Sarat Chandra Nayak vs Registrar
2023 Latest Caselaw 4286 Ori

                     ORISSA HIGH COURT: CUTTACK

AFR

                         W.P. (C) NO. 11332 OF 2011

          In the matter of an application under Article 226 of the
          Constitution of India.

                                     ---------------

Sarat Chandra Nayak ..... Petitioner

-Versus-

          Registrar, Judicial,                         .....   Opp. Parties
          Orissa High Court, Cuttack
          and Others


               For Petitioner    :      M/s. S.C. Dash and
                                        S.N. Jena, Advocates

               For Opp. Parties :      Mr. P.K. Muduli,
                                       Addl. Govt. Advocate

          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE M.S. RAMAN

Date of hearing: 21.04.2023:: Date of judgment: 25.04.2023

DR. B.R. SARANGI, J. By means of this writ petition, the

petitioner, who was working as a Secretary in the High // 2 //

Court of Orissa and retired from service on attaining the

age of superannuation on 30.04.2007, seeks direction to

the opposite parties to extend the benefit contained in

para-2(2) of the resolution dated 19.01.2009 in Annexure-

2. He further seeks direction to the opposite parties to

grant full pension, taking into account the qualifying

service period as 25 years in terms of para-2 of the said

resolution, and consequentially release the differential

pension amount in his favour within a stipulated time by

making revision of the pension.

2. The factual matrix of the case, in a nutshell, is

that on attaining the age of superannuation the petitioner

retired from service w.e.f. 30.04.2007 and consequentially

he was granted with pension vide P.P.O. No. 368710.

Subsequently, Odisha Revised Scale of Pay Rules came

into force w.e.f. 01.01.2006 by the Finance Department,

vide resolution dated 19.01.2009, allowing revision of

pension/family pension w.e.f. 01.01.2006 and gratuity

and commutation of pension w.e.f. 01.12.2008. In the // 3 //

said resolution it was indicated that government servants,

who have rendered the minimum qualifying service of 25

years, would be entitled to get pension at the rate of 50%

of the last emoluments drawn by them on the date of their

retirement. As such, the said benefit is also applicable to

the government servants retiring on or after 01.12.2008.

The maximum limit of Death-cum-Retirement Gratuity

was also enhanced to Rs.7.5 lakhs w.e.f. 01.12.2008. But

the employees, who retired during the period from

01.01.2006 to 30.11.2008, were granted Death-cum-

Retirement Gratuity up to maximum limit of Rs.2.5 lakhs.

Therefore, the affected pensioners challenged such action

before the State Administrative Tribunal. Consequently,

the Government in Finance Department, after being

directed for reconsideration of the matter, issued a fresh

resolution on 01.04.2011 allowing the maximum limit of

Rs.7.5 lakhs on revision of pay to all employees who have

retired during the period from 01.01.2006 to 30.11.2008.

But, for the government servants, the cutoff date was // 4 //

fixed by the Finance Department as 01.12.2008 with

regard to their eligibility to get pension at the rate of 50%

with having 25 years of qualifying service. Thereby, the

petitioner is grossly aggrieved by such action of the

authority and contended that the benefit of ORSP Rules,

2008 having been made applicable w.e.f. 01.01.2006 and

the revision of pension and family pension also allowed

w.e.f. 01.01.2006, the qualifying service period of 25 years

be extended to him to be entitled to get the full pension.

Consequentially, he seeks for differential amount of

revised pension taking into consideration his 32 years of

service for grant of full pension. Hence, this writ petition.

3. Mr. S.C. Dash, learned counsel for the

petitioner contended that the petitioner, being a retired

employee, by virtue of the resolution dated 19.01.2009 the

benefit has to be extended to him in terms of para-2(2)

and 2(3) of the resolution. It is contended that though

part of such resolution has been complied with, but so far

as qualifying service of 25 years for the purpose of // 5 //

granting full pension is concerned, the same has not been

made applicable in respect of the petitioner. Thereby, the

authorities have acted arbitrarily and unreasonably.

Consequentially, he seeks direction to the opposite parties

for extension of the benefit full pension, as admissible to

the petitioner, by revising his pension, taking into

consideration 25 years of qualifying service.

