High Court of Punjab and HaryanaCWP/17310/2015disposed of

Shamsher Singh And ORS. v. State Of Haryana And ORS.

2024-07-19Mr. Justice Gurmeet Singh Sandhawalia,Ms. Justice Lapita Banerji,Mr. Justice Harsimran Singh Sethi69 pages

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"(1) The petitioner in this bunch of writ petitions are the retired Government employees of State of Haryana who retired before 01.01.2016. They have laid challenge to Rule 8(3) of the Haryana Civil Services (Revised) Pension Part(II Rules, 2009 to the extent it discriminates amongst the pre and post(01.01.2006 retirees in the matter of fixation of pension. They have also laid challenge to the notification dated 25.08.2014 whereby Clause (1( A) has been inserted after sub(Rule (1) of Rule 8 of the Rules ibid, according to which, the persons retiring after 25.08.2014 have been granted the benefit of full pension after rendering the minimum 'qualifying service' of 20 years whereas such benefit has been denied to those who retired before 25.08.2014.

(2) The question which falls for determination is whether the classification based upon the date of retirement for the purpose of extending benefit of liberalised pension scheme is permissible and can stand to the test of 'reasonable classification'?

(3) A Division Bench of this Court vide order dated 11.01.2012 while dismissing CWP No.352 of 2012 (Gurtek Singh & Ors. vs. State of Haryana & Ors.) in limine has observed that Rule 8(3) of the 2009 Rules is neither discriminatory nor it violates Articles 14&16 of the Constitution. From the plain reading of the above(cited order, it appears that neither the relevant case law was cited nor the Coordinate Bench was appropriately assisted for determining the question as to in what circumstances such a classification is permissible and when would it amount to artificial distinction between the same set of persons. Various binding, persuasive and relevant judicial precedents starting from D.S. Nakara & Ors. vs. Union of India (1983) 1 SCC 305 onwards were neither cited nor considered.

(4) Subsequent to the Division Bench decision in Gurtek Singh, the Hon'ble Supreme Court has expressed its views in State of Rajasthan & Ors. vs. Mahendra Nath Sharma (2015) 9 SCC 540 which appear to have some bearing on the point in issue. Some of the observations made by this Court in (i) R.K. Aggarwal & Ors. vs. State of Haryana & Ors. 2013 (4) SCT 286; (ii) State of Punjab & Ors. vs. A.P. Sharma & Ors. 2017 (1) SCT 322; as well as the Delhi High Court decision in S.A. Khan & Anr. vs. Union of India & Ors. 2015 (9) AD (Delhi) 1 too have some persuasive value for determining the controversy in hand.

(5) The Government of India has issued Office Memorandum dated 06.04.2016 in compliance to some of the judgments referred to above and the contents of this Office Memorandum will also be taken notice for understanding the issues sought to be canvassed.

(6) We are therefore of the view that the decision taken by the Coordinate Bench in Gurtek Singh & Anr. case (supra) requires reconsideration by a larger Bench.

(7) Let the paper(book of the lead case be put up before Hon'ble the Chief Justice for constituting a larger Bench." 4/ ' ( 8.

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"23. After considering the arguments of learned counsels for all the parties, we are of the opinion that it is not even necessary to go into the various nuances and nitty grittys, which are insisted by learned counsels for the petitioners based on D.S. Nakara line of cases and N. Subbarayudu and others and S.R. Dhingra and others (supra), wherein ratio of D.S. Nakara is explained. We proceed on the basis that fixation of cut off date by the government was in order and to this extent we agree with the reasoning given by the Tribunal where similar arguments, as advanced by the petitioners before us, were rejected."

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"8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the Larger Bench cannot adjudicate upon an issue which is not the question referred. (See : Kesho Nath Khurana v. Union of India and others [1981 (Supp.) SCC 38], Samaresh Chandra Bose v. The District Magistrate, Burdwan and others [1972 (2) SCC 476] and K.C.P. Ltd. v. State Trading Corporation of India and another [1995 Supp. (3) SCC 466]." #% = 4

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* ( (1) These rules may be called the Haryana Civil Services (Revised Pension) Part(II Rules, 2009.

