Ch. Nageshwar Rao vs The Union Of India And 2 Others
2023 Latest Caselaw 427 Tel

 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

                    W.P.No. 24462 of 2022

ORDER:

In this writ petition, the petitioner is seeking a writ of

Certiorari to call for records up to the issuances of reply from

the office of the respondent No.2 to the writ petitioner and

quash the same, as illegal, arbitrary and violative of Articles 14

and 21 of Constitution of India and consequently to direct the

respondent No.2 to extend the benefits, as prayed for in

representation of the petitioner dated 13.12.2021 and to pass

such other order or orders as this Court deems fit and proper in

the interest of justice.

2. Brief facts leading to the filing of the present writ petition

are that the writ petitioner is a retired employee of the

respondent No.2 Corporation, who retired after 01.01.2007. The

respondent No.2 Corporation and ECIL Officers Association (i.e.,

the ECOA in short), entered into a Memorandum Of

Understanding (MOU) on 26.05.2009 concerning

implementation of Revision Pay Scale and Allowances to

Executives of ECIL for Board Level and below Board Level

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Executives. The benefits under the said MOU were agreed to be

given with effect from 01.01.2007.

3. Pursuant to the notification of the Revision Pay Scales

and other benefits of Board and below Board Level Executives,

the Government of India, Department of Public Enterprises, an

office memorandum dated 25.11.2008 was issued. The ECIL

Officers Association (ECOA) requested to implement the pay

revision for Executives of ECIL with effect from 01.01.2007 and

the same was approved for implementation and according to the

learned counsel for the petitioner, the ECIL Management

implemented all the terms and conditions of the MOU, except

Clause 17 of MOU i.e., under the heading of Superannuation

Benefits, wherein the ceiling for superannuation benefits, which

may include Provident Fund, Gratuity, Pension and Post-

retirement Medical Scheme, shall be 30% of the Basic Plus DA.

4. It is submitted that subsequently, an office memorandum

dated 02.04.2009 was issued, according to which, the ECIL

Management issued personal circular dated 29.05.2009 and

Clause 16 of the said circular was with regard to the

Superannuation Benefits Pension and Post-Retirement Medical

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benefit of 30% of the Basic Plus DA and it was directed to be

implemented from the year 2011. With regard to the Post-

Retirement Medical benefit, it was decided to introduce medical

insurance for retired ECIL employees, irrespective of the date of

retirement or superannuation. The petitioner and other

similarly placed persons made a representation to the

respondent No.2 on 13.12.2021, with a request to implement

the pension scheme to all the Executives, who retired from ECIL

on or after 01.01.2007 as per the MOU between the ECIL

Management and ECOA, dated 26.05.2009 and to give all the

retired ECIL employees the Post-Retirement Medical benefit at

free of cost by charging nominal amount, as is done by BEL &

HAL, Hyderabad, who were extending such Post-retirement

Medical benefits to all its ex-officials. Before making such a

representation, the petitioner and others had obtained

information under the Right to Information Act with regard to

the financial capacity of the respondent No.2 and according to

the information furnished under the Right to Information Act,

the Corporation was making sufficient profits and was in a

sound financial condition to extend such benefits to the

petitioner and similarly placed persons also. The representation

PMD,J W.P.No.24462 of 2022

of the petitioner was considered and vide letter dated

07.03.2022 the petitioner was informed that the proposal of

extending the pension scheme to all the retired executives with

effect from 01.01.2007 was considered by the Board and

keeping in view of affordability factor in mind and also future

pay out capacity of the Corporation, the implementation of the

pension scheme was approved for Executives with effect from

01.04.2015 only and that the same was ratified by the

Administrative Ministry.

5. As regards the extension of medical facilities for the

retired employees at the cost of the Corporation is concerned, it

was submitted that ECIL Medi-claim insurance scheme was

introduced for retired employees wayback in the year 2007,

wherein option to all retirees irrespective of year of retirement,

to enroll was given and the same is in operation from 2007

onwards.

