judgement:
No. 254 of 1968.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
V. M. Tarkunde, V. M. Limaye and section section Shukla for the petitioners.
V. section Desai, M. C. Bhandare and section P. Nayar, for the res pondent.
The Judgment of the Court was delivered by P. Jagamohan Reddy, J.
The petitioner challenges the vires of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964 (Maharashtra Act XXXI of 1965) (hereinafter referred to as the 'impugned Act ').
The parent Act is the Bombay Tenancy and Agricultural Lands Act 1948 (Bombay Act XLVII of 1948) (hereinafter referred to as 'the parent Act ').
In 1956 the State Legislature amended the parent Act by Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 (Bombay Act XIII of 1956) (hereinafter referred to as 'the Amendment Act ') which came into force on 1st August 1956.
The State of Bombay undertook legislation in furtherance of its policy of social welfare and to give effect to agrarian reform.
The parent Act was passed by the Bombay State Legislature in order to amend the law which governed the relationship between the landlord and tenants of agricultural lands, the object sought to be achieved being as indicated in its preamble that "on account of the neglect of a landholder or disputes between the landlord and his tenants, the cultivation of his estate has as a result suffered or for the purposes of improving the economic and social conditions of peasant or ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by the landholders and to regulate and impose restrictions on transfer of agricultural lands, dwelling houses, sites and lands 663 appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the province of Bombay and to make provisions for certain other purposes".
By the Constitution first Amendment Act 1951 the parent Act was included in the Ninth Schedule and came within the pur view of article 31B of the Constitution.
In 1956 the State Legislature in order to implement the directive principles of the State Policy set out in Aft. 38 and 39 of the Constitution of India by seeking to promote the welfare of the tenants, the landless peasants and labourers and to enable them to acquire land and with a view to bring about equitable distribution of ownership of land, passed the amendment Act which received the assent of the President on March 16, 1956.
This Act made further changes in the relationship of landlord and tenants which were more drastic.
The main effect of the amendments of Section 32 to 32 B was that on the 1st April 57 (hereinafter referred to as the tiller 's day) every tenant was, subject to the other provisions deemed to have purchased from his landlord free of all encumbrances subsisting thereon, on the said day, the land held by him as a tenant subject to certain conditions (vide Section 32).
The tenant under Section 32 A was deemed to have purchased the land up to the ceiling area.
It was further provided by Section 32 B that if a tenant held the land partly as owner and partly as tenant, but the area of the land held by him as owner is equal to or exceeds the ceiling area he shall not be deemed to have purchased the land held by him as a tenant under Section 32.
Section 32 E provided that the balance of any land after the purchase by the tenant under Section 32 shall be disposed of in the manner laid down in Section 15 as if it were land surrendered by the tenant.
Section 32 F further provided that in the case of disabled landholders namely minors, widows or persons subject to any mental or physical disability or where the tenants are equally disabled as aforesaid or where they are members of the Armed Forces, the tiller 's day was postponed by one year after the cessation of disability.
As a result of the Amendment Act, on the 1st of April, 1957 the relationship of landlord and tenant came to an end, the landholder ceased to be a tenure holder and the title thereto was vested in the tenants defeasible only on certain specified contingencies.
The relationship of landholder and tenant was thus transformed into a relationship of a creditor and debtor, the erstwhile landlord being entitled only to recover the price fixed under the provisions of the Amendment Act in the manner provided therein under Section 32G read with 32H, the price which.
was to be paid by the tenant Was to be determined by the tribunal as soon 664 as may be after the tiller 's day and in the manner provided thereunder subject however to the amount so determined not being less than 20 times and not more than 200 times of the assessment.
An appeal against the decision of the Tribunal was provided to the State Govt.
under Section 32 J. The mode of payment by the tenant of the price fixed by the Tribunal is prescribed under Section 32 K which shall be payable in annual instalments not exceeding 12, with simple interest at 4 1/2% per annum, on or before the said dates as may be prescribed by the Tribunal and 'the tribunal shall direct that the amount deposited in lumpsum or the amount of instalments deposited shall be paid to the former landlord.
The landlord however did not have the right to recover the amount by recourse to a Court of law.
The only way in which he could recover it if the instalments were not duly paid by the tenant voluntarily was by an application to the concerned authorities under the Revenue recovery Act to recover it as arrears of land revenue (Section 32 L) which provision it may be stated was subsequently deleted by the impugned Act under Section 32 M.
On the payment of the price either in lumpsum or of the last instalment of such price the tribunal was required to issue a certificate in the prescribed form to the tenant purchaser in respect of the land, which certificate shall be the conclusive evidence of purchase.
If the tenant fails to pay the lumpsum within the period prescribed for, or is at any time in arrears of four instalments the purchase was to be ineffective and the land was to be put at the disposal of the Collector and any amount deposited by such tenant towards the price of the land was to be refunded to him.
It 'is important to note that Section 32 P provides that if the tenant fails to exercise his right to purchase or the sale becomes ineffective on account of default of payment of purchase price the tenant shall be evicted and the land shall be surrendered to the former landlord.
Sections 32 Q and 32 R provide that the amount of purchase price was to be applied towards the satisfaction of debts and the purchaser was to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally.
The Amendment Act was challenged by a petition under article 32 but this Court held that it is protected by article 31A of the Constitution and is therefore valid.
We shall presently refer to that decision but the petitioner 's grievance is against the changes that have been affected by the impugned Act in the law as it stood after Amendment Act.
It is the contention of the learned Advocate for the Petitioner that he changes that transgress the fundamental rights of the petitioner are (1) that if the tenant does not pay the instalments by the end of twelve years but before the end of the period he makes an application that he is at the time incapable of paying the arrears within the time and 665 pays one instalment together with the interest on the total amount of one year 's instalment, the period of payment is extended by another 12 years.
(2) where he fails to pay the price in lumpsum or is in arrears of four instalments where the number of instalments fixed is four or more and the purchase has thereby become ineffective even then if he was in possession of the land on the 1st of May '65 and files an application within six months therefrom or from the date of default of the payment of price in lumpsum or of the last instalment whichever is later and applies to the tribunal to condone the default on the ground that there being sufficient reason as he was incapable of paying the price in lumpsum or the instalment within the time, the tribunal can if it is satisfied condone the default and allow further time, in the case of payment of lumpsum one year and for payment of arrears in the case where payment is by instalments by increasing the total number of instalments to sixteen.
(3) Even when the arrears are not paid as required under the law during the extended period and sale becomes ineffective and the tenant purchaser has nevertheless continued in possession, the landlord has no right to have the tenant purchaser evicted, till the tribunal admits that it has failed to recover the amount of the purchase price.
Shri Tarkunde contends that these changes have effected the petitioner 's right to property in that he has neither the right to recover the amount through a Court of law nor has he any hope of recovering it through the procedure prescribed by the impugned Act within any reasonable time; that in spite of the fact that under the previous law the sale had become ineffective under 32 H or 32 G by the default of the tenant purchaser to pay the price the Collector under 32 P was required to give possession to the landlord but under the impugned Act that right has become illusory because the landholder has no effective remedy either to recover the amount or to recover the land and that all that the tenant has to do is to sit tight, he need not apply for extension nor need he pay the instalment nor is there any time fixed for the tribunal to determine that it has failed in the efforts to recover the amount under the revenue recovery Act.
