Rajasthan High Court

Arjun Choudhary Andors vs State Of Raj And Ors on 4 February, 2023

Bench: Anoop Kumar Dhand

[2023/RJJP/000254]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 10139/2007
1) Rajasthan Pradushan Niyantran Mandal Karmchari Sangh
(Rajasthan Pollution Control Board Employees Association), 4
Paryavaran Marg, Jhalana Doongari Institutional Area Jaipur,
through its Convener Shri Giriraj Sharma S/o Shri Damodar Lal
Sharma, aged around 45 years.
2) Rajasthan Pollution Control Board Officers Association, 4
Paryavaran Marg, Jhalana Doongari Institutional Area Jaipur,
through its Secretary Shri R.K. Pareek S/o Shri Ramesh Kumar
Pareek.
                                                                     ----Petitioners
                                      Versus
1) Rajasthan State Pollution Control Board through its Chairman,
4 Paryavaran Marg, Jhalana Doongari Institutional Area Jaipur.
2)   State    of     Rajasthan      through       Secretary,       Department    of
Environment,          Government            of      Rajasthan,        Government
Secretariat, Jaipur.
                                                                   ----Respondents

Connected With

S.B. Civil Writ Petition No. 4105/2006

Narayan Lal Sharma S/o Shri J.R. Sharma, aged about 58 years, R/o B-6, Sitarampuri, Heeda Ki Mori, Ramganj, Jaipur.

----Petitioner Versus

1) The Rajasthan State Pollution Control Board, 4, Institutional Area, Jhalana Dungari, Jaipur.

2) The State Of Rajasthan, through Secretary, Environment Department, Govt. Secretariat, Jaipur.

----Respondents

S.B. Civil Writ Petition No. 9221/2006

Dr. Suresh Kumar Bhargava S/o Late Shri P.L. Bhargava, aged about 58 years, R/o 18, Shakti Nagar, Gopalpura Bye-pass, Jaipur.

----Petitioner Versus

[2023/RJJP/000254] (2 of 23) [CW-10139/2007]

1) The Rajasthan State Pollution Control Board, 4 Institutional Area, Jhalana Dungari, Jaipur.

2) The State Of Rajasthan thorugh Secretary, Environment Department, Government Secretariat, Jaipur.

----Respondents

S.B. Civil Writ Petition No. 2662/2007 Mukut Behari Mathur, Son of Shri R.C. Mathur, aged about 58 years, R/o 728, Mishraji Ka Rasta, Indra Bazar, Jaipur.

----Petitioner Versus

1) State of Rajasthan through Principal Secretary, Department of Environment, Government of Rajasthan, S.S.O. Building, Secretariat, Jaipur.

2) Rajasthan State Pollution Control Board, 4 Institutional Area, Jhalana Doongri, Jaipur through its Member-Secretary.

----Respondents

S.B. Civil Writ Petition No. 8488/2007 Dr. Ashok Kumar Maheshwari S/o Late Shri Laxmi Narain Maheshwari, resident of 124, Shanker Colony, Naya Kheda, Ambabadi, Jaipur, Rajasthan.

1.1 Aruna Maheshwari wife of late Dr. Ashok Kumar Maheshwari, Aged about 60 years, resident of 124, Shanker Colony, Naya Kheda, Ambabadi, Jaipur, Rajasthan.

1.2 Dhanesh Maheshwari S/o late Dr. Ashok Kumar Maheshwari, Aged about 39 years, resident of 124, Shanker Colony, Naya Kheda, Ambabadi, Jaipur, Rajasthan.

----Petitioners Versus

1. State of Rajasthan through Principal Secretary, Department of Environment, Government of Rajasthan, S.S.O. Building, Secretariat, Jaipur, Rajasthan.

2. Rajasthan State Pollution Control Board, 4 Institutional Area, Jhalana Doongri, Jaipur through its Present Member Secretary.

3. Shri Virendra Sing, I.F.S. Ex-Member-Secretary, Rajasthan State Pollution Control Board.

[2023/RJJP/000254] (3 of 23) [CW-10139/2007]

----Respondents

S.B. Civil Writ Petition No. 9838/2007

Smt. Tarawati Sharma W/o Late Shri P.D. Sharma, aged about 57 years, resident of A-7, Radha Krishna Nagar, Imaliwala Phatak, Jaipur.

