# Prof. Ranjana Sharma & Anr v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 869
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Writ-A No. 3180 of 2023
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-ranjana-sharma-anr-v-state-of-u-p-ors-50622
- **Pages:** 13

## Headnote

A. Service Law - Constitution of India -
Article 300-A - UP Retirement Benefits
Rules, 1961 - Rules 5 and 9 - Right to
property
-
Gratuity
and
pension
-
Depriving the petitioner by an executive
order - Permissibility - Held, right to
pension and gratuity flow in favour of the
petitioners by virtue of the mandate of
Rules, 1961 - Taking away the gratuity by
an executive order is not permissible -
High Court held it clear violation of Article
300-A of the Constitution of India - Dr.
Hira
Lal's
case
and
Jitendra
Kumar
Srivastava's case relied upon. (Para 14,
15, 16 and 20)

B. Service Law - Constitution of India -
Article
14
-
Right
to
equality
-
Discrimination - While the petitioner,
being doctor of a medical college was
refused to get the benefit of gratuity, the
same benefit has been granted to the
doctors working in the Provincial Health
Services even when the age of such
doctors were increased from 60 to 62
years and were paid salaries for the
extended period - Held, it is a clear
violation of Article 14. (Para 20)

Writ petition allowed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,806 of 44,843. This is a partial read: ask again with offset=39806 for what follows._

8 All. Prof. Ranjana Sharma & Anr. Vs. State of U.P. & Ors.
869
preferably within a period of six months
from the date a certified copy of this
judgment is filed by the petitioners before
him.

26. It is made open to both the parties
to lead such further evidence, particularly,
documentary in support of their respective
cases, as may be advised. The Labour Court
shall consider all evidence before it
including any further evidence, if led, as
dirrected hereby, before making a fresh
award. It is also made clear that all
submissions advanced before this Court
would remain open to the parties to urge
before the Labour Court, except the one
relating to lack of jurisdiction with the
Labour Court to pronounce upon the
workmen's
case
that he
is
seasonal
workman, and not temporary. It is also
clarified that the possibility of one inference
that the Labour could have drawn from the
evidence in favour of workman mentioned
hereinabove, shall in no way be construed as
an exdxpression of opinion on this issue.
The Labour Court shall be absolutely free to
draw its own conclusions on the issue,
whether the workmen on the evidence on
record is entitled to the status of seasonal
workmen under the Standing Orders.

27. There shall be no order as to costs
in any of writ petitions decided today.
----------
(2023) 8 ILRA 869
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.08.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 3180 of 2023

Prof. Ranjana Sharma & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Abhineet Jaiswal, Gaurav Mehrotra

Counsel for the Respondents:
C.S.C.

A. Service Law - Constitution of India -
Article 300-A - UP Retirement Benefits
Rules, 1961 - Rules 5 and 9 - Right to
property
-
Gratuity
and
pension
-
Depriving the petitioner by an executive
order - Permissibility - Held, right to
pension and gratuity flow in favour of the
petitioners by virtue of the mandate of
Rules, 1961 - Taking away the gratuity by
an executive order is not permissible -
High Court held it clear violation of Article
300-A of the Constitution of India - Dr.
Hira
Lal's
case
and
Jitendra
Kumar
Srivastava's case relied upon. (Para 14,
15, 16 and 20)

B. Service Law - Constitution of India -
Article
14
-
Right
to
equality
-
Discrimination - While the petitioner,
being doctor of a medical college was
refused to get the benefit of gratuity, the
same benefit has been granted to the
doctors working in the Provincial Health
Services even when the age of such
doctors were increased from 60 to 62
years and were paid salaries for the
extended period - Held, it is a clear
violation of Article 14. (Para 20)

Writ petition allowed. (E-1)
List of Cases cited:
1. Dr. Hira Lal Vs St. of Bihar & ors.; (2020) 4
SCC 346
2. St. of Jharkhand & ors. Vs Jitendra Kumar
Srivastava & anr.; (2013) 12 SCC 210
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Gaurav Mehrotra,
learned Counsel for the petitioners and
learned Standing Counsel.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Despite stop order passed on
23.05.2023 granting four weeks' and no
more time to file counter affidavit, the State
has chosen not to file the counter affidavit.
The instructions have been produced by the
learned Standing Counsel indicating the
reasons, as to why, the claim of the gratuity
is not being paid to the petitioners. The said
instructions are taken on record and the
matter is decided finally as the issue hinges
upon the interpretation of legal grounds,
there being no dispute on facts.

