SALABUDDIN MOHAMED YUNUSversusSTATE OF ANDHRA PRADESH

          930

                                                                                               \
     A

                             SALABUDDIN MOHAMED YUNUS

                                                     v.

 B                             STATE OF ANDHRA PRADESH

                                          September 28, 1984

              (Y. V. CHANDRACHUD, C. J., D. P. MADON AND

 c                              RANGANATH MISRA,           JJ.J

                Constitution of lodia 1950, Articles 19 (/) (/), 19 (5), 31

              Hyderabad Civil Service Regulations Rt1/e 299 (!) (b) and State Government
          Notification dated February 3, 1971

D            Pension-Right to-A fundamental right-Whether could be curtailed or taken
          away by the State by an executive order.

              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 B State and the Appellant continued in the
E        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 l, 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.
F
              The Appellant thereupon filed a writ petition in the High Court against the
          Re&pondent-State of Andhra Pradesh, which was the principal successor State
         to the erstwhile State, which was contested under Regulation 6 of the Hydera-
         bad 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
G        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 clau...;;;c (b) of sub·rule (1) of
         Rule 299) the ma;\imum pension ordinarily admissible for superior service wa~
ff       to b~ Rs. 1,000 a month,
                    &.M. YUNUS v. ANDHRA PRADESH                               931

     During the pendcncy of the writ petition, the Government by a Notification        A
dated February 3, 1971 amended clause (b) of sub-rule (1) of Rule 299, with
retrospective effect from October l, 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 Lhe powers conferred by the proviso
to Article 309 read with Article 313 of the Constitution of India.

     The Single Judge who heard t11e Appellant's writ petition rejected the claim      B
made by the Appellant with respect to salary on the ground that the said clain1
had been negatived by the Government as far back as 1955 and mere:y by
making representations to the Go,•ernment he could not keep the said claim
alive. He however held that in 1tiew of the judgment of this Court in Deoki-
nandan 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         c
by a rule made subsequently under the proviso to Article 309, and allowed the
writ petition to the e.<:tent that the Appellant was entitled to get his future pen-
 sion 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.
                                                                                       D
     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 A11dhra Pradesh v. Ah"zed H:1ssain Khan and State
of Andhra Pradesh v. S. Gopalan upholding the validity of the amendment made           E
in clause (b) of Rule 299 (l) by the Notification dated February 3, 1971, allowed
the appeal and dismi-;.se j the writ petition of the appellant.

          Allowing the Appeal to this Court,

     HELD : The relevance placed by the Division Bench upon its earlier deci-
sion in the two writ appeals (Ahmed Hussain Khan and S. Gopalan) was mis-              F
conceived. The two appeals arose out of separate writ petitions filed by two
Government servants who had joi1ed th'! ~'!rvice 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 th~ letter dated April 28, 1973 from the Joint
Secretary to the Government of India, Cabinet Secretariat did not amount to a
                                                                                           G
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 (I) and (2) of Section 115 of the State~ Reorgaaiz.1-
tion Act, 1956. [936D-G]

     In the instant case, the Appellant had retired prior to the appointed day,
 Nc;>v~!Db~r 1~ ~9,56. He tPerefore Q.id no~ fall 1:1Ddef either sµQ-~ec;t~oo (1) or       H
     932                  SUIMtiME COURT REPORTS                        (1985] l S.C.R.

