Madras High Court
C.Sadeswari vs State Of Tamil Nadu on 4 July, 2022
W.P.Nos.6100 of 2015 & etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.6100, 31223 to 31229, 32250 to 32255
and 32845 of 2015
W.P.No.6100 of 2015
C.Sadeswari ..Petitioner
Vs.
1.State of Tamil Nadu,
Rep.by its Secretary to Government,
School Education Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Director of Elementary Education,
College Road, Chennai – 600 006.
3.The District Elementary Educational Officer,
Tiruvallur,
Tiruvallur District.
4.The Additional Assistant Educational Officer,
Poondi Panchayat Union,
Tiruvallur Taluk & District.
5.The Principal Accountant General
(Accounts & Entitlements) Tamil Nadu
361, Anna Salai,
Chennai – 600 018. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
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India, seeking the issuance of a Writ of Certiorarified Mandamus, calling
for the records pertaining to the order passed by the 1st respondent in
G.O.Ms.No.179, School Education Department dated 06.09.2013 and
quash the same, in so far as it restricts the benefit only to the persons
who have approached the Court and got order is concerned, and direct
the Respondents to extend the benefit to the petitioner to count the entire
length of service both in the cadre of Secondary Grade Teacher and
Headmistress of Elementary School and sanction Selection Grade and
Special Grade to the petitioner in the cadre of Headmistress of
Elementary School counting the entire length of service, and confer all
the consequential benefits.
For Petitioners
[In W.P.No.6100 of 2015] : Mr.P.Ganesan
For M/s.C.S.Associates
[In W.P.Nos.31223 to
31229 of 2015, 32250 to
32255 of 2015 and
32845 of 2015] : Mr.R.Saseetharan
For Respondents : Mr.S.Silambanan
[in all W.Ps] Additional Advocate General
Assisted by
Mrs.S.Anitha
Special Government Pleader
[For R1 to R4]
[In W.P.No.6100 of 2015]: No appearance for R5
COMMON ORDER
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In these batch of writ petitions, the respective petitioners sought to
call for the records of the first respondent in relation to Paras 5, 5(i) and
5(ii) of G.O.Ms.No.179, School Education (Elementary 1(2) Department,
dated 6.9.2013 and quash the same in so far as it restricts the benefits to
the Primary School Headmasters, who were promoted between 1.6.1988
and 31.12.1995 and approached the Court and obtained orders and in so
far as the petitioners are concerned and issue a consequential direction to
the respondents to restore the G.O.Ms.No.216, School Education (G2)
Department, dated 30.12.2011 and to direct the respondents to count the
service rendered by the petitioners before 1.6.1988 as Secondary Grade
Teacher and Primary School Headmaster for the purpose of fixation of
selection and special grade scales of pay in the post of Primary School
Headmaster and to grant selection grade scale of pay and special grade
scale of pay in the post of Primary School Headmaster accordingly and
grant arrears of pay and fix last drawn pay and issue a direction to the
respondents to send the revised pension proposals for sanction of pension
and to grant arrears of pension.
2. The petitioners have sought for the extension of the benefits
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granted by the Government in G.O.Ms.No.216, School Education
Department, dated 30.12.2011. On a perusal of the abovesaid
Government Order, it is stated that the proposal submitted by the
Director of Elementary Education, was considered by the Government
and it was decided that the persons, irrespective of the fact, whether they
have filed writ petitions or not, the benefit of counting of the services in
the post of Secondary Grade Teachers and the Elementary School
Headmaster rendered prior to 1.6.1988 to be calculated for the purpose of
awarding selection grade and special grade. More-so, the selection grade
and special grade in the cadre of Elementary School Headmaster.
3. However, the Government thought that the above
G.O.Ms.No.216, dated 30.12.2011 was ambiguous and accordingly,
withdrawn the said Government Order and issued the revised
Government Order in G.O.Ms.No.179, School Education Department,
dated 6.9.2013. In the said Government Order, the Government thought
fit that the benefit should be extended to the persons, who have obtained
orders from the High Court numbering 1,528 and accordingly, restricted
the relief only to those persons.
