PETITIONER: DEOKINANDAN PRASAD Vs. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT04/05/1971 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SIKRI, S.M. (CJ) MITTER, G.K. REDDY, P. JAGANMOHAN DUA, I.D. CITATION: 1971 AIR 1409 1971 SCR 634 1971 SCC (2) 330 CITATOR INFO : R 1973 SC 834 (10) F 1976 SC 37 (22) F 1976 SC 667 (3) R 1978 SC 803 (30) F 1983 SC 130 (20) RF 1983 SC1134 (2) R 1984 SC1064 (10) RF 1984 SC1560 (3) R 1984 SC1855 (8) F 1984 SC1905 (2,2,3,5,6) F 1985 SC1196 (7) F 1987 SC 943 (8) F 1989 SC2088 (7) ACT: Constitution of India, 1950, Art. 32-Right to pension, if property-Petition to enforce-Maintainability. Bihar Service Code, r. 76-Automatic termination without opportunity to show cause-If violates Art. 311. Bihar Pension Rules, r. 46-Scope of. HEADNOTE: The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent-State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner. On March 5, 1960, he was reverted to the Lower Division of the Subordinate Educational Service, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restraining the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner's second appeal was dismissed by the High Court on February 11, 1965. 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 having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her. pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension. The petitioner filed the present writ petition under Art. 32 challenging the various orders. HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [652G-H 653A-B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in Government service should be set aside. [653-A-B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous.' [643C-D, E; 644A-C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal. From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964. During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so. Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable. [644E-F; 645A-D,G; 646D-H; 647A-B,E-F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, Art. 311 applies to such cases also. According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension. The respondent did not give an opportunity to the petitioner to show cause against the order proposed. Hence there was violation of Art. 311. [647GH ; 648D-E] Jai Shankar v. State of Rajasthan, [1966] 1 S.C.R. 825, followed. (3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside. [649C] Payment of pension under the rules does not depend upon the discretion of the State Government but is governed by the rules and a government servant, coming within those rules is entitled to claim pension. Under r. 46 a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. In the present case it was contended that the petitioner's absence for over five years, amounted to misconduct and inefficiency in service. But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground. [649B-C;D-H;65OA-B] (4) The grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under Art. 31(1) and by a mere executive order the State had no power to withhold it. Similarly, the said claim is also property under Art. 19(1) (f). It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable. [650G-H; 652B-C, D-F] K. R. Erry v. State of Punjab, I.L.R. [1967] Punjab & Haryana 279, (F.B) approved. 636 (5) The bar against the Civil Court entertaining any suit relating to the matters under the Pension Act 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. JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 217 of 1968.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
Bishan Narain, B. B. Sinha, S. N. Misra, S. S. Jauhar and K. K.
Sinha, for the petitioner.
B. P. Jha, for the respondents.
The Judgment of the Court was delivered by
Vaidialingam, J.-In this writ petition under Art. 32 of the
Constitution, the petitioner prays for the issue of a writ
to the respondents in the nature of Certiorari or any other
appropriate writ, direction or order quashing four orders
dated September 2, 1953, March 5, 1960, August 5, 1966 and
June 12, 1968. He further prays for issue of a writ in the
nature of a Writ of Mandamus directing the respondents to
treat him as having retired at the age of 58 and to pay him
the pension that he is entitled to.
Though four orders are cought to be quashed, as we will show
in due course, the grievance of the petitioner regarding the
orders dated September 2, 1953 and March. 5, 1960 can no
longer be considered by this Court in this writ petition.
In consequence only the last two orders, mentioned above,
survive for consideration.
We will refer briefly to the circumstances leading up to the
passing of the orders, referred to above, in order to
appreciate the circumstances under which the last two orders
in particular came to be made as well as the ground of
attack levelled against these orders.
