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CONCEPT OF PENSION: By M.A. Rasheed (M.Sc .LLM, PGDCL & IPR)
It is accepted position of law that pension and gratuity are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. In case of a civil servant whose service conditions are governed by statutory rules; pension, a deferred salary, is a right and the payment of pension/gratuity does not dependent upon the discretion of the Government. Government servant coming within the Rules is entitled to claim pension. The right to receive pension flows not by any order to that effect but the right to receive pension flows by virtue of the Rules governing pension and gratuity.
The Supreme Court in D.S> Nakara vs. Union of India placing reliance upon the Constitution Bench decision rendered in Deokinandan Prasad vs. State of Bihar, and State of Punjab vs. Iqbal Singh, observed as follows:
“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 Deoki Nandan Prasad (supra) 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 maters 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 Iqbal Singh.”.
The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.”Provided that the State Public Service Commission shall be consulted before any final orders are passed”
Thus the hard earned benefit which accrues to an employee is in the nature of ‘property’. This right of property cannot be taken away without due process of law as per the provisions of Article 300-Aof the Constitution of India. It, therefore, follows that executive instructions not having statutory character and, therefore, cannot be deemed as ‘law’ within the meaning of Article 300-A.The State Government cannot withhold even a part of pension or gratuity if there is no provision for withholding pension or gratuity in the given situation. For withholding of pension or gratuity there must be an express provision in the Rules failing which the State Government is not competent to withhold pension or gratuity on the strength of executive instructions not having the force of law. (Refer: State of Jharkhand vs. Jitendra Kumar Srivastava and others; U.P. Raghavendra Acharya vs. State of Karnataka).
The Supreme Court of India in its judgment in Civil appeal No. 1123 of 2015 ruled that pension is a right and the payment of it does not depend upon the discretion of the Government. Pension is governed by rules and a Government servants coming within those rules is /are entitled to claim the pension.
The Government cannot take a plea of financial burden to deny the legitimate rights of the pensioners. The G.O. issued by the Government is with regard to the deferment of salary to the employees including All India Services. Pension is not the salary as per the above judgment of the Hon’ble Supreme Court of India. The decision of the Government for deferment of pension / cut in pension is against the statute and the Government should take back the G.O. No rule prescribed to stop pension, as pension is not the salary payable by the Government but it is the benefit that earned by the employee while serving.
The decision of the Government is condemnable and appears to be hasty and wrong. The Government cannot withhold pension under the pretext of deficit financing. Certainly it is a shock to the pensioners and the employees, which is never heard. Instead of deferring pension to the retired employees the Government should have order to cut/deferred the pension payable to public representatives as they are in far better financial position than the retired employees i.e pensioners. Public representatives incur huge money, beyond the limit prescribed by the Election commission, to get elected as such they are very rich when compare to poor pensioners. The decision of the government is an unfair policy and hardship to the pensioners. The Hon’ble Chief Minister by announcing and implementing gracious schemes has earned good name and became beloved of Telangana peoples but by issuing the G.O.27, cut in Salary and pension wiped out his graciousness’. Forceful deferment in salary and pension created resentment among the employees and the pensioners and there cannot be escape goat in the name of deficit financing. There are other methods to combat the deficiency in finance which is being implemented by the Delhi Chief Minister. Other State Governments have also ordered deferment of salary to its employees except pensioners. Pensioners’ already suffering having received 50% of the last pay drawn and further deferment of 50% is undesirable and illegal. (Press Media of India)