4. Secondly, they have stated that the persons, who have promoted
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in between 1.6.1988 and 31.12.1995, alone are eligible for the benefit
granted in respect of counting of their services rendered in the post of
Secondary Grade Teachers and Elementary School Headmaster prior to
1.6.1988. Thirdly, they have stated that the persons, who were promoted
alone to be granted selection grade and special grade in the cadre of
Elementary School Headmasters.
5. In view of the restrictions imposed in G.O.Ms.No.179, dated
06.9.2013, again a writ petition was filed before this Court, challenging
the said Government Order.
6. The issue in nutshell is that the retired teachers, who have
served as Secondary Grade Teachers and Elementary School
Headmasters were of the point that prior to 1.6.1988, the said posts were
interchangeable and was carrying the same scale of pay. In the V Pay
Commission, the scale of pay of the post of Headmaster was enhanced
and accordingly, it became a separate category. Thus, the dispute aroused
whether the services rendered prior to 1.6.1988 in the post of Secondary
Grade Teachers to be taken into account for the purpose of granting
selection grade and special grade in the post of Elementary School
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Headmasters. It is not lis integra that the issue has been settled and the
government also admitted the fact that the period of services rendered
prior to 1.6.1988 in the interchangeable posts shall be taken into account
for the purpose of granting selection and special grade.
7. However, the confusions aroused in respect of fixation of pay on
account of long delay in settling these issues even after implementing
another three Pay Commissions. More confusions aroused on account of
the revision of pay implemented pursuant to the recommendations of the
Pay Commission as well as the rectification of anomalies by the
respective One Man Commissions and the Pay Redressal Grievance
Committee periodically. On account of these confusions, the respondents
have also committed various mistakes and irregularities in respect of
fixation of pay for counting of the services rendered by these teachers
prior to 1.6.1988.
8. This Court made it very clear that the counting of the past
services rendered by these teachers prior to 1.6.1988 in the post of
Secondary Grade Teachers and Primary School Headmasters are not
disputed by the parties and G.O.Ms.No.179 stipulates fixation of pay and
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cut off date as 31.12.1995 for granting all these benefits. The learned
counsel, appearing on behalf of the writ petitioners, is of the opinion that
when the benefit was granted to the promotees promoted prior to
31.12.1995, the same benefit cannot be denied to the promotees, who
were promoted after 31.12.1995 and it causes a discrimination and the
principle of uniformity has been violated. Their only contention is that
the revision of pay is to be effected uniformly to all the writ petitioners
and also to the persons who are not before this Court. Such an argument
advanced by the learned counsel for the writ petitioners is found to be
reasonable.
9. This Court is of the opinion that the monetary benefits extended
to a particular class of people belongs to the same category, then the
same is to be extended uniformly and equally to all such similarly placed
persons, who have worked or served in the particular cadre, and there
cannot be any discrimination within the class. If there are two classes,
then it is different and, in respect of the single class, the implementation
of monetary benefits are to be identical and there cannot be any
discrimination in this regard.
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10. The learned Additional Advocate General appearing on behalf
of the respondents, contended that in some of the cases on account of the
numerous litigations before the High Court, double sanctions were made,
granting selection grade and special grade twice to certain teachers.
Granting of selection and special grade, twice to a particular person,
caused great financial loss to the State Exchequer.
11. At the outset, the learned Additional Advocate General
appearing on behalf of the respondents informed this Court, by citing the
Government Orders, one way or the other, the selection grade and special
grade were granted twice to the employees and the same caused financial
loss to the State.
