State of Tamil Nadu v. The Tamil Nadu SecretariatRetired Officials Associationthrough its Secretary

Writ Petitions filed under Article 226 of the Constitutionof India to issue Writs of Certiorari, to call for recordspertaining to the (i) order dated 11-4-2001 made in O.A.No.7224/1998; (ii) order dated 11-4-2001 in O.A.No.7630/98;(iii) orderdated 11-12-2002 made in R.A.No.71/2002 in O.A.No.7630/98;(iv)order dated 11-12-2002 made in C.A.No.23/2002 in O.A.No.7630/1998;and (v)order dated 11-12-2002 made in C.A.76/2002 made inO.A.No.7224/1998 respectively on the file of Tamil NaduAdministrative Tribunal, Chennai and quash the same. Mr. A.L. Somayaji, Addl. Advocate General assisted by Mr. D. Krishnakumar, Special Govt., Pleader for petitioner in all the W.Ps. Mr. R. Muthukannu for R-1 in W.P.Nos. 18751, 18755/2003. Mr. S.M. Subramanian for R1 in W.P.Nos. 18752 to 18754/2003. Mr. M.M. Sundaresh for R3 in W.P.Nos. 18753 to 18755/2003.COMMON ORDER(Order of Court was made by P. Sathasivam, J.,) Since the issue raised in all the writ petitions is oneand the same, they are being disposed of by the following commonorder. 2. The petitioner in all the Writ Petitions is the Stateof Tamil Nadu represented by Finance Department. Tamil NaduSecretariat Retired Officials Association through its Secretary-Mr.M. Rathnasamy filed Original Application No. 7224 of 1998 beforethe Tamil Nadu Administrative Tribunal praying for the followingrelief: "To call for the records of the respondent relatingto G.O.Ms.No. 271 Finance (Pension) Department, dated 15-6-1998 and to direct the respondent to issue an amendment toparagraphs 4 and 5 of the said G.O. extending the benefit toall pensioners/family pensioners who retired/died after 1-6-1960 till 31-5-1988; and to direct the respondent to regulateand revise pension and family pension of all themembers/pensioners of the Applicant Association to computeand refix their revised pension with effect from 1-6-1988 and https://hcservices.ecourts.gov.in/hcservices/ direct the respondent to pay them the arrears of pension andgranting from 1-6-88 within a time limit as framed by theTribunal as many of the pensioners of the ApplicantAssociation have reached the age of 70 and above." 3. Tamil Nadu Retired Officials Association throughits General Secretary, Chennai-6 has filed O.A.No. 7630 of 98before the same Tribunal praying to issue direction to therespondent/Government, to implement the order dated 6-5-96 passedby the Tribunal in O.A.1919/91 and extend the benefit of revisedpension by issuing necessary orders, that in respect of theidentically placed pensioners and family pensioners of the TamilNadu who retired/died after 1-6-1960 till 31-5-88 and whosepension/family pension plus D.A. at 608 points p.m. does not exceedRs.500/-p.m. shall be refixed with effect from 1-6-88 by increasingthe sum total of basic pension and the related D.A. at 608 pointswith 60% and whose pension/family pension/family pension plus D.A.at 608 points exceed Rs.500/-p.m. shall be refixed with effect from1-6-88 by increasing the sum total of basic pension and relatedD.A. at 608 points with 50% and directing the respondent to paythem the arrears within a time frame. 4. By common order dated 11-04-2001, the AdministrativeTribunal disposed of both the Original Applications, namely,O.A.Nos.7224 and 7630 of 1998 and allowed the same and directed therespondent, namely, Government of Tamil Nadu-Finance Department toimplement the order passed by the Tribunal in O.A.No. 1919 of 1991dated 6-5-1996 and extend the benefit of revised pension by issuingnecessary orders to the members of the applicants' Association.Besides the direction, the Tribunal has also directed the FinanceDepartment to pay arrears due to the applicants within a period ofsix months from the date of receipt of a copy of the said order.Questioning the said common order, the Finance Department has filedWrit Petition Nos. 18751 and 18752/2003. 5. Aggrieved by the order in O.A.Nos.7224/98 and7630/98, the Finance Department filed Review Application Nos. 71and 76 of 2001 respectively. For the non-implementation of thesaid order, the applicant in O.A.No.7630/1998 namely, Tamil NaduRetired Officials Association, Chennai filed Contempt ApplicationNo. 23/2002 under Section 20 of the Contempts of Courts Act. Forthe same reason, the Tamil Nadu Secretariat Retired OfficialsAssociation filed Contempt Application No. 76/2002 in O.A.No.7224/98. 