The petitioner joined service as an Assistant Teacher on
September 1, 1928 in the Patna Practising School and was
promoted as Sub-Inspector of Schools, Lower Division, in the
Subordinate Educational Service from May 31, 1934. The
petitioner later on was promoted as Deputy Inspector of
Schools in Upper Division of the Subordinate Educational
Service and was posted at Seraikella in the Singhbhum
District in the Chhotanagpur Division, Bihar from November
1, 1949. The State of Seriakella having merged in the
erstwhile province of Bihar, the provincial
637
Government took over and assumed control directly of the
education in the locality through its employees of the
Education Department unlike other parts of, the province
where the education was under the control and management of
the District and Local Boards. The service rendered by the
petitioner as Deputy Inspector of Schools, Seraikella was
found satisfactory by the superior officers including the
Director of Public Instruction and hence he was recommended
to be 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 immediately thereafter a fresh inquiry was
conducted in which he was again found guilty as per the
report of the Inquiry Officer dated September 22, 1959. The
Disciplinary Authority, who was the Director of Public
Instruction. passed an order on March 5, 1960 accepting the
finding of the Inquiry Officer recorded against the
petitioner and held that the charges had been proved against
him. Accordingly, by this order the petitioner was
reverted, as punishment, to Lower Division of Subordinate
Educational Service and also directing a censure entry to be
recorded in Us personal character roll. This is the second
order that is challenged in this writ petition.
It is not necessary for us to deal in any detail about the
first and the second order as both those orders are now
concluded against the petitioner by the decision of the High
Court.
The petitioner filed title suit No. 86 of 1961 in the Court
of the Munsif, III, Patna, for a declaration challenging the
order dated March 5, 1960 as well as the inquiry proceedings
on the basis of which the said order was passed. He also
challenged the order of censure passed on September 2, 1953
and further incorporated in the order of March 5, 1960.
Though the suit was
638
contested by the respondents, it was ultimately decreed on
April 11, 1963. The respondents filed title appeal No.
132/24 of 1963-64 before the Subordinate Judge, 11 Court,
Patna, challenging the decree of the Munsif. On June 24,
1964 the appeal was allowed, with the result that the
petitioner’s title suit No. 86 of 1961 stood dismissed. The
petitioner’s Second Appeal No. 640 of 1964 was dismissed by
the High Court on May 4, 1967. From these proceedings it is
clear that the order of censure dated September 2, 1953 as
well as of reversion dated March 5, 1960 have both been
found to be correct by the High Court and it is no longer
open to the petitioner to canvass those orders again. But
it may be necessary for us to refer to certain proceedings
connected with the title suit when we deal with the attack
of the petitioner against the legality of the orders dated
August 5, 1966 and June 12, 1968. When the order of
reversion dated March 5, 1960 was passed, the petitioner was
working as Deputy Inspector of Schools, Deoghar. The office
of the Deputy Inspector of Schools was closed for Holi
holidays from March 11, 1960 and the petitioner claims that
he left 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 being
challenged.
The petitioner having completed 58 years of age, addressed a
letter to the Director of Public Instruction on July 18,
1967 requesting him to arrange for the payment of the
petitioner’s pension. No reply was received by the
petitioner for a long time inspite of repeated reminders.
Ultimately on June 12, 1968 the Director of Public
instruction passed orders on the petitioner’s ,application
dated July 18, 1967 regarding payment of pension.
639
In this order it is stated that under r. 46 of the Bihar
Pension Rules (hereinafter to be referred as the Pension
Rules), the Department is unable to grant any pension to the
petitioner. We will refer to this rule at the appropriate
stage but it is enough to take note of the fact that under
the said rule, no pension may be granted to a government
servant dismissed or removed for misconduct, insolvency or
inefficiency. According to the petitioner this order is
illegal and void. This is the fourth order that is under
challenge.
According to the petitioner the order dated August 5, 1966
is an order removing him from service and it is illegal and
void as it has been passed in contravention of Art. 311 of
the Constitution. Further the order is also not legal and
not warranted by the Rules for the reason that the
petitioner had not been absent from duty for over five years
continuously. According to the petitioner there is a
further infirmity in the order as the respondents are
inconsistent in their pleas regarding the date from which
the period of continuous absence has to be calculated. This
plea is based upon the different dates given in the order
dated August 5, 1966 and the dates given in the counter-
affidavit filed on behalf of the respondents. The attack on
the order dated June 12, 1968 is two fold, namely, (a) that
it is not warranted by r. 46 of the Pension Rules under
which it is purported to be passed; and (b) the petitioner’s
right to get pension is property and by the respondents not
making it available to him, his fundamental rights
guaranteed under Arts. 19(1)(f) and 31(1) of the
Constitution, have been affected.
