Punjab-Haryana High Court
Nand Kishore Sharma & Ors vs State Of Haryana & Ors on 25 May, 2021
CWP-16952-2016(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-16952-2016(O&M)
Date of decision:25.05.2021
Nand Kishore Sharma and others
.......Petitioners
Versus
State of Haryana and others
......Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.Anurag Jain, Advocate, for the petitioners
Ms. Kirti Singh, DAG, Haryana
ANIL KSHETARPAL, J.
1. Through this petition, 5 writ petitioners, who have retired
from the aided sanctioned posts as Associate Professors from various
non-Government aided colleges during the period 01.01.2006 to
30.6.2006, pray for the parity in the method of calculating the amount of
pension with their colleagues who retired on or after the cut off date
i.e.12.10.2010.
2. The State has enacted 'The Haryana affiliated Colleges
(Security of Service) Act, 1979. Under the aforesaid Act, the State by
notifying the Haryana Affiliated Colleges (Pension and Contributory
Provident Fund) Rules, 1999 ( hereinafter referred to as the 1999 Rules)
has made a provision for the grant of pension to the employees like the
writ petitioners who have retired from the aided sanctioned posts of
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non-government aided colleges. The rules were amended in the year
2001. The petitioners are getting pension in accordance with the 1999
Rules. As per Rule 9, the pension is to be calculated at the rate of 50%
of average pay of the last ten months, which is extracted as under:-
"9. Superannuation pension:- (1) All employees
shall be entitled to the superannuation pension from
the date they attain the age of Sixty years.
(2) Pension shall be calculated at the rate of fifty
percent of the average pay of the last ten months.
The admissibility of full pension shall be on
completion of thirty three years qualifying service.
The amount of pension is to be determined by length
of service. The length of qualifying service for this
purpose shall be calculated in terms of completed six
monthly period and fraction of a year equal to three
months or more shall be treated as a completed six
monthly period. The formula will be as under:-
10 months Qualifying Service (counted in terms
Pension Average Emoluments X of completed half yearly period)
If the pension so calculated for the qualifying
service of thirty three years falls short of Rs.1275/-
(one thousand two hundred seventy five only) the
same shall be raised to Rs.1275/- (one thousand two
hundred seventy five only) in all cases."
3. Pursuant to the recommendations of Sixth Pay Commission,
the State of Haryana revised the pension scheme of govt. employees as
well as of the retirees before 12.10.2010. The petitioners are also
receiving revised pension. They are aggrieved by the circulars dated
12.10.2010 which has been further clarified/reiterated vide memo dated
18.04.2016. In the aforesaid circular, it has been provided that the
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employees who have retired on or after 01.01.2006 but before the date
of issue of notification dated 12.10.2010, will continue to be governed
by the provisions of the Pension Rules, 1999 as regards to the manner of
calculating the amount of pension payable.
4. Among various recommendations made by the sixth pay
commission, one of the changes which has been accepted by the
Government is to calculate the pension at 50% of the last pay drawn by
the employee, instead of, in accordance with the Rule 9 of the Pension
Rules, 1999 which provides for taking last 10 month's average pay to
work out the amount of pension payable . They claim that the decision
of the State has resulted in discrimination viz a viz the employees who
retired on or after 12.10.2010. They mainly rely upon the judgment
passed by a Five Judges Bench in D.S.Nakara vs. Union of India,
(1983) 1 SCC 305. It has been contended that the pensioners from non-
Government aided colleges form a harmonious group and therefore, the
discrimination in between the pensioners on the basis of cut off date of
retirement is arbitrary and illegal.
5. On the other hand, the State has contested the petition by
submitting that the petitioners and other similarly situated retirees from
non-government aided colleges became entitled to the pension for the
first time as per Pension Rules, 1999. Before the enforcement of the
1999 Rules, all identically situated employees including the petitioners
herein, who had opted for pension, gave their respective undertakings
that the pension shall be calculated at the rate of 50% of the average pay
of the last 10 months. It has further been contended that the scheme for
pension to the retirees of the non-government aided colleges was
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envisaged, based on the employer's share in the Contributory Provident
Fund. It has been further pointed out that the provisions regarding
pension have been made by the State Government after doing all overall
assessment including working out the financial implications involved in
the matter. Therefore, the fixing of pension on basis of 50% of the last
drawn salary for pension is applicable only to those retirees who retire
after issuance of communication dated 12.10.2010, Annexure P-6 . It
may be noted here that the State Government has also taken a stand that
the pension Rules,1999 were introduced in lieu of Contributory
Provident Fund (Employer's Share) so that no additional financial
burden is required to be borne by the State Government. The petitioners
have filed replication.
