Dr.M.M.Swami & Ors vs State Of Maharashtra & Anr
2017 Latest Caselaw 4292 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CIVIL APPELLATE JURISDICTION

               WRIT PETITION NO.7365 OF 2004


1 Dr. [Smt.] M.M.Swami
Sirsikar, 121 Sterling Centre,
Opp: Arora Towers,
11 Moledina Road,
Pune 411 001

2 Dr. K.P.Ghatol,
(Since deceased through L.R.)

2A. Smt. Saral K. Ghatol,
Age : 73 years, Occ : Household,
R/o. Vishal Nagar, Sr.No.26/1,
Wakad Road, Gulmohar Colony,
Pimple Nilakh,
Pune 411 027.

3 Dr. Arun Ramchandra Godase
C/o. Dr. [Smt.] M.M.Swami
Sirsikar, 121 Sterling Centre,
Opp: Arora Towers,
11 Moledina Road,
Pune 411 001.

4 Dr. Mrs. Aayati Bopardikar,
50, Vijaynagar Colony,
Behind S.P.College,
Pune 411 030.

5 Dr. Ajit Bharatsen Somway,
1-C-2 Flat No.8, Siddharth
Nagar, Phase-I,
Near Cosmos Bank, Aundhgaon,
Pune 411 007.



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6 Dr. S.Y.Idate,
Plot No.8 "Atharva",
East to Krishna Hospital,
Kranti Nagar,
Sangli 416 416.


7 Dr. Prabhakar Dattatray Deshpande
C6-2-0-3, Sector 6,
Gas Galli, Opp: Wani Building,
CBD Belapur,
Navi Mumbai 400 614               ......Petitioners

         : Versus :

1 State of Maharashtra
Through the Secretary,
Public Health Department,
Mantralaya, Mumbai 400 032.

2 The Commissioner,
Employees State Insurance Scheme,
Panchdeep Bhawan,
Lower Parel, Mumbai               .......Respondents



                               WITH
                      WRIT PETITION NO.9990 OF 2004

1 Dr. Chandrashekhar S. Kapse,
2/33, Raisoni Park,
Market Yard Bus Depot,
Pune 411 037.

2 Dr. Prema Prabhakar Shidore,
Omkar, 759/107/3 Lane No.2,
Prabhat Road,
Pune 411 004.



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3 Dr. S.A.Diwanji,
Swami Samarth, S.No.97/3/1,
Plot No.240, Bhusari Colony,
Opp: PMT Depot, Kothrud,
Pune 411 038.

4 Dr. Mrs. Nirmala H. Kolhatkar,
Professor of Pathology,
Dr. D.Y.Patil Medical College,
Pimpri, Pune.

5 Dr. Ajit Vasantrao Sontakke,
Prof. HOD Biochemistry,
D.Y.Patil Medical College,
Bavada, Kolhapur-416 007.

         Versus

State of Maharashtra,
Through Secretary,
Medical Education and Drugs
Department, Mantralaya,
Mumbai 400 032.


Mr. Vishwanath Talkute , Advocate for Petitioner in both
petitions.

Mr. Vishal Thadani, AGP for Respondent-State.


           CORAM               :   SMT. V.K. TAHILRAMANI, &

                                   SANDEEP K. SHINDE, JJ.

RESERVED ON: 15 th June, 2017

PRONOUNCED ON : 11 th July, 2017.

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JUDGMENT :            [Per :- Shri Sandeep K. Shinde, J.]

1. In both the petitions filed under Article 226 of

the Constitution of India, a common issue is raised and,

therefore, they are taken up for hearing together and

disposed of by this common judgment. The petitioners in

the Writ Petition No.7365 of 2004 were Medical Officers

working with the Public Health Department of the State;

whereas the petitioners in Writ Petition No.9990 of 2004

were medical teachers in the state owned medical

colleges. They have challenged vires of the Government

Resolution dated 17.8.2002. It is their case that

recommendations of 5th pay commission in principle were

accepted by the State. Their pay-scales were revised from

1.1.1996; however, recommendation to revise and pay

non-practising allowance payable to Doctors who are in

service of the State has been accepted and implemented

with effect from 1.10.1998. It is their case that non

practising allowance is a component of "pensionable pay"

in terms of the Maharashtra Civil Services (Pension)

