Karnataka High Court
Dr Prakash G M vs The State Of Karnataka on 17 March, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 29950 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 29950 OF 2024 (S-RES)
BETWEEN:
1. DR. PRAKASH G. M.,
AGED ABOUT 63 YEARS
S/O LATE G. MADEGODA
R/AT NO.584, 1ST D MAIN,
2ND STAGE, 9TH BLOCK
NEAR GANDHI PARK, NAGARABHAVI,
BENGALURU - 560 072
2. DR SHIVAMKUMAR K. M.
AGED ABOUT 63 YEARS
SO LATE M. MARIGOWDA
R/AT NO.387 SRUSTI,
1ST CORSS, K. MARIGOWDA LAYOUT
MANDYA - 571 401.
3. DR. RAJENDRA
Digitally AGED ABOUT 64 YEARS
signed by S/O D. H. MALLINATHAIAH
CHANDANA R/AT NO.31, 14TH CROSS,
BM
Location: ADIKPAMAPA ROAD, V. V. MOHALLA,
High Court of MYSOURU - 570 002.
Karnataka ...PETITIONERS
(BY SRI. GAURAV G.K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECTRETAY
DEPARTEMTN OF HEALTH AND
FAMILY WELFARE (MEDICAL EDUCATION)
6TH FLOOR, M. S. BUILDING,
BENGALURU - 560 001.
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WP No. 29950 of 2024
HC-KAR
2. PRINCIPAL SECRETARY
DEPARTMENT OF FINANCE
VIDHANA SOUDHA,
BENGALURU - 560 001.
3. DIRECTORATE OF MEDICAL EDUCATION
BMC AND RI (OLD BUILDING),
1ST FLOOR, FORT K R ROAD
BENGALURU - 560 001.
REP. BY ITS DIRECTOR
4. MANDYA INSTITUTE OF MEDICAL SCIENCES
BENGALURU - MYSURU ROAD,
MANDYA - 560 004
REP. BY THE DIRECTOR
...RESPONDENTS
(BY SRI. G. RAMESH NAIK, AGA FOR R1 TO R3;
SRI. N. JAGADISH BALIGA, ADVOCATE FOR R4)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE ENDORSEMENT
BEARING NO. MIMS/SIBBANDI(1)/347/2006-07 DATED 21.04.2022
PRODUCED AT ANNEXURE-A ISSUED BY THE RESPONDENT NO.4
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioner seeks the following reliefs:
"a) Issue an appropriate writ / order / direction setting aside endorsement bearing No.MIMS/Sibbandi(1)/347/2006-07 dated 21.04.2022 produced at Annexure - A issued by the Respondent No.4.-3-
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b) Issue an appropriate writ / order / direction directing the Respondents to provide retirement benefits to the Petitioners such as pension under the Old Pension Scheme, etc along with arrears and interest from the date of entitlement and accrual till the date of its realization;
c) Issue an appropriate writ / order / direction as this Hon'ble Court deems fit to grant in the facts and circumstances of the case, in the interest of justice."
2. Heard learned counsel for the petitioner, learned AGA for respondent Nos.1 to 3 and learned counsel for respondent No.4 and perused the material on record.
3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned counsel for the petitioner invited my attention to the order of this Court in the case of Dr. M.S. Siddegowda Vs. The State of Karnataka and others - W.P.No.22644/2024 dated 17.03.2026,, in order to contend that the present petition deserves to be allowed and disposed of in terms of the said order.
4. Per contra, learned counsel for the respondents submits that there is no merit in the petition and that the same is liable to be dismissed.
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5. As rightly contended by the learned counsel for the petitioner the present petition is directly and squarely covered by a decision of this Court in the case of Dr. M.S. Siddegowda Vs. The State of Karnataka and others - W.P.No.22644/2024 dated 17.03.2026, which reads as under:
""In this petition, the petitioner seeks the following reliefs:
"1. Issue any appropriate Writ/Order quashing the endorsement dated 18.06.2024 (Annexure-A); bearing No. «ªÀiïì/¹§âA¢(1)/209/2008-09 issued by respondent No.3.
2. Issue any appropriate Writ/Order directing the respondents to provide retirement benefits including pension, gratuity, leave encashment etc.;
3. Pass any other Writ/directions/Orders that this Hon'ble Court may deem fit under the facts and circumstances of the case interest of justice and equity."