The Assistant Director of Education has filed a counter
affidavit on behalf of the respondents. According to the
respondent the orders of censure passed on September 2, 1953
and of reversion dated March 5, 1960 are valid and legal and
in passing those orders no violation 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
640
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 leaving the
headquarters. It is further averred that the order dated
March 5, 1960 reverting the petitioner came into- effect
immediately and the petitioner was also informed of the
same. It is specifically pleaded by the respondent as
follows:
“In other words since 11-3-1960 till 5-8-1968
he was continuously not in service for more
than 5 years. By virtue of rule 76 of Bihar
Service Code of 1952 the petitioner ceased to
be in the service of the Government as he
remained absent from duty continuously for 5
years and this itself amounts to misconduct
and inefficiency in the service. In the
present case the provisions of article 311 do
not apply to the- facts of this case because
his services are not terminated on account of
any charge but are automatically terminated by
virtue of the statute i.e. rule 76 of the
Bihar Service Code 1952. Article 311 applies
where the services of a government servant are
terminated in respect of any charge. But it
does not apply where a government servant
ceases to be a government servant by virtue of
any statute.”
According to the respondent there has been no breach
committed of Art. 311 of the Constitution when the order
dated August 5, 1966 was passed on the basis of r. 76 of the
Bihar Service Code, 1952 (hereinafter to be referred as the
Service Code). It is to be noted at this stage that there
is a variation regarding the dates of continuous absence for
over five years mentioned in the order and in the counter-
affidavit. They will be dealt with by us when the attack of
the petitioner on the order dated August 5, 1966 is con-
sidered. It is further admitted by the respondents that
even after the injunction order was passed by the Munsif,
the Department was always insisting on the petitioner to
join in the lower grade to which post he had been reverted
and that the petitioner never joined that post.
Dealing with the order dated June 12, 1968 in and by which
the petitioner was informed that the Department was unable
under r. 46 of the Pension Rules to grant him pension, the
respondents state that the order is valid and fails squarely
under the said rule. According to the respondents the order
dated August 5, 1966 is an order removing the petitioner
from service for not attending to his duty for more than
five years and that by itself amounts to misconduct.
Therefore, the petitioner was not entitled to claim
641
any pension. There 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, the respondents without any regard for the court
orders, did; not permit him to join duty, but, on the other
hand, insisted that he should join duty in the lower rank to
which he had been reverted. This, according to the
petitioner, is illegal. The petitioner further reiterates
his allegation that he was entitled to pension and that
withholding of the same affects his fundamental rights.
According to the petitioner the respondents do not deny his
right to get pension but, on the other hand, plead that as
he has been removed from service by the order dated August
5, 1966, he is not entitled to pension by virtue of r. 46 of
the Pension Rules. He further points out that as the order
dated August 5, 1966 is illegal, the order dated June 12,
1966, which is based upon the earlier order, is also null
and void.
The questions that arise for consideration are whether the
orders dated August 5, 1966 and June 12, 1968 are legal and
valid. Before we consider that aspect, it is necessary to
state that in order to sustain this petition under Art. 32,
the petitioner will have to establish that either the order
dated August 5, 1966 or June 12, 1968, or both of them
affect his fundamental rights guaranteed to him. The order
of August 5, 1966, according to the petitioner, is one
removing him from service and it has been passed in viola-
tion of Art. 311. That the said order is one removing the
petitioner from service is also admitted by the respondents
in paragraph 11 of the counter-affidavit filed on their
behalf by the Assistant Director of Education. Assuming
that the said order has been passed in violation of Art.
