Om Prakash Saxena And Another [ Now ... vs State Of U.P.Through Prin. Secy. ...
2019 Latest Caselaw 4397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on :10.04.2019
 
Delivered on: 13.05.2019
 

 
Case :- SERVICE BENCH No. - 1743 of 2011
 

 
Petitioner :- Om Prakash Saxena And Another [ Now S/S]
 
Respondent :- State Of U.P. Through Principal Secretary Technical Education & Others
 
Counsel for Petitioner :- Vijay Dixit
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard Sri Vijay Dixit, learned counsel for the petitioners and Sri Manjeev Shukla, learned Standing Counsel appearing for the State-respondents.

2. By means of the present petition, the petitioners have prayed for the following main reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the part of the Government Order dated 28.02.2007, contained in Annexure No.9 to the writ petition, by means of which it has been made applicable with prospective effect;

(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to revise the pension of the petitioners as per the recommendation of the VI Pay Commission treating the petitioners retired on 30.06.2006;

(iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to grant the benefit of the Government Order dated 28.02.2007 to the petitioners, and

(iv) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay to the petitioners the arrears of pension, gratuity and other retiral dues revising the pension as per the recommendation of the VI Pay Commission."

3. The case set forth by the petitioners is that while working on the posts of Lecturer, they were granted extension till the end of the academic session vide order dated 15.07.2005, a copy of which is Annexure-3 to the petition. The names of the petitioners find place at serial nos. 5 and 9 respectively in the said order. The said extension in service was granted by continuing them beyond the date of their superannuation which with respect to petitioner no.1 was 31.07.2005 and with respect to petitioner no.2 was 31.12.2005. The extension was granted in pursuance to the Government Order dated 27.06.1988, a copy of which is Annexure-2 to the petition, which provided for extension of service to such Lecturers and other teaching staff who were retiring between 1st July to 30th June of the session and was to be granted upto 30th June i.e. till the end of the academic session. There were certain conditions attached as to which of the persons would be eligible for such extension and the petitioners admittedly fulfilling such eligibility condition were granted extension.

4. During the extended period of service both the petitioners were promoted as Head of Department through the order dated 17/19.05.2006, a copy of which is Annexure-4 to the petition, in which the names of the petitioners find place at serial nos. 8 and 3 respectively. It is also contended that in pursuance of promotion of the petitioners as Head of Department, the pay scale of the said post was granted to them in terms of the order dated 22.07.2006 and 26.05.2006 with respect to petitioner nos. 1 and 2 respectively. Both the petitioners were thereafter relieved at the end of the academic session i.e. with effect from 30.06.2006.

5. It is contended that the Director of Technical Education vide his order dated 13.05.2005, a copy of which is Annexure-8 to the petition, recommended for giving benefits to the Teachers of the Technical Education Department at par with the Teachers of the Education Department which they got on account of extension in service till the end of academic session which were benefit of increment which fell between the date of their superannuation and end of session, leave encashment of the extended period and counting of extended period towards their pension and gratuity. It is contended that on the basis of the said recommendation, a Government Order dated 28.02.2007 was issued, a copy of which is Annexure-9 to the petition, which provided that the Teachers of the Technical Education Department, who retired at the end of the academic session after getting extension in service, would be entitled for increment, leave encashment and for counting the extended period of service towards pension and gratuity. However, the said Government Order was to come into force with immediate effect i.e. from the date of issue of the Government order dated 28.02.2007.

6. Subsequent thereto, a Government Order accepting the recommendations of the 6th Pay Commission was also issued on 08.12.2008. Thereafter, through orders dated 23.03.2009, copies of which have been filed as Annexure-12 to the petition, the pay revision of the petitioners was also done and the pension fixation order was also issued by the respondents. Meanwhile the petitioners had started representing to the respondents for pay fixation and pension fixation by counting their extended period of service but the same did not find favour and through the orders dated 19.06.2009 and 29.06.2009 with respect to the petitioner nos. 1 and 2 respectively, copies of which have been filed cumulatively as Annexure-14 to the petition, the Pension Directorate held that the petitioners were not entitled for pay fixation for end of the session benefit and consequently rejected their claim. Subsequent thereto, the Pension Directorate through the letter dated 05.01.2010, a copy of which is Annexure-18 to the petition, wrote to the Finance Department for issue of necessary guidelines as to whether petitioner no.1 would be entitled for being extended the benefit of the Government Order dated 28.02.2007 and for pension fixation accordingly but it is contended that no orders have been issued in this regard till date.

7. Learned counsel for the petitioners argues that on account of non-counting of the said extended period of service towards pay fixation and consequently the pension fixation, those who have retired from a lower post subsequent to the petitioners are receiving higher pension and the petitioners are getting a lower pension. In this regard, a chart has been filed as Annexure-24 to the petition.