3. The facts in brief are that the
petitioners no.1 and 2 were appointed in the
Ganesh
Shankar
Vidyarthi
Memorial
Medical College, Kanpur and in the
Medical College, Meerut respectively and
continued to serve till attaining the age of
superannuation,
however,
the
State
Government with a view to tide over the
requirement of super specialty doctors,
issued
a
Government
Order
dated
06.02.2015 increasing the age of retirement
from 60 years to 65 years, a copy whereof
has been filed as (Annexure-7) to the writ
petition. It appears from the record that on
attaining the age of superannuation i.e. 60
years, the petitioner no.2 applied for
voluntary retirement, however, no orders
were passed and both the petitioners, in the
absence of any order on the voluntary
retirement application of petitioner no.2,
continued to serve till they attained the age
of 65 years. After the retirement, the
grievance of the petitioners is that they
have not been paid the death-cumretirement gratuity, to which, they are
entitled
as
well
as
the
benefit
of
commutation of pension. It bears from
record that a doctor similarly placed who
was denied the said benefit had approached
this Court by filing Writ-A No.281 of 2022
(Dr. Suneel Kumar Garg vs State of U.P.
and others), which was disposed off, vide
order dated 10.02.2022, directing the
respondents State Government to take a
decision on the grievance of the petitioner
of Writ-A No.281 of 2022. In response to
the said directions, an order came to be
passed on 13.12.2022 in respect of the said
petitioner of Writ-A No.281 of 2022
denying the benefits of payment of gratuity
to him. In the order dated 13.12.2022, the
reasons recorded for denying the said
benefits are contained in paragraph 3 of the
said order noticing that it came to the
knowledge of the authority that in similar
circumstances in respect of the teachers
working with Basic Shiksha, Madhyamik
Shiksha, High Education and Technical
Education where the age of retirement was
extended but the gratuity is not being paid to
the said persons and drawing parallel from
that, the petitioners, whose services were
extended from 60 years to 65 years also do
not appear to be entitled for payment of
gratuity. The said order further records that
the petitioners were will within their rights to
have opted for voluntary retirement despite
knowing their rights, continued to work till
65, thus they were not entitled for gratuity.
Based
upon
the
said
reasoning,
the
representation of the petitioner Dr. Suneel
Kumar Garg stood rejected.

4. The contention of the Counsel for
the petitioner Gaurav Mehrotra is that the
petitioners are similarly situated as Dr.
Suneel Kumar Garg, whose representation
for payment of gratuity was rejected. The
reasoning recorded for non-payment of the
gratuity would squarely apply to the
petitioner no.2 and partly on the petitioner
no.1 and, thus, the present petition has been
filed seeking the benefit of death-cumretirement gratuity and the benefit of
commutation of pension and that this Court
may decide the issue as the stand of the
State is now clear.
8 All. Prof. Ranjana Sharma & Anr. Vs. State of U.P. & Ors.
871

5. Sri Gaurav Mehrotra, learned
Counsel for the petitioners argues that the
entitlement of the death-cum-retirement
gratuity and commutation of pension flow
in favour of the petitioners in terms of the
Uttar Pradesh Retirement Benefit Rules,
1961 (hereinafter referred to as 'the 1961
Rules) and the same could not have been
taken away except in accordance with law,
as according to him, the gratuity and
pension are the rights which cannot be
taken away except in accordance with 'law'
in terms of the mandate of Article 300-A of
the Constitution of India. He argues that
there is no 'law' framed by the State in
pursuance to the mandate of Article 300-A
so as to deny the benefit of gratuity. He
further argues that reasoning as are
available and discerned from the document
on record that the benefit of gratuity has
been denied to the petitioners in terms of
the executive order passed by the State
Government on 01.04.2021 wherein, in
respect of the grant of pension and gratuity
as well as commutation, the resolution and
the decision of the KGMU University dated
19.07.2019 was adopted by the State
Government with regard to the pension,
gratuity and commutation. He draws my
attention to the decision taken by the
KGMU in respect of the grant of benefit
including the commutation of pension,
gratuity and pension in respect of persons
who had served after the date of retirement
for an extended period of five years a
decision was taken by the University that
they would not be entitled to the benefit of
gratuity and the commutation of pension.

6. He argues that the decision of the
University has been adopted by the State
Government but the same would still not
fall within the scope of 'law', which is
required to deny or take away the benefit in
terms of the mandate of Article 300A. He
places reliance on the judgment in the case
of Dr. Hira Lal vs State of Bihar and
others; (2020) 4 SCC 346.

