Bombay High Court
Raghavendra Anantrai Mehta vs State Of Maharashtra Through The ... on 6 May, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
WP-432-2020-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.432 OF 2020
RAGHAVENDRA ANANTRAI MEHTA )
Occupation : Retired District & Sessions Judge)
Age : 86 years, C-4, Supriya Sankul, )
Near Sadanand Hotel, Baner Road, )
Pune 411 045, India )...PETITIONER
V/s.
1) STATE OF MAHARASHTRA )
Through The Secretary, Law and Judiciary )
Department, Mantralaya, Mumbai-400032 )
)
2) RETIRED JUDICIAL OFFICERS ASSOCIATION )
MAHARASHTRA )
Office : B/503, Crystal Garden, Baner-Pashan )
Link Road, Pashan, Pune 411 021 )
)
3) THE REGISTRAR GENERAL )
High Court, Bombay )...RESPONDENTS
Mr.Piyush Shah a/w. Mr.Jay Vora, Advocates for the Petitioner.
Mr.A.A.Alaspurkar, AGP for the Respondent No.1-State.
Mr.P.G.Jagdale, Advocate for Respondent No.2.
Mr.Shailendra Kanetkar, Advocate for the Respondent No.3.
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
DATE : RESERVED ON 9th APRIL 2021
PRONOUNCED ON 6th MAY 2021
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JUDGMENT : (PER : V. G. BISHT, J.)
1 Rule. The learned counsel for the respondents waives
service. By consent of parties, petitioner is heard finally.
2 The petitioner by way of present writ petition under
Article 226 of the Constitution of India impugns Government
Resolution No.HCT-2015/PRA/KRA 77/KA.TEEN dated 10th May
2016 being discriminatory to the effect that it does not include
those pensioners who retired pre-1996 and thus is in violation to
Article 14 of the Constitution of India and further seeks direction
to respondent no.1 State to pay increased / revised pension as
per the Government Resolution No.HCT-2015/PRA/KRA
77/KA.TEEN dated 10th May 2016 uniformly to the petitioner
irrespective of any cut-off date.
3 The facts of the present petition in nutshell are as
under :
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(a) The petitioner retired as a District and Sessions Judge,
Selection Grade, Satara on 30th September 1991 on attaining
the age of superannuation. The petitioner is governed by
the Maharashtra Civil Services (Pension) Rules, 1982.
(b) The petitioner contends that the State of Maharashtra issued
a Government Resolution dated 5th January 2011 (as
amended on 30th March 2011) by which recommendations
of the Padmanabhan Committee were accepted. The said
Government Resolution gives effect to the recommendations
of Padmanabhan Committee regarding the pension payable
to the Judicial Officers in the State. By further Government
Resolution dated 25th July 2011 the benefits of the
Government Resolution dated 5th January 2011 were also
extended to the Judicial Officers who retired prior to 1 st
January 2006.
(c) It is the case of the petitioner that the Andhra Pradesh
Retired Judges Association being aggrieved by certain
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recommendations of the Padmanabhan Committee Report
filed I.A. (No.5 of 2009) in Writ Petition No.1022 of 1989 in
the Hon'ble Supreme Court which was disposed off by an
order dated 8th October 2012. The Hon'ble Supreme Court
allowed the said I.A. (No.5 of 2009) preferred by said
Judicial Officers who retired after 1 st January 1996 but prior
to 1st January 2006.
(d) It is then contended that based on the aforesaid order dated
8th October 2012 the present respondent no.1 State of
Maharashtra by its Government Resolution No.
HCT-2015/PRA/KRA 77/KA.TEEN dated 10th May 2016
(Exh. C) has raised the pension by 3.07 times. However, this
increase / revision of the pension is given to only those
pensioners who retired after 1st January 1996. The relevant
portion of the said Government Resolution reads as under :
"2(i) The existing pensions of all past
pensioners who retired after 01.01.1996 and the
pensioners whose pensions were consolidated as
per Karnataka model shall be raised by 3.07 times
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on par with the other pensioners subject to
minimum of 50% of the revised pay scale of pay of
their respective post."
(e) According to the petitioner, as he retired prior to 1 st January
1996, he is aggrieved by the said cut-off date specified in the
Government Resolution since it has now created two classes
of pensioners i.e. pre-1996 and post-1996 for the purpose of
revision of pension. This is absolutely arbitrary and violative
of Article 14 of the Constitution of India. Despite making
representations, no action has been taken by the
respondents. Therefore, the present petition.
4 Respondent no.1 State of Maharashtra has resisted
the present petition by filing affidavit in reply through the Joint
Secretary, Law and Judiciary Department, Mantralaya, Mumbai.