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Rules, 1982 ('Rules' for short). It is their case, that they

have retired after January, 1996 but before 1.10.1998

and, therefore, the State decision inter-alia fixing the date

for paying non-practising allowance w.e.f. 1.10.1998, is

arbitrary. The petitioners, therefore, contended that the

G.R. dated 17.8.2002 granting non-practising allowance

to medical practitioners @ 25% of the basic pay subject to

the condition that the amount of basic pay and non-

practising allowances together would not exceed 29,500/-

with effect from 1.10.1998 was discriminatory and in

breach of Article 14 of the Constitution of India. It is their

case, that since they have retired before 1.10.1998 but

after 1.1.1996 they were deprived of non-practising

allowance, which otherwise is a component of Pensionable

Pay. The Petitioners have been discriminated and singled

out by imposing cut-off date 1.10.1998. It is their case

that, cut-off date does not certify twin test of reasonable

classification and has no nexus with the objects sought to

be achieved on the basis of classification.

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2                 The Petitioners in the Writ Petition No.9990 of

2004 would raise same grounds, but had approached the

MAT at the first instance by filing an Original Application

No.477 of 2000. The Original Application was dismissed

by judgment and order dated 20.8.2002. The Petitioners

in the said writ petition, therefore, also seek same relief as

sought in Writ Petition No. 7365 of 2004.

3 That in substance, both the petitions, the

following reliefs are sought:

(i) It be declared that the Petitioners are entitled to

receive revised non-practising allowance from

1.1.1996;

(ii) That Respondents be directed to grant

revised non-practising allowance with effect from

1.1.1996 as per the recommendation of 5 th pay

commission and further direct to pay all arrears of

non-practising allowance to the Petitioners.

(iii) In alternative to aforesaid prayers,

Respondents be directed to include the revised non-

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practising allowance with the basic pay of the

Petitioners and grant pension, accordingly, from

1.10.1998 and further be directed to pay the

arrears of non-practising allowances from

1.10.1998.

4 The State countered the claim of the Petitioners

and submitted thus:

(I) The Government in the Public Health

Department vide G.R. Dated 17.8.2002 has

sanctioned non-practising allowance for medical

officers working in ESI Scheme with effect from

1.10.1998 @ 25% of the basic pay subject to

condition that the amount of basic pay and non-

practising allowance together would not exceed

Rs.29,500/-;

(II) The State has taken a policy decision for

sanctioning non-practising allowance with effect

from 1.10.1998 with cautious mind taking into

consideration financial status of the State;

(III) That in December, 1997, the State has taken

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a decision to revise the pay-scale of the

employees of the State Government and bring them

on par with pay fixation formula of the Central

Government employees;

(IV) The decision in December, 1997 was made

applicable to pay-scales and the State Government

had not taken a policy decision regarding grant of

HRA, CLA, NPA, etc. to its employees at par with

employees at the Central Government from

1.1.1996 i.e., date of implementation of 5 th Pay

Commission;

(v) That in view of the financial constraints before

the Government of Maharashtra, the State

Government thought it proper to accept

recommendation with certain modifications

instead of following them in entirety;

(vi) That after giving anxious consideration to

protect interests of the pensioners and to see that

they are not totally denied advantages of

recommendations of 5th pay commission, the State

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Government arrived at following decisions:

"(i) To adopt the Government of India orders with suitable modifications regarding revision of pension of pre-1996/ post-1996 pensioners w.e.f. 1.1.1996.

(ii) The pension of pre-1996 / post- 1996 pensioners so revised will be actually paid to them with effect from 1.7.1999.

(iii) In respect of post-1996 pensioners:-

(a) Gratuity should be calculated on basic pay only (I.e, unlike Central Government, D.A.admissible on the date of retirement/death should not be taken into account for the purpose of calculating gratuity).

(b) Existing upper limit of gratuity (i.e. Rs.2.50 lakh) is to be retained. (i.e. unlike Central Government, it should not be raised to Rs.3.50 lakh).

( c ) The existing limit of commutation (i.e. 1/3 or 33.33% of basic pension) is to be retained. (i.e. unlike Central Government, it should not raised to 40% of basic pension).

(d) The proposal to grant fixed medical allowance of Rs.100/- per month should not be considered at present."

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(vii) That as per the recommendation of 5 th Pay

Commission, the State Government implemented

pay-scales with certain modifications from

1.1.1996 as re-produced here-in-above; at par with

the Central Government.