6. By common order dated 11-12-2002, Tamil NaduAdministrative Tribunal dismissed the Review Application(R.A.No.71/2002)as not maintainable. After finding that theGovernment has not revised the salary, calculated the arrears andpaid the amounts to the member of the applicant Association and https://hcservices.ecourts.gov.in/hcservices/ also taking note of the fact that it has dismissed the ReviewApplication, directed the Finance Department to implement the orderwithin a period of two months and closed the Contempt Applications.Questioning the dismissal of the Review Application(R.A.No.71/2002), Finance Department has filed Writ Petition No.18753/2003 and against the order in Contempt Applications 23 and76/2002, the same Department has filed Writ Petition Nos. 18754 and18755/2003. 7. The case of the Retired Officers/Pensioners arebriefly stated hereunder: The members of the Tamil Nadu Secretariat Retired OfficialsAssociation having rendered thorough and satisfactory service, theyare drawing pension admissible and admitted by the Government intheir various posts. They formed a homogenous class of StateGovernment pensioners. On the recommendation of the Fifth TamilNadu Pay Commission, the Government in their order in G.O.Ms.No.810 Finance (PC) Department dated 9-8-1989 have issued orders interalia revising the pension/family pension of the pensioners andfamily pensioners who retired/died prior to 1-6-1960 by allowingincrease of 60% of total pension/family pension after merger of D.Aat 608 points for those drawing pension upto Rs.500/- and 50%increase for those drawing pension above Rs.500/- p.m. 8. Ambasamudram Taluk Pensioners Association, asection of Tamail Nadu Pensioners' Association, challenged theabove order in G.O.Ms.No. 810 Finance (PC) Department dated 9-8-89in O.A.No. 1919/91 contending as follows: i) The State Government Pensioners are divided into variouscategories and different rates of percentage increases are given todifferent categories. The revised formula for computation ofpension is against Article 14 of the Constitution. ii) For such classification no nexus or reasons are shownas to how the cut off dates were arrived at: iii) Pension is not a bounty or gratuitous payment butdeferred payment of wages claimable as property right. iv) The classification is arbitrary. Hence, classificationsfound in clause 2 (ii) and (iii) of the impugned G.O., are liableto be set aside. v) The rulings of the Tribunal, High Courts and SupremeCourt on giving benefits of revised pension are applicableuniformly to all pensioners similarly circumstanced and identicallysituated. 9. The Tribunal after considering the claim of theapplicants and the stand taken by the Finance Department in theircounter, accepted the case of the applicants. The relevant portionof the order is in the following: https://hcservices.ecourts.gov.in/hcservices/ "We set aside the G.O.Ms.No. 810 Finance (PayCommission) Department, dated 9-8-1989 in so far as it affectsthe applicant's Association and direct the respondent toextend the benefits of 60% increase in the pre-revised pensionplus the Dearness allowance at 608 points available to thosewho retired prior to 1-6-60 to those pensioners and familypensioners of cases of retirement or death occurring after 1-6-60."When the Government of Tamil Nadu preferred an appeal by way ofSpecial Leave Petition before the Supreme Court, the Supreme Courtdismissed the S.L.P. on 1-12-1997 pointing out that the orders ofthe Tribunal based on the facts of the case did not call forinterference. 10. The Government while implementing the said order,issued G.O.Ms.No. 271 Finance (Pension) Department, dated 15-6-1998on the verdict of the Tribunal, restricted the benefits of theorders of the Tribunal in O.A.No. 1919/1991 only to the pensionermembers of the Ambasamudram Taluk Pensioners' Association. Themembers of the Tamil Nadu Secretariat Retired Officials'Association also belong to the same homogenous class of StateGovernment Pensioners and their case is on par with the members ofthe Ambasamudram Taluk Pensioners in all respects. It is also theirclaim that the benefit ordered by the Tribunal and sanctioned bythe Government in G.O.Ms.No. 271 Finance, dated 18-6-98 shouldequally be made applicable to the members of