12. The learned counsel, appearing on behalf of the writ
petitioners, admitted the legal principle that there can be one selection
grade and one special grade for a teacher in his official career and more
so in one post. This Court is also of the opinion that the very concept of
selection grade and special grade was introduced by the Pay
Commissions in order to mitigate the stagnation caused on account of
non-promotion to the employees. The selection grade is given to an
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employee by fixing his scale of pay applicable to the higher post in view
of the fact, that he was stagnated in a particular post for more than 10
years. If the same person is further stagnated upto 20 years, then special
grade is granted and the scale of pay applicable to the next higher post
will be fixed to that employee. The very concept of selection grade and
special grade are to mitigate the non promotion for more than 10 years
and 20 years respectively. When such being the concept of selection
grade and special grade in a particular post, the same is to be granted
once to an employee in his career. Normally, a Government employee
would be serving for about 30 to 35 years maximum in total.
13. There cannot be any two selection grade or two special grade
in the same post. It is clarified that there can be one selection grade and
one special grade in the same post and there cannot be any recounting of
the services rendered in the same post for the second time for the purpose
of granting selection grade or special grade in the higher post. Thus, it is
for the respondents to make a reassessment in respect of such grant of
selection grade and special grade to the teachers in respect of the cadre in
which they have worked.
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14. For instance, if a teacher worked in the post of Secondary
Grade Teacher, there can be one selection grade and one special grade in
that particular post and there cannot be any double selection grade and
double special grade in that particular post. The grievances of the
respondents are that by virtue of various Government Orders issued
periodically by the Government, the confusion aroused on account of that
double time selection grade and special grade were granted to the
teachers. Granting additional pay and pension, which caused financial
loss to the State. If such cases are found, it is the duty of the officials
concerned, to see that a revision of pay is effected correctly. Thus, the
arrears and a grade pay to be fixed to the concerned teachers and the
revision of pay and pension to be settled in accordance with the rules in
force.
15. This Court made it clear that the excess payments, if any,
granted to the teachers, at the instance of the respondents, cannot be
recovered. However, if any error took place in the fixation, the same
alone can be rectified and the pay may be revised with retrospective
effect. Thus, it is made clear that correction of error is permissible and
the same is to be done in respect of all the teachers, who have sanctioned
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with selection grade and special grade by counting the services rendered
in the post of Secondary Grade Teachers and Primary School
Headmasters prior to 1.6.1988. In respect of recovery, it is impermissible
and it is further made clear that if there is any misrepresentation or an
undertaking given by the teachers, then the amount can be recovered as
per the Hon'ble Supreme Court in the case of State of Punjab and
Others vs. Rafiq Masih [(2015) 4 SCC 334], the relevant paragraph 18
is extracted hereunder:-
“18. It is not possible to postulate all
situations of hardship which would govern
employees on the issue of recovery, where
payments have mistakenly been made by the
employer, in excess of their entitlement. Be that
as it may, based on the decisions referred to
hereinabove, we may, as a ready reference,
summarise the following few situations,
wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from the employees
belonging to Class III and Class IV service (or
Group C and Group D service).
(ii) Recovery from the retired employees,
or the employees who are due to retire within
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one year, of the order of recovery.
(iii) Recovery from the employees, when
the excess payment has been made for a period
in excess of five years, before the order of
recovery is issued.
(iv) Recovery in cases where an employee
has wrongfully been required to discharge
duties of a higher post, and has been paid
accordingly, even though he should have
rightfully been required to work against an
inferior post.
(v) In any other case, where the court
arrives at the conclusion, that recovery if made
from the employee, would be iniquitous or
harsh or arbitrary to such an extent, as would
far outweigh the equitable balance of the
employer's right to recover.”
16. In the case of High Court of Punjab & Haryana vs. Jagdev
Singh [(2016) 14 SCC 267], the Hon'ble Supreme Court says in
paragraph 11 that “the principle enunciated in proposition (ii) in the case
of State of Punjab and Others vs. Rafiq Masih [(2015) 4 SCC 334],
cannot apply to a situation such as in the present case. In the present
case, the Officer to whom the payment was made in the first instance was
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clearly placed on notice that any payment found to have been made in
excess would be required to be refunded. The Officer furnished an
undertaking while opting for the revised pay scale. He is bound by the
undertaking.”