6. As regards the request of the petitioner to make the

scheme free of cost or at nominal cost as was done by the

CPSE's (Central Public Sector Enterprises), it was pointed out

that each CPSE has an individual identity having different levels

PMD,J W.P.No.24462 of 2022

of profitability and the organizations of HAL and BEL have

different business climate having large order book positions and

better profitability margins and hence, have the leverage of

sustaining medical expenditure on its own without any

contribution from the employees.

7. Aggrieved by the said denial at the request of the

petitioner and others, the present writ petition has been filed

seeking a writ of Certiorari and a direction to the respondents to

implement the MOU entered into by the respondent No.2 with

ECOA including the superannuation benefits and Post-

retirement Medical benefits to all the employees who retired

with effect from 01.07.2007.

8. Learned counsel for the petitioner placed reliance upon

the averments made in the writ affidavit filed along with the writ

petition and has also drawn the attention of this Court to the

MOU entered into between the respondent No.2 and ECOA and

the consequential circulars issued from time to time. He has

also drawn the attention of this Court to the information

furnished to the petitioner under the Right to Information Act to

demonstrate that the respondent No.2 Corporation was making

PMD,J W.P.No.24462 of 2022

sufficient profits and it can afford the payment of premium for

extending the medical benefits to the retired employees who

retired after 01.01.2007 free of cost. It is submitted that all the

clauses and conditions of the MOU have been implemented by

the respondent No.2, except the superannuation benefits and

post superannuation medical benefits. Therefore, according to

him, even though the respondents have earned profits due to

the efforts of the employees, the respondent No.2 should be

directed to pay out the pensionary benefits and also the post

superannuation medical benefits with effect from 01.01.2007. In

support of his contentions that treating the petitioners who

retired after 01.01.2017 and employees who retired before

01.04.2015 separately is arbitrary, illegal and violative of Article

41 of Constitution of India, he placed reliance upon the

following judgments:

(1) Shri Naini Gopal, S/o.Dhirendra Mohan Roy Vs.

Union of India and others1;

(2) Elagurthi Rajender & Others Vs. State of

Telangana2;

1 LD-VC-CW-665 of 2020, dated 20.08.2020, High Court of Judicature at Bombay, Nagpur Bench, Nagpur.

2 W.P.Nos.3276, 3972 and 4057 of 2019 and 41907 of 2018, dated 07.02.2022.

PMD,J W.P.No.24462 of 2022

(3) Official Memorandum: No.W-02/0028/2017-

DPC(WC)-GL-XIII/17, Government of India, Department of

Public Enterprises.

9. Learned Standing counsel for the respondents No.2 and 3,

on the other hand, placed reliance upon the averments in the

counter affidavit and submitted that the question of whether

extension of the monetary benefits to the retired employees of

the respondent No.2 Corporation should be with effect from

01.01.2007 or 01.04.2015 is a policy decision of the respondent

corporation and therefore, this Court under Article 226 of

Constitution of India, cannot interfere with the same. It is

submitted that the Administrative Ministry has considered the

proposals of the respondent No.2 and as accorded permission

for extending the said benefits with effect from 01.04.2015 and

therefore, the respondent No.2 has extended the benefits from

such date only.

10. With regard to the Post-retirement Medical Benefits

Scheme, it was submitted that a scheme was formulated for

sharing of premium amount by ECIL and its employees and

though the scheme was formulated and notified in the year

2007 dated 01.08.2007, it became operational only with effect

PMD,J W.P.No.24462 of 2022

from 24.08.2011, as number of employees enrolled in the

scheme in the year 2007 was minimal.

11. Learned Standing counsel also placed reliance upon the

following judgments in support of his contentions.

(1) Himachal Road Transport Corporation & Another

Vs. Himachal Road Transport Corporation Retired

Employees Union3;

(2) Order of this Court in W.P.Nos.9399, 10496 of

2021 and batch4.