the applicantAssociation also. 11. The Finance Department filed a reply affidavithighlighting their stand. They explained that the reason fordividing into 4 categories and the intention in fixing the cut-offdate in classifying the pensioners who retired after theimplementation of Pay Commission recommendation is that persons whoretired after the implementation of pay commission recommendationwould have derived increase pay thereby would have drawn higherrate of pension compared to those who retired prior toimplementation of Pay Commission recommendations. They alsocontended that the Government Order is not arbitrary and fixing ofa cut off date for entry as for benefits to employees/pensioners isnot violative of Article 14 of Constitution. 12. In O.A.No. 7630/98 Tamil Nadu Retired Officials'Association also prayed similar relief as granted in O.A.No.1919/91. Here again, the Finance Department filed a counterreiterating their earlier stand. 13. By common order dated 11-04-2001, the Tribunal,after finding that the applicants are similarly placed persons https://hcservices.ecourts.gov.in/hcservices/ covered by the earlier order of the Tribunal in O.A.No. 1919/91dated 6-5-1996 which is squarely applicable to these OriginalApplications and considering the fact that the said order has beenconfirmed by the Supreme Court, and that the Government have alsoimplemented the same, issued similar directions for implementingthe order in O.A.No. 1919/91 by extending the benefit of revisedpension by issuing necessary orders to the members of the applicantAssociation. 14. In the Review Application, the Finance Departmenthave once again reiterated their earlier stand and justified thedivision of 5 categories. It is also contended in the ReviewApplication that it is not always possible to explain the samebenefit to one and all, irrespective of the dates of thesuperannuation. They also raised an objection that if the requestof the applicants are accepted, it would be a financial burden forthe State Government. 15. As said earlier, since the Department has notcomplied with the order, both the Associations again approached theTribunal by way of contempt petitions for punishing the Department.After having satisfied that there is no ground for review andwithout punishing the respondents, the Tribunal extended the timefor a further period of two months for compliance of the earlierorder. 16. Questioning these orders, as said earlier,Finance Department has filed the above Writ Petitions. 17. Heard Mr. A.L. Somayaji, learned Advocate Generalfor the writ petitioners; Messrs. R. Muthukannu, S.M. Subramanianand M.M. Sundaresh for contesting respondents/pensioners/theirAssociations. 18. Now the points for consideration in these writpetitions are, (i) whether the Tribunal is justified in extending thebenefits to the applicants by directing the Finance Department toimplement the order passed by the Tribunal in O.A.No. 1919/91 dated6-5-96 and apply the benefit of revised pension by issuingnecessary orders to the applicants Association? (ii) Is there any merit in the contention of thedepartment; and (iii) Whether the common order of the Tribunal in theOriginal Applications and the Review Applications as well asContempt Applications called for interference of this Court inthese writ petitions? https://hcservices.ecourts.gov.in/hcservices/

19. The main ground upon which the Tribunal hasaccepted the claim of the petitioners-pensioners is that in respectof similarly placed persons, based on the orders of the Tribunal,in the case of Ambasamudram Taluk Pensioners' Association,implemented the direction for payment of pension as claimed. On theother hand, the stand of the State Government is that taking intoaccount the financial burden, the Government has power to fixdifferent dates and dividing the pensioners into four categoriesand also in fixing different cut off date. It is also the claim ofthe State Government that since the persons retired after theimplementation of the pay commission recommendations, would havederived increase pay thereby would have drawn higher rate ofpension compared to those who retired prior to implementation ofPay Commission recommendations, they are justified in fixingdifferent categories and cut off dates. 