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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. FAC |
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. FAC |
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". FAC |
The letter proceeds to state "in case of disobedience of order you will be charged with insubordination". FAC |
We are constrained to remark that the attitude taken in this letter on behalf of the State is not commendable at all. Ratio |
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. FAC |
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. FAC |
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. FAC |
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. FAC |
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. FAC |
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. FAC |
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. FAC |
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. FAC |
There was no reply by the respondents and the petitioner was not allowed to join duty as desired by him. FAC |
The above correspondence is not at all disputed by the respondents. Ratio |
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. Ratio |
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. FAC |
The petitioner 's Second Appeal No. 640 of 1964 was dismissed by the High Court on February 11, 1965. FAC |
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 h... |
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. Ratio |
The respondents did not permit him to join duty. Ratio |
Therefore, it cannot be said that the petitioner was absent from duty during this period. Ratio |
Again on April 11, 1963, the Munsif granted a decree in favour of the petitioner in the suit. Ratio |
The respondents did not obtain any stay order from the Appellate Court. Ratio |
So the decree of the trial court was in full force till it was set aside on appeal on June 24, 1964. Ratio |
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. Ratio |
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. Ratio |
This attitude of the respondents, we have already pointed out, was in flagrant violation of the order of the Munsif. Ratio |
Therefore, during the period April 11, 1963 to June 24, 1963, it cannot be said that the petitioner was absent from duty. Ratio |
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. Ratio |
There is no question of the petitioner not being in continuous service for over five years during the period referred to above. Ratio |
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. Ratio |
From October 5, 1961 to April 3, 1962, we have already pointed out, the petitioner cannot be considered to have been absent from duty. ARG |
Therefore, the continuity of absence is broken during this period. Ratio |
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. Ratio |
During this period he was absent. Ratio |
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. Ratio |
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. Ratio |
During this period he cannot be considered to be absent from duty. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
Therefore that order is illegal and has to be quashed. Ratio |
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 article 311 of the Constitution. ARG |
According to the respondents there is no violation of article 311. ARG |
On the other hand, there is an automatic termination of the petitioner 's employment under r. 76 of the Service Code. Ratio |
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. Ratio |
Even if it is a question of automatic termination of service for being continuously absent for over a ' period of five years, article 311 applies to such cases as is laid down by this Court in Jai 648 Shanker vs State of Rajasthan (1). Ratio |
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 appointm... |
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. ARG |
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. Ratio |
It was further held "to give no opportunity is to go against article 311 and this is what has happened here". PRE |
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. Ratio |
It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Ratio |
Hence there is a clear violation of article 311. Ratio |
Therefore, it follows even on this ground the order has to be quashed. Ratio |
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. Ratio |
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. Ratio |
The order dated June 12, 1968 was passed in reply to the said request of the petitioner. Ratio |
In this order it is stated that under r. 46 of the Pension Rules, the Department is unable to grant pension to the petitioner. Ratio |
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 th... |
" 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. Ratio |
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. Ratio |
We have already held that the ,order dated August 5, 1966, is illegal. Ratio |
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. Ratio |
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. Ratio |
The respondents have not taken up the position that the offic ers like the petitioner are not entitled to pension. Ratio |
A reference to r. 5 of the Pension Rules shows that the officers mentioned therein are entitled to pension. Ratio |
There is no controversy that the petitioner is an officer in the Education Department of the Bihar 'Education Service. Ratio |
It is item No. 3 of the Schedule to r. 5. Ratio |
Rule 42 declares that every pension shall be held to have been granted Subject to the conditions contained in Chapter VIII. STA |
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. Ratio |
We have already referred to r. 46. Ratio |
Under that rule a Government servant dismissed or removed for misconduct, insolvency or 'inefficiency is not eligible for pension. Ratio |
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. Ratio |
The bar under r. 46 will operate only when the conditions mentioned therein are satisfied. Ratio |
In fact the consequences envisaged under the rule flow from the action already taken. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
Rule 146 provides the scale of pension for Government servants mentioned in r. 5. Ratio |
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. Ratio |
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. Ratio |
When the order dated August 5, 1966 can no longer survive, the order dated June 12, 1968 quite naturally falls to the ground. Ratio |
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. Ratio |
This question falls to be decided in order to consider whether the writ petition is maintainable under article 32. Ratio |
To this aspect, we have already adverted to earlier and we now proceed to consider the same. Ratio |
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. ARG |
That order affects his fundamental rights under articles 19(1)(f) and 31(1) of the Constitution. Ratio |
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. Ratio |
There is only a bald averment in the counter affidavit that no question of any fundamental right arises for consideration. Ratio |
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. ARG |
According to him in this case, no order has been passed by the State granting pension. ARG |
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(t) of the Constitution. Ratio |
We are not inclined to accept the contention of the learned counsel for the respondents. Ratio |
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. Ratio |
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. Ratio |
The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein. Ratio |
651 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 vs Union of India (1). PRE |
It was held that such a right constitutes "property" and any interference will be a breach of article 3 1 (1) of the Constitution. PRE |
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