Madras High Court
K.Gandhi vs The Principal Secretary To ... on 11 August, 2022
W.P.No.26613 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.26613 of 2015
and
M.P.No.1 of 2015
1.K.Gandhi
2.A.Ramasamy
3.S.Muthukrishnan
4.D.Thangaraj
5.M.Ganesan
6.M.Manthayan
7.R.Ganapathy
8.R.Ramanathan
9.Sri.L.James ... Petitioners
Vs.
The Principal Secretary to Government
of Tamil Nadu
Finance (Pay-Cell) Department
Fort St.George
Chennai 600 009. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to the G.O.Ms.No.235 Finance (Pay Cell) Department, dated
01.06.2009 and quash para 2(ii) (d) thereof in so far as it grant only 40%
fitment weightage to retirees before 01.01.2006 and quash the same
consequently direct the respondent to fix the pension of the Pre 01.01.2006
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retirees on par with post 01.01.2006 retirees by allowing them revised
pension at 50% of Grade Pay in the light of the OM No.38/37/08-P & PW
(A) dated 28.01.2013 and to revise the pension to the petitioners and pay
the same along with arrears from 01.01.2006.
For Petitioners : Mr.A.R.Nixon
For Respondent : Mrs.S.Anitha
Special Government Pleader
ORDER
The relief sought for in the present writ petition is to quash the
G.O.Ms.No.235 Finance (Pay Cell) Department, dated 01.06.2009 and
quash para 2(ii) (d) thereof in so far as it grant only 40% fitment weightage
to retirees before 01.01.2006 and quash the same consequently direct the
respondent to fix the pension of the Pre 01.01.2006 retirees on par with post
01.01.2006 retirees by allowing them revised pension at 50% of Grade Pay
in the light of the OM No.38/37/08-P & PW (A) dated 28.01.2013 and to
revise the pension to the petitioners and pay the same along with arrears
from 01.01.2006.
2. The learned counsel appearing for the writ petitioners rested his
arguments mainly on the ground that the pensioners retired prior to
01.01.2006 are discriminated and they have been granted 40% of the Basic
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Pay. Contrarily, the pensioners retired after 01.01.2006 are granted 50% of
the Basic Pension. Thus, a discrimination is created amongst the group of
pensioners and the artificial distinction created between these two clases of
pensioners are impermissible in law.
3. The next point raised on the side of the petitioners' is that the State
is all along following the pay scheme followed by the Central Government
and now that the Central Government has revised the pension in respect of
pre-retiries upto 01.01.2006 and therefore, the State pensioners, who retired
prior to 01.01.2006 are also should get their respective pension revised on
par with the Central Government pensioners.
4. Thirdly, the cut-off date of 01.01.2006 fixed by the State for the
purpose of creating distinction between pre-retiries and post retiries of
01.01.2006, is arbitrary and such a division of single class of pensioners is
not in accordance with law.
5. Mainly resting on these grounds, the learned counsel appearing for
the writ petitioners has stated that the issue of creating such a distinction
between the pre-retiries of 01.01.2006 and the post retiries, the Central
Government employees filed an Original Application before the Central
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Administrative Tribunal in O.A.No.655 of 2017 and the same was allowed
by the Tribunal. An appeal taken upto the Hon'ble Supreme Court was
confirmed and consequently, the Government of India issued a revised order
implementing the order of the Hon'ble Supreme Court by granting the
benefits to the pre 01.01.2006 retires granted to the post 01.01.2006 retires.
6. The Government of India in proceedings dated 13.02.2013 states
that the pension/family pension of 2006, pensioners were stepped upto 50%
of the sum of minimum of pay in the pay band and the Grade Pay
corresponding to the pre-revised pay scale from which the pensioners had
retired, as arrived at with reference to the fitment tables annexed to the
Ministry of Finance, Department of Expenditure in O.M.No.1/1/2008-IC
dated 30th August, 2008 with effect from 24.09.2012 vide this Department
Official Memorandum dated 28.01.2013.
7. Resting reliance on the Government of India Memorandum, the
learned counsel for the petitioners contended that since the issue was
decided by the Hon'ble Supreme Court of India and the Government of
India accepted the same and the State Government ought to have followed
the same in respect of State pensioners also.
