# No. 7591 of 2006 Nem Singh v. State

- **Citation:** (2009) 3 ILRA 929
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-08
- **Case number:** Civil Misc. Writ Petition No.42992 of 1992
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-7591-of-2006-nem-singh-v-state-41571
- **Pages:** 6

## Headnote

Constitution of India-Article 27-Pensionpetitioner retired from post of Naib
Tehsildar-25
years
regular
workingw.e.f. October, 1976 pension with heldNo proper reply given for non-paymentheld-arbitrary
and
unconstitutionalentire amount be paid within 4 months,
with 8% interest-cost of Rs.50,000/-
awarded.

Held: Para 7

In the entire counter affidavit there is no
averment
providing
any
justification
whatsoever, for non-payment of pension
within
a
reasonable
time
to
the
petitioner. Once it is not disputed that
the employee after getting voluntary
retirement from service was entitled for
pension and other retiral benefits and
non payment thereof without any reason
or justification is ex facie arbitrary, it
entitled the incumbent covered, interest
which is compensatory in nature.
Case law discussed:
1983 (1) SCC 305, AIR 2003 SC 2189, 1972
AC 1027, 1964 AC 1129, JT 1993 (6) SC 307,
JT 2004 (5) SC 17, (1996) 6 SCC 530, (1996)
6 SCC 558, AIR 1996 SC 715, 2007(8) ADJ

## Text

3 All] Deo Datt Sharma V. State of U.P. and others
929
1994 Act. This aspect has recently been
considered in Civil Misc. Writ Petition
No. 7591 of 2006 Nem Singh Vs. State
of U.P. and others decided on decided on
2.9.2009
wherein
following
earlier
judgment of this Court in Smt. Pholpati
Devi Vs. Smt. Asha Jaiswal and others
2009(2) ADJ 90 and after referring to
relevant passages therefrom, this Court
held as under :

"13. In view of the above exposition
of law the clubbing of vacancies which
were to be filled in by promotion
alongwith those which were to be filled in
by direct recruitment was impermissible
in law and the impugned order having
been passed ignoring this aspect of the
matter is wholly illegal."

12. In view of above exposition of
law, unless there being four posts of Class
III available for direct recruitment,
reservation under 1994 Act for O.B.C.
can not be applied against any of the posts
in Class III. The decision of the
Management to the extent they propose to
fill in the post in question by keeping it
reserved for O.B.C. is, therefore, illegal
and liable to be set aside.

13. In view of the above, the writ
petition succeeds partly. The impugned
advertisement insofar as it reserved the
vacancy in question for O.B.C. is hereby
quashed. The respondent no. 4 is directed
to advertise the vacancy afresh for making
recruitment
treating
the
vacancy
unreserved. However, the petitioner being
not entitled for promotion, no effective
relief can be granted to him.

14. No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.42992 of 1992

Deo Dutt Sharma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ranjit Saxena

Counsel for the Respondent:
Sri Kripa Shanker Singh
S.C.

Constitution of India-Article 27-Pensionpetitioner retired from post of Naib
Tehsildar-25
years
regular
workingw.e.f. October, 1976 pension with heldNo proper reply given for non-paymentheld-arbitrary
and
unconstitutionalentire amount be paid within 4 months,
with 8% interest-cost of Rs.50,000/-
awarded.

Held: Para 7

In the entire counter affidavit there is no
averment
providing
any
justification
whatsoever, for non-payment of pension
within
a
reasonable
time
to
the
petitioner. Once it is not disputed that
the employee after getting voluntary
retirement from service was entitled for
pension and other retiral benefits and
non payment thereof without any reason
or justification is ex facie arbitrary, it
entitled the incumbent covered, interest
which is compensatory in nature.
Case law discussed:
1983 (1) SCC 305, AIR 2003 SC 2189, 1972
AC 1027, 1964 AC 1129, JT 1993 (6) SC 307,
JT 2004 (5) SC 17, (1996) 6 SCC 530, (1996)
6 SCC 558, AIR 1996 SC 715, 2007(8) ADJ
553.
930 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
for the state.

