Pension is property protected by Constitution as a fundamental right: HC
Quashes directions by MoD calling for demotion and recovery of pensionary benefits of a local officer
Srinagar: Quashing the directions by top officers of the Ministry of Defence calling for demotion and recovery of pensionary benefits of a local officer, the High Court of J&K and Ladakh has held that pension is a property protected by the Constitution as a fundamental right.
The judgment came in a suit wherein Mohammad Shafi of Khrew in Kashmir’s Pampore area, retired as Sanitary Inspector with the Army in 2022. The Army claimed that the post of sanitary inspector had not been sanctioned.
After benefiting from his sanitary inspector expertise for 20 long years, they ordered a review by the Departmental Promotion Committee. They also ordered that recovery be made from the pension/gratuity of Shafi.
The petitioner was recruited in the establishment of the Administrative Commandant, Station Headquarter, Khrew, District Pulwama, against the post of Sanitary Mate on temporary basis in the year 1980. He was then regularized as such in the year 1992.
“The petitioner received various certificates of appreciation for his unblemished, honest and dedicated service from various higher officials of the respondent- elite force,” reads his petition.
It added “in 1998, Shafi was promoted to the post of General Supervisor. He was then promoted to the post of Sanitary Inspector. He was the only eligible person as cleared by the DPC in terms of an order dated 27th of September, 2001.”
The petitioner pleaded that post-superannuation, he submitted his documents for grant and release of pensionary benefits. On account of the digitization of various services since August 2021, the documents for grant of pensionary benefits in favour of the retired personnel were to be uploaded online on a digital database portal, SPARASH.
However, the respondent Army officers were not able to upload the necessary details and documents of the petitioner. Consequently, the concerned officers approached the higher officers underlining the difficulties in uploading.
The petitioner alleged “instead of rectifying the error on the portal or accepting the documents, the authorities issued the communications stating that there was no post of Sanitary Inspector. They called for conducting DPC review after more than two decades and for making recovery of the additional pay grade drawn by the petitioner from the retirement gratuity account of the petitioner.”
Citing a constitution bench judgment, Justice M A Chowdhary said pension is a hard-earned benefit which accrues to an employee. It constitutes “property” under Article 31(1) and any interference will be a breach of Article 31(1) of the Constitution.
The bench said “pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings.”
The court held “the respondents had taken services of the petitioner as Sanitary Inspector for 20 years 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 petitioner had nothing to do with the creation of the post of Sanitary Inspector, to which the petitioner had been promoted in 2001 when a post of Sanitary Inspector had been created.”
It cited the case of a similarly situated Ashok Kumar in 71 Sub Area Station Headquarters, who superannuated in the year 2021 and is receiving pensionary benefits without any hindrance.
“The petitioner, in view of the services rendered with the respondents (Army) for such a long period of over two decades to the satisfaction of his superiors and his unblemished career, is entitled to receive pension for the post of Sanitary Inspector that he had lastly held at the time of attaining his superannuation,” Justice Chowhadary ordered.
He held the communications urging the conducting of review of the DPC, so as to revert his position and also to recover the payment of pension/gratuity, are not sustainable in the eyes of law, being wrong, illegal and arbitrary in nature.