17. Thus, the respondents are bound to verify the error took place
in the revision of scale of pay and grant of arrears and if there is any such
error is found, then the same is liable to be rectified and a correct
revision is effected in respect of all teachers. However, if no such
revision is effected to the candidates, then the respondents are bound to
grant the benefits, which were already granted to the other similarly
placed teachers.
18. Next the writ petitioners have questioned the cut off date of
31.12.1995 fixed by the respondents for grant of selection grade and
special grade. The only contention is that the VI State Pay Commission
was implemented with effect from 1.1.1996. Thus, the revised pay was
granted to all the cadres with effect from 1.1.1996. When the revised pay
scale was granted, then the grievances addressed were settled in respect
of the teachers.
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19. It is contended that the teachers who were promoted to the post
of Elementary School Headmasters in between 1.6.1988 and 31.12.1995
alone were affected and the teachers, who were promoted to the post of
Elementary School Headmasters after 31.12.1995, will be directly fixed
with the revised scale of pay implemented with effect from 1.1.1996. The
reason for fixing the date of 31.12.1995 is that the parity between the
teachers and the Elementary School Headmasters aroused prior to
1.6.1988. The V Pay Commission was implemented with effect from
1.6.1988 and the VI Pay Commission was implemented with effect from
1.1.1996.
20. Such being the factum of the case, the services rendered prior
to 1.6.1988 alone can be counted for the purpose of grant of selection
grade and special grade as a one time measure. Once the period is
counted, then there cannot be any second time counting of the same
period for the purpose of granting selection grade and special grade.
Thus, the Government thought fit that such a benefit can be implemented
only upto 31.12.1995 and thereafter, all the teachers would be brought
under the revision of pay in the particular cadre. Accordingly, the
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selection grade and special grade will be granted as per the rules
thereafter.
21. The learned counsel for the writ petitioners have questioned
the cut off date of 31.12.1995 fixed by the Government. This Court is of
the opinion that 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 pensionery benefits cannot be questioned
by the pensioners. Further, the pre-retiries of 31.12.1995 is a separate
class of people and post-retiries of 01.01.1996 form a different group. On
account of the implementation of the Pay Commission, this Court has to
draw an inference that these people form a separate class and cannot be
construed as a single class. Thus, the State has not created a class within
a class and one group of pre-retiries of 31.12.1995, cannot be compared
with the post-retiries of 01.01.1996. So also the grant of selection grade
and special grade to the promotees before 31.12.1995 and after 1.1.1996.
22. In view of the fact that the implementation of the VI Pay
Commission was under taken with effect from 01.01.1996, there is a
relevance in fixing the cut-off date and such a relevancy in relation to the
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financial burden and other aspects of the State Government. Thus, the
cut-off date fixed is very much relevant for the purpose of granting
monetary benefits and for adopting the recommendations of the VI Pay
Commission with effect from 1.1.1996.
23. The legal principle in this regard is that 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. However, a class can be created, based on
the implementation of a new Pay Commission and, the same cannot be
construed as in violation of Articles 14 and 16 of the Constitution of
India. The State can fix the cut-off date and such a power cannot be
questioned by the writ petitioners and the differences in pension also
cannot be compared in view of the 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
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the pensions are fixed based on the Pension Rules and on the basis of the
Last Pay Drawn by the respective pensioners, considering the total length
of service rendered by them in the respective cadres.
24. Whenever a Pay Commission is implemented, such a cut-off
date is prescribed and for instance, the State has now implemented the
VIII 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, while considering the financial implications of
the State. The only point to be considered is as to whether such a cut-off
date fixed by the State have any relevance with regard to the object
sought to be achieved in this regard.
25. In the case on hand, no doubt the grievances of the writ
petitioners were that their services rendered in the post of Secondary
Grade Teachers and Elementary School Headmasters prior to 1.6.1988 to
be counted for the purpose of granting selection grade and special grade.