2. The only grievance of the
petitioner is that he retired on 21st
October, 1976 from the post of Naib
Tehshildar seeking voluntary retirement
from service after about 25 years but his
pension and other retiral benefits were not
paid by the respondents at all.

3. In the counter affidavit the
respondents
have
said
that
interim
pension was paid to the petitioner
pursuant to the order dated 21.01.1994
passed by the Board of Revenue along
with interim gratuity of Rs.5148/-. (The
period of interim pension mentioned in
para 16 does not appear to be correct in as
much as the same is mentioned as
23.10.1976 to 22.10.1976 though the
petitioner himself has retired voluntarily
on 21st October, 1976).

4. The learned counsel for the
petitioner submitted that as per his
instructions some further amount of
pension was paid in the year 1996. He
contended that not only there was extra
ordinary delay in making payment of the
pension which the petitioner was legally
entitled to but there is also no justification
for such extreme delayed payment.
Therefore, the petitioner is also entitled to
interest @ 18% on the amount of pension
up to the day of actual payment.

5. Pension and retiral benefits of an
employee or his family is a right and
cannot be said to be bounty is now well
settled. The Apex Court, in D.S. Nakara
Vs. Union of India 1983 (1) SCC 305
held as follows:

"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.
(Para 20).
In the course of transformation of society
from feudal to welfare and as socialistic
thinking acquired respectability, State
obligation to provide security in old age,
an escape from underserved want was
recognized and as a first steps pension
was treated not only as a reward for past
service but with a view to helping the
employee to avoid destitution in old age.
The guid pro quo was that when the
employee was physically and mentally
alert, he rendered not master the best,
expecting him to look after him in the fall
of life. A retirement system therefore
exists solely for the purpose of providing
benefits. In most of the plans of retirement
benefits, everyone who qualifies for
normal retirement receives the same
amount. (Para 22).
Pensions to civil employees of the
Government and the defence personnel as
administered in India appear to be a
compensation for service rendered in the
past. (Para 28).
Summing up it can be said with
confidence that pension is no 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
3 All] Deo Datt Sharma V. State of U.P. and others
931
on savings. One such saving in kind is
when you give your best in the hey-day 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.
(Para
29)"
(emphasis added)

6. That being so, non payment of
pension or family pension to an employee
or his family in accordance with law to
the extent he/she is entitled amounts to
denial
of
right
to
earn
livelihood
enshrined
under
article
21
of
the
Constitution. The expression 'right to life'
in Article 21 of the Constitution does not
denote a mere physical or animal
existence. The 'right to life' includes 'right
to live with human dignity'. In A. K.
Bindal and another Vs. Union of India
and others AIR 2003 SC 2189 it was
held that 'right to life' enshrined under
Article 21 means something more than
bare survival or animal existence. The
Court referred to it earlier decision in
State
of
Maharashtra
Vs.
Chandrabhan AIR 1983 SC 803 where
payment
of
very
small
subsistence
allowance
to
an
employee
during
suspension was held wholly insufficient
to sustain his living and, was held to be
violative of Article 21 of the Constitution.

7. In the entire counter affidavit
there is no averment providing any
justification whatsoever, for non-payment
of pension within a reasonable time to the
petitioner. Once it is not disputed that the
employee
after
getting
voluntary
retirement from service was entitled for
pension and other retiral benefits and non
payment thereof without any reason or
justification is ex facie arbitrary, it
entitled the incumbent covered, interest
which is compensatory in nature.

8. Regarding harassment of a
Government
employee
referring
to
observations of Lord Hailsham in Cassell
& Co. Ltd. Vs. Broome, 1972 AC 1027
and Lord Devlin in Rooks Vs. Barnard
and others 1964 AC 1129, the Apex
Court
in
Lucknow
Development
Authority Vs. M.K. Gupta JT 1993 (6)
SC 307 held as under;

"An Ordinary citizen or a common
man is hardly equipped to match the
might of the State or its instrumentalities.
That is provided by the rule of law....... A
public functionary if he acts maliciously
or oppressively and the exercise of power
results in harassment and agony then it is
not an exercise of power but its abuse. No
law provides protection against it. He
who is responsible for it must suffer
it...........Harassment of a common man by
public authorities is socially abhorring
and legally impermissible. It may harm
him personally but the injury to society is
far more grievous." (para 10)

9. The above observation as such
has
been
reiterated
in
Ghaziabad
Development Authorities Vs. Balbir
Singh JT 2004 (5) SC 17.

