Madhya Pradesh High Court

S.S. Choudhary vs The State Of Madhya Pradesh on 19 January, 2022

Author: Vishal Dhagat

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



WRIT PETITION NO.                              12959 /2014
Parties Name                 S.S. CHOUDHARY AND OTHERS
                                   VS.
                             THE STATE OF MADHYA PRADESH AND OTHERS
Bench Constituted            Single Bench
Judgment delivered By        HON'BLE SHRI JUSTICE VISHAL DHAGAT, J.

Whether       approved   for Yes/No
reporting

Name of counsel for parties For petitioners :Shri Paresh Pareek, Advocate.

For respondents No.2 and 3: Shri Anoop Nair, Advocate.

Law laid down                -
Significant       paragraph -
number


                                     (ORDER)
                                    19/01/2022

Petitioners have filed this writ petition to issue writ of certiorari

for quashing order dated 30.06.2014 (Annexure-P/1) and to command

respondents to release arrears of pension payable to petitioners between

01.10.2003 to 01.04.2006. Petitioners are demanding that they may be

treated similarly to pensioners who retired after 31.12.2000.

2. Counsel appearing for the petitioners submitted that petitioners

had filed a representation before the authority pursuant to direction

issued by this Court in W.P. No. 3820/2008. Writ petition filed by one

Arun D. Ayachit was disposed off giving direction that representation

filed by petitioners or their association shall be considered by

Committee constituted by respondent Board. Said Committee after

giving opportunity of hearing to the parties, pass appropriate order

within a period of six months from the date of filing of said

representation. Representations filed by various pensioners and

association were considered by impugned order dated 30.06.2014 and

were rejected. It was submitted that Committee did not consider the

judgment of Apex Court while deciding the representation and claim of

petitioners were rejected arbitrarily.

3. Respondents had filed their reply and stated therein that

petitioners have been benefited as they have been given pay revision

from 01.04.2006. Since the revision was due from 01.01.2001,

therefore, those employees who were in service on that day have been

taken at par with serving employee and they from an entirely separate

class than the petitioners and similarly situated employees. The date

from which the benefit is extended to petitioners is 01.04.2006 cannot

be termed as arbitrary. In view of same, counsel appearing for the

respondents No. 2 and 3 makes a prayer for dismissal of writ petition.

4. Heard the counsel for the parties.

5. Committee was constituted by respondents Board to grant benefit

of Wage Revision w.e.f. 01.10.2003 in place of 01.04.2006 and also for

removal of disparity in dearness allowance of working employees and

dearness relief of retired employees 2000 onwards was taken into

consideration. Dearness relief payable to retired employees has been

made similar to dearness allowance payable to working employees.

Therefore, one of the grievance stood addressed by the Committee.

Considering second grievance, Committee held that working

employees and retired employees constitute two different class with

regard to emoluments and perquisites amongst other things. There is no

parity between working employees and pensioners, therefore, there is

no question of discrimination. Issue relating to serving employees do

not apply to pensioners in same ratio. Demand of parity has no merit.

Orders with regard to revision of wages and pensions are always issued

separately and parameters applied thereon are not necessarily be same.

Pensioners cannot claim parity with working employees. There has

always been a cut off date for giving benefit of wage revision to

existing employees and to pensioners. Benefit of wage revision to

existing employees and consequential benefit to pensioners are

different issues and therefore, are to be treated separately and not

necessarily on the principle of parity. Fixing the date of payment of

arrears to employees is w.e.f. 01.04.2006 is a policy decision. Said

decision of Board is not arbitrary. The difference between pensioners

who retired before and after Wage Revision is always bound to arise.

Pay Revision w.e.f. 01.01.2001 was notional and even for working

employees up till 30.09.2003. Board has taken a decision on

07.04.2006 that fixation of benefit so given due to Wage Revision of

01.01.2001 shall be notional upto 31.03.2006 for purpose of revision of

pension and family pension to employees and officers drawing pension

from M.P.S.E.B as on 31.12.2000. In M.P. No. 1878/1989, vide order

dated 17.12.2002, classification was upheld in respect of pension and

pensionary benefits to the retirees prior to 01.04.1989 and after

01.04.1989 and same has been given stamp of approval by Division

Bench. In said order, it was held in M.P. No. 1878/1989 clarification

was sought regarding pensioners of earswhile MPEB/MPSEB, who

retired before 01.06.2005 and same principle will also be applicable in

this case. In view of aforesaid, representation of petitioners was

rejected.