2. Heard learned counsel for the petitioner, learned AGA for respondent Nos.1 and 2, learned counsel for respondent Nos.3 and 4 respectively and perused the material on record.
3. A perusal of the material on record will indicate that the petitioner joined as an Associate Professor in respondent No.4-Institution on 25.01.1994 and continued to work there up to 30.10.2006. On 16.03.2005, the petitioner submitted a representation/request to respondent No.4-Institution seeking permission to apply to the post of Associate Professor of Pathology in Karnataka State Government Autonomous Institution, which was allowed/permitted by respondent No.4 vide Official Memorandum dated 28.03.2005 at Annexure-D to the petition. In pursuance of -5- NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR the same, the petitioner applied to respondent No.3- Institution, which appointed him as an Associate Professor with effect from 24.02.2006 and the petitioner reported to service on 31.10.2006. Subsequently, on 30.09.2023, the petitioner attained the age of superannuation and thereafter submitted a representation to respondent No.3 seeking benefit of Old Pension Scheme on the ground that the resignation submitted by the petitioner to respondent No.4 for the purpose of getting appointed in respondent No.3- Institution was a technical resignation in terms of Section 252(b) of the Karnataka Civil Service Rules (for short "the KCSRs) and consequently, the petitioner would be entitled to continue under the Old Pension Scheme as being applicable to all employees who have joined prior to 31.03.2006. The said request made by the petitioner for granting him benefit under the Old Pension Scheme was rejected by respondent No.3 vide impugned endorsement at Annexure-A dated 18.06.2004, which is assailed in the present petition.
4. Learned counsel for the petitioner in addition to reiterating the various contentions urged in the present petition submits that having regard to the material on record which would indicate that the petitioner had submitted technical resignation within the meaning of Section 252(b) of the KCSRs and an order of relieving the petitioner was passed by respondent No.4 prior to the petitioner joining respondent No.3-Institution, the petitioner would be entitled to the benefit of Old Pension Scheme, which has not been considered by respondent No.3 by issuing the impugned endorsement, which deserves to be quashed.
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5. In support of his submissions, learned counsel for the petitioner relied upon a decision of a Co-ordinate Bench of this Court in the case of Sri. H.K. Siddalinga Murthy Vs. State of Karnataka and others - W.P.No.113/2017 C/w. W.P.Nos.1439/2016, 1857/2017 and 9088/2018 dated 25.07.2023.
6. Respondent No.3 has filed Statement of Objections. Respondent Nos.1 and 2 as well as respondent No.3 have opposed the present petition and submits that the petitioner would not be entitled to old pension scheme and as such, there is no merit in the petition and the same is liable to be dismissed.
7. Before the Adverting to the rival contentions, it would be necessary to extract Rule 252(b) of the KCSRs which reads as under:
"Rule 252(b):
Protection of Service: The previous service counts in full or in part because the resignation is not treated as a cessation of public service.
Requirement of Permission: The employee must have obtained proper permission (often referred to as being "relieved to take up another appointment"). Continuation of Benefits: As it is technically not a resignation, benefits such as seniority, leave, and pension are often preserved.
Applicability: This rule applies to employees moving from one government department to another, or from a government department to a post in the same or another government-aided body (e.g., Universities) where the new service allows for the transfer of past service. Distinction from Resignation: Unlike a typical resignation which entails forfeiture of past service under Rule 252(a), 252(b) protects it."-7-
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8. The interpretation of the said Rule came up for consideration before a Co-ordinate Bench of this Court in H.K. Siddalinga Murthy's case (supra), wherein it was held as under:
" In these petitions common issues are involved and hence, all these writ petitions are taken up together for consideration.
2. The caption writ petitions have been filed seeking a writ of mandamus directing the respondents to continue the petitioners as members of Old Pension of Scheme ("OPS") of State of Karnataka, which is applicable to those who have entered service prior to 01.04.2006 along with the benefits ensuing from it and also sought for a direction to the respondents to discontinue recovery of the employees contribution under the New Pension Scheme ("NPS") and to refund the money recovered so far towards pension.