No distinction in fact, it is said, has been made between a person who is unable to pay and one who will not pay.
In view of these contentions 'it is necessary to point out that this very petitioner had challenged the constitutionality of the Amendment Act in Sri Ram Ram Narain Medhi vs State of Bombay (1) on the ground that it was beyond the competence of the legislature; that legislation not being protected by article 31(A) had infringed articles 14, 19 and 31 of the Constitution; and that it was a piece of colourable legislation vitiated in part by excessive (1) ; 666 delegation of legislative power to the State.
On behalf of the Respondent, it was urged that the impugned legislationfall within entry 18 in List II of the Seventh Schedule to the Constitution, that it provided for the extinguishment or modification of rights to estates and was as such protected by article 31 A of the Constitution and that there was no excessive delegation of legislative power.
This Court held (1) that the legislation fell within entry 18 of List II and therefore the legislature was competent to enact the Amendment Act; (2) that the word estate applied to landholders as defined by Section 2(5) of the Bombay Land Revenue Code which is equally applicable to tenure holders and occupants of unalienated lands; (3) that the word 'landholder ' as defined in Section 2(9) of the parent Act made no distinction between alienated and unalienated lands and showed that the interest of the landholder fell within the definition of 'estate ' contained in Section 2(5) of the Bombay Land Revenue Code ; (4) that there was no warrant for the proposition that extinguishment or modification of any rights in estates as contemplated by article 3 1 A(.1) (a) of the Constitution must mean only what happened in the process of acquisition of any estate or of any rights therein by the State.
The language of the Article was clear and unambiguous and showed that it treated the two concepts as distinct and different from each other, and (5) that Sections 32 to 32 R of the Amendment Act contemplated the vesting of title in the tenure on the tiller 's day defeasible only on certain specified contingencies and intended to bring about an extinguishment or modification of rights in the estate within the meaning of article 31A(1)(a) of the Constitution.
For the aforesaid reasons it was held that the Amendment Act was not vulnerable as being violative of articles 14, 19 and 31 of the Constitution.
This decision concludes the most important question whether the petitioner 's fundamental rights are infringed under articles 14, 19 and 31 as the parent Act as well as the amending Act is now protected by article 31A of the Constitution.
Neither the question of discrimination nor of compensation or its adequacy can be gone into nor can the unreasonableness of the provisions under which the landlords title has been extinguished nor the manner in which the price is to be paid can be challenged.
Once it has been held that article 31A applies the petitioner cannot complain that his rights under articles 14, 19 and 31 of the Constitution have been infringed.
This protection is available not only to Acts which come within its terms but also to Acts amending such Acts to include new items of property or which change some detail of the scheme of the Act provided firstly that the change 667 is not such as would take it put of article 31A or by itself is, not such as would not be protected by it and secondly that the assent of the President has been given to the amending statute.
To put it differently as long as the amendment also relates to a scheme of agrarian reforms providing for the acquisition of any estate or of any right thereunder or for extinguishment or modification of such right the mere transfer of the tenure from one person to another or the payment of the price in instalment or even the postponement of payment by a further period cannot be challenged under articles 14, 19 and 31.
In this case we have noticed that the impugned legislation has merely amended that provision which related to the recovery of the amounts from the tenant who has become purchaser and the postponement of the time, of ineffectiveness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser.
The only way under which the petitioner could have recovered the amounts under the Amendment Act was by an application to the Collector under the Revenue Recovery Act for collecting it as arrears of land revenue but that provision under Section 32 L has now been deleted.
While the vesting of the title of the tenure in the erstwhile tenant is still defeasible only on certain specified contingencies as was before the impugned Act it only modified the previous provisions to the extent that the erstwhile tenant has been given the benefit of having the payment postponed or instalments increased by requiring the tribunal to make an enquiry as to whether there were sufficient reasons for the tenant purchaser making a default and if it is satisfied to condone the delay and extend the period of payment.
It also vested in the tribunal instead of the Collector the power to make the recovery on behalf of the landholder.
It may also be noticed that under the impugned Act the sale still becomes ineffective as was under the amendment Act when the amount is not recovered with this difference that under the former it has to be shown that the tenant purchaser was not in a position to pay.
No doubt before the impugned Act, if the tenant purchaser did not pay, the Collector could take action under the revenue recovery Act to recover the amount and if he did not recover it the sale became ineffective and the landlord could be put in possession by evicting the tenant purchaser provided he was entitled to get possession of it under the Act, as when his holdings do not come within the ceiling.
The basic position still remains the same after the impugned Act and there is nothing in the Amendment Act which is destructive of the scheme of agrarian reform which the legislation seeks to implement and which is protected under article 31A of the Constitution.
This view of ours is amply borne out also by the statement of objects and reasons which impelled the legislature to state the difficulty that was being felt in the implementation of the agrarian 668 land reforms and indicate how it sought to find a remedy and got over it.
This is what was stated "According to provisions of Section 32 K, 32 L and 32 M of the Bombay Tenancy Agricultural Land Act 1942; it is left to the tenant to deposit with the tribunal the purchase of the land which is deemed to have been purchased by him under Section 32 of that Act.
If he fails to deposit the price in lumpsum or instalments the purchase becomes ineffective and under Section 32 P the tenant can be summarily evicted from the land.
It has been brought to the notice of the Government that in the case of an Act a large number of tenants specially belonging to the Scheduled Caste and Scheduled Tribe, the purchase is in danger of being ineffective for failure to deposit the sale price on due dates.
It is noticed that these tenants being illiterate and socially backward have failed to deposit the amount more out of ignorance than willful default.
Unless therefore immediate steps are taken to provide for recovery of purchase price through Government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective.
This will result in defeating the object of the tenancy legislation.
To avoid this result, it is therefore considered that the agricultural lands tribunal showed be empowered to recover the, purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price, the purchase should not become ineffective.
It is also considered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have not yet been evicted from their lands under Section 32 P.
This bill is intended to achieve these objects".
We do not therefore think that the impugned Act has in any way affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under article 31A of the Constitution.
Shri Tarkunde has referred us to the case of Maharana Shri Jayvantsinghji Ranmalsinghji etc.
vs The State of Gujarat (1) in support of his contention that the impugned Act infringes article 19(1)(f) of the Constitution and is not saved by clause 5 thereof as the provisions of the said Act are unreasonable in that the indefinite postponement of the recovery of the price makes the payment thereof illusory, and even after the sale has become ineffective the landholder is not entitled to recover the land.
What fell for determination in the case referred to was whe ther as a result of the provisions of the Bombay Land Tenure (1) [1966] Supp.
S.C.R. 411.
669 Abolition Laws (Amendment) Act 1958, particularly under Sec tions 3 and 4 read with Section 6 thereof certain non permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of atleast the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property.
This result it was contended had substantially deprived the petitioners of the right which they acquired on the tiller 's day by reason of the provisions contained in Section 32 and other provisions in the parent Act as amended from time to time.
