TaxTMI 
TaxTMI 
1971 (5) TMI 65
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....1953 and March. 5, 1960 can no longer be considered by this Court in this writ petition. In consequence only the last two orders, mentioned above, survive for consideration. We will refer briefly to the circumstances leading up to the passing of the orders, referred to above, in order to appreciate the circumstances under which the last two orders in particular came to be made as well as the ground of attack levelled against these orders. The petitioner joined service as an Assistant Teacher on September 1, 1928 in the Patna Practising School and was promoted as Sub-Inspector of Schools, Lower Division, in the Subordinate Educational Service from May 31, 1934. The petitioner later on was promoted as Deputy Inspector of Schools in Upper Division of the Subordinate Educational Service and was posted at Seraikella in the Singhbhum District in the Chhotanagpur Division, Bihar from November 1, 1949. The State of Seriakella having merged in the erstwhile province of Bihar, the provincial Government took over and assumed control directly of the education in the locality through its employees of the Education Department unlike other parts of, the province where the education was unde....
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....I, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was passed. He also challenged the order of censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960. Though the suit was contested by the respondents, it was ultimately decreed on April 11, 1963. The respondents filed title appeal No. 132/24 of 1963-64 before the Subordinate Judge, 11 Court, Patna, challenging the decree of the Munsif. On June 24, 1964 the appeal was allowed, with the result that the petitioner's title suit No. 86 of 1961 stood dismissed. The petitioner's Second Appeal No. 640 of 1964 was dismissed by the High Court on May 4, 1967. From these proceedings it is clear that the order of censure dated September 2, 1953 as well as of reversion dated March 5, 1960 have both been found to be correct by the High Court and it is no longer open to the petitioner to canvass those orders again. But it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with the attack of the petitioner against the legality of the orders dated August 5, 1966 and June....
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....order is illegal and void. This is the fourth order that is under challenge. According to the petitioner the order dated August 5, 1966 is an order removing him from service and it is illegal and void as it has been passed in contravention of Art. 311 of the Constitution. Further the order is also not legal and not warranted by the Rules for the reason that the petitioner had not been absent from duty for over five years continuously. According to the petitioner there is a further infirmity in the order as the respondents are inconsistent in their pleas regarding the date from which the period of continuous absence has to be calculated. This plea is based upon the different dates given in the order dated August 5, 1966 and the dates given in the counter- affidavit filed on behalf of the respondents. The attack on the order dated June 12, 1968 is two fold, namely, (a) that it is not warranted by r. 46 of the Pension Rules under which it is purported to be passed; and (b) the petitioner's right to get pension is property and by the respondents not making it available to him, his fundamental rights guaranteed under Arts. 19(1)(f) and 31(1) of the Constitution, have been affecte....
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....respect of any charge. But it does not apply where a government servant ceases to be a government servant by virtue of any statute." According to the respondent there has been no breach committed of Art. 311 of the Constitution when the order dated August 5, 1966 was passed on the basis of r. 76 of the Bihar Service Code, 1952 (hereinafter to be referred as the Service Code). It is to be noted at this stage that there is a variation regarding the dates of continuous absence for over five years mentioned in the order and in the counter- affidavit. They will be dealt with by us when the attack of the petitioner on the order dated August 5, 1966 is con- sidered. It is further admitted by the respondents that even after the injunction order was passed by the Munsif, the Department was always insisting on the petitioner to join in the lower grade to which post he had been reverted and that the petitioner never joined that post. Dealing with the order dated June 12, 1968 in and by which the petitioner was informed that the Department was unable under r. 46 of the Pension Rules to grant him pension, the respondents state that the order is valid and fails squarely under the said rule. A....
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....al and valid. Before we consider that aspect, it is necessary to state that in order to sustain this petition under Art. 32, the petitioner will have to establish that either the order dated August 5, 1966 or June 12, 1968, or both of them affect his fundamental rights guaranteed to him. The order of August 5, 1966, according to the petitioner, is one removing him from service and it has been passed in viola- tion of Art. 311. That the said order is one removing the petitioner from service is also admitted by the respondents in paragraph 11 of the counter-affidavit filed on their behalf by the Assistant Director of Education. Assuming that the said order has been passed in violation of Art. 311, the said circumstance will not give a right to the petitioner to approach this Court under Art. 32. The stand taken by the petitioner is that his right to get 41-1 S.C. India/71 pension is property and it does not cease to be property on the mere denial or cancellation by the respondents. The order dated June 12, 1968 is one withholding the payment of pension or at any rate amounts to a denial by the respondents to his right to get pension. Either way, his rights to property are affected un....
