Hari Ram v. The State of Bihar

Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 4 - recommendations as made by the Sixth Central Pay Commission for the revised pay structure of the employees under the Central Government.

7. Apparently, while the matter was pending with the State Pay Committee as constituted on 30.12.2008, State by its resolution dated 17.01.2009 ordered for an interim increase in the emoluments payable to State Government employees with effect from 01.01.2009, subject to final recommendation by the State Level Committee and its acceptance by the State. Accordingly, the emoluments payable the State Government employees in service as on 01.01.2009 was liable to be increased.

8. Petitioner who was in service on 01.01.2009 and, as noted above, superannuated on 28.02.2009 was thus liable to receive increased remuneration as per the interim decision of the State Government, as noted above, pending final revision upon submission of the report by the State Level Pay Committee and its acceptance by the Government.

9. It appears that while the matter of revision of pay- scale/pay structure of State Government employees was under consideration of the State Level Pay Revision Committee, which, as noted above, had been constituted on 30.12.2008 Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 5 - and the Government, having already made an interim increase in the emoluments by its resolution dated 17.01.2009 with effect from 01.01.2009, the State Government vide its resolution dated 23.09.2009 now resolved to revise the pension of its employees including those who superannuated on or after 01stJanuary, 2006, keeping in view the fact that the Central Government for its employees had resolved to revise pensions. The State Government resolution revising pension date 23.09.2009 is Annexure-B to the counter affidavit of the Accountant General and Annexure-A to the counter affidavit on behalf of the respondent State. It is some of the provisions of this resolution dated 23.09.2009 that are in question. For the sake of brevity this pension revision resolution dated

23.09.2009 is being referred to as the pension resolution.

10. A perusal of this pension resolution would show that it takes note of the fact that when this resolution was adopted by the State, State Level Pay Revision Committee was already entrusted with the task of revising the pay structure/pay scale of the State Government employees with effect from 01.01.2006. In fact, it may be noted at the cost of repetition that pending recommendation of the State Level Pay Committee, State by its resolution dated 17.01.2009 had Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 6 - already granted certain interim revised pay with effect from

01.01.2009. The provisions so far as material for this litigation in respect of pension resolution will be appropriately discussed in detail later.

11. It now appears that on 21.12.2009, the State Level Pay Committee submitted its report relating to revision of pay-scale/pay structure and other benefits to the State Government employees. On 23.12.2009 vide resolution no.12203 the State Government constituted a Three Member Committee to scrutinize the recommendations of the State Level Pay Committee. State Government ultimately accepted and notified the new revised pay structure/pay scales for the State Government employees vide its resolution dated

21.01.2010. This pay revision resolution dated 21.01.2010 for the sake of brevity and clarity is being referred to as the Pay Revision Resolution.

12. The pay revision resolution dated 21.01.2010 was made effective to all Government employees retrospectively from 01stof January, 2006, but the actual payment, financial benefits, of the new revised pay structure/pay scale were to be given only with effect from 01.04.2007. This was applicable to all State Government employees who were in service as on Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 7 -

01.01.2006 and all of them were entitled to receive revised pay-scales under revised pay structure, which undisputedly was much higher than the original pay-scale.

13. Thus, the petitioner, who had superannuated with effect from 28.02.2009, became entitled increase emoluments right from 01.04.2007, which had earlier also partly been revised with effect from 01.01.2009, as noted above, as an interim measure. There is no dispute in this regards. It may be pertinent to note here that similarly those persons who were to superannuate after the pension resolution dated 23.09.2009 and before the pay revision resolution dated

21.01.2010 were similarly entitled to revision of their emoluments in the service period. Thus, all persons in service in between 01.04.2007 and the pay revision resolution dated

21.01.2010 were treated as one homogeneous group.

14. Now, coming to the provisions of the pension resolution dated 23.09.2009, in so far as it is relevant for the present case and to understand and appreciate the petitioner’s case. The pension revision resolution, inter alia, deals with revision of pension and gratuity. So far as pensions are concerned, for all employees superannuating on or after

01.01.2006, pensions were to be revised irrespective of Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 8 - whether they superannuated in between 01.01.2006 and

23.09.2006 or thereafter up to the date when revised pay- scales were to be announced with retrospective effect. Their revised pensions had to be ad hoc subject to further revision once the pay revision was made effective retrospectively. Thus, there were no sub-classification between retirees prior this pension revision resolution and those retiring thereafter. In so far as pension is concerned, it being dependent on the last pay drawn, which, as noted above, was already in contemplation of revision when pension revision resolution was taken. Thus, the petitioner became entitled to not only the revised pension, as per the pension revision resolution dated 23.09.2009, he became entitled to its further revision as and when the retrospective pay revision was announced, which as noted above was done on 21.01.2010. This position is not in dispute. Similarly, a person who retired after the pension revision resolution dated 23.09.2009, his pension also had to be revised when the retrospective pay revision resolution was adopted. No one has disputed this.