The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 insofar as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the 'tiller 's day ' under Section 32 H of the parent Act.
It would appear from the Judgment of section K. Das, J. speaking for himself and Sinha C.J., that the constitutional validity of the relevant provisions of the Taluqdari Abolition Act 1949 and the parent Act read with the Amendment Act had not been challenged before them.
The decision of Dhirubha Devisingh Gohil vs The State of Bombay (1) and Shri Ram Ram Narain Medhi vs The State of Bombay (1) were cited as upholding the constitutionality of the relevant provisions of those 2 Acts.
After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act LVII of 1958 particularly the provisions 3, 4 and 6 of that Act, and referring to the earlier decision that this Court had held that Sections 32 to 32 R of parent Act read with the Amendment Act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of article 31A(1)(a) of the Constitution, it was observed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under article 19(1)(f) of the Constitution and was not saved by clause 5 thereof nor are the cases before them protected by article 31A. section K. Das, J. gave the following reasoning for the aforesaid conclusion at page 438 439 : "The petitioners have three kinds of tenants permanent tenant protected tenants, and ordinary tenants.
On (1) ; (2) [1959] Suppl.
1 S.C.R. 489.
670 April 1, 1957, the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under ' section 32H.
If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with section 83 of the Revenue Code.
Such a claim could be contested by the tenure holder whenever made by the tenant.
But by the impugned Act 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant.
We are unable to hold that the six months ' limit imposed by section 5 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of article 19(5) of the Constitution.
" The decision in the above case is clearly inapplicable to the facts and circumstances of the case before us and consequently in the view we have taken this petition is dismissed with costs.
G.C. Petition dismissed.

summary:
The Bombay Tenancy & Agricultural Lands Act, 1948 was passed in furtherance of the State 's policy of social welfare and to give effect to agrarian reform.
By the Constitution First Amendment Act 1951 the said Act was included in the Ninth Schedule and came within the purview of article 31B of the Constitution.
In 1956 the State Legislature in order to implement the Directive Principles of State Policy passed the Bombay Tenancy and Agricultural Lands (Amendment) Act which came into force on 1st August 1956.
The main effect of the amendments made by the 1956 Act was that on 1st April 1957 every tenant was subject to other provisions deemed to have purchased from his landlord free of all encumbrances, the land held by him as a tenant.
The erstwhile landlord remained entitled only to recover the price fixed under the provisions of the Amendment Act in the manner provided therein i.e. by a tribunal.
The Amendment Act was challenged by a petition under article 32 but this Court held that it was protected by article 31A. Further changes in the Act were made by the impugned Act, namely, the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964.
In a petition under article 32 of the Constitution it was contended that these changes had affected the petitioner 's right to property in that he had neither the right to recover the price of the land deemed to be purchased by the tenant nor any hope of recovering it through the procedure prescribed by the impugned Act within a reasonable time.
It was urged that there was no time fixed for the tribunal to determine that it had failed in the efforts to recover the amount under the Revenue Recovery Act so that the tenant purchaser could be evicted.
The provisions of the Act were also attacked as unreasonable.
The question that fell for consideration was whether the impugned Act was protected by article 31A.
HELD: Once it has been held that Art 31A applies to an Act the petitioner cannot complain that his rights under articles 14, 19 and 31 of the Constitution have been infringed.
The protection is available not only to Acts which come within its terms but also to Acts amending such Acts to include new items of property or which change some detail of the scheme of the Act provided firstly that the change is not such as would take it out of article 31A or by itself is not such as would not be protected by it and secondly that the assent of the President has been given to the amending statute.
So long as the amendment also relates to a scheme of agrarian reform providing for the acquisition of any estate or of any right thereunder or for extinguishment or modification of such right the mere transfer of the tenure from one person to another or the payment of the price in instalment or even the postponement of payment by a further period cannot be challenged under articles 14, 19 and 31.
[666H] 662 In the present case the impugned legislation had merely amended the Provision which related to the recovery of the amounts from the tenant who had become purchaser and the postponement of the time of ineffectiveness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser.
, This had not in any way affected the main purpose of the Act or the object which it seeks to achieve nor did the amendments effected thereby take the provision out of the protection given to it under article 31A of the Constitution.
[667B C] The petition must accordingly be dismissed.
Sri Ram Ram Narain Medhi vs State of Bombay, 119591 1 Supp.
S.C.R. 489, referred to and held inapplicable.


judgement:
No. 217 of 1968.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
Bishan Narain, B. B. Sinha, section N. Misra, section section Jauhar and K. K. Sinha, for the petitioner.
B. P. Jha, for the respondents.
The Judgment of the Court was delivered by Vaidialingam, J.
In this writ petition under article 32 of the Constitution, the petitioner prays for the issue of a writ to the respondents in the nature of Certiorari or any other appropriate writ, direction or order quashing four orders dated September 2, 1953, March 5, 1960, August 5, 1966 and June 12, 1968.
He further prays for issue of a writ in the nature of a Writ of Mandamus directing the respondents to treat him as having retired at the age of 58 and to pay him the pension that he is entitled to.
Though four orders are cought to be quashed, as we will show in due course, the grievance of the petitioner regarding the orders dated September 2, 1953 and March.
5, 1960 can no longer be considered by this Court in this writ petition.
In consequence only the last two orders, mentioned above, survive for consideration.
We will refer briefly to the circumstances leading up to the passing of the orders, referred to above, in order to appreciate the circumstances under which the last two orders in particular came to be made as well as the ground of attack levelled against these orders.
The petitioner joined service as an Assistant Teacher on September 1, 1928 in the Patna Practising School and was promoted as Sub Inspector of Schools, Lower Division, in the Subordinate Educational Service from May 31, 1934.
The petitioner later on was promoted as Deputy Inspector of Schools in Upper Division of the Subordinate Educational Service and was posted at Seraikella in the Singhbhum District in the Chhotanagpur Division, Bihar from November 1, 1949.
The State of Seriakella having merged in the erstwhile province of Bihar, the provincial 637 Government took over and assumed control directly of the education in the locality through its employees of the Education Department unlike other parts of, the province where the education was under the control and management of the District and Local Boards.
The service rendered by the petitioner as Deputy Inspector of Schools, Seraikella was found satisfactory by the superior officers including the Director of Public Instruction and hence he was recommended to be appointed to a superior post of Education Officer in the Community Project.
By about the end of 1951, he was transferred to Purulia in the district of Manbhum as Additional Deputy Inspector of Schools.
The petitioner was later on transferred to Bettiah in or about May, 1953.
At Bettiah the petitioner received a copy of the order dated September 2, 1953 from the Director of Public Instruction directing a censure to be recorded in the character roll of the petitioner based on the report of one Shri Kanhaya Lal, District Inspector of Schools, who, according to the petitioner, was inimically disposed towards him.
The attempt of the petitioner to have the order dated September 2, 1953 cancelled proved unsuccessful.
This is the first order that is sought to be quashed by the petitioner.
The petitioner on the basis of certain allegations was placed under suspension on February 6, 1954 and relieved from his duty as Deputy Inspector of Schools, Bettiah.
