PUSHKAR NATH NEHRU Vs. ADMINISTRATOR NOW

JUDGEMENT

(1.) This appeal on certificate directed against the judgment and order of the Jammu and Kashmir High Court dated September 29, 1961 raises a question as to whether the late Shri B. N. Nehru, father of the present appellants, (hereinafter referred to as the 'petitioner') was entitled to pension under sub-s. (3) of S. 28 of the Jammu and Kashmir Municipal Act, Samvat 1998, as amended by the Jammu and Kashmir Municipal (Amendment) Act, Samvat 2008, read with R. 5 of the Jammu and Kashmir Pension Rules. 1951.

(2.) The facts leading up to the appeal are as follows, On January 1, 1925 the petitioner was appointed to be the salaried President of the Municipal Committee, Srinagar. He continued to function as such till August 14. 1939 when he was abruptly removed from his office by an Order-in-Council dated August 8, 1939 on the ground of gross inefficiency. culpable negligence and deliberate evasion of responsibility. His appeal as well as the review to His Highness the Maharaja of Kashmir were withheld by Ramchandra Kak. the then Chief Secretary and he dismissed the same. In 1945 the petitioner brought Civil Suit No. 17 of Samvat 2002 in the Court of the District Judge for declaration that the termination of his service was wrongful and that he was entitled to continue in his office and to all his rights and privileges. The District Judge, Srinagar by his judgment dated January 5, 1953 substantially dismissed the suit except that he granted a decree for one month's wages in lieu of notice as required under S. 28(3), on the ground that the petitioner held his office during the pleasure of the Government and therefore the Court had no jurisdiction to entertain any suit for declaration of his wrongful dismissal. Although the learned District Judge held that the Court could not grant any relief, except to the extent indicated, he adversely commented upon the arbitrary and illegal manner in which the petitioner had been removed from his post without formulation of any charges and without being afforded an opportunity of a hearing which was not warranted by the facts and the Rules. On appeal, the High Court in First Appeal No. 12 of 2010 affirmed the decree of the learned District Judge. It shared with the learned District Judge its unhappiness about the abrupt manner in which the services of the petitioner had been dispensed with the left open the question of grant of some gratuity or subsistence allowance to compensate him for the loss sustained and the hardship caused.

(3.) The petitioner made a representation to the Government in accordance with the directions of the learned District Judge for grant of pension but the same was rejected by the Government on September 4, 1954 on the ground that his services having been terminated on August 14, 1939 i.e. prior to September 20, 1944, the date mentioned in R. 5 of the Rules, he was not entitled to any pension or subsistance allowance. After rejection of his representation, the petitioner moved the High Court by a petition under Art. 32(2A) for the issuance of a writ in the nature of mandamus and other suitable directions or orders directing the respondents to reinstate him in service and pay him his arrears of salary from August 14, 1939 when the impugned order of termination was served on him till he reached the age of superannuation and for pension under Ss. 34(2)(c) and 34(3) of the Act read with R. 5 of:the Rules. In view of the aforementioned judgment by the High Court in the appeal, the petitioner gave up his challenge to the impugned order of termination in the writ petition at the hearing before a learned single Judge and confined his submission for pension under Ss. 34(2)(c) and 34(3) of the Act read with R. 5 of the Rules. The learned single Judge (Kilam, J.) by his judgment and order dated June 6, 1958, allowed the writ petition holding inter alia that the impugned order was in effect an order of compulsory retirement of the petitioner inasmuch as both the learned District Judge as well as the High Court held that the petitioner was entitled to one month's salary in lieu of notice and decreed his claim in the suit to that extent in terms of S. 28(3) of the Act. He further held that the petitioner was entitled to pension under Ss. 34(2)(c) and 34(3) of the Act and R. 5 of the Rules which, according to him, were retrospective in operation. The learned single Judge however struck down the proviso to R. 5 of the Rules specifying the cut-off date as September 20, 1944 on the ground that the classification sought to be brought about in the matter of grant of pension to municipal officers and servants on the fortuitous circumstance of the date of retirement before or subsequent to the cut-off date September 20, 1944 was wholly arbitrary, irrational and discriminatory as it subjected retired municipal servants to differential treatment without any rational nexus to the object sought to be achieved, and it thus offended against Art. 14 of the Constitution. Aggrieved, the respondents preferred an appeal under Cl. 12 of the Letters Patent. A Division Bench of the High Court by its judgment dated September 29, 1961 allowed the appeal and set aside the judgment of the learned single Judge and dismissed the writ petition holding that the impugned order of termination being based on grounds of gross inefficiency, culpable negligence and deliberate evasion of responsibility was in effect an order of dismissal and not an order of compulsory retirement. It accordingly held that the petitioner was not entitled to any pension under S. 34(2)(c) of the Act read with R. 5 of the Rules. It further held that the provisions of Ss. 34(2)(c) and 34(3) and R. 5 of the Rules did not have retrospective effect and therefore could not confer any right on persons like the petitioner who were not in service at the time when the amended Act of 1998 was brought into, force.