8. In view of the fact that the Central Pay Commission
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recommendation adopted by the State Government as it is, the differential
pension adopted by the Central Government also to be followed by the
State Government. This apart, all the pensioners are treated as a single
class and creating a class between the State pensioners itself is arbitrary and
the State Government has no power to create such a class and the same is in
violation of Articles 14 and 16 of the Constitution. Thus, the core
contention raised by the learned counsel appearing on behalf of the writ
petitioners, are that the cut-off date of 01.01.2006, fixed by the State is
erroneous, the State has to treat all the pensioners as a group i.e. one class
and the benefit extended to the Central Government to be extended to the
State Government also.
9. The learned Special Government Pleader appearing on behalf of
the State strenuously opposed the contentions raised on behalf of the writ
petitioners by stating that the State has not discriminated the pensioners and
the State has not created a class within a class.
10. Further, fixing the cut-off date is an executive prerogative of the
State Government and such a cut-off date fixed for the purpose of granting
monitory benefits on pensioners benefits cannot be questioned by the
pensioners. For instance, pre-retiries of 01.01.2006 is a class and post
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retiries of 01.01.2006 is another class. Thus, the State has not created a
class within a class and one group of pre-retiries of 01.01.2006, cannot be
compared with the post- retiries of 01.01.2006.
11. In view of the fact that the implementation of the Seventh Pay
Commission was under taken with effect from 01.01.2006, there is a
relevance in fixing the cut-off date and such a relevancy in relating to the
financial burden and other aspects of the State Government. In this view of
the matter, the cut-off date fixed is very much relevant for the purpose of
granting pensionery benefits and more so, for adopting the
recommendations of the Pay Commission in this regard.
12. The learned Special Government Pleader further contended that
there are catena of Judgments stating that a class amongst the group of
people can be created for the purpose of granting some benefits, but, a
class within a class alone is prohibited and to be treated as in violation of
Articles 14 and 16 of the Constitution of India. Thus, the pre-retiries of
01.01.2006 and post-retiries of 01.01.2006, belongs to different class of
pensioners, which cannot be treated as the State created the class within a
class. Further, it is contended that the competency of the State to fix cut-off
date cannot be questioned by the petitioners and the differences in pension
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also cannot be compared in view of fact that it is not necessary that an equal
pension to be given in all cadres at all times, in view of the fact that the
pensions are sanctioned for the State pensioners based on their respective
qualifying service rendered on the basis of the Last Pay Drawn by them.
Therefore, the pension vary from one pensioner to another pensioner and
the differences in pension cannot be questioned by other pensioners. This
apart, the Rule of stepping up of pay on par with the juniors for in-service
candidates are not available to the pensioners, since the pensions are fixed
based on the Pension Rules on the basis of the Last Pay Drawn by the
respective employees, considering the total length of service rendered by
them in the respective cadres.
13. Thirdly, the learned Special Government Pleader contended that
whenever the Pay Commission is implemented, such a cut-off date is
prescribed and for instance the State has now implemented the Eighth Pay
Commission. Right from the First Pay Commission, the cut-off is fixed for
the implementation of the Pay Commission recommendations for the
purpose of revision of pay, both to the serving employees as well as to the
retired employees. Thus, cut-off date cannot be construed as unknown to
Service Law and such a cut-off date is necessary under various
circumstances. The only point to be considered is, as to whether such a cut-
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off date fixed by the State have any relevance with regard to the object
sought to be achieved in this regard.
14. The learned Special Government Pleader contended that the cut-
off date of 01.01.2006 is very much relevant, since both the Central Pay
Commission as well as the State Pay Commission were implemented with
effect from 01.01.2006. Such being the factum of the case, the writ
petitioners cannot be allowed to get the revision of pension and substantial
pension are already granted to these writ petitioners. This apart relying on
various judgments, the learned Special Government Pleader informed this
Court that paragraph 18 of the counter filed in W.P.Nos.17026 to 17035 of
2015, which states that the expenditure on pension has increased manifold
and in 2006-2007, the number of pensioners was 5,60,168 and the
expenditure was Rs.5,442 crores. In 2015-2016 the number of pensioners
increased to 7,14,041 and pension expenditure is estimated at Rs.20,074.
The pension and retirement benefits expenditure was at 5.9% of total
revenue expenditure in 1990-91 and 14.7% in 2011-12 and it is estimated
that it may reach 0.5% during 2030-31. Due to various legal interventions,
a number of Government Orders have been issued with huge impact on
State Finance by increased expenditure on pension and other retirement
benefits, which is unsustainable in the long run and further, retrospective
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upward revision of the pensionary entitlements and benefits create issues of
inter-generational equity. The further revision of pension and other
retirement benefits without considering financial constraint of the State will
lead to more financial stress and the State cannot implement development
and infrastructure schemes.