There was a charge sheet issued to the petitioner on March 16, 1954 and he was found guilty.
But these inquiry proceedings were later on set aside and a fresh inquiry was ordered.
In consequence the order of suspension was cancelled, but immediately thereafter a fresh inquiry was conducted in which he was again found guilty as per the report of the Inquiry Officer dated September 22, 1959.
The Disciplinary Authority, who was the Director of Public Instruction passed an order on March 5, 1960 accepting the finding of the Inquiry Officer recorded against the petitioner and held that the charges had been proved against him.
Accordingly, by this order the petitioner was reverted, as punishment, to Lower Division of Subordinate Educational Service and also directing a censure entry to be recorded in Us personal character roll.
This is the second order that is challenged in this writ petition.
It is not necessary for us to deal in any detail about the first and the second order as both those orders are now concluded against the petitioner by the decision of the High Court.
The petitioner filed title suit No. 86 of 1961 in the Court of the Munsif, III, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was passed.
He also challenged the order of censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960.
Though the suit was 638 contested by the respondents, it was ultimately decreed on April 11, 1963.
The respondents filed title appeal No. 132/24 of 1963 64 before the Subordinate Judge, 11 Court, Patna, challenging the decree of the Munsif.
On June 24, 1964 the appeal was allowed, with the result that the petitioner 's title suit No. 86 of 1961 stood dismissed.
The petitioner 's Second Appeal No. 640 of 1964 was dismissed by the High Court on May 4, 1967.
From these proceedings it is clear that the order of censure dated September 2, 1953 as well as of reversion dated March 5, 1960 have both been found to be correct by the High Court and it is no longer open to the petitioner to canvass those orders again.
But it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with the attack of the petitioner against the legality of the orders dated August 5, 1966 and June 12, 1968.
When the order of reversion dated March 5, 1960 was passed, the petitioner was working as Deputy Inspector of Schools, Deoghar.
The office of the Deputy Inspector of Schools was closed for Holi holidays from March 11, 1960 and the petitioner claims that he left the headquarters to go to Patna with the permission of the authorities.
The order dated March 5, 1960 was received by him at Patna on March 23, 1960 when he was ill.
He applied for leave.
According to the petitioner, he obtained an order of temporary injunction on October 5, 1961 in his title suit No. 86 of 1961 restraining the respondents from giving effect to the order dated March 5, 1960 reverting him to the Lower Division in the Subordinate Educational service.
Though he offered to join the post to which he was entitled originally, he was not allowed by the respondents to join the Upper Division of the Subordinate Educational Service.
The action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by the Munsif, Patna.
On August 5, 1966 the Director of Public Instruction passed an order that the petitioner "having not been on his duties for more than five years since March 1, 1960, has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code".
The petitioner made representations for cancellation of this order but without any success.
This is the third order that is being challenged.
The petitioner having completed 58 years of age, addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of the petitioner 's pension.
No reply was received by the petitioner for a long time inspite of repeated reminders.
Ultimately on June 12, 1968 the Director of Public instruction passed orders on the petitioner 's ,application dated July 18, 1967 regarding payment of pension.
639 In this order it is stated that under r. 46 of the Bihar Pension Rules (hereinafter to be referred as the Pension Rules), the Department is unable to grant any pension to the petitioner.
We will refer to this rule at the appropriate stage but it is enough to take note of the fact that under the said rule, no pension may be granted to a government servant dismissed or removed for misconduct, insolvency or inefficiency.
According to the petitioner this order is illegal and void.
This is the fourth order that is under challenge.
According to the petitioner the order dated August 5, 1966 is an order removing him from service and it is illegal and void as it has been passed in contravention of article 311 of the Constitution.
Further the order is also not legal and not warranted by the Rules for the reason that the petitioner had not been absent from duty for over five years continuously.
According to the petitioner there is a further infirmity in the order as the respondents are inconsistent in their pleas regarding the date from which the period of continuous absence has to be calculated.
This plea is based upon the different dates given in the order dated August 5, 1966 and the dates given in the counter affidavit filed on behalf of the respondents.
The attack on the order dated June 12, 1968 is two fold, namely, (a) that it is not warranted by r. 46 of the Pension Rules under which it is purported to be passed; and (b) the petitioner 's right to get pension is property and by the respondents not making it available to him, his fundamental rights guaranteed under articles 19(1)(f) and 31(1) of the Constitution, have been affected.
The Assistant Director of Education has filed a counter affidavit on behalf of the respondents.
According to the respondent the orders of censure passed on September 2, 1953 and of reversion dated March 5, 1960 are valid and legal and in passing those orders no violation of any rules has been made.
The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed.
The petitioner is not entitled to challenge any of those orders as they are concluded by the decision of the Patna High Court dated March 4, 1967 in Second Appeal No. 640 of 1964.
Regarding the order dated August 5, 1966, it is admitted by the respondents that the petitioner was on duty till March 10, 1960.
He ceased to attend office only from March 11, 1960.
It is further admitted that it has been stated by mistake in the order that the petitioner has not been on duty for more than five years since March 1, 1960.
The date "March 1, 1960 should be read 640 as "March 11, 1960".
The respondents dispute the averment of the petitioner that he left the headquarters from March .11, 1960 with the permission of the authorities.
On the other hand, according to them, the petitioner had put in an application in the office of the Sub Divisional Educational Officer for leave on March 11, 1960 and that he did not obtain any prior permission for leaving the headquarters.
It is further averred that the order dated March 5, 1960 reverting the petitioner came into effect immediately and the petitioner was also informed of the same.
It is specifically pleaded by the respondent as follows: "In other words since 11 3 1960 till 5 8 1968 he was continuously not in service for more than 5 years.
By virtue of rule 76 of Bihar Service Code of 1952 the petitioner ceased to be in the service of the Government as he remained absent from duty continuously for 5 years and this itself amounts to misconduct and inefficiency in the service.
In the present case the provisions of article 311 do not apply to the facts of this case because his services are not terminated on account of any charge but are automatically terminated by virtue of the statute i.e. rule 76 of the Bihar Service Code 1952.
Article 311 applies where the services of a government servant are terminated in respect of any charge.
But it does not apply where a government servant ceases to be a government servant by virtue of any statute."
According to the respondent there has been no breach committed of article 311 of the Constitution when the order dated August 5, 1966 was passed on the basis of r. 76 of the Bihar Service Code, 1952 (hereinafter to be referred as the Service Code).
It is to be noted at this stage that there is a variation regarding the dates of continuous absence for over five years mentioned in the order and in the counter affidavit.
They will be dealt with by us when the attack of the petitioner on the order dated August 5, 1966 is con sidered.
It is further admitted by the respondents that even after the injunction order was passed by the Munsif, the Department was always insisting on the petitioner to join in the lower grade to which post he had been reverted and that the petitioner never joined that post.
Dealing with the order dated June 12, 1968 in and by which the petitioner was informed that the Department was unable under r. 46 of the Pension Rules to grant him pension, the respondents state that the order is valid and fails squarely under the said rule.
According to the respondents the order dated August 5, 1966 is an order removing the petitioner from service for not attending to his duty for more than five years and that by itself amounts to misconduct.
