Vijay Bahadur vs State Of U.P.& 2 Ors.
2015 Latest Caselaw 493 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserve
 

 
Court No. - 58
 
Case :- WRIT - A No. - 53023 of 2013
 
Petitioner :- Vijay Bahadur
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Pankaj Roy
 
Counsel for Respondent :- C.S.C.,Samir Sharma
 
Connected with
 
Case :- WRIT - A No. - 52006 of 2013
 
Petitioner :- Y.P.Srivastava And 7 Ors.
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Saurabh Pratap Singh
 
Counsel for Respondent :- C.S.C.,Samir Sharma,Vivek Saran
 
Connected with
 
Case :- WRIT - A No. - 31233 of 2013
 
Petitioner :- Satish Chandra Srivastava And 6 Ors.
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Pankaj Roy
 
Counsel for Respondent :- C.S.C.,Samir Sharma
 
Connected with
 
Case :- WRIT - A No. - 337 of 2014
 
Petitioner :- Triloki Nath Verma And 10 Others
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Pankaj Roy
 
Counsel for Respondent :- C.S.C.,Samir Sharma
 

 
Hon'ble B. Amit Sthalekar,J.

This bunch of four writ petitions have been taken up together as it involves identical questions of fact in law and the reliefs claimed.

The petitioners are seeking quashing of the order dated 21.02.2013 as well as the Government Orders dated 13.01.2010 and 15.01.2010.

The petitioners in all these writ petitions were working under the respondents on various posts, i.e. Senior Foreman, Electrician, Mechanic, Assistant Electrician, and Assistant Store Keeper. They have retired from service on attaining the age of superannuation on various dates. Their claim is that they are entitled for payment of 23%, dearness allowance and arrears of difference of salary as would accrue on the implementation of the recommendations of the 6th Pay Commission. Earlier it appears that they had filed a Writ Petition No.55411 of 2012, which was disposed of by this Court by order dated 18.10.2012 with a direction to the respondents to decide the representation of the petitioners and it is in pursuance thereof that the claim of the petitioners was considered by the respondent no.2 who has rejected their claim by the impugned order dated 21.02.2013.

The grievance of the petitioners is that their claim has been rejected in view of the Government Orders dated 13.01.2010 and 15.01.2010. In the Government Order dated 13.01.2010 the benefit of the 6th Pay Commission has been given w.e.f. 01.01.2006 notionally and the actual benefit has been given from the date of the Government Order. The petitioners have also relied upon the decision of a learned Single Judge of this Court in Civil Misc. Writ Petition No.3731 of 2001, Ram Dulare Vs. Managing Director U.P.S.R.T.C., Lucknow and Others decided on 29.11.2002.

I have heard Sri Pankaj Rao, learned counsel for the petitioners in Writ Petitions No.53023 of 213, 337 of 2014, 31.233 of 2013 and Ms. Anuradha Sundaram, learned counsel appearing on behalf of the petitioners in Writ Petition No.52006 of 2013. The submission of all the learned counsel for the petitioners is common. Sri Samir Sharma, learned counsel has been heard for the respondent no.2 and Sri Mata Prasad, learned Additional Chief Standing Counsel for the State.

Ms. Anuradha Sundaram has relied upon following judgments:

1. Special Appeal Defective No.10 of 2015, Shiv Shankar Mishra Vs. State of U.P. and Others.

2. Writ Petition (S/S) No. 576 of 2011 (Uttarakhand High Court), Jagdamba Prasad and Others Vs. State of Uttarakhand and Others along with connected writ petitions.

3. Writ A No.40216 of 2010, Ram Bahadur Chauhan and Another Vs. State of U.P. and Others.

These judgments have no application to the facts of the present case.

The submission of the learned counsel for the petitioners is that the recommendation of the 6th Pay Commission benefit which has been made applicable w.e.f. 01.01.2006 has been made applicable only notionally and the actual benefit has been given from the date of coming into force of the Government Order, i.e. 13.01.2010.