15. Emphasising the Statements made in this affidavit by the State
Government, the learned Special Government Pleader contended that in the
event of granting enhanced pension to these pensioners, the State will have
to suffer financial loss. Further, it is contended that the benefits granted to
the Central Government Pensioners by the Government of India regarding
revision of pension could not be made applicable to the State Government
Pensioners due to the financial constraints of the State. The Government
have the right to make Policy decisions in respect of the quantum of pension
to be granted to the pensioners, retired during different periods of time. The
Government fixed various cut-off dates keeping in view the economic
conditions, financial constraints and many other administrative and other
attending circumstances. The fixing of cut-off date is within the domain of
the executive authority. It is well settled that when two sets of employees
of the same rank retired at different point of time, one set cannot claim the
benefit extended to the other set, on the ground that they are similarly
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situated. Though they retired with the same rank, they are not of the same
class or group. The method of calculation of revised pension from
01.01.2006 was determined, as was done in the earlier revision. Thus, the
contention of the writ petitioners that there is an anomaly in the grant of
revised pension between those retired prior to 01.01.2006 and those retired
after 01.01.2006, cannot be accepted.
16. Due to the constant increase in the expenditure on pension,
Contributory Pension Scheme has been implemented with effect from
01.04.2003. Moreover, all the concessions granted to the Central
Government employees/pensioners are not extended to the State
Government employees/pensioners. The resources of the State Government
cannot be compared with that of the Central Government, but the sources of
tax revenue to the State is very much limited like Sales Tax, State Excise,
while the Central Government has more buoyant taxes like Corporation
Tax, Income Tax, Customs and Central Excise, Service Taxes etc. The
fiscal stress associated with the State Level is more severe when compared
with that of the Central level, due to broad tax base and the flexibility in
levying the taxes. Due to the financial constraints, the State Government
could not extend the benefits to its employees/pensioners to the level
available to the Central Government employees/pensioners.
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17. The learned Special Government Pleader reiterated that in the
event of allowing this writ petition, the Government would tend to incur a
huge amount, as it will lead to severe financial constraints and the State
would not be able to implement the development and other infrastructural
schemes. The State Government has also constituted an Official
Committee to recommend revision of pay and pension based on the
recommendations of the Seventh Central Pay Commission. Thus, the
retrospective relief sought for will certainly cause a great financial concern
to the State Exchequer. Accordingly, the learned Special Government
Pleader prayed for dismissal of the Writ Petitions.
18. In support of the arguments advanced, the learned Special
Government Pleader cited the Judgments of the Hon'ble Supreme Court
rendered in;
(i) UNION OF INDIA v. P.N.MENON AND OTHERS
[(1994) 4 SCC 68]. The relevant portions, viz paragraph Nos. 10
& 20 of the said Judgment reads as follows:
#10.The concept of 'dearness pay' was evolved in respect of
employees in different pay ranges with different percentages of the
dearness pay. Thereafter the pension and gratuity were worked out
and an option was given to persons, who retired on or after 30-9-
1977 but not later than 30-4-1979, to choose either of the two
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alternatives (i) to have their pension and death cum-retirement
gratuity calculated on their pay excluding the element of dearness
pay as indicated in paragraph 2 of the said office memorandum; or
(ii) to have their pension and death-cum-retirement gratuity
recalculated after taking into account the element of dearness pay.
If the stand of the respondents is to be accepted that this scheme
should have been made available, without there being a cut-off
date, to all including those who have retired even 20 to 25 years
before the introduction of the scheme, then, according to us, the
whole scheme shall be unworkable, because it is linked with the
payment of dearness allowance, which is based on the level of
price index. Different institutions/departments have introduced the
system of payment of dearness allowance at different stages to
mitigate the hardship of their employees with the rise in the prices
of the essential articles as a result of the inflation. #
#20. The scheme to merge a part of the dearness allowance
for purpose of fixing the dearness pay, was evolved, and was linked
with the average of cost of living index fixed at 272, which fell on
30-4-1977. In this background, it cannot be said that the date, 30-
9-1977, was picked out in an arbitrary or irrational manner,
without proper application of mind. The option given to employees,
who retired on or after 30-9-1977 but not later than 30-4-1979, to
exercise an option to get their pension and death-cum-retirement
gratuity calculated by excluding the element of dearness pay as
indicated in the aforesaid office memorandum or to get it included
in their pension and death-cum-retirement gratuity, was not an
exercise to create a class within class. The decision having a nexus
with the price index level at 272, which it reached on 30-9-1977,
was just and valid. It has been rightly pointed out that respondents
had never been in receipt of dearness pay and as such the office
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memorandum in question could not have been applied to them.
