Judgment:
ORDER
G.S. Singhvi, J.
1. Having served the Government faithfully and with sincerity the petitioner was forced to make representations one after another for getting post-retirement benefits and ultimately knock the doors of this Court under Articles 226 and 227 of the Constitution of India.
2. Admitted facts of the case are that the petitioner retired from service with effect from31.3.1992 on attaining the age of superannuation. He had requested the Sub-Divisional Education Officer, Rohtak, as early as on 31.10.1992 thathis case for pension was not being forwarded. He also prayed that if there was some defect or deficiency in his pension case, order for provisional pension be issued. Then it was held out to the petitioner that his service book was missing and efforts were being made to trice out. The petitioner ran from pillar to post for completing his service book and other papers so that he could persuade the departmental authorities to release his attempts proved futile. He was not even allowed to cross the efficiency bar which was due on 1.10.1986.
3. Petitioner's case is that delay in payment of pension and other retiral benefits has caused him immense prejudice and has violated his fundamental rights guaranteed by Articles 14 and 19 of the Constitution and failure of the respondents to pass appropriate orders for allowing him to cross efficiency bar has resulted in infringement of his legal right
4. Respondents have pleaded that on account of non-availability of the service book and complete record relating to the petitioner, his pension case could not be finalised in time. It was ultimately finalised in October, 1993 and PPO/GPO were issued on 1.11.1993. Respondents have also given out that earlier the petitioner had sued the Government and prayed for injunction against his retirement witheffect from 31.3.1992 but he had failed in that effort.
5. From the pleadings of the parties it is clear that in so far as the claim of the petitioner for allowing him to cross efficiency bar with effect from 1.10.1986 is concerned respondents have not said a word as to why the petitioner was not allowed to cross efficiency bar. They have not come forward with the case that the service record of the petitioner was adverse or that he had been punished in a departmental enquiry and for that reason he was not allowed to cross efficiency bar. Total absence of any averment by the respondents justifying their failure to pass Appropriate order for allowing the petitioner to cross efficiency bar is by it self sufficient to conclude that the respondents have arbitrarily withheld efficiency bar of the petitioner and therefore, it is just and proper to give a direction to the respondents to allow the petitioner to cross efficiency bar with effect from 1.10.1986 and give him all consequential benefits.
6. In so far as pension and other retiral benefits due to the petitioner are concerned the only justification put forward by the respondents is that the petitioner's service book was not traceable and some papers were not complete. According to the respondents; efforts had been made by departmental authorities to trace out the service book of the petitioner and then pensionpayment order as well as gratuity payment order were issued on 1.11.1993. In my considered opinion, the explanation offered by the respondents cannot be accepted. Service book of the petitioner was maintained by the departmental authorities and was their duty to have kept a track of the service book of the petitioner as well as his other service record. Neither any service rule nor any provision of any statute imposes a duty on the Government servant to maintain his service record. Completion of pension papers before the retirement of the Government servant is also obligatory for the departmental authorities. If any deficiency is found in the pension papers it is for them to call upon the Government servant to remove that deficiency. In the present case it is not the plea of the respondents that any deficiency was found in the pension papers of the petitioner and he had failed to remove it despite intimation. Therefore, by denying pension and other retiral benefits, the respondents have clearly violated the petitioner's constitutional right relating to property. Till 42nd Amendment in the Constitution was brought into force, the property right was a fundamental right under Article 19(1)(f) of the Constitution of India. With that amendment property right no more remains a part of fundamental rights, but nevertheless it is a . constitutional right and in terms of Article 300A a person can be deprived of his property only in accordance with the procedure laid down by law. Denial of pension and other retiral benefits to the petitioner without any justification gives rise to an irrebuttable presumption that the petitioner has been denied those benefits without any authority of law. In Deokinandan Prasad v. The State of Bihar, A.I.R. 1971 S.C. 1409, their Lordships of the Supreme Court declared 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. The Supreme Court further held that the grant of pension does not depend upon an order being passed by the authorities of that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorflows to the officer employee not because of the said order but by virtue of the Rules.
7. It is important to note that in Deokinandan Prasad's case (Supra), the Supreme Court has affirmed the observations made by this Court in Bhagwant Singh v. Union of India, AIR 1962 Punjab 503, and a Full Bench judgment of this Court in K.R. Erry. State of Punjab, A.I.R. 1967 Punjab 279. It is also important to note that the judgment of this Court in K.R. Erry's case (Supra) was ultimately upheld by the Supreme Court in the State of Punjab v. K.R. Erry and Sobhrag Rai Mehta, 1972 S.L.R. 836. The Supreme Court has reiterated its earlier view regarding the nature of pension and gratuity while dismissing an appeal of the State of Punjab against the judgment of the this Court in State of Punjab and Anr. v. Iqbal Singh, A.I.R. 1976 S.C. 667. The same view has been taken in State of Kerala and Ors. v.M. Padmanabhan Nair, AIR 1985 S.C. 356. In that judgment of Supreme Court has held:-
'Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The liability to pay penal interest on these dues at the current market rate commences at the expiry of two months from the date of retirement.'
The concept of life as enshrined in 'Article 21 of the Constitution of India has received wider interpretation at the hands of the Supreme Court during the last two decades and right of employment has also been considered as a part of right to life guaranteed by Article 21 (refer to Delhi Transport Corporation v. D.T.C. Mazdpor Congress, 1991 Supp. (1) SCC 600) and D.K. Yadav v. J.M.A. Industries Ltd., (1993)3 S.C.C. 259. In view of the fact that even the right of employment has been treated as a part of right to life as enshrined in Article 21 of the Constitution of India, I have no hesitation in holding that by denying payment of pension and other retiral benefits to the petitioner with effect from the date of his retirement the respondents have dearly violated his fundamental as well as constitutional rights.
8. Although the respondents have stated that they have made the payment of pension and other retiral benefits after 1.11.1993, the petitioner would be entitled to get interest with effect from the date his pension and gratuity became due to him.
9. In the result the writ petition is allowed. The respondents are directed to issue appropriate orders within two months from today for allowing the petitioner to cross efficiency bar with effect from l.10.1986 and to give him all consequential benefits within the next four months. The respondents should pay 18% interest to the petitioner on the amount of gratuity and pension. On the amount of gratuity the interest should be paid from 1.4.1992. In respect of the amount of pension the interest shall be calculated monthwise with effect from 1.5.1992.