(2) They shall apply to all pensioners/family pensioners who retire/die in harness on or after Ist January, 2006 and are drawing/entitled to draw their pension/family pension under the Punjab Civil Services Rules Volume II as amended from time to time and as applicable to the pensioners/family pensioners under the rule making powers of Haryana Government and whose pension/family pension is debitable to the Consolidated Fund of the State of Haryana. 2 (1) Linkage of full pension with 33 years of qualifying service shall be modified to the extent that once a Government servant retires after rendering the minimum qualifying service of 28 years, pension shall be sanctioned at 50 percent of the

emoluments as defined in rule 4 above subject to other conditions regulating the same;

(2) In all such cases where Government servant becomes entitled to pension on superannuation after completion of 10 years of qualifying service in accordance with rule 6.16(2) of Punjab Civil Services Rules Volume II as amended from time to time and as applicable to the pensioners/family pensioners under the rule making powers of Haryana Government, pension shall be sanctioned as a proportion to the amount of full pension admissible to him;

(3) The revised provisions for calculation of pension shall come into force with effect from the date of issue of this notification and shall be applicable to Government servants retiring on or after that date. The Government servants who have retired on or after Ist January, 2006 but before the date of issue of this notification will continue to be governed by the rules which were in force immediately before these rules came into effect as regards qualifying service.

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That it is further respectfully submitted that the Committee, during its deliberations carried on from September 2008 till the month of February 2009 examined different issues related to the revision of pension/family revision/gratuity/commutation of pension and all other incidental and ancillary issues. The said Committee was also examining the proposal of reducing the period of qualifying service for full pension from 33 years to 28 years. 3 That to enable the Committee to examine the above aforementioned issues in detail the Committee had sought information from departments on specific aspects that would have enabled the Committee to form an opinion in this regard. It is pertinent to mention that the Committee had sought information from departments about the total number of pensioners and family pensioners under each department.

Furthermore, the Committee had also sought details from Banks about the total number of pension/family pension accounts of Haryana Government Employees, operating in the Banks. It is further pertinent to mention that in respect of the above communication, the State Bank of India had provided requisite information.

That the above mentioned Committee, during the course of its deliberations, also held meetings with various representative organizations/associations of pensioners under the Government of Haryana and noted their concerns. During the course of its deliberations the Committee was provided with the

data relating to total number of pensioners/family pensioners receiving pension from the State of Haryana which is as follows:(

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That furthermore, the Committee had also considered the total financial outlay incurred by the State of Haryana under the head of Pension and other retirement benefits for the past four financial years, which is as follows:( ,6 7189(7:

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After taking the views of Sh. J.S. Garg, Special Invitee and the representations made by the various representative organizations of pensioners into consideration, the Committee had made its recommendations.

That it is further most respectfully submitted that the Committee constituted for the purposes of examining the proposal for revision of pension/ family pension/ gratuity/ communication of pension and other related issues were seized of all relevant information, on the basis of which it could make its recommendations on the issue. The information regarding total financial outlay incurred by the State Exchequer under the head of pension/ family pension of the four prior financial years provided the Committee with the reasonable basis to get an idea of the proximate financial implication that would entail the said revision.

It is submitted that the information before the Committee was sufficient to enable it to arrive at its recommendations which would be in the best administrative and financial health of the State. The relevant recommendations made by the Pension Revision Committee of the State Government are as under:(

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"39. In the present case, therefore, applying the ratio in the above decisions, it is clear that there is no distinction between those who retired (or died in service) before 29.03.2010 and those who continued in service and were given the pay revision. Those who worked during the period 01.01.2006 to 29.03.2010 and those who continued thereafter, fell in the same class, and a further distinction could not be made. The fact that the MSFC did not recover any interim relief, or ad(hoc amount disbursed between 18.09.1996 to 31.12.2005 (towards recommendations of the 5th Pay Commission), also reaffirms that these ex( employees belonged to the same class as those that received the benefit of the pay revisions. The exclusion of the retired employees, who retired between 01.01.2006 and 29.03.2010 on achieving their date of superannuation, is violative of Article 14 of the Constitution of India."

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"14. An attempt was made by learned counsel for the petitioners to confine this meaning of Nakara only to civilian retirees. It was contended that the position in the case of ex( servicemen was different. It was urged that for the ex(servicemen, the relevant Memorandum (Ex. P(2) dated 28(5( 1979 which contained appendices showing the calculation of pension for each rank had to be equally applied to pre(1(4(1979 retirees since the only portion struck down in the Memorandum was the offending cut(off date confining the grant of the benefits of the liberalised pension scheme to those retiring after the specified date. In our opinion, no such distinction in the case of exservicemen can be made.