4. Mr. P.K. Muduli, learned Addl. Government

Advocate appearing for the State-opposite parties,

referring to the counter affidavit filed by opposite party

no.2, justifies the action taken by the Government in not

extending the benefit of full pension to the petitioner on

completion of 25 years of qualifying service. It is

contended that the petitioner is not entitled to the relief,

as sought by him, as because revision of pension and

fixing a benefit of liberalization in service conditions of

State Government employees are different and distinct in

character. Fixing of date for the specific benefit in relation

to reduction of length of qualifying service for full pension // 6 //

does not lack principles of any intelligible differentia and

it is neither discriminatory nor designed to create

classification. If the State Government, instead of

liberalizing the service conditions, minimizes any benefit

or withdraws the same, the question of homogeneous

class would not arise. On the other hand, the claim would

be differently placed on the plea that the Government has

taken away the benefit. Thereby, it is contended that the

State Government is well justified in fixing the pension of

the petitioner which does not require any interference of

this Court. It is further contended, referring to the

additional affidavit filed by opposite party no.2 in

compliance of the order dated 04.04.2022, that

considering the financial position of the Government as

well as financial impact on the State Exchequer by giving

the provisions with effect from 01.01.2006, even though

the circular dated 19.01.2009 has been issued extending

such benefit to the petitioner, but actually the same // 7 //

cannot be extended. Consequentially, dismissal of the writ

petition is sought for.

5. This Court heard Mr. S.C. Dash, learned

counsel appearing for the petitioner and Mr. P.K. Muduli,

learned Addl. Government Advocate appearing for the

State-opposite parties by virtual mode and perused the

records. Pleadings having been exchanged between the

parties, with the consent of learned counsel for the parties

this Writ Petition is being disposed of finally at the stage

of admission.

6. On careful appraisal of the factual matrix, as

delineated above, this Court finds that Government of

Odisha in Finance Department issued a resolution on

19.01.2009 under Annexure-2 with regard to revision of

pension/family pension, gratuity and commutation of

pension of Post-2006 pensioners/family pensioners.

Paragraphs-2, 3, 4 and 5 of the said resolution, being // 8 //

relevant for the purpose of the case, are extracted

hereunder:-

"2. Pension:-

(1) xxx xxx xxx

(2) Qualifying service of 33 years was required as per Rule 47(2) (a) & (b) of O.C.S (pension) Rules, 1992 and for sanction of full pension. Government have been pleased to decide that the Government servants who have rendered the minimum qualifying service of 25 years would now be entitled for pension at the rate of 50% of the last emolument (basic pay + grade pay) drawn by him on the date of his retirement.

In case of Government servants retiring before completion of 25 years of qualifying service, but after completion of 10 years, the amount of pension shall be proportionate to the amount of pension admissible under clause (b) of sub-rule (2) of Rule 47 of O.C.S (pension) Rules, 1992 and in no case the amount of pension shall be less than the minimum amount of pension admissible now fixed at Rs.3,500/-.

(3) The revised provisions for calculation of pension in para 2(2) above shall come into force w.e.f 01.12.2008 and shall be applicable to the Government servants retiring on or after that date. The Government servants who have retired on or after 01.01.2006 but before 01.12.2008willcontinuetobegoverned by the rules /orders which were in force immediately before coming in to effect of this Resolution.

(4) The minimum amount of pension admissible shall be Rs.3,500/- and maximum up to 50% of // 9 //

the highest pay and grade pay admissible to the Government employees.

(5) The provisions of clause (a) & (b) of sub-rule- 2 of Rule 47 of O.C.S. (pension) Rules, 1992 shall stand modified to the extent in para 2(2) and 2(4) above."

7. On perusal of the aforesaid provisions, it is

made clear that Rule-47(2)(a) & (b) of the O.C.S. (Pension)

Rules, 1992, requires qualifying service of 33 years for

sanction of full pension. But, by virtue of para-2(2) of the

aforementioned resolution, a government servant who has

rendered minimum qualifying service of 25 years would be

entitled to get pension at the rate of 50% of the last

emolument (basic pay + grade pay) drawn by him on the

date of his retirement. In para-2(3) of the above

resolution, it is provided that the revised provisions for

calculation of pension in para-2(2) above shall come into

force w.e.f. 01.12.2008. Thereby, a cutoff date has been

fixed for implementation of para-2(2) and the same shall

be applicable to the government servant retiring on or

after 01.12.2008. The government servant, who has // 10 //

retired on or after 01.01.2006 but before 01.12.2008,

would continue to be governed by the rules and orders

which were in force immediately before coming into effect

the above resolution. Meaning thereby, the said

government service shall be regulated by the old

principles instead of para-2(2) of the resolution, referred

to above. Furthermore, the minimum pension has been

admissible at Rs.3500/- and maximum up to 50% of the

highest pay and grade pay admissible to the government

employees. Therefore, the benefit, which has been granted

under para-2(2), has been taken away under para-2(3), so

far as the government servants who have retired on or

after 01.01.2006 but before 01.12.2008. The petitioner

falls within this category, as he has retired from service on

30.04.2007. It is made clear that by the time the

petitioner retired from service he had rendered 32 years of

service, thereby the condition of minimum qualifying

service of 33 years to get full pension was not satisfied.

