it Petition Civil No 623 of 1989
Under Article 32 of the Constitution of India
Rangarajan and San jay Parokh for the Petitioner
GB Pai VK Sharma and RK Maheshwari for the Respondents
The Judgment of the Court was delivered by 755 OJHA J
The gravamen of the grievance of the petitioner is that even though she retired on 3 ist October 1977 on reaching the age of superannuation and even though she was entitled to pension gratuity and other retirement benefits the respondents have kept her deprived therefrom without any justification for all these long years
She has made a prayer that the respondents may be directed to make the requisite payments to her at least now when she was almost at the fag end of her life
Brief facts necessary for the decision of this petition are that the petitioner joined RM Arya Girls Patshala New Delhi which was an aided recognised school as a primary teacher in the year 1952 and had been making contribution towards compulsory Provident Fund
On 17th October 1975 the Administrator of the Delhi Administration in consultation with the Accountant General Central Revenues issued a notification in exercise of the power conferred on him by Rule 126 of the Delhi School Education Rules 1973 hereinafter referred to as the Rules laying down detailed procedure for disbursement of pension and gratuity and accounting of General Provident Fund to the employees of the aided schools under the Delhi Education Act 1973 for short the Act and the Rules flamed thereunder
The sad notification inter alia provided Further rule 126 of the Delhi School Education Rules 1973 lays down that the Administrator shall in consultation with the AGCR specify the detailed procedure for accounting of provident fund and payment of pension and gratuity to the employees of the aided schools
In order to implement the provision referred to above the detailed procedure is prescribed hereafter
In regard to matters not specified in the procedure the provi sions of the Central Civil Services Pension Rules 1972 as amended from time to time and other general provisions of the Act Rules shall apply
The employees of the aided schools shall be enti tled to pension andor gratuity in accordance with the provisions and procedure applicable to the employees of the similar categories of Delhi Administration under the exist ing pension rules as contained in the Central Civil Services Pension Rules 1972 as amended from time to time
These rules shall be applicable to these employees of the aided schools who were appointed on or after the commencement of the ActRules and also to the existing 756 employees who opt for the pension and gratuity within the stipulated period in the prescribed proforma
 The school in which the petitioner was working being an aided school under the Act and the notification aforesaid being applicable to its employees the petitioner made the requisite option in the prescribed proforma on 29th January 1976 which was duly countersigned by the Education Officer on 2nd April 1976
After her retirement the petitioner made several representations for payment of pension and gratuity etc
to the authorities concerned but each time the peti tioner did not get any better response than an information that her case was under active consideration
By his letter dated 27th February 1987 ie after nearly 10 years of the petitioner s retirement the Joint Director of Education FIN Old Secretariat Delhi conveyed to her an additional information apart from the usual one namely that her case was under active consideration that further action in the matter will be taken by the Department soon after the pro posal is approved by the Government of India
By a subse quent letter dated September 29 1987 the petitioner was informed by the Education Officer that the Directorate of Education had referred the case to Government of India on 26th March 1987 for policy decision
Ultimately the Direc torate Of Education Delhi Administration promulgated the decision of pension scheme in the primary aided schools on 6th December 1988
This decision inter alia provided for payment of grant in aid to the local authorities concerned for the implementation of the pension scheme already noti fied vide notification dated 17th October 1975
The last paragraph of the decision provides that pensionary benefits under these orders would apply with immediate effect ie from the date of issue of these orders
The prayer made in this petition has been opposed by the New Delhi Municipal Committee by filing a counter affidavit
The objection raised by the said Committee is that since the pension scheme was finally promulgated in 1988 and has provided therein that the pensionary benefits were to apply from the date of issue of the requisite order in this behalf namely 6th December 1988 the petitioner who retired on 31st October 1977 that is more than 11 years before the final promulgation of the scheme was not entitled to any of the benefits claimed by her simply on the ground that she had opted for pension before her retirement in pursuance of the scheme notified on 17th October 1975 which was in the process of finalisation at the time of her retirement
It has also been contended on behalf of the said Committee that since modalities for grant in aid to the local authorities con 757 cerned for the implementation of the pension scheme were provided for by order dated 6th December 1988 the petitioner was not entitled to any pension before this date in any view of the matter
