Bombay High Court
Association Ofcollege And University ... vs The Union Of India And Others on 2 February, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:2226-DB
1 WP / 5042 / 2016+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5042 OF 2016
Association of College and University
Superannuated Teachers, (Maharashtra)
A society registered at No. MAH-853/2009
Under the provisions of the Societies
Registration Act, having its Head office at
20, Sawarkarnagar, N-5 (South) CIDCO,
Aurangabad, through its President and
Convener, Principal Dr. M.A. Wahul .. Petitioner
Versus
1] Union of India
Through its Under Secretary
Department of Education,
New Delhi
(Copy to be served on Assistant Solicitor
General of Union of India, High Court of
Judicature of Bombay Bench at Aurangabad)
2] The State of Maharashtra
Through its Secretary, Department of Higher
and Technical Education, Mantralaya,
Mumbai - 32.
3] The Director
Higher Education, Maharashtra State,
Pune
4] The University Grants Commission,
Bahadurshah Jafar Marg,
New Delhi - 110 001
5] The State of Maharashtra
Through its Finance Department,
Mantralaya, Mumbai - 32. .. Respondents
2 WP / 5042 / 2016+
AND
WRIT PETITION NO. 4554 OF 2016
Association of College and University
Superannuated Teachers, (Maharashtra)
A society registered at No. MAH-853/2009
Under the provisions of the Societies
Registration Act, having its Head office at
20, Sawarkarnagar, N-5 (South) CIDCO,
Aurangabad, through its President and
Convener, Principal Dr. M.A. Wahul .. Petitioner
Versus
1] Union of India
Through its Under Secretary
Department of Education,
New Delhi
(Copy to be served on Assistant Solicitor
General of Union of India, High Court of
Judicature of Bombay Bench at Aurangabad)
2] The State of Maharashtra
Through its Secretary, Department of Higher
and Technical Education, Mantralaya,
Mumbai - 32.
3] The Director
Higher Education, Maharashtra State,
Pune
4] The University Grants Commission,
Bahadurshah Jafar Marg,
New Delhi - 110 001
5] The Under Secretary,
Department of Higher & Technical Education
Mantralaya, Mumbai - 32.
6] The State of Maharashtra
Through its Finance Department,
Mantralaya, Mumbai - 32. .. Respondents
...
Advocate for petitioner in both WPs : Mr. S.V. Adwant
Addl. GP for the respondent - State : Mr. S.B. Yawalkar
Standing Counsel for respondents no. 1 and 4 in both WPs : Mr. S.W. Munde
...
3 WP / 5042 / 2016+
CORAM : MANGESH S. PATIL &
NEERAJ P. DHOTE, JJ.
RESERVED ON : 8 NOVEMBER 2023
PRONOUNCED ON : 2 FEBRUARY 2024
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith. Learned
Additional GP and learned advocate for respondents no. 1 and 4 in
both writ petitions waive service. At the joint request of the parties, the
matters are heard finally at the stage of admission.
2. By way of these writ petitions, the teachers who are
governed by the Maharashtra Civil Services (Pension) Rules, 1982
(Pension Rules) are alleging about discrimination between them who
all stood retired between 01-01-1996 and 31-12-2005 on the one hand
and teachers who retired prior to 01-01-1996 and who would retire after
01-01-2006.
3. It is being the stand that in order to implement the sixth
central pay commission recommendations, the State Government
appointed a three member State Pay Revision Committee styled as
'Hakim Committee' which inter alia recommended modification of the
pension and the family pension. Pursuant to such report of the
committee by issuing a government resolution dated 27-02-2009, the
State decided to revise the pension and introduced the modification of
4 WP / 5042 / 2016+
Pension Rules as applicable to the state government employees and
other employees governed by the Pension Rules. Accordingly, rule
110(1) was modified and it provides that it is only applicable to the
retirees after 01-01-2006 and holding them to be entitled to 50% of the
basic pay or average basic pay received during the last 10 months,
whichever is more, as the minimum pension payable.