----Petitioner Versus

1) Rajasthan State Pollution Control Board, 4, Institutional Area, Jhalana Doongri, Jaipur thorugh its Member-Secretary.

2) Chairman, Rajasthan State Pollution Control Board, 4, Institutional Area, Jhalana Doongri, Jaipur.

3) State Of Rajasthan thorugh O.S.D. & Additional Secretary, Environment Department, Government Of Rajasthan, Jaipur.

----Respondents

S.B. Civil Writ Petition No. 6850/2016

1) Arjun Choudhary, S/o Late Shri Gogaraj Choudhary, aged 59 years & 08 months, R/o Plot no. 65, Soni Colony, Kalward Road, Jhotwara, Jaipur.

2) Mukesh Bihari Sharma, S/o Late Shri Kunj Bihari Sharma, aged 59 years & 07 months, R/o B-14, Near Vaishali Nagar Police Station, Vaishali Nagar, Jaipur.

3) Bhagwan Swaroop Sharma, S/o T.R. Sharma, aged 59 years & 06 months, R/o 129, Surya Nagar, Gopalpura Byepass, Jaipur.

4) Shyam Babu Khandelwal, S/o Shri L.R. Khandelwal, aged 59 years & 08 months, R/o 5/41, New Housing Board, Alwar (Raj.).

----Petitioners Versus

1) State Of Rajasthan through Secretary, Department of Environment, Government Of Rajasthan, Jaipur.

2) Rajasthan State Pollution Control Board through its Chairman, 4, Paryavaran Marg, Jhalana Doongri, Institutional Area, Jaipur.

----Respondents

For Petitioner(s) : Mr. R.N. Mathur, Sr. Advocate with Mr. Prateek Mathur, Adv.

Mr. Mahendra Shah, Sr. Advocate with

[2023/RJJP/000254] (4 of 23) [CW-10139/2007]

Ms. Sarah Sharma Mr. Navin Chandra Mishra, Adv.

Mr. Utkarsh Dubey, Adv.

Ms. Ashish Joshi, Adv.

Ms. Mamta, Adv.

Mr. Jai Kumar, Adv.

Ms. Anjum Praveen, Adv.

Ms. Sejal Sharma, Adv.

Mr. Siddharth Lamour, Adv.

For Respondent(s) : Major RP Singh, (Sr. Advocate) AAG with Mr. Jai Vardhan Singh Shekhawat, Adv.

Mr. Lakshay Dadhich, Adv.

Mr. Akhil Simlote, Adv.



         HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Reserved on                             :                        20/01/2023
Pronounced on                           :                        04/02/2023

Reportable
                                Judgment

All these writ petitions in the bunch of cases, are involving

identical questions of law and are based on same set of facts.

Therefore, with the consent of the learned counsels, the matters

are taken up for final disposal.

S.B. Civil Writ Petition No. 10139/2007 is taken up as the lead

case, for deciding all these connected petitions.

(1) The issues involved in these petitions are :

(i) Whether Rajasthan State Pollution Control Board Employees Pension Regulations, 1994 (for short "the Regulations 1994") can be given effect without its publication in the Official Gazette?

(ii) Whether the court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications?

[2023/RJJP/000254] (5 of 23) [CW-10139/2007]

(2) Before answering the above issues, it is necessary to

quote the prayer made in S.B. Civil Writ Petition No. 10139/2007,

which reads as under :-

"It is, therefore, prayed that the respondent-Board may be directed to produce the entire record related to pension scheme for the employees of the Rajasthan State Pollution Control Board. After perusal of the complete record, pleadings and submissions, a writ of mandamus or any other appropriate writ, order or direction may be issued in the following nature :-

"(i) That a writ of mandamus be issued to the respondents that the Rajasthan State Pollution Control Board Pension Regulations of 1994 may be given effect to since 27/9/1994.

(ii) That the respondents may be directed to implement the pension scheme for the employees of the Board and to give them benefit of the pension scheme w.e.f. the date it came into existence.

(iii) That a direction may be issued that the guidelines of the State Government in the letter dated 17/12/1994 is not applicable in the Rajasthan State Pollution Control Board.