8. Learned counsel for the petitioners contends that once the Government Order dated 28.02.2007 was issued by the Government giving certain benefits to Teachers/Lecturers who had been given the benefit of continuance till the end of the academic session and such persons were also held entitled for being given the increment of pay, leave encashment for the said period and counting of the said period towards pension and gratuity consequently restricting the said benefit of the Government Order to operate prospectively thus amounts to creation of a class in a class which is legally impermissible keeping in view a large number of decisions.

9. Elaborating the same, learned counsel for the petitioners contends that in case the Government Order dated 28.02.2007 is not made applicable prospectively and the cut off date of 28.02.2007 is set-aside, the same would result in increase in pension of the petitioners. It is argued that once a set of pensioners are affected by the said cut off date of 28.02.2007 consequently the same has to be set-aside as a class amongst a class of pensioners cannot be allowed to be created by the Government by operating the Government Order dated 28.02.2007 prospectively rather the benefit of the Government Order should be given to all such set of employees/pensioners who have retired after getting the end of the session benefit even prior to introduction of the Government Order dated 28.02.2007 and the pension should be revised accordingly.

10. In support of his arguments, Sri Dixit has placed reliance on the following judgments:-

(i) D.S. Nakara and others vs. Union of India - (1983) 1 SCC 305;

(ii) M.C. Dhingra vs. Union of India and others - (1996) 7 SCC 564;

(iii) Union of India and another vs. SPS Vains (Retd.) and others - (2008) 9 SCC 125;

(iv) K.J.S. Buttar vs. Union of India and another - (2011) 11 SCC 429;

(v) A.N. Sachdeva (Dead) by Legal Representatives and others vs. Maharshi Dayanand University, Rohtak and another - (2015) 10 SCC 117;

(vi) Secretary, Mahatama Gandhi Mission and another vs. Bhartiya Kamgar Sena and others - (2017) 4 SCC 449, and

(vii) Dr. K.S. Srivastava vs. State of U.P. and another passed by a Division Bench of this Court in Writ Petition No.640 (SB) of 1998 decided on 15.09.2000.

11. Placing reliance on the aforesaid judgments, it is contended that the Constitution Bench in the case of D.S. Nakara (supra) has categorically held that the pensioners for payment of pension form a class. Consequently by means of a cut off date, the respondents cannot be permitted to divide the pensioners between those who retired prior to a specified date and those who retired subsequent to that date. In such view of the matter, the Hon'ble Supreme Court held that all the existing pensioners would have a right for re-computation of their pension by applying the rule of average emoluments without any discrimination on the basis of date of retirement.

12. Sri Dixit contends that the judgment of D.S. Nakara (supra) was followed by the Hon'ble Supreme Court in the case of M.C. Dhingra (supra) wherein also the Hon'ble Supreme Court held that the circular issued by the Government of India prescribing the implementation of the said circular for grant of pension only to the persons retiring on or after the date of issue of the circular was arbitrary.

13. Likewise, reliance has been placed on the case of SPS Vains (supra) wherein the Hon'ble Supreme Court directed for extension of similar benefits to pre 01.01.1996 retirees as was extended to post 01.01.1996 retirees by holding that the said cut off date could not be introduced discriminating between the pensioners.

14. Likewise, in the case of K.J.S. Buttar (supra), the Hon'ble Supreme Court again placing reliance on the case of D.S. Nakara (supra) held that if the Government liberalizes an existing scheme then all the pensioners are to be treated equally inasmuch as new measures introduced are nothing but relaxation of an existing scheme. Again the cut off date which had been introduced by the Government between pre and post retirees of 1996 was set-aside and all the pensioners were held entitled for the similar benefits.

15. Again in the case of A.N. Sachdeva (supra), the Hon'ble Supreme Court placing reliance on the case of D.S. Nakara (supra) extended the benefit of counting of the previous service to all the employees.

16. In the case of Bhartiya Kamgar Sena (supra), the Hon'ble Supreme Court set-aside the discrimination which was introduced in terms of the rules framed by the State Government providing for revision of the pay scales of non-teaching staff of affiliated aided colleges and leaving out unaided colleges on the ground that the said classification has no rational nexus with the object.

17. Reliance has also been placed on a Division Bench judgment of this Court in the case of Dr. K.S. Srivastava (supra) wherein a Government Order which was issued on 26.09.1997 was made applicable prospectively providing that the services rendered by the teachers in the Government institutions will also be counted for the purpose of computation of pension. The said cut off date of 26.09.1997 was used against the petitioner on the ground that as the Government Order had been issued only prospectively and the petitioner having retired prior to issue of the Government Order was not entitled for the benefit of the same. The Division Bench of this Court held that even the persons who retired prior to issue of the Government Order would also be entitled for the benefit of the Government Order.