20. The issue in these cases referred to the claim ofthe pensioners i.e., to extend the benefits of the order of theTamil Nadu Administrative Tribunal in O.A.No. 1919 of 91 dated 6-5-96 filed by Ambasamudram Pensioners' Association, Cheranmahadevi tothe petitioners also. The said decision in O.A.No. 1919 of 91 wasupheld by the Supreme Court in S.L.P.No. 23643 of 1997 dated 1-12-1997 and the Review Petition filed by the State was dismissed on31-3-1998. It is not in dispute that thereafter the said order ofthe Tribunal dated 6-5-96 was implemented by the Government-videG.O.Ms.No. 271, Finance (P.C) Department dated 15-6-1998 in respectof the members of the Ambasamudram Pensioners' Association alone. 21. It is also not in dispute that the pensioners whohad served in the Judicial Department, unable to move theTribunal, filed Writ Petition No. 15473 of 1999 praying the reliefin line with the orders of the Tamil Nadu Administrative Tribunalin O.A.No. 1919 of 1991 dated 6-5-96 which was allowed by theDivision Bench of this Court on 25-3-2004 giving direction to therespondents namely, Secretary, Finance Department, Government ofTamil Nadu to extend the same benefits to the petitioners in thesaid writ petition, as were extended by the Tribunal by judgementdated 6-5-96 in O.A.No. 1919 of 91. The decision of the DivisionBench in Writ Petition No. 15473 of 1999 dated 25-3-2004 has beenimplemented by the Government in G.O.Ms.No. 504, Finance (Pension)Department dated 21-9-2004. 22. It was also brought to our notice that several writpetitions filed before this Court seeking the benefit of the orderin O.A.No.1919/91 and was also implemented in G.O.Ms.No. 271,Finance (P.C) Department dated 15-6-1998 were allowed at theadmission stage itself and those orders have been implemented bythe Government. https://hcservices.ecourts.gov.in/hcservices/

23. A Constitution Bench of the Supreme Court in D.S.Nakara v. Union of India, reported in AIR 1983 Supreme Court 130,considered the following questions: (para 2) "2. Do pensioners entitled to receivesuperannuation or retiring pension under Central CivilServices (Pension) Rules, 1972 form a class as a whole?Is the date of retirement a relevant consideration foreligibility when a revised formula for computation ofpension is ushered in and made effective from aspecified date? Would differential treatment topensioners related to the date of retirement qua therevised formula for computation of pension attractArt.14 of the Constitution and the element ofdiscrimination liable to be declared unconstitutional asbeing violative of Art.14?..."After discussion, the Bench has concluded: (para 65) "65. That is the end of the journey. With theexpanding horizons of socio-economic justice, thesocialist Republic and welfare State which we endeavourto set up and largely influenced by the fact that the oldmen who retired when emoluments were comparatively lowand are exposed to vagaries of continuously risingprices, the falling value of the rupee consequent uponinflationary inputs, we are satisfied that by introducingan arbitrary eligibility criteria; 'being in service andretiring subsequent to the specified date' for beingeligible for the liberalised pension scheme and therebydividing a homogeneous class, the classification beingnot based on any discernible rational principle andhaving been found wholly unrelated to the objects soughtto be achieved by grant of liberalised pension and theeligibility criteria devised being thoroughly arbitrary,we are of the view that the eligibility for liberalisedpension scheme of 'being in service on the specified dateand retiring subsequent to that date' in impugnedmemoranda. Exhibits P-1 and P-2, violates Article 14 andis unconstitutional and is struck down...."Mr. A.L. Somayaji, learned Additional Advocate General by pointingout various subsequent decisions, placed his contention that itwould be open to the Government to fix different cut off datedepending on the financial resources available with the Government.For that contention, he based reliance on the decision of theSupreme Court in Union of India v. P.N. Menon, reported in (1994) 4Supreme Court Cases 68 wherein Their Lordships after referring tothe decision in D.S. Nakara's case (supra), held that "Whenever arevision takes place, a cut-off date becomes imperative because the https://hcservices.ecourts.gov.in/hcservices/ benefit has to be allowed within the financial resources availablewith the Government. 