7. In the light of the said and on the
foundation of Article 300A, Sri Gaurav
Mehrotra argues that on the one hand, the
petitioners were made to serve without
taking any consent from them, only to
serve the interest of the State and the
petitioners continued to serve till they
attained the age of 65 years and on the
other hand, they have been denied the
benefit, which flow in their favour in terms
of the statutory Rules without any authority
of law and thus, the action of the State is
wholly arbitrary and illegal and violates the
Constitutional rights of the petitioners.

8. In context of petitioner no.2, who
had applied for voluntary retirement, he
argues that it was the State, who had to
pass an order on the application of the
voluntary retirement, which the State
conveniently failed to do so and on account
of the said failure, the petitioner no.2
forced to continue to serve till the age of 65
years.

9. It appears from the record that the
entire amount of gratuity, as claimed by the
petitioners, in terms of the Rule of 1961,
stands denied to the petitioners merely on
the ground that they continued in service
till 65 years and for which they were paid
their salaries in accordance with law.

10. The Counsel for the petitioner
argues that in respect of the Provincial
Medical Services, the age of the doctors
was increased from 60 to 62 years,
however, the benefit of gratuity was
extended to them and was not denied and
thus, too that extent, there is a violation of
the rights guaranteed under Article 14 of
872 INDIAN LAW REPORTS ALLAHABAD SERIES
the Constitution of India in respect of the
petitioners.

11. Learned Standing Counsel has
produced the instructions, which are taken
on record, and prays for further time to file
counter affidavit, however, as this Court
had passed a stop order, coupled with the
fact that the defence for denying the
benefits of gratuity has been brought on
record by means of the instructions, no
useful purpose would be served in granting
further time, as the instructions specifically
records that on strength of the order dated
19.07.2019 passed in the case of KGMU
and duly adopted by the State Government
through an administrative order dated
01.04.2021,
the petitioners
were
not
entitled to any gratuity and thus, the claim
of the petitioners deserved to be rejected.

12. In the light of the pleadings and
arguments as recorded above, this Court is
to decide "whether the benefit of gratuity
and pension is a property of the petitioners
and whether, it can be denied to the
petitioners by an administrative order in
violation of Constitutional Rights under
Article 300A of the Constitution of India".

13. Article 300-A of the Constitution
of India is quoted below:

"300A. Persons not to be deprived of
property save by authority of law. - No
person shall be deprived of his property
save by authority of law."

14. All the issues as raised and arise
in the present petition are squarely covered
by the judgment of the Hon'ble Supreme
Court in the case of State of Jharkhand
and others vs Jitendra Kumar Srivastava
and another; (2013) 12 SCC 210, wherein
while deciding the issue "as to whether
pension and gratuity amounts to property
and whether the same can be taken away
without framing a law as defined under
Article 300-A, the Hon'ble Supreme Court
observed as under:

"14. The right to receive pension was
recognised as a right to property by the
Constitution Bench judgment of this Court
in Deokinandan Prasad v. State of Bihar
[(1971) 2 SCC 330 : 1971 Supp SCR 634] ,
as
is
apparent
from
the
following
discussion: (SCC pp. 342-43, paras 27-33)

"27.
The
last
question
to
be
considered, is, whether the right to receive
pension by a government servant is
property, so as to attract Articles 19(1)(f)
and 31(1) of the Constitution. This question
falls to be decided in order to consider
whether the writ petition is maintainable
under Article 32. To this aspect, we have
already adverted to earlier and we now
proceed to consider the same.

28. According to the petitioner the
right to receive pension is property and the
respondents by an executive order dated
12-6-1968 have wrongfully withheld his
pension. That order affects his fundamental
rights under Articles 19(1)(f) and 31(1) of
the Constitution. The respondents, as we
have already indicated, do not dispute the
right of the petitioner to get pension, but
for the order passed on 5-8-1996. There is
only a bald averment in the counteraffidavit
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
8 All. Prof. Ranjana Sharma & Anr. Vs. State of U.P. & Ors.
873
granting pension and later on resiles from
that order, the latter order may be
considered to affect the petitioner's right
regarding property so as to attract Articles
19(1)(f) and 31(1) of the Constitution.

29. We are not inclined to accept the
contention of the learned counsel for the
respondents. By a reference to the material
provisions in the Pension Rules, we have
already indicated that the grant of pension
does not depend upon an order being
passed by the authorities to that effect. It
may be that for the purposes of qualifying
the amount having regard to the period of
service and other allied matters, it may be
necessary for the authorities to pass an
order to that effect, but the right to receive
pension flows to an officer not because of
the said order but by virtue of the rules.
The rules, we have already pointed out,
clearly recognise the right of persons like
the petitioners to receive pension under the
circumstances mentioned therein.