A    sub~section (2) of section 115 and the proviso to sub-section (7) of that section
     had no application to hin1. The amendment to the Rules, so far as he was con·
     cerncd, did not, therefore, require any previous approval of the Central Govern-
     ment 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
B    curtailed in the manner provided in the Constitution, {938E}

         Jn 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 (l) (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
c    of his retirement or in any event to curtail and abridge that right. To that
     extent, the said amendment was void. [938H ; 939AJ

          3. The Appellant was entitled to succeed in view of the judgment of this
     Court in Deoki'nandan 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 wiU and pleasure of the Govern·
D    meat but is a right vesting in a Government servant and was property under
     clause (1) of Article 31 of the Consti1utioll and the State had no power to with·
     hold the sa.me 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
E    by the State by an executive order. [937H; 938A-D]

         4, The fact that sub-clause (f) of clause (I) of Article \9 and Article 31 have
    been omitted from the Constitution by the Constitution (Forty-fourth Amend-
    ment 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]
F
         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 JuJgmcnt 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
G   of India currency. [939D-E]



          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2629 of
    1977.
         Appeal
           .
                by. Special leave from the Jud$ment and Order dated the
           S.M. YUNUS v. AND!lltA PlUDESH (Madon, J.)        933

2nd February, 1976 of the Andhra Pradesh High Court in Writ         A
Appeal No. 628 of 1974.

     A. Subba Rao for the Appellant.

     U.R. La/it, and G. Narasimhulu for the Respondent.
                                                                    B
     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 Constitu-
tion of India. On the coming into force of the Constitution of
India on January 26, 1950, the former Indian State of Hyderabad       c
became a part of the territory of India as a Part B 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
 I, 1947, being the date from which the recommendations of a Pay      D
and Service Commission which had been set up had been implemen·
ted 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 afore-
said claims were negatived by the Government in spite of several      E
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   F
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 negativ-
ed 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 .G
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. l,000 (Osmania
Sikka being the currency of the former Indian State of Hyderabad)
and, therefore, the Appellant was entitled to receive a pension Of    H
     934              SUPREME COURT REPORTS                 (19S5j 1 s.c.R.

     only Rs. 857.15 per month being the equivalent in the Government
     of India currency of 0.S. Rs. 1,000.
                                                                              •
            In order to understand this defence taken by the Respondent,
      it is neccessaty to mention that at the date when the Appellant
      joined service, his terms and conditions of service were governed by
B     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 Govern-
      ment servant retired from the service of the Government. Under
     clause (b) of Regulation 313, the maximum pension ordinarily
c     admissible for superior service to which the Appeliant 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 l, 1953, and by
     section 2 of the Hyderabad Currency Demonetization (Consequen-
     tial and Miscellaneous Provisions) Act, 1953 (Hyderabad Act No.I
D    of 1953), references express or implied inter alia in any Regulation
     in force in the Hyderabad State immediately before the commen-
     cement 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
E   Regulations were replaced with effect from October l, 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 oflndia.
    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
F
    when he retired from the service of the Government. Under clause
    (b) of Rule 299 (now clause (b) of sub-rule (I) of Rule 299) the
    maximum pension 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
G   meant O.S. Rs. 1000 a month and that the qualifying letters "O.S."
    were omitted by an inadvertent printing error. B~. ~-memorandum,
    being Memorandum No. 27439/540/Pen.I/69 dated April 28,1969,
    the Assistant Secretqry 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 (bl of Rule 299 to
H   O.S. Rs. 1,000. In Writ Petition No. 3318 of !969c-Dau/t Rai and
               s.M:. YUNUS v. ANDH'.RA PRADESH (Madon, J.)        9j5

Others v. State of Andhra Pradesh-a learned Single Judge of the said       A
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 with-
out 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-               B
State of Andhra Pradesh v. Dau/at Rai and Others. The said Division
Bench also rejected an application made by the State for a certifi-
cate 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 Appel-
 lant was entitled only to a pension of Rs. 857.15 per month was           c
 bound to fail. However, during the pendency of the Appellant's
 writ petition, by a Government Notification dated February 3, 1971,
 the said clause .(bl of sub-rule (I) of Rule 299, as it had then
 become, ivas amended 'i'ith retrospective effect from October 1,1954,
 By this amendment the expression 'R;. 1000 a month' in the said           D
 clause (bl 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
 oflndia. 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 oJ: Bihar and Others (1 ) the right to        E
 receive pension was property and was a fundamental right guarante-
  ed both by Article 19(ll(fJ and Article 31 (!)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     F
 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.
                                                                           G


     The Respondent Bled a Letters Patent Appeal against the
judgment of the learned Single Judge, being Writ Appeal No. 628

   (t)   [1971] Supp. S.C.R. 634.                                          H
    936               stJPilEME COURT REPORTS             [1985j 1 S.C.R.