18. Placing reliance on all the aforesaid judgments, it is contended by Sri Dixit that once all the petitioners are pensioners and are drawing pension from the State consequently the Government Order dated 28.02.2007 introducing the aforesaid three benefits should be made applicable retrospectively i.e. with respect to all the teachers who were granted extension in service and non-grant of said benefits simply by treating the said Government Order to be only prospective would run foul to the law laid down in the aforesaid judgments and such an artificial cut off date of 28.02.2007 could not be used by the respondents to deprive the petitioners, all pensioners, the benefit as extended to other set of pensioners who got extension of service but with the aforesaid three benefits.

19. Sri Dixit further argues that as the petitioners have continued till the end of session and retired on 30.06.2006 consequently it is this date i.e. 30.06.2006 that is to be treated for the purpose of calculation of retiral dues and thus the petitioners would be entitled for revision of the pension as per recommendation of the 6th Pay Commission by treating the petitioners as retired on 30.06.2006.

20. On the other hand, Sri Manjeev Shukla, learned Additional Chief Standing Counsel appearing on behalf of the respondents, argued that prior to introduction of the aforesaid Government Order dated 28.02.2007, the eligible teachers were granted extension of service in terms of the Government Order dated 27.06.1988 (and even in terms of the earlier Government Orders) but were only entitled to draw the salary of the said post on their continuance till the end of the academic session. The said extension was granted in the interest of the students as the academic session was still to come an end and to ensure that there was no interruption or break in the teaching work. It is argued that the petitioners having accepted the said extension in service till the end of the academic session knowing fully well the benefits that they would be liable to draw and receive are now estopped from raising their claim on the basis of subsequent Government Order dated 28.02.2007. Further, it is contended that the petitioners actually retired on attaining the age of superannuation on 31.07.2005 and 31.12.2005 respectively and the pension of the petitioners was also fixed on the basis of actual date of retirement. The benefit of session has been given to the petitioners only to the extent of drawing of salary but the same would not entail pension fixation as per rules. It is also argued that the Pension Directorate has already rejected their claim through orders dated 19.06.2009 and 26.09.2006, copies of which have been filed as Annexure-14 to the petition and the petitioners have not chosen to challenge the said rejection orders. Merely because the petitioners got extension till the end of the academic session i.e. 30.06.2006, they would not be entitled to get any benefit of revised pay during the extended period of service. It is also contended that merely because Pension Directorate had sought guidelines from the Principal Secretary (Finance) for pension fixation of the petitioners, the same would itself not entail extension of benefits of the Government Order dated 28.02.2007 to the petitioners. As regards the promotion given to the petitioners as Head of Department through orders dated 17/19.05.2006, Sri Shukla argues that there is no denial to the said promotion order.

21. Sri Shukla also rebuts the arguments of learned counsel for the petitioners of a class being created in a class inasmuch as Sri Shukla argues that it is not that the respondents have proceeded to create a class in a class inasmuch as the extension granted to the petitioners of continuing till the end of the academic session was only granted to certain teachers as specified in the Government Order dated 27.06.1988 and not to all the teachers. Thus, it is not that all the teachers had been granted extension till the end of the academic session and were thereafter sought to be discriminated by the cut off date as introduced in the Government Order dated 28.02.2007, rather this is a case in which the petitioners were granted extension in service till the end of the academic session for the purpose of payment of salary and in the interest of the students in terms of the Government Order dated 27.06.1988. Subsequently in terms of the Government Order dated 28.02.2007 certain benefits were given to such Teachers who had been given the benefit of continuing till the end of the academic session. The Government Order dated 28.02.2007 having introduced the said benefits only from the date of issue of the said Government Order has been validly issued and it does not sought to create a class as has been argued by the learned counsel for the petitioners.

22. Elaborating this, Sri Manjeev Shukla, learned Standing Counsel, argues that once the petitioners were given the benefit of continuing in service till the end of academic session which only entailed payment of salary for the extended period of their service and they having accepted the same and consequently retired at the end of academic session, now cannot be permitted to claim the benefits which have been given to other Teachers who have been given the end of session benefit and the benefits arising from the Government Order dated 28.02.2007 inasmuch as the said benefits are sought to be introduced only with effect from the date of issue of the Government Order i.e. with effect from 28.02.2007. It is argued that in case the arguments on behalf of the petitioners are held to be valid consequently the Teachers who had retired even prior to introduction of the end of session benefit by means of the initial Government Order dated 22.03.1980 would also come forward seeking benefit of being continued till the end of the academic session!