4. Learned advocate Mr. Adwant would submit that
conspicuously this amendment in the Pension Rules though effected in
the year 2016 was brought into effect with effect from
01-01-2016. However, by issuing government resolution dated
05-05-2009, the government pegged down pension receivable by the
persons like the petitioners who retired between 01-01-1996 and
01-01-2006, to 40% increase on basic pay. He would submit that in
respect of the employees who retired prior to 01-01-1996 even their
pension was fixed at 50% of the revised pay scale introduced by fourth
pay commission. He would thus submit that the pension that was
made payable to the employees who retired prior to 01-01-1996
according to the revised pay scale under the fourth pay commission
and the employees who stood retired after 01-01-2006 during sixth pay
commission revision, their pension has been fixed @ 50% of the
revised pay scale under the respective pay commission. As against it,
it is only the petitioners who retired during the fifth pay commission
5 WP / 5042 / 2016+
between 01-01-1996 and 01-01-2006 have been discriminated and
their pension has been fixed @ 40% increase on the basic pay.
5. Mr. Adwant would submit that the government resolution
dated 05-05-2009, is, therefore, violative of Article 14 and 16 of the
Constitution of India. He seek reliance on the decision of the Supreme
Court in the matter of All Manipur Pensioners Association by its
Secretary V. State of Manipur; (2020) 14 SCC 625 and D.S. Nakara
V. Uniono f India; (1983) 1 SCC 305.
6. Per contra, learned AGP Mr. Yawalkar would submit that
there is no discrimination. The employees retiring during different time
span would form distinct classes. Merely because all of them are
government servants, no such parity can be claimed. If some benefits
have been extended pursuant to the Hakim committee
recommendations to the employees retiring after 01-01-2006, it would
be a matter of setting a cut off date for accepting the recommendations.
The petitioners who retired prior thereto would form a different class
and cannot seek to derive the benefit similar to the one conferred upon
the employees retiring after 01-01-2006. He would place reliance on
the following judgments :
1) Kirshena Kuma Vs. Union of India; AIR 1990 SC 1782
2) Indian Ex-Services League and others Vs. Union of India; AIR
1991 SC 1182
6 WP / 5042 / 2016+
3) Union of India Vs. P.N. Menon and others; AIR 1994 SC 2221
4) State of Rajasthan & Another Vs. Prem Raj; AIR 1997 SC 1081
5) Commander Head Quarter, Calcutta and others Vs. Capt.
Biplabendra Chand; AIR 1997 SC 2607
6) State of Rajasthan and another Vs. Amrit Lal Gandhi and others;
AIR 1997 SC 782
7) T.N. Electricity Board Vs. R. Veerasamy and others; AIR 1999 SC
8) State of W.B. & Another Vs. W.B. Govt. Pensioners Associations &
others; AIR 2002 SC 538
9) State of Bihar & Ors. Vs. Bihar Pensioners Samaj; AIR 2006 SC
9-A) K.I. Rathee Vs. Union of India; AIR 1997 SC 2763
10) State of Punjab & Ors. Vs. Amar Nath Goyal & Ors.; AIR 2006 SC
11) S.C. Chandra & Ors. Vs. State of Jharkhand & Ors.; AIR 2007 SC
12) T.M. Sampath & Ors. Vs. Secretary, Ministry of Water Resources
and Ors.; AIR 2015 SC (Supp) 367
13) Suchet Singh Yadav & Ors. Vs. Union of India & Ors.; AIR 2018
SC 1319
14) State of Maharashtra & Anr. Vs. Bhagwan & Ors.; AIR Online
2022 SC 20
15) BALCO Employees Union (Regd.) Vs. Union of India & Ors.; AIR
2002 SC 350
16) Anand Swarup Singh Vs. State of Punjab; AIR 1972 SC 2638
17) Arjun Krishna Golatkar & Ors. Vs. State of Maharashtra Ors.
(Writ Petition No. 1797 of 2014)
18) Bhaskar Anandrao Pende Vs. State of Maharashtra & Ors.
(Petition for Special Leave to Appeal (C) No. 15786 of 2018)
7. Mr. Yawalkar would also refer to the division bench
judgment of this Court in the matter of Arjun Krishna Golatkar and
7 WP / 5042 / 2016+
others Vs. State of Maharashtra and others (writ petition no. 1797 of
2014) decided on 13-12-2017. He would also point out that similar
argument was repelled by the division bench. The decision was
challenged by the petitioner in Special Leave to Appeal no. 15786 of
2018 but the Supreme Court did not interfere.