30. The question whether the pension
granted to a public servant is property
attracting Article 31(1) came up for
consideration before the Punjab High
Court in Bhagwant Singh v. Union of India
[AIR 1962 Punj 503] . It was held that such
a right constitutes 'property' and any
interference will be a breach of Article
31(1) of the Constitution. It was further
held that the State cannot by an executive
order curtail or abolish altogether the right
of the public servant to receive pension.
This decision was given by a learned Single
Judge. This decision was taken up in letters
patent appeal by the Union of India. The
Letters Patent Bench in its decision in
Union of India v. Bhagwant Singh [ILR
(1965) 2 Punj 1] approved the decision of
the learned Single Judge. The Letters
Patent Bench held that the pension granted
to a public servant on his retirement is
'property' within the meaning of Article
31(1) of the Constitution and he could be
deprived of the same only by an authority
of law and that pension does not cease to
be property on the mere denial or
cancellation of it. It was further held that
the character of pension as 'property'
cannot possibly undergo such mutation at
the whim of a particular person or
authority.

31. The matter again came up before a
Full Bench of the Punjab and Haryana
High Court in K.R. Erry v. State of Punjab
[AIR 1967 Punj 279 : ILR (1967) 1 Punj
278]. The High Court had to consider the
nature of the right of an officer to get
pension. The majority quoted with approval
the principles laid down in the two earlier
decisions of the same High Court, referred
to above, and held that the pension is not to
be treated as a bounty payable on the sweet
will and pleasure of the Government and
that the right to superannuation pension
including its amount is a valuable right
vesting in a government servant. It was
further held by the majority that even
though an opportunity had already been
afforded to the officer on an earlier
occasion for showing cause against the
imposition
of
penalty
for
lapse
or
misconduct on his part and he has been
found guilty, nevertheless, when a cut is
sought to be imposed in the quantum of
pension payable to an officer on the basis
of misconduct already proved against him,
a further opportunity to show cause in that
regard must be given to the officer. This
view regarding the giving of further
opportunity was expressed by the learned
Judges on the basis of the relevant Punjab
Civil Service Rules. But the learned Chief
Justice in his dissenting judgment was not
prepared to agree with the majority that
under
such
circumstances
a
further
opportunity should be given to an officer
when a reduction in the amount of pension
874 INDIAN LAW REPORTS ALLAHABAD SERIES
payable is made by the State. It is not
necessary for us in the case on hand, to
consider the question whether before taking
action by way of reducing or denying the
pension on the basis of disciplinary action
already taken, a further notice to show
cause should be given to an officer. That
question does not arise for consideration
before us. Nor are we concerned with the
further question regarding the procedure, if
any, to be adopted by the authorities before
reducing or withholding the pension for the
first time after the retirement of an officer.
Hence we express no opinion regarding the
views expressed by the majority and the
minority Judges in the above Punjab High
Court decision on this aspect. But we agree
with the view of the majority when it has
approved its earlier decision that pension
is not a bounty payable on the sweet will
and pleasure of the Government and that,
on the other hand, the right to pension is a
valuable right vesting in a government
servant.

32. This Court in State of M.P. v.
Ranojirao Shinde [AIR 1968 SC 1053 :
(1968) 3 SCR 489] had to consider the
question whether a 'cash grant' is
'property' within the meaning of that
expression in Articles 19(1)(f) and 31(1) of
the Constitution. This Court held that it
was property, observing 'it is obvious that
a right to sum of money is property'.

33. Having due regard to the above
decisions, we are of the opinion that the
right of the petitioner to receive pension is
property under Article 31(1) and by a mere
executive order the State had no power to
withhold the same. Similarly, the said claim
is also property under Article 19(1)(f) and
it is not saved by clause (5) of Article 19.
Therefore, it follows that the order dated
12-6-1968, denying the petitioner right to
receive pension affects the fundamental
right of the petitioner under Articles
19(1)(f) and 31(1) of the Constitution, and
as such the writ petition under Article 32 is
maintainable. It may be that under the
Pension Act (23 of 1871) there is a bar
against a civil court entertaining any suit
relating to the matters mentioned therein.
That does not stand in the way of writ of
mandamus being issued to the State to
properly
consider
the
claim
of
the
petitioner
for
payment
of
pension
according to law."

