1971 (5) TMI 65 - SC - Indian Laws

Whether the orders dated August 5 1966 and June 12 1968 are legal and valid? Whether the petitioner was absent with or without leave 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? Held that - A reference to r. 5 of the Pension Rules shows that the officers mentioned therein are entitled to pension. 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. When the order dated August 5 1966 can no longer survive the order dated June 12 1968 quite naturally falls to the ground. 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. The right of the petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the State had no power to withhold the same. Similarly the said claim is also property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore it follows that the order dated June 12 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. Appeal allowed.

Issues Involved:

1. Legality of the orders dated August 5, 1966, and June 12, 1968.
2. Whether the petitioner's fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution are affected.
3. Whether the right to receive pension is considered "property."
4. Applicability of Rule 76 of the Bihar Service Code.
5. Applicability of Rule 46 of the Bihar Pension Rules.
6. Violation of Article 311 of the Constitution.

Issue-wise Detailed Analysis:

1. Legality of the Orders Dated August 5, 1966, and June 12, 1968:

The petitioner challenged the orders dated August 5, 1966, and June 12, 1968. The order dated August 5, 1966, stated 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 Rule 76 of the Bihar Service Code." The court found that the petitioner was on duty till March 10, 1960, and thus, the continuous absence of five years was not completed by March 2, 1965. Furthermore, the court noted that the petitioner was willing to join duty but was prevented by the respondents, thus breaking the continuity of absence. Therefore, the essential condition for the application of Rule 76 was lacking, rendering the order dated August 5, 1966, illegal and quashed.

The order dated June 12, 1968, stated that under Rule 46 of the Bihar Pension Rules, the Department was unable to grant any pension to the petitioner. As this order was based on the illegal order dated August 5, 1966, it was also quashed.

2. Whether the Petitioner's Fundamental Rights Under Articles 19(1)(f) and 31(1) of the Constitution are Affected:

The court held that the right to receive pension is "property" under Article 31(1) and by withholding the same, the petitioner's fundamental rights under Articles 19(1)(f) and 31(1) are affected. The respondents' contention that no fundamental rights were affected was rejected.

3. Whether the Right to Receive Pension is Considered "Property":

The court referred to various decisions and concluded that the right to receive pension is "property" under Article 31(1) and 19(1)(f) of the Constitution. The pension is not a bounty payable at the sweet will and pleasure of the Government but a valuable right vesting in a government servant.

4. Applicability of Rule 76 of the Bihar Service Code:

Rule 76 of the Bihar Service Code states, "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 court found that the petitioner was not continuously absent for over five years as claimed by the respondents. Therefore, Rule 76 was not applicable, and the order dated August 5, 1966, was illegal.

5. Applicability of Rule 46 of the Bihar Pension Rules:

Rule 46 of the Bihar Pension Rules states, "No pension may be granted to a Government servant dismissed or removed for misconduct, insolvency or inefficiency." The court found that the petitioner was not guilty of any misconduct or inefficiency as the order dated August 5, 1966, was illegal. Therefore, the order dated June 12, 1968, withholding pension under Rule 46 was also illegal.

6. Violation of Article 311 of the Constitution:

The court held that even if the order dated August 5, 1966, was considered an automatic termination of service, Article 311 applies to such cases. The petitioner was not given an opportunity to show cause against the order, resulting in a violation of Article 311. Therefore, the order was quashed on this ground as well.

Conclusion:

The court quashed the orders dated August 5, 1966, and June 12, 1968, and issued a writ of mandamus directing the respondents to consider the petitioner's claim for payment of pension according to law. The petitioner was entitled to costs from the first respondent, the State of Bihar. The writ petition was allowed to the extent indicated.

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