Similarly, the encashment of leave was a new scheme introduced
which could not have been extended retrospectively to respondents,
who had retired before the introduction of the said scheme. Same
can be said even in respect of family pension scheme which was
earlier contributory, but with effect from 22-9- 1977 the scheme
was made non-contributory. The respondents not being in service
on the said date, were not eligible for the said benefit and no
question of refunding the amount, which had already been
contributed by them, did arise. According to us, the High Court
was in error in applying the principle of D.S. Nakaral in the facts
and circumstances of the present case. #
(ii) In STATE BANK OF INDIA v. L.KANNAIAH AND
ORS [(2003) 10 SCC 499, the Hon'ble Supreme Court has
observed as follows:
#6. Para 5 of the circular stipulated that the age limit (viz.
not being over 35 years) for admission to pension fund shall
continue. Thus the pensioned ex-service personnel were admitted
to pensionary benefits with effect from 1.1.1965 subject to the
restriction of the age limit of 35 years (which was later on
enhanced to 38 years) on that date. As the date of confirmation of
the respondents was much earlier to 1.1.1965, the crucial date for
admission to the pension fund would be 1.1.1965. On that date, the
confirmed employee of the Bank should not have exceeded 35 years
of age. That is the combined effect of the staff circular No. 18
dated 8.4.1974 read with the Pension Fund Rules referred to
supra. The reason for prescribing the maximum age limit of 35 or
38, as the case may be, for the purpose of induction into pension
fund appears to be that the employee would be able to render
minimum service of 20 years as contemplated by Rule 22 of the
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Pension Fund Rules. However, there does not appear to be any
rationale or discernible basis for fixing the cutoff date as 1.1.1965,
notwithstanding their earlier confirmation in Bank service. True, a
new benefit has been conferred on the ex-servicemen and therefore
a cutoff date could be fixed for extending this new benefit, without
offending the ratio of the decision in D.S. Nakara and others Vs.
Union of India [AIR 1983 SC 130]; but, there could be no
arbitrariness or irrationality in fixing such date. Minimum
qualifying service being the essential consideration, even
according to the Bank, there is no reason why the ex-servicemen
like the respondents, who from the date of their confirmation had
put in more than twenty years of service, even taking the retirement
age as 58, should be excluded. No reason is forthcoming in the
counter-affidavit filed by the Bank for choosing the said date.
When it is decided to extend the pensionary benefits to ex-
servicemen drawing pension, the denial of the benefit to some of
the serving employees should be based on rational and intelligible
criterion. In substance, that is the view taken by the High Court
and we see no reason to differ with that view. #
(iii) In GOVERNMENT OF ANDHRA PRADESH v.
N.SUBBARAYUDU AND OTHERS [(2008) 14 SCC 702], the
Hon'ble Supreme Court relying on the Judgment of the
Constitution Bench in D.S.NAKARA v. UNION OF INDIA
[(1983) 1 SCC 305, held as follows:
#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
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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 & Ors. Vs. Amar Nath Goyal
& Ors., (2005) 6 SCC 754).
6.No doubt in D.S. Nakara & Ors. vs. Union of India
1983(1) SCC 305 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 (supra), as observed in para 29 of the
decision of this Court in State of Punjab & Ors. vs. Amar Nath
Goyal & Ors. (supra).
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 vs. Ramjee
Prasad 1990(3) SCC 368, Union of Indian & Anr. vs. Sudhir
Kumar Jaiswal 1994(4) SCC 212 (vide para 5), Ramrao & Ors.
vs. All India Backward Class Bank Employees Welfare
Association & Ors. 2004 (2) SCC 76 (vide para 31), University
Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10)
SCC 536, etc. It follows, therefore, that even if no reason has been
given in the counter affidavit of the Government or the executive
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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.
9.As has been held by this Court in Divisional Manager,
Aravali Golf Club & Anr. vs. Chander Hass & Anr. 2008(3) 3 JT
221 and in Government of Andhra Pradesh & Ors. vs. Smt. P.