6. Heard, learned counsel for the parties at length and with
their able assistance, perused the paper book. Learned counsel
representing the petitioners has also forwarded their written arguments
on the official email of the Court, in which the following points have
been taken:-
1. Ministry of HRD, Govt. of India, accepted the
recommendations of UGC to grant pension on pay
last drawn (Pg. 66 Pa (g) of Ann.P-1/A) for teachers
& equivalent cadres in Universities and Colleges.
2. Govt. of Haryana vide meeting dated 27.08.10 (P-4
pg. 90 second last para), recommended that pension
of teachers of private aided colleges be calculated on
basis of pay last drawn, with 28 years qualifying
service.
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3. Finance Deptt. Accepted the recommendation of
Administrative Deptt. (Ann. P-5, Pg-93)
4. As teachers of private aided colleges and that of
Haryana Govt. are discharging same duties, they form
homogenous class, therefore, in terms of notification
dated 17.04.09 (Ann. P-3), issued by government,
which entitles its employees to have pension on pay
last drawn; therefore, principle of parity pitches, in
making teachers of private aided colleges also
eligible for calculation of pension on pay last drawn.
5. Director Technical Education issued a circular on
19.05.10 (Ann. P-3/A), for retirees of aided private
technical institutions of Harayana thereby granting
benefit of calculation of pension on pay last drawn on
the pattern of government notification dated 17.04.09
(Ann.P-3). Instance of implementation of circular
Ann.P-3/A, gets proved from Ann.P-13, Pg.123.
6. Writ petition [Ann.P-8 Pg 101(103)] filed by few
teachers of Haryana Govt. concluded that in terms of
notification of 17.04.09 (P-3), pension is calculated
on the basis of pay last drawn for the employees
retiring from 01.01.2006 onwards. However prayer
for reducing the qualifying service from 33 years to
28 years for teachers who retired between 01.01.2006
to 17.04.09 was dismissed.
7. Vide judgment dated 13.07.16 passed in CWP
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1982 of 2015 [P-12 pg. 116 (121)], prayer made by
teachers of private aided colleges for predating of
impugned executive order dated 12.10.10 (P-6) to
17.04.09, for the purpose of considering qualifying
service of 28 years for pension, instead of 33 years,
as has been done vide notification 17.04.09 (Ann.P-
3) in the case of teachers of Haryana Govt. was
granted and the same has attained finality.
8. Govt. in its reply to present writ petition, in para 5
(Pg 134) has admitted that calculation of pension on
the pay last drawn is being given to the retirees who
retired after issuance of pension revision order
12.10.10 (Ann. P-6) and not to retirees who retired
prior to 12.10.10. Also Ann. P-19 with CM
No.17218-CWP/2019, shows the factum of pension
being paid on pay last drawn.
9. Govt. vide circular dated 7.11.16 made addemdum
to impugned order P-6 by adding para (iv) after para
- I(b) (iii) mentioning therein that for pre 2006
retirees, pensions shall be calculated by taking 50%
of minimum of htep ay in pay band + grade pay in the
corresponding revised pay scale, in terms of Harayan
Civil Service (revised pay) Rules, 2008.
10. Haryana Govt. vide OM dated 08.09.16 (Ann.P-
16 Pg-190) for the retirees, who have retired between
01.01.06 to 30.09.06 has observed that pension for
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such retirees shall not be less than 50% of the sum of
minimum of pay in pay band and grade pay.
11. Haryana Govt. vide notification dt. 11.05.06 (R-1,
Pg -173) has granted dearness allowance to the
teachers of aided affiliated colleges at par with its
employees.