23. So far as the introduction of the cut off date is concerned i.e. 28.02.2007, Sri Shukla argues that the same is a date from which the Government Order giving certain benefits to the Teachers who have been given the end of session benefit have been accorded certain financial benefits. It is argued that such a date is perfectly valid inasmuch as extension of such financial benefits to even those Teachers who had earlier worked and got the benefit of extended service till the end of academic session cannot be permitted now as the Government is perfectly empowered to extend the financial benefit prospectively and with effect from a particular date taking into consideration the financial constraints. In this regard, reliance has been placed on the following judgments of Hon'ble Supreme Court:-

(i) (2005) 6 SCC 754 - State of Punjab and others vs. Amar Nath Goyal and others;

(ii) (2008) 14 SCC 702 - Government of Andhra Pradesh and others vs. N. Subbarayudu and others;

(iii) (1991) 2 SCC 104 - Indian Ex-Services League and others vs. Union of India;

(iv) (2016) 10 SCC 77 - State of Punjab and others vs. Rajesh Chander Sood and others;

(v) (2015) 5 SCC 333 - T.M. Sampath vs. Secretary, Ministry of Water Resources, and

(vi) (1993) 4 SCC 62 - State of West Bengal and others vs. Ratan Behari Dey and others.

24. Sri Shukla further argues that the petitioners were perfectly aware as to the benefits that they would get if they are extended the benefit of end of session which in fact was given by the respondents. Consequently having accepted the same, they cannot be allowed to resile and now claim the benefits which have been given to others in terms of the Government Order dated 28.02.2007. It is further argued that both the petitioners having retired at the end of the academic session without any demur or protest cannot now be allowed to claim the benefits as have been given to others through the Government Order dated 28.02.2007.

25. As regards the argument of learned counsel for the petitioners of a class being sought to be created within a class, Sri Shukla argues that it is not that all the pensioners who had retired prior to the issue of the Government Order dated 28.02.2007 have come to the Court claiming the benefits of the Government Order dated 28.02.2007 inasmuch as the Government Order dated 28.02.2007 only gives certain benefits to those who have been found entitled for being given the benefit of end of academic session i.e. a minuscule percentage of Teachers. Thus, once the said benefit is only confined to such Teachers who have been given the end of session benefit consequently it cannot be said that a class within a class is sought to be created.

26. As regards the relief sought for by the petitioners of treating the date of retirement as 30.06.2006 for the purpose of revision of pension as per recommendation of the 6th Pay Commission, Sri Manjeev Shukla, learned Standing Counsel, argues that as the actual date of retirement of the petitioners was 31.07.2005 and 31.12.2005 respectively and the petitioners have only been continued for the purpose of end of session benefit as such, as per rules, the retirement benefits are to be calculated on the basis of actual date of retirement i.e. 31.07.2005 and 31.12.2005 respectively for the petitioners and merely because the petitioners were granted end of session benefit which entailed their retirement on 30.06.2006 consequently the same would not entitle them for claiming pensionary benefits and revision of pension as per recommendation of the 6th Pay Commission by treating the date of retirement as 30.06.2006.

27. In rejoinder, Sri Vijay Dixit, learned counsel for the petitioners, argues that the ground taken by the learned Standing Counsel of a cut off date having been introduced taking into consideration the financial constraints, is a ground which has not been taken in the pleadings and thus cannot be raised for the first time through oral arguments.

28. Replying to the aforesaid objection, Sri Manjeev Shukla, learned Standing Counsel, submits that keeping in view the law laid down by Hon'ble Supreme Court in the case of N. Subbarayudu (supra) even if no reasons or grounds have been given in the counter affidavit or the executive authority as to why a particular cut off date has been chosen yet the Court can itself always examine the same.

29. Heard learned counsel for the contesting parties and perused the records.

30. From the arguments and perusal of records, it clearly comes out that the petitioners who were working as Lecturers were granted extension in service till the end of the academic session vide order dated 15.07.2005. Their date of retirement was 31.07.2005 and 31.12.2005 respectively. The only provision providing for extension of service till the end of academic session is in terms of the Government Order dated 27.06.1988 which provides for extension of service to such Lecturers and other teaching staff who were retiring between 1st July to 30th June of the session and the extension was to be granted up to 30th June i.e. up to end of the academic session. The petitioners having been found eligible in terms of the said Government Order dated 27.06.1988 as their dates of retirement fell between that period, were granted extension. Consequently they continued till the end of the academic session and thereafter retired at the end of the academic session. During the extended period of service, the petitioners drew the salary of the post on which they were working and incidentally were also promoted as Head of Department through order dated 17.05.2006 and consequent thereto also drew the salary as Head of Department. The controversy arose when a Government Order dated 28.02.2007 was issued which provided that the teachers of the Technical Education Department who retired at the end of the academic session after getting extension of service would be entitled for increment, leave encashment and for counting the extended period of service towards pension and gratuity. However, the Government Order having come into force with immediate effect i.e. with effect from 28.02.2007 consequently it only governed those teachers who were granted the end of session benefit subsequent to the issue of the Government Order. Thus, it clearly comes out that those teachers who were granted the end of session benefit prior to 28.02.2007 were governed by the Government Order dated 27.06.1988 which did not provide for counting of the extended period of service for increment, leave encashment and for counting the said service towards pension and gratuity rather the said benefit is only sought to be introduced with effect from the date of issue of the subsequent Government Order dated 28.02.2007. Thus, two categories of teachers are there i.e. those who had already retired prior to coming into force the Government Order dated 28.02.007 and were given the benefits in accordance with the Government Order dated 27.06.1988 and those teachers who have been granted the end of session benefit subsequent to 28.02.2007 in terms of the Government Order dated 28.02.2007. The said date of 28.02.2007 is sought to be challenged so far as it only grants benefits with prospective effect on the ground that the said date of 28.02.2007 tends to create a class within a class of persons similarly circumstanced i.e. those pensioner teachers who retired prior to 28.02.2007 and those pensioner teachers who retired after 28.02.2007 and consequently such discrimination cannot be permitted.