Factual matrix:
3. The petitioners were appointed as the Veterinary Doctor by the Karnataka Public Service Commission ("KPSC" for short) under Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 ("KCSRs" for short) and were discharging their duty as veterinary doctors in various parts of Karnataka. The petitioners' were appointed on various dates prior to 01.04.2006 and the terms of their appointment including but not limited to pay, promotion, pension etc., were regulated as per the Karnataka Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 and Part-IV of the Karnataka Civil Services Rules.
4. On 31.03.2006, respondent No.1 introduced the "New defined Contribution Pension Scheme (NPS)" as per Annexure - V with effect from 01.04.2006. It was reiterated in the said notification that the NPS is applicable only to the employees appointed on or after 01.04.2006 and the employees appointed prior to 01.04.2006 shall be covered by OPS. The "NPS" as per the said notification was mandatory to all the new recruits to the State Government services joined on or after 01.04.2006, under the "NPS", the new recruits was to contribute 10% of the basic pay and dearness allowance thereon every month -8- NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR and the same will be matched by the State Government in equal proportion.
5. Respondent No.1 vide Office Memorandum dated 12.07.2007 clarified that the persons who were in regular Government Service prior to 01.04.2006, applied for the post in the same or other departments under the State Government Service through proper channel and on selection, they are relieved by the competent authority or tender technical resignation under Rule 252 (b) of the KCSR and subsequently, joined the new post on or after 01.04.2006, will not be treated as new recruits and therefore, will not be governed by the "NPS" and shall be governed under KCSR.
6. When the facts stood thus, in pursuance of Notification dated **17.08.2006 issued by the Karnataka Veterinary, Animal & Fisheries' Sciences University vide Annexure - B, the petitioners were relieved from their duties as veterinary doctors upon their technical resignation and were appointed as Assistant Professors in veterinary hospital in Shivamogga, Hassan, Bangalore and Bidar **since some of the petitioners joined the university as Assistant Professor in January 2007 and others in the year, 2012. While the petitioners were serving as veterinary doctors, the Old Pension Scheme was applicable, however, on tendering their technical resignation and being appointed as Assistant Professors, the petitioners have been denied the benefit of the Old Pension Scheme despite several representations given by the petitioners, the respondents are not computing the past services rendered by the petitioners in Department of Animal Husbandry and Veterinary Services, Government of Karnataka for pensionary and other monetary benefits.
Aggrieved by the inaction and disparity in treatment towards the employees, the petitioners have approached this Court.
7. Heard Prof. Raviverma Kumar, learned senior counsel for Smt. Sharada Bai, learned counsel for the petitioner in W.P.No.113/2017, Sri Venkatesh T.S., learned counsel for petitioner No.1; Prof. Raviverma Kumar, learned senior counsel for Smt. Sharada Bai, learned counsel for petitioner Nos.2 to 36 in W.P.No.1439/2016; Sri. Venkatesh T.S., learned counsel for petitioner in W.P. Nos.1857/2017 and 9088/2018; Smt. Anitha N., learned High Court Government Pleader for respondent Nos.1 and 2; learned counsel Sri Abhishek -9- NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR Arunkumar Happali appearing for Smt. Vaishali Hegde, learned counsel for respondent No.3; Sri. K.G. Nayak, learned counsel for respondent No.3 in W.P. No.9088/2018 and learned counsel Sri Rahul appearing for Smt.Bhavya G.Mohan, learned counsel for respondent No.4.
8. Learned senior counsel has raised the following contentions:
a) Statute No.13 Sub-Clause (2) of Chapter III of the Karnataka Veterinary, Animal and Fisheries Sciences University, Bidar, regulates the salaries and conditions of service and Statute No.36 Sub-Clause 4(i) of Chapter VII of the said Statute reiterates the same as Statute No.13 Sub-Clause (2) of Chapter III, enabling the petitioners to pension under Old Pension Scheme under Part IV of the Karnataka Civil Services Rules by virtue of 252(b).
b) That only upon the permission and sanction of the respondents, the petitioners made an application to the University and thereafter, they were appointed through proper selection process and there was no break in the service rendered by the petitioners while serving as Veterinary Doctors and that of the Assistant Professors. The resignation tendered by the petitioners is a "technical resignation" in terms of Rule 252(b) of Karnataka Civil Services Rules. Therefore, the petitioners are entitled to be continued under the Old Pension Scheme as being applicable to the employees who joined prior to 01.04.2006 as is evident from Annexure - U as per the Official Memorandum dated 12.07.2007.
c) Learned senior counsel would also contend that the modalities with respect to implementation of the "NPS" with respect to Central Government Employees who were availing the benefits of "OPS" are clarified by the Ministry of Personnel, Public Grievances & Pensions, Department of Pension and Pensioner's Welfare, whose position on mobility changed from department to department that they are entitled to be continued under the Old Pension Scheme.
d) Upon taking into consideration the aforesaid clarifications, several States including the State of Karnataka and various Departments in Karnataka, considered the employees under the Old Pension Scheme.