24. In State of Rajasthan v. Amrit Lal Gandhi, reportedin (1997) 2 Supreme Court Cases 342, the Government had stated thatthe justification of the cut-off date of 1-1-90 was "whollyeconomic". While accepting the said contention, the Court held that"it cannot be said that paying capacity is not a relevant or validconsideration while fixing the cut-off date". 25. In Union of India v. Lieut (Mrs.) E. Iacats,reported in (1997) 7 Supreme Court Cases 334, while considering thechoice of date, the Supreme Court, after referring to D.S. Nakara'scase (supra) has held: (para 4) "4....This decision has been subsequentlyexplained and distinguished in a number of cases. In thecase of Sushma Sharma (Dr) v. State of Rajasthan [1985Supp SCC 45:AIR 1985 SC 1367] (AIR at p.1379) this Courtcited with approval its earlier observations in Union ofIndia v. Parameswaran Match Works Ltd (1975) 1 SCC 305:AIR 1974 SC 2349) to the effect that the choice of a dateas a basis of classification cannot always be dubbed asarbitrary unless it is capricious or whimsical...." 26. It has been held in Tamil Nadu Electricity Boardv. R. Veerasamy, reported in (1993) 3 Supreme Court Cases 414 thatfinancial constraints is a relevant material and valid reason forintroducing the pension scheme prospectively. The Supreme Court,after referring to various decisions on this issue, has concludedthat there is no arbitrariness in fixing different datesconsidering the financial resources of the Electricity Board. 27. The above decisions relied on by the learnedAdditional Advocate General make it clear that the Government iswell within its power in fixing cut-off date while implementing thenew pension scheme depending on the financial resources. If weapply the said principle strictly, the impugned order of theTribunal cannot be sustained. In this regard, it will be useful torefer the judgement of the Supreme Court in Subrata Sen v. Union ofIndia, reported in AIR 2001 Supreme Court 3634. The conclusionarrived at therein is in the following manner: (paras 16, 17, 18and 19) "16....The rules for grant of pension providethat an employee mentioned in specified category shallautomatically be member of pension fund and is entitledto get pension on the date of his retirement. Amount ofpension is to be determined as per the Rules. That Ruleis modified and the petitioners seek relief on the basis https://hcservices.ecourts.gov.in/hcservices/ of the amended rule on the ground that there cannot beany discrimination between the employees who retiredprior to or after a particular date, as held in Nakara'scase which is followed by this Court in various decisionsincluding V. Kasturi's case (AIR 1999 SC 81). Further,there is no question of pensioners (retired employees)dividing the pension fund and or payment of pension to bemade only from the pension fund. The liability to paypension arises because of provision made in the rules.In this view of the matter, the decision in SasadharChakravarty [1997 AIR SCW 93: AIR 1997 SC 336] would haveno bearing. 17. Further, in All India Reserve Bank RetiredOfficers Association v. Union of India, 1992 Supp (1) SCC661, Ahmadi, J. (as he then was) speaking for the Courtin the aforesaid decision highlighted the observations inNakara's case found at p.333, para 46 to the followingeffect: "...the pension will have to be recomputed inthe light of the formula enacted in the liberalisedpension scheme and effective from the date the revisedscheme comes into force. And beware that it is not a newscheme. It is not a new retiral benefit. It is anupward revision of an existing benefit. If it was awholly new concept, a new retiral benefit, one could haveappreciated an argument that those who had alreadyretired could not expect it." The Court further observed:- "...It must be realised that in the case of anemployee governed by the CPF (Contributory ProvidentFund) Scheme his relations with the employer come to anend on his retirement and receipt of the CPF amount butin the case of an employee governed under the pensionscheme his relations with the employer merely undergo achange but do not snap altogether. That is the reasonwhy this Court in Nakara case drew a distinction betweenliberalisation of an existing benefit and introduction ofa totally new scheme. In the case of pensioners it isnecessary to revise the pension periodically as thecontinuous fall in the rupee value and the rise in pricesof essential commodities necessitates an adjustment ofthe pension amount but that is not the case of employeesgoverned under the CPF scheme, since they had receivedthe lump sum payment which they were at liberty to investin a manner that would yield optimum return which wouldtake care of the inflationary trends. This distinctionbetween those belonging to the pension scheme and thosebelonging to the CPF scheme has been rightly emphasisedby this Court in Krishna's case (AIR 1990 SC 1782)." https://hcservices.ecourts.gov.in/hcservices/

