Krishna Kant Sinha @APPELLANT@Hash State of Bihar

Letter

No.",Date,Months,

1096,30-06-16,"March, April, May,

2016",11-07-16

1596,28-10-16,"June to September

2016",04-11-16

125,31-01-17,"October &

November 2016",02-02-17

274,26-02-17,"December 16 to

February 17",04-03-17

997,15-05-17,"March & April

2017",24-05-17

1073,24-05-17,May 2017,05-06-17

and held as under:-,,,

“18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to",,,

be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide",,,

for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?,,,

What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public",,,

purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so",,,

as to render just justice between parties to this petition.,,,

The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a,,,

right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in",,,

Deokinandan Prasad v. State of Bihar, reported in (1971) 2 SCC 330, wherein this Court authoritatively ruled that pension is a right and the payment",,,

of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is,,,

entitled to claim pension. It was further held that the grant of pension does not depend upon any one’s discretion. It is only for the purpose of,,,

quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but,,,

the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab,,,

v. Iqbal Singh, reported in (1976) 2 SCC 1.â€​",,,

5.2. Having taken note of the observations made by the Hon’ble Supreme Court in the case of D.S. Nakara (supra), in the case of State of",,,

Rajasthan & Ors. v. Mahendra Nath Sharma, reported in (2015) 9 SCC 540, the Hon’ble Supreme Court has observed and held that pension is",,,

not a bounty. It is further observed that the benefit is conferred upon the employee for his unblemished career. It is further observed that it is the duty,,,

of the Government to avoid unwarranted litigation and not to encourage any litigation for the sake of litigation.,,,

5.3. In the case of Deokinandan Prasad v. State of Bihar, reported in (1971) 2 SCC 330, it is observed by the Hon’ble Supreme Court that pension",,,

is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in",,,

a government servant. It is further observed and held that right of the employee to receive pension is a property under Article 31 (1) of the,,,

Constitution of India. It is further observed and held that even the said claim is the property under Article 19(1) (f) of the Constitution of India and it is,,,

not saved by sub-article (5) of Article 19.,,,

5.4. In the case of Grid Corporation of Orissa v. Rasananda Das, reported in (2003) 10 SCC 297, again the Hon’ble Supreme Court has observed",,,

and held that pension is not a bounty but it is a hard-earned benefit for long service, which cannot be taken away.",,,

5.5. While considering the issue with respect to rise in the pension, the Hon’ble Supreme Court in the case of Bharat Petroleum Management",,,

Staff Pensioners v. Bharat Petroleum Corporation Limited, reported in (1988) 3 SCC 32, has observed and held that the rupee has lost its value to a",,,

considerable extent. Pension is no longer considered as a bounty and it has been held to be property. It is further observed that in a welfare State as,,,

ours, rise in the pension of the retired personnel who are otherwise entitled to it is accepted by the State and the State has taken the liability.",,,

5.6. In the case of Poonamal v. Union of India, reported in (1985) 3 SCC 345, it is observed and held by the Hon’ble Supreme Court that pension",,,

is not merely a statutory right but it is the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in case of,,,

unemployment, old-age, disablement or similar other cases of undeserved want. It is further observed that relevant rules merely make effective the",,,

constitutional mandate. Pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the,,,

Government but it is governed by the relevant rules and anyone entitled to the pension under the Rules can claim it as a matter of right.,,,

5.7. In the case of PEPSU RTC v. Mangal Singh, reported in (2011) 11 SCC 702, the Hon’ble Supreme Court had occasion to consider the nature",,,

and object of ‘pension’. It is held that the ‘pension’ is in a nature of right which an employee has earned by rendering long service to the,,,

employer. It is a deferred payment of compensation for past service. It is further observed that the object of providing pensionary benefit is to provide,,,

social security to the employee and his family after his retirement from the service. It is further observed that Government’s/employer’s,,,

obligation under the Pension Scheme begins only when the employee retires and it continues till the death of the employee. It is a right attached to the,,,

office and cannot be arbitrarily denied. It is further observed that pension is a periodic payment of an amount to an employee, after his retirement from",,,

service by his employer till his death. It is observed in the said judgment that ‘pension’ is not a charity or bounty nor is it a conditional payment,,,

solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is a social security plan consistent with,,,

the socio-economic requirements of the Constitution rendering social justice to a superannuated government servant.,,,

