# DEOKJNANDAN PRASAD v. STATE OF BIHAR & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 634
- **Court:** Supreme Court of India
- **Decided:** 1971-05-04
- **Bench:** S. M. Sikri, G. K. Mitter, C. A. V Aidialingam, P. Jaganmohan Reddy, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deokjnandan-prasad-v-state-of-bihar-ors-5381
- **Pages:** 20

## Headnote

Constitution of India, 1950, Art. 32-Right to pension, if propmyPetition to enforce-Maintainability.
Bihar Service Code. r. 76-A.utomatic termination without opportunity
to show cause-If violates Art. 311.
Bihar Pension Rules, r. 46--Scope of.
Tho 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 tho petitioner. On March 5, 1960, be
was reverted to the Lower Division of the Subo-rdinate 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 restrain·
ing 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 II, 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 tho
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 fiveycars 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 bav·
ing completed 58 ye>rs of age addressed a letter to the Director of Public
Instruction on July 18, 1967 requesting him to arranae for the payment
of bis pension, and on June 12, 1968 tho Director of Public Instruction
passed orders stating that under r. 46 of the Bihar Pension Rules be wu
not entitled to any pension. The petitioner filed the present writ petition
under Art. 32 challenging the various orders.
HELD: (I) 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. [6520-H ~
653A-B]
(2) The order dated August S, 1966, declaring, under r. 76 of th&
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 Iona 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
DBOKINANDAN v. Bl.HAR (Vaidialingam, J.)
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, B;
644A-q
(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 oven 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 iii the
seniqt 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 .l!PPellate ,court, and so,
the decree of the trial court was· in full fotce till it was set aside in appeal
on June 24, 1964.
Quring that period; that is, from ·April 11, 1963 to
June 24, 1964 the petitioner wrote sevet,a~ letters re

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DEOKJNANDAN PRASAD
v.
STATE OF BIHAR & ORS.
(May 4, 1971)
[S. M. SIKRI, C.J., G. K. MITTER, C. A. V AIDIALINGAM,
P. JAGANMOHAN REDDY AND I. D. DUA, JJ.]
Constitution of India, 1950, Art. 32-Right to pension, if propmyPetition to enforce-Maintainability.
Bihar Service Code. r. 76-A.utomatic termination without opportunity
to show cause-If violates Art. 311.
Bihar Pension Rules, r. 46--Scope of.
Tho 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 tho petitioner. On March 5, 1960, be
was reverted to the Lower Division of the Subo-rdinate 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 restrain·
ing 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 II, 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 tho
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 fiveycars 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 bav·
ing completed 58 ye>rs of age addressed a letter to the Director of Public
Instruction on July 18, 1967 requesting him to arranae for the payment
of bis pension, and on June 12, 1968 tho Director of Public Instruction
passed orders stating that under r. 46 of the Bihar Pension Rules be wu
not entitled to any pension. The petitioner filed the present writ petition
under Art. 32 challenging the various orders.
HELD: (I) 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. [6520-H ~
653A-B]
(2) The order dated August S, 1966, declaring, under r. 76 of th&
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 Iona 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
DBOKINANDAN v. Bl.HAR (Vaidialingam, J.)
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, B;
644A-q
(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 oven 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 iii the
seniqt 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 .l!PPellate ,court, and so,
the decree of the trial court was· in full fotce till it was set aside in appeal
on June 24, 1964.
Quring that period; that is, from ·April 11, 1963 to
June 24, 1964 the petitioner wrote sevet,a~ letters requesting the respondent'
to permit him to join duty in the sen,iot S;rade, but the respondent did not
permit him to do so. Therefore, ther~ was no question of the petitioner
being continuously absent from service for over S years· during the period
referred to when he wiis willing but the respondent did not allow him to
serve, and bencebr. 76 of tho .Service Code was not applicable. [644E-F ;
645A-D, 0 ; 646 -H; 647 A-B, E-F]. >
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(c) Even if the r. 76 was applicable and it was a question of automatic
termination of service, Art. 311 applies to such cases also. According to
the respondents a contintious 'absence from duty for over five years apart
from resulting in the forfei.ture 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 shO\V cause
against the order proposed. Hence there was violation of Art. 311. [647GH; 6480-E]
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Jai Shankar v. Stale of Rajasthan, [1966] I S.C.R. 825, followed..