12. Having regard to the rival contentions and the material on

record, this Court finds that the grievance of the petitioner in

this writ petition is that though an agreement has been entered

into between ECIL i.e., respondent No.2 and ECOA Officers

Association in the year 2009, to give effect to the terms and

conditions therein with effect from 01.01.2007, the respondents

have failed to implement the same in toto and particularly with

regard to the superannuation benefits and post retirement

medical benefits. The case of the petitioner is that it is only

because of the efforts of the past employees of the respondent

3 Civil Appeal No.7230 of 2012, reported in 2021 (2) ALT 263 (SC). 4 2021 (6) ALT 349 (DB), High Court for the State of Telangana.

PMD,J W.P.No.24462 of 2022

No.2 organization, who have worked hard that the respondent

Corporation has been able to withstand the competition and

was making profits and inspite of the same, it is only the future

employees who were being benefited and not the employees who

have put in hard work. It is submitted that most of the

employees are suffering from ailments and are not financially

sound to meet the medical expenditure and therefore, the

superannuation benefits as well as the medical facilities should

be extended to all the employees who retired on or after

01.01.2007 as agreed to with the Union.

13. However, this Court is of the opinion that the MOU

between the ECIL and Employees Association is purely an

understanding between two parties and is not a statutory

obligation enforceable by this Court under Article 226 of

Constitution of India. Further, the issue of the date from which

a benefit is to be extended, is also as per the understanding

between the parties and as per the approval given by the

Administrative Ministry after taking into consideration various

factors and therefore, it is purely a policy decision of the

respondents. In such circumstances, this Court under Article

226 of Constitution of India cannot interfere or direct the

PMD,J W.P.No.24462 of 2022

respondents to implement the scheme with effect from a

particular date, even if it was agreed to between the parties. The

Memorandum Of Understanding itself makes it clear that it is

applicable from the date the Administrative Ministry and the

Department of Establishment gives its consent for the same and

it is only subsequently that the proposal has been put up before

the Administrative Ministry which has given its approval to give

effect to it from a prospective date. In view of the same, this

Court cannot interfere with the same and cannot direct the

respondents to give effect to the scheme with effect from a

particular date. The decisions relied upon by the petitioner are

distinguishable on facts and are therefore not applicable to this

case.

14. On the issue as to whether a Court can interfere in a

policy decision, the Hon'ble Supreme Court in the cases of

(i) M.P. Oil Extraction Vs. State of Madhya Pradesh5,

has expressed that :

"unless a policy decision is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is violative of any Constitutional or Statutory mandate, Courts' 5 1997 (7) SCC 592

PMD,J W.P.No.24462 of 2022

interference is not called for. The executive authority of the State must be held to be within it's competence to frame a policy for the administration of the state. Policy decision is in the domain of the executive authority of the State and the Courts should not question the efficacy or otherwise of such policy so long as it falls within the Constitutional limitation and does not offend any provisions of the statue".

(ii) Ugar Sugar Works Ltd. Vs. Delhi Administration

and others6, has expressed that :

"It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with policy decisions unless such policy framed, could be faulted on ground of malafide, unreasonableness arbitrariness, unfairness".

(iii) Small Scale Industrial Manufactures Association

Vs. Union of India (UOI) and Ors., has expressed that :

"So far as the submission on behalf of the Petitioners that the relief packages which were offered by the UOI/RBI/Bankers/Lenders were not sufficient and some better and/or more reliefs should be offered was concerned, it was not within the judicial scope of the courts to issue such directions. No mandamus could be issued to grant some more reliefs/packages. The Court cannot interfere with the economic policy decisions on the ground that either they were not sufficient or efficacious and/or some more reliefs should have been granted".

15. Accordingly, this writ petition is dismissed. There shall be

no order as to costs.

6 2001 (3) SCC 635

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Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

____________________________ JUSTICE P.MADHAVI DEVI

Date: 30.01.2023 bak

PMD,J W.P.No.24462 of 2022

(PD) THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

W.P.No. 24462 of 2022

Date: 30.01.2023

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