15. In State of W.B. v. Haresh C.
Banerjee [(2006) 7 SCC 651 : 2006 SCC
(L&S) 1719] this Court recognised that
even when, after the repeal of Article
19(1)(f)
and
Article
31(1)
of
the
Constitution
vide
Constitution
(Fortyfourth Amendment) Act, 1978 w.e.f. 20-61979, the right to property no longer
remained a fundamental right, it was still a
constitutional right, as provided in Article
300-A of the Constitution. Right to receive
pension was treated as right to property.
Otherwise, challenge in that case was to
the vires of Rule 10(1) of the West Bengal
Services (Death-cum-Retirement Benefit)
Rules, 1971 which conferred the right upon
the Governor to withhold or withdraw a
pension or any part thereof under certain
circumstances and the said challenge was
repelled by this Court.

16. The fact remains that there is an
imprimatur to the legal principle that the
right to receive pension is recognised as a
right in "property". Article 300-A of the
Constitution of India reads as under:

"300-A.Persons not to be deprived of
property save by authority of law.-No
person shall be deprived of his property
save by authority of law."

Once we proceed on that premise, the
answer to the question posed by us in the
beginning of this judgment becomes too
obvious. A person cannot be deprived of
this pension without the authority of law,
8 All. Prof. Ranjana Sharma & Anr. Vs. State of U.P. & Ors.
875
which
is
the
constitutional
mandate
enshrined
in
Article
300-A
of
the
Constitution. It follows that attempt of the
appellant to take away a part of pension or
gratuity or even leave encashment without
any statutory provision and under the
umbrage
of
administrative
instruction
cannot be countenanced.

17. It hardly needs to be emphasised
that the executive instructions are not
having statutory character and, therefore,
cannot be termed as "law" within the
meaning of the aforesaid Article 300-A. On
the basis of such a circular, which is not
having force of law, the appellant cannot
withhold even a part of pension or gratuity.
As we noticed above, so far as statutory
Rules are concerned, there is no provision
for withholding pension or gratuity in the
given situation. Had there been any such
provision in these Rules, the position would
have been different."

15. Similarly in the case of Dr. Hira
Lal (Supra), while deciding an identical
issue, the Hon'ble Supreme Court observed
as under:

"18. In our considered view, the
Circulars dated 22-8-1974 and 31-101974, and Government Resolution No.
3104
dated
31-7-1980,
were
merely
administrative
instructions/executive
orders. They were not issued in exercise of
the power under Article 309 of the
Constitution and cannot be said to have the
force of law.

19. The Government Resolution dated
31-7-1980 came up for consideration
before this Court in State of Jharkhand v.
Jitendra Kumar Srivastava [State of
Jharkhand v. Jitendra Kumar Srivastava,
(2013) 12 SCC 210 : (2014) 1 SCC (Civ)
315 : (2014) 2 SCC (L&S) 570] . After
considering Rule 43(b) of the Bihar
Pension Rules and Government Resolution
No. 3104 dated 31-7-1980, this Court held
that the State had no authority or power to
withhold the full amount of pension or
gratuity of a government servant during the
pendency of judicial or departmental
proceedings. This Court held that : (SCC
pp. 216-17 & 220-21, paras 9-11, 13 & 1617)

"9.
Having
explained
the
legal
position, let us first discuss the rules
relating to release of pension.
10. The present case is admittedly governed
by the Bihar Pension Rules, as applicable
to the State of Jharkhand. Rule 43(b) of the
said Pension Rules confers power on the
State Government to withhold or withdraw
a pension or part thereof under certain
circumstances. This Rule 43(b) reads as
under:

* * *

11. From the reading of the aforesaid
Rule 43(b), following position emerges:

(i) The State Government has the
power to withhold or withdraw pension or
any part of it when the pensioner is found
to be guilty of grave misconduct either in a
departmental
proceeding
or
judicial
proceeding.

(ii) This provision does not empower
the State to invoke the said power while the
departmental
proceeding
or
judicial
proceeding are pending.

(iii) The power of withholding leave
encashment is not provided under this Rule
to the State irrespective of the result of the
above proceedings.

(iv) This power can be invoked only
when the proceedings are concluded
finding guilty and not before.

* * *

13. A reading of Rule 43(b) makes it
abundantly clear that even after the
conclusion of the departmental inquiry, it is
permissible for the Government to withhold
876 INDIAN LAW REPORTS ALLAHABAD SERIES
pension, etc. [Ed. : The matter between two
asterisks has been emphasised in original.]
Only [Ed. : The matter between two
asterisks has been emphasised in original.]
when a finding is recorded either in
departmental
inquiry
or
judicial
proceedings
that
the
employee
had
committed
grave
misconduct
in
the
discharge of his duty while in his office.
There is no provision in the Rules for
withholding of the pension/gratuity when
such departmental proceedings or judicial
proceedings are still pending.