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(3) The Order dated Jμne 12, 1968 stating that under r. 46 of the Pepsico Rules the petitioner was not entitled to any pension should also be
set aside.
f649q
Payment of pension under the rules does not depend upon the discretion of the State Government but is g'overned by the rules ~aq,d a government
servant, coming within .those rules is entitled to claim pension.
fJnder r.
46 a Government servant dismissed or removed for misconduct, insolvency
p
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 mis~
conduct and inefficiency in service. But when the order dated August 5,
1966 bas been held to be illegal then tho order dated June 12, 1968 based
upon it also falls to tho ground. [649B-C; D-H ; 650A-B]
(4) The grant of pension dOes not depend upon any order. It is only
for the J1urpose of quantifying the amount having regard to the service and
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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 .Art. 31~1) a~d. by a
mere executive order the State had no·power to withhold it.
Similarly,
the said claim is also property under Art. 19(1) (f). It, therefore follows.
that the order dated June 12, 1968 denying the petitioner the. righ~. to
receive pension affected bis fundamental right and ~as such the writ petition
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was maintainable. [6500-H; 652B-C, D-F1
K. R. Erry v. State of Punjab, "1.1,..R. [1967] Punjab & Haryana !78,
(F.B) approved.
...
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SUPREME COURT REPORTS,
[1971] SUPP. s.c.R.
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(S)··The bar against the Civil Court entertaining any suit relating to
tho matter& under the Pension Act does not stand in Hie 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.
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ORIGINAL Jurusrncnm~:. Writ Petition No. 217 of 1968.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
Bishan Narain, B. B. Sinha,. S. N. Misra, S . .S . .Jauhar and
K. K. Sinha, for .the petitioner.
!J. P. Jha1 for the respondents, '
I
The Judgment pf, the Court .w~,s delivered Sy '
Vaidialingam, ·J~In this writ petition under Art. 32 of the
Constitution,· th~ petitioner P!'aJlS" for the issue of a writ to the
respondents in -the nature of Certii'!rari .or any 'Other appropriate
writ, direction or order quashing four orderg ctal!tod 'September 2,
1953, March 5, 1960,,August 5, 196~ and June 12, 1968. He fur:
!her prays for ·issue of a writ in the nature of a Wrjt 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 entitle(f io.
Though four orders are cough! to .be quashed, as we will show
in due cou.rsMhe grievance of the .petitioner regarding tlie orders
dated September 2, 1953 and March. 5, 1960 can ·no longer be
considered by this C_ourt in thi~.writ petition. In consequence
only the last two orders, mentioned above, survive for consideration.
We will refer liriefiy 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 againsi these
orders.
/
The petitioner joined service as an
Assistant Teacher on
September I. 1928 in the Patna Practising School and was promoted a~ Sub-Inspector of Schools, Lower Division, in tpe Sub•
ordinateiEdur.ational 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 I, 1949. The State of Seriakella
having merged in the erstwhile province of Bihar, the provincial
DEOKINANDAN v. BIHAR (Vaidialiogam,J.)
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 ed'ucation
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 supe-
• rior officers .including the Director of Public Instruction and ·hence
he was recommended to be appt>inted to a superior ·post of Education Officer in the Community Project.
By about. the end of
1951, he was transferred to Purnlia hr the district.of Manbhum
as Additional Deputy Inspector of Schools. The petitioner. was
later on transferred to Bettiah in or abput May, 1953.
At Bettiah the petitioner receiv~d 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
hirn. 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 petitiorter 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 ~ere later on ser aside
and a fresh inquiry was ordered.
In consequence the order ofsuspension was cancelled, but immediately ther"1'fler a fresh inquiry· was conducted In which he was again found guilty as per
the report of the Inquiry Officer datect 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 fnquiry Officer recorded again5t 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 hiS' 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 Oj'der as both those orders are now
concluded
against the petitioner by the decision of the High Court.
The petitioner filed t\tle 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 ot' censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960.
