{"id":1415,"date":"1971-05-04T00:00:00","date_gmt":"1971-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deokinandan-prasad-vs-state-of-bihar-ors-on-4-may-1971"},"modified":"2017-01-12T03:10:36","modified_gmt":"2017-01-11T21:40:36","slug":"deokinandan-prasad-vs-state-of-bihar-ors-on-4-may-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deokinandan-prasad-vs-state-of-bihar-ors-on-4-may-1971","title":{"rendered":"Deokinandan Prasad vs State Of Bihar & Ors on 4 May, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Deokinandan Prasad vs State Of Bihar & Ors on 4 May, 1971<\/div>\n
Equivalent citations: 1971 AIR 1409, \t\t 1971 SCR 634<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Sikri, S.M. (Cj), Mitter, G.K., Vaidyialingam, C.A., Reddy, P. Jaganmohan, Dua, I.D.<\/div>\n
           PETITIONER:\nDEOKINANDAN PRASAD\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR & ORS.\n\nDATE OF JUDGMENT04\/05\/1971\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nSIKRI, S.M. (CJ)\nMITTER, G.K.\nREDDY, P. JAGANMOHAN\nDUA, I.D.\n\nCITATION:\n 1971 AIR 1409\t\t  1971 SCR  634\n 1971 SCC  (2) 330\n CITATOR INFO :\n R\t    1973 SC 834\t (10)\n F\t    1976 SC  37\t (22)\n F\t    1976 SC 667\t (3)\n R\t    1978 SC 803\t (30)\n F\t    1983 SC 130\t (20)\n RF\t    1983 SC1134\t (2)\n R\t    1984 SC1064\t (10)\n RF\t    1984 SC1560\t (3)\n R\t    1984 SC1855\t (8)\n F\t    1984 SC1905\t (2,2,3,5,6)\n F\t    1985 SC1196\t (7)\n F\t    1987 SC 943\t (8)\n F\t    1989 SC2088\t (7)\n\n\nACT:\nConstitution  of India, 1950, Art. 32-Right to\tpension,  if\nproperty-Petition to enforce-Maintainability.\nBihar  Service\tCode, r.  76-Automatic\ttermination  without\nopportunity to show cause-If violates Art. 311.\nBihar Pension Rules, r. 46-Scope of.\n\n\n\nHEADNOTE:\nThe  petitioner\t was  a Deputy Inspector of  Schools  and  a\nmember of the Education department of the  respondent-State.\nOn  September  2, 1953, the Director of\t Public\t Instruction\npassed\tan order directing a censure to be recorded  in\t the\ncharacter roll of the petitioner.  On March 5, 1960, he\t was\nreverted   to\tthe  Lower  Division  of   the\t Subordinate\nEducational Service, as a result of an inquiry into  certain\ncharges.   He filed a suit challenging the two\torders.\t  On\nAugust 5, 1961, the Munsiff passed an order restraining\t the\nrespondent from enforcing the order dated March 5, 1960.  On\nApril  3, 1962, the temporary injunction was vacated by\t the\nSubordinate Judge.  On April 11, 1963, the suit was  decreed\nand  the respondent was prohibited from enforcing the  order\ndated March 5, 1960.  This decree was set aside in appeal by\nthe Subordinate Judge on June 24, 1964, and the petitioner's\nsecond\tappeal was dismissed by the High Court\ton  February\n11,  1965.   On\t August\t 5, 1966,  the\tDirector  of  Public\nInstruction passed an order that the petitioner 'having\t not\nbeen  on his duties for more than five years since March  1,\n1960  has ceased to be in Government employ since  March  2,\n1965 under r. 76 of the Bihar Service Code.' The  petitioner\nhaving\tcompleted 58 years of age addressed a letter to\t the\nDirector  of Public Instruction on July 18, 1967  requesting\nhim to arrange for the payment of her. pension, and on\tJune\n12,  1968 the Director of Public Instruction  passed  orders\nstating\t that under r. 46 of the Bihar Pension Rules he\t was\nnot  entitled  to  any pension.\t The  petitioner  filed\t the\npresent writ petition under Art. 32 challenging the  various\norders.\nHELD:\t  (1)  No relief could be granted in respect of\t the\norders\tdated September 2, 1953 and March 5, 1960,  as,\t (a)\nthey were already covered by the decision of the High  Court\nin  second  appeal.  (b) no relief  could  be  granted\twith\nrespect\t to  an order passed as early as 1953; and  (c)\t the\norders\tdid  not  infringe any\tfundamental  rights  of\t the\npetitioner. [652G-H 653A-B]\n(2)  The order dated August 5, 1966, declaring, under r.  76\nof the Service Code that the petitioner had ceased to be  in\nGovernment service should be set aside. [653-A-B]\n(a)  The  essential requirement for taking action under\t the\nsaid  rule is that the government servant should  have\tbeen\ncontinuously  absent from duty for over five  years.   Under\nthis rule it is immaterial whether absence from duty by\t the\ngovernment  servant was with or without leave so long as  it\nis established that he was absent from duty for a continuous\nperiod\tfor over five years.  Admittedly the petitioner,  in\nthe  present  case, was on duty till March 10, 1960  and  he\nceased to attend to his duty only from March\n\t\t\t    635\n11,  1960.  Therefore, the order stating that he 'ceased  to\nbe in government employ on March 2, 1965, was on the face of\nit erroneous.' [643C-D, E; 644A-C]\n(b)  Assuming  that  the  order\t should\t be  read  that\t the\npetitioner  was not on his duty continuously for  more\tthan\nfive years from March 11, 1960 till August 5, 1966 the\tdate\nof  the order even then, the order would be  illegal.\tFrom\nAugust 5, 1961, the date of temporary injunction granted  by\nthe Munsiff till April 3, 1962, when that order was  vacated\nby  the Subordinate Judge, the Department did not allow\t the\npetitioner  to\tjoin  duty in the senior post  in  spite  of\nseveral\t letters  written by him.  Again on April  11,\t1963\nwhen  the  Munsiff  granted  a\tdecree\tin  favour  of\t the\npetitioner,  the  respondent did not obtain any\t stay  order\nfrom  the appellate court, and so, the decree of  the  trial\ncourt  was in full force till it was set aside in appeal  on\nJune 24, 1964.\tDuring that period, that is, from April\t 11,\n1963  to June 24, 1964 the petitioner wrote several  letters\nrequesting the respondent to permit him to join duty in\t the\nsenior\tgrade, but the respondent did not permit him  to  do\nso.   Therefore,  there was no question\t of  the  petitioner\nbeing  continuously  absent from service for  over  5  years\nduring\tthe period referred to when he was willing  but\t the\nrespondent  did not allow him to serve, and hence, r. 76  of\nthe  Service  Code was not  applicable.\t [644E-F;  645A-D,G;\n646D-H; 647A-B,E-F]\n(c)  Even if the r. 76 was applicable and it was a  question\nof  automatic  termination of service, Art. 311\t applies  to\nsuch cases also.  According to the respondents a  continuous\nabsence\t from duty for over five years apart from  resulting\nin  the forfeiture of the office also amounts to  misconduct\nunder r. 46 of the Pension Rules disentitling the office  to\nreceive pension.  The respondent did not give an opportunity\nto the petitioner to show cause against the order  proposed.\nHence there was violation of Art. 311. [647GH ; 648D-E]\nJai  Shankar  v. State of Rajasthan, [1966]  1\tS.C.R.\t825,\nfollowed.\n(3)  The order dated June 12, 1968 stating that under r.  46\nof the Pension Rules the petitioner was not entitled to\t any\npension should also be set aside. [649C]\nPayment of pension under the rules does not depend upon\t the\ndiscretion  of the State Government but is governed  by\t the\nrules and a government servant, coming within those rules is\nentitled to claim pension.  Under r. 46 a Government servant\ndismissed   or\t removed  for  misconduct,   insolvency\t  or\ninefficiency  is not eligible for pension.  In\tthe  present\ncase it was contended that the petitioner's absence for over\nfive  years,  amounted\tto misconduct  and  inefficiency  in\nservice.   But when the order dated August 5, 1966 has\tbeen\nheld to be illegal then the order dated June 12, 1968  based\nupon it also falls to the ground. [649B-C;D-H;65OA-B]\n(4)  The  grant of pension does not depend upon\t any  order.\nIt is only for the purpose of quantifying the amount  having\nregard\tto the service and other allied matters that it\t may\nbe  necessary for the authorities to pass an order  to\tthat\neffect, but the right to receive pension flows to an officer\nnot  because of any such order but by virtue of\t the  rules.\nThe  right of the petitioner to receive pension is  property\nunder Art. 31(1) and by a mere executive order the State had\nno power to withhold it.  Similarly, the said claim is\talso\nproperty under Art. 19(1) (f).\tIt, therefore follows,\tthat\nthe  order  dated June 12, 1968 denying the  petitioner\t the\nright to receive pension affected his fundamental right\t and\nas such the writ petition was maintainable. [650G-H; 652B-C,\nD-F]\nK.   R.\t Erry  v. State of Punjab, I.L.R.  [1967]  Punjab  &\nHaryana 279, (F.B) approved.\n636\n(5)  The  bar against the Civil Court entertaining any\tsuit\nrelating to the matters under the Pension Act does not stand\nin  the way of a writ of mandamus being issued to the  State\nto properly consider the claim of the petitioner for payment\nof pension according to law.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Writ Petition No. 217 of 1968.