12. All retirees, who have retired during the currency
of any pension scheme, irrespective of their date of
retirement, form homogenous class, giving them
different treatment would amount to invidious
discrimination and hence on the basis of their date of
retirement, no disparity can be made.
Additional arguments
13. The judgment titled as 'Haryana Adhyapak
Sangh Vs. State of Haryana and others', CWP No.
11686 of 2004, is not applicable to the facts of the
present case, as the petitioners therein were seeking
implementation of assured carrier progression
scheme, which is applicable to the government
employees. As have been observed on page no. 18
and thereafter in subsequent part of the judgment,
admittedly, ACP scheme was never implemented
upon the employees of private aided educational
institutions. Further even as per the basic thread of
the ACP scheme, the same was/is always applicable
to the government employees.
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14. In the present case, the pension scheme was
already in vogue and the colleagues of the petitioners
who have retired prior to 01.01.2006, in terms of
Annexure P-15 Page 186, are being given the benefit
of calculation of pension on the basis of 50% of the
pay in the pay band+ grade pay in the corresponding
revised scale in terms of Haryana Civil Services
Revised Pay Rule and even the teachers who have
superannuated are being given pension on the basis
of pay last drawn(Pg 134 of reply and Annexure P-
19).
15. Ratio decidendi of judgment delivered in CWP
No. 1982/2015 {Ann. P-12, page 116(121)}is that
Teachers of private aided colleges are at par with
teachers of government colleges; which has been so
held, while placing reliance upon Dr Karan Singh's
Rathee case, a Division Bench judgment of this
Hon'ble Court.
16.Finance Department of Government of Haryana
(Annexure P-5, Page 93), has accepted the
recommendations for grant of pension and family
pension to the employees of Haryana Aided Colleges
as per recommendations of 6th pay commission w.e.f.
01.01.2006 as applicable to government employees.
7. Per contra, learned counsel representing the respondents
contends that the petitioners are not public servants and therefore, there
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is no master and servant relationship between them and the State
Government as such. She further points out that in order to regulate the
working of non-government aided colleges to a limited extent, the State
has made certain provisions in the Act of 1979. While elaborating, she
submitted that the employees of the non-government private affiliated
colleges became entitled to pension for the first time in the year 1999.
Such employees, before 1999, were not entitled to the pension. She
further pointed out that such pension is payable only on transfer of
employer's share in the contributory provident fund to the State
Government. She further, while taking the Court to the Pension Rules of
1999, submitted that such pension is available only to the employees
who are working against aided sanctioned posts which means the post
for which grant-in-aid is allowed by Higher Education Directorate
Haryana. She further submitted that such employees cannot claim parity
with the public servants. She highlighted that the recruitment as well as
the service conditions of both the sets of employees are different as the
appointment of employees in the non-government aided colleges is not
through Public Service Commission or Haryana Subordinate Selection
Board. She further pointed out that the age of retirement in case of
teachers in Private Aided Colleges is 60 years whereas it is 58 years in
case of Government employees. Still further Government employees are
subject to transfer throughout the State whereas the employees of
private aided colleges are ordinarily non-transferable. She further
pointed out that Government keeping in view the financial implications
has taken a conscious decision on two different occasions; first in the
year 2010 when instructions dated 12.10.2010 were issued and
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thereafter, in the year 2016 when the Government, after considering all
aspects of the matter, took a conscious decision to extend the benefit of
manner of calculation of pension only to the retirees who retired on or
after 12.10.2010 and not to the retirees who retired prior thereto. Hence,
she prayed for dismissal of the writ petition.
8. Before this Bench proceeds to analyze and evaluate the
respective contentions of both the parties, it would be appropriate to
notice the case law on the subject-matter. The mainstay of argument of
the learned counsel representing the petitioners is on judgment of the
Five Judges Bench in D.S.Nakara's case (supra). In the aforesaid case,
no doubt the Hon'ble Supreme Court held that the pensioners form a
uniform group and their micro division would not be appropriate.
