Indian Kanoon - Search engine for Indian Law

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 Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 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 (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 a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. However, vide Forty-Fourth Constitutional Amendment Act, 1978, Clause (f) of Article 19 (1) and Article 31 (1) being deleted and the validity of the same having been approved, it is no longer a Fundamental Right, yet it is a Constitutional Right in view of insertion of Article 300A in the Constitution under Chapter-IV (Right to Property) whereby no person can be deprived of his property save by authority of law.

8. Recently, the Apex Court in the matter of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. (supra) having regard to its earlier pronouncements in Deokinandan Prasads case (supra), D. S. Nakara (supra) and others has held that gratuity and pension are not bounties and an employee earns these benefits by dint of his long, continuous, faithful and unblemished service and the same being hard earned benefit in the nature of property, cannot be taken away without due process of law as provided under Article 300A of the Constitution of India. Their Lordships again having considered the provisions of CCS (Pension) Rules, 1972, in para 11 of the judgment observed as under:-

9. The effect of repeal of Article 19 (1) (f) and Article 31 (1) of the Constitution w.e.f. 20.06.1979 vide Forty-Fourth Constitutional Amendment Act, 1978 has already been considered by the Apex Court in State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651 and held that even after deletion of the aforesaid provisions from the Constitution it remained a constitutional right by virtue of endorsing the provisions contained in Article 300A of the Constitution. This aspect has also been dealt in the case of State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr. (supra), wherein, in para 13 of the judgment, their Lordships have observed that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in property.