\nPetition under Art. 32 of the Constitution of India for\t the
\nenforcement of fundamental rights.\n<\/p>\n
Bishan Narain, B. B. Sinha, S. N. Misra, S. S. Jauhar and K.   K.
\nSinha, for the petitioner.\n<\/p>\n
B. P. Jha, for the respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nVaidialingam, J.-In this writ petition under Art. 32 of\t the
\nConstitution,  the petitioner prays for the issue of a\twrit
\nto the respondents in the nature of Certiorari or any  other
\nappropriate  writ, direction or order quashing\tfour  orders
\ndated  September 2, 1953, March 5, 1960, August 5, 1966\t and
\nJune 12, 1968.\tHe further prays for issue of a writ in\t the
\nnature\tof a Writ of Mandamus directing the  respondents  to
\ntreat him as having retired at the age of 58 and to pay\t him
\nthe pension that he is entitled to.\n<\/p>\n
Though four orders are cought to be quashed, as we will show
\nin due course, the grievance of the petitioner regarding the
\norders\tdated  September 2, 1953 and March. 5, 1960  can  no
\nlonger\tbe considered by this Court in this  writ  petition.
\nIn  consequence only the last two orders,  mentioned  above,
\nsurvive for consideration.\n<\/p>\n
We will refer briefly to the circumstances leading up to the
\npassing\t of  the  orders, referred to  above,  in  order  to
\nappreciate the circumstances under which the last two orders
\nin  particular\tcame  to be made as well as  the  ground  of
\nattack levelled against these orders.\n<\/p>\n
The  petitioner\t joined service as an Assistant\t Teacher  on
\nSeptember  1,  1928 in the Patna Practising School  and\t was
\npromoted as Sub-Inspector of Schools, Lower Division, in the
\nSubordinate  Educational  Service from May  31,\t 1934.\t The
\npetitioner  later  on was promoted as  Deputy  Inspector  of
\nSchools\t in  Upper Division of the  Subordinate\t Educational
\nService\t and  was  posted at  Seraikella  in  the  Singhbhum
\nDistrict  in the Chhotanagpur Division, Bihar from  November
\n1,  1949.   The\t State of Seriakella having  merged  in\t the
\nerstwhile province of Bihar, the provincial
\n\t\t\t    637<\/span>
\nGovernment  took  over and assumed control directly  of\t the
\neducation  in  the  locality through its  employees  of\t the
\nEducation  Department  unlike other parts of,  the  province
\nwhere the education was under the control and management  of
\nthe District and Local Boards.\tThe service rendered by\t the
\npetitioner  as Deputy Inspector of Schools,  Seraikella\t was
\nfound  satisfactory by the superior officers  including\t the
\nDirector of Public Instruction and hence he was\t recommended
\nto  be appointed to a superior post of Education Officer  in
\nthe  Community\tProject.  By about the end of 1951,  he\t was
\ntransferred  to\t Purulia  in  the  district  of\t Manbhum  as
\nAdditional Deputy Inspector of Schools.\t The petitioner\t was
\nlater  on transferred to Bettiah in or about May, 1953.\t  At
\nBettiah\t the petitioner received a copy of the\torder  dated
\nSeptember  2, 1953 from the Director of\t Public\t Instruction
\ndirecting a censure to be recorded in the character roll of
\nthe petitioner based on the report of one Shri Kanhaya\tLal,
\nDistrict  Inspector  of\t Schools,  who,\t according  to\t the
\npetitioner,  was  inimically  disposed\ttowards\t him.\t The
\nattempt of the petitioner to have the order dated  September
\n2,  1953 cancelled proved unsuccessful.\t This is  the  first
\norder that is sought to be quashed by the petitioner.
\nThe  petitioner\t on  the basis of  certain  allegations\t was
\nplaced\tunder  suspension on February 6, 1954  and  relieved
\nfrom  his  duty\t as Deputy Inspector  of  Schools,  Bettiah.
\nThere  was a charge sheet issued to the petitioner on  March
\n16,  1954  and\the  was found  guilty.\t But  these  inquiry
\nproceedings were later on set aside and a fresh inquiry\t was
\nordered.   In  consequence  the\t order\tof  suspension\t was
\ncancelled,  but immediately thereafter a fresh\tinquiry\t was
\nconducted  in  which he was again found guilty\tas  per\t the
\nreport of the Inquiry Officer dated September 22, 1959.\t The
\nDisciplinary  Authority,  who  was the\tDirector  of  Public
\nInstruction. passed an order on March 5, 1960 accepting\t the
\nfinding\t  of  the  Inquiry  Officer  recorded  against\t the
\npetitioner and held that the charges had been proved against
\nhim.\tAccordingly,  by  this\torder  the  petitioner\t was
\nreverted,  as punishment, to Lower Division  of\t Subordinate
\nEducational Service and also directing a censure entry to be
\nrecorded in Us personal character roll.\t This is the  second
\norder that is challenged in this writ petition.
\nIt  is not necessary for us to deal in any detail about\t the
\nfirst  and  the second order as both those  orders  are\t now
\nconcluded against the petitioner by the decision of the High
\nCourt.\n<\/p>\n
The petitioner filed title suit No. 86 of 1961 in the  Court
\nof the Munsif, III, Patna, for a declaration challenging the
\norder dated March 5, 1960 as well as the inquiry proceedings
\non  the basis of which the said order was passed.   He\talso
\nchallenged the order of censure passed on September 2,\t1953
\nand  further  incorporated in the order of  March  5,  1960.
\nThough the suit was
\n638<\/span>
\ncontested  by the respondents, it was ultimately decreed  on
\nApril  11,  1963.  The respondents filed  title\t appeal\t No.
\n132\/24\tof 1963-64 before the Subordinate Judge,  11  Court,
\nPatna,\tchallenging the decree of the Munsif.  On  June\t 24,
\n1964  the  appeal  was allowed, with  the  result  that\t the
\npetitioner’s title suit No. 86 of 1961 stood dismissed.\t The
\npetitioner’s Second Appeal No. 640 of 1964 was dismissed  by
\nthe High Court on May 4, 1967.\tFrom these proceedings it is
\nclear  that the order of censure dated September 2, 1953  as
\nwell  as  of reversion dated March 5, 1960  have  both\tbeen
\nfound  to be correct by the High Court and it is  no  longer
\nopen  to the petitioner to canvass those orders again.\t But
\nit  may be necessary for us to refer to certain\t proceedings
\nconnected  with the title suit when we deal with the  attack
\nof  the petitioner against the legality of the orders  dated
\nAugust\t5,  1966  and  June 12, 1968.\tWhen  the  order  of
\nreversion dated March 5, 1960 was passed, the petitioner was
\nworking as Deputy Inspector of Schools, Deoghar.  The office
\nof  the\t Deputy\t Inspector of Schools was  closed  for\tHoli
\nholidays from March 11, 1960 and the petitioner claims\tthat
\nhe left the headquarters to go to Patna with the  permission
\nof  the\t authorities.\tThe order dated March  5,  1960\t was
\nreceived by him at Patna on March 23, 1960 when he was\till.