A perusal of the Memorandum dated 28(9(1979 shows that it was the consequent action to liberalisation of the pension formula for civil servants extending the same benefit to the Armed Forces with no further addition. Appendices 'A', 'B' and 'C' to this Memorandum merely indicated the computation of the pension made for each rank according to the revised liberalised pen(sion formula, the rates being calculated on the ' basis of emoluments payable for those ranks on 1(4(1979 since the Memorandum was confined in application only to service officers retiring on or after 1(4(1979. In that Memorandum, therefore, no occasion arose for computation of revised pension for pre(1(4(1979 retirees.

It is only as a result of the Nakara decision holding that the same liberalised pension formula for computation would apply to all pre(1(4(1979 retirees also that the question of re(computation of the pension of the earlier retirees on the basis of the liberalised formula arose and this is what has been done in the G.Os. dated 22(11(1983 and 3( 12(1983 challenged in these writ petitions. It is a misreading of the Memorandum dated 28(9(1979 to contend that the appendices to that Memorandum became automatically applicable even to pre( 1( 4(1979 retirees as a result of the Nakara decision. That amounts to reading something in that decision which would be contrary to its ratio.

15.

xxx xxx xxx

16.

xxx xxx xxx 17.

xxx xxx xxx 18.

xxx xxx xxx 19.

xxx xxx xxx 20.

xxx xxx xxx

21. Another claim made is for merger of D.A. backwards also. From 1(1(1973 everyone is being paid D.A. in addition to the pension. The reckonable emoluments which are the basis for computation of pension are to be taken on the basis of emoluments payable at the time of retirement and, therefore, there is no ground to include D. A. at a time when it was not paid. This claim also is untenable.

22. Learned counsel for the petitioners referred to certain decisions which it is unnecessary to consider at length since they were cited only for reading the Nakara decision in the manner suggested by petitioners. The decision of this Court in Union of India v. Bidhubhushan Malik and others, (1984)3 SCC 95 by which special leave petition was dismissed against the decision of the Allahabad High Court reported in AIR 1983 Allahabad 209 is also of little assistance in the present case. This Court while dismissing the special leave petition upheld the Allahabad High Court's view that the liberalised pension became operative under the High Court Judges (Conditions of Service) (Amendment) Act, 1976, from 1(10( 1974 and applied to all retired High Court Judges irrespective of the date of their retirement and there is no question of payment of arrears of pension for the period preceding 1(10(1974. We are unable to appreciate the relevance of this case to support the petitioner's claim in these writ petitions."

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"25. It is well settled that when two sets of employees of the same rank retire at different points of time, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the same class or homogeneous group. Hence, Article 14 has no application. The employer can validly fix a cut(off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut(off date arbitrarily thereby dividing a single homogenous class of pensioners into two groups and subjecting them to different treatment (vide Col B.J. Akkara (Retd) vs. Govt of India, (2006) 11 SCC 709, D.S. Nakara vs. Union of India (1983) 1 SCC 305, Krishna Kumar vs. Union of India (1990) 4 SCC 207, Indian Ex(Services League vs. Union of India (1991) 2 SCC 104, V. Kasturi vs.Managing Director, State Bank of India (1998) 8 SCC 30 and Union of India vs. Dr. Vijayapurapu Subbayamma(2000) 7 SCC 662)."

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"29. D.S. Nakara (supra), which is the mainstay of the case of the employees, arose under special circumstances, quite different from the present case. It was a case of revision of pensionary benefits and classification of pensioners into two groups by drawing a cut(off line and granting the revised pensionary benefits

to employees retiring on or after the cut(off date. The criterion made applicable was "being in service and retiring subsequent to the specified date". This Court held that for being eligible for liberalised pension scheme, application of such a criterion is violative of Article 14 of the Constitution, as it was both arbitrary and discriminatory in nature. The reason given by the Court was that the employees who retired prior to a specified date, and those who retired thereafter formed one class of pensioners. The attempt to classify them into separate classes/groups for the purpose of pensionary benefits was not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved.

However, it must be noted that even in cases of pension, subsequent judgments of this Court have considerably watered down the rigid view taken in D.S. Nakara (supra) as we shall see later in T.N. Electricity Board v. R. Veerasamy and others, 1999(3) SCC 414, ("Veerasamy"). In any event, this is not a case of a continuing benefit like pension; it is a one(time benefit like gratuity.