8. To begin with, similar arguments were advanced by the
petitioner in the earlier round of litigation before the Division bench of
this court in WP 4292/2013. This court had appreciated the argument
and had observed that there was a substance in the contention of the
petitioner that Hakeem committee recommendations were not
applicable to category of teaching staff and the state was further
directed to consider the entire issue afresh. Paragraphs nos. 26 and 27
of the order dated 09/06/2015 read as under:
26. The State Government shall also consider the
contention of the petitioner that, recommendation of
Hakeem Committee are not applicable for deciding the
pensionary benefits for the category of teaching staff
working in universities and colleges in Maharashtra in
general and the Government Resolution dated 5th may,
2009 and Government Resolution dated 12th August, 2009.
The Respondent - State is directed to hear the petitioner on
the aspect that, the superannuated teachers retired
between 1/1/1996 to 31/12/2005 are entitled for minimum
50% pension of the revised pay scales introduced w.e.f.
1/1/2006 as a result of implementation of 6th pay
commission and to take decision within four months from
today.
27. In the light of discussion in foregoing
paragraphs, we direct the Respondent State
Government to reconsider the entire issue/controversy
8 WP / 5042 / 2016+
keeping in view observations made in foregoing
paragraphs, office memorandums issued by the Union of
India on the recommendation of the U.G.C., orders issued
by other State Governments, judgments of the various High
Courts and the Supreme Court, and take the fresh decision
within four months from today and communicate the same
to the petitioner.
9. Even respondent no. 4 - UGC has also maintained the
stand that petitioners are denied the benefits and have been
discriminated. It has taken a stand that the full pension should not be
less than 50% of the minimum of the revised pay scale introduced by
the Pay Commission for the post last held by the employee at the time
of retirement. The government has issued an Office Memorandum
directing all heads of departments to revise the pension/family pension
as per the provisions mentioned, with effect from 01.01.2006 and
further stated that point no.8 (g) of MDHR letter dated 31/12/2008 is
mandatory in nature.
10. Even Constitutional Bench of the apex court in the matter
of D. S. Nakara (supra) has specifically held that pensioners form a
class as a whole and cannot be micro-classified by an arbitrary,
unprincipled and unreasonable eligibility criterion for the purpose of
grant of revised pension. In paragraph no. 42 following observation
have been made:
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 permit a homogeneous class to
9 WP / 5042 / 2016+
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 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 8100 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 10 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 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.
10 WP / 5042 / 2016+
11. Pertinently, D.S. Nakara (supra) has been followed in All
Manipur Pensioners Association (supra). Relevant paragraphs in the
case of All Manipur Pensioners Association are as follows:
2. The facts leading to the present appeal in a nutshell
are as under : that the State of Manipur adopted the
Central Civil Services (Pension) Rules, 1972, as
amended from time to time. As per Rule 49 of the
Central Civil Services Rules, 1972, a case of a
government employee retired in accordance with the
provisions of the Rules after completing qualifying
service of not less than 30 years, the amount of pension
shall be calculated at 50% of the average emoluments
subject to a maximum of Rs 4500 per month. It appears
that considering the increase in the cost of living, the
Government of Manipur decided to increase the
quantum of pension as well as the pay of the
employees. That the Government of Manipur issued an
office memorandum dated 21-4-1999 revising the
quantum of pension. However, provided that those
Manipur Government employees who retired on or after
1-1-1996 shall be entitled to the revised pension at a
higher percentage and those who retired before
1-1-1996 shall be entitled at a lower percentage.
2.1. Feeling aggrieved by office memorandum dated
21-4-1999 providing two different revised pensions viz.