According to the respondent no.1 State, the Hon'ble Supreme
Court passed the following order in I.A. (No.5 of 2009) preferred
by Retired Judicial Officers. The order reads thus :
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"(i) The existing pension of all past pensioners
who retired after 01.01.1996 and the pensioners
whose pensions were consolidated as per
Karnataka model shall be raised by 3.07 times on
par with the other pensioners subject to minimum
of 50% of the revised pay of their respective post."
This IA No.5 of 2009 has been decided on
08.10.2012, wherein following order has been
passed :
"We accordingly accept the prayer of the applicants
and allow this IA in terms of prayer clause (I) of
the application.
IA No.5 stands disposed of."
5 The respondent State further contends that
considering the said direction of the Hon'ble Apex Court the
Government of Maharashtra issued the Government Resolution
dated 10th May 2016 ( Exh. C) in compliance with the direction
given by the Hon'ble Apex Court. Since the cut-off date 1 st
January 1996 is given by the Hon'ble Apex Court, the distinction
between Retired Judicial Officers, if any, is not the creation of the
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respondent State. The petitioner is indirectly seeking
modification of the order of the Hon'ble Supreme Court through
the present petition which is not maintainable and thus being
devoid of merits, is liable to be dismissed.
6 The respondent no.2 i.e. Retired Judicial Officers
Association, Maharashtra, in its affidavit-in-reply has fully
supported the claim of the petitioner with a prayer that the same
may be allowed.
7 Mr.Shah, learned counsel for the petitioner, submits
before us that the creation of two classes of pensioners i.e. pre-
1996 and post-1996 within the same homogeneous is wholly
contrary to the settled principle of law laid down by the Hon'ble
Supreme Court in the case of D.S.Nakara and Others vs. Union of
India1 and more particularly placed reliance on paragraphs 42
and 65. According to the learned counsel the classification of the
same homogeneous class into two different groups is absolutely
(1983) 1 SCC 305
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arbitrary and thus violative of the Article 14 of the Constitution
of India. According to the learned counsel the Hon'ble Supreme
Court in the case of All Manipur Pensioners Association vs. The
State of Manipur and Others2 dealt with a similar situation and
after discussing the judgment of D.S.Nakara (supra) directed the
State to provide revised pension to all pensioners irrespective of
the date of their retirement i.e. pre-1996 or post-1996.
8 The learned counsel then pointed out order passed by
the Hon'ble Supreme Court in IA No.(5 of 2009) and would
submit that the Hon'ble Supreme Court was dealing with the
percentage of revised pension of the pensioners and the issue of
increase of pension by 3.07 times of pensioners retired prior-
1996 was never decided by the Hon'ble Supreme Court. The
impugned Government Resolution whilst implementing the said
order of the Hon'ble Supreme Court has by itself suo-moto
restricted the benefit of increase of pension to only those
pensioners retired post-1996 without any justifiable reason to
AIR 2019 Supreme Court 3338
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exclude the pensioners retired pre-1996. Since both the alleged
classes created by the respondent no.1 State i.e. pensioners
retired pre-1996 and post-1996 are governed by the Maharashtra
Civil Services (Pension) Rules, 1982, there ought not to be any
discrimination whilst revising the pension of pensioners retired
post-1996 and that of pensioners retired pre-1996.
9 Mr.Jagdale, learned counsel for respondent no.2
Retired Judicial Officers Association, has supported the
submissions advanced by Mr.Shah, learned counsel for the
petitioner.
10 Mr.Alaspurkar, learned AGP for respondent no.1
State, vehemently opposed the submissions advanced by the
learned counsel for the petitioner and would submit that the
impugned Government Resolution came to be issued by the
respondent State in line with the order passed by the Hon'ble
Apex Court in IA No.5 of 2009 and it would be wrong to say that
it is the respondent State who has created two different groups of
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retirees arbitrarily and in violation of Article 14 of the
Constitution of India. According to the learned AGP the ratio
laid down in the case of D.S.Nakara (supra) and All Manipur
Pensioners Association (supra) are not applicable to the facts and
circumstances of the present case. The learned AGP would
submit that in those cases the fixation of pension etc. was the
decision taken by the concerned government and Union of India
under the Service Rules. Since the petition is indirectly seeking
modification of the order of the Hon'ble Supreme Court passed in
IA No.5 of 2009, the present writ petition is not maintainable and
as being devoid of merit is liable to be dismissed with costs.