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However, that is to be granted as one time measure and once such a
benefit is granted to the writ petitioners, they cannot claim the same
benefit for the second time. For this reason, the Government, while
implementing the VI Pay Commission with effect from 1.1.1996 for State
that the person promoted till 31.12.1995 will be given such benefit.
Further, the benefit granted to the employees ought to be given uniformly
is the principle to be followed.
26. The learned Additional Advocate General for the respondents
states that if no such Committee is formed by the State, then it will cause
huge financial loss and at every point of time, the period to be counted
even at the second time, such fixation will create double benefit to the
teachers, which would result in financial losses, and also impermissible
as per the Pay Rules.
27. The Government fixed various cut-off dates, keeping in view
the economic conditions, financial constraints and many other
administrative and other mitigating circumstances. Thus, 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
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different point of time, one set cannot claim the benefit extended to the
other set, on the ground that they are similarly 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 01.01.1996 was
determined, as was done in the earlier revision. Thus, the anomaly in
respect of grant of revision of pay between the teachers prior to
31.12.1995 and after 1.1.1996, cannot be compared nor accepted.
28. 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, the resources of the State alone are to be taken
into account for the purpose of grant of revision of pay and arrears and
other attendant monetary benefits. Sometimes, 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
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employees/pensioners.
29. 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
the revision of pay and pension based on the recommendations of the
various Central Pay Commissions. Thus, the retrospective relief, if any,
granted would cause a great financial concern to the State Exchequer.
30. In the case of 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
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
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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
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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
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. “
31. In the case of STATE BANK OF INDIA v. L.KANNAIAH
AND ORS [(2003) 10 SCC 499, the Hon'ble Supreme Court has
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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 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
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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. “
32. In the case of 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
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view that fixing cut off dates is within the domain of the
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 & 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
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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
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.”
33. In the case of COUNCIL OF SCIENTIFIC AND
INDUSTRIAL RESEARCH AND ORS v. RAMESH CHANDRA
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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 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
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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.”
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34. In the case of 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 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.
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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.”
35. In the case of 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 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)
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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 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 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-affidavit of the
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Government or the executive 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 Aravali
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 domain."
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
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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 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 :
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"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, financier,
banker, 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."
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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.
47. As observed by Justice Frankfurter :
"It would be comfortable to discover a
Procrustean formula........ If such were the
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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.”
36. 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
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class and while extending the benefit of pension, it should be extended to
all and fixing of the cut-off date as 01.01.1996, is illegal and violative of
the principles laid down in D.S.NAKARA.
37. 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 and other aspects while
granting the relief in such kind of cases.
38. In this regard, the Government in its counter affidavit in
W.P.No.12092 of 2013 in paragraph No.18, has narrated the statics about
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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 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.”
39. Thus, this Court is of the opinion that the benefits extended to
the employees belongs to the same class to be extended equally and
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uniformly to all the persons worked in that particular cadre. There cannot
be any discrimination, within the class and therefore, the benefit of
counting of the services in respect of the Secondary Grade Teachers and
the Elementary School Headmasters prior to 1.6.1988 to be extended to
all the teachers, who have served in the particular cadre prior to 1.6.1988.
The said policy was admitted by the Government and the scheme was
extended to all. While-so, there cannot be any discrimination on the basis
that the benefit to be extended to the persons who have approached the
High Court. Even the teachers, who have not filed any writ petition also
to be granted with the same benefit of counting of the services rendered
prior to 1.6.1988 in the post of Secondary Grade Teachers and the
Elementary School Headmasters.
40. This apart, the clauses mentioned in G.O.Ms.No.179, to be
followed scrupulously by the respondents and accordingly, the benefits
to be extended to all the writ petitioners irrespective of the fact whether
they have filed writ petitions or not. It is admitted by the learned counsel
for the respondents that the Government will implement the clauses in
G.O.Ms.No.179, School Education Department, dated 6.9.2013 in its
letter and spirit. Thus, there is no dispute in respect of the
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implementation of the order passed by the Government in
G.O.Ms.No.179, School Education Department, dated 6.9.2013. The
Government has once assured that the benefit of the Government Order
will be given to persons, who have filed cases numbering 1,528, then the
same benefit cannot be denied to other similarly placed persons. To that
extent, the Government Order seems to be bad in law.