Laxmi Devi 2008(2) 8 JT 639 the Court must maintain judicial
restraint in matters relating to the legislative or executive
domain.#
(iv) In COUNCIL OF SCIENTIFIC AND INDUSTRIAL
RESEARCH AND ORS v. RAMESH CHANDRA AGRAWAL
AND ANOTHER [(2009) 3 SCC 35], the Hon'ble Supreme Court
has observed as follows:
#29. A `State' is entitled to fix a cut off date. Such a decision
can be struck down only when it is arbitrary. Its invalidation may
also depend upon the question as to whether it has a rational nexus
with the object sought to be achieved. 2.5.1997 was the date fixed
as the cut off date in terms of the scheme. The reason assigned
therefor was that this was the date when this Court directed the
appellants to consider framing of a regularization scheme. They
could have picked up any other date. They could have even picked
up the date of the judgment passed by the Central Administrative
Tribunal. As rightly contended by Mr. Patwalia, by choosing
2.5.1997 as the cut off date, no illegality was committed. Ex facie,
it cannot be said to be arbitrary.
30.The High Court, however, proceeded on the basis that
the cut off date should have been the date of issuance of the
notification. The employer in this behalf has a choice. Its
discretion can be held to be arbitrary but then the High Court only
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with a view to show sympathy to some of the candidates could not
have fixed another date, only because according to it, another date
was more suitable. In law it was not necessary. The court's power
of judicial review in this behalf although exists but is limited in the
sense that the impugned action can be struck down only when it is
found to be arbitrary. It is possible that by reason of such a cut off
date an employee misses his chance very narrowly. Such hazards
would be there in all the services. Only because it causes hardship
to a few persons or a section of the employees may not by itself be
a good ground for directing fixation of another cut off date.
31.The scheme was a one-time measure. The number of
posts was not confined to the posts which have been sanctioned.
The validity of the scheme has been challenged as unrealistic,
illusive, arbitrary or unworkable. We may at this juncture notice
that whereas the Tribunal directed framing of a scheme, this Court
directed the appellants to consider the same.
32.Cut off date has been fixed for those who are eligible as
per the criteria laid down by the scheme. The service rules were
framed in terms of the bye-laws of the society. It would bear
repetition to state that the appellant No. 1 is not a statutory
authority. It is a research oriented organization. It knows its needs.
The research fellows and research associates because of their
involvement in the research work are to get priority in their
appointments. Particular projects whether funded by the Ministry
concerned or others would depend upon the nature thereof. It, by a
judicial fiat, could not have been made a continuous scheme.#
(v) In STATE OF A.P. & ANR v. A.P. PENSIONERS
ASSOCIATION & ORS [ (2005) 13 SCC 161], the Hon'ble
Supreme Court has observed as follows:
"28 It is trite that, the final recommendations of the Pay
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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 characterised as irrational, nor as
arbitrary so as to infringe Article 14 of the Constitution."
Mr. Lalit placed strong reliance on D.S. Nakara and Others Vs.
Union of India [(1983) 1 SCC 305] for the proposition that the
financial implication for implementation of the recommendations
of PRC has not much relevance. Therein, the Constitution Bench
came to the conclusion that the increased liability upon the said
judgment is not too high to be unbearable or such as would have
detracted the Government from covering the old pensioners under
the scheme.
The decisions of this Court which have been noticed in Amar Nath
Goyal (supra) categorically point out that financial implication is
one of the relevant considerations for the State to deny certain
benefits to a class of employees who retire on or before a
particular date.#
(vi) In TRANSPORT AND DOCK WORKERS UNION
AND ORS v MUMBAI PORT TRUST AND ANOTHER [(2011)
2 SCC 575, the Hon'ble Supreme Court observed as follows:
# 38.As regards cut-off dates, this Court in Government of
Andhra Pradesh and Ors. vs. N. Subbarayudu and Ors. 2008(14)
SCC 702 has observed vide paragraphs 5 to 9 :
"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 ad-
ministrative and other attending circumstances. This Court is also
of the view that fixing cut-off dates is within the domain of the
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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 vs. Amar Nath Goyal 2005(6)
SCC 754)
6. No doubt in D.S. Nakara vs. Union of India 1983(1) SCC 305
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 case
as observed in para 29 of the decision of this Court in State of
Punjab vs. 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 consid- erations can be financial, administrative
or other considerations. The court must exercise judicial re- straint
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 vs. Ramjee
Prasad1990(3) SCC 368, Union of India vs. Sudhir Kumar Jaiswal
1994(4) SCC 212 (vide SCC 5), Ramrao vs. All In- dia Backward
Class Bank Employees Welfare Assn. 2004(2) SCC 76 (vide para
31), University Grants Commission vs. Sadhana Chaudhary
1996(10) SCC 536, etc. It follows, therefore, that even if no reason
has been given in the counter-affi- davit of the Government or the
executive authority as to why a particular cut-off date has been
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chosen, the court must still not declare that date to be arbi- trary
and violative of Article 14 unless the said cut- off date leads to
some blatantly capricious or outra- geous result.