Learned senior counsel would also contend that the Government Order at Annexure - U dated 12.07.2007 has clearly clarified about the applicability of the Old Pension Scheme to the persons who are already in regular Government service prior to 01.04.2006.
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9. In support of his contention, learned senior counsel has relied upon the judgment of the Division Bench of this Court in W.P.No.10019/2021 in the case of Raghu S. & others vs. The State of Karnataka & another disposed on 26.05.2022 and learned senior counsel also relied upon another judgment in the case of Sri Chandra Shekhar G. vs. State of Karnataka & others [2020(1) KCCR 263] (Sri Chandra Shekhar G.).
10. Per contra, learned counsel appearing for the respondent-University reiterating the statement of objections would contend that the petitioners were Government employees recruited by the KPSC under the KCSRs and were therefore bound by the said Rules. The petitioners on their own accord opted out of Government service and applied for appointment in the respondent University by direct recruitment in the year 2011, which is well after coming into force of the new pension scheme and the petitioners cannot after ten long years, seek for remedy which is not permissible. It is contended that the Government Order dated 31.03.2006 clearly sets out as to whom the New Pension Scheme is applicable and the petitioners who were in government service having opted to join university under no circumstance can be considered as a government servant.
11.Learned counsel would contend that the Government by its order dated 05.03.2011 has delegated the power to the secretaries of various departments of the State Government for approval of the proposals under Rule 224-A of the KCSRs and the proposal regarding considering the previous service rendered by Government employees in other Government departments on certain terms and conditions are laid down and it is for the petitioners to make appropriate representations to the Government seeking consideration of their case.
12. Learned High Court Government Pleader would contend that the petitioners cannot be adopted in the Old Pension Scheme since pursuant to the letter issued by the University to recommend the petitioners under the Old Pension Scheme, was forwarded to the State and for want of certain clarification, the matter is pending consideration. Learned High Court Government Pleader would contend that the petitioner could make necessary representation before the appropriate authority and the appropriate authority would consider the same in accordance with law.
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13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record.
14. The relevant rules that need to be considered are Statute No.13 Sub-Clause (2) of Chapter III of Karnataka Veterinary, Animal and Fisheries Sciences University, Bidar Statute 36 Sub-Clause 4(i) of Chapter VII and Rule 252 (b) of the Karnataka Civil Services Rules.
15. Statute No.13 Sub-Clause (2) of Chapter III of Karnataka Veterinary, Animal and Fisheries Sciences University, Bidar reads as under:
"13. Salaries and conditions of service:-
xxx xxx xxx
2. Every officer shall be entitled to avail leave, leave salary, allowances, and other benefits as prescribed in the Statutes/KCSR/UGC/ICAR as applicable."
Statute 36.4(i) of Chapter VII reads as under:
"36. The Constitution of pension fund, gratuity fund and provident fund for the benefit of the officers, teachers and other employees of the University:
xxx xxx xxx
4.(i) In respect of employees of the University who have earlier rendered service in any department of Government of Karnataka or Government of India or ICAR or Central Universities in India or Central Autonomous Bodies or incase of absorption in public interest, pensionary benefits shall be admissible subject to the Government orders or guidelines if any from time to time."
Rule 252 (b) of the Karnataka Civil Services Rules reads as under:
"Rule 252 (a) xxx xxx xxx
(b)Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service."
16. Since several departments and other implementing agencies sought clarification as to whether Government employees who were already in service prior to 01.04.2006, if appointed in different posts under the State Government and join the new posts on or after 01.04.2006, will be governed by the said new defined contributory pension scheme or the Old Pension benefits
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR under the Karnataka Civil Service Rules. The Government of Karnataka by its Office memorandum dated 12.07.2007 (Annexure - U) clarified that if persons who were already in regular Government service prior to 01.04.2006, apply for posts in the same or other departments under the State Government service through proper channel and on selection, they are relieved by the competent authority or tender technical resignation under Rule 252(b) of the Karnataka Civil Service Rules and subsequently join the new posts on or after 01.04.2006, will not be treated as new recruits. Consequently, such persons will not be governed by the new defined contributory pension scheme and they shall continue to be governed by the pension benefits under the Karnataka Civil Service Rules.