15. According to the petitioner, this clearly establishes that for payment of pension the retirees in between 01.04.2007 and 21.01.2010 were thus treated as one homogenous group Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 9 - without discrimination.

16. But, the problem arises when we come to gratuity as dealt by the pension revision resolution dated 23.09.2009. In this resolution, in regards to gratuity there are some changes, which are not relevant. But, there are two significant changes which are relevant. Firstly, the maximum ceiling limit of gratuity which was earlier of Rs.3.50 lacs was raised prospectively to Rs.10 lacs. The second significant change, which is subject matter of challenge in this writ petition is, that even though State notices specifically that pay revision with retrospective effect is in contemplation and, as noted above, partial relief of increase of pay had already been ordered on 17.01.2009 with effect from 01.01.2009, it divided the retirees for the purposes of calculating gratuity, which, as noted earlier, is dependent on the emolument received in the last month’s service, into two groups. The first group, being those who superannuated in between 01.01.2006

22.09.2009 and the other retiring on 23.09.2009 up to the date when pay revision resolution was adopted with retrospective effect, which now would be the period between 23.09.2009 to

20.01.2010.

17. For the first group, gratuity was to be calculated Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 10 - without giving benefit of the retrospective pay revision and no revision of gratuity on basis of retrospective pay revision was allowed, whereas for the second group though otherwise similarly situated, gratuity calculated earlier had to be revised taking into account the retrospective pay revision.

18. Petitioner’s contention, thus, is that though his pay also stands revised by virtue of retrospective pay revision resolution, he is deprived of the same when it comes to calculating gratuity. Gratuity is not permitted to be revised but to the other group who also retired prior to retrospective pay revision, they are given the benefit of revision of gratuity taking into account the retrospective pay revision. This, it is contended, is hostile discrimination without any reason or rational. It is not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved.

19. In fairness to the learned counsel for the petitioner, it must be noted that initially, on behalf of petitioner, it was contended that not only he is entitled to get gratuity taking into account the retrospective revision of pay, he was equally entitled to receive gratuity in excess of the ceiling prevailing at the time of his superannuation, which was Rs.3.50 lacs, Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 11 - which stood increased to Rs.10 lacs by the pension revision resolution. In course of argument realizing that increase of maximum limit of gratuity from Rs.3.50 lacs to Rs.10 lacs is specifically prospective with effect from the date of pension revision resolution and the well settled law in this regards, he agreed to limit his claim to maximum of Rs.3.50 lacs.

20. To be more specific, petitioner has contended that if the pay revision with retrospective effect is given effect to then considering his revised last month’s pay the gratuity he was liable to be paid was Rs.3,99,544.00, which he restricted in course of argument to the maximum ceiling, i.e., Rs.3.50 lacs. But, what has actually been sanctioned, ignoring the pay revision is only Rs.2,63,835.00. It is pointed out that if the petitioner with the same unrevised pay was to superannuate in the second group in between 23.09.2009 and 10.01.2010 initially his gratuity payable would have been Rs.2,63,835.00, but, upon pay revision, it would have gone up Rs.3,99,544.00 solely because, for one group retrospective pay revision benefit was taken away whereas to the other it was granted. It is this deprivation of benefit of pay revision to one group that is the bone of contention.

21. On behalf of petitioner, it is submitted that all Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 12 - retirees to whom pay revision is applicable with retrospective effect, i.e., those who retired in between 01.04.2007 and

21.01.2010 are retirees of a class. They have been so treated without discrimination for the purposes of not only of pay revision but for pension revision as well. But, they have been sub-classified only for the purposes of calculation of gratuity two groups. One which would get benefit of retrospective pay revision which comes after superannuation and the other similarly situated who are deprived of the benefit of pay revision. This sub- classification, as noted above, is submitted is not permissible in law and is violative of Article-14 of the Constitution inasmuch as Article-14 contemplates that neither persons similarly situated can be treated differently nor differently situated persons treated similar.

22. State on the other hand submits that there is no hostile discrimination. The two classes are different. One retires prior to the pension revision notification and the other retires after that. Their stand further is that right to gratuity is a “chapter closed” on the day of superannuation and as such the persons’ entitlement to gratuity including the amount payable there under would be their emolument on the day they Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 13 - superannuate. That cannot be reopened.

23. On behalf of petitioner, it is submitted that if that be so then even for retirees in between pension revision resolution dated 23.09.2009 and pay revision resolution dated

21.01.2010 for them also the quantum of gratuity payable was a “chapter closed” but it is not so and they have been given benefit of retrospective pay revision, thus, revising the gratuity. This is hostile discrimination. There is no valid reason or valid rational for this sub-classification.