* * *

16. ... A person cannot be deprived of
this pension without the authority of law,
which is the Constitutional mandate
enshrined
in
Article
300-A
of
the
Constitution.It follows that attempt of the
appellant to take away a part of pension or
gratuity or even leave encashment without
any statutory provision and under the
umbrage
of
administrative
instruction
cannot be countenanced.

17. It hardly needs to be emphasised
that the executive instructions are not
having statutory character and, therefore,
cannot be termed as "law" within the
meaning of the aforesaid Article 300-A. On
the basis of such a circular, which is not
having force of law, the appellant cannot
withhold even a part of pension or gratuity.
As we noticed above, so far as statutory
Rules are concerned, there is no provision
for withholding pension or gratuity in the
given situation. Had there been any such
provision in these Rules, the position would
have been different." (emphasis supplied)

It was held that pension is "property"
within the meaning of Article 300-A of the
Constitution, and executive instructions
which do not have any statutory sanction
cannot be termed as "law" within the
meaning of Article 300-A. It was further
held that in the absence of statutory rules
permitting withholding of pension or
gratuity, the State could not do so by way
of executive instructions. It was observed
that : (Jitendra Kumar Srivastava case
[State of Jharkhand v. Jitendra Kumar
Srivastava, (2013) 12 SCC 210 : (2014) 1
SCC (Civ) 315 : (2014) 2 SCC (L&S) 570]
, SCC p. 221, para 17)

"17. ... so far as statutory Rules are
concerned, there is no provision for
withholding pension or gratuity in the
given situation. Had there been any such
provision in these Rules, the position would
have been different." (emphasis supplied)

22. It is well settled that the right to
pension cannot be taken away by a mere
executive fiat or administrative instruction.
Pension and gratuity are not mere
bounties, or given out of generosity by the
employer. An employee earns these benefits
by virtue of his long, continuous, faithful
and
unblemished
service.
[State
of
Jharkhand v. Jitendra Kumar Srivastava,
(2013) 12 SCC 210 : (2014) 1 SCC (Civ)
315 : (2014) 2 SCC (L&S) 570] The right
to receive pension of a public servant has
been held to be covered under the "right to
property" under Article 31(1) of the
Constitution by a Constitution Bench of this
Court in Deokinandan Prasad v. State of
Bihar [Deokinandan Prasad v. State of
Bihar, (1971) 2 SCC 330 : 1971 Supp SCR
634] , which ruled that : (Deokinandan
Prasad case [Deokinandan Prasad v. State
of Bihar, (1971) 2 SCC 330 : 1971 Supp
SCR 634] , SCC pp. 343-44, paras 30-31 &
33)

"30. The question whether the pension
granted to a public servant is property
attracting Article 31(1) came up for
consideration before the Punjab High
Court in Bhagwant Singh v. Union of India
[Bhagwant Singh v. Union of India, 1962
SCC OnLine P&H 27 : AIR 1962 P&H
503] . It was held that such a right
8 All. Prof. Ranjana Sharma & Anr. Vs. State of U.P. & Ors.
877
constitutes
"property"
and
any
interference will be a breach of Article
31(1) of the Constitution. It was further
held that the State cannot by an executive
order curtail or abolish altogether the right
of the public servant to receive pension.
This decision was given by a learned Single
Judge. This decision was taken up in letters
patent appeal by the Union of India. Letters
Patent Bench in its decision in Union of
India v. Bhagwant Singh [Union of India v.
Bhagwant Singh, 1964 SCC OnLine P&H
275 : ILR (1965) 2 P&H 1] approved the
decision of the learned Single Judge. The
Letters Patent Bench held that the pension
granted to a public servant on his
retirement
is
"property"
within
the
meaning of Article 31(1) of the Constitution
and he could be deprived of the same only
by an authority of law and that pension
does not cease to be property on the mere
denial or cancellation of it. It was further
held that the character of pension as
"property" cannot possibly undergo such
mutation at the whim of a particular person
or authority.