311, the said circumstance will not give a right to the
petitioner to approach this Court under Art. 32. The stand
taken by the petitioner is that his right to get
41-1 S.C. India/71
642
pension is property and it does not cease to be property on
the mere denial or cancellation by the respondents. The
order dated June 12, 1968 is one withholding the payment of
pension or at any rate amounts to a denial by the
respondents to his right to get pension. Either way, his
rights to property are affected under Arts. 19(1)(f) and
31(1) of the Constitution. His right to pension cannot be
taken away by an executive order. In the counter affidavit,
the respondents do not dispute the rights of the petitioner
to get pension, but they take the stand that the order dated
June 12, 1968 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 independent existence and that order has been passed
on the basis of the earlier order dated August 5, 1966. In
our opinion, if the order dated August 5, 1966 cannot be
sustained, it will follow that the order dated June 12, 1968
will also fall to the ground. Hence we will deal, in the
first instance, with the validity of the order dated August
5, 1966. The full text of the order dated August 5, 1966
passed by the Director of Public Instruction, Bihar, is as
follows:
“Number-7 / 07 / 60 Edn. 3791
Sri Devaki Nandan Prasad, Sub-Inspector of
Schools, Deoghhar, having not been on his
duties for more than 5 years since 1-3-60 has
ceased to be in Government employ since 2-3-65
under rule 76 of the Bihar Service Code.
(Sd.) K. Ahmed
Director of Public Instruction
Bihar.
643
Memo No. 3791 Patna, dated 5th August, 1966.
Copy forwarded to Sri Devaki Nandan Prasad, New Yarpur,
Patna for information.”
Rule 76 of the Service Code reads as follows:
“Unless the State Government, in view of the
special circumstances of the case shall
otherwise determine, A Government servant
after five years of continuous absence from
duty, elsewhere than on foreign service in
India, whether with or without leave, ceases
to be in Government employ.”
The essential requirement for taking action under the said
rule is that the government servant should have been
Continuously absent from duty for over five years. Under
this rule it is immaterial whether absence from duty by the
government servant was with or without leave so long as it
is established that he was absent from duty for a continuous
period for over five years. We are referring to this aspect
because it is the case of the petitioner that he availed
himself of leave with effect from March 11, 1960 and he left
the headquarters after obtaining the necessary sanction from
his superior officers. On the other hand, it is the case of
the respondents that the petitioner merely putting in an
application for leave from March 11, 1960 left the
headquarters without obtaining the prior permission of the
superiors. It is not necessary for us to deal with this
controversy, as under the rules absence for the period
stated therein, either with or without leave, are both
treated on the same basis.
According to the dates given in the order, the petitioner
has not been on his duties for more than five years from
March 1, 1960 and 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
644
to the averments in the counter-affidavit filed on behalf of
the respondents. So far as this aspect is concerned, it is
admitted in paragraph 8 of the counter-affidavit that the
petitioner was on duty till March 10, 1960 and that he
ceased to attend to his duty only from March 11, 1960.
Therefore, the averment of the petitioner that he was on
duty till March 10, 1960 is accepted as correct by the
respondents. Therefore, it follows that even according to
the respondents, the petitioner was absent from duty con-
tinuously for more than five years only from March 11, 1960
and he ceased to be in government employ on March 2, 1965.
Without anything more it can be easily said that this
calculation is absolutely erroneous because from the dates
mentioned above, the petitioner cannot be considered not to
have been on duty for more than five years.
There is a slight shift in the stand taken by the
respondents in the counter-affidavit. While they admit that
the date from which the period of absence should be
calculated is March 11, 1960 and not March 1, 1960, they
have stated that the petitioner. was absent from March 11,
1960 till August 5, 1966, the date on which the order was
passed and hence he was continuously not in service for more
than five years. That is even the outer period given in the
order dated August 5, 1966, namely, March 2, 1965 is changed
by the respondents to the date of passing of the order dated
August 5, 1966.
We will now proceed on the basis that the order dated August
5, 1966 should be read in such a manner that the petitioner
was not on his duty continuously for more than five years
from March 11, 1960 till August 5, 1966. If the,
respondents are able to establish this circumstance, it is
needless to state that r. 76 of the Service Code will come
into operation irrespective of the fact whether the
petitioner was absent with or without leave. According to
the petitioner, he has not been continuously absent for over
five. years even during the above period as stated by the
respondents.