17. The Statute 36 Sub-Clause 4(i) is in respect of the employees of the University who have earlier rendered service in any department of Government of Karnataka or Government of India or ICAR or Central Universities in India or Central Autonomous Bodies or in case of absorption in public interest, pensionary benefits shall be admissible subject to the Government orders or guidelines if any from time to time. In light of the office memorandum dated 12.07.2007 issued, squarely applicable to the petitioners herein as they were appointed in the Government Department prior to 01.04.2006.
18. It is also relevant to note that the Ministry of Personnel Public Grievances and Pension Department of Pension and Pensionary Welfare vide Office Memorandum dated 26.07.2005 clarified that the modalities with respect to implementation of NPS with respect to Central Government employees who were availing benefits of Old Pension Scheme, whose position on mobility changed from department to department are entitled to be continued under the Old Pension Scheme and the same has been adopted by the State of Karnataka and various Departments in Karnataka and respondent No.1 by the office memorandum dated 12.07.2007 having been clarified about the applicability to the persons who were in regular Government service prior to 01.04.2006. Later, by way of internal communication holding that the service of the petitioners cannot be considered as continued service and are not eligible under the Old Pension Scheme is contrary to the very office memorandum at Annexure - U dated 12.07.2007.
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19. The right which has been accrued to the petitioners cannot be taken away by an administrative instruction as it is proposed by the respondent by communication on which the respondents have placed reliance in their statement of objections. The right of pension cannot be taken away by a mere executive fiat or administration instructions and pension and gratuity are not mere bounties, or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful and un-blemished service. The right to receive pension of a public servant has been held to be covered under the "right to property" under Article 31(1) of the Constitution of India. It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per Article 300 A of the Constitution of India and that the grant of pension does not depend upon anyone's discretion. The Apex Court has clearly laid down the law in the case of Dr.Hira Lal vs. State of Bihar and others [(2020) 4 SCC 346] at para Nos.22 to 24 which reads as under:
"22. It is well settled that the right to pension cannot be taken away by a mere executive fiat or administrative instruction. Pension and gratuity are not mere bounties, or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful and unblemished service. The right to receive pension of a public servant has been held to be covered under the "right to property" under Article 31(1) of the Constitution by a Constitution Bench of this Court in Deokinandan Prasad v. State of Bihar, which ruled that: (Deokinandan Prasad case, SCC pp. 343-44, paras 30-31 & 33) "30. 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. 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. Letters Patent Bench in its decision in Union of India v. Bhagwant Singh 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.
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31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab. 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 his 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. 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.
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33. 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 clause (5) of Article 19. Therefore, it follows that the order, dated 12-6-1968, 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."
(emphasis supplied)
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23. The aforesaid judgment was followed in D.S. Nakara v. Union of India by another Constitution Bench of this Court, which held that: (SCC pp. 320 & 323-24, paras 20, 29 & 31) "20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar : wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh.
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29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus, the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'étre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.
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31. From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution;
(ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on
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(emphasis supplied)
24. The right to receive pension has been held to be a right to property protected under Article 300-A of the Constitution even after the repeal of Article 31(1) by the Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20-6-1979, as held in State of W.B. v. Haresh C. Banerjee."
20.In another judgment of the Apex Court, in the case of State of Jharkhand & others vs. Jitendra Kumar Srivastava & another [(2013)12 SCC 210] has laid down the said proposition of law at para Nos.14 to 16 which reads as under:
"14. The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar, as is apparent from the following discussion: (SCC pp. 342-43, paras 27-33) "27. 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.
28. According to the petitioner the right to receive pension is property and the respondents by an executive order dated 12-6- 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 5-8-1996. 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.
29. 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 qualifying the amount having regard to the period
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR 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 right of persons like the petitioners to receive pension under the circumstances mentioned therein.
30. 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. 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. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh 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.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab. 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 his 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. 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
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR 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.
