TMI Blog1971 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein. The right of the petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. Appeal allowed. - W.P.(C) 217 OF 1968 - - - Dated:- 4-5-1971 - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed to a superior post of Education Officer in the Community Project. By about the end of 1951, he was transferred to Purulia in the district of Manbhum as Additional Deputy Inspector of Schools. The petitioner was later on transferred to Bettiah in or about May, 1953. At Bettiah the petitioner received a copy of the order dated September 2, 1953 from the Director of Public Instruction directing a censure to be recorded in the character roll of the petitioner based on the report of one Shri Kanhaya Lal, District Inspector of Schools, who, according to the petitioner, was inimically disposed towards him. The attempt of the petitioner to have the order dated September 2, 1953 cancelled proved unsuccessful. This is the first order that is sought to be quashed by the petitioner. The petitioner on the basis of certain allegations was placed under suspension on February 6, 1954 and relieved from his duty as Deputy Inspector of Schools, Bettiah. There was a charge sheet issued to the petitioner on March 16, 1954 and he was found guilty. But these inquiry proceedings were later on set aside and a fresh inquiry was ordered. In consequence the order of suspension was cancelled, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the headquarters to go to Patna with the permission of the authorities. The order dated March 5, 1960 was received by him at Patna on March 23, 1960 when he was ill. He applied for leave. According to the petitioner, he obtained an order of temporary injunction on October 5, 1961 in his title suit No. 86 of 1961 restraining the respondents from giving effect to the order dated March 5, 1960 reverting him to the Lower Division in the Subordinate Educational service. Though he offered to join the post to which he was entitled originally, he was not allowed by the respondents to join the Upper Division of the Subordinate Educational Service. The action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by the Munsif, Patna. On August 5, 1966 the Director of Public Instruction passed an order that the petitioner having not been on his duties for more than five years since March 1, 1960, has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code . The petitioner made representations for cancellation of this order but without any success. This is the third order that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of any rules has been made. The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed. The petitioner is not entitled to challenge any of those orders as they are concluded by the decision of the Patna High Court dated March 4, 1967 in Second Appeal No. 640 of 1964. Regarding the order dated August 5, 1966, it is admitted by the respondents that the petitioner was on duty till March 10, 1960. He ceased to attend office only from March 11, 1960. It is further admitted that it has been stated by mistake in the order that the petitioner has not been on duty for more than five years since March 1, 1960. The date March 1, 1960 should be read as March 11, 1960 . The respondents dispute the averment of the petitioner that he left the headquarters from March .11, 1960 with the permission of the authorities. On the other hand, according to them, the petitioner had put in an application in the office of the Sub-Divisional Educational Officer for leave on March 11, 1960 and that he did not obtain any prior permission for lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is also an averment to the effect that there is no question of any fundamental right of the petitioner being affected by the orders under attack and hence the writ petition is not maintainable. The petitioner has filed a rejoinder wherein he has pointed out the inconsistent dates given in the order dated August 5, 1966 and in the counter-affidavit filed on behalf of the respondents by the Assistant Director of Education. According to the petitioner in whatever manner the period is calculated either as per the dates given in the order or by the dates given in the counter-affidavit, rule 76 does not apply as he has not been continuously absent from duty for over five years. The petitioner further avers that he was absent from duty after taking the permission of the autho- rities. According to the petitioner he has not been continuously absent from duty for over five years if the period is properly calculated according to the various orders passed by the Munsif. Patna, in his title suit. According to the petitioner, when a court has restrained the respondents from giving effect to the order of reversion and when he offered to join duty in the post from which he was reverted, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 968 is justified by r. 46 of the Pension Rules. This aspect will be dealt with by us later. There is only a bald averment in the counter-affidavit that there is no question of any fundamental right and therefore this petition is not maintainable. As to on what basis this plea is taken, has not been further clarified in the counter- affidavit. But before us Mr. B. P. Jha, learned counsel for the respondents, urged that by withholding the payment of pension by the State, no fundamental rights of the peti- tioner have been affected. We are not inclined to accept the contention of Mr. Jha that no fundamental rights of the petitioner are affected by passing the order dated June 12, 1968. 'We will refer to the relevant Pension Rules bearing on the matter and also certain decisions. In our opinion, the right to get pension is property and by withholding the same, the petitioner's fundamental rights guaranteed under Arts. 19(1)(f) and 31(1) are affected. As the matter is being discussed more fully in the latter part of the judgment, it is enough to state at this stage that the writ petition is maintainable. Even according to the respondents the order dated June 12, 1968 has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he ceased to be in government employ from March 2, 1965. According to the petitioner this order is illegal because he was on duty till March 10, 1960 in which case continuous absence of five years would not be completed on March 2, 1965. But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years. On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring orders of the civil court. In this connection, on behalf of the petitioner, Mr. Bishan Narain, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that court. He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any reply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared, illegal by the Munsif, Patna. We have already referred to the averments in the counter- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er roll. According to the respondents in this suit Me order of censure passed on September 2, 1953 was also challenged. On August 5, 1961, the Munsif passed an order restraining the present respondents from operating the punishment order passed on March 5, 1960 by the Director of Public Instruction on the petitioner till the disposal of the suit. It is now admitted by the respondents that the petitioner was on duty till March 10, 1960 and that he was absent only from March 11. 