It is now necessary to refer to certain proceedings
connected with the title suit No. 86 of 1961 instituted by
the petitioner in the Court of the Munsif III, Patna. In
that suit the petitioner challenged the order dated March 5,
1960 in and by which he was reverted to the lower division
of the Subordinate Educational Service and a censure was
directed to be recorded against his character 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
645
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
Munsif, Patna, was vacated by the Subordinate Judge. On
April 11, 1963 the title suit No. 86 of 1961 instituted by
the petitioner was decreed and the respondents were
prohibited from enforcing the order dated March 5, 1960
reverting the petitioner from the senior grade to the lower
grade of the Subordinate Educational Service. The
petitioner again wrote a letter on April 18, 1963 to the
Director of Public Instruction drawing the latter’s
attention to the decree passed in title suit No. 86 of 1961
and requesting him to permit the petitioner to join duty as
Deputy Inspector of Schools. There was a reply on November
27, 1963 by the Director of Public Instructions to the
effect that the plea of the petitioner has been considered
at all levels of the Directorate and the Government. The
petitioner was directed to report himself to the Regional
Deputy Director of Education, Bhagalpur Division and to join
duty in “Lower Division of Subordinate Educational Service”.
The letter proceeds to state “in case of disobedience of
order you will be charged with insubordination”. We are
constrained to remark that the attitude taken in this letter
on behalf of the State is not commendable at all.
Admittedly there was a decree passed by the Munsif in title
suit No. 86 of 1961 on April 11, 1963 restraining the
respondents from giving effect to the order dated March 5,
1960 reverting the petitioner from the post of Deputy
Inspector of Schools to the Lower Division of Subordinate
Educational Service. Admittedly the respondents were
parties to the said decree and they had not obtained any
order of an Appellate Court staying the operation of the
decree in the suit. The effect of the decree passed by the
Munsif was that the petitioner was entitled to work in the
original post which he was holding prior to his reversion.
That these aspects have been missed by the respondents is
evident from the reply of November 27, 1963 sent by the
Director of Public Instruction. The petitioner sent a
further letter dated December 6, 1963 in reply to the letter
of the Director of Public Instruction dated November 27,
1963. In this letter the petitioner again referred to the
decree of the Munsif, Patna, dated April 11, 1963 and
pointed out that he was entitled to hold the original post
which he was occupying
646
prior to the order of reversion, which has; been directed
not to be put into operation by the 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.
From the narration of the above facts, it will be clear that
from October 5, 1961, the date of temporary injunction
granted by the Munsif, till April 3, 1962, when the order of
temporary injunction was vacated by the Subordinate Judge,
the Department did not allow the petitioner to join duty in
the senior post, which he was entitled to occupy by virtue
of the order of injunction. We have already referred to the
fact that the petitioner sent letters dated October 5, 1961,
October 13, 1961, October 20, 1961 and November 1, 1961
expressing his readiness and willingness to work in the
senior post. The respondents did not permit him to join
duty. Therefore, it cannot be said that the petitioner was
absent from duty during this period. Again on April 11,
1963, the Munsif granted a decree in favour of the
petitioner in the suit. The respondents did not obtain any
stay order from the Appellate Court. So the decree of the
trial court was in full force till it was set aside on
appeal on June 24, 1964. During the period April 11, 1963,
June 24, 1964, the petitioner wrote several letters and to
which we have made a reference earlier, requesting the
respondents to permit him to join duty in the senior grade.
The respondents did not permit him to join duty in the
senior grade; but, on the other hand, insisted on the
petitioner’s joining duty in the lower grade on threat of
disciplinary action being taken. This attitude of the
respondents, we have already pointed out, was in flagrant
violation of the order of the Munsif. Therefore, during the
period April 11, 1963 to June 24, 1963, it cannot be said
that the petitioner was absent from duty. Hence it will be
647
seen that the claim made by the respondents in the counter-
affidavit that the petitioner, since March 11, 1960 till
August 5, 1966 was continuously not in service for over five
years is fallacious. There is no question of the petitioner
not being in continuous service for over five years during
the period referred to above. On the other hand, the period
during which it could be said ‘,,hat the petitioner was
absent was from March 11, 1960, the date on which he claims
to have gone on leave till October 5, 1961 when the order of
temporary injunction was passed by the Munsif. From October
5, 1961 to April 3, 1962, we have already pointed out, the
petitioner cannot be considered to have been absent from
duty. Therefore, 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
absent from duty for over five years during the period March
11, 1960 to August 5, 1966. if that is so, the essential
condition for the application of r. 76 of the Service Code
is lacking and, therefore, it follows that the order dated
August 5, 1966 is not supported by r. 76 of the Service
Code. Therefore that order is illegal and has to be quashed.
