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PETITIONER: SALABUDDIN MOHAMED YUNUS

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT28/09/1984

BENCH: MADON, D.P. BENCH: MADON, D.P. CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH

CITATION:  1984 AIR 1905            1985 SCR  (1) 930  1984 SCC  Supl.  399     1984 SCALE  (2)573

ACT:      Constitution of  India 1950,  Articles 19  (1) (f),  19 (5), 31      Hyderabad Civil  Service Regulations  Rule 299  (1) (b) and State Government Notification dated February 3, 1971      Pension-Right to-A  fundamental right-Whether  could be curtailed or taken away by the State by an executive order.

HEADNOTE:      The appellant was employed in the service of the former Indian State  of Hyderabad prior to the coming into force of the Constitution  of India.  On the coming into force of the Constitution of  India, the  said State became a part of the territory of  India  as  a  Part  State  and  the  Appellant continued in the service of that State, till he retired from service on  January 21,  1956. The appellant claimed that he was entitled  to be  paid the  salary of  a High Court Judge from October  1, 1947  and also claimed that he was entitled to receive  a pension of Rs. 1,000 a month in the Government of India currency being the maximum pension admissible under the rules.  Both the  aforesaid claims were negatived by the Government.      The Appellant  thereupon filed  a writ  petition in the High Court  against the  Respondent-State of Andhra Pradesh, which was  the principal  successor State  to the  erstwhile State,  which  was  contested  under  Regulation  6  of  the Hyderabad Civil Service Regulations which were applicable in the case  of the  Appellant and that claim to pension was to be regulated  by the  rules in  force at  the time  when the Government  servant   retired  from   the  service   of  the Government. Under  clause (b) of Regulation 313, the maximum pension ordinarily  admissible for superior service to which the Appellant  belonged was  to be Osmania Sikka Rs. 1,000 a month. The Hyderabad Civil Service Regulations were replaced with effect  from October  1, 1954  by the  Hyderabad  Civil Services Rules and under clause (b) of Rule 299 (which later became clause  (b) of  sub-rule (1) of Rule 299) the maximum pension ordinarily admissible for superior service was to be Rs. 1,000 a month, 931      During  the   pendency  of   the  writ   petition,  the

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Government by  a Notification  dated February 3,1971 amended clause (b)  of sub-rule  (1) of Rule 299, with retrospective effect from  October 1,  1954. The  expression ’Rs.  1,000 a month  in  the  said  clause  (b)  was  substituted  by  the expression ’Rs  857.15 a  month". This amendment was made in exercise of  the powers  conferred by the proviso to Article 309 read with Article 313 of the Constitution of India.      The  Single   Judge  who  heard  the  Appellant’s  writ petition rejected  the claim  made  by  the  Appellant  with respect to salary on the ground that the said claim had been negatived by  the Government  as far back as 1955 and merely by making  representations to  the Government  he could  not keep the  said claim  alive. He however held that in view of the judgment of this Court in Deokinandan Prasad v. State of Bihar and Others [1971] Supp. S.C.R 634 the right to receive pension was property and was a fundamental right and that it had accrued to the Appellant on the date when he retired and could not  be affected by a rule made subsequently under the proviso to Article 309, and allowed the writ petition to the extent that  the Appellant  was entitled  to get  his future pension at  the rate  of Rs. 1,000 a month in the Government of India  currency from  the date of filing of the said writ petition and  arrears of  pension at  the same  rate  for  a period of  three years  prior to the filing of the said writ petition.      The Respondent-State filed a Letters Patent Appeal, and the Division  Bench held  that  this  Court  in  Deokinandan Prasad’s case  did not hold that a pensioner was entitled to any pension  that he  demanded but  all that was done in the said case  was to  direct the State to consider properly the claim of  the pensioner  for payment of pension according to law, and  relying upon  its earlier  decisions in  State  of Andhra Pradesh  v. Ahmed  Hussain Khan  and State  of Andhra Pradesh  v.   S.  Gopalan  upholding  the  validity  of  the amendment made  in  clause  (b)  of  Rule  299  (1)  by  the Notification dated  February 3, 1971, allowed the appeal and dismissed the writ petition of the appellant.      Allowing the Appeal to this Court, ^      HELD: The  relevance placed  by the Division Bench upon its earlier  decision in the two writ appeals (Ahmed Hussain Khan and S. Gopalan) was misconceived. The two appeals arose out of  separate writ  petitions  filed  by  two  Government servants who  had joined  the service  of the  former Indian State  of   Hyderabad   and   retired   after   the   States Reorganization Act,  1956 had  come into  force. This  Court allowed the  two Appeals  and reversed  the said judgment of the Division  Bench, held  that the  letter dated  April 28, 1973 from  the Joint  Secretary to  the Government of India, Cabinet Secretariat  did not  amount to  a previous approval granted by  the Central  Government to the amendment made by the Notification  dated February  3, 1971  to clause  (b) of Rule 299  (1) and  that, the  Notification was  invalid  and inoperative so  far as  it concerned  persons referred to in sub-sections (1)  and (2)  of  Section  115  of  the  States Reorganization Act, 1956. [936D-G]      In the instant case, the Appellant had retired prior to the appointed  day, November  1, 1956.  He therefore did not fall under either sub-section (1) or 932 sub-section (2)  of section  115 and  the  proviso  to  sub- section (7)  of that  section had no application to him. The amendment to the Rules, so far as he was concerned, did not, therefore, require  any previous  approval  of  the  Central Government even though thereby the conditions of the service

