Dipchand Bhanji vs State of Saurashtra

Baxi, J.—This appeal is against the decree of the Assistant Judge, livladhya Saurashtra, dismissing the Plaintiff suit for recovery of pension accrued to him aitcr his retirement from the service of tire Saurasntra Stale.

The Appellant was a servant of the former Gonual State and on the integration of that Stato with the Saurashtra State lie was absorbed in the Saurashtra Male service and was retired on 12-12-1943.

The Condal State bad its own Pensions Act called ''Belho fagar and Uehak Baskhino Dnaiu'' which provided for payment of pensions and gratuities to retired State sirvauts. This law was the law low the Saurashtra'' State until 15-.3-14)50 when the Pensions Act, 18/L (22 of J 871) was brought into force in Saurashtra. The present suit was filed by the Appellant on 16-2-1954.

Several defenses were raised in the written statement filed on behalf of the State. It was contended inter alia that the jurisdiction of the Civil Court to entertain the suit was barred by the provisions of the Pensions Act and that the Appellant''s claim was not justifiable by virtue of the provisions of Article 363 of the Constitution.

These defenses were made the subject of separate issues Which were heard & decided by the learned Assistant Judge as preliminary issues, He held that the Civil Court''s jurisdiction to entertain the suit was barred by the provisions of the pensions ,Act, and Article 303 had no application to the ease, In the result he dismissed the Appellant''s suit with costs. The Appellant has preferred tin''s appeal against duo learned Assistant Judge''s decree.

Mr, Ashar for the Appellant contended that his client had retired from service when the Condal State law was in force and his suit was governed by that law and not by the Pensions Act. The contended that there was nothing in the condal State law which barred the Civil Court''s jurisdiction to entertain the suit and the learned Assistant Judge wrongly applied the provisions of the Pensions Act to the suit by giving retrospective effect to it. This argument is without substance.

It is true that the Gondal State law does not contain any provisions in bar of the Civil Court''s jurisdiction to entertain a suit for the recovery of a pension and of the suit had been instituted while that law was in force the Court''s jurisdiction to entertain it could not possibly have been questioned, But the suit was filed in 1954 when the Gondal State law was repealed by the Pensions Act and Court''s jurisdiction will be governed by the provisions of that Act.

Section I of the Act enacts that except as hereinafter provided no Civil Court shall entertain any suit relating to any pensions. Section 5 declares that a person having a claim relating to any such pension may prefer such claim to the authority mentioned in the section and such authority shall dispose of such claim in accordance with the prescribed rules.

Section 5 then declares the condition under which only a Civil Court may take cognizance of any such claim. It provides that a Civil Court, which is otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from the authority mentioned in the section that the case may be so tried but shall not make any order or decree in any suit whatever by which liability of the Government to pay any such pension is effected directly or indirectly.

The combind effect of these provisions is that a person claiming pension from the Government has to prefer his claim to the authority'' mentioned in Section 5 and a competent Civil Court is authorised u/s 6 to take cognizance of such claim, only on receiving the prescribed certificate. Even then the Court will not have jurisdiction to pass a dare which might affect the State''s liability to pay such pension.

The suit having been instituted without the requisite certificate the Civil Court''s jurisdiction is ''clearly barred by Section 4 of the Act. Reference may be made in this connection to - ''Udho Ram v. Secy. of State'', AIR 1936 Lah 85 (A) in which the word pension has been construed as relating to all kinds of pensions including a pension payable to a Civil servant of the State.

Mr. Ashar next argued that the Gondal State law had given him toe right ''to approach a Civil Court, Clause 16 of the Covenant guarantees the continuance in service on not less advantageous conditions than those on which he was serving in the Coadal State, One of those conditions was his right to approach a Civil Court. The Pensions Act curtailed that right and to the twentieth it was ultra vires of thy Saurasthra Legislature.

The point is concluded by the recent decided on the Supreme Court In - ''Uineij Ningh, State of Bombay'', AIR ,1955 Uncomment the Appellant takes shelter under the Covenant the dispute must be regarded as one arising out of the Covenant and censes to be virtue of the provisions of Article 363 of the Constitution.

As regards the contention about the vires of the Pensions Act on the ground that it was in violation of the Covenant the Supreme Court has held I. hat: the plenary powers of legislation of the State Legislature could be fettered or limited by the provisions of the Constitution only and not by any obligation which had been undertaken by the State and provided the impugned Act was within though constitutional competence of'' the Legislature, it must be upheld though the Act was contrary to any guarantee oil obligation, undertaken by the State.

Now the Appellant does not challenge the virus of the Pensions Act in the ground that is not within constitutional limitations of the Legislative authority of the State legislation. State pensions are included in the State list in the Seventh Schedule as item No. 42 and therefore the Saurashtra Legislature had jurisdiction to enact the Pensions Act That being so the Act cannot be impugned only he cause it is in violation of any clause of the Covenant.

The appeal accordingly fails and is ordered to be dismissed with costs.