A contention has been taken by the petitioner that the order
dated August 5, 1966 is an order removing him from service
and it has been passed in violation of Art. 311 of the
Constitution. According to the respondents there is no
violation of Art. 311. On the other hand, there is an
automatic termination of the petitioner’s employment under
r. 76 of the Service Code. It may not be necessary to
investigate this aspect further because on facts we have
found that r. 76 of the Service Code has no application.
Even if it is a question of automatic termination of service
for being continuously absent for over a’ period of five
years, Art. 311 applies to such cases as is laid down by
this Court in Jai
648
Shanker v. State of Rajasthan (1). In that decision this
Court had to consider Regulation No. 13 of the Jodhpur
Service Regulations, which is as follows:
“13. An individual who absents himself
without permission or who remains absent
without permission for one month or longer
after the end of his leave should be
considered to have sacrificed his appointment
and may only be reinstated with the sanction
of the competent authority.”
It was contended on behalf of the State of Rajasthan that
the above regulation operated automatically and there was no
question of removal from service because the officer ceased
to be in the service after the period mentioned in the
regulation. This Court rejected the said contention and
held that an opportunity must be given to a person against
whom such an order was proposed to be passed, no matter how
the regulation described it. It was further held “to give
no opportunity is to go against Art. 311 and this is what
has happened here”.
In the case before us even according to the respondents a
continuous absence from duty for over five years, apart from
resulting in the forefeiture of the office also amounts to
misconduct under r. 46 of the Pension Rules disentitling the
said officer to receive pension. It is admitted by the
respondents that no opportunity was 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
(1) [1966] 1 S. C. R. 825.
649
would have been admissible to him if he had
retired on medical certificate.”
It will be seen that under the said rule a Government
servant who has been dismissed, or removed for misconduct,
insolvency or inefficiency is not eligible for pension. The
respondents ‘have admitted in their counter-affidavit that
the order dated August 5, .1966 purporting to be under r.
76 of the Service Code is an order of removal and it is
further pleaded by them that the petitioner’s absence for
over five years itself amounts to misconduct,duct and
inefficiency in service. We have already held that the
,order dated August 5, 1966, is illegal. If that is so, it
follows ,.that the petitioner has not been continuously
absent from duty for over five years and he is not guilty of
any misconduct or in-efficiency in service. Therefore, it
will further follow that withholding of pension under the-
order dated June 12, 1968 on the basis of r. 46 of the
Pension Rules, is illegal.
The respondents have not taken up the position that the offic
ers like the petitioner are not entitled to pension.
A reference to r. 5 of the Pension Rules shows that the
officers mentioned therein are entitled to pension. There
is no controversy that the petitioner is an officer in the
Education Department of the Bihar ‘Education Service. It is
item No. 3 of the Schedule to r. 5. Rule 42 declares that
every pension shall be held to have been granted Subject to
the conditions contained in Chapter VIII. It is not the
case of the respondents that Chapter VIII which applies to
re-employment of pensioners, has any relevancy to the case
on hand. We have already referred to r. 46. Under that
rule a Government servant dismissed or removed for
misconduct, insolvency or ‘inefficiency is not eligible for
pension. But that rule clearly con-templates that action by
way of dismissal or removal in respect of the three matters
mentioned therein has already taken place -according to
law. The bar under r. 46 will operate only when the
conditions mentioned therein are satisfied. In fact the
consequences envisaged under the rule flow from the action
already taken. Rule 129 provides for the payment of
superannuation pension to a Government servant entitled or
compelled by the ,rules to retire at a particular age. Rule
134 clarifies the payment of retirement pension to a
Government servant permitted to retire after completing
qualifying service for 30 years or any such less ,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
650
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 the writ petition is maintainable under Art. 32. To
this aspect, we have already adverted to earlier and we now
proceed to consider the same.
