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2014 DIGILAW 235 (JK)

Surinder Mohan Sharma v. State Of J&K

2014-06-05

TASHI RABSTAN

body2014
1. Through the medium of this writ petition, the petitioner is seeking a direction to the respondents to release the amount of gratuity in his favour and also to fix his pension as per the Last Pay Certificate, on the grounds taken in the writ petition. 2. The facts as pleaded in the writ petition are that the petitioner was appointed as a Junior Accountant in the year 1975 in the pre-revised pay scale of Rs.200-520 after he was selected and deputed to undergo Subordinate Accounts Course Part-1 in the year 1974. His pay scale was revised from time to time and finally he was granted in-situ promotion with effect from 01.01.1995. Further case of the petitioner is that he was granted annual increments with effect from 01.01.1996 and he came to be retired from Government service on 28.02.2011. Accordingly, his pension case was forwarded to the Office of Accountant General on the basis of Last Pay Certificate issued by the Principal, Government Higher Secondary School, Gandhi Nagar, Jammu, respondent No. 2 herein. However, the Office of Accountant General has withheld the amount of gratuity of petitioner and is not fixing the pension as per his Last Pay Certificate on the ground that he had not qualified Subordinate Accounts Course, Part-1. It has further directed respondent No. 2 to recover the excess amount drawn in favour of petitioner on account of release of increments with effect from 01.01.1996. 3. Respondent No. 1 has failed to file objections; therefore, its right to file the same came to be closed in terms of order dated 25.02.2014. Vide the same order respondent No. 2 also came to be set ex-parte. 4. Respondents 3 & 4 have filed objections resisting the claim of petitioner. It is contended that since the petitioner did not pass Subordinate Accounts Course Part-1 during his entire period of Service, therefore, under rules neither he is eligible to get his pension as per his Last Pay Certificate nor was entitled to get annual increments with effect from 01.01.1996. Further, it is contended that the petitioner has already been allowed admissible pension on the pay actually due because in terms of Schedule XI of J&K CSR Vol.11, the unqualified Accountant shall be allowed minimum of the pay scale and grant of increments will be subject to passing of prescribed SAC Part-1 Examination. 5. Heard learned counsel for petitioner and Mr. 5. Heard learned counsel for petitioner and Mr. Pangotra, learned ASGI, for respondents 3 & 4. 6. The contention of petitioner is that as per Rule 12(d) of SRO 14 of Jammu & Kashmir Civil Services (Higher Standard Pay Scale Scheme) Rules, 1996, an employee who is otherwise eligible for grant of in-situ promotion is deemed to have been exempted from passing the prescribed departmental or/any other examination. For ready reference, Rule 12(d) is reproduced hereunder: "An employee otherwise eligible for grant of `promotion in-situ' under these Rules shall be deemed to have been exempted from passing the prescribed departmental/any other examination for purposes of grant of `promotion in-situ' only. However, if the employee wants to get the actual functional promotion on Higher post, he/she shall have to pass the prescribed departmental examination." 7. The contention of the petitioner is that in-situ promotion is a non-functional promotion, therefore, in terms of the afore-quoted sub-rule he should be deemed to have been exempted from passing the examination-in-question. 8. There is no rebuttal on behalf of respondents 1 & 2. However, perusal of communication dated 30.11.2011 (annexing `D' to the writ petition), addressed by the Principal, Higher Secondary School (Boys), Gandhi Nagar, Jammu to the Office of respondents 3 & 4, reveals that a detailed and suitable reasoning had already been furnished to the Office of Accountant General regarding the objection raised by it with a request to release the withheld gratuity and revised pension in favour of petitioner herein. 9. Regulations known as Jammu and Kashmir Civil Services Regulations apply to all servants. Article 242 of Jammu and Kashmir Civil Services Regulations (Volume I), while annunciating average emoluments for reckoning of retiral benefits of an employee, who has retired on or after 01.10.1976, provides under Government instructions, inserted vide F.D. Notification SRO 45 dated 28.01.1980:- "Government instruction:- With effect from 1st January, 1976 the average emoluments are determined with reference to emoluments drawn during the last ten complete months. This work involves not merely an arithmetical calculation of the average emoluments but also a check of the correctness of the emoluments which enter into the calculation. The correctness of the emoluments on the first date of the ten months period would naturally depend on the correctness of the emoluments prior to this date. This work involves not merely an arithmetical calculation of the average emoluments but also a check of the correctness of the emoluments which enter into the calculation. The correctness of the emoluments on the first date of the ten months period would naturally depend on the correctness of the emoluments prior to this date. However, any such check of the correctness of past emoluments, whether in the office preparing the pension papers or latter in the office responsible for issuing the pension payment order, should not become an occasion for an extensive examination going back into the distant past, the check should be the minimum which is absolutely necessary and it should in any case not go back to a period earlier than a maximum of twenty four months preceding the date of retirement." 