(viii) That as a policy decision, certain

allowances like HRA, CLA, NPA are not made

applicable from 1.10.1996 but from certain future

date by taking into consideration financial

constraints of the State.

           (ix)           That as a matter of policy decision , effect

           of     NPA          was      granted      from      1.10.1998            as

implemented in the cases of other allowances, i.e.,

HRA, CLA, etc.;

5 Besides, State contended that, request of the

petitioners to effect NPA from 1.1.1996 instead of

1.10.1998 is, therefore, not tenable in law as effect of NPA

is given by the State Government along with other

allowances from 1.10.1998 is a policy matter and

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considering the financial resources available, as grant of

NPA from 1.1.1996 in stead of 1.10.1998 would result in

huge additional financial burden of 1.40 Crores per

annum on the Government in addition to the amount of

Rs.4.50 crores on account of respective arrears.

6 State further urged, that heavy expenditure

will be loaded on pensionary payment as NPA is countable

in basic pay for computation of pension. That to grant

NPA @ 25% of the basic pay would cause financial burden

on the State Government and that the subject G.R. was

issued in consultation with Finance Department.

7 The State on the aforesaid premise, would

contend that the subject resolution whereby the date was

fixed for paying NPAs was a policy decision. The decision

is based on the availability of financial resources of the

State. That the State has every right to fix the date. That

recommendations of the 5th pay commission are not

binding on the State. The State, therefore, would contend

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that what was revised from 1996 was a pay-scale. That

this being the policy decision, this Hon'ble Court may not

have jurisdiction to interfere with it. It was contended

that scope of judicial review of the policy decision in such

case is extremely narrow and further since such decisions

are taken by taking into consideration the financial

constraints/status, the petition deserves no consideration

and the petitions may kindly be dismissed.

8. After hearing the Learned Counsel for the

petitioner and the Learned AGP for the State, the

following issues/points arise for our consideration :-

(i) whether the State justifies its decision to

grant non-practising allowance w.e.f. 1st

October, 1998?

(ii) Whether, the petitioners (who retired in

between 1st January, 1996 to 30th September,

1998) have right to claim non-practising

allowance from 1st January, 1996?

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(iii)whether the petitioners have a right to

claim revision/re-calculation of their

"pensionable pay" as on, 1st October, 1998 ?

(iv) Whether State's decision dated 17.8.2002

(i.e. Government Resolution) is arbitrary and

violating Article 14 ?

(v) Whether ("financial constraints") could

be a valid ground for introducing a cut-off date

while implementing the recommendations of

the 5th Pay Commission ?

9. It is not in dispute that, the Maharashtra Civil

Services (Pension Rules, 1982) regulates the pension

scheme. Rule 60 defines the "Pensionable pay". It means

the average pay earned by a Government Servant during

the last ten months service.

. The "Pay" is defined in Rule 36, which includes,

special dearness pay, personal pay, special pay and other

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emoluments which may be specially classed as pay by

Government.

10. It is admitted fact that, all the

recommendations of the 5th Pay Commission were not

accepted by the State. The State revised the pay scales

from 1st January, 1996 but took a conscious decision to

pay the non-practising allowance from 1 st October, 1998.

It is admitted fact that, non-practising allowance is a part

of "pay" in terms of Rule 36 of the aforesaid Rules.

11. On the backdrop of aforesaid facts, we will now

answer point no.1. The State, in its Affidavit has

elaborately stated that, its decision dated 17th August,

2002 is a policy decision. It appears, in view of the

financial constraints before the Government, the

recommendations of the 5th Pay Commission were

accepted with certain modifications and not in entirety.

We have perused the Affidavits filed by the State,

wherein, they have clearly stated that considering the

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financial resources available and the huge burden, the

decision was taken to fix the date for paying the non-

practising allowance from 1st October, 1998.

. It may be stated that, the importance of

considering the financial implications while providing

benefits for employees, has been noted in number of

judgments including State of Rajasthan V/s.

Amritlal Gandhi, 1997 2 SCC page 342, wherein the

Supreme Court observed thus :-

"the 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 arbitrally or without any reason. The High Court was clearly in error while allowing the writ petitions and substituting the date of 1st January, 1986 for 1st January, 1990."