(iv) Cost of the petition be awarded in favour of the petitioners.""

(3) Brief facts of the case are that in exercise of the powers

conferred by Section 12(3A) of the Water (Prevention and Control

of Pollution) Act, 1974 (for short "the Act 1974"), the Rajasthan

State Pollution Control Board (for short "the Board") made Pension

Regulations 1994 for benefit of Pension and General Provident

Fund (for short "GPF") of its employees and send the same for its

approval from the State. Thereafter, the Additional Secretary,

Department of Environment, Government of Rajasthan granted its

approval to these Regulations,1994 vide letter dated 27.09.1994

and directed the Board to get these Regulations published in

Official Gazette at its own level.

(4) When the Regulations,1994 were not published in the

Official Gazette, some correspondence were done between the

departments, and on 06.04.1999 the Secretary Department of

State Enterprises wrote a letter directing Chief Executives of all

[2023/RJJP/000254] (6 of 23) [CW-10139/2007]

State Public Enterprises that the guidelines issued vide Office

Circular letter No. F.2(4)BPE/89/2628 dated 22.08.1989 and

17.12.1994 regarding Introduction of Pension Scheme for the

employees of public enterprises in lieu of CPF benefits, stands

withdrawn with immediate effect.

(5) On 25.08.2006, the petitioner Association sent a notice

for demand of justice to the respondents and requested them for

taking the requisite steps for constituting the Pension Fund by

transferring the amount lying in the Provident Fund and pass

necessary orders. The Board sent its reply to the petitioner that

this matter of Pension Regulations,1994 is subjudice before this

Court in S.B. Civil Writ Petition No. 4105/2006 titled as Narayan

Lal Sharma v. R.S.P.C.B., and other petitions.

(6) Feeling aggrieved and dissatisfied by the inaction of the

respondents, the petitioners have approached this court for

redressal of their grievances and for giving effect to the Pension

Regulations,1994 w.e.f. 27.09.1994 and for giving benefits of the

pension scheme to the employees of the Board.

(7) Leaned senior counsel for the petitioners

Mr. R.N. Mathur, submitted that when once approval was given by

the State to the Pension Regulations,1994 on 27.09.1994, there

is/was no need for its publication in the Official Gazette as per

Section 12(3A) of the Act of 1974. Counsel submitted that after

getting approval from the State, then Regulations,1994 were not

required to be published in the Official Gazette of the Government

of Rajasthan as per the provisions of the General Clauses Act.

[2023/RJJP/000254] (7 of 23) [CW-10139/2007]

Counsel submitted that the State has power to make Rules under

Section 64 of the Act of 1974, and the Board had made the

Regulations,1994.

(8) Learned counsel submitted that the impugned order

dated 06.04.1999 is not applicable on the Board because the

Board is not a State Public Enterprises but the same is an

Autonomous Body. Counsel submitted that this letter/order to

Bureau of Public Enterprises and the benefits of Pension Scheme

of the employees of these public enterprises in lieu of CPF

benefits, was withdrawn. Counsel submitted that respondent

State has issued a list of Public Sector Undertakings (for short

"PSU") under the perview of Bureau of Public Enterprises (for

short "BPE"). Counsel submitted that the respondent Board does

not fall within the purview of these BPE or PSU.

(9) Counsel submitted that when the Board has sufficient

funds to arrange the amount of pension and when the Board is

ready to bear the burden of payment of pensionary benefits to its

employees, then there is/was no occasion available with the

respondent/State to deprive the employees to get the benefit of

the Pension Regulations, 1994.

(10) Counsel submitted that several discussions were made

by the officers of the Board and State to finalize these Pension

Regulations,1994 and after detailed discussions, the final approval

was granted to implement these Regulations after its publication

in the State Gazette. Counsel submitted that if these Regulations

are not published in the Gazette by the State, then the employees

[2023/RJJP/000254] (8 of 23) [CW-10139/2007]

of the Board cannot be allowed to suffer and they cannot be

deprived from getting these benefits.