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were being varied to his disadvantage. [937F-G]      2. Pension  being a fundamental right, it could only be taken away  or curtailed  in  the  manner  provided  in  the Constitution, [938E]      In the  instant case,  the fundamental right to receive pension according  to the  rules in  force  accrued  to  the Appellant  when   he  retired  from  service.  By  making  a retrospective amendment  to the  said Rule  299 (1) (b) more than fifteen years after that right had accrued to him, what was done  was to  take away the Appellant’s right to receive pension according  to the  rules in force at the date of his retirement or  in any  event to  curtail  and  abridge  that right. To  that extent,  the said amendment was void. [938H; 939A]      3. The Appellant was entitled to succeed in view of the judgment of  this Court  in Deokinandan  Prasad’s case.  The Division Bench of the High Court has misunderstood the ratio of that  decision. It  was held in that case that pension is not a  bounty payable  at the sweet will and pleasure of the Government but  is a  right vesting  in a Government servant and was  property under  clause (1)  of Article  31  of  the Constitution and  the State  had no  power to  with hold the same by  a mere  executive order. It was also held that this right was  also property  under sub-clause (f) of clause (1) of Article  19 of  the Constitution  and was  not  saved  by clause (5)  of that  Article, and  that this  right  of  the Government servant to receive pension could not be curtailed or taken  away, by  the State  by an executive order. [937H; 938A-D]      4. The  fact that  sub-clause  (f)  of  clause  (1)  of Article 19  and  Article  31  have  been  omitted  from  the Constitution by  the  Constitution  (Forty-fourth  Amendment Act,) 1978  with effect  from June  20, 1979  was immaterial because on  the date  when the said Notification was issued, these provisions were part of the Constitution. [939B-C]      5,  The  Supreme  Court  reversed  and  set  aside  the Judgment of  the Division  Bench of  the Andhra Pradesh High Court and  restored the  order passed by the Single Judge of that High  Court. The  Supreme Court  directed the  State of Andhra Pradesh  to pay  to the  Appellant the amounts due to him according  to the  Judgment of  the Single  Judge of the High Court within one month and pay to him pension in future at the rate of Rs. 1000 per month in the Government of India currency. [939D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2629 of 1977.      Appeal by  Special leave  from the  Judgment and  Order dated the 933 2nd February,  1976 of the Andhra Pradesh High Court in Writ Appeal No. 628 of 1974.      A. Subba Rao for the Appellant.      U.R. Lalit, and G. Narasimhulu for the Respondent.      The Judgment of the Court was delivered by      MADON, J.  The Appellant  joined  the  service  of  the Former Indian  State of  Hyderabad prior  to the coming into force of the Constitution of India. On the coming into force of the Constitution of India on January 26, 1950, the former Indian State  of Hyderabad became a part of the territory of India as  a Part  State and  the Appellant  continued in the service of  that State.  He retired  from service on January