Therefore, the petitioner was not entitled to claim 641 any pension.
There is also an averment to the effect that there is no question of any fundamental right of the petitioner being affected by the orders under attack and hence the writ petition is not maintainable.
The petitioner has filed a rejoinder wherein he has pointed out the inconsistent dates given in the order dated August 5, 1966 and in the counter affidavit filed on behalf of the respondents by the Assistant Director of Education.
According to the petitioner in whatever manner the period is calculated either as per the dates given in the order or by the dates given in the counter affidavit, rule 76 does not apply as he has not been continuously absent from duty for over five years.
The petitioner further avers that he was absent from duty after taking the permission of the autho rities.
According to the petitioner he has not been continuously absent from duty for over five years if the period is properly calculated according to the various orders passed by the Munsif.
Patna, in his title suit.
According to the petitioner, when a court has restrained the respondents from giving effect to the order of reversion and when he offered to join duty in the post from which he was reverted, the respondents without any regard for the court orders, did; not permit him to join duty, but, on the other hand, insisted that he should join duty in the lower rank to which he had been reverted.
This, according to the petitioner, is illegal.
The petitioner further reiterates his allegation that he was entitled to pension and that withholding of the same affects his fundamental rights.
According to the petitioner the respondents do not deny his right to get pension but, on the other hand, plead that as he has been removed from service by the order dated August 5, 1966, he is not entitled to pension by virtue of r. 46 of the Pension Rules.
He further points out that as the order dated August 5, 1966 is illegal, the order dated June 12, 1966, which is based upon the earlier order, is also null and void.
The questions that arise for consideration are whether the orders dated August 5, 1966 and June 12, 1968 are legal and valid.
Before we consider that aspect, it is necessary to state that in order to sustain this petition under article 32, the petitioner will have to establish that either the order dated August 5, 1966 or June 12, 1968, or both of them affect his fundamental rights guaranteed to him.
The order of August 5, 1966, according to the petitioner, is one removing him from service and it has been passed in viola tion of article 311.
That the said order is one removing the petitioner from service is also admitted by the respondents in paragraph 11 of the counter affidavit filed on their behalf by the Assistant Director of Education.
Assuming that the said order has been passed in violation of article 311, the said circumstance will not give a right to the petitioner to approach this Court under article 32.
The stand taken by the petitioner is that his right to get 41 1 S.C. India/71 642 pension is property and it does not cease to be property on the mere denial or cancellation by the respondents.
The order dated June 12, 1968 is one withholding the payment of pension or at any rate amounts to a denial by the respondents to his right to get pension.
Either way, his rights to property are affected under articles 19(1)(f) and 31(1) of the Constitution.
His right to pension cannot be taken away by an executive order.
In the counter affidavit, the respondents do not dispute the rights of the petitioner to get pension, but they take the stand that the order dated June 12, 1968 is justified by r. 46 of the Pension Rules.
This aspect will be dealt with by us later.
There is only a bald averment in the counter affidavit that there is no question of any fundamental right and therefore this petition is not maintainable.
As to on what basis this plea is taken, has not been further clarified in the counter affidavit.
But before us Mr. B. P. Jha, learned counsel for the respondents, urged that by withholding the payment of pension by the State, no fundamental rights of the peti tioner have been affected.
We are not inclined to accept the contention of Mr. Jha that no fundamental rights of the petitioner are affected by passing the order dated June 12, 1968. 'We will refer to the relevant Pension Rules bearing on the matter and also certain decisions.
In our opinion, the right to get pension is "property" and by withholding the same, the petitioner 's fundamental rights guaranteed under articles 19(1)(f) and 31(1) are affected.
As the matter is being discussed more fully in the latter part of the judgment, it is enough to state at this stage that the writ petition is maintainable.
Even according to the respondents the order dated June 12, 1968 has no independent existence and that order has been passed on the basis of the earlier order dated August 5, 1966.
In our opinion, if the order dated August 5, 1966 cannot be sustained, it will follow that the order dated June 12, 1968 will also fall to the ground.
Hence we will deal, in the first instance, with the validity of the order dated August 5, 1966.
The full text of the order dated August 5, 1966 passed by the Director of Public Instruction, Bihar, is as follows: "Number 7 / 07 / 60 Edn.3791 Sri Devaki Nandan Prasad, Sub Inspector of Schools, Deoghhar, having not been on his duties for more than 5 years since 1 3 60 has ceased to be in Government employ since 2 3 65 under rule 76 of the Bihar Service Code.
(Sd.) K. Ahmed Director of Public Instruction Bihar.
643 Memo No. 3791 Patna, dated 5th August, 1966.
Copy forwarded to Sri Devaki Nandan Prasad, New Yarpur, Patna for information.
Rule 76 of the Service Code reads as follows: "Unless the State Government, in view of the special circumstances of the case shall otherwise determine, A Government servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in Government employ.
" The essential requirement for taking action under the said rule is that the government servant should have been Continuously absent from duty for over five years.
Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years.
We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March 11, 1960 and he left the headquarters after obtaining the necessary sanction from his superior officers.
On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors.
It is not necessary for us to deal with this controversy, as under the rules absence for the period stated therein, either with or without leave, are both treated on the same basis.
According to the dates given in the order, the petitioner has not been on his duties for more than five years from March 1, 1960 and that he ceased to be in government employ from March 2, 1965.
According to the petitioner this order is illegal because he was on duty till March 10, 1960 in which case continuous absence of five years would not be completed on March 2, 1965.
But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years.
On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring orders of the civil court.
In this connection, on behalf of the petitioner, Mr. Bishan Narain, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that court.
He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any reply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared, illegal by the Munsif, Patna.
We have already referred 644 to the averments in the counter affidavit filed on behalf of the respondents.
So far as this aspect is concerned, it is admitted in paragraph 8 of the counter affidavit that the petitioner was on duty till March 10, 1960 and that he ceased to attend to his duty only from March 11, 1960.
Therefore, the averment of the petitioner that he was on duty till March 10, 1960 is accepted as correct by the respondents.
Therefore, it follows that even according to the respondents, the petitioner was absent from duty con tinuously for more than five years only from March 11, 1960 and he ceased to be in government employ on March 2, 1965.
Without anything more it can be easily said that this calculation is absolutely erroneous because from the dates mentioned above, the petitioner cannot be considered not to have been on duty for more than five years.
There is a slight shift in the stand taken by the respondents in the counter affidavit.
While they admit that the date from which the period of absence should be calculated is March 11, 1960 and not March 1, 1960, they have stated that the petitioner.
was absent from March 11, 1960 till August 5, 1966, the date on which the order was passed and hence he was continuously not in service for more than five years.
That is even the outer period given in the order dated August 5, 1966, namely, March 2, 1965 is changed by the respondents to the date of passing of the order dated August 5, 1966.
We will now proceed on the basis that the order dated August 5, 1966 should be read in such a manner that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966.
If the, respondents are able to establish this circumstance, it is needless to state that r. 76 of the Service Code will come into operation irrespective of the fact whether the petitioner was absent with or without leave.
According to the petitioner, he has not been continuously absent for over five years even during the above period as stated by the respondents.