(11) Counsel submitted that vide letter dated 06.04.1999,

the State has withdrawn only the guidelines with regard to

Pension Scheme in BPE but the approval granted to the Board was

never withdrawn. Hence, the respondents be directed to

implement the Pension Regulations,1994 w.e.f. 27.09.1994 and

implement the Pension Scheme for the employees of the Board.

In support of his contention he has placed reliance on the Division

Bench order of this court passed in the case of R.K. Pareek v.

State of Rajasthan [D.B. Special Appeal (Writ) No. 1048/2002

decided on 14.07.2015].

(12) The counsel for respondent Board has supported the

arguments raised by the counsel for the petitioners and further

submitted that as per clause (1) of the Regulations,1994, these

Regulations came into force from the date on which the State

Government of Rajasthan accorded its approval. Counsel

submitted that the approval was granted by the State vide its

letter dated 27.09.1994, hence the Regulations were not required

to be published in the Official Gazette of the State. Counsel

submitted that the matter was re-examined by the Board as per

the directions issued by the State and it was resolved by the

Board that the Board is not a BPE or PSU and the Board has

sufficient funds to pay pension to its employees. And again a

letter was sent to Secretary to the Department of Pollution,

Government of Rajasthan to enforce the Regulations,1994.

[2023/RJJP/000254] (9 of 23) [CW-10139/2007]

(13) Per contra, learned senior counsel Major R.P. Singh,

Additional Advocate General, opposed the arguments raised by the

counsel for the petitioners. Counsel submitted that merely

because the Board has funds with itself, it cannot be a ground to

extend the benefits. He submitted that grant of pensionary

benefits is not a one-time payment. Grant of pensionary benefits

is a recurring monthly liability in future towards the pensionary

benefits. He submitted that the Board might have certain funds,

but it does not mean that for all times to come it can bear such

burden of paying pension to all its employees. He submitted that

it is necessary for the State to take their own policy decision,

hence interference of this court is not warranted in the

administrative decision of the State.

(14) Learned counsel submitted that a Government Order

becomes a Notification when it is published in the Gazette by its

proper authority. Counsel submits that mere approval to the

Regulations,1994 by the State Government is not enough and

sufficient unless and until these Regulations are duly notified or

published in the Official Gazette of the State Government.

Counsel submitted that till date, these Regulations have not been

published in the Gazette, hence it has no legal value in the eyes of

law.

(15) Learned counsel submitted that right to get pension is

not a fundamental right, but the same is a contingent right.

Counsel submitted that non-implementation of Pension

Regulations,1994 is a policy and administrative decision of the

Government and the same has not violated any fundamental right

[2023/RJJP/000254] (10 of 23) [CW-10139/2007]

of the petitioners, hence interference of this court is not

warranted. In support of his contentions, the learned counsel has

placed reliance on the following judgments :-

       (i)     Bhikam Chand & Ors v. State & Ors
               AIR 1966 Raj 142

       (ii)    I.T.C. Bhadrachalam Paperboards & Anr v. Mandal Revenue
               Officer, A.P. & Ors
               (1996) 6 SCC 634

(iii) Rajasthan State Industrial Development And Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur & Ors (2013) 5 SCC 427

(iv) State of Orissa & Ors v. Gopinath Dash & Ors (2005) 13 SCC 495

(v) State of Himachal Pradesh & Ors v. Rajesh Chander Sood & Ors (2016) 10 SCC 77

(vi) State of Maharashtra & Anr v. Bhagwan & Ors (2022) 4 SCC 193

(16) Heard learned counsel for the parties and perused the

material available on the record.

(17) The undisputed fact is, that in exercise of the powers

conferred by Section 12(3A) of the Act of 1974, the Board has

made Pension Regulations,1994 for the benefit of Pension and GPF

to its employees. This fact is not disputed that vide letter dated

27.09.1994 the Department of Environment, Government of

Rajasthan granted approval to the Regulations,1994 and directed

the Board to get these Regulations published in Official Gazette of

the State Government. This fact is also not in dispute that the

respondent Board has been constituted under Section 4 of the Act

of 1974. Hence, the Board falls within the definition of "State"

under Article 12 of the Constitution of India, that is why these writ

petitions have been filed before this court by invoking the extra

[2023/RJJP/000254] (11 of 23) [CW-10139/2007]

ordinary jurisdiction of this court contained in Article 226 of the

Constitution of India.