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21, 1956, as Secretary to the Government of Hyderabad, Legal Department. The Appellant claimed that he was entitled to be paid the  salary of a High Court Judge from October 1, 1947, being the  date from  which the recommendations of a Pay and Service  Commission   which  had   been  set   up  had  been implemented up  to the  date of his retirement from service. The Appellant also claimed that he was entitled to receive a pension of  Rs. 1,000  a month  in the  Government of  India currency being  the maximum  pension  admissible  under  the rules  in  that  behalf.  Both  the  aforesaid  claims  were negatived  by   the   Government   in   spite   of   several representations made  by the Appellant. Ultimately, in order to enforce  the aforesaid two claims, the Appellant filed in the High  Court of  Andhra Pradesh  a  writ  petition  under Article  226  of  the  Constitution  of  India,  being  Writ Petition No.  1613 of  1972, against  the  State  of  Andhra Pradesh which  was the  principal  successor  State  to  the erstwhile State of Hyderabad. A learned Single Judge of that High Court  rejected the  claim made  by the  Appellant with respect to salary on the ground that the said claim had been negatived by  the Government  as far back as 1955 and merely by making  representations to  the Government  he could  not keep that  claim alive.  So far  as the  amount  of  pension payable to  the Appellant  was concerned, the defence of the Respondent was  that the  amount of  maximum pension payable under the  rules in that behalf was not Rs. 1,000 a month in the Government  of India  currency but  was O.S. Rs. 1,000 a month, that  is, Osmania Sikka Rs. 1,000 Osmania Sikka being the currency  of the  former Indian State of Hyderabad) and, therefore, the  Appellant was  entitled to receive a pension of 934 only Rs.  857.15 per  month  being  the  equivalent  in  the Government cf India currency of O.S. Rs. 1,000.      In order  to  understand  this  defence  taken  by  the Respondent, it is necessary to mention that at the date when the Appellant  joined service,  his terms  and conditions of service  were   governed  by  the  Hyderabad  Civil  Service Regulations. Under  Regulation 6  of the said Regulations, a Government servant’s claim to pension was to be regulated by the rules  in force  at the time when the Government servant retired from the service of the Government. Under clause (b) of Regulation 313, the maximum pension ordinarily admissible for superior  service to which the Appellant belonged was to be O.S.  Rs. 1,000 a month. After the former Indian State of Hyderabad became a part of the territory of India, Hyderabad currency was demonetized with effect from April 1, 1953, and by  section  2  of  the  Hyderabad  Currency  Demonetization (Consequential and  Miscellaneous Provisions)  Act,  1953  ( Hyderabad Act  No. 1 of 1953), references express or implied inter alia in any Regulation in force in the Hyderabad State immediately before  the commencement of the said Act were to be construed  as references  to the equivalent amount in the Government of  India currency according to the standard rate of exchange,  namely, 7  O.S.  rupees  for  6  I.G.  rupees, (Indian Government  rupees).  The  Hyderabad  Civil  Service Regulations were  replaced with effect from October 1, 1954, by the Hyderabad Civil Services Rules which were made by the Rajpramukh of  the erstwhile  State of Hyderabad in exercise of the  power conferred by the proviso to Article 309 of the Constitution of India. Under Rule 4 of the said Rules also a Government servant’s claim to pension was to be regulated by the Rules  in force  at the  time when  he retired  from the service of the Government. Under clause (b) of Rule 299 (now clause (b)  of sub-rule (1) of Rule 299) the maximum pension

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ordinarily admissible  for superior  service was  to be  Rs. 1,000 a month. The contention of the Respondent was that the expression ’Rs. 1,000 a month’ in the said clause (b) really meant O.S. Rs. 1,000 a month and that the qualifying letters O.S. were  omitted by  an inadvertent  printing error.  By a memorandum, being  Memorandum No.  27439/540/Pen.I/69  dated April 28,1969,  the Assistant Secretary to the Government of Andhra  Pradesh,   Finance  Department,  issued  an  erratum purporting to  correct the sum of Rs. 1,000 mentioned in the said clause  (b) of  Rule 299  to O.S.  Rs. 1,000.  In  Writ Petition No. 3318 of 1969-Dault Rai and 935 Others v.  State of Andhra Pradesh-a learned Single Judge of the said   High  Court held  that  there  was  no  error  in mentioning  Rs.   1,000  and  that  what  the  said  erratum purported to  do in fact was to amend the said clause (b) of Rule 299 which could not be done without the approval of the Governor of Andhra Pradesh. The said judgment of the learned Single Judge  was affirmed  by a  Division Bench of the said High Court  in Writ  Appeal No. 568 of 1970- State of Andhra Pradesh v.  Daulat Rai  and Others.  The said Division Bench also rejected  an  application  made  by  the  State  for  a certificate to  appeal to  this Court  and  a  petition  for special leave  to  appeal  against  the  said  judgment  was dismissed by  this Court.  In view  of  this  position,  the Respondent’s contention that the Appellant was entitled only to a  pension of  Rs. 857.15  per month  was bound  to fail. Hoverer,  during   the  pendency  of  the  Appellant’s  writ petition, by  a Government  Notification dated  February  3, 1971, the said clause (b) of sub-rule (1) of Rule 299, as it had then  become, was amended with retrospective effect from October 1, 1954. By this amendment the expression Rs. 1000 a month’ in  the  said  clause  (b)  was  substituted  by  the expression ’Rs.  857.15 a month’. This amendment was made in exercise of  the powers  conferred by the proviso to Article 309 read  with Article 313 of the Constitution of India. The learned Single Judge who heard the Appellant’s writ petition held  that  in  view  of  the  Judgment  of  this  Court  in Deokinandan Prasad v. State of Bihar and Others the right to receive pension  was property  and was  a fundamental  right guaranteed both  by Article  19(1)(f) and  Article 31 (1) of the Constitution  of India  and that  it had  accrued to the Appellant on  the date  when he  retired and  could  not  be affected by  a rule  made subsequently  under the proviso to Article 309.  The learned Single Judge, there. fore, allowed the said  writ petition to the extent that the Appellant was entitled to  get his future pension at the rate of Rs. 1,000 a month in the Government of India currency from the date of the filing  of the said writ petition and arrears of pension at the  same rate  for a  period of  three years  before the filing of the said writ petition, namely April 13, 1972. The learned Single  Judge made  no order  as to the costs of the said writ petition.      The Respondent  filed a  Letters Patent  Appeal against the judgment  of the learned Single Judge, being Writ Appeal No. 628 936 of 1974.  The Appellant  did not  file any cross appeal. The Division Bench  Which heard  the said  appeal held  that  in Deokinandan Prasad’s  case this  Court did  not hold  that a pensioner was  entitled to  any pension that he demanded but all that  was done  in the  case was  to direct the State to consider properly  the claim of the pensioner for payment of pension  according  to  law.  It  further  relied  upon  its decision given  in Writ  Appeal No.  835 of  1974- State  of