10. In the case of Registered
Society Vs. Union of India and Others
(1996) 6 SCC 530 the Apex court said as
under:
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"No public servant can say "you may
set aside an order on the ground of mala
fide but you can not hold me personally
liable" No public servant can arrogate in
himself the power to act in a manner
which is arbitrary".

11. In the case of Shivsagar Tiwari
Vs. Union of India (1996) 6 SCC 558 the
Apex Court has held as follows:

"An arbitrary system indeed must
always be a corrupt one. There never was
a man who thought he had no law but his
own will who did not soon find that he
had no end but his own profit."

12.

In
the
case
of
Delhi
Development Authority Vs. Skipper
Construction and Another AIR 1996
SC 715 has held as follows:

"A democratic Government does not
mean a lax Government. The rules of
procedure and/or principles of natural
justice are not mean to enable the guilty to
delay and defeat the just retribution. The
wheel of justice may appear to grind
slowly but it is duty of all of us to ensure
that they do grind steadily and grind well
and truly. The justice system cannot be
allowed to become soft, supine and
spineless."

13. A Division Bench (Lucknow
Bench) of this Court (in which I was a
member) in Kunwar Bahadur Saxena
Vs. State of U.P. and others, 2007(8)
ADJ 553 held as under:

"Interest on the amount of retiral
benefits is not only compensatory but is a
statutory liability of the respondents to
pay the same for the reason that the
amount deducted from the petitioner's
salary remain with the respondents and
they may have utilized the same for their
own purpose hence entitling the petitioner
for payment of interest on the said
amount. Had the amount of retiral
benefits been paid in time to the
petitioner, he could have invested the
same for better utilization so as to live an
honerable life after retirement in the
absence of any other source of earning
livelihood . The attitude and conduct of
the respondents borne out from the record
is nothing but is reprehensible and should
be condemned in strongest words. It is no
doubt true that an employer for just and
valid reasons and in exercise of power
vested in it can defer or deny pension and
other retiral benefits to an employee
provided the action of the employer is in
accordance with the procedure prescribed
in law and such a power also emanates
from statute or the relevant provisions
having force of law. In our system, the
Constitution being supreme, yet the real
power vest in the people of India since the
Constitution has been enacted "for the
people, by the people and of the people".
A public functionary cannot be permitted
to act like a dictator causing harassment
to a common man and in particular when
the person subject to harassment is his
own ex-employee who has served for a
long time and has earned certain benefits
under
the
rules
recoverable
after
attaining the age of superannuation.
Pension and retiral benefits are not
bounty
but
right
of
an
employee
crystallized in deferred wages to which he
is entitled under the rules after retirement
and non payment thereof is clearly
violative of Article 21 of the Constitution
of India. Therefore, it becomes more
important for the public functionaries and
the authorities to act with better sense of
responsibility so that their ex-employee
3 All] Deo Datt Sharma V. State of U.P. and others
933
may not be subject to harassment at the
old age when they have already retired
and have to survive and maintain
themselves and their family with the
meagre amount payable in the form of
retiral benefits. The respondents being a
State Government and function through
its
officers
appointed
in
various
department is suppose to discharge his
duty strictly in accordance with law as
observed
under
our
Constitution,
sovereignty vest in the people. Every limb
of the constitutional machinery therefore
is obliged to be people oriented. Public
authorities
acting
in
violation
of
constitutional or statutory provisions
oppressively are accountable for their
behaviour. It is high time that this Court
should remind the respondents that they
are expected to perform in a more
responsible and reasonable manner so as
not to cause undue and avoidable
harassment to the public at large and in
particular their ex-employees like the
petitioner. The respondents have the
support of the entire machinery and the
various powers of the statute and an
ordinary citizen or a common man is
hardly equipped to match such might of
the
State
or
its
instrumentalities.
Harassment of a common man by public
authorities is socially abhorring and
legally impressible. This may harm the
common man personally but the injury to
society is far more grievous. Crime and
corruption, thrive and prosper in society
due to lack of public resistance. An
ordinary citizen instead of complaining
and fighting mostly succumbs to the
pressure of undesirable functioning in
offices instead of standing against it. It is
on account of, sometimes, lack of
resources or unmatched status which give
the feeling of helplessness. Nothing is
more damaging than the feeling of
helplessness. Even in ordinary matters a
common man who has neither the
political
backing
nor
the
financial
strength to match the inaction in public
oriented departments gets frustrated and
it erodes the credibility in the system. This
is unfortunate that matters which require
immediate attention are being allowed to
linger on and remain unattended. No
authority can allow itself to act in a
manner
which
is
arbitrary.
Public
administration no doubt involves a vast
amount of administrative discretion which
shields action of administrative authority
but where it is found that the exercise of
power is capricious or other than bona
fide, it is the duty of the Court to take
effective steps and rise to the occasion
otherwise the confidence of the common
man would shake. It is the responsibility
of the Court in such matters to
immediately rescue such common man so
that he may have the confidence that he is
not helpless but a bigger authority is
there to take care of him and to restrain
the arbitrary and arrogant unlawful
inaction or illegal exercise of power on
the part of the public functionaries.
In a democratic system governed by
rule of law, the Government does not
mean a lax Government. The public
servants hold their offices in trust and are
expected to perform with due diligence
particularly so that their action or in
action may not cause any undue hardship
and harassment to a common man.
Whenever it comes to the notice of this
court that the Government or its officials
have acted with gross negligence and
unmindful action causing harassment of a
common and helpless man, this court has
never been a silent spectator but always
reacted to bring the authorities to law."
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
14. In the result the writ petition
succeeds and is allowed with the
following directions:

1. The amount of pension and other
retiral benefits if not already paid to the
petitioner, shall be paid finally to
petitioner within three months.

2. On the amount of pension and other
retiral benefits already paid and would be
paid pursuant to the above direction, the
petitioner shall be entitled to interest at
the rate of 8% commencing from the date
after one month from the date of his
retirement till actual payment. This
amount shall also be determined by the
respondents and paid to the petitioner
within three months from the date of
production of copy of this order.

3. The petitioner shall also be entitled
to cost which is quantified to Rs.50,000/-.
(Rs. Fifty Thousand Only)
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED ALLAHABAD O7.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No.18612 of 1992.

Dinesh Kumar Pandey
...Appellant
Versus
District Judje, Ballia
...Opposite Party

Counsel for the Applicant:
Sri S.N.Srivastava
Sri Awdhesh Tiwari
Sri G.P.Tripathi
Sri Ram Gopal Tripathi

Counsel for the Opposite Party:
S.C.
Constitution of India Art 226-civil court
ministerial Establishment rules 1947Rule 9-Termination Order-appointment
of petitioner as stenographer-on adhoc
basis
without
advertisement-without
considering
the
availability
of
post
subsequent appointment on probation
basis-regular working for considerable
period- in garb of interim order - illegalheld
termination
order
requires
no
interference.

Held Para 18

The learned counsel for the petitioner
submitted that since he has continued
for almost 17 years pursuant to the
interim order passed by this Court,
therefore, it would be extremely harsh at
this fag end to tell him that his
continuance in service is bad and hence
this Court should permit him to continue.
I am afraid that such relief is also
impermissible in this case. This Court
would be failing in its constitutional
obligation
of
ensuring
that
the
fundamental rights are not infringed at
all when it comes before the Court that
the
fundamental
rights
have
been
infringed by the State authorities with
impunity. This Court is under the oath to
act and implement rule of law. It cannot
permit continuance of its breach any
more. This Court must straightway come
forward
for
observance
of
the
constitutional
provisions
and
in
particular fundamental rights instead of
acting
in
a
manner
which
would
encourage such infringement further.
Case law discussed:
2007 (2) ESC 987

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ram Gupta Tripathi,
learned counsel for the petitioner. Despite
of the case having been taken in the
revised list, none appeared on behalf of
the respondent.