SALABUDDIN MOHAMED YUNUS Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The appellant joined 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 on January 26, 1950, the former Indian State of Hyderabad became apart 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 1, 1947, being the date from which the recommendations of a Pay and Service Commission which had been set up had been implemented 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 aforesaid claims were negatived by the Government in spite of several 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 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 negatived 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 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. 1,000 (Osmania Sikka being the currency of the former Indian State of Hyderabad) and, therefore, the appellant was entitled to receive a pension of only Rs. 857.15 per month being the equivalent in the Government of India currency of O. S. Rs. 1000.

(2.) In order to understand this defence taken by the respondent, it is necessary to mention that at the date when the appellant joined service, his terms and conditions of service were governed by 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 Government servant retired from the service of the Government. Under Cl. (b) of Regulation 313. The maximum pension ordinarily admissible for superior service to which the appellant 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 1, 1953 and by Section 2 of the Hyderabad Currency Demonetization (Consequential and Miscellaneous Provisions) Act, 1953 (Hyderabad Act No. 1 of 1953), references express or implied inter alia in any Regulation in force in the Hyderabad State immediately before the commencement 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 Regulations were replaced with effect from October 1, 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 of India. 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 when he retired from the service of the Government. Under Cl. (8) of Rule 299(now Clause (b) of sub-rule (1) of Rule 299) the maximum pension ordinarily admissible for superior service was to be Rs. 1000 a month. The contention of the respondent was that the expression Rs. 1000 a month in the said Clause (B) really meant O. S. Rs. 1000 a month and that the qualifying letters "O. S." were omitted by an inadvertant printing error. By a memorandum, being Memorandum No. 27439/540/Pen. 1/64 dated April 28, 1969, the Assistant Secretary 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 (b) of Rule 299 to O. S. Rs. 1,000. In Writ Petition No. 3318 of 1969, Daulat Rai v. State of Andhra Pradesh a learned single Judge of the said 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 without 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, State of Andhra Pradesh v. Daulat Rai. The said Division Bench also rejected an application made by the State for a certificate 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 appellant was entitled only to a pension of Rs. 857.15 per month was bound to fail. However, during the pendency of the appellant's writ petition, by a Government Notification, dated February 3, 1971, the said Clause (b) of sub-r. (1) of R. 299, as if had then become, was amended with retrospective effect from Oct. 1, 1954. By this amendment 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 the powers conferred by the proviso to Article 309 read with Article 313 of the 'Constitution of India. The learned single Judge who heard the appellant's writ petition hold that in view of the judgment of this. Court in Deokinandan Prasad v. State of Bihar. (1971) Suppl. SCR 634 the right to receive, pension was property and was a fundamental right guaranteed both by Article 19 (1) (f) and, Article 31 (1) 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 therefore, allowed the said writ petition to the extent that the appellant 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.

(3.) The respondent filed a Letters Patent Appeal against the judgment of the learned single Judge, being Writ Appeal No 628 of 1974. The appellant did not dilw ny file any cross appeal. The Division Bench which heard the said appeal held that in Deokinandan Prasad's case (supra) this Court did not hold that a pensioner was entitled 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 law. It further relied upon 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 in which the same Bench had held that the amendment made in the said Clause (b) of R. 299 (1) by the said Notification dated February 3. 1971, was valid. The Division Bench, accordingly 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.