30. In Union of India v. P.N. Menon and others, 1994(4) SCT 91 (SC) : 1994(4) SCC 68, while implementing the recommendations of the Third Pay Commission with regard to dearness pay linked to average index level 272, which was to be counted as emoluments for pension and gratuity under Central Civil Services (Pension) Rules, 1972, the Central Government had fixed a certain cutoff date and directed that only officers retiring on or after the specified date were entitled to the benefits of the dearness pay being counted for the purpose of retirement benefits. This was challenged as arbitrary and violative of Article 14 of the Constitution. This Court turned down the challenge and observed : "Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut(off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay scale of its employees and fixes the 1st day of January of the next year for

implementing the same or the 1st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31st December of the year in question, will miss that pay scale only by a day, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the Court should only be, while examining any such grievance, to see, as to whether a particular date for extending a particular benefit or scheme, has been fixed, on objective and rational considerations." [Ibid at pp. 75(76 (para 14)]."

31. In Action Committee South Eastern Railway Pensioners v. Union of India, 1991(1) SCT 485 (SC) : 1991 Supp. (2) SCC 544, it was held that, on merger of a part of dearness allowance as dearness pay on average price index level at 272 with reference to different pay ranges, fixing a cut(off date in such a manner was not arbitrary and the principle enunciated in D.S. Nakara (supra) was not applicable. In this connection, the ratios in Krishena Kumar v. Union of India, 1990(4) SCC 207; Indian Ex(Services League v. Union of India, 1991(1) S.C.T. 468 : 1991(2) SCC 104; State Government Pensioners' Association v. State of A.P., 1986(3) SCC 501 and All India Reserve Bank Retired Officers' Association v. Union of India, 1992 Supp. (1) SCC 664 are apt. In all these cases, the prescription of a cut(off date for implementation of such benefits was held not to be arbitrary, irrational or violative of Article 14 of the Constitution.

32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including in the following two cases. In State of Rajasthan and another v. Amritlal Gandhi and others, 1997(1) SCT 699 (SC) : AIR 1997 Supreme Court 782 this Court went so as far as to note that : "... Financial impact of making the

Regulations retrospective can be the sole consideration while fixing a cut(of date. In our opinion, it cannot be said that this cut(off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1.1.1986 for 1.1.1990." [Ibid at p. 78 (para 17)] (emphasis supplied).

33. More recently, in Veerasamy (supra), this Court observed that, financial constraints could be a valid ground for introducing a cut(off date while implementing a pension scheme on a revised basis. 1999(3) SCC 414 at p. 421 (para 15)]. In that case, the pension scheme applied differently to persons who had retired from service before 1.7.1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.

34. In State of Punjab and others v. Boota Singh and another, 2000(3) SCC 733, ("Boota Singh") after considering several judgments of this Court in D.S. Nakara (supra) to K.L. Rathee v. Union of India, 1997(3) SCT 478 (SC) : 1997(6) SCC 7, it was held that D.S. Nakara (supra) should not be interpreted to mean that the emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. [2000(3) SCC 733 at p. 735 (para 8)].

35. In State of Punjab and another v. J.L. Gupta and others, 2000(2) SCT 8 (SC) : 2000(3) SCC 736, where one of us was on the Bench (Sabharwal, J.), the views expressed in Boota Singh (supra) were reiterated, and it was held that for the grant of additional benefit which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary. [Ibid at p. 737 (para 4)]" $0 ;

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"17. By O.M. dated 27.9.1993, the Ministry of Finance, Government of India directed that the dearness allowance payable to the Central Government employees with effect from 1.7.1993 would stand modified as declared therein at varying rates linked to the basic pay. By another O.M. dated 19.10.1993, the Government of India notified that for Central Government employees who retired or died on or after 16.9.1993, a portion of the dearness allowance as linked to Average Consumer Price Index of 729.91 obtaining as on 1.3.1988 (i.e. 20% of basic pay) would be treated as dearness pay. This would count only for reckoning emoluments for the purpose of retirement gratuity and death gratuity under the Central Civil Services (Pension) Rules, 1972 and for no other purpose. The said orders came into effect from 16.9.1993. It was directed that the death(cum( retirement gratuity of

persons who have already died or retired on or after 16.9.1993 should be recalculated on the basis of the said orders and arrears, if any, be paid.

18.

By O.M. dated 14.7.1995, the Central Government directed that, as recommended by the Fifth Central Pay Commission in its Interim Report, dearness allowance as linked to the average All India Consumer Price Index ("AICPI") 1201.66 would be treated as dearness pay for reckoning emoluments for the purpose of death gratuity and retirement gratuity under the Central Civil Services (Pension) Rules, 1972. Further, it was directed that the ceiling on gratuity would stand enhanced to Rs. 2.50 lacs. The said O.M. indicated different percentages of dearness allowance, depending upon the basic pay drawn, to be added to pay for calculating gratuity.

19.