31. Thus, this Court would have to examine as to whether, with the issue of the Government Order dated 28.02.2007, a class is sought to be created amongst the pensioners who received end of session benefit i.e. those pensioners who retired prior to 28.02.2007 and those who retired subsequent to 28.02.2007 which is the thrust of argument on behalf of the petitioners.

32. In the instant case, the petitioners are the beneficiaries of a Government Order dated 27.06.1988 by which end of session benefit had been extended to them. It is not that end of session benefit had been given to all the teachers rather the said benefit was only given to a minuscule percentage of teachers who were found eligible in terms of the said Government Order dated 27.06.1988. Thus, this is not a case in which a discrimination has been meted out to all the pensioners who retired prior to 28.02.2007 as is sought to be argued on behalf of the petitioners rather a particular benefit of end of session with additional financial benefit is now introduced through the Government Order dated 28.02.2007 to be given to such teachers who are given the benefit of extension till the end of session and not to all teachers and thus it cannot be said per se that all the pensioners have been discriminated.

33. In this regard, reliance has been placed on behalf of the petitioners on the judgment of D.S. Nakara (supra) in which Hon'ble Supreme Court held that there was no criteria on which classification of pensioners retiring prior to a specified date and retiring subsequent to that date can provide a rational principle co-related to object viz. object under payment of pension. In the said case, Hon'ble Supreme Court was examining the revised formula that had been introduced for computation of pension as introduced and made effective from a specified date. Thus, the question in the case of D.S. Nakara (supra) was differential treatment of pensioners related to date of retirement qua the revised formula for computation of pension attract Article 14 of the Constitution of India. Thus, the judgment of D.S. Nakara (supra) is clearly distinguishable on this ground.

34. Likewise, the judgment of Hon'ble Supreme Court in the case of SPS Vains (supra) was also a case of discrimination between the pensioners as is the case of K.J.S. Buttar (supra). The case of A.N. Sachdeva (supra) was for extending the benefit of counting of previous service to all employees which is not the case in the present petition as already indicated above. Likewise, the case of Bhartiya Kamgar Sena (supra) was a case in which discrimination was introduced in terms of the rules framed by the State Government providing for revision of pay scales of non-teaching staff of affiliated aided colleges and leaving out unaided colleges which again is not the case in the present petition. Likewise, case of Dr. K.S. Srivastava (supra) was also a case in which the Government Order was introduced prospectively providing that the services rendered by the teachers in Government institutions will count for the purpose of computation of pension and thus the said case was with respect to all employees and not a minuscule percentage as in the instant petition wherein only a minuscule percentage of teachers has been granted the end of session benefit. Thus, all the aforesaid judgments as cited by learned counsel for the petitioners are distinguishable.

35. The argument raised by learned State Counsel that financial constraints would be a valid ground for fixation of a cut off date for grant of benefits as has been done with the issue of the Government Order dated 28.02.2007 with prospective effect. Though this ground has not been specifically taken by the respondents in the counter affidavit, as correctly pointed out by the learned counsel for the petitioners, yet the said ground has been taken during the course of argument and consequently can very well be considered by a Court of law while deciding the case keeping in view the law laid down by Hon'ble Supreme Court in the case of N. Subbarayudu (supra) wherein Hon'ble Supreme Court has held as under:-

"5. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal)

6. No doubt in D.S. Nakara v. Union of India this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara's Case, as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.

7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection.

8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar v. Ramjee Prasad , Union of Indian v. Sudhir Kumar Jaiswal (Vide SCC Para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn. (Vide SCC Para 31), University Grants Commission v. Sadhana Chaudhary etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result."

