therefore, arise
8. In this view of the matter I am unable to interfere in this case. The writ petition, therefore, fails and is dismissed with costs.