24. In my view, for the purpose of deciding this case, it is necessary to discuss the scope of pension and gratuity. The right and the extent of powers of the State to take policy decision in this regards.

25. In the case of State of Kerala & Ors. Vs. M. Padmanabhan Nair since reported in (1985) 1 Supreme Court Cases 429, this is what the Apex Court said in paragraph-1 of the reports:- “Pension and gratuity are no longer bounty distributed by the Government to its employees on their retirement but have become, under decisions of this Court, valuable rights and property in their hands Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 14 - and any culpable delay settlement disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.”

26. Then, in the case of Krishena Kumar Vs. Union of India & Ors. since reported in (1990) 4 Supreme Court Cases 207 what their Lordships said in paragraphs-30&32 of the reports is that there is essential difference between the concept of gratuity and pension though both are payable upon retiring. Conceptually and in practice gratuity is a one time payment based on the emoluments last receivable, whereas pension is a recurring payment after retirement for the life of the employee or his family. Thus, we have the decision of the Apex Court in the case of State Government Pensioners’ Association & Ors. Vs. State of Andhra Pradesh since reported in (1986) 3 Supreme Court Cases 501 wherein in paragraph-2 of the reports it has been observed that gratuity having been paid on the date of superannuation on the then prevailing basis the amount gets crystallized, the transaction is completed and closed. The “chapter is closed”. In that case the upward revision of gratuity was to take effect from a Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 15 - specified date i.e. prospective effect only. The writ petitioner had sought the revision to be made applicable also to those who had retired prior to the specified date. It is in this context the Court so observed as above. Let it be noted that in the facts of the present case with which we are dealing the situation is different. Here, the basic emoluments including the last month’s pay is being retrospectively enhanced and, as noted above, it is this last month’s pay, that is the basis for quantifying the gratuity.

27. The petitioner’s grievance is whereas some persons are allowed the benefit of this retrospective pay revision to be taken into account and thus revised the gratuity already due and payable, but in his case the revision of gratuity upon retrospective revision of pay-scale is not permitted. In other words, petitioner submits that if the theory of the transaction of gratuity being completed and closed, “chapter closed” is to apply then State cannot be selective in applying the same to the petitioner while ignoring the rule in case of other similarly situated retirees. State had power to ignore the said rules. It did for some. It should, accordingly, be applied for others as well who were similarly situated and received revised pay.

28. In my view, the contention is correct. Taking a Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 16 - view otherwise would lead to unfair, unreasonable and anomalous result. The result is that here people similarly situated are treated differently which is antithesis of Article- 14 of the Constitution.

29. The true answer to this problem can be arrived only when we examine whether we are dealing with two different classes, the differentiation having rational nexus. As noted above, the pay revision notification was issued on 21stof January, 2010 giving cash benefit with effect

01.04.2007. Thus, all persons who were in service in that period between 01.04.2007 and 21.01.2010 form one homogeneous class and all of whom were entitled to their pay revision up to the time of their superannuation. Thus, the person who retired on 01.02.2009 or in case of petitioner

20.02.2009, i.e., before pension revision resolution dated

23.09.2009 and a person who retired on 01.11.2009, i.e., after pension revision resolution dated 23.09.2009, all were entitled to their pay revisions up to the date of their retirement. Thus, all of them are a class together without discrimination. What the pension revision notification dated 23.09.2009 has done is it has divided this one class into two groups solely on basis of date of resolution. One who retired in between 01.04.2007 to Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 17 -

22.09.2009 and the other who retired between 23.09.2009 and

20.01.2010. For the first group, for the purposes of calculating gratuity, the pay revision with retrospective effect is ignored and gratuity is calculated on the last unrevised pay drawn. But, when it comes to the second group it permits the gratuity to be recalculated giving effect to the pay revision. This, in my view, is clearly unfair, arbitrary and amounts to hostile discrimination where similarly situated persons are treated differently on the cynical stand of the State that the two groups are essentially different. One prior to the pension revision notification and the other after the said notification though undisputedly both are visited equally with pay revision retrospectively.

30. It is then submitted on behalf of the State that selecting a date for implementation of revised pension is the prerogative of the State so long as it is not “picking out a date from the hat” it is valid. In my view, the principle of law is too well established to discuss in detail. But, the question remains whether this date has any logic or rational in splitting the otherwise homogeneous group. As noted above, both groups get their last month’s emoluments revised by the retrospective pay revision which is made by a common Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 18 - notification. Ordinarily, as gratuity is dependent upon what is the emolument payable at the last month of the service, the gratuity payable would now become revisable giving effect to the retrospective pay revision for everybody in the group uniformly as it is a homogeneous group. But, this pension revision notification divides the group giving benefit to one and depriving the other of the benefit. In other words, it takes away the benefit which petitioner’s group was entitled to. It is not a case where no benefit was at all accruing to the petitioner’s group. That is a vital distinction which State has lost sight of.