\nHe  applied  for  leave.  According to\tthe  petitioner,  he
\nobtained an order of temporary injunction on October 5, 1961
\nin his title suit No. 86 of 1961 restraining the respondents
\nfrom  giving  effect  to  the  order  dated  March  5,\t1960
\nreverting  him\tto  the Lower Division\tin  the\t Subordinate
\nEducational service.  Though he offered to join the post  to
\nwhich he was entitled originally, he was not allowed by\t the
\nrespondents  to join the Upper Division of  the\t Subordinate
\nEducational  Service.\tThe  action  of\t the  respondent  in
\nrefusing  to  permit  him  to  join  duty  was\tin  flagrant
\nviolation  of the order of temporary injunction\t granted  by
\nthe Munsif, Patna.\n<\/p>\n
On August 5, 1966 the Director of Public Instruction  passed
\nan order that the petitioner “having not been on his  duties
\nfor more than five years since March 1, 1960, has ceased  to
\nbe  in Government employ since March 2, 1965 under r. 76  of
\nthe    Bihar   Service\t Code”.\t   The\t  petitioner\tmade
\nrepresentations\t for cancellation of this order but  without
\nany  success.\tThis  is  the  third  order  that  is  being
\nchallenged.\n<\/p>\n
The petitioner having completed 58 years of age, addressed a
\nletter\tto  the Director of Public Instruction on  July\t 18,
\n1967  requesting  him  to arrange for  the  payment  of\t the
\npetitioner’s   pension.\t  No  reply  was  received  by\t the
\npetitioner  for a long time inspite of\trepeated  reminders.
\nUltimately   on\t June  12,  1968  the  Director\t of   Public
\ninstruction  passed orders on the petitioner’s\t,application
\ndated July 18, 1967 regarding payment of pension.\n<\/p>\n
639<\/span><\/p>\n
In  this  order it is stated that under r. 46 of  the  Bihar
\nPension\t Rules\t(hereinafter to be referred as\tthe  Pension
\nRules), the Department is unable to grant any pension to the
\npetitioner.   We will refer to this rule at the\t appropriate
\nstage but it is enough to take note of the fact that  under
\nthe  said  rule, no pension may be granted to  a  government
\nservant\t dismissed or removed for misconduct, insolvency  or
\ninefficiency.\tAccording  to the petitioner this  order  is
\nillegal\t and void.  This is the fourth order that  is  under
\nchallenge.\n<\/p>\n
According  to the petitioner the order dated August 5,\t1966
\nis an order removing him from service and it is illegal\t and
\nvoid  as it has been passed in contravention of Art. 311  of
\nthe  Constitution.  Further the order is also not legal\t and
\nnot  warranted\tby  the\t Rules\tfor  the  reason  that\t the
\npetitioner had not been absent from duty for over five years
\ncontinuously.\tAccording  to  the  petitioner\tthere  is  a
\nfurther\t infirmity  in\tthe order  as  the  respondents\t are
\ninconsistent  in their pleas regarding the date\t from  which
\nthe period of continuous absence has to be calculated.\tThis
\nplea  is based upon the different dates given in  the  order
\ndated  August  5, 1966 and the dates given in  the  counter-
\naffidavit filed on behalf of the respondents.  The attack on
\nthe order dated June 12, 1968 is two fold, namely, (a)\tthat
\nit  is\tnot warranted by r. 46 of the  Pension\tRules  under
\nwhich it is purported to be passed; and (b) the petitioner’s
\nright to get pension is property and by the respondents\t not
\nmaking\t it  available\tto  him,  his\tfundamental   rights
\nguaranteed   under   Arts.  19(1)(f)  and   31(1)   of\t the
\nConstitution, have been affected.\n<\/p>\n
The  Assistant\tDirector of Education has  filed  a  counter
\naffidavit  on behalf of the respondents.  According  to\t the
\nrespondent the orders of censure passed on September 2, 1953
\nand of reversion dated March 5, 1960 are valid and legal and
\nin  passing those orders no violation of any rules has\tbeen
\nmade.\t The  petitioner  was  given  full  opportunity\t  to
\nparticipate  to\t the inquiry proceedings and  it  was  after
\nconsidering the report as well as the explanation  furnished
\nby  the petitioner that the order of reversion\twas  passed.
\nThe  petitioner\t is not entitled to challenge any  of  those
\norders\tas they are concluded by the decision of  the  Patna
\nHigh  Court dated March 4, 1967 in Second Appeal No. 640  of
\n1964.\n<\/p>\n
Regarding the order dated August 5, 1966, it is admitted  by
\nthe  respondents that the petitioner was on duty till  March
\n10,  1960.  He ceased to attend office only from  March\t 11,
\n1960.\tIt  is further admitted that it has been  stated  by
\nmistake\t in  the order that the petitioner has not  been  on
\nduty for more than five years since March 1, 1960.  The date
\n“March 1, 1960 should be read
\n\t\t\t    640<\/span>
\nas  “March 11, 1960”.  The respondents dispute the  averment
\nof  the\t petitioner  that  he  left  the  headquarters\tfrom
\nMarch .11, 1960 with the permission of the authorities.\t  On
\nthe other hand, according to them, the petitioner had put in
\nan   application  in  the  office  of\tthe   Sub-Divisional
\nEducational Officer for leave on March 11, 1960 and that  he
\ndid  not  obtain  any  prior  permission  for  leaving\t the
\nheadquarters.\tIt is further averred that the\torder  dated
\nMarch  5,  1960 reverting the petitioner came  into-  effect
\nimmediately  and  the petitioner was also  informed  of\t the
\nsame.\tIt  is\tspecifically pleaded by\t the  respondent  as
\nfollows:\n<\/p>\n
\t      “In other words since 11-3-1960 till  5-8-1968
\n\t      he  was continuously not in service  for\tmore
\n\t      than  5 years.  By virtue of rule 76 of  Bihar
\n\t      Service Code of 1952 the petitioner ceased  to
\n\t      be  in  the service of the  Government  as  he
\n\t      remained\tabsent from duty continuously for  5
\n\t      years  and this itself amounts  to  misconduct
\n\t      and  inefficiency\t in  the  service.   In\t the
\n\t      present case the provisions of article 311  do
\n\t      not  apply to the- facts of this case  because
\n\t      his services are not terminated on account  of
\n\t      any charge but are automatically terminated by
\n\t      virtue  of  the statute i.e. rule\t 76  of\t the
\n\t      Bihar Service Code 1952.\tArticle 311  applies
\n\t      where the services of a government servant are
\n\t      terminated  in respect of any charge.  But  it
\n\t      does  not\t apply where  a\t government  servant
\n\t      ceases to be a government servant by virtue of
\n\t      any statute.”\n<\/p><\/blockquote>\n
According  to  the  respondent\tthere  has  been  no  breach
\ncommitted  of  Art. 311 of the Constitution when  the  order
\ndated August 5, 1966 was passed on the basis of r. 76 of the
\nBihar Service Code, 1952 (hereinafter to be referred as\t the
\nService\t Code).\t It is to be noted at this stage that  there
\nis a variation regarding the dates of continuous absence for
\nover  five years mentioned in the order and in the  counter-
\naffidavit.  They will be dealt with by us when the attack of
\nthe  petitioner\t on the order dated August 5, 1966  is\tcon-
\nsidered.   It  is further admitted by the  respondents\tthat
\neven  after the injunction order was passed by\tthe  Munsif,
\nthe  Department\t was always insisting on the  petitioner  to
\njoin  in the lower grade to which post he had been  reverted
\nand that the petitioner never joined that post.
\nDealing\t with the order dated June 12, 1968 in and by  which
\nthe  petitioner was informed that the Department was  unable
\nunder  r. 46 of the Pension Rules to grant him pension,\t the
\nrespondents state that the order is valid and fails squarely
\nunder the said rule.  According to the respondents the order
\ndated  August  5, 1966 is an order removing  the  petitioner
\nfrom  service  for not attending to his duty for  more\tthan
\nfive  years  and  that\tby  itself  amounts  to\t misconduct.