6. Similar matter was considered by this Court in WP

No.3643/2011. Said case was disposed of vide order dated 17.11.2011.

Learned Single Judge gave direction to respondent board to pass fresh

resolution based upon the report of committee constituted by the Board

by virtue of order passed by this Court on 24.11.2008. Report of

committee shall not be turned down on account of financial constrains

and appropriate resolution shall be passed based upon the

recommendations of the committee which was constituted by Board in

the matter. Board also filed review petition No.53/2012 before this

Court which was also dismissed vide order dated 20.04.2012.

Petitioner in this case made a prayer for quashing of order dated

30.06.2014.

7. Apex Court in case of D.S. Nakara Vs. Union of India reported

in AIR 1983 SC 130 has held that where all relevant considerations are

same, person holding identical post may not be treated differently in

the matter of their pay merely because they belong to different

department. If that cannot be done when they are in service, can that be

done during their retirement? Expanding this principle one can

confidently say that if pensioners form a class their computation cannot

be by different formula affording unequal treatment solely on the

ground that some retired earlier and some retired later.

8. Counsel appearing for respondents had relied on judgment

passed by Apex Court in case of State of West Bengal and Another

Vs. West Bengal Govt. Pensioners' Associations and Others reported

in (2002) 2 SCC 179. Relying on said judgment, it was argued that in

that case Pay Commission has given a reason for choosing dated

01.01.1986 as the cut off date. Merely because a cut off date is fixed

would not make the exercise invalid although persons in service

immediately before the cut off date would be deprived of the benefit of

revised scales of pay. Reasons stated by Third Pay Commission cannot

be stated to be arbitrary and irrelevant. Difference between pre-1986

pensioners and post-1986 pensioners is only on account of revision of

pay scales and not on account of failure of the State Government to

equitably apply the liberalised Pension Scheme formula. Counsel for

respondents also argued that this Court in M.P. No.1878/1989 vide

order dated 17.12.2002 upheld the cut off date in respect of retirees

prior to 01.04.1989 and after 10.04.1989. In view of said submissions,

counsel appearing for respondents made a prayer for dismissal of writ

petition.

9. Heard the counsel for the parties.

10. Apex Court in case of State of West Bengal and Another (supra)

cited the judgment of Apex Court and in para 24 has laid down as

under:-

"24. Again in K.L. Rathee v. Union of India the case of the petitioner was that following Nakara case he had to be given the same amount of pension as other employees of his rank irrespective of the date of retirement. The Court noted that Nakara did not strike down the definition of "emoluments" and held that: (SCC pp. 10 & 11, paras 8 & 10)

"Nakara case does not lay down that the same amount of pension must be paid to all persons retiring from government service irrespective of the date of retirement..... Even if pension is calculated on the basis of the same formula the basis of calculation has to be the average of the last ten months' emoluments. This principle of adopting last ten months' emoluments as the basis for calculation of pension must be uniformly applied to all persons drawing pension from the Central Government. This was all that was laid down in Nakara case. It, however, did not lay down that the quantum of emoluments drawn during the last ten months of service of each government employee must be taken to be the same for this purpose. .... The emoluments have to be calculated according to the government rules in force at the time of retirement of the employees."

(emphasis supplied)

11. In view of aforesaid, it is clear that Expert Committee constituted

to hear the objections of association in respect of revision of wages and

pension has held that working employees and retired employees

constitute two different classes with regard to emoluments perquisites

amongst others things. Issue relating serving employees do not apply to

pensioners in same ratio. Demand of parity has no merit. There is

always a cut off date for giving benefit of wage revisions to existing

employees and to pensioners. Benefit of wage revision to existing

employees and consequential benefit to pensioners are two different

issue and therefore are to be treated separately and same is not

necessarily to be dealt with on parity. The action of the Board is not

arbitrary. There is difference between pensioners who retired before

and after the wage revision and therefore difference is bound to arise.