the higher percentage of revised pension to the
government employees who retired on or after 1-1-1996
and the lower percentage of revised pension to those
who retired on or before 1-1-1996, the appellant herein -
All Manipur Pensioners Association approached the
learned Single Judge of the High Court of Manipur by
way of Writ Petition (C) No. 1455 of 2000. It was the
case on behalf of the original writ petitioners that all the
pensioners who retired on or after 1-1-1996 and those
who retired before 1-1-1996 form only one class as a
whole and therefore the classification between those
who retired on or after 1-1-1996 and those who retired
on or before 1-1-1996 for the purpose of granting the
benefit of revised pension is arbitrary, unreasonable and
violative of Article 14 of the Constitution of India. It was
submitted that the date of retirement cannot form the
very criterion for classification. Before the learned Single
Judge, reliance was placed heavily on the decision of
this Court in D.S. Nakara v. Union of India. The writ
11 WP / 5042 / 2016+
petition before the learned Single Judge was opposed
by the State Government and the aforesaid classification
was sought to be justified solely on the ground that
considering the financial constraints of the State, the
State was justified in granting revised pension differently
to those who retired after 1-1-1996 and those who
retired before 1-1-1996. It was the case on behalf of the
State that considering the financial constraints of the
State, the State was not in a position to extend the
benefit of pension making the percentage given by the
Government of India in its memorandum dated
17-12-1998 to the pre-1996 pensioners and accordingly
a decision was taken to extend the benefit of revised
pension at certain percentage for the pre-1996
pensioners and higher percentage for the post 1996
pensioners. Relying upon the decision of this Court in
D.S. Nakara case, by the judgment and order dated
24-3-2005, the learned Single Judge allowed the writ
petition and held the classification between those
pensioners who retired prior to 1996 and those who
retired after 1996 as arbitrary and violative of Article 14
of the Constitution of India and consequently directed
the State Government to pay the revised pension
uniformly to all the pensioners irrespective of any cut-off
date i.e. those who retired pre-1996 or those who retired
post-1996.
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 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. However, a valid
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
12 WP / 5042 / 2016+
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.
8.1. 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 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.
We are of the considered view that these observations are
squarely applicable to the matters in hand.
12. Since it is a matter of payment of pension, one need to
revert to the specific provisions contained in Chapter IX of the Pension
Rules and particularly, rule 110. The rule as it stands now, post
amendment dated 18-01-2016 whereby sub-rule 2 was substituted with
effect from 01-01-2006, reads as under :
13 WP / 5042 / 2016+
110. Amount of pension.
(1) In the case of a Government Servants retiring on
Superannuation, Retiring, Invalid servant retiring or
Compensation Pension before completing qualifying service of
ten years, the amount of service gratuity shall be calculated at
the rate of half month's pay for every completed six monthly
period of qualifying service.
(2) (a) In case of Government Servant retiring on
Superannuation, Retiring, Invalid or Compensation Pension in
accordance with the provisions of these rules after completing
qualifying service of not less than twenty years, the amount of
pension shall be calculated at fifty per cent of the 'Pensionable
Pay' subject to maximum of rupees two lakhs twenty thousand.
(b) In the case of a Government Servant retiring on
Superannuation, Retiring, Invalid or Compensation Pension in
accordance with the provisions of these rules before completing
qualifying service of twenty years but after completing qualifying
service of ten years, the amount of pension shall be calculated
at fifty per cent of the 'Pensionable Pay' subject to maximum of
rupees two lakhs twenty thousand and in no case the amount of
pension shall not be less than rupees seven thousand five
hundred per month.
(3) In calculating the length of qualifying service, fraction of a
year equal to three months and above shall be treated as a
completed one-half year and reckoned as qualifying service.
(4) The amount of pension finally determined under clause (a)
or clause (b) of sub-rule (2), shall be expressed in whole rupees
and where the pension contains a fraction of a rupee it shall be
rounded off to the next higher rupee.
13. Obviously since this provision had come into being with
effect from 01-01-2006, the government servant retiring on
superannuation etc. thereafter is entitled to pension to be calculated @
50% of the pensionable pay subject to maximum of Rs.2,20,000/-.
14 WP / 5042 / 2016+
14. Previously, this rule read as under:
110. Amount of pension-
(1) In the case of a Government servant retiring on
Superannuation, Retiring, Invalid or Compensation Pension
before completing qualifying service of ten years, the amount of
service gratuity shall be calculated at the rate of half month's
pay for every completed six monthly period of qualifying
service.
(2) (a) In the case of a Government servant retiring on
Super- annuation, Retiring, Invalid or Compensation Pension in
accordance with the provisions of these rules after completing
qualifying service of not less than thirty-three years, the amount
of pension shall be calculated at fifty per cent of the
"Pensionable Pay", subject to a maximum of Rs. 4.000 per
month.