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Andhra Pradesh  v. Ahmed  Hussain Khan-heard along with Writ Appeal No.  920  of  1974-State  of  Andhra  Pradesh  v.  S. Gopalan-In which  the same Bench had held that the amendment made in  the said  clause (b)  of Rule  299 (1)  by the said Notification dated February 3, 1971, was valid. The Division Bench accordingly  allowed the said appeal and dismissed the Appellant’s said  writ petition  with no  order  as  to  the costs. lt is against this judgment and order of the Division Bench of  the Andhra  Pradesh High  Court that  the  present Appeal has  been filed  by the  Appellant by  Special  Leave granted by this Court.      We find  that the reliance placed by the Division Bench upon its  earlier decision  in the two writ appeals referred to above  was misconceived.  Those two  appeals arose out of separate writ petitions filed by two Government servants who had joined  the  service  of  the  former  Indian  State  of Hyderabad and  had retired  after the  States Reorganization Act, 1956  (Act XXXVII  of 1956),  had come  into force. The contentions of  those two  Government servants  was that the conditions of  service  applicable  immediately  before  the appointed day,  namely,  November,  1,  1956,  to  per  sons referred to in sub-section (1) or sub-section (2) of section 115  of   the  said   Act  could  not  be  varied  to  their disadvantage  except  with  the  previous  approval  of  the Central Government  by reason  of the proviso to sub-section (7) of the said section 115, and that as the approval of the Central  Government  had  not  been  obtained  to  the  said Notification,  the   said  amendment   was   invalid.   This contention was  upheld by a learned Single Judge of the High Court. The  Division Bench  had, however,  held in the above two appeals  that a  letter dated  April 28,  1973, from the Joint  Secretary   to  the   Government  of  India,  Cabinet Secretariat, Department  of Personnel  and A.R., amounted to the previous  approval of  the Central Government within the meaning of  the proviso  to  sub-section  (7)  of  the  said section 115.  The said  two  Government  servants  thereupon filed appeals in this Court by special leave granted 937 by it,  being Civil  Appeal No.  2627 of  1977-Ahmed Hussain than   v. State  of Andhra Pradesh and Civil Appeal No. 2628 of 1977-S.  Gopalan v.  State of  Andhra Pradesh. This Court allowed those  two Appeals  and reversed the judgment of the Division Bench  holding that the said letter dated April 28, 1973, did  not amount  to a previous approval granted by the Central  Government  to  the  amendment  made  by  the  said Notification dated  February 3, 1971, to the said clause (b) of Rule 299(1) and that therefore, the said Notification was invalid and  inoperative so  far  as  it  concerned  persons referred to  in sub-sections (1) and (2) of the section 115. Sub-section (1)  of section  115 refers  to every person who immediately before  the appointed  day, namely,  November 1, 1956, was  serving in  connection with  the affairs  of  the Union under  the administrative  control of  the Lieutenant- Governor or  Chief Commissioner  in any of the then existing States of Ajmer Bhopal, Coorg, Kutch and Vindhya Pradesh, or was serving  in connection  with the  affairs of  any of the then existing  States of  Mysore, Punjab,  Patiala and  East Punjab States Union and Saurashtra, and was on the appointed day deemed to have been allotted to serve in connection with the affairs  of the  successor State to that existing State. Sub-section (2)  refers  to  every  person  who  immediately before the  appointed day,  namely, November,  1  1956,  was serving in  connection with the affairs of an existing State part of  whose territories  was transferred to another State by the  provisions of  Part II  of the  said Act and who, as