32. This Court in State of M.P. v. Ranojirao Shinde 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'.
33. 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 clause (5) of Article 19. Therefore, it follows that the order dated 12-6-1968, 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 (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 writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law."
15. In State of W.B. v. Haresh C. Banerjee this Court recognised that even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty- fourth Amendment) Act, 1978 w.e.f. 20-6-1979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under:
"300-A.Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law."
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."
21. The Division Bench of this Court in Raghu's case has held that the absorption of services of an employee ensures continuity of service without interruption. The threat which connects the old employment with the new employment is legality of the employment. Normally, the absorption is resorted to after transfer or deputation and an employees services has been absorbed should be treated as transferred or deputed from one post to another post, so that there is no break in the service.
22. Rule 224-A of the KSCRs Rules mandates as under:
"224-A. In respect of retirement or death while in service of st Government servants on or after 1 September, 1968 all service under Government whether temporary or permanent shall count.
Explanation.-For the purpose of this rule "Temporary Service" means, the service rendered in any temporary post or as local candidate or service rendered on probation."
23. In the present case, the petitioners joined the service prior to 01.04.2006 and had relieved as veterinary doctors by submitting technical retirement which according to the notification was the prime concern as stated in Annexures-M and N, which read as under:
"No.28/30/2004-P&PW(B) भारत सरकार Government of India का मक, लोक शकायत तथा पशन मं ालय Ministry of Personnel, Public Grievances & Pensions पशन और पशन भोगी क याण वभाग Department of Pension & Pensioners Welfare rd 3 Floor Lok Nayak Bhavan, th New Delhi-110 003, the 26 July 2005.
OFFICE MEMORANDUM
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR Subject: Counting of past service on submission of technical resignation on or after 1-1-2004 by employees governed by Central Civil Services (Pension) Rules, 1972.
The various Ministries/Departments/Autonomous bodies have been seeking clarifications from this Department whether the employees appointed on or before 31-12-2003, who were governed by old pension scheme under the Central Civil Services (Pension) Rules, 1972, will be eligible for counting of their past service under Rule 26(2) of the said rules or under the provisions of the DP&AR's O.M.No.28/10/84-PU dated 29-8-1984, as amended from time to time in the situation where such employees submit technical resignation, on or after 1-1- 2004 to take up new appointment in the new Ministry/Department/Central Autonomous Body.
2. The matter has been considered in consultation with the Ministry of Finance and it is clarified as follow:
(i) All the employees who entered into Central Government service or in the service of an Autonomous Body set up by Central Government (satisfying the conditions laid down in para-4 of O.M. dated 29-8-1984), on or before 31-12-2003 and who were governed by old pension scheme under the Central Civil Services (Pension) Rules. 1972, will continue to be governed by the same pension scheme and same rules, for the purpose of counting of their past service under the said rules or under the provisions of the DP&AR's O.M.No.28/10/84-PU dated 29-8-1984, as amended from time to time, if such employees submit technical resignation on or after 1-1- 2004) to take up new appointment in another Ministry or Department of the Government of India or an Autonomous Body set up by the Central Government, in which the pension scheme under Central Civil Services (Pension) Rules. 1972 already exists for the employees who entered into service on or before 31-12-2003.
(ii) The employees who entered into service on or before 31-12-2003 and who were governed by CPF scheme or any pension scheme of Central or State Government, other than the pension scheme under Central Civil Services (Pension) Rules, 1972. on submission of technical resignation to take up new appointment on or after 1-1-2004, cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules. 1972 because entry to the said scheme ceased w.e.f. 31-12-2003 and no new entry can be allowed in the pension scheme under above Rules.
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR However, such employees can seek pensionary/terminal benefits, from the previous organisation Department, if admissible under the rules of the organisation/Department, for the period of service rendered under tha organisation/Department.
(iii) All the Central Government employees who entered Central Government service or the service of an Autonomous Body set up by Central Government. on or before 31-12-2003 and who were governed by old pension scheme under the Central Civil Services (Pension) Rules, 1972 and who submit technical resignation on or after 1-1-2004, to take up new appointment under State Government, will be eligible for grant of pro-rata pensionary benefits for the period of Central Government or Central Autonomous Body service, on the lines as provided in the Rule 37 of Central Civil Services (Pension) Rules, 1972 and related orders.