\nTherefore, the petitioner was not entitled to claim
\n\t\t\t    641<\/span>
\nany  pension.  There is also an averment to the effect\tthat
\nthere  is  no  question\t of any\t fundamental  right  of\t the
\npetitioner  being  affected by the orders under\t attack\t and
\nhence the writ petition is not maintainable.
\nThe petitioner has filed a rejoinder wherein he has  pointed
\nout  the inconsistent dates given in the order dated  August
\n5, 1966 and in the counter-affidavit filed on behalf of\t the
\nrespondents   by  the  Assistant  Director   of\t  Education.
\nAccording to the petitioner in whatever manner the period is
\ncalculated either as per the dates given in the order or  by
\nthe  dates given in the counter-affidavit, rule 76 does\t not
\napply  as he has not been continuously absent from duty\t for
\nover  five years.  The petitioner further avers that he\t was
\nabsent\tfrom duty after taking the permission of the  autho-
\nrities.\t  According  to\t the  petitioner  he  has  not\tbeen
\ncontinuously  absent  from duty for over five years  if\t the
\nperiod\tis  properly  calculated according  to\tthe  various
\norders\tpassed\tby the Munsif.\tPatna, in  his\ttitle  suit.
\nAccording to the petitioner, when a court has restrained the
\nrespondents from giving effect to the order of reversion and
\nwhen  he offered to join duty in the post from which he\t was
\nreverted,  the respondents without any regard for the  court
\norders, did; not permit him to join duty, but, on the  other
\nhand, insisted that he should join duty in the lower rank to
\nwhich  he  had\tbeen  reverted.\t  This,\t according  to\t the
\npetitioner,  is illegal.  The petitioner further  reiterates
\nhis  allegation\t that he was entitled to  pension  and\tthat
\nwithholding  of\t the same affects  his\tfundamental  rights.
\nAccording to the petitioner the respondents do not deny\t his
\nright  to get pension but, on the other hand, plead that  as
\nhe  has been removed from service by the order dated  August
\n5, 1966, he is not entitled to pension by virtue of r. 46 of
\nthe Pension Rules.  He further points out that as the  order
\ndated  August 5, 1966 is illegal, the order dated  June\t 12,
\n1966,  which is based upon the earlier order, is  also\tnull
\nand void.\n<\/p>\n
The  questions that arise for consideration are whether\t the
\norders dated August 5, 1966 and June 12, 1968 are legal\t and
\nvalid.\t Before we consider that aspect, it is necessary  to
\nstate that in order to sustain this petition under Art.\t 32,
\nthe petitioner will have to establish that either the  order
\ndated  August  5,  1966 or June 12, 1968, or  both  of\tthem
\naffect his fundamental rights guaranteed to him.  The  order
\nof  August  5,\t1966, according to the\tpetitioner,  is\t one
\nremoving  him from service and it has been passed in  viola-
\ntion  of Art. 311. That the said order is one  removing\t the
\npetitioner from service is also admitted by the\t respondents
\nin  paragraph  11 of the counter-affidavit  filed  on  their
\nbehalf\tby  the Assistant Director of  Education.   Assuming
\nthat  the  said order has been passed in violation  of\tArt.
\n311,  the  said circumstance will not give a  right  to\t the
\npetitioner to approach this Court under Art. 32.  The  stand
\ntaken by the petitioner is that his right to get
\n41-1 S.C. India\/71
\n642<\/span>
\npension is property and it does not cease to be property  on
\nthe  mere  denial or cancellation by the  respondents.\t The
\norder dated June 12, 1968 is one withholding the payment  of
\npension\t or  at\t any  rate  amounts  to\t a  denial  by\t the
\nrespondents  to his right to get pension.  Either  way,\t his
\nrights\tto  property are affected under Arts.  19(1)(f)\t and
\n31(1)  of the Constitution.  His right to pension cannot  be
\ntaken away by an executive order.  In the counter affidavit,
\nthe respondents do not dispute the rights of the  petitioner
\nto get pension, but they take the stand that the order dated
\nJune  12, 1968 is justified by r. 46 of the  Pension  Rules.
\nThis aspect will be dealt with by us later.  There is only a
\nbald  averment\tin the counter-affidavit that  there  is  no
\nquestion  of  any  fundamental\tright  and  therefore\tthis
\npetition is not maintainable.  As to on what basis this plea
\nis  taken,  has not been further clarified in  the  counter-
\naffidavit.  But before us Mr. B. P. Jha, learned counsel for
\nthe  respondents, urged that by withholding the\t payment  of
\npension\t by  the State, no fundamental rights of  the  peti-
\ntioner have been affected.\n<\/p>\n
We are not inclined to accept the contention of Mr. Jha that
\nno  fundamental\t rights of the petitioner  are\taffected  by
\npassing\t the order dated June 12, 1968.\t ‘We will  refer  to
\nthe  relevant Pension Rules bearing on the matter  and\talso
\ncertain decisions.  In our opinion, the right to get pension
\nis “property” and by withholding the same, the\tpetitioner’s
\nfundamental rights guaranteed under Arts. 19(1)(f) and 31(1)
\nare  affected.\tAs the matter is being discussed more  fully
\nin the latter part of the judgment, it is enough to state at
\nthis  stage  that the writ petition is\tmaintainable.\tEven
\naccording  to the respondents the order dated June 12,\t1968
\nhas no independent existence and that order has been  passed
\non the basis of the earlier order dated August 5, 1966.\t  In
\nour  opinion,  if the order dated August 5, 1966  cannot  be
\nsustained, it will follow that the order dated June 12, 1968
\nwill  also fall to the ground.\tHence we will deal,  in\t the
\nfirst instance, with the validity of the order dated  August
\n5,  1966.  The full text of the order dated August  5,\t1966
\npassed\tby the Director of Public Instruction, Bihar, is  as
\nfollows:\n<\/p>\n
“Number-7 \/ 07 \/ 60 Edn. 3791
\n\t      Sri  Devaki  Nandan Prasad,  Sub-Inspector  of
\n\t      Schools,\tDeoghhar,  having not  been  on\t his
\n\t      duties for more than 5 years since 1-3-60\t has
\n\t      ceased to be in Government employ since 2-3-65
\n\t      under rule 76 of the Bihar Service Code.\n<\/p>\n
\t\t\t\t  (Sd.) K. Ahmed
\n\t\t\t      Director of Public Instruction
\n\t\t\t\t\t  Bihar.\n<\/p>\n
643<\/span><\/p>\n
Memo No. 3791 Patna, dated 5th August, 1966.