(18) As per Section 12(3A) of the Act of 1974, the method

of recruitment and the terms and conditions of service of the

officers and other employees of the Central Board or a State

Board shall be such as may be determined by regulations made by

the Central Board, or as the case may be, by the State Board:

Provided that no regulation made under this sub-

section shall take effect unless -

"(a) in the case of a regulation made by the Central Board, it is approved by the Central Government; and

(b) in the case of a regulation made by a State Board, it is approved by the State Government."

(19) Section 5 of the Rajasthan General Clauses Act, 1955

(for short "Act of 1955") provides as under :-

"5. Coming into operation of Rajasthan laws.-(1) Where any Rajasthan law made after the [first day of November, 1956] is not expressed to come into operation on a particular day, then it shall come into operation-

(a) if it is an Act of the State Legislative Assembly, on the day on which the assent thereto of the [Governor] or the President, as the case may require, is first published in the Rajasthan Gazette, and

(b) if it is an Act or Ordinance of the [Governor] or the President, on the day on which it is first published as such Act or Ordinance in the Rajasthan Gazette.

(2) Unless the contrary is expressed, a Rajasthan Law shall be construed as coming into operation immediately on the expiration of the day preceding its commencement."

(20) The Regulations 1994 have to be considered in the light

of the statutory dictionary of words provided by the Rajasthan

General Clauses Act. These Regulations would not get the

[2023/RJJP/000254] (12 of 23) [CW-10139/2007]

statutory force unless the same are published in the Gazette. A

Regulation, in law, becomes a Notification when it fulfills two

requisite conditions :-

(i) its publication in the gazette, and

(ii) its publication under proper authority.

These conditions can be fulfilled only when the notification is

published and not when it is drafted and approved in the

Secretariat, hidden from public-gazette, but when the date is put

by the Government.

(21) When Section 12(3A)(b) of the Act 1974 lays down the

manner in which the Regulation under the Act should be made, it

shall have to be made in that manner. Until the Regulation is

published in the Official Gazette, the Regulation would be

considered as still being in the process of being made, even if it

had got approval by the State Government.

(22) In Harla v. State of Rajasthan AIR 1951 SC 467,

Hon'ble Apex Court while dealing with vires of the Jaipur Opium

Act, which was enacted by a resolution passed by the Council of

Ministers, though never published in the Gazette, the court had

observed in paras 8 and 11 as under :-

"8. ...Natural justice requires that before a law can become operative, it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilized man.

              9.     xxxx          xxxx          xxxx
              10.    xxxx          xxxx          xxxx

11. The principle underlying this question has been judicially considered in England. For example, on a

[2023/RJJP/000254] (13 of 23) [CW-10139/2007]

somewhat lower plane, it was held in Jhonson v. Sargant (1918) 1 K. B. 101 : 87 L. J. K. B. 122 that an order of the Food Controller under the Beans, Peas, and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in our country may not necessarily be the best in another. But reasonable publication of some sort there must be."

23. In the case of B.K. Srinivasan & Ors v. State of

Karnataka & Ors (1987) 1 SCC 658, the Hon'ble Supreme Court

has held that the mode of publication must be prescribed by the

statute. In the event the statute does not contain any prescription

and even under the subordinate legislation there is silence in the

matter, the legislation will take effect only when it is published

through the customarily recognized official channel namely, the

Official Gazette. In this case Hon'ble Apex Court explained why

publication in the Official Gazette is necessary and mandatory in

regard to subordinate legislation and held in para 15 as under :-

"15. There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'unconscientious bad man' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated and subordinate legislation is all-pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order

[2023/RJJP/000254] (14 of 23) [CW-10139/2007]

to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed..."

(24) Again in the case of Rajendra Agricultural University v.

Ashok Kumar Prasad & Ors (2010) 1 SCC 730, the Hon'ble Apex

Court has held that no statute became enforceable in absence of

its publication in the Official Gazette. In paras 26 and 27 it has

been held as under :-

"26. In view of the above, it is not possible to accept the contention that the Statute contained in the Notification dated 4-9-1991 came into effect or became enforceable even in the absence of publication in the Official Gazette. The High Court committed an error in holding that the teachers became entitled to the benefit of the Statute relating to time-bound promotion scheme, when the said Statute made by the Board of Management was assented to by the Chancellor even though it was not published in the gazette. The High Court also committed an error in observing that the non-publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete Statute, in his Order dated 19-3-1996.