Therefore, he was getting proportional pension taking into // 11 //

consideration his qualifying service as 32 years. If the

qualifying service period of the petitioner has been

reduced as per para-2(2) of the resolution dated

19.01.2009, then he is entitled to get the full pension of

50% of the last emolument (basic pay + grade pay) drawn

by him. If it is examined mathematically, at best the

petitioner can have some differential amount to get. But

fact remains, because of para-2(3), he has been debarred

from getting such benefit, as the State Government has

created a class which is not permissible. If for a

government servant having qualifying service of 25 years,

who retired after 01.12.2008, the revised pension is

applicable, denial of such benefit to the government

servant, who retired between 01.01.2006 and 01.12.2008,

has no valid justification. Thereby, the cut-off date fixed

as 01.12.2008, depriving of the benefit to the government

servants retired between 01.01.2006 and 01.12.2008 has

no nexus to the object sought to be achieved. More so, in

the process, a small group of persons have been deprived // 12 //

of getting their legitimate claim of revision of pension,

which is arbitrary, unreasonable, illegal and contrary to

the provisions of law.

8. The reason for fixation of cut-off date, i.e.,

01.12.2008 to extend the benefit of qualifying service of

25 years to be entitled to get full pension has no

reasonable nexus to the object sought to be achieved.

Therefore, the basic question is to be determined as to

whether the fixation of such cut-off date is arbitrary,

unreasonable or discriminatory.

9. When a cut-off date is fixed by the concerned

authority, the Court is required to keep in mind that such

a date must have been fixed by the authority after

considering various aspects of the case and, therefore,

there is very limited scope of judicial interference in such

matters. This issue has been examined and considered by

the Supreme Court time and again in a large number of

cases, some of which are Jaila Singh v. State of // 13 //

Rajasthan, AIR 1975 SC 1436; D.S. Nakara v. Union of

India, AIR 1983 SC 130; Dr. (Mrs.) Sushma Sharma v.

State of Rajasthan, AIR 1985 SC 1367; U.P.M.T.S.N.A.

Samiti, Varanasi v. State of Uttar Pradesh,1987 (2)

SCC 453 : AIR 1987 SC 1772; Krishna Kumar v. Union

of India, AIR 1990 SC 1782; State of Rajasthan v.

Rajasthan Pensioner Samaj, AIR 1991 SC 1743; All

India Reserve Bank Retired Officers Association v.

Union of India, AIR 1992 SC 767; T.S. Thiruvengadam

v. Secretary to the Government of India, (1993) 2 SCC

174; Union of India v. Sudhir Kumar Jaiswal, AIR

1994 SC 2750; M. C. Dhingra v. Union of India, (1996)

7 SCC 564 : AIR 1996 SC 2963; University Grants

Commission v. Sadhana Chaudhary, (1996) 10 SCC

536; State of Rajasthan v. Amrit Lal Gandhi, AIR 1997

SC 782; and many others.

10. It is well settled in law that a cut-off date can

be introduced, but it is not permissible to introduce such

a date in an artificial manner resulting in discrimination // 14 //

between similarly situated persons. A cut-off date may be

introduced by creating a fiction, but before fixing such

cut-off date, the consequences are required to be

examined thoroughly and the date so fixed must have

some nexus to the object sought to be achieved and

should not result in making an artificial classification

between similarly situated persons. If the choice of fixing

a particular date is shown to be wholly arbitrary and

introduces discrimination, which violates the mandate of

Article 14 of the Constitution, such a cut-off date can be

struck down for the reason that a purpose of choice

unrelated to the object sought to be achieved cannot be

accepted as valid. The Constitution Bench of the Supreme

Court in Union of India v. M.V. Valliappan, AIR 1999

SC 2526 held that a cut-off date cannot be held to be

invalid unless it is shown to be capricious or whimsical

and it cannot be held to be so merely in absence of any

particular reason for choosing the same. The Court

observed as under:

// 15 //

"It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances; while fixing a line of point is necessary and there is no mathematical date or way of fixing it, precisely the decision of the Legislature or its delegate must be accepted unless it is very wide of reasonable mark (University Grants Commission v. Sadhana Chaudhary: (1996) 10 SCC 536. The learned Counsel for the respondents was not in a position to point out any ground for holding that the said date is capricious or whimsical in the circumstances of the case."