\nCopy  forwarded\t to Sri Devaki Nandan  Prasad,\tNew  Yarpur,
\nPatna for information.”\n<\/p>\n
\t      Rule 76 of the Service Code reads as follows:
\n\t      “Unless  the State Government, in view of\t the
\n\t      special\tcircumstances  of  the\tcase   shall
\n\t      otherwise\t determine,  A\tGovernment   servant
\n\t      after  five years of continuous  absence\tfrom
\n\t      duty,  elsewhere\tthan on foreign\t service  in
\n\t      India,  whether with or without leave,  ceases
\n\t      to be in Government employ.”\n<\/p><\/blockquote>\n
The  essential requirement for taking action under the\tsaid
\nrule  is  that\tthe  government\t servant  should  have\tbeen
\nContinuously  absent from duty for over five  years.   Under
\nthis rule it is immaterial whether absence from duty by\t the
\ngovernment  servant was with or without leave so long as  it
\nis established that he was absent from duty for a continuous
\nperiod for over five years.  We are referring to this aspect
\nbecause\t it  is the case of the petitioner that\t he  availed
\nhimself of leave with effect from March 11, 1960 and he left
\nthe headquarters after obtaining the necessary sanction from
\nhis superior officers.\tOn the other hand, it is the case of
\nthe  respondents  that the petitioner merely putting  in  an
\napplication   for  leave  from\tMarch  11,  1960  left\t the
\nheadquarters  without obtaining the prior permission of\t the
\nsuperiors.   It\t is not necessary for us to deal  with\tthis
\ncontroversy,  as  under\t the rules absence  for\t the  period
\nstated\ttherein,  either  with or without  leave,  are\tboth
\ntreated on the same basis.\n<\/p>\n
According  to the dates given in the order,  the  petitioner
\nhas  not  been on his duties for more than five\t years\tfrom
\nMarch 1, 1960 and that he ceased to be in government  employ
\nfrom March 2, 1965.  According to the petitioner this  order
\nis  illegal  because he was on duty till March 10,  1960  in
\nwhich  case  continuous absence of five years would  not  be
\ncompleted  on  March 2, 1965.  But the more  serious  attack
\nagainst\t this  order  is that there is no  question  of\t the
\npetitioner  not\t being on his duties continuously  for\tmore
\nthan  five years.  On the other hand, according to  him,  he
\nhas  always  been ready and willing to do his duty  and\t the
\nrespondents  have illegally prevented him from joining\tduty
\nby ignoring orders of the civil court.\tIn this\t connection,
\non  behalf  of the petitioner, Mr.  Bishan  Narain,  learned
\ncounsel,  has  referred\t us to\tthe  details  regarding\t the
\ninstitution  of\t the  title  suit No.  86  of  1961  by\t the
\npetitioner  as\twell  as to certain orders  passed  by\tthat
\ncourt.\t He  has  also drawn our attention  to\tthe  letters
\nwritten\t by  the petitioner to the authorities\toffering  to
\nwork   and  the\t respondents  not  sending  any\t reply\t and
\nultimately  asking  the\t petitioner  to\t join  duty  in\t the
\nreverted  post,\t though\t the order  of\treversion  has\tbeen
\ndeclared,  illegal  by the Munsif, Patna.  We  have  already
\nreferred
\n644<\/span>
\nto the averments in the counter-affidavit filed on behalf of
\nthe respondents.  So far as this aspect is concerned, it  is
\nadmitted  in paragraph 8 of the counter-affidavit  that\t the
\npetitioner  was\t on  duty till March 10, 1960  and  that  he
\nceased\tto  attend  to his duty only from  March  11,  1960.
\nTherefore,  the\t averment of the petitioner that he  was  on
\nduty  till  March  10, 1960 is accepted as  correct  by\t the
\nrespondents.   Therefore, it follows that even according  to
\nthe  respondents, the petitioner was absent from  duty\tcon-
\ntinuously for more than five years only from March 11,\t1960
\nand  he ceased to be in government employ on March 2,  1965.
\nWithout\t anything  more\t it can be  easily  said  that\tthis
\ncalculation  is absolutely erroneous because from the  dates
\nmentioned above, the petitioner cannot be considered not  to
\nhave been on duty for more than five years.\n<\/p>\n
There  is  a  slight  shift  in\t the  stand  taken  by\t the
\nrespondents in the counter-affidavit.  While they admit that
\nthe  date  from\t which\tthe  period  of\t absence  should  be
\ncalculated  is\tMarch 11, 1960 and not March 1,\t 1960,\tthey
\nhave  stated that the petitioner. was absent from March\t 11,
\n1960  till August 5, 1966, the date on which the  order\t was
\npassed and hence he was continuously not in service for more
\nthan five years.  That is even the outer period given in the
\norder dated August 5, 1966, namely, March 2, 1965 is changed
\nby the respondents to the date of passing of the order dated
\nAugust 5, 1966.\n<\/p>\n
We will now proceed on the basis that the order dated August
\n5, 1966 should be read in such a manner that the  petitioner
\nwas  not on his duty continuously for more than\t five  years
\nfrom   March  11,  1960\t till  August  5,  1966.   If\tthe,
\nrespondents  are able to establish this circumstance, it  is
\nneedless  to state that r. 76 of the Service Code will\tcome
\ninto   operation  irrespective\tof  the\t fact  whether\t the
\npetitioner  was absent with or without leave.  According  to
\nthe petitioner, he has not been continuously absent for over
\nfive.  years even during the above period as stated  by\t the
\nrespondents.\n<\/p>\n
It  is\tnow  necessary\tto  refer  to  certain\t proceedings
\nconnected  with the title suit No. 86 of 1961 instituted  by
\nthe  petitioner in the Court of the Munsif III,\t Patna.\t  In
\nthat suit the petitioner challenged the order dated March 5,
\n1960  in and by which he was reverted to the lower  division
\nof  the\t Subordinate Educational Service and a\tcensure\t was
\ndirected   to  be  recorded  against  his  character   roll.
\nAccording  to  the  respondents in this\t suit  Me  order  of
\ncensure passed on September 2, 1953 was also challenged.  On
\nAugust\t5, 1961, the Munsif passed an order restraining\t the
\npresent\t respondents  from operating  the  punishment  order
\npassed\t on  March  5,\t1960  by  the  Director\t of   Public
\nInstruction on the petitioner till the disposal of the suit.
\nIt  is now admitted by the respondents that  the  petitioner
\nwas on duty till March 10, 1960 and
\n\t\t\t    645<\/span>
\nthat he was absent only from March 11. 1960.  That there was
\nan  order  of  temporary  injunction  passed  by  the  court
\nrestraining the respondents from giving effect to the  order
\nof March 5, 1960 is not challenged in the counter-affidavit.
\nAccording  to the petitioner he went on October 13, 1961  to
\njoin  his post from which he was illegally reverted, but  in
\nspite of the order of the Munsif, Patna, the respondents did
\nnot  permit him to join duty.  That he was prepared to\tjoin
\nduty  and  work\t is clear from the letters  written  by\t the
\npetitioner to the Director of Public Instruction on  October
\n13, 1961, October 24, 1961 and November 1, 1961.  There\t was
\nno  reply by the respondents.  It is no doubt true  that  on
\nApril  3,  1962,  the temporary injunction  granted  by\t the
\nMunsif,\t Patna,\t was vacated by the Subordinate\t Judge.\t  On
\nApril  11, 1963 the title suit No. 86 of 1961 instituted  by
\nthe   petitioner  was  decreed\tand  the  respondents\twere
\nprohibited  from  enforcing the order dated  March  5,\t1960
\nreverting the petitioner from the senior grade to the  lower
\ngrade\tof   the  Subordinate  Educational   Service.\t The
\npetitioner  again  wrote a letter on April 18, 1963  to\t the
\nDirector   of  Public  Instruction  drawing   the   latter’s
\nattention to the decree passed in title suit No. 86 of\t1961
\nand requesting him to permit the petitioner to join duty  as
\nDeputy Inspector of Schools.  There was a reply on  November
\n27,  1963  by  the Director of Public  Instructions  to\t the
\neffect\tthat the plea of the petitioner has been  considered
\nat  all levels of the Directorate and the  Government.\t The
\npetitioner  was directed to report himself to  the  Regional
\nDeputy Director of Education, Bhagalpur Division and to join
\nduty in “Lower Division of Subordinate Educational Service”.
\nThe  letter  proceeds to state “in case of  disobedience  of
\norder  you  will be charged with insubordination”.   We\t are
\nconstrained to remark that the attitude taken in this letter
\non   behalf  of\t the  State  is\t not  commendable  at\tall.
\nAdmittedly there was a decree passed by the Munsif in  title
\nsuit  No.  86  of 1961 on April\t 11,  1963  restraining\t the
\nrespondents  from giving effect to the order dated March  5,
\n1960  reverting\t the  petitioner from  the  post  of  Deputy
\nInspector  of Schools to the Lower Division  of\t Subordinate
\nEducational   Service.\t Admittedly  the  respondents\twere
\nparties\t to  the said decree and they had not  obtained\t any
\norder  of  an Appellate Court staying the operation  of\t the
\ndecree in the suit.  The effect of the decree passed by\t the
\nMunsif\twas that the petitioner was entitled to work in\t the
\noriginal  post which he was holding prior to his  reversion.