27. We therefore allow these appeals, set aside the order of the High Court and dismiss the writ petitions filed by the respondents before the High Court."

(25) In view of the settled proposition of law as laid down by

Hon'ble Apex Court in the above referred judgment, it is held that

the Pension Regulations 1994 did not come into effect as it was

not published in the Official Gazette and, therefore, no right would

be claimed on the basis of such unpublished Regulations.

(26) Now this court proceeds to decide the next issue -

"whether the court should refrain from interfering with the policy

decision of the State Government for not publishing the Pension

Regulations in the Official Gazette. It is worthy to note here that

Pension Regulations 1994 were framed by the Board for the

benefit of Pension and GPF to its employees and on 27.09.1994

[2023/RJJP/000254] (15 of 23) [CW-10139/2007]

the Additional Secretary, Department of Environment, Government

of Rajasthan approved the above Regulations and directed the

Board to get these Regulations published in the Official Gazette at

its own level. But these Regulations were not published in the

Official Gazette and on 06.04.1999, Secretary of the State

Enterprises Department directed all the Executives of all State

Public Enterprises that introduction of Pension Scheme for the

employees of Public Enterprises in lieu of CPF benefits stands

withdrawn with immediate effect. As per the counsel for the

petitioner, "the Board" does not fall within the definition of BPE or

PSU, hence their order dated 06.04.1999 is not applicable upon

the employees of the Board. As per the counsel for the petitioner,

the Board is an autonomous body having its own funds to bear the

burden of payment of Pension to its employees. Counsel

submitted that Deputy Director, Department of Environment had

no authority to take a decision dated 31.05.2000 directing the

Member-Secretary of the Board that Pension Regulations could not

be enforced.

(27) Merely because the Board has funds with itself, it

cannot be a ground to extend the pensionary benefits. Grant of

pensionary benefits is not a one-time payment. Grant of

pensionary benefits is a recurring monthly expenditure and is a

continuous liability in future towards the pensionary benefits.

Therefore, merely because at one point of time, Board might have

certain funds, does not mean that for all times to come it can bear

such burden of paying pension to all its employees. In any case,

it is ultimately for the State Government to take its own policy

[2023/RJJP/000254] (16 of 23) [CW-10139/2007]

decision whether to extend the pensionary benefits or not. The

interference by the judiciary in such a policy decision having

financial implications and / or having a cascading effect, is not at

all warranted and justified.

(28) The similar issue came before the Hon'ble Apex Court in

the case of The State of Maharashtra and Ors. v. Bhagwan and

Ors. (supra), and the controversy was decided in paras 23 to 33

as under :-

"23. In view of the above factual scenario, the question posed is :

"whether the employees of WALMI, which is an independent autonomous entity registered under the Societies Registration Act, are entitled to the pensionary benefits on a par with the State Government employees?

24. While answering the aforesaid question, few decisions of this Court on the inference of the Courts in the policy decision having financial implications and whether the employees of the board/societies, who are autonomous bodies can claim parity in the pay-scale and/or other benefits which may be available to the Government employees, are required to be considered.

25. In T.M. Sampath v. Ministry of Water Resources, the employees of National Water Development Agency (NWDA), an autonomous body under the aegis and control of the Ministry of Water Resources claimed the pensionary benefits on a par with the Central Government employees. Refusing to allow such pensionary benefits to the employees of NWDA on a par with the Central Government employees, in paragraphs 16 and 17, it was observed and held as under:

"16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the OM i.e. 1-5-1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State Under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649], it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression "State" and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government Under Sub-rule (6)(iv) of Rule 209 of the General

[2023/RJJP/000254] (17 of 23) [CW-10139/2007]

Financial Rules, merely on the basis of funding is not applicable.

17. Even if it is presumed that NWDA is "State" Under Article 12 of the Constitution, the Appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in State (UT of Chandigarh) v. Krishan Bhandari (1996) 11 SCC 348], the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State Under Article 12. Thus, the employees of NWDA cannot be said to be "Central Government employees" as stated in the OM for its applicability."