Though the suit was
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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, II Court, Patna, challenging the decree of the Munsif. On June 24, 1964 the appeal was
al!,pwed, with the result that the petitioner's. title suit No. 86 of
1\ftil stood dismissed. The petitioner's Second •'Appeal No. 6-10
of 1964 was 'dismissed by the High Court on May 4, 1967, From
these proceedings it is clear that the ord~r of censure .dated SeptelJlber 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 die atta'.ck of t)le petitioner
against the legality of the orders dated August 5, 1966 and June
12, 1968. When the order of reversion dnted March 5, 1960 was
pass~d. the petitioner was workil)g 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 tor leave.
According ~o "the petitioner, he obtained
an order of temporaiy injunction on October 5, 1961 in hi~ 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 Educationaf Service.
Though he.
offered to join th_e 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, 1 ~65 ·under r. 76 of ihe 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 ord~rs on .the petitio°oer's
application dated July 18, 1967 regarding payment of pens10n.
DEO&INANDAN v. BIHAR-{Vaidialingam,J.)
639
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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 Art. 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 tbe
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 Arts. !9(1)(f) and 31(1) of the Constitution,
have been affected.
The Assistant Director of Education has filed a counteraffidavit 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. IL 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 !, 1960. The date "March I. 1960 should be read
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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 . accord·
ing 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 imme·
diately 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 governmen\ 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 Art. 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 considered. It is further admitted by the respondents that even after
the injunction order was passed by the Munslf, 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 da<ed 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
DEOKINANDAN v. BIHAR (Vaidialingam,J.)
641
any pension. There is also an averment to the effect that there is
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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 authorities. 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 respondenlii 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.
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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 Art. 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
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!O him. The.orde: of August 5, 1966, according to the petitioner,
1~ one removmg him from service and it has been passed in violat~on of Art. 311: 1:hat the sai~ order is one removing Hie petilloner from. service 1s also adm1t~ed by the resoondents in paragraJ?h 11 o~ the connter-af!idav1t filed on their behalf by the
Assistant Drrectoi: of. Education.
Assuming that the said order
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h~s been passed In violation of Art. 311, the said circumstance
Wiil not give a right to the petitioner to approach this Court under
Art. 32. The stand taken by the petitioner is that his right to get
41-1 S.C. India/71
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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
Arts. 19(l)(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 peti·
tioner 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 petitioner 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
Arts. 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 bas 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 l2. 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, Deoghar, having not been on bis 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.
t
DEOKINANDAN v. BIHAR (Vaidialingam, J.)
64 3
Memo No. 3791 Patna, dated 5th August, 1966.
A
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 conti:iuously 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 II,
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. Blshan 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 :eply 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
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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 continuoμsly for more than five years only from March 11, J960 and
he ceased to be in govermnent 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-,11ffidavit.
While they admit that the date from
wh'ich the period of absence should be calculated is March 11,
1960 and not March I, 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 tbe 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 lnstruct!on 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
.J80KINANDAN v. BIHAR (Valdlalingam, J.)
845
that he was absent only from March 11, 1960. 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. Accordiing 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 ~he 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 tlie
Director of Public Instruction drawing the latter's attention to the
decree passed in title suit No. 86 of 1961 and requesting him to
pem1it the petitioner to join duty as Deputy Irispector 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
6lrder 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 reversioJ'.l.
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 m reply to
the letter of the Director of Public Instruction dated November
27, 1963. In this letter the petitioner again referred to the de.cree
of the Munsif, Patna, dated April 11, 1963 and pointed out ~at
he was entitled to hold the original post which he was occupymg
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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, l963
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 responde1,1ts.
In fact they have admitted in the counter-affidavit that
even after the order of injuncfion, 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 injunc·
tion. 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 j6in 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 asicl;:l 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 be~ng taken.
This attitude of the respondents, we have already pomted out,
was in flagrant violation of the order of the Munsif.. Therefore,
during the period April II, 1963 to June 24, 1963, 1t ~ann?t be
said that the petitioner was absent from duty. Hence tt will be
I
DEOKINANDAN v. BIHAR (Vaidialingam, J.)
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 that
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, 196'3 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.