\nThat  these aspects have been missed by the  respondents  is
\nevident\t from  the reply of November 27, 1963  sent  by\t the
\nDirector  of  Public  Instruction.  The\t petitioner  sent  a
\nfurther letter dated December 6, 1963 in reply to the letter
\nof  the\t Director of Public Instruction dated  November\t 27,
\n1963.\tIn this letter the petitioner again referred to\t the
\ndecree\tof  the\t Munsif, Patna, dated  April  11,  1963\t and
\npointed\t out that he was entitled to hold the original\tpost
\nwhich he was occupying
\n646<\/span>
\nprior  to the order of reversion, which has;  been  directed
\nnot  to\t be  put into operation by the\tcourt.\t He  further
\npointed\t out  that the directions contained  in\t the  letter
\ndated  November\t 27,  1963 sent by the\tDirector  of  Public
\nInstruction  was  not in conformity with the decree  of\t the
\nMunsif.\t He further made a request that he should be allowed
\nto  join duty in the original post in the senior  grade\t and
\nalso  made a further request for payment of arrears  of\t his
\nsalary.\t  There\t was  no reply by the  respondents  and\t the
\npetitioner  was not allowed to join duty as desired by\thim.
\nThe  above  correspondence  is not at all  disputed  by\t the
\nrespondents.   In  fact they have admitted in  the  counter-
\naffidavit  that\t even  after the order\tof  injunction,\t the
\nDepartment  was always insisting on the\t petitioner  joining
\nduty  as  Sub-Inspector of Schools, that is,  in  the  lower
\ngrade  and  that the petitioner never joined  duty  in\tthat
\npost.  To complete the narration on this aspect. the  decree
\nof  the Munsif in favour of the petitioner  restraining\t the
\nrespondents from enforcing the order dated March 5, 1960 was
\nset  aside  on appeal by the Subordinate Judge on  June\t 24,
\n1964   in   title  appeal  No.\t132\/24\tof   1963\/64.\t The
\npetitioner’s Second Appeal No. 640 of 1964 was dismissed  by
\nthe High Court on February 11, 1965.\n<\/p>\n
From the narration of the above facts, it will be clear that
\nfrom  October  5,  1961, the date  of  temporary  injunction
\ngranted by the Munsif, till April 3, 1962, when the order of
\ntemporary  injunction was vacated by the Subordinate  Judge,
\nthe Department did not allow the petitioner to join duty  in
\nthe  senior post, which he was entitled to occupy by  virtue
\nof the order of injunction.  We have already referred to the
\nfact that the petitioner sent letters dated October 5, 1961,
\nOctober\t 13,  1961, October 20, 1961 and  November  1,\t1961
\nexpressing  his\t readiness and willingness to  work  in\t the
\nsenior\tpost.\tThe respondents did not permit him  to\tjoin
\nduty.  Therefore, it cannot be said that the petitioner\t was
\nabsent\tfrom  duty during this period.\tAgain on  April\t 11,
\n1963,  the  Munsif  granted  a\tdecree\tin  favour  of\t the
\npetitioner in the suit.\t The respondents did not obtain\t any
\nstay  order from the Appellate Court.  So the decree of\t the
\ntrial  court  was  in full force till it was  set  aside  on
\nappeal on June 24, 1964.  During the period April 11,  1963,
\nJune  24, 1964, the petitioner wrote several letters and  to
\nwhich  we  have\t made a reference  earlier,  requesting\t the
\nrespondents to permit him to join duty in the senior  grade.
\nThe  respondents  did  not permit him to join  duty  in\t the
\nsenior\tgrade;\tbut,  on the other  hand,  insisted  on\t the
\npetitioner’s  joining duty in the lower grade on  threat  of
\ndisciplinary  action  being  taken.  This  attitude  of\t the
\nrespondents,  we have already pointed out, was\tin  flagrant
\nviolation of the order of the Munsif.  Therefore, during the
\nperiod\tApril 11, 1963 to June 24, 1963, it cannot  be\tsaid
\nthat the petitioner was absent from duty.  Hence it will be
\n\t\t\t    647<\/span>
\nseen that the claim made by the respondents in the  counter-
\naffidavit  that\t the petitioner, since March 11,  1960\ttill
\nAugust 5, 1966 was continuously not in service for over five
\nyears is fallacious.  There is no question of the petitioner
\nnot  being in continuous service for over five years  during
\nthe period referred to above.  On the other hand, the period
\nduring\twhich  it could be said ‘,,hat\tthe  petitioner\t was
\nabsent was from March 11, 1960, the date on which he  claims
\nto have gone on leave till October 5, 1961 when the order of
\ntemporary injunction was passed by the Munsif.\tFrom October
\n5,  1961 to April 3, 1962, we have already pointed out,\t the
\npetitioner  cannot  be considered to have been\tabsent\tfrom
\nduty.  Therefore, the continuity of absence is broken during
\nthis period.  The petitioner can again be considered to have
\nbeen absent from duty from April 3, 1962, the date on  which
\nthe  order  of\ttemporary  injunction  was  vacated  by\t the
\nSubordinate Judge, till April 11, 1963, the date on which  a
\ndecree\t was  granted  by  the\tMunsif\tin  favour  of\t the
\npetitioner.   During this period he was absent.\t  But  again
\nthe continuity of absence is broken during the period  April
\n11, 1963 the date of the decree of the Munsif, till June 24,
\n1964,  the  date  when the Subordinate\tJudge  reversed\t the
\ndecree of the trial court.  We have already referred to\t the
\nvarious letters written during this period by the petitioner
\nas  well  as  the  reply sent  by  the\tDirector  of  Public
\nInstruction  on\t November 27, 1963.  During this  period  he
\ncannot\tbe  considered to be absent from  duty.\t  The  third
\nperiod\tfrom which he can be again considered to  be  absent
\nfrom  duty is June 24, 1964, the date of the decree  of\t the
\nSubordinate Judge till August 5, 1966, the date on which the
\norder was passed purporting to be under r. 76 of the Service
\nCode.\tThe  above  circumstances  clearly  show  that\t the
\npetitioner  cannot be considered to have  been\tcontinuously
\nabsent from duty for over five years during the period March
\n11,  1960  to August 5, 1966. if that is so,  the  essential
\ncondition  for the application of r. 76 of the Service\tCode
\nis  lacking and, therefore, it follows that the order  dated
\nAugust\t5,  1966 is not supported by r. 76  of\tthe  Service
\nCode. Therefore that order is illegal and has to be quashed.
\nA contention has been taken by the petitioner that the order
\ndated  August 5, 1966 is an order removing him from  service
\nand  it\t has  been passed in violation of Art.\t311  of\t the
\nConstitution.\tAccording  to the respondents  there  is  no
\nviolation  of  Art.  311.  On the other hand,  there  is  an
\nautomatic  termination of the petitioner’s employment  under
\nr.  76\tof  the Service Code.  It may not  be  necessary  to
\ninvestigate  this  aspect further because on facts  we\thave
\nfound  that  r. 76 of the Service Code has  no\tapplication.