3. Para 3(a)(ii) & 3(b)(ii) of the DP&AR's O.M.No.28/10/84-PU dated 29- 8-1984 may be treated as deleted w.e.f. 1-1-2004. Further, the provisions of the DP&AR's O.M.No.28/10/84-PU dated 29-8-1984 or any other related order shall. in so far as it provides for any of the matters contained in this Office Memorandum, cease to operate.
4. This issues with the concurrence of the Ministry of Finance (Department of Expenditure) vide I.D.No.177/E V/05 dated 6-6-2005. Ministry of Finance (Department of Economic Affairs) vide U.O.No.F.5(80)/2004-ECB&PR dated 28-6-2005 and with the concurrence of Office of the Comptroller & Auditor General of India vide their U.O.No.111-Audit (Rules)/44- 2001-Vol.II dated 13-7-2005.
5. Hindi version is being issued simultaneously.
sd/-
(Geeta Ram) Director (PW) Phone: 24624752"
************ "No.28/30/2004-P&PW (B) Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners' Welfare Lok Nayak Bhavan, Khan Market New Delhi-110003 Dated, the 28th October, 2009 OFFICE MEMORANDUM
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR Subject: - Mobility of personnel amongst Central /State & Autonomous Bodies while working under Pensionable establishments - regarding.
......
The undersigned is directed to say that while introducing the New Pension Scheme from 1/1/2004, amendments to various existing rules including Rule 2 of the CCS (Pension) Rules, 1972 were made whereby these rules became inapplicable to those appointed to Central Govt. Services and posts from 1/1/2004. Also the new and changed position obtaining on mobility of personnel between Central Government departments; between Central and State Governments; and between Govt departments and autonomous bodies on technical resignation from 1/1/2004 under these rules were clarified vide OM of even number dated 26/7/2005.
2. The position has been further reviewed by the Government of India and it has been decided to continue mobility of Govt. servants/Autonomous body employees appointed on or before 31.12.03 and who were governed under the old non-contributory Pension scheme of their respective Governments/organizations in order to provide for the continuance of Pensionary benefits based on combined service in accordance with the CCS (Pension) Rules, 1972 as under:-
a. between the Central Govt. departments covered under CCS (Pension) Rules, 1972; and Railway Pension Rules, 1993 or other similar non-contributory pensionable establishments of Central Govt. covered by old Pension Rules other than CCS (Pension) Rules, 1972:
b. between State and Central Govt. provided the employees were appointed in the State Govt. (s) on or before 31.12.2003 and covered under old pension scheme similar to CCS (Pension) Rules, 1972;
c. the pre-existing arrangement of mobility between State/Central Autonomous Body to Central/State Govt. and between autonomous bodies that were governed by old pension schemes in force upto 31/12/2003 vide No.28/10/84-P&PW dated 7/2/1986 and OM. No.28/10/84-Pension unit dated 29/8/1984 stand restored although those under CPF etc. will not be allowed entry into the old pension scheme on appointments from 1/1/2004.
3. These instructions modify/supersede provisions in the OM of even number dated 26/7/2005 to the extent as indicated above and take effect from 1.1.2004.
4. This issues with the concurrence of Department of Expenditure vide their UO No.335/EV/2009 dt. 5/10/2009 and in consultation with C&AG vide their U.O. No.93-audit (Rules)/28-2009 dated 09-10-2009.
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR Sd/-
(Raj Singh) Director"
(Emphasis supplied)
24.The above notifications were issued by the Government of India, Ministry of Personnel, Public Grievance and Pensions clarified the modalities with respect to implementation of the "NPS" to Central Government Employees who were availing benefits of "OPS", whose position on mobility changed from Department to Department and they are entitled to be continued under "OPS". This clarification was taken into consideration by several States including the State of Karnataka and various departments in Karnataka.
25.The petitioners had joined Government service prior to 01.04.2006 and by way of technical resignation under Section 252(b) of the KCSR which is the criteria as envisaged under the Office Memorandum dated 12.07.2007 for the persons to be eligible for Old Pension Scheme and the technical resignation having been accepted and joined the new post on or after 2006, now the respondents cannot contend that since the petitioners have voluntarily opted out of Government service and entered into University, the New Pension Scheme is applicable to the petitioners.