11 We have perused the record. It appears that the
impugned Government Resolution No.HCT-2015/PRA/KRA
77/KA.TEEN dated 10th May 2016 was passed on the basis of
order dated 8th October 2012 passed in IA No.5 of 2009 in IA
No.244 in Writ Petition (C) No.1022 of 1989 preferred by Andhra
Pradesh Retired Judges Association who retired after 1st January
1996 but prior to 1st January 2006. The order reads thus :
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" ORDER
IA No. 223/2007
Put up next week.
IA No. 5 of 2009 in IA No.244 in WP (C)
No.1022/1989
The applicants in this IA are judicial officers
who retired after January 01, 1996, but prior to
January 2006. They are aggrieved by the
recommendation of Justice Padmanabhan
Committee, as contained in paragraph 31 of its
report. Paragraph 31 of the recommendations of
the Committee, insofar as it is relevant, is as
under :
Para 31 : The recommendations of the
First National Judicial Pay Commission
with respect to past pensioners are given
in paragraph 23.18 which are as under :
1) The revised pension of the retired
judicial officers should be 50% of the
minimum of the post held at the time of
retirement, as revised from time to time.
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xx xx xx "
Mr. P.P.Rao, learned senior advocate appearing
for the applicants, pointed out that the
Padmanabhan Committee, apparently due to
oversight, fixed the revised pension of the
concerned judicial officers at 50% of the minimum
of the post held at the time of retirement, as
revised from time to time. Consequently, as a
result of the revision, the concerned judicial officers
are getting as pension an amount which is lower
than what they earlier received before revision.
The grievance of the applicants appears to be
justified and it is significant to note that both the
High Court of Andhra Pradesh and the State
Government of Andhra Pradesh, in their respective
responses, have supported the case of the
applicants.
Mr. A.T.M.Sampath, learned amicus curiae, also
submitted that there was evidently some error in
the recommendation of the One Man Committee.
We, accordingly, accept the prayer of the
applicants and allow this IA in terms of prayer
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clause (I) of the application.
IA No.5 stands disposed of.
IA No. 1 of 2008 in IA No.213 of 2007
As prayed on behalf of the applicant, put up
after four weeks."
12 Based on the aforesaid order dated 8th October 2012
passed by the Hon'ble Supreme Court in IA No.5 of 2009, the
present respondent no.1 State of Maharashtra by its Government
Resolution No.HCT-2015/PRA/KRA 77/KA.TEEN dated 10th May
2016 (Exh. C) has raised the pension by 3.07 times. However,
this increase / revision of the pension is given to only those
pensioners who retired after 1st January 1996. The relevant
portion of the said Government Resolution reads as under :
"2(i) The existing pensions of all past
pensioners who retired after 01.01.1996 and the
pensioners whose pensions were consolidated as
per Karnataka model shall be raised by 3.07 times
on par with the other pensioners subject to
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minimum of 50% of the revised pay scale of pay of
their respective post."
13 It is apparent that the petitioner who retired on 30th
September 1991 i.e. prior to 1st January 1996 is aggrieved due to
the said cut-off date specified in the said Government Resolution
since according to him it has now created two classes of
pensioners i.e. pre-1996 and post-1996 for the purposes of
revision of pension.
14 At the outset, it is required to be noted that in the
case of D.S.Nakara (supra) such classification is held to be
absolutely arbitrary and violative of Article 14 of the Constitution
of India. In paragraphs 42 and 65 relied by the learned counsel
for the petitioner, the Hon'ble Apex Court has observed and held
as under :
"42 If it appears to be undisputable, as it does
to us that the pensioners for the purpose of pension
benefits form a class, would its upward revision
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permit a homogeneous class to be divided by
arbitrarily fixing an eligibility criteria unrelated to
purpose of revision, and would such classification
be founded on some rational principle ? The
classification has to be based, as is well settled, on
some rational principle and the rational principle
must have nexus to the objects sought to be
achieved. We have set out the objects underlying
the payment of pension. 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. If the liberalisation
was considered necessary for augmenting social
security in old age to government servants then
those who retired earlier cannot be worst off than
those who retire later. Therefore, this division
which classified pensioners into two classes is not
based on any rational principle and if the rational
principle is the one of dividing pensioners with a
view to giving something more to persons
otherwise equally placed, it would be
discriminatory. To illustrate, take two persons, one
retired just a day prior and another a day just
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succeeding the specified date. Both were in the
same pay bracket, the average emolument was the
same and both had put in equal number of years of
service. How does a fortuitous circumstance of
retiring a day earlier or a day later will permit
totally unequal treatment in the matter of
pension ? One retiring a day earlier will have to be
subject to ceiling of Rs. 8,100 p a. and average
emolument to be worked out on 36 months' salary
while the other will have a ceiling of Rs. 12,000
p.a. and average emolument will be computed on
the basis of last ten months average. The artificial
division stares into face and is unrelated to any
principle and whatever principle, if there be any,
has absolutely no nexus to the objects sought to be
achieved by liberalising the pension scheme. In fact
this arbitrary division has not only no nexus to the
liberalised pension scheme but it is counter
productive and runs counter to the whole gamut of
pension scheme. The equal treatment guaranteed
in Article 14 is wholly violated inasmuch as the
pension rules being statutory in character, since the
specified date, the rules accord differential and
discriminatory treatment to equals in the matter of
commutation of pension. A 48 hours difference in
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matter of retirement would have a traumatic effect.