The submission therefore is that by giving the benefit of the 6th Pay Commission from 13.10.2010, the petitioners have been denied the benefit of 23% of the dearness allowances and arrears of difference of salary w.e.f. 01.01.2006 since the petitioners have retired prior to 13.01.2010. In support of his case reference has been made to the judgment of the learned Single Judge of the Court in the case of Ram Dulare. The case of Ram Dulare (supra) involved the actual implementation of the recommendations of the 5th Pay Commission w.e.f. 01.01.1999 in terms of the Government Order dated 08.01.1999 and the benefit of the report which came into effect on 01.01.1996 was denied from that date on the ground that the Corporation had been running into severe losses.

However, a perusal of the judgment shows that ultimately a working scheme was involved and approved by the State Government and it was decided that an advance of Rs.10,000/- will be paid to every employee on the date of his retirement and that after giving priority of payment to gratuity, arrears of pay scale on account of 5th Pay Commission and employees provident fund to the department of retired employees, who have died, the employees who have retired shall be paid 50% gratuity to those who have retired in the year 1999, 100% gratuity to those who have retired in the year 1999, 100% gratuity to those who have retired after 1999 to May 2002 and provident fund. The Court, however, noted that there was still a balance of gratuity, provident fund, group insurance and leave encashment in respect of some of the employees and that none of them had been paid the arrears of pay scale on the recommendation of the 5th Pay Commission.

The learned Single Judge, however held that the employees having given their entire life serving the corporation cannot be left at the mercy of the Corporation's financial condition to be paid retirement benefits. The petitioners have a right to receive retirement benefits. The Court, therefore, allowed the writ petitions and directed the UPSRTC and the Regional Provident Fund Commission as well as Life Insurance Corporation to pay to the petitioners the entire arrears of gratuity, employees, provident fund, leave encashment, group insurance with interest at 10% per annum. What is noticed is that in the said case also there was a Government Order dated 08.01.1999 making the recommendations of the 5th Pay Commission applicable from 01.01.1999 with regard to actual payment. There is nothing in the body of the order to indicate that there was any direction for payment of retiral dues from 01.01.1996 to 31.12.1998. What was paid during this period was as per the working scheme approved by the State Government. While the learned Single Judge has held that the petitioners (therein)would be entitled to be paid retirement benefits but from the reading of the judgment it appears that the entire controversy was for the period from 1999 onwards.

Sri Samir Sharma, learned counsel for the respondents on the other hand submitted that the fixation of a particular cut off date in a government order for giving financial benefits was ultimately a policy decision taken by the Government and it was always open to the Government having regard to the financial aspects and strains on the exchequer to fix a particular cut off date for granting actual financial benefits. It is also submitted that the petitioners have in a very vague manner challenged the cut off date for grant of actual benefits of the recommendations of the 6th Pay Commission w.e.f. 13.01.2010 which is the date of the Government Order but they have not been able to show how the said order is illegal or arbitrary.

Sri Shamir Sharma as well as Sri Mata Prasad, learned Additional Chief Standing Counsel for the State respondents have referred to various judgments of the Supreme Court which are as follows:

1. 1988 (4) SCC 534, Bharat Singh Vs. State of Haryana.

2. (2002) 6 SCC 72, State of Haryana and Another Vs. Haryana Civil Secretariat Personal Staff Association.

3. 2007 (8) SCC 231, Chairman & MD, Kerala SRTC Vs. K.O. Verghese and Others.

4. (2007) 7 SCC 472, Union of India Vs. Arun Jyoti Kundu and Others.

5. 2009 (2) SCC 309, R. Senthil Babu Vs. State of Tamil Nadu.

6. (2010) 11 SCC 694, State of West Bengal Vs. Subhas Kumar Chaterjee and Others.

In (2002) 6 SCC 72, State of Haryana and Another Vs. Haryana Civil Secretariat Personal Staff Association, which was a case relating to the implementation of the 4th Pay Commission recommendations the Supreme Court held in paragraph 10 of the judgment reads as follows:

"10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge, While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position 'and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of employees, one in the State Secretariat and the other in the Central Secretariat It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre."

In (2007) 7 SCC 472, Union of India Vs. Arun Jyoti Kundu and Others, which was also a case relating to implementation of the recommendations of the 5th Pay Commission, the Supreme Court also held that it was open to the Government to provide the benefit of the recommendation of the Pay Commission only from a notified date. Paragraphs 20, 21 and 22 of the judgment read as under:

"20.When a concession was being extended as distinct from implementing a specific recommendation of the Pay Commission with reference to a particular point of time, it is open to the Government to provide that the benefit it proposes to give, would be available only from a notified date. As this Court has observed, neither the Central Administrative Tribunal nor the High Court, can direct the merger of any cadre. That is a policy decision for the Government to take. So long as it is not done, it is not open to the tribunal or the court to issue directions in that regard and to follow it up with what are thought to be consequential directions.