31. The matter again came up before a
Full Bench of the Punjab and Haryana
High Court in K.R. Erry v. State of Punjab
[K.R. Erry v. State of Punjab, 1966 SCC
OnLine P&H 255 : ILR (1967) 1 P&H
278] . The High Court had to consider the
nature of the right of an officer to get
pension. The majority quoted with approval
the principles laid down in the two earlier
decisions [Bhagwant Singh v. Union of
India, 1962 SCC OnLine P&H 27 : AIR
1962 P&H 503] , [Union of India v.
Bhagwant Singh, 1964 SCC OnLine P&H
275 : ILR (1965) 2 P&H 1] of the same
High Court, referred to above, and held
that the pension is not to be treated as a
bounty payable on the sweet will and
pleasure of the Government and that the
right to superannuation pension including
its amount is a valuable right vesting in a
government servant. It was further held by
the
majority
that
even
though
an
opportunity had already been afforded to
the officer on an earlier occasion for
showing cause against the imposition of
penalty for lapse or misconduct on his part
and he has been found guilty, nevertheless,
when a cut is sought to be imposed in the
quantum of pension payable to an officer
on the basis of misconduct already proved
against him, a further opportunity to show
cause in that regard must be given to the
officer. This view regarding the giving of
further opportunity was expressed by the
learned Judges on the basis of the relevant
Punjab Civil Service Rules. But the learned
Chief Justice in his dissenting judgment
was not prepared to agree with the
majority that under such circumstances a
further opportunity should be given to an
officer when a reduction in the amount of
pension payable is made by the State. It is not
necessary for us in the case on hand to
consider the question whether before taking
action by way of reducing or denying the
pension on the basis of disciplinary action
already taken, a further notice to show cause
should be given to an officer. That question
does not arise for consideration before us.
Nor are we concerned with the further
question regarding the procedure, if any, to
be adopted by the authorities before reducing
or withholding the pension for the first time
after the retirement of an officer. Hence, we
express no opinion regarding the views
expressed by the majority and the minority
Judges in the above Punjab High Court
decision on this aspect. But we agree with the
view of the majority when it has approved its
earlier decision that pension is not a bounty
payable on the sweet will and pleasure of the
Government and that, on the other hand, the
right to pension is a valuable right vesting in
a government servant.
878 INDIAN LAW REPORTS ALLAHABAD SERIES

***

33. Having due regard to the above
decisions, we are of the opinion that the
right of the petitioner to receive pension is
property under Article 31(1) and by a mere
executive order the State had no power to
withhold the same. Similarly, the said claim
is also property under Article 19(1)(f) and
it is not saved by clause (5) of Article 19.
Therefore, it follows that the order, dated
12-6-1968, denying the petitioner right to
receive pension affects the fundamental
right of the petitioner under Articles
19(1)(f) and 31(1) of the Constitution, and
as such the writ petition under Article 32 is
maintainable."

(emphasis supplied)

23. The aforesaid judgment was
followed in D.S. Nakara v.Union of India
[D.S. Nakara v. Union of India, (1983) 1
SCC 305 : 1983 SCC (L&S) 145] by
another Constitution Bench of this Court,
which held that : (SCC pp. 320 & 323-24,
paras 20, 29 & 31)

"20. The antiquated notion of pension
being a bounty, a gratuitous payment
depending upon the sweet will or grace of
the employer not claimable as a right and,
therefore, no right to pension can be
enforced through Court has been swept
under the carpet by the decision of the
Constitution Bench inDeokinandan Prasad
v. State of Bihar [Deokinandan Prasad v.
State of Bihar, (1971) 2 SCC 330 : 1971
Supp SCR 634] : wherein this Court
authoritatively ruled that pension is a right
and the payment of it does not depend upon
the discretion of the Government but is
governed by the rules and a government
servant coming within those rules is
entitled to claim pension. It was further
held that the grant of pension does not
depend upon anyone's discretion. It is only
for the purpose of quantifying the amount
having regard to service and other allied
matters that it may be necessary for the
authority to pass an order to that effect but
the right to receive pension flows to the
officer not because of any such order but
by virtue of the rules. This view was
reaffirmed inState of Punjab v. Iqbal Singh
[State of Punjab v. Iqbal Singh, (1976) 2
SCC 1 : 1976 SCC (L&S) 172] .

***

29. Summing up it can be said with
confidence that pension is not only
compensation for loyal service rendered in
the past, but pension also has a broader
significance, in that it is a measure of
socio-economic
justice
which
inheres
economic security in the fall of life when
physical and mental prowess is ebbing
corresponding to aging process and,
therefore, one is required to fall back on
savings. One such saving in kind is when
you give your best in the heyday of life to
your employer, in days of invalidity,
economic security by way of periodical
payment is assured. The term has been
judicially defined as a stated allowance or
stipend made in consideration of past
service or a surrender of rights or
emoluments to one retired from service.
Thus, the pension payable to a government
employee is earned by rendering long and
efficient service and therefore can be said
to
be
a
deferred
portion
of
the
compensation or for service rendered. In
one sentence one can say that the most
practical raison d'étre for pension is the
inability to provide for oneself due to old
age. One may live and avoid unemployment
but not senility and penury if there is
nothing to fall back upon.