Division is thus both arbitrary and unprincipled.
Therefore the classification does not stand the test
of Article 14."
"65 That is the end of the journey. With the
expanding horizons of socio-economic justice, the
socialist Republic and welfare State which we
endeavour to set up and largely influenced by the
fact that the old men who retired when
emoluments were comparatively low and are
exposed to vagaries of continuously rising prices,
the falling value of the rupee consequent upon
inflationary inputs, we are satisfied that by
introducing an arbitrary eligibility criteria: 'being in
service and retiring subsequent to the specified
date' for being eligible for the liberalised pension
scheme and thereby dividing a homogeneous class,
the classification being not based on any
discernible rational principle and having been
found wholly unrelated to the objects sought to be
achieved by grant of liberalised pension and the
eligibility criteria devised being thoroughly
arbitrary, we are of the view that the eligibility for
liberalised pension scheme of being in service on
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the specified date and retiring subsequent to that
date' in impugned memoranda, Exhibits P-I and P-2,
violates Article 14 and is unconstitutional and is
struck down. Both the memoranda shall be
enforced and implemented as read down as under:
In other words, in Exhibit P-1, the words:
"that in respect of the Government servants who
were in service on the 31st March, 1979 and
retiring from service on or after that date"
and in Exhibit P-2, the words:
"the new rates of pension are effective from 1st
April 1979 and will be applicable to all service
officers who became/become non-effective on or
after that date."
are unconstitutional and are struck down with this
specification that the date mentioned therein will
be relevant as being one from which the liberalised
pension scheme becomes operative to all
pensioners governed by 1972 Rules irrespective of
the date of retirement. Omitting the
unconstitutional part it is declared that all
pensioners governed by the 1972 Rules and Army
Pension Regulations shall be entitled to pension as
computed under the liberalised pension scheme
from the specified date, irrespective of the date of
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retirement. Arrears of pension prior to the specified
date as per fresh computation is not admissible. Let
a writ to that effect be issued. But in the
circumstances of the case, there will be no order as
to costs."
15 Similarly, in All Manipur Pensioners Association
(supra) the Hon'ble Apex Court observed and held as under :
"8 Even otherwise on merits also, we are of the
firm opinion that there is no valid justification to
create two classes, viz., one who retired pre-1996
and another who retired post-1996, for the purpose
of grant of revised pension, In our view, such a
classification has no nexus with the object and
purpose of grant of benefit of revised pension. All
the pensioners form a one class who are entitled to
pension as per the pension rules. Article 14 of the
Constitution of India ensures to all equality before
law and equal protection of laws. At this juncture it
is also necessary to examine the concept of valid
classification. A valid classification is truly a valid
discrimination. It is true that Article 16 of the
Constitution of India permits a valid classification.
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However, a very classification must be based on a
just objective. The result to be achieved by the just
objective presupposes the choice of some for
differential consideration/treatment over others. A
classification to be valid must necessarily satisfy
two tests. Firstly, the distinguishing rationale has to
be based on a just objective and secondly, the
choice of differentiating one set of persons from
another, must have a reasonable nexus to the
objective sought to be achieved. The test for a valid
classification may be summarised as a distinction
based on a classification founded on an intelligible
differentia, which has a rational relationship with
the object sought to be achieved. Therefore,
whenever a cut-off date (as in the present
controversy) is fixed to categorise one set of
pensioners for favourable consideration over
others, the twin test for valid classification or valid
discrimination therefore must necessarily be
satisfied. In the present case, the classification in
question has no reasonable nexus to the objective
sought to be achieved while revising the pension.
As observed hereinabove, the object and purpose
for revising the pension is due to the increase in the
cost of living. All the pensioners form a single class
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and therefore such a classification for the purpose
of grant of revised pension is unreasonable,
arbitrary, discriminatory and violative of Article 14
of the Constitution of India. The State cannot
arbitrarily pick and choose from amongst similarly
situated persons, a cut-off date for extension of
benefits especially pensionary benefits. There has
to be a classification founded on some rational
principle when similarly situated class is
differentiated for grant of any benefit."