9. As has been held by this Court in Ar- avali Golf Club vs.
Chander Hass 2008(1) SCC 683 and in Govt. of A.P. vs. P. Laxmi
Devi 2008(4) SCC 720 the court must maintain judicial restraint in
matters relating to the legislative or executive do- main."
39.In our opinion, there is often a misunderstanding about
Article 14 of the Constitution, and often lawyers and Judges tend to
construe it in a doctrinaire and absolute sense, which may be
totally impractical and make the working of the executive
authorities extremely difficult if not impossible.
40. As Lord Denning observed :
"This power to overturn executive decision must be exercised very
carefully, because you have got to remember that the executive and
the local authorities have their very own responsibilities and they
have the right to make decisions. The Courts should be very wary
about interfering and only interfere in extreme cases, that is, cases
where the Court is sure they have gone wrong in law or they have
been utterly unreasonable. Otherwise you would get a conflict
between the courts and the government and the authorities, which
would be most undesirable. The courts must act very warily in this
matter." (See `Judging the World' by Garry Sturgess Philip
Chubb).
41. In our opinion Judges must maintain judicial self
restraint while exercising the powers of judicial review of
administrative or legislative decisions. "In view of the complexities
of modern society", wrote Justice Frankfurter, while Professor of
Law at Harvard University, "and the restricted scope of any man's
experience, tolerance and humility in passing judgment on the
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worth of the experience and beliefs of others become crucial
faculties in the disposition of cases. The successful exercise of such
judicial power calls for rare intellectual disinterestedness and
penetration, lest limitation in personal experience and imagination
operate as limitations of the Constitution. These insights Mr.
Justice Holmes applied in hundreds of cases and expressed in
memorable language : It is misfortune if a judge reads his
conscious or unconscious sympathy with one side or the other
prematurely into the law, and forgets that what seem to him to be
first principles are believed by half his fellow men to be wrong."
42. In writing a biographical essay on the celebrated Justice
Holmes of the U.S. Supreme Court in the dictionary of American
Biography, Justice Frankfurter wrote :
"It was not for him (Holmes) to prescribe for society or to deny it
the right of experimentation within very wide limits. That was to be
left for contest by the political forces in the state. The duty of the
Court was to keep the ring free. He reached the democratic result
by the philosophic route of skepticism-by his disbelief in ultimate
answers to social questions. Thereby he exhibited the judicial
function at its purest." (see `Essays on Legal History in Honour of
Felix Frankfurter' edited by Morris D. Forkosch.)
43. In our opinion adjudication must be done within the system of
historically validated restraints and conscious minimization of the
Judges' preferences. The Court must not embarrass the
administrative authorities and must realize that administrative
authorities have expertise in the field of administration while the
Court does not. In the words of Chief Justice Neely, former Chief
Justice of the West Virginia Supreme Court of Appeals :
"I have very few illusions about my own limitations as a Judge. I
am not an accountant, electrical engineer, financer, banker,
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W.P.No.26613 of 2015
stockbroker or system management analyst. It is the height of folly
to expect Judges intelligently to review a 5000 page record
addressing the intricacies of a public utility operation. It is not the
function of a Judge to act as a super board, or with the zeal of a
pedantic school master substituting its judgment for that of the
administrator."
44. In administrative matters the Court should, therefore,
ordinarily defer to the judgment of the administrators unless the
decision is clearly violative of some statute or is shockingly
arbitrary. In this connection, Justice Frankfurter while Professor
of Law at Harvard University wrote in `The Public and its
Government' -
"With the great men of the Supreme Court constitutional
adjudication has always been statecraft. As a mere Judge,
Marshall had his superiors among his colleagues. His supremacy
lay in his recognition of the practical needs of government. The
great judges are those to whom the Constitution is not primarily a
text for interpretation but the means of ordering the life of a
progressive people."
45. In the same book Justice Frankfurter also wrote -
"In simple truth, the difficulties that government encounters from
law do not inhere in the Constitution. They are due to the judges
who interpret it. That document has ample resources for
imaginative statesmanship, if judges have imagination for
statesmanship."