31. What practically is the effect can be seen as under. When the pension revision resolution was issued on

23.09.2009, it itself noted that pay revision with retrospective effect was in the offing. This pay revision resolution was issued on 21.01.2010. It was with retrospective effect giving cash benefit with effect from 01.04.2007. The effect of the two resolutions was that firstly for all those who were in service on or after 01.04.2007, across the board, became entitled to pay revision reaccurring up to their superannuation. Similarly all those who retired after 01.04.2007 up to

21.01.2010 were entitled to pension revision reaccurring for Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 19 - their life across the board. But, when we come to gratuity payable, which is onetime payment, in respect of the same set of persons, i.e., who were in service on 01.04.2007 and retire thereafter, the group is divided into two. One group is given the benefit of pay revision for recalculating gratuity where as the other within the same set is deprived and their gratuity is not recalculated on the basis of pay revision. This clearly brings out the hostility especially when there is absolutely no justification coming forth from the State except that the groups are divided by the pension resolution date which in the fact aforesaid has no reason or rational. It is like classifying groups merely on basis of their being black or white for paying taxes. It is treating equals unequally. It is not increased entitlements to a group from a date. It is deprivation of benefit to a group. This is clearly antithesis of Article-14 of the Constitution.

32. In fairness to the learned Principal Additional Advocate General, I must notice the judgment of the Apex Court as heavily relied on by him, being the case of Union of India Vs. P.N. Menon & Ors. since reported in (1994) 4 Supreme Court Cases 68. In that case gratuity was revised upwards with effect from a certain date the writ petitioner Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 20 - contended that though he retired before the said date he should also be granted the benefit. The Apex Court in no uncertain terms rejected the plea clearly pointing out that the enhancement was prospective for people retiring after a certain date and it was the prerogative of the Government to fix the date. The principles of Article-14 of the Constitution enunciated in the case of D.S. Nakara & Ors. Vs. Union of India since reported in (1983) 1 Supreme Court Cases 305 did not apply. The Court clearly pointed out that whenever a date for effecting change is fixed by reason thereof someone or the other is bound to be left out. There cannot be a fool proof scheme. What the Court has to look is whether a particular date for extending a particular benefit or scheme has been fixed on objective and rational considerations. The first thing to be noticed is in all such cases including the case of P.N. Menon (supra) a benefit that had accrued to a group, in the present case by virtue of retrospective pay revision, was never taken away. In fact, in all those cases no benefit had at all accrued to the aggrieved group. They wanted extension of benefit retrospectively to them as well. These are not the facts obtaining in the present case. The facts are totally opposite. A benefit which accrued to them or which was to accrues to Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 21 - them similar to the other group, they have been deprived of that. This, in my view, is a legitimate grievance. On the date when pension revision notification was issued, i.e.,

23.09.2009, for neither of the groups retrospective pay revisions was available as pay revision was still contemplation, still the pension revision notification clearly gave benefit to all those who were retiring after the said notification and were liable to be paid gratuity at the unrevised pay-scale to get their gratuity revised upon the pay revision notification being issued with retrospective effect. But, those who had retired prior to the pension revision notification were not given this benefit which ordinarily accrued to them.

33. In my view, so far as the fixation of last month’s emolument is concerned, there was one group, i.e., people who were in service from 01.01.2006 to 21.01.2010 and gratuity, being dependent upon the last pay drawn, no division of this group could be made. This sub-classification, if I may so call, was clearly violative of the principles of discrimination a between homogeneous group as laid down by the Apex Court in the case of D.S. Nakara (supra).

34. Here, I may take note of two judgments of the Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 22 - Apex Court. First being Union of India & Anr. Vs. S. Thakur since reported in (2008) 13 Supreme Court Cases 463 wherein paragraph-8 their Lordships have held thus:- “8.……..There is no dispute nor there can be any, to the principle that fixation of pay and date from which the benefit of revised pay scale would be admissible is the function of the executive and scope of judicial review of such an administrative decision is very limited. However, it is equally well settled that the courts interfere administrative decisions pertaining to pay fixation and pay parity as well as the date from which the revised pay scales would be made applicable if it is found that such a decision is unreasonable, unjust and prejudicial to a section of the employees.”

35. The second decision is in the case of Government of Andhra Pradesh & Ors. Vs. N. Subbarayudu & Ors. since reported in (2008) 14 Supreme Court Cases 702 and this what their Lordships said in paragraph-8 thereof:- “8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off Patna High Court CWJC No.20041 of 2012 (09) dt.30-04-2013 - 23 - 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 (3), Union of India v. Sudhir Kumar Jaiswal (4) (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn. (5) (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary, (6) 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.”