STATE OF PUNJAB Vs. IQBAL SINGH

JUDGEMENT

(1.) This appeal by certificate of fitness granted by the Punjab and Haryana High Court is directed against the judgment dated April 4, 1967 of a Division Bench of that Court passed in Letters Patent Appeal No. 104 of 1967 whereby the judgment and order dated December 19, 1966 of Narula, J. (as he then was) in Civil Writ Petition No. 298 of 1966 was affirmed.

(2.) It appears that the respondent joined the Punjab Education Department (Class II) Service by direct recruitment as a senior lecturer in 1933. He was promoted to Punjab Education Service (Class I) on October 1, 1949. He was given the selection grade with effect from February 15, 1956 and in due course rose to the position of Director of Public Instruction-cum-Secretary to the Government of Punjab Education Department. He proceeded on leave preparatory to retirement on March 18, 1958, on attaining the age of superannuation. In June, 1961, he received a copy of letter No. 5137-Ed-I-60/9269 dated May 2, 1961 addressed by the Secretary to Government Punjab, Education Department, to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of superannuation pension and death-cum-retirement gratuity of Rs.417.02 np. per mensem and Rs.17,030.25 np. in lump sum respectively under Rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol. II read with para 9 (1) (a) of New Pension Rules, 1951. It was stated in the aforesaid letter that personal file of the respondent had been examined with reference to Rule 6.4 of the Punjab Civil Service Rules, Vol. II and Government were satisfied that his service record was not satisfactory and a cut of 10% had accordingly been made in the amount of pension and death-cum-retirement gratuity admissible to him. On January 28, 1962, the respondent submitted representations to the Chief Minister and Governor of Punjab against the aforesaid decision of the Government to apply 10% cut in his pension and death-cum-retirement gratuity but the same proved abortive. After the establishment of the Board set up to examine and remove the grievances in the matters of promotion and fixation of pension etc. of the Gazetted Officers of the Government, the respondent addressed a representation to the said Board on September 14, 1964, against the aforesaid decision of the Government to apply a cut of 10% in his pension and gratuity. On November 1, 1965, the respondent received a copy of letter No. EDI-4(64)-65/22436 dated October 21, 1965, addressed by the Education Commissioner and Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, intimating that in supersession of the aforesaid letter dated May 2, 1961, of the Punjab Government, it had been decided to grant to the respondent a superannuation pension and death-cum-retirement gratuity of Rs.440.18 np. per mensem and Rs.18,927.50 np. in lump sum respectively under Rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol. II read with para 9 (1) (a) of the New Pension Rules, 1951. In para 3 of the letter, it was reiterated that a cut of 5% had been made in the pension admissible to the respondent as his service record which had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol. II had not been satisfactory. Aggrieved by this communication, the respondent filed in the Punjab and Haryana High Court at Chandigarh a petition under Articles 226 and 227 of the Constitution, being Civil Writ Petn. No. 298 of 1966 (Punj.), challenging the aforesaid decision of the Punjab Government which was, as already stated, allowed by Narula, J. (as he then was) by his judgment and order dated December 19, 1966, following the Full Bench judgment of his Court D/- 25-10-1966 in Civil Writ Petn. No. 504 of 1964 = (reported in AIR 1967 Punj 279) (FB) entitled K. R. Erry v. State of Punjab. Dissatisfied with this judgment and order, the appellants preferred a Letters Patent Appeal, being L.P.A. No. 104 of 1967 (Punj.) which did not meet with success. Thereupon the appellants applied for a certificate under Article 133 of the Constitution which was granted to them. This is how the matter is before us.

(3.) Although in the grounds of appeal, it has been urged by the appellants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry's case (supra) is not in accordance with law as superannuation pension is a bounty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 where it was held that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under Article 31 (1) of the Constitution and the State cannot withhold the same by a mere executive order. It was further held in that case that the claim to pension was also property under Article 19 (1) (f) of the Constitution and was not saved by clause (v) thereof. The learned counsel appearing for the appellants has, however, made a feeble attempt to urge that no opportunity to show cause was required to be given to the respondent before passing the order imposing the cut in his superannuation pension and death-cum-retirement gratuity under clauses (a) and (b) of Rule 6.4 of the Punjab Civil Service Rules (Pension Rules) as the order was an administrative order and the case did not fall within the purview of Article 311 (2) of the Constitution. It has been further contended by learned counsel for the appellants that it was the judgment of this Court in M. Narasimachar v. State of Mysore, (1960) 1 SCR 981 and not the judgment in State of Punjab v. K. R. Erry and Sobhag Rai Mehta, (1973) 2 SCR 405 , which governed the present case. We regret we are unable to accede to these contentions.