46. In legal scholarship, Roscoe Pound challenged the rigid
formalism of Justice Field. Pound strongly argued against a
jurisprudence founded upon immutable first principles and sought
in the social sciences and related fields a means for making the law
responsive to a changing world.
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47. As observed by Justice Frankfurter :
"It would be comfortable to discover a Procrustean formula........ If
such were the process of Constitutional adjudications in this most
sensitive field, it would furnish an almost automatic task of
applying mechanical formula and would hardly call for the labors
of Marshall or Taney, of Holmes or Cardozo. To look for such
talismanic formula is to assume that the broad guarantees of the
Constitution can fulfill their purpose without the nourishment of
history."
48. In Keshavanand Bharti vs. State of Kerala AIR 1973 SC 1461
(vide paragraph 1547) Khanna,J. observed :
"In exercising the power of judicial review, the Courts cannot be
oblivious of the practical needs of the government. The door has to
be left open for trial and error."
49. In the present case there was a reasonable basis for the
classification, and hence there is no violative of Article 14 of the
Constitution.#
19. In support of their contentions, the learned counsel appearing for
the petitioners relied on the Judgment of the Hon'ble Supreme Court in
UNION OF INDIA AND ANOTHER v. SPS VAINS (RETD) AND
OTHERS [ (2008) 9 SCC 125]. The learned counsel appearing for the
petitioners also relied on the Judgment of the Constitution Bench of the
Hon'ble Supreme Court in D.S.NAKARA, contended that all the exercise
irrespective of their retirement should be treated as homogeneous, one class
and while extending the benefit of pension, it should be extended to all and
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W.P.No.26613 of 2015
fixing of the cut-off date as 01.01.2006, is illegal and violative of the
principles laid down in D.S.NAKARA.
20. Such an argument has no force in law, in view of the fact that all
the subsequent Judgments to the Judgment of D.S.NAKARA, the Hon'ble
Supreme Court has reiterated and emphasized that the legal principles in the
case of D.S.NAKARA to be tested with the facts and in the changing
circumstances. In other words, the case of D.S.NAKARA was decided in
the year 1983 and thereafter, the Hon'ble Supreme Court has considered
various aspects of Pension Schemes and laid down the principles holding
that fixing of cut-off date cannot be held to be illegal or arbitrary. Further,
the date of implementation of the Pay Commission cannot be said to be
arbitrary and further the Hon'ble Supreme Court considered the financial
constraints of the State, while granting the relief in such kind of cases.
21. In this regard, the Government in its counter affidavit in
paragraph No.18, has narrated the statics about the expenditure to be
incurred and paragraph No.18, is extracted below:
#18.The expenditure on pension has increased manifold and
in 2006-2007, the number of pensioners was 5,60,168 and
expenditure was Rs.5,442 crores. In 2015-16, the number of
pensioners increased to 7,14,041 and pension expenditure is
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estimated at Rs.20,074/- crore. The Pension and retirement
benefits expenditure was at 5.9% of total revenue expenditure in
1990-91 and 14.7% in 2011-12 and it is estimated that it may
reach 20.5% during 2030-3. Due to various legal interventions, a
number of Government Orders have been issued with huge impact
on State finance by increased expenditure on pension and other
retirement benefits, which is unsustainable in the long run.
Further, retrospective upward revision of the pensionary
entitlements and benefits create issues of inter-generational equity.
The further revision of pension and other retirement benefits
without considering financial constraint of the State will lead to
more financial stress and the State cannot implement development
and infrastructure schemes.#
22. No doubt all the pensioners are to be treated as a class, but, while
implementing the Pay Commission recommendations, it is necessary to fix a
cut-off date. The Government has to consider various aspects before
implementing the Pay Commission. This being the duty of the State, they
have to see that a class within a class is not created. For instance, the pre-
pensioners as on 01.01.2006 are different from the post-pensioners of
01.01.2006. Therefore, this Court cannot come to the conclusion that the
cut-off date fixed by the State Government is arbitrary or has no relevance.
Certainly, the date has a relevance in respect of implementation of the Pay
Commission. Thus, the arguments advanced by the learned counsel for the
petitioners that the cut-off date has no sanctity, deserves to be rejected. In
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this regard, the Seventh Schedule, State List II, Entry 42, of the
Constitution of India is extracted hereunder:
#42.State Pensions, that is to say, pension payable by
the State of out of Consolidated Fund of the State.#
Thus, the Constitution provides power for the State to fix the
pension in respect of the State Pensioners. Undoubtedly, it is the
prerogative of the State to decide the quantum of pension to be
paid the State Pensioners.