Having heard learned counsel for the parties we are of the opinion that the pleas raised on behalf of the Municipal Committee have no substance
As seen above the requirement under the notification dated 17th October 1975 with regard to the school the employees of which were entitled to the benefits of the said notification was that it should be an aided school under the Act
The term aided school as defined in Section 2d of the Act means a recognised pri vate school which is receiving raid in the form of mainte nance grant from the Central Government Administrator or local authority or any other authority assigned by the Central Government Administrator or a 1ocal authority
In paragraph 1 of the petition under the caption Facts it has been specifically stated that RM Arya Girls Patshala was granted permanent recognition on 141936 and was also given grant in aid
The averments made in this behalf in sub paragraphs b and c ot paragraph III of the counter affidavit do not seem to seriously challenge what has been stated in paragraph 1 of the petition
It is therefore apparent that the school in which the petitioner was working was such the employees of which were entitled to the bene fits conferred by the notification dated 17th October 1975
The said notification as already pointed out above inter alia provided that in regard to matters not specified in the procedure the provisions of the Central Civil Serv ices Pension Rules 1972 as amended from time to time shall apply
Rule 35 of these Rules provides that a superan nuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retire ment
Rule 83 of these Rules on the other hand inter alia lays down that the pension shall become payable from the date on which a government servant ceases to be borne on the establishment
Since these Rules will apply to the petition er as contemplated by notification dated 17th October 1975 she is obviously entitled to get pension with effect from the date on which sheceased to be borne on the establish ment of the school in which she was working consequent upon reaching the age of superannuation
Rule 126 of the Rules under which the notification dated 17th October 1975 had been issued gives the power to specify procedure for payment of pay and allowances pension and gratuity etc
to the Administrator in consultation with the Accountant General Central Revenues
The very opening words of the said notifi cation make it abundantly clear that the said notification had been issued in exercise of the powers conferred by Rule 126 of the Rules by the Administrator 758 in consultation with the Accountant General Central Reve nues
The notification having thus been issued by the compe tent authority and the petitioner who was an existing em ployee of an aided school on the date of the issue of the said notification having opted for the pension and gratuity within the stipulated period in the prescribed proforma which was duly counter signed by the Education Officer she obviously became entitled to the benefits conferred by the said notification
This is so all the more in view of the fact that the notification dated 17th October 1975 did not contemplate finalisation of the modalities about contribu tion towards pension fund as a condition precedent to the entitlement of the benefits under the said notification
The finalisation of the said modalities was a matter of details among the authorities concerned and could have no bearing on the entitlement to the benefits of the notification dated 17th October 1975
Such finalisation could not even defer the date of the entitlement Likewise the said notification did not contemplate any approval by the Government of India as a condition precedent to its enforceability
In this connection it is also of significance that no statutory provision has been brought to our notice which made approval by the Government of India of the notification dated 17th October 1975 issued by the competent authority as a condition precedent to the enforce ability of the said notification
As seen above for nearly 10 years after her retirement the petitioner was being informed in reply to her various representations that her case was under active consideration
It is only in 1987 that the plea that further action in the matter will be taken by the Department soon after the proposal is approved by the Government of India was raised and the case was referred by the Directorate of Education to the Government of India on 26th March 1987 for policy decision
Why it became necessary to do so in 1987 is a matter of anybody s guess
If at all it only indicates the callous attitude of the authorities concerned towards the fate of retired employees of aided schools in the matter of grant of pension and other retire ment benefits to them
For ought we know but for the sin cere effort made by the Indian Council for Legal Aid and Advice in this case which apparently deserves commendation the agony which the petitioner must have suffered during the long years after her retirement may have remained unnoticed and unmitigated
No acceptable justification having been given for denying the pension to the petitioner from the date of her retirement as also the other retirement benefits the petitioner is obviously entitled to these benefits
In the result this petition succeeds and is allowed
