Allahabad High Court
Prof. Ranjana Sharma And Another vs State Of U.P Thru. Addl. Chief Secy. ... on 23 August, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:56170 AFR Court No. - 8 Case :- WRIT - A No. - 3180 of 2023 Petitioner :- Prof. Ranjana Sharma And Another Respondent :- State Of U.P Thru. Addl. Chief Secy. Prin. Secy. Deptt. Medical Edu Lko. And 6 Others Counsel for Petitioner :- Abhineet Jaiswal,Gaurav Mehrotra Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Heard Sri Gaurav Mehrotra, learned Counsel for the petitioners and learned Standing Counsel.
2. Despite stop order passed on 23.05.2023 granting four weeks' and no more time to file counter affidavit, the State has chosen not to file the counter affidavit. The instructions have been produced by the learned Standing Counsel indicating the reasons, as to why, the claim of the gratuity is not being paid to the petitioners. The said instructions are taken on record and the matter is decided finally as the issue hinges upon the interpretation of legal grounds, there being no dispute on facts.
3. The facts in brief are that the petitioners no.1 and 2 were appointed in the Ganesh Shankar Vidyarthi Memorial Medical College, Kanpur and in the Medical College, Meerut respectively and continued to serve till attaining the age of superannuation, however, the State Government with a view to tide over the requirement of super specialty doctors, issued a Government Order dated 06.02.2015 increasing the age of retirement from 60 years to 65 years, a copy whereof has been filed as (Annexure-7) to the writ petition. It appears from the record that on attaining the age of superannuation i.e. 60 years, the petitioner no.2 applied for voluntary retirement, however, no orders were passed and both the petitioners, in the absence of any order on the voluntary retirement application of petitioner no.2, continued to serve till they attained the age of 65 years. After the retirement, the grievance of the petitioners is that they have not been paid the death-cum-retirement gratuity, to which, they are entitled as well as the benefit of commutation of pension. It bears from record that a doctor similarly placed who was denied the said benefit had approached this Court by filing Writ-A No.281 of 2022 (Dr. Suneel Kumar Garg vs State of U.P. and others), which was disposed off, vide order dated 10.02.2022, directing the respondents State Government to take a decision on the grievance of the petitioner of Writ-A No.281 of 2022. In response to the said directions, an order came to be passed on 13.12.2022 in respect of the said petitioner of Writ-A No.281 of 2022 denying the benefits of payment of gratuity to him. In the order dated 13.12.2022, the reasons recorded for denying the said benefits are contained in paragraph 3 of the said order noticing that it came to the knowledge of the authority that in similar circumstances in respect of the teachers working with Basic Shiksha, Madhyamik Shiksha, High Education and Technical Education where the age of retirement was extended but the gratuity is not being paid to the said persons and drawing parallel from that, the petitioners, whose services were extended from 60 years to 65 years also do not appear to be entitled for payment of gratuity. The said order further records that the petitioners were will within their rights to have opted for voluntary retirement despite knowing their rights, continued to work till 65, thus they were not entitled for gratuity. Based upon the said reasoning, the representation of the petitioner Dr. Suneel Kumar Garg stood rejected.
4. The contention of the Counsel for the petitioner Gaurav Mehrotra is that the petitioners are similarly situated as Dr. Suneel Kumar Garg, whose representation for payment of gratuity was rejected. The reasoning recorded for non-payment of the gratuity would squarely apply to the petitioner no.2 and partly on the petitioner no.1 and, thus, the present petition has been filed seeking the benefit of death-cum-retirement gratuity and the benefit of commutation of pension and that this Court may decide the issue as the stand of the State is now clear.