According to the petitioner the right to receive pension is
property and the respondents by an executive order dated
June 12, 1968 have wrongfully withheld his pension. That
order affects his fundamental rights under Arts. 19(1)(f)
and 31(1) of the Constitution. The respondents, as we have
already indicated, do not dispute the right of the
petitioner to get pension, but for the order passed on
August 5, 1966. There is only a bald averment in the
counter-affidavit that no question of any fundamental right
arises for consideration. Mr. Jha, learned counsel for the
respondents, was not prepared to take up the position that
the right to receive pension cannot be considered to be
property under any circumstances. According to him in this
case, no order has been passed by the State granting
pension. We understood the learned counsel to urge that if
the State had passed an order granting pension and later on
resiles from that order, the latter order may be considered
to affect the petitioner’s right regarding property so as to
attract Arts. 19(1)(f) and 31(t) of the Constitution.
We are not inclined to accept the contention of the learned
counsel for the respondents. By a reference to the material
provisions in the Pension Rules, we have already indicated
that the grant of pension does not depend upon an order
being passed by the authorities to that effect. It may be
that for the purposes of quantifying the amount having
regard to the period of service and other allied matters, it
may be necessary for the authorities to pass an order to
that effect, 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.
651
The question whether the pension granted to a public servant
is property attracting Art. 31(1) came up for consideration
before the Punjab High Court in Bhagwant Singh v. Union of
India (1). It was held that such a right constitutes
“property” and any interference will be a breach of Art. 3 1
(1) of the Constitution. It was further held that the State
cannot by an executive order curtail 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 bounty
payable on the sweet will and pleasure of the Government and
that the right to superannuation pension including its
amount is a valuable right vesting in a Government servant.
It was further held by the majority that even though an
opportunity had already been afforded to the officer on an
earlier occasion for showing cause against the imposition of
penalty for lapse or misconduct on his part and he has been
found guilty, nevertheless, when a cut is sought to be
imposed in the quantum of pension payable to an officer on
the basis of misconduct already proved against him, a
further opportunity to show cause in that regard must be
given to the officer. This view regarding the giving of
further opportunity was expressed by the learned Judges on
the basis of the relevant Punjab Civil Service Rules. But
the learned Chief Justice in his dissenting judgment was not
prepared to agree with the majority that under such
circumstances a further opportunity should be given to an
officer when a reduction in the amount of pension payable is
made by the State. It is not necessary for us in the case
on hand, to consider the question whether
(1) A. T. R. 1962 Punjab 503. (2) I. L. R. 1965 Punjab 1.
(3) I. L. R. 1967 Punjab & Haryana 278
652
before taking action by way of reducing or denying the
pension on the basis of disciplinary action already taken, a
further notice to show cause should be given to an officer.
That question does not arise for consideration before us.
Nor are we concerned with the further question regarding the
procedure, if any, to be adopted by the authorities before
reducing or withholding the pension for the first time after
the retirement of an officer. Hence we express no opinion
regarding the views expressed by the majority and the
minority Judges in the above Punjab High Court decision, on
this aspect. But we agree with the view of the majority
when it has approved its earlier decision that pension is
not a bounty payable on the sweet will and pleasure of the
Government and that, on the other hand, the right to pension
is a valuable right vesting in a government servant.
This Court in State of Madhya Pradesh v. Ranojirao Shinde
and another (1) had to consider the question whether a “cash
grant” is “property” within the meaning of that expression
in Arts. 19(1)(f) and 31(1) of the Constitution. This Court
held that it was property, observing “it is obvious that a
tight to sum of money is property”.
Having due regard to the 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
order dated September 2, 1953 was not the subject of
adjudication in the litigation leading up to the decision of
the High Court, in the second appeal, is correct,
nevertheless, no relief can be granted as the order has been
passed as early as 1953. Further, the representations made
(1) [1968] 3 S. C. R. 489.
653
by him for cancellation of the said order have been rejected
long ago. Further, there is no infringement of any
fundamental right of the petitioner by that order. The
order dated August 5, 1966 declaring under r. 76 of the
Service Code that the petitioner has ceased to be in
government employ is set aside and quashed. The order dated
June 12, 1968 stating that under r. 46 of the Pension Rules,
the Department is unable to grant the petitioner pension is
also set aside and quashed. As the petitioner himself
claims that he has been retired from service on
superannuation, a writ of mandamus will be issued to the
respondents directing them to consider the claim of the
petitioner for payment of pension according to law. The
writ petition is allowed to the extent indicated above. The
petitioner is entitled to his costs from the first
respondent, the State of Bihar.
V.P.S. Petition allowed.
654