(b) In the case of a Government servant retiring on
Superannuation, Retiring. Invalid or Compensation Pension in
accordance with the provisions of these rules before completing
qualifying service of thirty-three years but after completing
qualifying service of ten years, the amount of pension shall be
proportionate to the amount of pension admissible under clause
(a) and in no case the amount of pension shall be less than
rupees three hundred and seventy-fivel per mensem.
(3) In calculating the length of qualifying service, fraction of a
year equal to three months and above shall be treated as a
completed one-half year and reckoned as qualifying service.
(4) The amount of pension finally determined under clause (a)
or clause (b) of sub-rule (2), shall be expressed in whole rupee
and where the pension contains a fraction of a rupee it shall be
rounded off to the next higher rupee.
15. As can be noticed, as far as the quantum of pension is
concerned, even sub-rule 2 of rule 110 as it stood prior to 01-01-2006
provided that the pension should be 50% of the pensionable pay.
There is no dispute about the fact that the employees who retired
during 4th pay commission prior to 01-01-1996 obviously were paid
15 WP / 5042 / 2016+
minimum of 50% of the revised pay scale introduced by the pay
commission. Similarly, even the employees who would retire post
01-01-2006 under the sixth pay commission would also be entitled to
pension to be fixed at 50% of the revised pay scale. As against this,
the employees who retired during these two dates, between
01-01-1996 and 01-01-2006 under the fifth pay commission, in our
considered view, were also governed by sub-rule 2 of rule 110 as it
stood then, meaning thereby they should get pension @ 50% of the
basic pay and not 40%. It appears that without actually modifying or
amending sub-rule 2 of rule 110 of the Pension Rules, by government
resolution dated 05-05-2009, the government simply decided to peg
down the pension of the teachers who retired after 01-01-1996 to 40%
of the revised pay.
16. Conspicuously, while accepting State pay revision
committee report (Hakim Committee), recommendations in respect of
revision of pension and family pension, the State government ensured
that corresponding modification / amendment is made in rule 110 of the
Pension Rules and the commutation of Pension Rules. However, the
impugned resolution dated 05-05-2009 apparently was merely a half
hearted attempt to reduce the pension without effecting any
modification in the rules. One need not emphasize the fact that since
the pension rules are framed under Article 309 of the Constitution of
16 WP / 5042 / 2016+
India, the impugned government resolution dated 05-05-2009
purportedly passed under Article 162 of the Constitution of India could
not have superseded rule 110(2). This precisely seems to have
happened in the matter in hand. If the state government was intending
to peg down the pension @ 40% of basic of the revised pay, it should
have modified the rules framed under Article 309. Instead, it
proceeded to implement the government resolution, which action would
not be sustainable in law.
17. In substance what transpires is that the Pension Rules and
particularly rule 110 has been consistently maintaining that the pension
is to be fixed @ 50% of the basic pay and at no point it read 40% of
basic of the revised pay. The impugned government resolution dated
05-05-2009 requires this to happen. The government resolution
cannot, therefore, be not only violative of Article 14 since it
discriminates between employees who retired between 01-01-1996
and 01-01-2006 as against ones who retired prior to 01-01-1996 and
who would retire after 01.01.2006, it would also be illegal being
contrary to rule 110(2).
18. The decisions cited by the learned AGP Mr. Yawalkar are
not applicable to the fact situation of the matter in hand. Those were
the cases providing for cut off dates for extending the various
17 WP / 5042 / 2016+
pensionary benefits and not pertaining to the calculation of the pension.
Even the decision in the matter of Arjun Krishna Golatkar (supra).
would not be strictly applicable to the fact situation of the matter in
hand. It was also a matter of making beneficial provision applicable to
one set of employees who would retire after 01-01-2006 as against the
employees who stood retired prior thereto.
19. The petitioners are seeking a declaration to the effect that
the Hakim committee recommendations are not applicable to its
members. In this respect, suffice for the purpose to observe that as
indicated herein-above while deciding writ petition no. 4292 of 2013,
this Court had already taken a view finding substance in the similar
stand to the effect that the Hakim committee recommendations were
not applicable to the category of teaching staff and further directed the
State government to consider the petitioner's grievance independently.
Since this issue has already been dealt with and has reached finality, a
prayer for seeking such a declaration again would be redundant.