23. The learned counsel for the petitioners contended that the State
on an earlier occasion had decided to follow the Central Government Pay
Commission, both for in-service and pensioners. But, such a Policy has to
be adopted by the State Government, while adopting the Policy of the
Central Government. This Court is of the view that the State has got every
power to modify, alter, reduce or enhance in respect of the quantum of
pension and other conditions stipulated in the Pay Commission
recommendations. It is not the case as if the Central Pay Commission is to
be implemented mutatis mutandis to the State. It is for the State to decide
what are all the recommendations to be implemented and the State has got
an independent power under the Constitution of India to decide the
conditions and quantum of pension to be fixed in this regard. Thus, this
Court is of an undoubted view that the power of the State in this regard
cannot be questioned and the power is very much traceable in Seventh
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Schedule, State List II, Entry 42 of the Constitution of India. Thus, this
Court is of the view that the arguments advanced by the learned counsel for
the writ petitioners in this regard deserves no further consideration.
24. Further, it is argued by the learned counsel for the petitioners that
a mere cut-off date in order to create discrimination cannot be followed by
the State. This argument deserves outright rejection, in view of the fact that
the pension fixed based on the cut-off date more specifically, with regard to
the date of implementation of the Pay Commission cannot be construed as a
discrimination or violative of Articles 14 and 16 of the Constitution of
India. Certainly there is a rationale behind the fixing of the cut-off date in
this regard and when the rationale behind the cut-off date is established, and
the date fixed for the purpose of implementing the Pay Commission, the
State cannot be faulted with. This apart, financial constraint raised by the
State Government is required to be considered seriously by the Courts also.
When there is no sufficient financial resources available to meet out the
growing pension expenditure, the State has to alter its Policy. Thus, the
reasons and the statistics furnished by the State in this regard more so,
regarding the increasing expenditure on pension has to be taken note of.
The Courts cannot close its eyes with regard to the financial constraints and
the concerns raised by the State. A planning and pragmatic approach to be
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adopted in this regard.
25. Thus, the enhancement of pension further from 40% to 50% to
the pre-retires of 01.01.2006, cannot be claimed as a matter of right and the
pensioners are getting their right of pension as fixed in the Pay Commission
recommendations and since the further enhancement may cause increasing
financial burden to the State, this Court is not in a position to accept the
contentions raised on behalf of the writ petitioners.
26. This apart, if the propositions advanced by the learned counsel
appearing for the writ petitioners are accepted, even then, the pensioners
who retired prior to 01.01.1996 and 01.06.1988 also will have the scope to
claim the same benefit. Third Pay Commission was implemented with
effect from 01.04.1978, the Fourth Pay Commission was implemented with
effect from 01.10.1984, the Fifth Pay Commission was implemented on
01.06.1988, the Sixth Pay Commission was implemented on 01.01.1996,
the Seventh Pay Commission was implemented on 01.01.2006 and the
Eighth Pay Commission was implemented on 01.01.2016.
27. If the arguments of the learned counsel appearing for the
pensioners are accepted, all the pensioners are to be treated equally,
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removing the cut-off date, then, logically the cut-off dates fixed in all the
Pay Commissions are to be removed, on such event, this Court is unable to
foresee the consequences and the future implications involved at the cost of
the State Exchequer.
28. Contrarily, fixing of cut-off date is a normal affair of the State
wherever necessary. The only point to be adjudicated is that whether the
cut-off date is fixed under capricious manner or otherwise. In the case on
hand, the cut-off date is fixed, as the date fixed for the purpose of
implementing the Pay Commission recommendations, which cannot be
construed as capricious or otherwise. The power of the State in respect of
fixing the cut-off date is undoubtedly clear by virtue of the provisions in
Seventh Schedule, State List II, Entry 42 of the Constitution of India.
Thus, the arguments that the cut-off date to be removed and all the
pensioners are to be granted the benefit extended to the Central
Government pensioners deserves no merit consideration.
29. In view of the above discussions, the claim set out by the writ
petitioners in this regard deserves no consideration and accordingly, the
Writ Petition stands dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
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W.P.No.26613 of 2015
11.08.2022
Jeni
Index : Yes
Speaking order : Yes
To
The Principal Secretary to Government
of Tamil Nadu
Finance (Pay-Cell) Department
Fort St.George
Chennai 600 009.
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W.P.No.26613 of 2015
S.M. SUBRAMANIAM, J.
Jeni
W.P.No.26613 of 2015
11.08.2022
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