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
UR 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 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 1000 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 1000 a month in the Government of India currency but was OS Rs 1000 a month that is Osmania Sikka Rs 1000 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 85715 per month being the equivalent in the Government cf India currency of OS Rs 1000
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 OS Rs 1000 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 OS rupees for 6 IG 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 ordinarily admissible for superior service was to be Rs 1000 a month
The contention of the Respondent was that the expression Rs 1000 a month  in the said clause b really meant OS Rs 1000 a month and that the qualifying letters OS were omitted by an inadvertent printing error
By a memorandum being Memorandum No 27439540Pen
I69 dated April 281969 the Assistant Secretary to the Government of Andhra Pradesh Finance Department issued an erratum purporting to correct the sum of Rs 1000 mentioned in the said clause b of Rule 299 to OS Rs 1000
In Writ Petition No 3318 of 1969 Dault Rai and 935 Others vs State of Andhra Pradesh a learned Single Judge of the said High Court held that there was no error in mentioning Rs 1000 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 vs 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 85715 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 85715 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 vs State of Bihar and Others the right to receive pension was property and was a fundamental right guaranteed both by Article 191f 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 1000 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 Andhra Pradesh vs Ahmed Hussain Khan heard along with Writ Appeal No 920 of 1974 State of Andhra Pradesh vs section 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 AR 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 vs State of Andhra Pradesh and Civil Appeal No 2628 of 1977 section Gopalan vs 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 2991 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 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 14285 being the difference between Rs 1000 and Rs 85715
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 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 1000 per month in the Government of India currency
The Respondent will pay to the Appellant the costs of this Appeal
NVK Appeal allowed


Summary:
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 1000 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 1000 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 1000 a month 931 During the pendency of the writ petition the Government by a Notification dated February 31971 amended clause b of sub rule 1 of Rule 299 with retrospective effect from October 1 1954
The expression Rs 1000 a month in the said clause b was substituted by the expression Rs 85715 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 vs State of Bihar and Others 1971 Supp
SCR 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 1000 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 vs Ahmed Hussain Khan and State of Andhra Pradesh vs section 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 section 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 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