1960. That there was an order of temporary injunction passed by the court restraining the respondents from giving effect to the order of March 5, 1960 is not challenged in the counter-affidavit. According to the petitioner he went on October 13, 1961 to join his post from which he was illegally reverted, but in spite of the order of the Munsif, Patna, the respondents did not permit him to join duty. That he was prepared to join duty and work is clear from the letters written by the petitioner to the Director of Public Instruction on October 13, 1961, October 24, 1961 and November 1, 1961. There was no reply by the respondents. It is no doubt true that on April 3, 1962, the temporary injunction granted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court. He further pointed out that the directions contained in the letter dated November 27, 1963 sent by the Director of Public Instruction was not in conformity with the decree of the Munsif. He further made a request that he should be allowed to join duty in the original post in the senior grade and also made a further request for payment of arrears of his salary. There was no reply by the respondents and the petitioner was not allowed to join duty as desired by him. The above correspondence is not at all disputed by the respondents. In fact they have admitted in the counter- affidavit that even after the order of injunction, the Department was always insisting on the petitioner joining duty as Sub-Inspector of Schools, that is, in the lower grade and that the petitioner never joined duty in that post. To complete the narration on this aspect. the decree of the Munsif in favour of the petitioner restraining the respondents from enforcing the order dated March 5, 1960 was set aside on appeal by the Subordinate Judge on June 24, 1964 in title appeal No. 132/24 of 1963/64. The petitioner's Second Appeal No. 640 of 1964 was dismissed by the High Court on February 11, 1965. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the continuity of absence is broken during this period. The petitioner can again be considered to have been absent from duty from April 3, 1962, the date on which the order of temporary injunction was vacated by the Subordinate Judge, till April 11, 1963, the date on which a decree was granted by the Munsif in favour of the petitioner. During this period he was absent. But again the continuity of absence is broken during the period April 11, 1963 the date of the decree of the Munsif, till June 24, 1964, the date when the Subordinate Judge reversed the decree of the trial court. We have already referred to the various letters written during this period by the petitioner as well as the reply sent by the Director of Public Instruction on November 27, 1963. During this period he cannot be considered to be absent from duty. The third period from which he can be again considered to be absent from duty is June 24, 1964, the date of the decree of the Subordinate Judge till August 5, 1966, the date on which the order was passed purporting to be under r. 76 of the Service Code. The above circumstances clearly show that the petitioner cannot be considered to have been continuously abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to the petitioner to show cause against the order proposed. Hence there is a clear violation of Art. 311. Therefore, it follows even on this ground the order has to be quashed. The further question is about the legality of the order dated June 12, 1968 purporting to be passed under r. 46 of the Pension Rules. The petitioner wrote a letter dated July 18, 1967 requesting the Director of Public Instructions to arrange for payment of his pension as he had attained the age of superannuation. The order dated June 12, 1968 was passed in reply to the said request of the petitioner. In this order it is stated that under r. 46 of the Pension Rules, the Department is unable to grant pension to the petitioner. Rule 46 of the Pension Rules is as follows: 46. No pension may be granted to a Government servant dismissed or removed, for misconduct, insolvency or inefficiency, but to Government servants so dismissed or removed compassionate allowance may be granted when they are deserving of special consideration, provided that the allowance granted to any Government servant shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ,time as may for any special class of Government servants be prescribed. Rule 135 provides for Government servants mentioned in r. 5 to be entitled on their resignation being accepted to -a retiring pension after completing qualifying service of not less than 25 years. Rule 146 provides the scale of pension for Government servants mentioned in r. 5. We have only referred to -some of the important rules to show that the payment of pension does not depend upon the discretion of the State; but, on the other hand, payment of pension is governed by the Rules and a Government servant coming Within the Rules is entitled to claim pension. The order dated June 12, 1968 has to be quashed in view of the fact that the foundation for the said order is the one based on the order dated August 5, 1966, which has been quashed by us. When the order dated August 5, 1966 can no longer survive, the order dated June 12, 1968 quite naturally falls to the ground. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Arts. 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh (2)approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is property within the meaning of Art. 3 1 (1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as property cannot possibly undergo such mutation at the whim of a particular person or authority. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K. R. Erry v. The State of Punjab (1). The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above decisions, we are of the opi- nion that the right of the petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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