20. There is one more aspect to be emphasized. Admittedly,
pursuant to sixth central pay commission recommendations, the
Government of India under Ministry of Human Resources Development
(MHRD) issued a communication addressed to the University Grants
Commission (UGC) dated 31-12-2008 elaborately laying down the
18 WP / 5042 / 2016+
specific heads as also the modalities to be followed for implementation
of revision of pay of teachers and equivalent cadres in universities and
colleges. Pursuant to this communication, the UGC also notified all
the State governments vide its communication dated 30-06-2010
regarding the directions received from the MHRD, Government of
India.
21. Pursuant to such directives, the State of Maharashtra by
the impugned Government decision dated 15-02-2011 sought to
implement some of the recommendations as indicated therein.
Pertinently, the MHRD communication to the UGC contained a specific
clause 8(p) regarding applicability of the scheme. Sub clause (v) of this
paragraph 8(p) expressly provide that the scheme as was being
proposed could be extended to the universities, colleges and other
higher educational institutions coming under the purview of the State
legislature, provided the State governments wish to adopt and
implement the scheme, however, subject to certain conditions. This
condition stipulated in clause (a) to (g) that 80% of the financial burden
would be shouldered by the State government. Conspicuously, it was
also stipulated that State governments could modify the scales but on
higher scales. More importantly, sub-clause (g) of clause (v) of clause
8(p) expressly require the State governments if at all they were so
intending, to implement the scheme comprehensively. Similar was the
19 WP / 5042 / 2016+
stipulation in the communication made by the UGC to the State
governments dated 30-06-2010 directing the State governments if at all
they intended, to implement the scheme as a whole.
22. It appears that in spite of such a state-of-affair, by the
impugned Government decision dated 15-02-2011, the State of
Maharashtra sought to implement these directives by carving its own
exception particularly in respect of the pensioners like the present
petitioners. Therefore, though not strictly, inasmuch as the State of
Maharashtra has its own pension rules and, therefore, the stipulation in
the MHRD communications as far as pension is concerned may not be
strictly applicable, still, it mandated in clause 8(g) that the
recommendations of the sixth pay central pay commissions in respect
of pension of the Central government employees including the eligibility
of full pension i.e. 50% of the average pay or the last pay drawn, shall
be adopted to all the teachers who were already on pension in the
central universities, colleges etc. As we have indicated herein-above,
in-fact, rule 110 of the Pension Rules never provided for calculation of
pension @ 40% of the last pay drawn. Therefore, the stand of the
State government in spite of acceptance of the scheme sponsored by
the Central government to make some exception as regards the
teachers like the petitioners would be contrary to the stipulation in the
20 WP / 5042 / 2016+
scheme and the directions of the UGC, as has been the stand of the
UGC in the affidavit in reply.
23. However, since, the Government decision dated
15-02-2011 does not specifically touch the aspect of pension, even
though by way of amendment of the writ petition, a reference is made
to clause 6.8 of the UGC communication dated 30-06-2010 and when
that schedule annexed to the communication does not expressly deal
with the aspect of pension, we see no reason to struck down the
government resolution dated 15-02-2011.
24. The upshot of the above discussion, the Hakim committee
recommendations would not be applicable to the teachers like the
members of the petitioners who are governed by the UGC regulations.
In the absence of any modification in rule 110 of the Pension Rules, the
rules having been framed under Article 309 of the Constitution could
not be superseded by administrative instructions issued under Article
162 of the Constitution in the form of Government Resolutions dated
05-05-2009 and 12-08-2009, which are liable to struck down.
Consequently, the members of the petitioner and similarly situated
persons who stood superannuated between 01-01-1996 and
31-12-2005 would be entitled to fixation of pension on the basis of the
revised pay scale to be determined in accordance with the
recommendations of the sixth pay commission. However, the
21 WP / 5042 / 2016+
government resolution dated 15-02-2011 which does not have any
bearing on the rights being claimed in these petitions, cannot be struck
down.
25. The writ petitions are partly allowed and the rule is made
absolute in the above terms. The respondent shall take appropriate
steps in the light of the above observations and conclusions and shall
revise the pension of the members of the petitioners and all similarly
situate persons as early as possible and in any case within four (4)
months and shall pay the arrears within four (4) months thereafter.
[ NEERAJ P. DHOTE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