5. Sri Gaurav Mehrotra, learned Counsel for the petitioners argues that the entitlement of the death-cum-retirement gratuity and commutation of pension flow in favour of the petitioners in terms of the Uttar Pradesh Retirement Benefit Rules, 1961 (hereinafter referred to as 'the 1961 Rules) and the same could not have been taken away except in accordance with law, as according to him, the gratuity and pension are the rights which cannot be taken away except in accordance with 'law' in terms of the mandate of Article 300-A of the Constitution of India. He argues that there is no 'law' framed by the State in pursuance to the mandate of Article 300-A so as to deny the benefit of gratuity. He further argues that reasoning as are available and discerned from the document on record that the benefit of gratuity has been denied to the petitioners in terms of the executive order passed by the State Government on 01.04.2021 wherein, in respect of the grant of pension and gratuity as well as commutation, the resolution and the decision of the KGMU University dated 19.07.2019 was adopted by the State Government with regard to the pension, gratuity and commutation. He draws my attention to the decision taken by the KGMU in respect of the grant of benefit including the commutation of pension, gratuity and pension in respect of persons who had served after the date of retirement for an extended period of five years a decision was taken by the University that they would not be entitled to the benefit of gratuity and the commutation of pension.
6. He argues that the decision of the University has been adopted by the State Government but the same would still not fall within the scope of 'law', which is required to deny or take away the benefit in terms of the mandate of Article 300A. He places reliance on the judgment in the case of Dr. Hira Lal vs State of Bihar and others; (2020) 4 SCC 346.
7. In the light of the said and on the foundation of Article 300A, Sri Gaurav Mehrotra argues that on the one hand, the petitioners were made to serve without taking any consent from them, only to serve the interest of the State and the petitioners continued to serve till they attained the age of 65 years and on the other hand, they have been denied the benefit, which flow in their favour in terms of the statutory Rules without any authority of law and thus, the action of the State is wholly arbitrary and illegal and violates the Constitutional rights of the petitioners.
8. In context of petitioner no.2, who had applied for voluntary retirement, he argues that it was the State, who had to pass an order on the application of the voluntary retirement, which the State conveniently failed to do so and on account of the said failure, the petitioner no.2 forced to continue to serve till the age of 65 years.
9. It appears from the record that the entire amount of gratuity, as claimed by the petitioners, in terms of the Rule of 1961, stands denied to the petitioners merely on the ground that they continued in service till 65 years and for which they were paid their salaries in accordance with law.
10. The Counsel for the petitioner argues that in respect of the Provincial Medical Services, the age of the doctors was increased from 60 to 62 years, however, the benefit of gratuity was extended to them and was not denied and thus, too that extent, there is a violation of the rights guaranteed under Article 14 of the Constitution of India in respect of the petitioners.
11. Learned Standing Counsel has produced the instructions, which are taken on record, and prays for further time to file counter affidavit, however, as this Court had passed a stop order, coupled with the fact that the defence for denying the benefits of gratuity has been brought on record by means of the instructions, no useful purpose would be served in granting further time, as the instructions specifically records that on strength of the order dated 19.07.2019 passed in the case of KGMU and duly adopted by the State Government through an administrative order dated 01.04.2021, the petitioners were not entitled to any gratuity and thus, the claim of the petitioners deserved to be rejected.
12. In the light of the pleadings and arguments as recorded above, this Court is to decide "whether the benefit of gratuity and pension is a property of the petitioners and whether, it can be denied to the petitioners by an administrative order in violation of Constitutional Rights under Article 300A of the Constitution of India".
13. Article 300-A of the Constitution of India is quoted below:
"300A. 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."
14. All the issues as raised and arise in the present petition are squarely covered by the judgment of the Hon'ble Supreme Court in the case of State of Jharkhand and others vs Jitendra Kumar Srivastava and another; (2013) 12 SCC 210, wherein while deciding the issue "as to whether pension and gratuity amounts to property and whether the same can be taken away without framing a law as defined under Article 300-A, the Hon'ble Supreme Court observed 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 [(1971) 2 SCC 330 : 1971 Supp SCR 634] , 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 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 [AIR 1962 Punj 503] . It was held that such a right constitutes 'property' and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh [ILR (1965) 2 Punj 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is 'property' within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as 'property' cannot possibly undergo such mutation at the whim of a particular person or authority.
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 [AIR 1967 Punj 279 : ILR (1967) 1 Punj 278]. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on 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.
32. This Court in State of M.P. v. Ranojirao Shinde [AIR 1968 SC 1053 : (1968) 3 SCR 489] had to consider the question whether a 'cash grant' is 'property' within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing 'it is obvious that a right to sum of money is property'.
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 [(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] 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 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.