It is now necessary to refer to certain proceedings connected with the title suit No. 86 of 1961 instituted by the petitioner in the Court of the Munsif III, Patna.
In that suit the petitioner challenged the order dated March 5, 1960 in and by which he was reverted to the lower division of the Subordinate Educational Service and a censure was directed to be recorded against his character roll.
According to the respondents in this suit Me order of censure passed on September 2, 1953 was also challenged.
On August 5, 1961, the Munsif passed an order restraining the present respondents from operating the punishment order passed on March 5, 1960 by the Director of Public Instruction on the petitioner till the disposal of the suit.
It is now admitted by the respondents that the petitioner was on duty till March 10, 1960 and 645 that he was absent only from March 11.
That there was an order of temporary injunction passed by the court restraining the respondents from giving effect to the order of March 5, 1960 is not challenged in the counter affidavit.
According to the petitioner he went on October 13, 1961 to join his post from which he was illegally reverted, but in spite of the order of the Munsif, Patna, the respondents did not permit him to join duty.
That he was prepared to join duty and work is clear from the letters written by the petitioner to the Director of Public Instruction on October 13, 1961, October 24, 1961 and November 1, 1961.
There was no reply by the respondents.
It is no doubt true that on April 3, 1962, the temporary injunction granted by the Munsif, Patna, was vacated by the Subordinate Judge.
On April 11, 1963 the title suit No. 86 of 1961 instituted by the petitioner was decreed and the respondents were prohibited from enforcing the order dated March 5, 1960 reverting the petitioner from the senior grade to the lower grade of the Subordinate Educational Service.
The petitioner again wrote a letter on April 18, 1963 to the Director of Public Instruction drawing the latter 's attention to the decree passed in title suit No. 86 of 1961 and requesting him to permit the petitioner to join duty as Deputy Inspector of Schools.
There was a reply on November 27, 1963 by the Director of Public Instructions to the effect that the plea of the petitioner has been considered at all levels of the Directorate and the Government.
The petitioner was directed to report himself to the Regional Deputy Director of Education, Bhagalpur Division and to join duty in "Lower Division of Subordinate Educational Service".
The letter proceeds to state "in case of disobedience of order you will be charged with insubordination".
We are constrained to remark that the attitude taken in this letter on behalf of the State is not commendable at all.
Admittedly there was a decree passed by the Munsif in title suit No. 86 of 1961 on April 11, 1963 restraining the respondents from giving effect to the order dated March 5, 1960 reverting the petitioner from the post of Deputy Inspector of Schools to the Lower Division of Subordinate Educational Service.
Admittedly the respondents were parties to the said decree and they had not obtained any order of an Appellate Court staying the operation of the decree in the suit.
The effect of the decree passed by the Munsif was that the petitioner was entitled to work in the original post which he was holding prior to his reversion.
That these aspects have been missed by the respondents is evident from the reply of November 27, 1963 sent by the Director of Public Instruction.
The petitioner sent a further letter dated December 6, 1963 in reply to the letter of the Director of Public Instruction dated November 27, 1963.
In this letter the petitioner again referred to the decree of the Munsif, Patna, dated April 11, 1963 and pointed out that he was entitled to hold the original post which he was occupying 646 prior to the order of reversion, which has; been directed not to be put into operation by the court.
He further pointed out that the directions contained in the letter dated November 27, 1963 sent by the Director of Public Instruction was not in conformity with the decree of the Munsif.
He further made a request that he should be allowed to join duty in the original post in the senior grade and also made a further request for payment of arrears of his salary.
There was no reply by the respondents and the petitioner was not allowed to join duty as desired by him.
The above correspondence is not at all disputed by the respondents.
In fact they have admitted in the counter affidavit that even after the order of injunction, the Department was always insisting on the petitioner joining duty as Sub Inspector of Schools, that is, in the lower grade and that the petitioner never joined duty in that post.
To complete the narration on this aspect the decree of the Munsif in favour of the petitioner restraining the respondents from enforcing the order dated March 5, 1960 was set aside on appeal by the Subordinate Judge on June 24, 1964 in title appeal No. 132/24 of 1963/64.
The petitioner 's Second Appeal No. 640 of 1964 was dismissed by the High Court on February 11, 1965.
From the narration of the above facts, it will be clear that from October 5, 1961, the date of temporary injunction granted by the Munsif, till April 3, 1962, when the order of temporary injunction was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post, which he was entitled to occupy by virtue of the order of injunction.
We have already referred to the fact that the petitioner sent letters dated October 5, 1961, October 13, 1961, October 20, 1961 and November 1, 1961 expressing his readiness and willingness to work in the senior post.
The respondents did not permit him to join duty.
Therefore, it cannot be said that the petitioner was absent from duty during this period.
Again on April 11, 1963, the Munsif granted a decree in favour of the petitioner in the suit.
The respondents did not obtain any stay order from the Appellate Court.
So the decree of the trial court was in full force till it was set aside on appeal on June 24, 1964.
During the period April 11, 1963, June 24, 1964, the petitioner wrote several letters and to which we have made a reference earlier, requesting the respondents to permit him to join duty in the senior grade.
The respondents did not permit him to join duty in the senior grade; but, on the other hand, insisted on the petitioner 's joining duty in the lower grade on threat of disciplinary action being taken.
This attitude of the respondents, we have already pointed out, was in flagrant violation of the order of the Munsif.
Therefore, during the period April 11, 1963 to June 24, 1963, it cannot be said that the petitioner was absent from duty.
Hence it will be 647 seen that the claim made by the respondents in the counter affidavit that the petitioner, since March 11, 1960 till August 5, 1966 was continuously not in service for over five years is fallacious.
There is no question of the petitioner not being in continuous service for over five years during the period referred to above.
On the other hand, the period during which it could be said ',,hat the petitioner was absent was from March 11, 1960, the date on which he claims to have gone on leave till October 5, 1961 when the order of temporary injunction was passed by the Munsif.
From October 5, 1961 to April 3, 1962, we have already pointed out, the petitioner cannot be considered to have been absent from duty.
Therefore, the continuity of absence is broken during this period.
The petitioner can again be considered to have been absent from duty from April 3, 1962, the date on which the order of temporary injunction was vacated by the Subordinate Judge, till April 11, 1963, the date on which a decree was granted by the Munsif in favour of the petitioner.
During this period he was absent.
But again the continuity of absence is broken during the period April 11, 1963 the date of the decree of the Munsif, till June 24, 1964, the date when the Subordinate Judge reversed the decree of the trial court.
We have already referred to the various letters written during this period by the petitioner as well as the reply sent by the Director of Public Instruction on November 27, 1963.
During this period he cannot be considered to be absent from duty.
The third period from which he can be again considered to be absent from duty is June 24, 1964, the date of the decree of the Subordinate Judge till August 5, 1966, the date on which the order was passed purporting to be under r. 76 of the Service Code.
The above circumstances clearly show that the petitioner cannot be considered to have been continuously absent from duty for over five years during the period March 11, 1960 to August 5, 1966.
if that is so, the essential condition for the application of r. 76 of the Service Code is lacking and, therefore, it follows that the order dated August 5, 1966 is not supported by r. 76 of the Service Code.