36. The ground raised on behalf of the respondents that extending of the benefit of the Government Order dated 28.02.2007 to the petitioners who received end of session benefit in terms of the earlier Government Order would put a large financial burden on the State inasmuch as all such teachers who were also given end of session benefit in terms of the earlier Government Orders would also stake their claim for extension of the benefit of the Government Order dated 28.02.2007 and thus consciously the Government Order dated 28.02.2007 has been given prospective effect is a valid ground. In this regard, the position of law is no longer res-integra keeping in view the various judgments of Hon'ble Supreme Court which are being discussed below which have clearly held that a cut off date can be introduced on the ground of financial implication.

37. Hon'ble the Supreme Court in the case of Amar Nath Goyal (supra) has upheld the cut off date which was introduced on the ground of financial implication. For the sake of convenience, relevant observations of Hon'ble Supreme Court are reproduced as under:-

"26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/ State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the center or at the State level.

27. Even by O.M. dated 19.10.1993, all that happened was that a portion of the dearness allowance linked to average Consumer Price Index of 729.91 obtaining as on 1.3.1988 (i.e. 20% of the basic pay) was treated as dearness pay. This would count only for reckoning the emoluments for the purpose of calculating retirement-cum-death gratuity under the applicable rules and for no other purpose. This change was brought into effect from 16.9.1993.

28. Even at that time, interestingly, the benefits were not made admissible from 1.3.1988, i.e. the date of the Average Consumer Price Index of 729.91, but from a much further date i.e. 16.9.1993. The Central Government adopted the same policy while issuing the O.M. dated 14.7.1995. Although, dearness allowance linked to the All India Average Consumer Price Index 1201.66 (as on 1.7.1993), was treated as reckonable part of dearness allowance for the purpose of calculating the death-cum-retirement gratuity, the benefit was actually made available to the employees who retired or died on or after 1.4.1995. Similarly, the increase in the ceiling of gratuity was a mere consequential step, which was also made applicable from 1.4.1995. As we have already noticed, 1.4.1995 was the date suggested by the Fifth Central Pay Commission ("Pay Commission") in its Interim Report. The Central Government took a conscious stand that the consequential financial burden would be unbearable. It therefore, chose to taper down the financial burden by making the benefits available only from 1.4.1995.

It is trite that, the final recommendations of the Pay Commission were not ipso facto binding on the Government as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position. This is precisely what the Government did. Such an action on the part of the Government can neither be characterized as irrational, nor as arbitrary so as to infringe Article 14 of the Constitution.

29. D.S. Nakara (supra), which is the mainstay of the case of the employees, arose under special circumstances, quite different from the present case. It was a case of revision of pensionary benefits and classifications of pensioners into two groups by drawing a cut-off line and granting the revised pensionary benefits to employees retiring on or after the cut-off date. The criterion made applicable was "being in service and retiring subsequent to the specified date". This Court held that for being eligible for liberalised pension scheme, application of such a criterion is violative of Article 14 of the Constitution, as it was both arbitrary and discriminatory in nature. The reason given by the Court was that the employees who retired prior to a specified date, and those who retired thereafter formed one class of pensioners. The attempt to classify them into separate classes/ groups for the purpose of pensionary benefits was not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved. However, it must be noted that even in cases of pension, subsequent judgments of this Court have considerably watered down the rigid view taken in D.S. Nakara as we shall see later in T.N. Electricity Board v. R. Veerasamy ("Veerasamy"). In any event this is not a case of a continuing benefit like pension; it is a one-time benefit like gratuity.

30. In Union of India v. P.N. Menon, while implementing the recommendations of the Third Pay Commission with regard to dearness pay linked to average index level 272, which was to be counted as emoluments for pension and gratuity under Central Civil Services (Pension) Rules, 1972, the Central Government had fixed a certain cut-off date and directed that only officers retiring on or after the specified date were entitled to the benefits of the dearness pay being counted for the purpose of retirement benefits. This was challenged as arbitrary and violative of Article 14 of the Constitution. This Court turned down the challenge and observed:

"Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay scale of its employees and fixes the 1st day of January of the next year for implementing the same or the 1st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31st December of the year in question, will miss that pay scale only by a day, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the court should only be, while examining any such grievance, to see, as to whether a particular date for extending a particular benefit or scheme, has been fixed, on objective and rational considerations."

31. In Action Committee South Eastern Railway Pensioners v. Union of India, it was held that, on merger of a part of dearness allowance as dearness pay on average price index level at 272 with reference to different pay ranges, fixing a cut-off date in such a manner was not arbitrary and the principle enunciated in D.S. Nakara was not applicable. In this connection, the ratios in Krishena Kumar v. Union of India, Indian Ex-Services League v. Union of India, State Government Pensioners' Assn. v. State of A.P., and All India Reserve Bank Retired Officers' Assn. v. Union of India, are apt. In all these cases, the prescription of a cut-off date for implementation of such benefits was held not to be arbitrary, irrational or violative of Article 14 of the Constitution.

32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including in the following two cases. In State of Rajasthan v. Amritlal Gandhi, this Court went so as far as to note that:

"...Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1.1.1986 for 1.1.1990.