17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
15. Similarly in the case of Dr. Hira Lal (Supra), while deciding an identical issue, the Hon'ble Supreme Court observed as under:
"18. In our considered view, the Circulars dated 22-8-1974 and 31-10-1974, and Government Resolution No. 3104 dated 31-7-1980, were merely administrative instructions/executive orders. They were not issued in exercise of the power under Article 309 of the Constitution and cannot be said to have the force of law.
19. The Government Resolution dated 31-7-1980 came up for consideration before this Court in State of Jharkhand v. Jitendra Kumar Srivastava [State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 : (2014) 1 SCC (Civ) 315 : (2014) 2 SCC (L&S) 570] . After considering Rule 43(b) of the Bihar Pension Rules and Government Resolution No. 3104 dated 31-7-1980, this Court held that the State had no authority or power to withhold the full amount of pension or gratuity of a government servant during the pendency of judicial or departmental proceedings. This Court held that : (SCC pp. 216-17 & 220-21, paras 9-11, 13 & 16-17) "9. Having explained the legal position, let us first discuss the rules relating to release of pension.
10. The present case is admittedly governed by the Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under:
* * *
11. From the reading of the aforesaid Rule 43(b), following position emerges:
(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.
(ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending.
(iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings.
(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.
* * *
13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. [Ed. : The matter between two asterisks has been emphasised in original.] Only [Ed. : The matter between two asterisks has been emphasised in original.] when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.
* * *
16. ... A person cannot be deprived of this pension without 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.
17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different." (emphasis supplied) It was held that pension is "property" within the meaning of Article 300-A of the Constitution, and executive instructions which do not have any statutory sanction cannot be termed as "law" within the meaning of Article 300-A. It was further held that in the absence of statutory rules permitting withholding of pension or gratuity, the State could not do so by way of executive instructions. It was observed that : (Jitendra Kumar Srivastava case [State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 : (2014) 1 SCC (Civ) 315 : (2014) 2 SCC (L&S) 570] , SCC p. 221, para 17) "17. ... so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different." (emphasis supplied)
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. [State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 : (2014) 1 SCC (Civ) 315 : (2014) 2 SCC (L&S) 570] 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 [Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 : 1971 Supp SCR 634] , which ruled that : (Deokinandan Prasad case [Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 : 1971 Supp SCR 634] , 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 [Bhagwant Singh v. Union of India, 1962 SCC OnLine P&H 27 : AIR 1962 P&H 503] . It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. Letters Patent Bench in its decision in Union of India v. Bhagwant Singh [Union of India v. Bhagwant Singh, 1964 SCC OnLine P&H 275 : ILR (1965) 2 P&H 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
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 [K.R. Erry v. State of Punjab, 1966 SCC OnLine P&H 255 : ILR (1967) 1 P&H 278] . The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions [Bhagwant Singh v. Union of India, 1962 SCC OnLine P&H 27 : AIR 1962 P&H 503] , [Union of India v. Bhagwant Singh, 1964 SCC OnLine P&H 275 : ILR (1965) 2 P&H 1] 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)
23. The aforesaid judgment was followed in D.S. Nakara v.Union of India [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] 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 inDeokinandan Prasad v. State of Bihar [Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 : 1971 Supp SCR 634] : 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 inState of Punjab v. Iqbal Singh [State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 : 1976 SCC (L&S) 172] .
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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 an assurance that in their old age they would not be left in lurch."
(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 [State of W.B. v. Haresh C. Banerjee, (2006) 7 SCC 651 : 2006 SCC (L&S) 1719]."
16. In the present case, the right to pension and gratuity flow in favour of the petitioners by virtue of the mandate of The Uttar Pradesh Retirement Benefits Rules, 1961 (in short '1961 Rules') and particularly Rule 5 thereof, which is as under:
"5. Death-cum-Retirement Gratuity.-(1) An officer may, on retirement, be paid an additional gratuity, the amount of which shall, subject to a maximum of 16-1/2 times the emoluments, be an amount equal to one-fourth of the emoluments multiplied by the total number of completed six monthly periods of qualifying service.
(2) If an officer dies while in service, a gratuity, the amount of which shall, subject to a minimum of 12 times and a maximum of 16-1/2 times the emoluments, be an amount equal to one-fourth of the emoluments of the officer multiplied by the total number of six monthly periods of qualifying service, shall be paid to the person or persons on whom the right to receive the gratuity is conferred under sub-rule (1) to (8) of Rule 6 and if there is no such person, it shall be paid in the manner indicated in sub-rule (9) of that rule.