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from that day provisionally continued to serve in connection with the  affairs of  the principal  successor State to that existing State.  The Appellant  in the  present  Appeal  had retired prior  to November  1, 1956.  He, therefore, did not fall under  either sub-section (1) or sub-section (2) of the said section  115 and  proviso to  sub-section (7)  of  that section had  no application  to him.  The amendment  to  the Rules, so  far as  he was  concerned,  did  not,  therefore, require any previous approval of the Central Government even though thereby  the conditions  of his  service  were  being varied to his disadvantage.      That, however, is not the end of the matter, because in spite of this position, the Appellant is entitled to succeed in view  of  the  Judgment  of  this  Court  in  Deokinandan Prasad’s case  which is  a decision of a five judge Bench of this  Court.   We  find   that  the   Division   Bench   has misunderstood the ratio of that decision. 938 In that  case, this  Court held  that the payment of pension does not  depend upon  the discretion  of the  State but  is governed by  rules made  in that  behalf  and  a  Government servant coming  within  such  rules  is  entitled  to  claim pension. It  was further held that the grant of pension does not depend  upon an  officer being passed by the authorities to that  effect though  for the  purpose of  quantifying the amount having  regard to  the period  of service  and  other allied matters,  it may  be necessary for the authorities to pass an  order to  that effect,  but the  right  to  receive pension flows  to an  officer not  because of the said order but by  virtue of  the rules.  It was also held in that case that pension  is not  a bounty payable at the sweet will and pleasure of  the Government  but is  a right  vesting  in  a Government servant  and was  property under  clause  (1)  of Article 31 of the Constitution of India and the State had no power to  withhold the  same by  a mere  executive order and that similarly this right was also property under sub-clause (f) of clause (1) of Article 19 of the Constitution of India and was  not saved  by clause  (5) of  that Article.  It was further held  that this  right of  the Government servant to receive pension  could not be curtailed or taken away by the State by an executive order.      Pension being  thus a  fundamental right, it could only be taken  away or  curtailed in  the manner  provided in the Constitution. So  far as Article 31 (1) is concerned, it may be said that the Appellant was deprived of, his property, by authority of  law but  this could  not be  said to have been done for  a public  purpose nor  was any  compensation being given to  the Appellant  for deprivation  of  his  property, namely a  sum of Rs. 142.85 being the difference between Rs. 1,000 and  Rs. 857.15.  So far  as Article  19  (1)  (f)  is concerned, the fundamental right under that sub-clause could be restricted  only as provided by clause (S) of Article 19. That clause has no application to a right to receive pension which is  property under sub-clause (f) of Article 19 (1) of the Constitution  as held  in Deokinandan Prasad’s case. The said amendment  could not  by any  stretch of imagination be classified as a law of the nature mentioned in clause (5) of Article 19.  In Deokinandan  Prasad’s case  it was expressly held that clause (S) of Article 19 has no application to the right to  receive pension.  The fundamental right to receive pension according  to the  rules in force on the date of his retirement accrued  to the  Appellant when  he retired  from service. By  making a  retrospective amendment  to the  said Rule 299 (1) (b) more than 939

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fifteen years  after that right had accrued to him, what was done was  to take  away the  Appellant’s  right  to  receive pension according A to the rules in force at the date of his retirement or  in any  event to  curtail  and  abridge  that right. To that extent, the said amendment was void. The fact that sub-clause  (f) of clause (1) of Article 19 and Article 31  have   been  omitted   from  the   Constitution  by  the Constitution (Forty-forth  Amendment) Act, 1978, with effect from June  20, 1979,  is immaterial because both on the date when the Appellant retired as also on the date when the said Notification was  issued, these  provisions were part of the Constitution.      In the  result,  we  allow  this  Appeal,  reverse  the judgment and  set aside  the order  of the Division Bench of the Andhra  Pradesh High  Court appealed against and restore the order  passed by the learned Single Judge. We direct the State of  Andhra Pradesh to pay to the Appellant the amounts due to  him according  to the judgment of the learned Single Judge of  that High Court within one month from today and to pay to  him pension  in future  at the rate of Rs. 1,000 per month in the Government of India currency.      The Respondent  will pay  to the Appellant the costs of this Appeal. N.V.K.                                       Appeal allowed. 940