33. More recently, in Veerasamy, this Court observed that financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 1.7.1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.

34. In State of Punjab v. Boota Singh ("Boota Singh") after considering several judgments of this Court in D.S. Nakara to K.L. Rathee v. Union of India, it was held that D.S. Nakara should not be interpreted to mean that the emoluments of persons who retired after a notified date holding the same status, must be treated to be the same.

35. In State of Punjab v. J.L. Gupta where one of us was on the Bench (Sabharwal, J.), the views expressed in Boota Singh were reiterated, and it was held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary.

36. In Ramrao v. All India Backward Class Bank Employees Welfare Assn., a Division Bench of this Court said, even for the purpose of effecting promotion, the fixing of a cut-off date was neither arbitrary, unreasonable nor did it offend Article 14 of the Constitution. Moreover, the Court held that possible hardship to be endured by a person as a result did not make cut-off dates violative of Article 14.

37. In the instant case before us, the cut-off date has been fixed as 1.4.1995 on a very valid ground, namely, that of financial constraints. Consequently, we reject the contention that the fixing of the cut-off date was arbitrary, irrational or had no rational basis or that it offends Article 14."

38. Hon'ble Supreme Court in the case of Rajesh Chander Sood (supra) has held as under:-

"75. Having given our thoughtful consideration to the issue canvassed, and having gone through the judgments cited, we are of the considered view, that this Court has repeatedly upheld a cut-off date, for extending better and higher pensionary benefits, based on the financial health of the employer. A cut-off date can therefore legitimately be prescribed for extending pensionary benefits, if the funds available cannot assuage the liability, to all the existing pensioners. We are therefore satisfied to conclude, that it is well within the authority of the State Government, in exercise of its administrative powers (which it exercised, by issuing the impugned repeal notification dated 2.12.2004) to fix a cut-off date, for continuing the right to receive pension in some, and depriving some others of the same. This right was unquestionably exercised by the State Government, as determined by this Court, in the R.R. Verma case, wherein this Court held, that the Government was vested with the inherent power to review. And that the Government was free to alter its earlier administrative decisions and policy. Surely, this is what the State Government has done in the present controversy. But this Court in the above mentioned judgment, placed a rider on the exercise of such power by the Government. In that, the exercise of such power, should be in consonance with all legal and statutory obligations.

76. It is equally true, that the power of administrative review can only be exercised, for a good and valid justification. Such justification besides being founded on reasonable consideration, should also not be violative of any legal right - statutory or constitutional, vested in the affected employees. Insofar as the permissibility of the administrative action taken, in issuing the impugned repeal notification dated 2.12.2004 is concerned, whether the said power was exercised by the State Government for good and valid reasons, and/or whether the same violated any statutory or constitutional right vested in the respondent-employees, shall be examined by us in the succeeding paragraphs."

39. Hon'ble Supreme Court in the case of T.M. Sampath (supra) has held as under:-

"40. We have carefully perused the judgment of the High Court of Jharkhand in P.N. Mishra v. Union of India against which SLP(C) No.19102 of 2012 has been filed and we concur with the view of the High Court. The cut-off date is a domain of the employer and so the introduction of new scheme of pension will be done considering all the relevant factors including financial viability of the same. No interference is warranted unless there is gross injustice is perpetrated. The Appellants have failed to prove any arbitrariness and discrimination with respect to the New Pension Scheme.

41. In the light of the discussion in the foregoing paragraphs, the writ petitions and the appeal are also dismissed. However, there shall be no order as to costs."

40. Likewise, Hon'ble Supreme Court in the case of Ratan Behari Dey (supra) has held as under:-

"7. In our opinion, the principle of Nakara has no application to the facts of this case. The precise principle enunciate in Nakara has been duly explained in Krishena Kumar by a coordinate Bench. For reasons to be assigned hereinafter, it cannot be said that prescribing April 1, 1977 as the date from which the new Regulations were to come into force is either arbitrary or discriminatory. Now, it is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay-scales as also terminal benefits/pensioners benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e. without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf. It appears that in the Calcutta Corporation, a pension scheme was in force prior to 1914. Later, that scheme appears to have been given up and the Provident Fund Scheme introduced Under the Provident Fund Scheme, a certain amount was deducted from the salary of the employees every month and credited to the Fund. An equal amount was contributed by the employer which too was credited to the Fund. The total amount to the credit of the employee in the Fund was paid to him on the date of his retirement. The employees, however, were demanding the introduction of a pension scheme. The demand fell on receptive years in the year 1977 may be because in that-year the Left Front Government came to power in that State, as suggested by the writ petitioners. The State government appointed a Commission to examine the said demand and to recommend the necessary measures in that behalf. The three members constituting the Commission differed with each other in certain particulars. The Government examined their recommendations and accepted them with certain modifications in the year 1981. After processing the matter through relevant departments, the Regulations were issued and published in the year 1982. In the above circumstances, the State Government thought that it would be appropriate to give effect to the said Regulations on and from April 1, 1977 i.e., the first day of the financial year in which the Pay Commission was appointed by the Government - a fact which could not have been unknown to the Corporation employees. We cannot say that the Government acted unreasonably in specifying the said date. It may also be said that, that was the year in which the Left Front came into power in that State, but that does not detract from the validity of the aforesaid reasons assigned by the State in its counter-affidavit filed before the Division Bench of the High Court. We are not in agreement with the opinion expressed by the High Court that the reasons assigned by the State Government are neither relevant not acceptable.