26.It is also relevant to note that the similarly placed persons who were serving in education department and later in University, their earlier services were considered and permitted to continue under "OPS" which is evident from Annexure-Y1 and Y2 annexed to the writ petition.
27.Be that as it may, the petitioners having been appointed prior to 01.04.2006, the contention of the respondent that the New Pension Scheme is applicable to the petitioners is not sustainable for the reason that, the petitioners had submitted the terminal resignation as contemplated under Section 252(b) of the KCSR which is a criteria for absolving the petitioners in the University is to be treated as the petitioners were working in the other department of the State Government. Having held so, the representation submitted to be considered accordingly. Petitioners are also at liberty to submit fresh representation along with the necessary documents to respondent Nos.1 to 3 and respondents to consider the
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR representation following the Office Memorandum dated 12.07.2007, the judgment of the Co-Ordinate Bench of this Court in the case of Sri. Chandra Shekhar .G and the decision of the Division Bench of this Court in the case of Raghu .S and pass appropriate orders strictly in accordance with law within a period of two months from the date of receipt of this order.
In view of the disposal of the writ petitions, pending applications would not survive for consideration.
Writ petitions stand disposed of."
9. As held by this Court in the aforesaid judgment that in the event an employee while in service takes permission from the Institution where he is working seeks appointment in any other Institution, Rule 252(b) would be applicable to the said employee; in the instant case, the cumulative effect of the material on record comprising of the request made by the petitioner in Annexure-C dated 16.03.2005, permission being granted by respondent No.4 vide Annexure-D dated 28.03.2005 and the petitioner having been appointed in respondent No.3-Insitution on 24.02.2006 and reported to duty on 31.10.2006 is sufficient to come to the conclusion that the petitioner had tendered technical resignation within the meaning of Rule 252(b) of the KCSRs and in the light of the aforesaid judgment of this Court in H.K. Siddalinga Murthy's case (supra) and in the event, the person tenders technical resignation he would be entitled to the benefit of Old Pension Scheme, I am of the view that the impugned endorsement issued by respondent No.3 deserves to be quashed and the concerned respondents are to be directed to consider the claim of the petitioner and grant the benefit
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR for the petitioner under Old Pension Scheme, in accordance with law.
10. Insofar as the contention urged by the respondents that all the persons who have joined service after 01.04.2006 would not be entitled to Old Pension Scheme is concerned, the said contention would not be applicable to the petitioner, who had joined respondent No.4-Institution in the year 1994 i.e., much prior to the cut off date and as such, this contention cannot be accepted.
11. Insofar as the contention that the letter of appointment of the petitioner to respondent No.3-Institution stipulates that the petitioner would be entitled to either Contributory Pension Scheme or Provident Fund Scheme and the petitioner had opted for Provident Fund Scheme and availed the provision thereof and the petitioner would not be entitled for Old Pension Scheme is concerned, though the appointment order would stipulate such a condition, in reality there was not such scheme named as Contributory Pension Scheme formulated or framed by the State Government or Colleges so as to disentitle the petitioner from claiming the benefit of Old Pension Scheme by virtue of the technical resignation as stated supra and as such, even this contention of the respondents cannot be accepted.
12. In the result, I pass the following:
ORDER
(i) The petition is allowed.
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NC: 2026:KHC:15905 WP No. 29950 of 2024 HC-KAR
(ii) The impugned endorsement dated 18.06.2024 at Annexure-A issued by respondent No.3 is hereby quashed.
(iii) The concerned respondents are directed to grant benefit under the Old Pension Scheme in favour of the petitioner, immediately upon receipt of a copy of this order."
6. The aforesaid order is applicable to the facts and circumstances of the instant case and consequently, the present petition also deserves to be disposed of in terms of the order of this Court in Dr. M.S. Siddegowda's case supra.
7. In the result, I pass the following:
ORDER
(i) The petition is allowed and disposed of in terms of the order of this Court in the case of Dr. M.S. Siddegowda Vs. The State of Karnataka and others - W.P.No.22644/2024 dated 17.03.2026.
(ii) The impugned endorsement dated 21.04.2022 at Annexure-A issued by respondent No.4 is hereby quashed.
(iii) The concerned respondents are directed to grant benefit under the Old Pension Scheme in favour of the petitioner immediately upon receipt of a copy of this order.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE BMC: List No.: 1 Sl No.: 0