The respon 759 dents are directed to pay to the petitioner pension admissi ble to her in pursuance of the notification dated 17th October 1975 with effect from the date of her retirement and also to pay to her the other retirement benefits
They are further directed to finalise the requisite formalities in this behalf within three months and to issue payment orders immediately thereafter
The petitioner shall be entitled to her costs from respondents 1 and 2 which is assessed at Rs2000
GN Petition allowed


Summary:
Disciplinary proceedings were initiated against the appellant for wilful contravention of Rules 31i and 31iii of the Central Civil Services Conduct Rules
1964 by absenting himself from duty without authorisation and in not reporting to duty at New Delhi office on transfer from London office
Pending proceedings he was allowed to retire voluntarily but was put on notice that the discipli nary proceedings would be continued under rule 9 of the Civil Services Pension Rules 1972
Thereafter on comple tion of the enquiry the President of India in consultation with the Union Public Service Commission decided to with hold the entire gratuity and pension otherwise admissible to the appellant on permanent basis as a measure of punish ment
The appellant s writ petition challenging the legality of the order was dismissed by the High Court in limine
In the appeal by special leave before this Court on behalf of the appellant it was contended that since the appellant had been allowed to retire voluntarily the pro ceedings stood abated and the authorities were devoid of jurisdiction to impose the penalty of withholding gratuity and pension as a measure of punishment and that for award ing the said punishment the appellant must be found to have committed grave misconduct or negligence within the meaning of Rule 85 Explanation b
698 Allowing the appeal this Court HELD 1
Rule 92 of the Central Civil Services Pen sion Rules 1972 provided that the departmental proceedings if instituted while the Government servant was in service whether before his retirement or during his re employment should after the final retirement of the Government serv ant be deemed to be proceedings under the rule and should be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service
701A B In the instant case merely because the appellant was allowed to retire the Government is not lacking jurisdic tion or power to continue the proceedings already initiated to the logical conclusion thereto
The only inhibition is that where the departmental proceedings are instituted by an authority subordinate to the President that authority should submit a report recording its findings to the Presi dent
That has been done and the President passed the order under challenge
Therefore the proceedings are valid in law and are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authori ty ie the President of India
701B D 21 Public employee holding a civil post or office under the State has a legitimate right to earn his pension at the evening of his life after retirement be it on superannuation or voluntary retirement
It is not a bounty of the State
Equally too of gratuity a statutory right earned by him Article 41 of the Constitution accords right to assistance at the old age of sickness or disablement
Therefore when a Government employee is sought to be deprived of his pension ary right which he had earned while rendering services under the State such a deprivation must be in accordance with law
701F G 702D DS Nakara  Ors
vs Union of India   relied on
22 Under Rule 91 of the Central Civil Services Pension Rules 1972 the President has reserved to himself the right to withhold pension in whole or in part whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum
However the exercise of the power is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner com 699 mitted grave misconduct or negligence in the discharge of his duty while in office as defined in Rule 85 Explana tion b which is an inclusive definition ie the scope is wide of mark dependent on the facts or circumstances in a given case
In the absence of such a finding the Presi dent is without authority of law to impose penalty or with holding pension as a measure of punishment either in whole or in part permanently or for a specified period
702G H 704B 703E F In the instant case the Inquiry Officer found that though the appellant derelicted his duty to report to duty at New Delhi on transfer from London it was not wilful for the reason that he could not move due to his wife s illness and he recommended to sympathetically consider the case of the appellant and the President accepted this finding but decided to withhold gratuity and payment of pension perma nently in consultation with the Union Public Service Com mission
703G H 704A The employee s right to pension is a statutory right
The measure of deprivation therefore must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution
The right to gratuity is also a statutory right
The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment
There is no provision of law under which the President is empowered to withhold gratuity as well after his retirement as a measure of punishment
Therefore the order to withhold the gratuity as a measure of penalty is illegal and devoid of jurisdiction
Since there is no find ing that appellant did commit grave misconduct as charged for the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent grave misconduct was not proved
704D G