26. As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on a par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on a par.

27. In Punjab State Cooperative Milk Producers Federation Limited v. Balbir Kumar Walia (2021) 8 SCC 784, in paragraph 32, it is observed as under:

"32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State."

28. As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.

29. In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the

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employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.

30. The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.

31. Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employee's contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.

32. In view of the above discussion and for the reasons stated, the impugned common judgment and order passed by the High Court directing the State to extend the pensionary benefits to the employees of WALMI is unsustainable, both in law and on facts. Accordingly, the impugned common judgment and order passed by the High Court deserves to be quashed and set aside and is accordingly quashed and set aside. It is held that the

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employees of WALMI, which is an independent autonomous body registered under the Societies Act are not entitled to the pensionary benefits.

33. All these appeals are accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. Pending application(s), if any, also stands disposed of."

(29) The seeds of the right to receive pension, emerge from

the very day an employee enters a pensionable service. Here in

this case, there is / was no provision of grant of pension for the

employees of the Board when they entered into the Board's

services. Hence, they have no right to claim benefit of pension as

a fundamental right. So, unless or until any fundamental right of

the petitioners has been violated, they cannot be allowed to

challenge the action or the policy decision of the State /

Respondent for not granting pensionary benefits to the petitioner /

employees.

(30) It is noteworthy to mention here that in the case of

State of Himachal Pradesh and Ors. v. Rajesh Chander Sood and

Ors (2016) 10 SCC 77, the similar situation came before the

Hon'ble Apex Court where Pension Scheme was introduced by the

Government for the employees of the independent Co-operative

Bodies and later on it was realized by the Government that the

Scheme is not viable financially and the same was withdrawn, and

such stand of the Government was not upheld by the Hon'ble Apex

Court by recording the findings in paras 92 and 93 as under :-

"92. We shall now consider, whether the State Government which had introduced the 1999 Scheme, had the right to repeal the same. In answering the above issue, it needs to be consciously kept in mind, that the employees of corporate bodies, who were extended the benefits of the 1999 Scheme, as already noticed above, were not employees of the State Government. The 1999 Scheme was, therefore, just a welfare scheme introduced by the State Government, with the object of ameliorating the financial condition of employees, who had rendered

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valuable service in State-owned corporations. In order to logically appreciate the query posed, we may illustratively take into consideration a situation, wherein an organization similar to the one in which the Respondent employees were engaged, suffered such financial losses, as would make the sustenance of the organization itself, unviable. Can the employees of such an organization, raise a claim in law, that the corporate body be not wound up, despite its financial unworkability? Just because the resultant effect would be that they would lose their jobs. The answer to the above query has to be in the negative. The sustenance of the organization itself, is of paramount importance. The claim of employees who have been engaged by the organization, to run the activities of the organization, is of secondary importance. If an organization does not remain financially viable, the same cannot be required to remain functional, only for the reason that its employees, are not adversely impacted. When and how a decision to wind up an organization is to be taken, is a policy decision. The decision to wind up a corporation may be based on several factors, including the nature of activities rendered by it. In a given organization, sometimes small losses may be sufficient to order its closure, as its activities may have no vital bearing on the residents of the State. Where, an organization is raised to support activities on which a large number of people in the State are dependent, the same may have to be sustained, despite the fact that there are substantial losses. The situations are unlimited. Each situation has to be regulated administratively, in terms of the policy of the State Government. Whether a corporate body can no longer be sustained, because its activities are no longer workable, practicable, useable, or effective, either for the State itself, or for the welfare of the residents of the State, is for the State Government to decide. Similarly, when and how much, is to be paid as wages (or allowances) to employees of an organization, is also a policy decision. So also, post-retiral benefits. All these issues fall in the realm of executive determination. No Court has any role therein. For the reasons recorded hereinabove, in our considered view, the conditions of service including wages, allowances and post-retiral benefits of employees of corporate bodies, will necessarily have to be determined administratively, on the basis of relevant factors. Financial viability, is an important factor, in such consideration. In the facts and circumstances of the present case, it is not possible for us to accept, the contention advanced on behalf of the respondent- employees, that the State Government should provide financial support for sustaining the 1999 Scheme, at least for such of the employees, who were engaged on or before the date of issuance of the repeal Notification (2-12-2004). We would like to conclude the instant submission by recording, that the respondent-employees have not been able to make out a case, that the Notification dated 2-12-.2004, repealing the 1999 Scheme, was in any manner, capricious, arbitrary, illegal or uninformed, and as such, we would further conclude, that the respondent employees cannot be considered as being entitled, to any relief, through judicial process.