10. From the above rule position, it is obvious that there is an absolute bar to check the correctness or otherwise of the past emoluments beyond-the period of 24 months preceding the date of retirement. In the present case, for that reason, correctness of emoluments drawn by the petitioner before 24 months of his retirement cannot be disputed while reckoning his retiral benefits. Therefore, any dispute raised by the Accountant General as regards correctness of emoluments after about one and a half decade while calculating retiral benefits of petitioner cannot be permitted, inasmuch as such query is expressly barred for Accountant General, to go back to a period beyond two years from the date of retirement, to check and correct the past emoluments drawn by the petitioner, in view of Article 242 of J&K Civil Service Regulations. 11. It is by now law is well settled that pension is a property and an employee has a constitutional guarantee for receiving the same. That being so grant of pension cannot be termed as a bounty becoming payable at the whim and fency of the Government. Consequently, a Government employee has a right to get the admissible pension under rules on his superannuation as a matter of right vested in him. For earning pension a Government employee puts in service for a requisite number of years and it is only thereafter that he earns the same. 12. Consequently, a Government employee has a right to get the admissible pension under rules on his superannuation as a matter of right vested in him. For earning pension a Government employee puts in service for a requisite number of years and it is only thereafter that he earns the same. 12. The trite law on the subject is that once the department has made fixation even wrongly, it cannot reduce the pay by holding that the pay fixation was wrongly done, that too after the retirement of an employee. Consequent, the respondents are also not within their right to deduct the pension. The pension, it is trite law, is to be fixed on the basis of the salary last drawn by an employee and the pensionary benefits are, accordingly, to be calculated. In this regard reference may be made to cases/judgments Mushtaq Ahmad v. State & Ors. [2011 (1) JKJ [HC] 322]; Maryam Bano v. State [SLJ 2003(1) 188 : 2003 (1) JKJ 783 [HC]]; Perdhuman Krishan Khullar v. Union of India [ 2003 (3) JKJ 423 [HC]] and Randhir Singh & ors v. State of Punjab and another [1996 (6) SLR 391]. 13. It is reiterated here that right to receive pension is now a settled recognized right to property, so held by the Constitution Bench Judgment of Hon'ble Supreme Court in Deokinandan Prasad v. State of Bihar [ AIR 1971 SC 1409 ]. It would be profitable to reproduce paragraphs 28 to 35 of the said case hereunder: "29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 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 Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 30. 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 Articles 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. That order affects his fundamental rights under Articles 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 Articles 19(1) (f) and 31(1) of the Constitution. 31. 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 recognize the right of persons like the petitioner to receive pension under the circumstances mentioned therein. 32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(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. 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 I.L.R. 1965 Pun 1 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 Article 31(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. 33. 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 I.L.R. 1967 P & H 278. 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 this 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. 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 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. 34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. [1968] 3 SCR 489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property". 35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the Writ petition under Article 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." 14. Pension is, thus, hard earned benefit that accrues to an employee and is in the nature of property. It is since settled that pension granted to a public servant is property that attracts Article 31(1) and that such a right constitutes "property" and any interference will be breach of Article 31(1) of the Constitution. 15. For the reasons discussed above, the writ petition is allowed. Respondents 3 & 4 are directed to release the withheld gratuity and other retiral benefits of petitioner. They are also directed to re-fix the pension of petitioner on the basis of the Certificate of Last Pay Drawn. Let this exercise be completed within a period of two months from the date a certified copy of this judgment is made available to them by the petitioner. 16. Disposed of along with connected CMA(s), if any.