Following the aforesaid O.M. issued by the Central Government, the Government of Punjab in the Department of Finance issued orders dated 13.12.1996, wherein it was notified that the Governor of Punjab was pleased to decide that dearness allowance as admissible to the employees as on 1.7.1993 (linked to All India Consumer Price level 1201.66) would be treated as dearness pay for reckoning emoluments for the purpose of retirement gratuity and death gratuity under the Punjab Civil Services Rules( Volume II. This was in respect of "Punjab Government employees who retire or whose death occurs on or after 1.4.1995". The said order indicated the varying percentages of dearness allowance to be added to the pay for calculating gratuity at different pay slabs. The order also notified that the ceiling of maximum amount of retirement gratuity and death gratuity was to be raised from Rs. 1 lac to Rs. 2.50 lacs with effect from 1.4.1995.

20.

xxx xxx xxx xxx 21.

xxx xxx xxx xxx

22.

xxx xxx xxx xxx 23.

The learned counsel for the Union of India and the State Governments contended that, though it is a fact that certain percentage of dearness allowance was to be merged with the basic pay with effect from 1.7.1993 (linked to the All(India Consumer Price level 1201.66) and that the said dearness allowance admissible to the employees on 1.7.1993 was to be treated as dearness pay for reckoning emoluments for the purpose of death gratuity and retirement gratuity, financial constraints impelled the Governments, both at the Centre and the State, to restrict such payments only to the employees who had died or retired on or after 1.4.1995."

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6. No doubt in D.S. Nakara & Ors. v. Union of India, 1983(1) SCC 305 this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara's Case (supra), as observed in para 29 of the decision of

this Court in State of Punjab & Ors. v. Amar Nath Goyal & Ors. (supra).

7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection.

8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason 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, Union of Indian & Anr. v. Sudhir Kumar Jaiswal, 1994(3) SCT 322 : 1994(4) SCC 212 (vide para 5), Ramrao & Ors. v. All India Backward Class Bank Employees Welfare Association & Ors., 2004(1) SCT 775 : 2004(2) SCC 76 (vide para 31), University Grants Commission v. Sadhana Chaudhary & Ors., 1996(10) SCC 536, etc.

It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr., 2008(1) SCT 279 : 2008(1) RAJ 116 : 2008(3) 3 JT 221 and in Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi, 2008(2) RAJ 475 : 2008(2) 8 JT 639 the Court must maintain judicial restraint in matters relating to the legislative or executive domain. For the reasons afore(stated, the impugned order of the High Court is set aside.

The appeals are allowed."

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* "32. Whenever such a cut(off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut(off date but, the fact that some persons or a section of society would face hardship, by itself

cannot be a ground for holding that the cut(off date so fixed is ultra vires Article 14 of the Constitution.

33. In State of W.B. v. Monotosh Roy & Anr., 1999(1) SCT 287 (SC), it was held:( "13. In All India Reserve Bank Retired Officers' Association v. Union of India, 1992 Supp. (1) SCC 664 : (1992) 19 ATC 856 a Bench of this Court distinguished the judgment in Nakara, (1983) 1 SCC 305 and pointed out that it is for the Government to fix a cut(off date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cut(off date and had collected their retiral benefits from the employer. A similar view was taken in Union of India v. P.N. Menon, (1994) 4 SCC 68 : (1994) 27 ATC 515 : 1994(4) SCT 91 (SC). In State of Rajasthan v. Amrit Lal Gandhi, (1997) 1 SC 421 : 1997(1) SCT 699 (SC) the ruling in P.N. Menon case (supra) was followed and it was reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cut(off date on some rational or reasonable basis has to be fixed for extending the benefits.

14. In State of U.P. v. Jogendra Singh, (1998) 1 SCC 449 : 1998(1) SCT 274 (SC) a Division Bench of this Court held that liberalized provisions introduced after an employee's retirement with regard to retiral benefits cannot be availed of by such an employee. In that case the employee retired voluntarily on 12.4.1976. Later on, the statutory rules were amended by Notification dated 18.11.1976 granting benefit of additional qualifying service in case of voluntary retirement. The Court held that the employee was not entitled to get the benefit of the liberalized provision which came into existence after his retirement. A similar ruling was rendered in V. Kasturi v. Managing Director, State Bank of India, (1998) 8 SCC 30 : JT (1998) 7 SC 147 : 1998(4) SCT 662 (SC).

15. The present case will be governed squarely by the last two rulings referred to above. We have no doubt

whatever that the first respondent is not entitled to the relief prayed for by him in the writ petition.........." 1%

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;<,7A kanchan Whether speaking/reasoned : Yes Whether reportable : Yes