***

31. From the discussion three things
emerge : (i) that pension is neither a
bounty nor a matter of grace depending
upon the sweet will of the employer and
8 All. Prof. Ranjana Sharma & Anr. Vs. State of U.P. & Ors.
879
that it creates a vested right subject to 1972
Rules which are statutory in character
because they are enacted in exercise of
powers conferred by the proviso to Article
309 and clause (5) of Article 148 of the
Constitution; (ii) that the pension is not an
ex gratia payment but it is a payment for
the past service rendered; and (iii) it is a
social welfare measure rendering socioeconomic justice to those who in the heyday
of their life ceaselessly toiled for the
employer on an assurance that in their old
age they would not be left in lurch."

(emphasis supplied)

24. The right to receive pension has
been held to be a right to property
protected under Article 300-A of the
Constitution even after the repeal of Article
31(1) by the Constitution (Forty-Fourth
Amendment) Act, 1978 w.e.f. 20-6-1979, as
held in State of W.B. v. Haresh C. Banerjee
[State of W.B. v. Haresh C. Banerjee,
(2006) 7 SCC 651 : 2006 SCC (L&S)
1719]."

16. In the present case, the right to
pension and gratuity flow in favour of the
petitioners by virtue of the mandate of The
Uttar Pradesh Retirement Benefits Rules,
1961
(in
short
'1961
Rules')
and
particularly Rule 5 thereof, which is as
under:

"5. Death-cum-Retirement Gratuity.-
(1) An officer may, on retirement, be paid
an additional gratuity, the amount of which
shall, subject to a maximum of 16-1/2 times
the emoluments, be an amount equal to
one-fourth of the emoluments multiplied by
the total number of completed six monthly
periods of qualifying service.

(2) If an officer dies while in service, a
gratuity, the amount of which shall, subject
to a minimum of 12 times and a maximum
of 16-1/2 times the emoluments, be an
amount
equal
to
one-fourth
of
the
emoluments of the officer multiplied by the
total number of six monthly periods of
qualifying service, shall be paid to the
person or persons on whom the right to
receive the gratuity is conferred under subrule (1) to (8) of Rule 6 and if there is no
such person, it shall be paid in the manner
indicated in sub-rule (9) of that rule.

(3) If an officer who has become
eligible for or has actually received, a
pension or gratuity under part I of these
Rules, dies within a period of five years
from the date of retirement and the
aggregate of any sums admissible to him or
actually received by him till the time of
death on account of such gratuity or
pension together with the gratuity granted
under sub-rule (1) and the commuted value
of any portion of pension commuted by him
is less than the amount equal to 12 times
his "emoluments" a gratuity equal to the
deficiency shall be granted to the person or
persons referred to in sub-rule (2).

(4) The amount of gratuity admissible
in accordance with sub-rule (1) or sub-rule
(2) above shall in no case, exceed
Rs.36,000 and the emoluments exceeding
Rs.2,500 per month shall be ignored in
computing the amount of such gratuity.

[Clause
4
amended
vide
Government order dated 23.12.2016]

17.

Similarly
the
rights
of
commutation of pension flow in favour of
the petitioner by virtue of Rule 8 of the
1961 Rules, which is quoted hereinbelow:

"8.
Commutation.-Facilities
for
commuting pension in accordance with the
Uttar
Pradesh
Civil
Pension
(Commutation) Rules will continue, but the
maximum amount of pension which may be
committed will be restricted to one- third of
880 INDIAN LAW REPORTS ALLAHABAD SERIES
the pension admissible under Part 1 of
these Rules.

Provided that where option had been
exercised under Rule 11, the maximum
amount of pension which may be commuted
will be restricted to one-third of the
pension admissible after deduction of the
pension
equivalent
of
death-cum-
retirement gratuity subject to the condition
that the pension actually payable after
commutation is not in any case less than
one-half of the pension admissible under
Article 474 and 474-A of the Civil Service
Regulations:

Provided further that the pension
actually payable after commutation is not
less than Rs. 20."

18. The rights as conferred in favour
of the petitioner by virtue of Rule 5 can be
denied only when the circumstances
enumerated in Rule 9 of the said 1961
Rules are made out. Rule 9 is quoted
hereinbelow:

9. Miscellaneous.-(1) Government will
have the right to effect recoveries from a
gratuity or family pension sanctioned under
Parts II and III in the same circumstances
as recoveries can be effected from an
ordinary pension under Article 351-A of
the Civil Service Regulations.