18. Same is the position in the present case.As observed in the aforesaid case, in case of an employeegoverned under the Pension Scheme, relations with theemployer merely undergo a change, but are not snappedaltogether. There is no new scheme of payment ofpension, but it is only a revision of the existingpension scheme. Under the new Pension Scheme, pension isrequired to be paid on the basis of 40 per cent of theaverage of the last 10 months salary including averagedearness allowance drawn by the officer over the last 10months of his service instead of earlier 40 per cent, ofthe average annual basic salary for the last five yearsof service immediately preceding the date of retirement. 19. In view of the aforesaid legal position,this petition is required to be partly allowed and therespondents are directed to give pensionary benefits tothe petitioners on the basis of notification dated 10thMarch, 1995 by deleting the words "retiring fromDecember, 1994 onwards" from the said notification. Thewrit petition stands disposed of accordingly..."The above judgment of the Supreme Court applies in all fours to thecases on hand. Apart from this, the position in the present casesis altogether different as that of the cases cited by the learnedAdditional Advocate General. We have already referred to the orderof the Tribunal in O.A.No. 1919 of 91 dated 6-5-96, which wasupheld by the Supreme Court and the Review Petition filed by theState was also dismissed. It is also not in dispute that theGovernment of Tamil Nadu implemented the said order in favour ofAmbasamudram pensioners' Association. We have also referred to thedecision of the Division Bench of this Court in Writ Petition No.15473 of 1999 dated 25-3-2004, passed in the case of Pensioners whohad served in the Judicial Department and the said order was alsoimplemented by the Government. We have also referred to thevarious individual orders passed by this Court, and the acceptanceby the Government by implementing the same. Considering thepeculiar circumstances of these cases, the various orders passed bythe Tribunal, and this Court as well as the Apex Court and theimplementation of the same by the Government in having accepted thesame, we are inclined to confirm the order of the Tribunal. It wassubmitted before us that it was reported before the Tribunal whenit passed orders even in 2000-2001 that most of the pensionerseither dead or crossed the age of 70 or 75 years. Now a furtherperiod of 4 years has lapsed. Even during the course of argumentbefore us, learned counsel appearing for the respondent-pensionerssubmitted that most of the pensioners are not alive and few of themare more than 80. Taking note of these special circumstances andthe other materials namely, various earlier orders of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal/High Court/Supreme Court as well as the implementation ofthose orders by the Government, though the stand of the Governmentas projected to by the learned Additional Advocate General isacceptable, we are not inclined to disturb the conclusion arrivedat by the Tribunal at this stage. It is made clear that in viewof the peculiar circumstances of these cases, this finding of thisCourt cannot be cited as a precedent to other cases. With theabove observation, these Writ Petitions are dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. R.B.To:-1. The Secretary to Government,Finance Department Fort. St. George, Chennai-9.2. The Registrar,Tamilnadu Administrative Tribunal,Chennai-1044 cc to Mr.R. Muthukannu, Advocate, Sr. 49251, 492503 ccs to Mr.s.M. Subramaniam, Advocate, Sr. 493771 cc to Govt. Pleader, SR. 492781 cc to Mr.M.M. Sundresh, Advocate, Sr. 49730 W.P.Nos.18751 to 18755 of 2003AK (CO)kk 21/12