(3) If an officer who has become eligible for or has actually received, a pension or gratuity under part I of these Rules, dies within a period of five years from the date of retirement and the aggregate of any sums admissible to him or actually received by him till the time of death on account of such gratuity or pension together with the gratuity granted under sub-rule (1) and the commuted value of any portion of pension commuted by him is less than the amount equal to 12 times his "emoluments" a gratuity equal to the deficiency shall be granted to the person or persons referred to in sub-rule (2).
(4) The amount of gratuity admissible in accordance with sub-rule (1) or sub-rule (2) above shall in no case, exceed Rs.36,000 and the emoluments exceeding Rs.2,500 per month shall be ignored in computing the amount of such gratuity.
[Clause 4 amended vide Government order dated 23.12.2016]
17. Similarly the rights of commutation of pension flow in favour of the petitioner by virtue of Rule 8 of the 1961 Rules, which is quoted hereinbelow:
"8. Commutation.-Facilities for commuting pension in accordance with the Uttar Pradesh Civil Pension (Commutation) Rules will continue, but the maximum amount of pension which may be committed will be restricted to one- third of the pension admissible under Part 1 of these Rules.
Provided that where option had been exercised under Rule 11, the maximum amount of pension which may be commuted will be restricted to one-third of the pension admissible after deduction of the pension equivalent of death-cum- retirement gratuity subject to the condition that the pension actually payable after commutation is not in any case less than one-half of the pension admissible under Article 474 and 474-A of the Civil Service Regulations:
Provided further that the pension actually payable after commutation is not less than Rs. 20."
18. The rights as conferred in favour of the petitioner by virtue of Rule 5 can be denied only when the circumstances enumerated in Rule 9 of the said 1961 Rules are made out. Rule 9 is quoted hereinbelow:
9. Miscellaneous.-(1) Government will have the right to effect recoveries from a gratuity or family pension sanctioned under Parts II and III in the same circumstances as recoveries can be effected from an ordinary pension under Article 351-A of the Civil Service Regulations.
(2) No gratuity or family pension may be granted-under Parts II and III if the officer was dismissed or removed for misconduct, insolvency or inefficiency. Compassionate grant may, however, be made under these Parts in accordance with Article 353 of the Civil Service Regulations.
(3) A gratuity or family pension shall be sanctioned under parts II and III after giving due regard to the provisions of Article 470 of the Civil Service Regulations.
(4) Death-cum-retirement gratuity admissible in addition to pension calculated at the rate given in the annexure shall be treated as gift and recoveries of any Government dues may be effected from the same.
(5) The existing rules which apply to the grant of an ordinary pension shall also apply in respect of a gratuity or family pension that may be sanctioned under parts II and III in so far as such rules are not inconsistent with the Rules."
19. Admittedly none of the conditions specified in Rule 9 are present in respect of the petitioners of the present case.
20. The gratuity are proposed to be taken away by an executive order dated 01.04.2021, as referred above, is neither permissible nor can be done in view of the judgments as quoted above and squarely applicable to the facts of the present case, as such, there is a clear violation of Article 300-A of the Constitution of India. Further more, the State Government has itself granted the benefits of gratuity to the doctors working in the Provincial Health Services even when the age of such doctors were increased from 60 to 62 years and were paid salaries for the extended period, as such, to that extent, there is a clear violation of Article 14 also. Thus on both the reasoning i.e. violation of Article 300-A and Article 14, the petition deserves to be allowed and is accordingly allowed.
21. The respondents are directed to pay the gratuity to both the petitioners to which they are entitled ignoring the Government Order dated 01.04.2021 within a period of three months from the date of production of a certified copy of this order.
22. The respondents shall ensure the payment of interest on the amount of gratuity from the date of retirement till actual payment/ realization @ 7% per annum.
23. As regards the commutation of pension, the respondents shall take a decision on the application for commutation of pension in respect of both the petitioners within a period of three months as per law.
Order Dated: 23.08.2023
akverma (Pankaj Bhatia,J.)