. In another judgment in the case of T.N. Electricity

Board V/s. Veeraswamy, (1999) 3 SCC page 414 it

was 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

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pension scheme applied differently to persons who had

retired from service before 1st July, 1986 and those who

were in employment on the said date. It was held that,

they could not be treated alike as them as they did not

belong to one class and they formed separate classes.

12. In the State Bank of Punjab and Others

V/S. Amar Nath Goyal and Others, (2005) 6

Supreme Court Cases page 754 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.

13. In the case before us, the cut-off date has been

fixed as 1st October, 1998 on a very valid ground, of

financial constraints. We therefore, reject the contention

that fixing of the cut-off date was arbitrary, irrational or

had no rational basis or that it offends Article 14.

Accordingly, we answer the issue/point no.1 in the

affirmative. We also hold, petitioners do not have right to

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claim NPA from 1.1.1996. Point no.2 is answered

accordingly.

14. The Learned Counsel appearing for the

petitioner has relied on the judgment of the Supreme

Court in the case of D.S. Nakara and Ors. V/s. Union

of India, (1983) 1 SCC 305 and judgment in the case

of Association of College and University,

Superannuated Teachers V/s. Union of India and

Others, in Civil Appeal No. 908 of 2013 . So far as

the case of Nakara is concerned, we are of the opinion

that the facts in the case in hand, are all together

different than the facts in Nakara's case. In the case in

hand, the State had revised the pay scales from 1 st

January, 1996 but postponed the decision of paying

allowances including the NPA to the employees on the roll

as on 1st October, 1998. Admittedly, in the case in hand,

there was decision to revise the pension scheme w.e.f.

1.10.1998.

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15. On the other hand, in the case of Nakara

(supra) on 25th May, 1979 the Government of India, the

Ministry of Finance issued Office Memorandum, whereby

the formula for computing of pension was liberalised but

made it applicable to Government Servants who were in

service on March 31, 1979 and retire from service, on or

after that date. This liberalised pension formula was

applicable to employees governed by 1972 rules retiring

on/or after the specified date. In other words, the

liberalised pension formula was made applicable

prospectively in Nakara's case to those who retired on/or

after 31st March, 1979 in case of government service

covered by 1972 Rules.

. On the backdrop of the aforesaid facts in Nakara's

case, it was held by the Supreme Court "if the State

considered it necessary to liberalise the pension scheme,

we find no rational principle behind it for granting these

benefits only to those who retired subsequent to that date

simultaneously denying the same to those who retired

prior to that date.

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16. Yet another case, on which reliance was placed

is the judgment in the case of Association of College

and University Superannuated Teachers (supra),

wherein the Government decided to raise the ceiling of

the retirement gratuity and death gratuity from Rs.3.5

lacs to Rs.5 lacs w.e.f. 1st January, 2006 in terms of the

G.R. dated 5th May, 2009. After 3 ½ months, another G.R.

dated 21st August, 2009 was issued and criteria of

retirement gratuity was further raised from

Rs.5,00,000/- to Rs.7,00,000/- but the same was made

effective from 1st September, 2009. On the backdrop of

these facts, it was held that retiring/retired teachers of

Colleges and Universities were already holding gratuity

and they were granted the benefit of higher gratuity in

terms of the Government Resolution dated 5 th May, 2009.

Thus, there is no justification, legal or otherwise to deny

them benefit of higher gratuity w.e.f. 1st January, 2006.

17. In the case in hand, in view of the policy

decision, the recommendations of a Pay Commission qua

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non-practising allowance has been implemented w.e.f.

1.10.1998. The State's decision to pay the non-practising

allowance w.e.f. 1.10.1998 cannot be faulted with because

it was based on sound grounds. The petitioners herein

had retired before 1.10.1998. No rights were accrued in

their favour to claim the NPA w.e.f. 1.1.1996. The State

has not revised the pension scheme on 1.10.1998 by

recomputing formula of pensionable pay. In view of this,

merely because pay scales were revised from 1.01.1996

and because the petitioners had retired before 1.10.1998,

that itself will not give rise to any rights to enable the

petitioners to claim revision in their "pensionable pay" as

on 1.10.1998, a date on which the NPA was revised. The

facts in the judgments cited by the petitioners were all

together different and therefore the ratio laid down in

those cases cannot be made applicable to the facts of this

case.

18. That for the aforesaid reasons, both the

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petitions fail and are dismissed with no order as to costs.

Rule is discharged.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)