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.... of the Service Code reads as follows: "Unless the State Government, in view of the special circumstances of the case shall otherwise determine, A Government servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in Government employ." The essential requirement for taking action under the said rule is that the government servant should have been Continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March 11, 1960 and he left the headquarters after obtaining the necessary sanction from his superior officers. On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors. It is not necessary for us to deal with this....
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....that the date from which the period of absence should be calculated is March 11, 1960 and not March 1, 1960, they have stated that the petitioner. was absent from March 11, 1960 till August 5, 1966, the date on which the order was passed and hence he was continuously not in service for more than five years. That is even the outer period given in the order dated August 5, 1966, namely, March 2, 1965 is changed by the respondents to the date of passing of the order dated August 5, 1966. We will now proceed on the basis that the order dated August 5, 1966 should be read in such a manner that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966. If the, respondents are able to establish this circumstance, it is needless to state that r. 76 of the Service Code will come into operation irrespective of the fact whether the petitioner was absent with or without leave. According to the petitioner, he has not been continuously absent for over five. years even during the above period as stated by the respondents. It is now necessary to refer to certain proceedings connected with the title suit No. 86 of 1961 instituted by the p....
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....r Division of Subordinate Educational Service". The letter proceeds to state "in case of disobedience of order you will be charged with insubordination". We are constrained to remark that the attitude taken in this letter on behalf of the State is not commendable at all. Admittedly there was a decree passed by the Munsif in title suit No. 86 of 1961 on April 11, 1963 restraining the respondents from giving effect to the order dated March 5, 1960 reverting the petitioner from the post of Deputy Inspector of Schools to the Lower Division of Subordinate Educational Service. Admittedly the respondents were parties to the said decree and they had not obtained any order of an Appellate Court staying the operation of the decree in the suit. The effect of the decree passed by the Munsif was that the petitioner was entitled to work in the original post which he was holding prior to his reversion. That these aspects have been missed by the respondents is evident from the reply of November 27, 1963 sent by the Director of Public Instruction. The petitioner sent a further letter dated December 6, 1963 in reply to the letter of the Director of Public Instruction dated November 27, 1963. In this....
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....trial court was in full force till it was set aside on appeal on June 24, 1964. During the period April 11, 1963, June 24, 1964, the petitioner wrote several letters and to which we have made a reference earlier, requesting the respondents to permit him to join duty in the senior grade. The respondents did not permit him to join duty in the senior grade; but, on the other hand, insisted on the petitioner's joining duty in the lower grade on threat of disciplinary action being taken. This attitude of the respondents, we have already pointed out, was in flagrant violation of the order of the Munsif. Therefore, during the period April 11, 1963 to June 24, 1963, it cannot be said that the petitioner was absent from duty. Hence it will be seen that the claim made by the respondents in the counter- affidavit that the petitioner, since March 11, 1960 till August 5, 1966 was continuously not in service for over five years is fallacious. There is no question of the petitioner not being in continuous service for over five years during the period referred to above. On the other hand, the period during which it could be said ',,hat the petitioner was absent was from March 11, 1960, the....
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.... being continuously absent for over a' period of five years, Art. 311 applies to such cases as is laid down by this Court in Jai Shanker v. State of Rajasthan (1) [1966] 1 S. C. R. 825. In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations, which is as follows: "13. An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority." It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held "to give no opportunity is to go against Art. 311 and this is what has happened here". In the case before us even according to the respondents a....
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....nts have not taken up the position that the offic ers like the petitioner are not entitled to pension. A reference to r. 5 of the Pension Rules shows that the officers mentioned therein are entitled to pension. There is no controversy that the petitioner is an officer in the Education Department of the Bihar 'Education Service. It is item No. 3 of the Schedule to r. 5. Rule 42 declares that every pension shall be held to have been granted Subject to the conditions contained in Chapter VIII. It is not the case of the respondents that Chapter VIII which applies to re-employment of pensioners, has any relevancy to the case on hand. We have already referred to r. 46. Under that rule a Government servant dismissed or removed for misconduct, insolvency or 'inefficiency is not eligible for pension. But that rule clearly con-templates that action by way of dismissal or removal in respect of the three matters mentioned therein has already taken place -according to law. The bar under r. 46 will operate only when the conditions mentioned therein are satisfied. In fact the consequences envisaged under the rule flow from the action already taken. Rule 129 provides for the payment of sup....
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....te granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Arts. 19(1)(f) and 31(t) of the Constitution. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein. The question whether the pension granted to a public servant is property attracting Art. 31(1) came up for consideration before the Punj....
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....ircumstances 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. This Court in State of Madhya Pradesh v. Ranojirao Shinde and another [1968] 3 S. C. R. 489. had to consi....