However, thereafter, in various other judgments the matter has been
explained further. In Tamil Nadu Electricity Board vs. R.V. Sami
(1999) 3 SCC 414, the Hon'ble Supreme Court held that the cut off date
for grant of pension with respect to retirees on or after 01.07.1986 is
valid. In State of Punjab vs. Amarnath Goyal, (2005) 6 SCC 754/784, it
has been held that the decision of the Government to give revised death-
cum-retirement gratuity to the employees who retired or died on or after
01.01.1995 is valid. The judgments passed by the High Courts were
reversed in both the cases. Still further, in Government of Andhra
Pradesh vs. N.Subbarayudu (2008) 14 SCC 702, the cut off date for
grant of pension was upheld with the following discussion.
"6. No doubt in D.S. Nakara v. Union of
India [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] this
Court had struck down the cut-off date in connection
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with the demand of pension. However, in subsequent
decisions this Court has considerably watered down
the rigid view taken in Nakara case [(1983) 1 SCC
305 : 1983 SCC (L&S) 145] as observed in para 29
of the decision of this Court in State of
Punjab v. Amar Nath Goyal [(2005) 6 SCC 754 :
2005 SCC (L&S) 910] .
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 v. Ramjee Prasad [(1990) 3 SCC 368 : 1991
SCC (L&S) 51] , Union of India v. Sudhir Kumar
Jaiswal [(1994) 4 SCC 212 : 1994 SCC (L&S) 925 :
(1994) 27 ATC 561] (vide SCC para
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5), Ramrao v. All India Backward Class Bank
Employees Welfare Assn. [(2004) 2 SCC 76 : 2004
SCC (L&S) 337] (vide SCC para 31), University
Grants Commission v. Sadhana Chaudhary [(1996)
10 SCC 536 : 1996 SCC (L&S) 1431] , 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. Still further, in State of Rajasthan vs. Amrit Lal Gandhi,
the cut off date for introducing pension scheme was upheld on the
ground that the State is well within its right to decide the cut off date on
the basis of its paying capacity. Then, there are two recent decisions.
Learned counsel representing the petitioners relies on 2020 (14) SCC
625 (All Manipur Pensioners Association vs. State of Manipur) in
which a Division Bench after relying upon D.S.Nakara (supra) held that
the cut off date for grant of revised pension is arbitrary. However, the
same Hon'ble Judge authored another judgment in Himchal Road
Transport Corporation vs. Himachal Road Transport Retired
Employees Union 2021 SCC Online SC 127 in which it has been
declared that the Government is well within its right to prescribe a cut
off date while reversing the judgment of the High Court.
10. Keeping in view the aforesaid position, the question which
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arises is 'whether the cut off date prescribed by the Government for
prescribing the method of calculation of the pension from the date of
issuance of instructions i.e 12.10.2010 is correct or not'?
11. With regard to the first argument of the learned counsel
representing the petitioner, it may be noted that acceptance of the
recommendations of University Grants Commission by the Ministry of
Human Resource Development, Government of India, does not confer
any right on the petitioners to claim that the method of calculation of
pension should only be on the basis of the last pay drawn. It may be
binding on the Central Government, however, it does not bind the State.
12. With regard to the second argument, it may be noted that the
Government has ultimately taken a conscious decision to adopt a cut off
date. Hence, the recommendations cannot supersede the final decision.
Similar is the position with regard to next argument under clause 3.
13. As regards the contention no. 4, it may be noted that the
teachers of the private aided colleges cannot claim parity with
Government employees. Their service conditions as well as method of
recruitment are different. The teachers of private aided colleges hold
non-transferrable posts and their age of retirement is 60 years whereas it
is 58 years in case of Government employees and they are subject to
transfer throughout the State. Still further, the teachers of private aided
colleges do not have the protection as provided under Article 311 of the
Constitution of India whereas it is applicable to the Government
employees. Still further, this Bench while deciding the case of teachers
and employees in privately aided colleges/schools in CWP-11686-2004
titled as 'Haryana State Adhyapak Sangh vs. State of Haryana and
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others decided on 05.05.2021 held that the employees falling in both
these categories are different and they do not form a homogenous class.
14. With reference to argument no.6, it may be noted that the
final decision has been taken by the Government and therefore, any
circular issued prior thereto gets superseded.