21. We may in this context notice that the Central Administrative Tribunal, Principal Bench, Delhi dealing with a similar claim took up the position on the basis of decisions of this Court, that the tribunal would have no jurisdiction to issue the directions sought for by the employees. It is submitted that the correctness of the said decision has been questioned in the High Court at Delhi. Therefore, it is not necessary for us to make any observation regarding that decision. But we note that, that tribunal declined jurisdiction in similar circumstances.

22. Once we find that it was open to the Government to extend a benefit to a set of its employees with effect from a particular day on the basis of some anomaly found in the report of the Fifth Pay Commission, there would arise no discrimination because the very implementation of the Fifth Pay Commission Report would not entitle the respondents to any benefit. The very right to their benefit arose because of the decision of the Government to extend to them a particular benefit not specified in the Fifth Pay Commission Report. It is, therefore, not possible to postulate that the decision of the Government must be given retrospective effect and if no such effect is given, the tribunal or court can interfere and direct the giving of such retrospective effect. Once it is found that paragraph 83.296 is attracted to the case, it has to be found that the applicants before the Tribunal were not entitled to any relief."

In 2007 (8) SCC 231, Chairman & MD, Kerala SRTC Vs. K.O. Verghese and Others, the Supreme Court in Paragraphs 16 to 22 has held as follows:

"16. As we understand this communication in the context in which it was issued, we are of the view that this amounts to a direction in terms of Section 34 of the Act. It must be remembered that this communication was issued when the Government was directed by the High Court to take a policy decision on the question of implementing the recommendations of the Fifth Pay Commission in respect of the employees of KSRTC. Such a policy decision in the absence of a regulation, could obviously be only in terms of Section 34 of the Act. Therefore, when in compliance with the direction of the High Court, the Government took a policy decision and communicated the same to KSRTC to defer the implementation of the recommendations of the Fifth Pay Commission, it could be understood only as a direction in terms of Section 34 of the Act. The context in which the communication dated 16.5.1995 was issued, according to us, clearly shows that it was intended to be a direction in terms of Section 34 of the Act and the argument that formalities had not been complied with or that the same had not been notified, does not enable the court to hold that the communication dated 16.5.1995 must be understood only as a mere letter in reply and nothing more. The power to issue such a direction is clearly traceable to Section 34 of the Act and the High Court had obviously directed the Government to take that decision having in mind Section 34 of the Act. It is therefore clear that the direction dated 16.5.1995 is a direction in terms of Section 34 of the Act. The High Court, in our opinion, has not considered the effect of the direction issued in O.P. No. 13233 of 1992-A and connected cases, and the decision taken by the Government pursuant to that direction and the status of the communication dated 16.5.1995.

17. The High Court has rested its decision on the direction of the Government dated 27.3.1984 authorizing KSRTC to pay pension to its employees as per KSR and the acceptance of the same by KSRTC by issue of the order dated 5.9.1984, obeying the direction and providing for payment of pension in terms of KSR as an incorporation of KSR by reference. Proceeding from this, the High Court has held that pension is payable to all the employees of KSRTC in terms of Part III of KSR and this led to the position even as regards the date of payment as fixed by the Government for its employees. The High Court, though it noticed the decision in Union of India v. P.N. Menon and Ors. (1995)IILLJ307SC regarding the entitlement of KSRTC to look into various aspects like its financial ability to pay, has proceeded to reason that in view of the adoption of Part III of KSR, the Corporation had lost its right to fix a cut-off date in the absence of any direction under Section 34 of the Act. The court has also held that communication of the Government dated 24.9.1992 had only directed deferring of payment of pension as recommended by Fifth Pay Commission and this meant that the Corporation had no right to fix a cut-off date especially in the absence of any regulation framed by it.