8. In this context, it may be remembered that the power of the State to specify a date with effect from which, the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date in this case is neither arbitrary now unreasonable, the complaint of discrimination must fail.

9. Now coming to the argument of Sri P.P. Rao that the Regulations bring about an unreasonable classification between similarly placed employees in concerned, we must say that we are not impressed by it. It is not submitted that the Corporation had no power to give retrospective effect to the Regulations. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they might specify. Of course, as repeatedly held by this Court, in such cases the State cannot, as the expression goes, pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. Once this is done, question of discrimination does not arise. Reference in this behalf may also be had to the decision of this Court in Sushma Sharma v. State of Rajasthan , a decision of the Division Bench comprising E.S. Venkataramiah and Sabyasachi Mukherji, JJ. "

41. Another aspect of the matter is that those teachers who received the benefit of extension of service till the end of academic session in terms of a particular Government Order knowing fully well the terms and conditions on which they were being given extension of service and having accepted the same without demur or protest and thereafter retired cannot now be allowed to turn around and stake their claim for certain benefits which have been introduced with prospective effect in terms of the Government Order dated 28.02.2007. This is also a valid ground for rejection of the claim of the petitioners taking into consideration that the petitioners fully accepted the end of session benefit that was extended to them in terms of the Government Order dated 27.06.1988 knowing fully well that they would only receive the salary for their working which they in fact received without any demur or protest. After issue of the Government Order dated 28.02.2007, the petitioners have staked their claim for being given the benefits as introduced through the Government Order dated 28.02.2007 despite having retired prior to issue of the said Government Order dated 28.02.2007. Their claim cannot be reopened as a result of enhancement of end of session benefit made at a later stage. In this regard, the Court may place reliance on the judgment of Hon'ble Supreme Court in the case of Indian Ex-Services League (supra), wherein Hon'ble Supreme Court has held as under:-

"21. One of the prayers made in these writ petitions is for grant of same Death-cum-Retirement Gratuity to the pre-April 1, 1979 retirees as to the post-April 1, 1979 retirees. A similar claim was rejected by this Court in State Government Pensioners' Association v. State of Andhra Pradesh, on the ground that the claim for gratuity can be made only on the date of retirement on the basis of the salary drawn on the date of retirement and being already paid on that footing the transaction was completed and closed. It could then not be reopened as a result of the enhancement made at a later date for persons retiring subsequently. This concept of gratuity being different from pension has also been reiterated by the Constitution bench in Krishena Kumar's case. With respect, we are in full agreement with this view. This claim of the petitioners also, therefore, fails.

22. Another claim made is for merger of D.A. backwards also. From 1.1.1973 everyone is being paid D.A. in addition to the pension. The reckonable emoluments which are the basis for computation of pension are to be taken on the basis of emoluments payable at the time of retirement and, therefore, there is no ground to include D.A. at a time when it was not paid. This claim also is untenable."

42. Accordingly, keeping in view the aforesaid discussions and the proposition of law as laid down by Hon'ble Supreme Court, it is clear that all the grounds as have been raised by the petitioners for setting aside the part of the Government Order dated 28.02.2007 are untenable in the eyes of law and cannot be granted to them.

43. So far as the relief of treating the petitioners retired on 30.06.2006 is concerned, needless to mention that the petitioners' actual date of superannuation was 31.07.2005 and 31.12.2005. As already discussed above in detail, both the petitioners were granted end of session benefit till the end of session i.e. 30.06.2006. Having continued till the end of academic session consequently the same would not entail extension of date of superannuation till 30.06.2006 as is claimed by the petitioners and thus all pensionary benefits that would accrue to them would only accrue on the basis of last salary drawn by them on the date of their superannuation i.e. 31.07.2005 and 31.12.2005 as per rules [ see -Indian Ex-Services League (supra)]. Consequently even this prayer cannot be granted to the petitioners.

44. Accordingly, keeping in view the aforesaid discussions, the writ petition is misconceived and is hereby dismissed.

 
Order Date :- 13.05.2019
 
A. Katiyar							(Abdul Moin, J.)