\nEven if it is a question of automatic termination of service
\nfor  being  continuously absent for over a’ period  of\tfive
\nyears,\tArt.  311 applies to such cases as is laid  down  by
\nthis Court in Jai
\n648<\/span>
\nShanker\t v. State of Rajasthan (1).  In that  decision\tthis
\nCourt  had  to\tconsider Regulation No. 13  of\tthe  Jodhpur
\nService Regulations, which is as follows:\n<\/p>\n
\t      “13.    An  individual  who  absents   himself
\n\t      without  permission  or  who  remains   absent
\n\t      without  permission  for one month  or  longer
\n\t      after   the  end\tof  his\t leave\t should\t  be
\n\t      considered to have sacrificed his\t appointment
\n\t      and  may only be reinstated with the  sanction
\n\t      of the competent authority.”\n<\/p><\/blockquote>\n
It  was contended on behalf of the State of  Rajasthan\tthat
\nthe above regulation operated automatically and there was no
\nquestion of removal from service because the officer  ceased
\nto  be\tin  the service after the period  mentioned  in\t the
\nregulation.   This  Court rejected the said  contention\t and
\nheld  that an opportunity must be given to a person  against
\nwhom such an order was proposed to be passed, no matter\t how
\nthe  regulation described it.  It was further held “to\tgive
\nno  opportunity is to go against Art. 311 and this  is\twhat
\nhas happened here”.\n<\/p>\n
In  the case before us even according to the  respondents  a
\ncontinuous absence from duty for over five years, apart from
\nresulting  in the forefeiture of the office also amounts  to
\nmisconduct under r. 46 of the Pension Rules disentitling the
\nsaid  officer  to receive pension.  It is  admitted  by\t the
\nrespondents that no opportunity was given to the  petitioner
\nto show cause against the order proposed.  Hence there is  a
\nclear violation of Art. 311.  Therefore, it follows even  on
\nthis ground the order has to be quashed.\n<\/p>\n
The  further  question is about the legality  of  the  order
\ndated  June 12, 1968 purporting to be passed under r. 46  of
\nthe Pension Rules.  The petitioner wrote a letter dated July
\n18,  1967 requesting the Director of Public Instructions  to
\narrange\t for payment of his pension as he had  attained\t the
\nage  of superannuation.\t The order dated June 12,  1968\t was
\npassed\tin reply to the said request of the petitioner.\t  In
\nthis  order  it is stated that under r. 46  of\tthe  Pension
\nRules,\tthe  Department is unable to grant  pension  to\t the
\npetitioner.  Rule 46 of the Pension Rules is as follows:\n<\/p>\n
\t      “46.    No  pension  may\tbe  granted   to   a
\n\t      Government  servant dismissed or removed,\t for
\n\t      misconduct, insolvency or inefficiency, but to
\n\t      Government  servants so dismissed\t or  removed
\n\t      compassionate  allowance may be  granted\twhen
\n\t      they  are deserving of special  consideration,
\n\t      provided\tthat  the allowance granted  to\t any
\n\t      Government servant shall not exceed two-thirds
\n\t      of the pension which
\n(1)  [1966] 1 S. C. R. 825.\n<\/p><\/blockquote>\n
\t\t\t    649<\/span><\/p>\n
\t      would  have been admissible to him if  he\t had
\n\t      retired on medical certificate.”\n<\/p><\/blockquote>\n
It  will  be  seen that under the  said\t rule  a  Government
\nservant\t who has been dismissed, or removed for\t misconduct,
\ninsolvency or inefficiency is not eligible for pension.\t The
\nrespondents  ‘have admitted in their counter-affidavit\tthat
\nthe  order dated August 5, .1966 purporting to be under\t r.
\n76  of\tthe Service Code is an order of removal\t and  it  is
\nfurther\t pleaded by them that the petitioner’s\tabsence\t for
\nover  five  years  itself  amounts  to\tmisconduct,duct\t and
\ninefficiency  in  service.  We have already  held  that\t the
\n,order dated August 5, 1966, is illegal.  If that is so,  it
\nfollows\t ,.that\t the petitioner has  not  been\tcontinuously
\nabsent from duty for over five years and he is not guilty of
\nany  misconduct or in-efficiency in service.  Therefore,  it
\nwill  further follow that withholding of pension under\tthe-
\norder  dated  June  12, 1968 on the basis of r.\t 46  of\t the
\nPension Rules, is illegal.\n<\/p>\n
The  respondents  have not taken up the\t position  that\t the offic
\ners  like the petitioner are not entitled to  pension.
\nA  reference  to r. 5 of the Pension Rules  shows  that\t the
\nofficers mentioned therein are entitled to pension.   There
\nis  no controversy that the petitioner is an officer in\t the
\nEducation Department of the Bihar ‘Education Service.  It is
\nitem  No. 3 of the Schedule to r. 5. Rule 42  declares\tthat
\nevery pension shall be held to have been granted Subject  to
\nthe  conditions\t contained in Chapter VIII.  It is  not\t the
\ncase  of the respondents that Chapter VIII which applies  to
\nre-employment  of pensioners, has any relevancy to the\tcase
\non  hand.   We have already referred to r. 46.\t Under\tthat
\nrule   a  Government  servant  dismissed  or   removed\t for
\nmisconduct, insolvency or ‘inefficiency is not eligible\t for
\npension.  But that rule clearly con-templates that action by
\nway of dismissal or removal in respect of the three  matters
\nmentioned  therein  has already taken place -according\tto
\nlaw.   The  bar\t under\tr. 46 will  operate  only  when\t the
\nconditions  mentioned  therein are satisfied.  In  fact\t the
\nconsequences  envisaged under the rule flow from the  action
\nalready\t taken.\t  Rule\t129  provides  for  the\t payment  of
\nsuperannuation\tpension to a Government servant entitled  or
\ncompelled by the ,rules to retire at a particular age.\tRule
\n134  clarifies\tthe  payment of\t retirement  pension  to  a
\nGovernment  servant  permitted to retire after\tcompleting
\nqualifying  service for 30 years or any such less  ,time  as
\nmay  for  any  special\tclass  of  Government  servants\t  be
\nprescribed.   Rule  135\t provides  for\tGovernment  servants
\nmentioned in r. 5 to be entitled on their resignation  being
\naccepted to -a retiring pension after completing qualifying
\nservice\t of not less than 25 years.  Rule 146 provides\tthe
\nscale of pension for Government servants mentioned in r.  5.
\nWe  have only referred to -some of the important  rules\t to
\nshow  that the payment of pension does not depend upon\tthe
\ndiscretion of the State; but, on the
\n650<\/span>
\nother hand, payment of pension is governed by the Rules\t and
\na Government servant coming Within the Rules is entitled  to
\nclaim  pension.\t  The order dated June 12, 1968\t has  to  be
\nquashed in view of the fact that the foundation for the said
\norder  is the one based on the order dated August  5,  1966,
\nwhich  has been quashed by us.\tWhen the order dated  August
\n5, 1966 can no longer survive, the order dated June 12, 1968
\nquite naturally falls to the ground.\n<\/p>\n
The last question to be considered, is, whether the right to
\nreceive\t pension by a Government servant is property, so  as
\nto  attract  Arts. 19(1)(f) and 31(1) of  the  Constitution.
\nThis  question\tfalls  to be decided in\t order\tto  consider
\nwhether the writ petition is maintainable under Art. 32.  To
\nthis aspect, we have already adverted to earlier and we\t now
\nproceed to consider the same.\n<\/p>\n
According to the petitioner the right to receive pension  is
\nproperty  and  the respondents by an executive\torder  dated
\nJune  12, 1968 have wrongfully withheld his  pension.\tThat
\norder  affects his fundamental rights under  Arts.  19(1)(f)
\nand 31(1) of the Constitution.\tThe respondents, as we\thave
\nalready\t  indicated,  do  not  dispute\tthe  right  of\t the
\npetitioner  to\tget  pension, but for the  order  passed  on
\nAugust\t5,  1966.   There is only a  bald  averment  in\t the
\ncounter-affidavit that no question of any fundamental  right
\narises for consideration.  Mr. Jha, learned counsel for\t the
\nrespondents,  was not prepared to take up the position\tthat
\nthe  right  to receive pension cannot be  considered  to  be
\nproperty under any circumstances.  According to him in\tthis
\ncase,  no  order  has  been passed  by\tthe  State  granting
\npension.  We understood the learned counsel to urge that  if
\nthe State had passed an order granting pension and later  on
\nresiles from that order, the latter order may be  considered
\nto affect the petitioner’s right regarding property so as to
\nattract Arts. 19(1)(f) and 31(t) of the Constitution.
\nWe are not inclined to accept the contention of the  learned
\ncounsel for the respondents.  By a reference to the material
\nprovisions  in the Pension Rules, we have already  indicated
\nthat  the  grant of pension does not depend  upon  an  order
\nbeing  passed by the authorities to that effect.  It may  be
\nthat  for  the\tpurposes of quantifying\t the  amount  having
\nregard to the period of service and other allied matters, it
\nmay  be\t necessary for the authorities to pass an  order  to
\nthat  effect, but the right to receive pension flows  to  an
\nofficer\t not because of the said order but by virtue of\t the
\nRules.\t The  Rules, we have already  pointed  out,  clearly
\nrecognise  the\tfight  of persons  like\t the  petitioner  to
\nreceive pension under the circumstances mentioned therein.\n<\/p>\n
651<\/span><\/p>\n
The question whether the pension granted to a public servant
\nis property attracting Art. 31(1) came up for  consideration
\nbefore\tthe Punjab High Court in Bhagwant Singh v. Union  of
\nIndia  (1).   It  was held that\t such  a  right\t constitutes
\n“property” and any interference will be a breach of Art. 3 1
\n(1) of the Constitution.  It was further held that the State
\ncannot\tby an executive order curtail or abolish  altogether
\nthe  right of the public servant to receive  pension.\tThis
\ndecision was given by a learned Single Judge.  This decision
\nwas taken up in Letters Patent Appeal by the Union of India.