"8.1 As observed hereinabove, and even it is
not in dispute that as such a decision has been
taken by the State Government to revise the
pension keeping in mind the increase in the cost of
living. Increase in the cost of living would affect all
the pensioners irrespective of whether they have
retired pre1996 or post-1996. As observed
hereinabove, all the pensioners belong to one class.
Therefore, by such a classification/cutoff date the
equals are treated as unequals and therefore such a
classification which has no nexus with the object
and purpose of revision of pension is unreasonable,
discriminatory and arbitrary and therefore the said
classification was rightly set aside by the learned
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Single Judge of the High Court. At this stage, it is
required to be observed that whenever a new
benefit is granted and/or new scheme is
introduced, it might be possible for the State to
provide a cutoff date taking into consideration its
financial resources. But the same shall not be
applicable with respect to one and single class of
persons, the benefit to be given to the one class of
persons, who are already otherwise getting the
benefits and the question is with respect to
revision."
16 Intensive examination of Article 14 of the
Constitution of India by the Hon'ble Apex Court in the aforesaid
cases (supra) signifies the significance of Article 14 of the
Constitution of India. The other facet of Article 14 which must
be remembered is that it eschews arbitrariness in any form. It is
well settled that what Article 14 strikes at is arbitrariness because
any action that is arbitrary must necessarily involve negation of
equality.
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17 Thus, the fundamental principle is that Article 14
forbids class legislation but permits reasonable classification for
the purpose of legislation which classification must satisfy the
twin tests of classification being founded on intelligible
differentia which distinguishes person or things that are grouped
together from those that are left out of the group and that
differentia must have a rational nexus to the object sought to be
achieved by the statute in question.
18 According to the learned counsel for the petitioner,
there is no criterion on which classification of pensioner(s) who
retired on or after 1st January 1996 and before 1st January 2006
can provide a rational principle co-related to object viz., object
underlying payment of pension.
19 We are also unable to understand on what basis
petitioner and others like him were left high and dry in as much
as the same is neither discernible nor decipherable. No rational
principle is outlined and explained by the respondent State to
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such an absurd classification. As already pointed out, the
classification has to be based, as is well settled, on some rational
principle and the rational principle must have nexus to the
objects sought to be achieved. We do not find any reason and
rational on record subjecting the petitioner and alike to
differential and discriminating treatment.
20 What appears to us is that the respondent State
simply misinterpreted and misunderstood the order passed by the
Hon'ble Supreme Court in IA No.5 of 2009. The learned counsel
for the petitioner has rightly pointed out that the Hon'ble
Supreme Court in IA No.5 of 2009 was dealing with the
percentage of revised pension of the pensioners and the issue of
increase of pension by 3.07 times of pensioners retired prior to
1996 was never decided by the Hon'ble Supreme Court. We are
also of the view that the direction so given in the said order is
one of the limited application and its scope cannot be stretched
and enlarged to cover the retirees and exclude them who
superannuated prior to 1996.
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21 The petitioner and others placed in similar situation
and those who retired on or after 1st January 1996 form only one
homogeneous class as a whole and therefore they all cannot be
bifurcated or divided into two groups for the purpose of giving
more financial benefits to one segment than the other. The
classification has to be based on some rational principle and the
rational principle, as already said, must have nexus to the objects
sought to be achieved. Division is, thus, both arbitrary and
unprincipled. Therefore, the classification does not stand the test
of Article 14 of the Constitution of India.
22 In view of the above and for the reasons stated above,
we are of the considered opinion that the issue in the present
writ petition is squarely covered by the decisions of the Hon'ble
Supreme Court in the case of D.S.Nakara (supra) and All
Manipur Pensioners Association (supra). The decisions (supra)
apply with full force to the facts of the case on hand.
23 In view of the above, we pass the following order :
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ORDER
(i) It is hereby declared that Government Resolution No.HCT-
2015/PRA/KRA 77/KA.TEEN dated 10th May 2016 is
discriminatory to the effect that it does not include those
pensioners who retired pre-1996 and thus is in violation of
Article 14 of the Constitution of India.
(ii) The respondent no.1 State is directed to pay the increased /
revised pension to the petitioner and other Retired Judicial
Officers placed in similar situation as per Government
Resolution No.HCT-2015/PRA/KRA 77/KA.TEEN dated 10 th
May 2016, within a period of four months from the date of
receipt of authenticated copy of this judgment.
(iii) Rule is made absolute in aforesaid terms.
(iv) There shall be no orders as to costs.
(V. G. BISHT, J.) (R.D.DHANUKA, J.)
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