5.8. In the case of Subrata Sen v. Union of India, reported in (2001) 8 SCC 71, it is observed by the Hon’ble Supreme Court as under:",,,

“Pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for",,,

the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled,,,

for the employer on an assurance that in their old age they would not be left in the lurch.â€​,,,

5.9. In the case of State of Jharkhand v. Jitendra Kumar Srivastava, reported in (2013) 12 SCC 210, it is observed and held by the Hon’ble",,,

Supreme Court that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished",,,

service. It is thus a hard benefit which accrues to an employee and is in the nature of “propertyâ€. It is further observed and held that this right to,,,

property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India.,,,

Having heard learned counsel appearing on behalf of the respective parties and the law laid down by the Hon’ble Supreme Court in the,,,

aforesaid decisions referred to hereinabove, not settling the retiral dues of the retired employees at the earliest and/or not paying the pension to the",,,

retired employees regularly are affecting the rights of such retired employees. It will be affecting their right to life, right to live with dignity, right to",,,

property. Any delay on the part of the employers/Universities/State Government in not settling the retiral dues/pensionary benefits/pension and not,,,

paying the retiral dues/pensionary benefits/pension regularly every month as and when due and payable cannot be tolerated. As such, the State, being",,,

the model employer, and even the Universities and employers should have come out with a policy so that retiral benefits/pensionary benefits are",,,

settled at the earliest and they are paid the pension regularly every month as and when payable. However, unfortunately, both the Universities and the",,,

State Government are blaming each other and despite the joint meetings, they have failed to evolve any policy with respect to the retirement",,,

benefits/pensionary benefits/ payment of pension regularly.,,,

6.1. At this stage, it is required to be noted that every year, the Universities are required to estimate their budgets as per the expenditure, including the",,,

payment of retirement benefits likely to be incurred in the financial year. The Universities are as such within the knowledge that how many employees,,,

are going to retire in any financial year. Therefore, while sending proposal with an estimated budget for a particular financial year, the Universities are",,,

required to consider the employees, who are likely to retire on attaining the age of superannuation, so that all those are paid the retiral benefits at the",,,

time of their retirement and thereafter they are paid the pension if they are entitled to pension regularly every month. Every month, the retired",,,

employees are not required to wait and beg and the retired employees are not required to be paid the pension as per the sweet will of the Universities,,,

and the State Government. The Universities and the State Government are bound to make provision in advance so that all those retired employees are,,,

paid the pension regularly every month. Similarly, the settlement of retirement benefits are also required to be completed on or before the actual date",,,

of retirement of the concerned employee and the said exercise shall be completed much in advance so that on the date of retirement, he must get the",,,

retiral benefits which as such his right to get and which is considered and held to be right to property.,,,

6.2. In view of the above and for the reasons stated hereinabove, the present petition is allowed and the following directions are issued to the",,,

respondent- State of Bihar and the respondent-University. It is further observed and held that the following directions shall be applicable to the retired,,,

employees to all other Universities of the State of Bihar also.,,,

(i) That the Universities shall send the estimated budget in advance, including the amount of retiral benefits/pensionary benefits/ pension to the retired",,,

employees, which are to be made in the next financial year. The same shall be in the prescribed format so that the State to make the budgetary",,,

provision and release the grant in favour of the concerned University accordingly in advance.,,,

(ii) That the Universities shall settle the retiral benefits/ pensionary benefits which may be available to the concerned employee on his retirement on,,,

attaining the age of superannuation or otherwise well in advance and, at least, three months before his actual date of retirement and he shall be paid",,,

the retiral benefits due and payable immediately on his retirement and on attaining the age of superannuation, failing which he shall be entitled to",,,

interest on the delayed payment of retiral benefits/pensionary benefits.,,,

(iii) That the State Government must release the grant of the salary/pension to be paid to the retired employees in advance and in any case release the,,,

grant of three months in advance, meaning thereby, for example, for the month of March, 2018, the grant must be released and paid to the concerned",,,

University/Universities in the month of December, 2017/ January, 2018 and so on, so that every month the concerned retired employee is paid the",,,

pension regularly and on or before the 7th day of every English calendar month, meaning thereby the Universities and the State Government are",,,

hereby directed to pay the pension to the retired employees every month regularly between the 1st and 7th of every English calendar month.,,,

6.3. Present writ petition stands disposed of and allowed to the aforesaid extent with the above directions.,,,