\nThe  Letters Patent Bench in its decision in Union of  India
\nv.  Bhagwant Singh<\/a> (2)approved the decision of\tthe  learned
\nSingle\tJudge.\t The  Letters Patent  Bench  held  that\t the
\npension\t granted  to a public servant on his  retirement  is
\n“property”  within  the\t meaning  of Art. 3  1\t(1)  of\t the
\nConstitution and he could be deprived of the same only by an
\nauthority  of  law  and that pension does not  cease  to  be
\nproperty  on the mere denial or cancellation of it.  It\t was
\nfurther\t held  that the character of pension  as  “property”
\ncannot\tpossibly  undergo  such mutation at the\t whim  of  a
\nparticular person or authority.\n<\/p>\n
The  matter again came up before a Full Bench of the  Punjab
\nand Haryana High Court in K. R. Erry v. The State of  Punjab
\n(1).  The High Court had to consider the nature of the right
\nof  an\tofficer to get pension.\t The  majority\tquoted\twith
\napproval  the  principles  laid\t down  in  the\ttwo  earlier
\ndecisions  of  the same High Court, referred to\t above,\t and
\nheld  that  the\t pension is not to be treated  as  a  bounty
\npayable on the sweet will and pleasure of the Government and
\nthat  the  right  to superannuation  pension  including\t its
\namount is a valuable right vesting in a Government  servant.
\nIt  was\t further held by the majority that  even  though  an
\nopportunity  had already been afforded to the officer on  an
\nearlier occasion for showing cause against the imposition of
\npenalty for lapse or misconduct on his part and he has\tbeen
\nfound  guilty,\tnevertheless,  when a cut is  sought  to  be
\nimposed\t in the quantum of pension payable to an officer  on
\nthe  basis  of\tmisconduct already  proved  against  him,  a
\nfurther\t opportunity  to show cause in that regard  must  be
\ngiven  to  the officer.\t This view regarding the  giving  of
\nfurther\t opportunity was expressed by the learned Judges  on
\nthe  basis of the relevant Punjab Civil Service Rules.\t But
\nthe learned Chief Justice in his dissenting judgment was not
\nprepared  to  agree  with  the\tmajority  that\tunder\tsuch
\ncircumstances  a further opportunity should be given  to  an
\nofficer when a reduction in the amount of pension payable is
\nmade  by the State.  It is not necessary for us in the\tcase
\non hand, to consider the question whether
\n(1) A. T. R. 1962 Punjab 503.\t (2) I. L. R. 1965 Punjab 1.
\n(3) I. L. R. 1967 Punjab & Haryana 278
\n652<\/span>
\nbefore\ttaking\taction\tby way of reducing  or\tdenying\t the
\npension on the basis of disciplinary action already taken, a
\nfurther notice to show cause should be given to an  officer.
\nThat  question does not arise for consideration\t before\t us.
\nNor are we concerned with the further question regarding the
\nprocedure,  if any, to be adopted by the authorities  before
\nreducing or withholding the pension for the first time after
\nthe  retirement of an officer.\tHence we express no  opinion
\nregarding  the\tviews  expressed by  the  majority  and\t the
\nminority Judges in the above Punjab High Court decision,  on
\nthis  aspect.\tBut we agree with the view of  the  majority
\nwhen  it has approved its earlier decision that\t pension  is
\nnot  a bounty payable on the sweet will and pleasure of\t the
\nGovernment and that, on the other hand, the right to pension
\nis a valuable right vesting in a government servant.
\nThis  Court in State of Madhya Pradesh v.  Ranojirao  Shinde
\nand<\/a> another (1) had to consider the question whether a “cash
\ngrant”\tis “property” within the meaning of that  expression
\nin Arts. 19(1)(f) and 31(1) of the Constitution.  This Court
\nheld  that it was property, observing “it is obvious that  a
\ntight to sum of money is property”.\n<\/p>\n
Having due regard to the above decisions, we are of the opi-
\nnion that the right of the petitioner to receive pension  is
\nproperty  under Art. 3 1 (1) and by a mere  executive  order
\nthe State had no power to withhold the same.  Similarly, the
\nsaid  claim is also property under Art. 19(1)(f) and  it  is
\nnot  saved  by sub-article (5) of Art.\t19.   Therefore,  it
\nfollows\t that  the  order dated June 12,  1968\tdenying\t the
\npetitioner fight to receive pension affects the\t fundamental
\nright  of the petitioner under Arts. 19(1)(f) and  31(1)  of
\nthe  Constitution, and as such the writ petition under\tArt.
\n32  is maintainable.  It may be that under the\tPension\t Act
\n(Act  23  of  1871) there is a bar  against  a\tcivil  court
\nentertaining  any  suit relating to  the  matters  mentioned
\ntherein.   That\t does  not stand in the way  of\t a  Writ  of
\nMandamus being issued to the State to properly consider\t the
\nclaim of the petitioner for payment of pension according  to
\nlaw.\n<\/p>\n
To  conclude:  No relief can be granted in  respect  of\t the
\norders dated September 2, 1953 and March 5, 1960 as they are
\nalready\t covered  by the decision of the  Patna\t High  Court
\ndated  May 4, 1967 in Second Appeal No. 640 of\t1967.\tEven
\nassuming  that\tthe contention of the  petitioner  that\t the
\norder  dated  September\t 2,  1953 was  not  the\t subject  of
\nadjudication in the litigation leading up to the decision of
\nthe   High  Court,  in\tthe  second  appeal,   is   correct,
\nnevertheless, no relief can be granted as the order has been
\npassed as early as 1953.  Further, the representations made
\n(1)  [1968] 3 S. C. R. 489.\n<\/p>\n
653<\/span><\/p>\n
by him for cancellation of the said order have been rejected
\nlong  ago.   Further,  there  is  no  infringement  of\t any
\nfundamental  right  of the petitioner by  that\torder.\t The
\norder  dated  August 5, 1966 declaring under r.\t 76  of\t the
\nService\t Code  that  the  petitioner has  ceased  to  be  in
\ngovernment employ is set aside and quashed.  The order dated
\nJune 12, 1968 stating that under r. 46 of the Pension Rules,
\nthe Department is unable to grant the petitioner pension  is
\nalso  set  aside  and quashed.\tAs  the\t petitioner  himself
\nclaims\t that\the  has\t been  retired\t from\tservice\t  on
\nsuperannuation,\t a  writ of mandamus will be issued  to\t the
\nrespondents  directing\tthem to consider the  claim  of\t the
\npetitioner  for\t payment of pension according to  law.\t The
\nwrit petition is allowed to the extent indicated above.\t The
\npetitioner   is\t entitled  to  his  costs  from\t the   first
\nrespondent, the State of Bihar.\n<\/p>\n
V.P.S.\t\t\t\t\tPetition allowed.\n654<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Deokinandan Prasad vs State Of Bihar & Ors on 4 May, 1971 Equivalent citations: 1971 AIR 1409, 1971 SCR 634 Author: C Vaidyialingam Bench: Sikri, S.M. (Cj), Mitter, G.K., Vaidyialingam, C.A., Reddy, P. Jaganmohan, Dua, I.D. PETITIONER: DEOKINANDAN PRASAD Vs. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT04\/05\/1971 BENCH: VAIDYIALINGAM, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-1415","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDeokinandan Prasad vs State Of Bihar & Ors on 4 May, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deokinandan-prasad-vs-state-of-bihar-ors-on-4-may-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deokinandan Prasad vs State Of Bihar & Ors on 4 May, 1971 - 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