A    of 1974. The Appellant did not file any cross appeal. The Divi-
    sion Bench Which heard the said appeal held that in Deokinandan
    Prasad's case this Court did not hold that a pensioner was enti-
    tled 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 1aw. It further
B   relied npon its decision given in .Writ Appeal No. 835 of 1974-
    State of Andhra Pradesh v. Ahmed Hussain Khan-heard along with
    Writ Appeal No. 920 of 1974-State of Andhra Pradesh v. S.
    Gopalan-·ln which the same Bench had held that the amendment
    made in the said clause (b) of Rule 299 (!) by the said Notification
    dated February 3, 1971, was valid. The Division Bench accor-
c   d ugly allowed the said appeal and dismissed the Appellant's said
    writ petition with no order as to the costs. It 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.
0
           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 seperate writ
    petitions filed by two Government servants who had joined the
    service of the former Indian State of Hyderabad and had retired
E   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 (I) or sub-section (2) of section
F   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
G   Court. The Division Bench had, however, held in the above two
    appeals that a letter dated April 28, 1973, from the Joint Secre-
    tary 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-sec-
    tion (7) of the said section 115. The said two Government ser-.
H   vants thereupon filed appeals in this Court by special leave granted
               s.M. YUNUS v. AHDHRA PRADESH (Madon, J.)            937

    by it, being Civil Appeal No. 2627 of 1911-Ahmed Hussain Khan             A
    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,              B
   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 (!) and (2) of the section
   ll5. Sub-section (1) of section Jl5 refors to every person who
   immediately before the appointed day, namely, November 1,
   1956, was serving in connection with the affairs of the Union              c
  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
                                                                              0
  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        E
 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(!) or sub-section (2)
 of the said section 115 and proviso to sub-section (7) of that           F
section had no application to him. The amendment to the Rules,
so far as he was concerned, did not, therefore, require any pre-
vious approval of the Central Government even though thereby
the conditions of his service were being varied to his disadvan-
tage.
                                                                          G

      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
pivision Ben9h has misl!nderstoocl the ratio 6f that clecision.           q
    938              SUPREME COURT REPORTS                   [1985] 1 s.c.R.

A   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
    rnles is entitled to claim pension. It was further held that the grant of
    pension does not depend upon an order being passed by the authori-
    ties to that effect though for the purpose of quantifying the amount
B   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 (I) 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 (I) 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
D    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.
E   So far as Article 31 (I) 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 doae for a public purpose nor was
    any compensation being &iven 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 (I) (f) is concerned,
F   the fundamental right under that sub·clallse could be restricted
    only as provided by clause (5) of Article 19. That clause has
    no application to a ri~ht to receive pension which is property
    under sub-clause (f) of Article 19 (IJ 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 (5) 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
H   retrospective ame~dment to the saic;I Rule 299 (I) (b) more th~!!
                S.M. YUNUS v. ANDHRA PRADESH (Madon, J.}            939

    fifteen years after that right had accrued to him, what was done
1   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 amend·
    ment was void. The fact that sub-clause (f) of clause (!) of Article
    19 and Article 31 h3Ve been omitted from the Constitution by the
    Constitution (Forty-forth Amendment) Act. 1978, with effect from       B
    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        c
    High Court appealed against and restore the order passed by the
    learned Single Judge. We direct the Sta le of Andhra Pradesh to
    pay to the Appellant the amounts due to him aceording 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 moath in the Government of India             D
    currency.

        The Respondent will pay to the Appellant the costs of this
    Appeal.                                                                E




    N.V.K.                                              Appeal allowed.