41. The Hon'ble Supreme Court of India, time and again,
emphasized that for the purpose of getting the benefits, the pensioners or
the employees, cannot be driven to Court for filing a writ petition. The
State, being a model employer, should implement the financial orders
uniformly to all persons, who are eligible to avail the benefits and there
cannot be any discrimination in respect of grant of monetary benefits
amongst the same class of people. Thus, this Court is of the strong
opinion that the benefit granted in G.O.Ms.No.179, School Education
Department, dated 6.9.2013, should not be restricted only to the litigants,
who were before this Court numbering 1,528 and the same is to be
extended to all the similarly placed persons, who belongs to the same
class.
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42. Accordingly, the following directions are issued:
(i) The G.O.Ms.No.179, School Education Department, dated
6.9.2013 is upheld;
(ii) The benefits granted in G.O.Ms.No.179, School Education
Department, dated 6.9.2013, to be implemented scrupulously in its terms
and conditions to all the employees who have served in the same cadre
and who are placed similarly;
(iii) If any double selection grade or double special grade was
granted on account of an administrative error, the respondents are at
liberty to rectify the errors in granting revision of pay and accordingly,
fix the correct scale of pay as per the said Government Order;
(iv) If the revision of pay is not extended to the similarly placed
persons, then the respondents are directed to grant the revision of scale of
pay to all the similarly placed employees as per G.O.Ms.No.179, School
Education Department, dated 6.9.2013. In this regard, the Director of
Elementary School Education, is directed to prepare consolidated
instructions with clear illustrations and communicate the same to all the
subordinate officials, so as to avoid discrepancies and inconsistencies in
respect of the implementation of G.O.Ms.No.179, School Education
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Department, dated 6.9.2013;
(v) The Government, in its counter affidavit in W.P.No.12092 of
2013 in paragraph 18, has narrated the statistics about the expenditure to
be incurred and the same is extracted in paragraph-38 of this judgment.
In view of the financial stress, the Government shall calculate and revise
the pension and family pension in respect of those who expired, based on
the revised scales of pay in terms of G.O.Ms.No.179, School Education
Department, dated 6.9.2013 and the arrears and the consequential
monetary benefits would be payable on and from 1st January, 2018;
(vi) If any wrong fixation is done after the consolidated
instructions are issued, then the Government as well as the Director of
Elementary School Education, have to initiate appropriate disciplinary
proceedings against the officials, who have violated the Court orders and
the Government instructions, in this regard;
(vii) These directions are issued to provide a quietus to the issue
and to the irregularities, discrepancies and inconsistencies caused on
account of erroneous implementation of various Government Orders
issued in this regard by the Government. Thus, an uniform
implementation is to be made by the officials without giving any room
for any discriminations and confusions in future and thereby to ensure
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that the officials have to implement the orders in its letter and spirit and
scrupulously and to avoid financial loss to the State Exchequer.
(viii) The said exercise shall be done by the respondents, within a
period of six months from the date of receipt of a copy of this order.
43. Accordingly, all the writ petitions stand disposed of. However,
there shall be no order as to costs.
04.07.2022
Speaking order
Index :Yes
Internet: Yes
kak
1.The Secretary to Government,
School Education Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Director of Elementary Education,
College Road, Chennai – 600 006.
3.The District Elementary Educational Officer,
Tiruvallur,
Tiruvallur District.
4.The Additional Assistant Educational Officer,
Poondi Panchayat Union,
Tiruvallur Taluk & District.
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5.The Principal Accountant General
(Accounts & Entitlements) Tamil Nadu
361, Anna Salai,
Chennai – 600 018.
S.M.SUBRAMANIAM, J.
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kak
W.P.Nos.6100 of 2015
& etc., batch
04.07.2022
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