18. We are not in a position to endorse this reasoning or conclusion of the High Court. KSRTC is an autonomous Corporation established under the Road Transport Corporation Act, 1950. It can regulate the service of its employees by making appropriate regulations in that behalf. Until such regulations are framed, it is entitled to take note of its financial health in considering whether a particular recommendation for enhanced pay or pension in respect of Government employees should be adopted by it and if it is to adopted by it, from what point of time. This, of course, would be subject to any direction that may be issued by the State Government in terms of Section 34 of the Act.

19. In the letter dated 24.9.1992 referred to by the High Court, the Government had indicated that since the financial position of KSRTC was not sound, the question of accepting the recommendations of the Fifth Pay Commission relating to pension and allied matters may be deferred for better times.

20. When the High Court intervened and directed the Government to take a policy decision and not leave the matter pending in view of the fact that the pensioners were generally senior citizens, the Government reconsidered the question and after examining the position in detail in the context of the financial position of KSRTC, took a decision that the grant of benefits of the Fifth Pay Commission to the pensioners of KSRTC may be deferred for better times. We have already held that this was a direction to KSRTC in terms of Section 34 of the Act. KSRTC was therefore bound to implement this direction in the absence of a regulation in that behalf.

21. The High Court, in our view, is not correct in thinking that there is any compulsion on KSRTC on the mere adoption of Part III of KSR, to automatically give all enhancements in pension and other benefits given by the State Government to its employees. There is no provision in Part III of KSR containing such a stipulation. It only provides for payment of pension. The question of revision or enhancement of pension to its employees is left to KSRTC, an autonomous Corporation, subject of course to any direction that may be issued by the State Government under Section 34 of the Act. The mere adopting of Part III of KSR does not therefore shackle or control the power of KSRTC to take a decision in the absence of any regulation already framed, that the enhanced pensionary benefits as recommended by the Fifth Pay Commission need not be paid commencing on the same date as the State Government employees but the question of enhancing pension could be considered at a later point of time. There is nothing in Part III of KSR to control the power of KSRTC to decide that the recommendations of the Fifth Pay Commission may be implemented with effect from a particular date or that it need not be implemented at all in view of the precarious financial condition of KSRTC. The reasoning therefore that the direction to adopt Part III of KSR and the order adopting it by KSRTC would denude KSRTC of its power to fix a cut-off date for adopting and implementing the recommendations of the Fifth Pay Commission is found to be not sustainable.

22. Learned Counsel for the respondents argued that what the Government has directed is only to defer the payment of pension and that meant that pension as recommended by the Fifth Pay Commission had become payable but only the actual payment stood deferred to a future point of time. In the context of what has happened here, this argument cannot be accepted. Obviously, the issue was whether the recommendations of the Fifth Pay Commission regarding enhanced payment of pension and other allowances to retired employees should be implemented by KSRTC in the situation in which it was placed and the direction of the Government was that since the financial position was not sound, the question had to be deferred. The letter dated 16.5.1995 uses the expression:

"It has been decided that grant of benefits of the Fifth Pay Commission to the pensioners of KSRTC may be deferred for better times."

As we understand it, this communication means that the very question of adopting the recommendations of the Fifth Pay Commission stood postponed for better times and it is not possible to read and understand it as directing that pension had to be paid in terms of the recommendations of the Fifth Pay Commission but its actual payment may be postponed. The grant itself was put off to a later point of time by the said communication. We, therefore, overrule this submission on behalf of the respondents. "

In (2010) 11 SCC 694, State of West Bengal Vs. Subhas Kumar Chaterjee and Others, the Supreme Court held that the fixation of pay and determination of parity in duties and responsibilities is a complex matter which for the executive to discharge. Paragraph 14 of the said judgment reads as follows:

"14 This Court time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to acceptance or rejection, the Courts cannot compel the State to accept the recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commission. [See: Union of India v. Arun Jyoti Kundu (2007) 7 SCC 472 and State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72]. It is no doubt true, the constitutional courts clothed with power of judicial review have jurisdiction and the aggrieved employees have remedy only if they are unjustly treated by arbitrary State action or inaction while fixing the pay scale for a given post."

Thus, on a conspectus of facts and law laid down by the Supreme Court, I find no merit in the above writ petitions. The writ petitions fail and are accordingly dismissed.

Order Date :- 14th May, 2015

N Tiwari