11. In Bhupinderpal Singh v. State of Punjab,

(2000) 5 SCC 262, the Supreme Court placed reliance

upon large number of its earlier judgments, particularly in

Ashok Kumar Sharma v. Chandra Sekhar, (1997) 4

SCC 18; Andhra Pradesh Public Service, Commission

v. B. Sharat Chandra, (1990) 2 SCC 669 and M.V. Nair

(Dr.) v. Union of India, (1993) 2 SCC 429 and observed

as under:

"The High Court has held that (i) the cutoff date, by reference of which the eligibility required must be satisfied by the candidate seeking a public employment, is the date appointed by the relevant rules and if there be no cut-off date appointed by // 16 //

the rules then such date, as may be appointed for the purpose in the advertisement seeking for application; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed, by which the application has been received by the Authority. The view taken by the High Court is supported by several decisions of the Court and is, therefore, well settled and hence cannot be found fault with."

Applying the above principle to the present context,

fixation of 01.12.2008 as the cut-off date cannot be

sustained in the eye of law.

12. It is of relevance to note that the State

Government has revised the pay, pension and family

pension with effect from 01.01.2006. Subsequently, the

State Government made revision of pension/family

pension, gratuity and commutation of pension of Post-

2006 pensioners/family pensioners vide Finance

Department Resolution dated 19.01.2009. In the said

resolution, State Government brought about some

modifications incorporating new provisions, which are

extracted hereunder:-

// 17 //

"(i) Provision of additional pension/family pension in respect of pensioners and family pensioners who have completed 80 years and above.

(ii) Provision of enhanced family pension for 10 years in case of an employee died in harness.

(iii) Provision of addition of qualifying service is withdrawn.

(iv) Reduction of qualifying service from 33 years to 25 years for the purpose of full pension.

(v) Enhancement of maximum limit of DCRG from Rs.2.5 lakhs to Rs.7.5 lakhs.

(vi) Adoption of new methodology for commutation of pension.

These provisions are carried into effect from 01.12.2008."

13. It may be noted that the Odisha Administrative

Tribunal in O.A. No. 1320 of 2009 (Bijay Kumar

Mohanty v. State of Orissa and others) disposed of on

27.07.2010, while observing that the issue seems to be

already under serious consideration of the Anomaly

Committee, directed the State Government to take a

positive decision on the issue within three months from

the date of receipt of the order. Thereby, taking into // 18 //

consideration the opinion of the Anomaly Committee, the

Government decided to enhance the maximum limit of

DCRG to Rs.7.5 lakhs admissible in respect of State

Government employees w.e.f. 01.01.2006. Therefore, the

petitioner, even though retired on 30.04.2007, has been

extended with such benefits.

14. Though in the counter affidavit filed by the

State no plea has been advanced as to why the petitioner

has been deprived of getting the differential benefit, taking

into consideration the qualifying service of 25 years, as

per para-2(2) of the resolution dated 19.01.2009, but in

compliance of the order dated 04.04.2022 an affidavit has

been filed by the opposite party, in which it has been

stated as follows:-

"Considering the financial position of the Government as well as the financial impact on the State Exchequer by giving the provisions w.e.f. 01.01.2006, the above mentioned provisions have been given effect w.e.f. 01.12.2008."

// 19 //

It is therefore inferred that due to financial position of the

Government as well as financial impact on the State

Exchequer, the benefit claimed is not admissible. It is

essentially contended that due to financial stringency the

benefit admissible to the petitioner cannot be extended

even though he retired with effect from 30.04.2007 in

between the period 01.01.2006 and 01.12.2008. The plea

of financial crunch is no ground not to extend such

benefit.

15. A similar question had come up for

consideration before the apex Court in State of

Maharashtra v. Manubhai Pragaji Vashi, AIR 1996 SC

1 that, was non-extending the grant-in-aid by State to

Non-Government Law Colleges and at the same time

extending such benefit to non-Government Colleges with

faculties, viz., Arts, Science, Commerce, Engineering and

Medicine (other professional non-Government colleges)

patently discriminatory? In that case, the aforesaid benefit

had not been extended by pleading paucity of funds or // 20 //

otherwise, and the apex Court held that the plea of

paucity of funds taken by the State would not be tenable

as the paucity of funds can be no reason for

discrimination.