93. Having recorded our aforesaid conclusion, it is not necessary for us to examine the submissions advanced at

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the hands of the respondent-employees, that the action of the State Government, in issuing the Repeal Notification dated 2-12-2004, would violate Article 21 of the Constitution of India. All the same, since the contention was raised, we consider it just and appropriate, to examine and deal with the same. The contention advanced on behalf of the respondent- employees was, that the fundamental rights enshrined in the Constitution, do not extend to merely, providing for survival or animal existence. Article 21, it was pointed out, has been interpreted by this Court, as extending the right to life and liberty-as the right to live, with human dignity. It was submitted that the 1999 Scheme, which allowed better post-retiral benefits to the respondent employees, was an extension of such a benefit. The 1999 Scheme, it was submitted, would have resulted in ameliorating the conditions of the respondent employees, after their retirement. The submission advanced on behalf of the respondent employees is seemingly attractive, but is not acceptable as a proposition of law. A welfare scheme, may or may not aim at providing, the very basic rights to sustain human dignity. In situations where a scheme targets to alleviate basic human rights, the same may possibly constitute an irreversible position, as withdrawal of the same, would violate Article 21 of the Constitution. Not so, otherwise. Herein, the Employees' Provident Funds Scheme, 1995, sponsored under the Provident Fund Act, is in place. The same was sought to be replaced, by the 1999 Scheme. The 1999 Scheme was an effort at the behest of the State Government, to provide still better retiral benefits. The 1999 Scheme was not a measure, aimed at providing basic human rights. Therefore, the 1999 Scheme cannot be treated as irreversible. The same would not violate Article 21 of the Constitution, on its being withdrawn. It is not in dispute, that after the Repeal Notification dated 2-12-2004, the erstwhile Employees' Provident Funds Scheme, 1995, has been restored to such of the employees, who were impacted by the said Repeal Notification. We are of the view, that the repealing of 'the 1999 Scheme', in the facts and circumstances of this case, cannot be deemed to have in any manner, violated the right of the respondent employees, Under Article 21 of the Constitution of India."

(31) The scope of judicial review of an administrative action

is limited. The scope of interference under Article 226 of the

constitution of India in an administrative action has been

discussed by the Larger Bench of Hon'ble Apex Court in the case

of Municipal Council, Neemuch v. Mahadeo Real Estate and Ors

(2019) 10 SCC 738, in paras 14 and 16 :-

"14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision- maker has not understood the law correctly that regulates his decision-making power or when it is found that the

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decision of the decision maker is vitiated by irrationality and that too on the principle of "Wednesbury Unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.

15. This Court recently in the case of W.B. Central School Service Commission v. Abdul Halim (2019)18 SCC 39 : 2019 SCC OnLine SC 902, had again an occasion to consider the scope of interference Under Article 226 in an administrative action:

"31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

32. The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."

16. It could thus be seen that an interference by the High Court would be warranted only when the decision

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impugned is vitiated by an apparent error of law, i.e., when the error is apparent on the face of the record and is self-evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice."

(32) As per the judgment of Hon'ble Apex Court in the case

of Bhagwan (supra), the court should refrain from interfering with

the policy decision, which might have cascading effect and have

financial implications. Whether any financial benefit should be

granted to the employees or not, it should be left open for the

expert body of the government authority to decide and the court

should not interfere with such policy/administrative decisions.

Granting of certain benefits may result in a cascading effect

having adverse financial consequences.

(33) In view of the above discussion and for the reasons

stated above, this court finds no ground to interfere in the

administrative decision taken by the State / Respondent for not

implementing Pension Regulation Scheme upon the employees of

the Board. Accordingly, these petitions fail and the same are

hereby dismissed.