15. With regard to argument no.6, it may be noted that the
Hon'ble Division Bench has dismissed the writ petition of the
petitioners who had claimed the benefit of full pension on completion of
28 years of service. Whereas, as per revised Pension Rules 2009, which
came into effect on 17.04.2009, the employees were held entitled to full
pension on completion of 33 years of their qualifying service. In other
words, the cut off date prescribed by the Government was upheld.
16. As regards argument noted under item no.7, it may be
noted that in the aforesaid case, the petitioners have claimed parity with
the Government employees for the purpose of entitlement of full
pension on completion of 28 years service. The petitioners in the
aforesaid writ petition had retired between 30.09.2009 to 31.07.2010.
Still further, with utmost regard, the attention of the Bench was not
drawn to the various judgments of the Hon'ble Supreme Court which
have been noticed above. Still further, the issue which needs
adjudication in the present case is different.
17. With regard to first two arguments under item no.9, it may
be noted that Annexure P-15 is a communication dated 07.11.2016 vide
which the Principal Secretary to the Government of Haryana, has issued
clarification on a number of questions received. From the reading of the
aforesaid communication, it is not possible to conclude that the
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Government has changed its stand or has taken conscious decision to
grant the benefit of calculation of pension at 50% of the last pay drawn
instead of the previous method of calculating 50% of the average pay of
last 10 months. Similar is the position with regard to document
Annexure P-11 referred to in contention no.10. With reference to the
argument of grant of dearness allowance to teachers of aided affiliated
colleges by the Government, it may noted that it is a decision of the
Government and the petitioners herein are not claiming Dearness
Allowance. On the basis of the decision dated 11.05.2006, it is not
possible to conclude that the teachers of the aided affiliated colleges
have been brought at par with Government employees for all purposes.
As regards, argument under item no.12 it may be noted that a cut off
date has been adopted for the purpose of method of calculation of
pension. For the same purpose, the retirees before the communication
dated 12.10.2010, Annexure P-6, do not form a homogenous class with
retirees on or after 12.10.2010 has been held by the Hon'ble Supreme
Court in the judgments referred to above.
18. In the additional submissions, learned counsel has tried to
distinguish the judgment passed in Haryana State Adhyapak Sangh's
case (supra). It may be noted here that the aforesaid judgment is on a
different issue, therefore the argument of the learned counsel for the
petitioners in additional submission is correct, however, that itself does
not result in accepting the plea of the petitioners.
19. In the next submission, learned counsel has made a
reference to various documents have been placed on file as Annexure P-
19, wherein the pension has been calculated. Such communications do
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not result in superseding a conscious decision of the Government.
20. Next argument is again with reference to judgment
Annexure P-12, which has already been examined.
21. With regard to the last submission, it may be noted that no
doubt the Government of Haryana has accepted the recommendation for
grant of pension and family pension to the employees of Non
Government Aided Colleges, however, the Government has in its own
wisdom has decided to provide a cut off date for the purpose of method
of calculation of pension. The Government in reply has taken a stand
that such decision has to be taken in view of the financial implications
involved. The Hon'ble Supreme Court has already held that financial
implications is a good ground to provide for cut off date.
22. Still further, as noticed above, the employees of the private
aided colleges was for the first time provided pension in the year 2009.
The Government extended this concession in order to grant benefit to
the employees. In absence of the 1999 Rules, the petitioners and the
other identically situated employee would not have been entitled to
pension at all. The petitioners are not the employees of Government.
They are entitled to pension only on account of the Rules framed. In the
year 1999, the Government made calculations on the basis of amount
available towards employer's share in the Contributory Provident Fund
before notifying the Pension Rules, 1999. Hence, the petitioners cannot
claim the benefit beyond the provisions of the Rules.
23. Still further the decision of the Government falls in the
domain of the policy decision and unless it proved to be arbitrary or
whimsical, the court in exercise of its power of judicial review is not
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expected to interfere.
24. Keeping in view the aforesaid discussion, no ground to
issue the writ, as prayed for, is made out.
25. Hence, dismissed.
25.05.2021 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned Yes /No
Whether Reportable Yes / No
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