Pension Is A Property Under Article 31(1), Any Interference With It Violative Of The Constitution: J&K High Court

Protecting the pension rights of a retired Sanitary Inspector the Jammu and Kashmir and Ladakh High Court has reiterated that pension a hard-earned benefit which accrues to an employee, constitutes “property” under Article 31(1) and any interference will be a breach of Article 31(1) of the Constitution.Deciding a plea involving questions of the pensionary rights of an employee a bench of Justice M A Chowdhary quoted 'Deokinandan Prasad v. State of Bihar',(1971) & 'D. S. Nakara v. Union of India', reported as '(1983) wherein the Apex Court observed,“..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.”Background:Mohammad Shafi, a former Sanitary Inspector in the Indian Army, served the force for over 20 years. However, upon retirement, the authorities withheld his pension benefits citing a technicality that the post of Sanitary Inspector was allegedly not sanctioned by the competent authority on the SPARSH portal, an online platform for pension processing.Shafi challenged this denial of benefits and approached the High Court through the medium of the instant petition.Advocate Areeb Javaid Kawoosa argued that despite the absence of formal sanction on the portal, Shafi had demonstrably discharged the duties of a Sanitary Inspector for over two decades. The government's acceptance of his service for such a prolonged period amounted to implicit sanction and denying him pension based on a technicality, especially after such dedicated service, infringed upon his fundamental right under Article 31(1) of the Constitution, he argued.Mr. Tahir Shamsi DGSI for the respondents contended that the petitioner's promotion to Sanitary Inspector didn't adhere to rules, rendering him ineligible for pension benefits associated with that position. He emphasized the lack of proper authorization from Army Headquarters for creating new posts, suggesting the petitioner's promotion was invalid. Therefore, he argued, the petitioner couldn't claim pension benefits for the Sanitary Inspector role.Court Observation: Upon meticulously examining these arguments Justice Chowdhary acknowledged the well-established legal position on pension rights, citing Supreme Court judgments which have repeatedly recognized pension as a right earned through service, not a mere government handout.“..the right of pension cannot be taken away by a mere executive fiat or administrative instruction…..pension and gratuity are not mere bounties or given out of generosity by the employer, but the employee earns these benefits by virtue of his long, continuous, faithful and unblemished service”, the court recorded.Scrutinising details of the case the bench observed that Shafi had served diligently for over 20 years, fulfilling all the responsibilities associated with the role of a Sanitary Inspector. The government's acceptance of his service throughout this period was undeniable, the court pointed and emphasized that any administrative delay or lapse on the part of the government in formally sanctioning the post on the SPARSH portal could not be used to deprive Shafi of his rightful pension.“The Respondents seem to have slept over the matter for a period of more than two decades and had taken services of the Petitioner as Sanitary Inspector and, now, they cannot be permitted to take a U-turn by saying that the post held by the Petitioner was not sanctioned by the competent authority”, the bench remarked.Quashing the government's communications denying Shafi's pension benefits the court directed the authorities to conduct a proper review through the SPARSH portal and release all his pensionary benefits, including gratuity, calculated based on the last pay drawn as a Sanitary Inspector.Case Title: Mohammad Shafi Vs Union Of IndiaCitation: 2024 LiveLaw (JKL) 118Mr Areeb Javed Kawoosa, Advocate appeared for the petitioner, Mr Tahir Majid Shamsi, DSGI represented the respondentsClick Here To Read/Download Judgment

Pension Is A Property Under Article 31(1), Any Interference With It Violative Of The Constitution: J&K High Court

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