Case: Deokinandan Prasad Vs. State Of Bihar &amp; Ors

4. The petitioner joined service as an Assistant Teacher on September 1, 1928 in the Patna Practising School and was promoted as Sub-Inspector of Schools, Lower Division, in the Subordinate Educational 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 1, 1949. The State of Seraikella having merged in the erstwhile province of Bihar, the provincial 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 Education 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 superior officers including the Director of Public Instruction and hence he was recommended to be appointed to a superior post of Education Officer in the Community Project. By about the end of 1951, he was transferred to Purulia in the district of Manbhum as Additional Deputy Inspector of Schools. The petitioner was later on transferred to Bettiah in or about May, 1953. At Bettiah the petitioner received 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 him. 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 petitioner5. The petitioner 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 were later on set aside and a fresh inquiry was ordered. In consequence the order of suspension was cancelled, but immediately thereafter a fresh inquiry was conducted in which he was again found guilty as per the report of the Inquiry Officer dated 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 Inquiry Officer recorded against 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 petition6. It is not necessary for us to deal in any detail about the first and the second order as both those orders are now concluded against the petitioner by the decisions of the High Courts7. The petitioner filed title 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 of censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960. Though the suit was 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 allowed, with the result that the petitioners title suit No. 86 of 1961 stood dismissed. The petitioners Second Appeal No. 640 of 1964 was dismissed by the High Court on May 4,1967. From these proceedings it is clear that the order of censure dated September 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 the attack of the petitioner against the legality of the orders dated August 3, 1966 and June 12, 1968. When the order of reversion dated March 5, 1960 was passed, the petitioner was working 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 for leave. According to the petitioner, he obtained an order of temporary injunction on October 5, 1961 in his 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 Educational Service. Though he offered to join the 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, Patna8. 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, 1965 under Rule 76 of the Bihar Service Code". The petitioner made representations for cancellation of this order but without any success. This is the third order that is being challenged9. 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 petitioners pension. No reply was received by the petitioner for a long time in spite of repeated reminders. Ultimately on June 12, 1968 the Director of Public Instruction passed orders on the petitioners application dated July 18, 1967 regarding payment of pension. In this order it is stated that under Rule 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.

Reasoning:
17. 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 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 11, 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 basis18. 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 the orders of the Civil Court. In this connection, on behalf of the petitioner, Mr. Bishan 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 reply 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 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 continuously for more than five years only from March 11, 1960 and he ceased to be in government employ on March 2, 1965. Without anything more it can be easy 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 years34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub - article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law35. To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under Rule 76 of the Service Code that the petitioner has ceased to be in Government employ is set aside and quashed. The order dated June 12, 1968 stating that under Rule 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a Writ of Mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law.