Therefore that order is illegal and has to be quashed.
A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of article 311 of the Constitution.
According to the respondents there is no violation of article 311.
On the other hand, there is an automatic termination of the petitioner 's employment under r. 76 of the Service Code.
It may not be necessary to investigate this aspect further because on facts we have found that r. 76 of the Service Code has no application.
Even if it is a question of automatic termination of service for being continuously absent for over a ' period of five years, article 311 applies to such cases as is laid down by this Court in Jai 648 Shanker vs State of Rajasthan (1).
In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations, which is as follows: "13.An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."
It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation.
This Court rejected the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it.
It was further held "to give no opportunity is to go against article 311 and this is what has happened here".
In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forefeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the said officer to receive pension.
It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed.
Hence there is a clear violation of article 311.
Therefore, it follows even on this ground the order has to be quashed.
The further question is about the legality of the order dated June 12, 1968 purporting to be passed under r. 46 of the Pension Rules.
The petitioner wrote a letter dated July 18, 1967 requesting the Director of Public Instructions to arrange for payment of his pension as he had attained the age of superannuation.
The order dated June 12, 1968 was passed in reply to the said request of the petitioner.
In this order it is stated that under r. 46 of the Pension Rules, the Department is unable to grant pension to the petitioner.
Rule 46 of the Pension Rules is as follows: "46.No pension may be granted to a Government servant dismissed or removed, for misconduct, insolvency or inefficiency, but to Government servants so dismissed or removed compassionate allowance may be granted when they are deserving of special consideration, provided that the allowance granted to any Government servant shall not exceed two thirds of the pension which (1) ; 649 would have been admissible to him if he had retired on medical certificate.
" It will be seen that under the said rule a Government servant who has been dismissed, or removed for misconduct, insolvency or inefficiency is not eligible for pension.
The respondents 'have admitted in their counter affidavit that the order dated August 5, .1966 purporting to be under r. 76 of the Service Code is an order of removal and it is further pleaded by them that the petitioner 's absence for over five years itself amounts to misconduct,duct and inefficiency in service.
We have already held that the ,order dated August 5, 1966, is illegal.
If that is so, it follows ,.that the petitioner has not been continuously absent from duty for over five years and he is not guilty of any misconduct or in efficiency in service.
Therefore, it will further follow that withholding of pension under the order dated June 12, 1968 on the basis of r. 46 of the Pension Rules, is illegal.
The respondents have not taken up the position that the offic ers like the petitioner are not entitled to pension.
A reference to r. 5 of the Pension Rules shows that the officers mentioned therein are entitled to pension.
There is no controversy that the petitioner is an officer in the Education Department of the Bihar 'Education Service.
It is item No. 3 of the Schedule to r. 5.
Rule 42 declares that every pension shall be held to have been granted Subject to the conditions contained in Chapter VIII.
It is not the case of the respondents that Chapter VIII which applies to re employment of pensioners, has any relevancy to the case on hand.
We have already referred to r. 46.
Under that rule a Government servant dismissed or removed for misconduct, insolvency or 'inefficiency is not eligible for pension.
But that rule clearly con templates that action by way of dismissal or removal in respect of the three matters mentioned therein has already taken place according to law.
The bar under r. 46 will operate only when the conditions mentioned therein are satisfied.
In fact the consequences envisaged under the rule flow from the action already taken.
Rule 129 provides for the payment of superannuation pension to a Government servant entitled or compelled by the ,rules to retire at a particular age.
Rule 134 clarifies the payment of retirement pension to a Government servant permitted to retire after completing qualifying service for 30 years or any such less ,time as may for any special class of Government servants be prescribed.
Rule 135 provides for Government servants mentioned in r. 5 to be entitled on their resignation being accepted to a retiring pension after completing qualifying service of not less than 25 years.
Rule 146 provides the scale of pension for Government servants mentioned in r. 5.
We have only referred to some of the important rules to show that the payment of pension does not depend upon the discretion of the State; but, on the 650 other hand, payment of pension is governed by the Rules and a Government servant coming Within the Rules is entitled to claim pension.
The order dated June 12, 1968 has to be quashed in view of the fact that the foundation for the said order is the one based on the order dated August 5, 1966, which has been quashed by us.
When the order dated August 5, 1966 can no longer survive, the order dated June 12, 1968 quite naturally falls to the ground.
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.
According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 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 August 5, 1966.
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(t) of the Constitution.
We are not inclined to accept the contention of the learned counsel for the respondents.
By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect.
It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules.
The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein.
651 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 vs Union of India (1).
It was held that such a right constitutes "property" and any interference will be a breach of article 3 1 (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 vs Bhagwant Singh (2)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 3 1 (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.
The matter again came up before a Full Bench of the Punjab and Haryana High Court in K. R. Erry vs The State of Punjab (1).
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 (1) A. T. R. 1962 Punjab Punjab 1.(3) I. L. R. 1967 Punjab & Haryana 278 652 before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer.
That question does not arise for consideration before us.
Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer.
Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect.
But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
This Court in State of Madhya Pradesh vs Ranojirao Shinde and another (1) 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 tight to sum of money is property".
Having due regard to the above decisions, we are of the opi nion that the right of the petitioner to receive pension is property under article 3 1 (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 fight 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.
To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967.
Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953.
Further, the representations made (1) ; 653 by him for cancellation of the said order have been rejected long ago.
Further, there is no infringement of any fundamental right of the petitioner by that order.
The order dated August 5, 1966 declaring under r. 76 of the Service Code that the petitioner has ceased to be in government employ is set aside and quashed.
The order dated June 12, 1968 stating that under r. 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed.
As the petitioner himself claims that he has been retired from service on superannuation, a writ of mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law.
The writ petition is allowed to the extent indicated above.
The petitioner is entitled to his costs from the first respondent, the State of Bihar.
V.P.S. Petition allowed.

dataset_name: IN-Abs

summary:
The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent State.
On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner.
On March 5, 1960, he was reverted to the Lower Division of the Subordinate Educational Service, as a result of an inquiry into certain charges.
He filed a suit challenging the two orders.
On August 5, 1961, the Munsiff passed an order restraining the respondent from enforcing the order dated March 5, 1960.
On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge.
On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960.
This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner 's second appeal was dismissed by the High Court on February 11, 1965.
On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five years since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code. ' The petitioner having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her.
pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension.
The petitioner filed the present writ petition under article 32 challenging the various orders.
HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal.
(b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner.
[652G H 653A B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in Government service should be set aside.
[653 A B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years.
Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years.
Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960.
Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous. ' [643C D, E; 644A C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal.
From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post in spite of several letters written by him.
Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964.
During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so.
Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable.
[644E F; 645A D,G; 646D H; 647A B,E F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, article 311 applies to such cases also.
According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension.
The respondent did not give an opportunity to the petitioner to show cause against the order proposed.
Hence there was violation of article 311.
[647GH ; 648D E] Jai Shankar vs State of Rajasthan, ; , followed.
(3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside.
[649C] Payment of pension under the rules does not depend upon the discretion of the State Government but is governed by the rules and a government servant, coming within those rules is entitled to claim pension.