In paragraph 12 of the aforesaid judgment,

the apex Court specifically observed as follows:

"The facts stated above amply bring out the fact that recognised private law colleges alone were singled out for hostile discriminatory treatment. The recommendations of the committee (pages 198-208) to apply the new formula for the grant to private law colleges and the resolution adopted by the Government to extend the UGC scales to teachers of law colleges (pages 86-87) remained only in `paper' and no concrete steps were taken to implement them. It is not explained as to why recognised private law colleges alone are disentitled to receive grant-in-aid from the Government. The burden of proof cast on the State, that discrimination against recognised private law colleges is based on a reasonable classification having nexus to the object sought to be achieved, has not been discharged. The High Court has held so, placing reliance on the decisions of this Court reported in Budhan Choudhary and others v. State of Bihar, AIR 1955 SC 191 Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578, Mehant Moti Das v. S.P.Sahi AIR 1959 SC 942, Babulal Amthalal Mehta V. Collector of Customs AIR 1957 SC 877 // 21 //

and D.S.Nakara v.Union of India, AIR 1983 SC 130. We hold that the aforesaid reasoning and conclusion of the High Court is fully justified and no exception can be taken to the decision so arrived at by the High Court. The High Court has further referred to the plea of paucity of funds pleaded by the State and has held that paucity of funds can be no reason for discrimination placing reliance on the decision of this Court in Municipal Council, Ratlam v. Vardhichand AIR 1980 SC 1622. This reasoning of the High Court is also fully justified and no exception can be taken to the said proposition as well. We hold so."

16. In Punjab State Cooperative Agricultural

Development Bank Limited v. Registrar, Cooperative

Societies and others, (2022) 4 SCC 363, taking into

consideration the ratio decided in the case of State of

Rajasthan v. A.N. Mathur, (2014) 13 SCC 531, the apex

Court in paragraphs-55, 56 and 57 held as under:-

"55. In State of Rajasthan(supra), it was a case where the University which was an autonomous body created under the provisions of the Act by its Resolution introduced the pension scheme, without taking recourse of the fact that the Resolution of the Board of the Management of the University can be enforced only with prior approval from the Chancellor, i.e., the Governor of the State in terms of Section 39 // 22 //

of the Act and it was never approved by the Chancellor, in absence whereof, such resolution of the Board of Management was unauthorized and was not open to be implemented. In the given circumstances, this Court was of the view that in absence of the mandate of Section 39 being complied with, the Board of Management of the University was not justified in introducing the scheme of pension.

56. So far as the submission made by learned counsel for the appellant about the financial distress of the appellant Bank to justify the impugned amendment to say that it may not be possible to continue the grant of pension any more is concerned, suffice to say, that the rule making authority was presumed to know repercussions of the particular piece of subordinate legislation and once the Bank took a conscious decision after taking permission from the Government of Punjab and Registrar, Cooperative, introduced the pension scheme with effect from 1 st April 1989, it can be presumed that the competent authority was aware of the resources from where the funds are to be created for making payments to its retirees and merely because at a later point of time, it was unable to hold financial resources at its command to its retirees, would not be justified to withdraw the scheme retrospectively detrimental to the interests of the employees who not only became member of the scheme but received their pension regularly at least upto the year 2010 until the dispute arose between the parties and entered into litigation.

// 23 //

57. In our view, nonavailability of financial resources would not be a defence available to the appellant Bank in taking away the vested rights accrued to the employees that too when it is for their socioeconomic security. It is an assurance that in their old age, their periodical payment towards pension shall remain assured. The pension which is being paid to them is not a bounty and it is for the appellant to divert the resources from where the funds can be made available to fulfil the rights of the employees in protecting the vested rights accrued in their favour."

17. On perusal of the above, it is made clear that

non-availability of financial resources would not be a

defence available to the State in taking away the vested

rights accrued in favour of the petitioner that too when it

is for his socio-economic security. Thereby, denial of the

benefit of pension to the petitioner, taking into

consideration qualifying service of 25 years as per para-

2(2) of the resolution dated 19.01.2009, as he has retired

in between 01.01.2006 and 01.12.2008, i.e., 30.04.2007,

cannot be sustained in the eye of law.

// 24 //

18. In view of the facts and law, as discussed

above, this Court is of the considered view that the

petitioner is entitled to get the benefit of pension, taking

into consideration 25 years of qualifying service, as per

para-2(2) of the resolution dated 19.01.2009. Accordingly,

the opposite parties are directed to revise the pension of

the petitioner w.e.f. 01.05.2007 and release the

differential amount in favour of the petitioner within a

period of three months from the date of production/

communication of certified copy of this judgment.

19. In the result, the writ petition is allowed. However, there shall be no order as to costs.

                                             (DR. B.R. SARANGI)
                                                     JUDGE

M.S. RAMAN, J.       I agree.


                                                  (M.S. RAMAN)
                                                       JUDGE



          Orissa High Court, Cuttack
          The 25th April, 2023, Ashok