Under r. 46 a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension.
In the present case it was contended that the petitioner 's absence for over five years, amounted to misconduct and inefficiency in service.
But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground.
[649B C;D H;65OA B] (4) The grant of pension does not depend upon any order.
It is only for the purpose of quantifying the amount having regard to the service and other allied matters that 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 any such order but by virtue of the rules.
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 it.
Similarly, the said claim is also property under article 19(1) (f).
It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable.
[650G H; 652B C, D F] K. R. Erry vs State of Punjab, I.L.R. [1967] Punjab & Haryana 279, (F.B) approved.
636 (5) The bar against the Civil Court entertaining any suit relating to the matters under the Pension Act 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.


judgement:
Appeal No. 564 of 1967.
Appeal by special leave from the judgment and order dated August 9, 1966 of the Allahabad High Court in S.T.R. No. 563 of 1962.
P. Rana, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Grover, J.
The only point for decision in this appeal by special leave is whether the cloth manufactured by means of 942 looms worked by power can be regarded as "cloth manufactured by mills" for which sales tax was payable at the rate of 6 pies in a rupee in terms of the notification dated June 8, 1948 issued under section 3A of the U.P. Sales Tax Act, 1948.
The general rate of tax on sale of cloth otherwise was 3 pies per rupee.
The High Court on a reference made under the relevant provisions of the Act held that cloth manufactured by means of power looms could not fall under the term "cloth manufactured by the mills".
The approach of the High Court was that since the word "mills" had not been defined either by the Act or by the notification mentioned before the meaning of the words "cloth manufactured by the mills" must be considered according to the common understanding of mankind.
Reference was made to the dictionary meaning as given in Webster ' New International Dictionary, Vol. 2.
According to the dictionary two things were required (1) a building and (2) a machinery, in order to constitute a "mill".
The meaning of the word "machine", according to the dictionary in a popular and mechanical sense is. . . . more or less complex combination of mechanical parts, as levers, gears sprocket wheels, pulleys, shafts and spindles, ropes, chains, and bands, cams and other turning and sliding pieces, springs, confined fluids etc., together with the frame work and fastenings, supporting and connecting them, as when it is designed to operate upon material to change it in some pre conceived and definite manner. . .
According to the High Court looms which are merely worked by power would hardly fall within the meaning of the word "ma chine".
It has been pointed out that looms worked by hand or by power have not been shown by any evidence to be different.
It does not appear to have been disputed before the High Court that a building having looms worked by manual labour would not be a mill.
The court found no difference between building containing looms worked by manual labour or by power.
According to Words and Phrases, Vol.
27 the term "mill" in modem usage, includes various machines or combinations of machinery, as cotton mills, fulling mills, powder mills, etc., to some of which the term "manufactory" or "factory" is also applied.
In our judgment although the dictionary meaning may be of considerable assistance in deciding the point before us but what has to be seen is the context in which the word "mills" is used in the notification.
It is common ground that if cloth was manufactured by looms worked by manual labour the notification was not applicable and the rate of tax per rupee was 3 pies but if he cloth was manufactured by mills then the rate was to be 6 pies.
Thus cloth has been divided broadly into two categories, mill made and loom made.
It is quite obvious that loom made cloth would include all cloth manufactured on looms.
It is difficult to understand how the energy by which the looms are worked 943 would make any difference.
In other words whether the energy is supplied manually or by power cannot convert the essential character of the cloth, namely, its manufacture on looms.
As regards mill made cloth the actual process of weaving Is more or less automatic, preconceived and definite and it involves the functioning of machinery.
Ramchandra Iyer J., in Sri Dhandapani Power loom Factory, Erode vs Commercial Tax Officer, Coimbatore and Anr.(1), was right in observing that mill cloth is a familiar variety of cloth and everybody knows what a am is.
In popular language, a power loom cloth is never associated with a mill cloth.
According to Mcnaghten J., in Ellerker vs Union Cold Storage Co. Ltd., (2) a mill is building where goods are subjected to treatment or processing of some sort and where machinery is used for that purpose.
The illustrations given were: "The miller in his corn mill grinds wheat into flour, ,or oats into oatmeal.
So too, at a scutching mill the miller scutches the flax, to prepare it for spinning.
The saw mill, the rolling mill, the flatting mill, the puffing mill and the cotton mill are all buildings where goods are treated or subjected to some process.
" It must be remembered that the meaning of the word "mill" ,or "mills" would vary according to the context in which that word is used.
In the above case a company carried on a large ,cold storage business.
In some of the cold stores part of the building was used for the manufacture of ice for sale; others were ,only used for the purpose of storage.
It was held that all the premises fell within the meaning of the words in Schedule D Cases 1 and 11, r. 5(2) of the Income tax Act which were : Mills factories or other similar premises.
Counsel for the appellant has sought to argue that once the looms worked by power are used In a building the essential characteristics of "mills" would be satisfied and if any cloth is manufactured on those looms it would be cloth manufactured by " mills" within the meaning of the notification.
The falacy (1) 12 section T. C. 304.
(2) 944 in this argument is that by the same reasoning a building in which looms worked by manual labour are to be found would also have to be regarded as "mills".
This would be contrary to the accepted and popular meaning of handloom or power loom cloth and mill made cloth.
We are satisfied that the distinction which was kept in view when the notification was promulgated was between the aforesaid two categories or types of cloth involving essentially a difference in the process by which it was manufactured.
We would accordingly uphold the view of the High Court and dismiss the appeal.
There will be no order as to costs.
K. B.N. Appeal dismissed.

summary:
Under the notification dated June 19, 1948 issued under section 3(A) of the U.P. Sales Tax Act, 1948, sales tax at the rate of 6 pies in a rupee was payable on "cloth manufactured by mills".
Tax at that rate was sought to be levied on cloth manufactured by means of looms worked by power on the basis that it was "cloth manufactured by mills" within the meaning of the notification.
The High Court held that cloth manufactured by power looms could not fall under the term "cloth manufactured by mills".
Dismissing the appeal, HELD:What has to be seen is the context in which the word "mill" is used in the notification.
The notification, divides cloth broadly into two categories mill made and loom made.
Loom made cloth would include all cloth manufactured on looms and, therefore, whether the energy is supplied manually or by power cannot convert the essential character of the cloth, namely, its manufacture on looms.
As regards mill made cloth the actual process of weaving is more or less automatic, pre conceived and definite and it involves functioning of machinery.
In popular language a power loom cloth is never associated with a mill cloth.
[942H943A] Further, it cannot be said that once the looms worked by power are used in a building the essential characteristics of mills would be satisfied.
To hold so would be contrary to the accepted and popular meaning of hand loom or power loom cloth and mill made cloth.
The distinction which was kept in view when the notification was promulgated was between the aforesaid two categories or types of cloth involving essentially a difference in the process in which it was manufactured.
[943H 944B] Sri Dhandapani Power Loom Factory, Erode vs Commercial Tax Officer, Coimbatore & Anr., 12 S.T.C. 304 and Ellerker vs Union Cold Storage Co. Ltd., , referred to.