Kerala High Court · 2012

WPC.7569/2008, etc.4on 31.7.2004 will be entitled for the benefits under the Pay RevisionOrder of 25.3.2006 which was implemented from 1.7.2004. It is submittedthat the same amounts to gross discrimination.6. Learned Senior Counsel for the petitioners in W.P.(C)No.7569/2008 Shri M.K. Damodaran by relying upon the excerpts from theIVth Pay Revision Commission Report, elaborated the history with regardto the appointment of Pay Revision Commissions, the principlesthereon and other matters. Emphasis was laid on the fact that there was apractice to appoint Pay Revision Commission during the interval of fiveyears in the State and ten years in the Centre. It is submitted that the saidpractice had matured into a binding one and therefore the employees hadacquired a right for the pay revision to be effected every five years.Learned Senior Counsel submitted that after the submission of the PayRevision Commission's report an issue arose with regard to theimplementation of the same in the light of the Model Code of Conductpublished by the Election Commission which was taken up before thisCourt in W.P.(C) No.6668/2006. In the judgment rendered therein, theresolution of the Kerala Legislative Assembly dated 15.3.2006 has beenextracted, which will also support the case of the petitioners that pay WPC.7569/2008, etc.5revision is due every five years. It is therefore submitted that the Cabinetwhile implementing the same, ought not have accepted the recommendationof the Pay Revision Commission to implement it from 1.7.2004.7. It is further pointed out that persons who were continuing inservice from 1.3.2002 to 30.6.2004 and have retired during this period andpersons who are the beneficiaries of the pay revision order from 1.7.2004form a homogeneous class. Since all these persons form a homogeneousclass, the benefit of the pay revision cannot be denied by arbitrarily fixing acut off date. The pay revision was due for all these classes of persons.Herein by implementing it only from 1.7.2004, the persons who had to becovered by the pay revision from 1.3.2002 to 30.6.2004 are taken out of thesame which is arbitrary and violative of Article 14 of the Constitution ofIndia. Various decisions of the Apex Court including the decision of theConstitution Bench in D.S. Nakara and others v. Union of India {(1983)1 SCC 305} and other decisions following the principles stated therein,were relied upon in this context. Thus, the forceful argument projected bythe learned Senior Counsel for the petitioners is that as far as retirees for theperiod from 1.3.2002 to 30.6.2004 are concerned, they are getting pensiononly based on the pay which they were earning as per the pay revision WPC.7569/2008, etc.6order which was implemented from 1.3.1997. It makes a lot of differenceas far as retirees upto 30.6.2004 and persons who retired from 1.7.2004 areconcerned. It is submitted that by putting such an artificial barrier personswho are similarly placed are denied the due benefits which has resulted ingreat disparity. Learned Senior Counsel invited my attention to theprinciple of equal pay for equal work under Article 39(d) of theConstitution and submitted that persons who were working in the samecadre and rank cannot be denied such rights. Thus, it is pointed out thatpersons retiring in same rank are treated differently and are deniedbenefits without any justification. It is also pointed out that theGovernment, in not considering the grievances of the petitioners, has lend adeaf ear by taking recourse to the plea that it will add huge financial burden,which also is not correct. It is pointed out that during the pendency of thewrit petitions the Government passed a fresh order as far as the pensionersare concerned, as per G.O.(P) No.602/2010/Fin. Dated 19.11.2010 which isproduced as Ext.P15 in W.P.(C) No.7569/2008. By the said order eventhough certain benefits have been granted, it is only effective from 1.4.2009and the benefits are only marginal and therefore the same does not satisfythe demands of the petitioners. WPC.7569/2008, etc.78. The petitioners in W.P.(C) No.23346/2008 consist of anAssociation as well as persons who have retired from service between1.3.2002 to 30.6.2004. The petitioners in W.P.(C) No.37644/2008 includean Association and other similarly placed retirees.9. Learned Senior Counsel for the petitioners in W.P.(C)No.23346/2008, Smt.V.P. Seemanthini supported the arguments raised bylearned Senior Counsel Shri M.K.Damodaran. It is further pointed out thatactually persons like the petitioners are entitled for the benefits of payrevision itself, apart from pension revisions. It is argued that theclassification adopted is unreasonable and discriminatory. There isviolation of Articles 39(d) and 43 of the Constitution. Various decisions ofthe Apex Court were cited in support of the argument. Both the learnedSenior Counsel submitted that by implementing the pay revision from1.3.2002, there will not be huge financial burden for the Government apartfrom the fact that the petitioners’ right for such revision of pay cannot betaken away by the arbitrary fixation of the cut off date. 10. As far as W.P.(C) No.37644/2008 is concerned also, the samereliefs have been sought for. Learned counsel Shri Parthasarathy explainedthe detailed grounds taken therein. Shri Damodaran, learned Senior WPC.7569/2008, etc.8Counsel further submitted that if due weightage is given, it will redress thegrievance of the petitioners in a long way.11. Before going into the niceties of the questions posed, I willbriefly refer to the historical background relied on by the petitioners. In theIVth Pay Revision Commission's Report, Chapter III contains varioushistorical aspects relating to the efforts taken by the various Governmentsfor redressing the grievance of the Government employees and teachersunder different strata. It shows that after the State was formed on1.11.1956, the first attempt was taken in March 1957 for unifying the payscales of employees of the State to be effective from 1.11.1956. Orderswere passed in respect of various sections, viz. gazetted officers, primaryschool teachers, aided school teachers and nurses, etc. initially. The PayRevision Committee appointed for the task was headed by Shri R.Sankaranarayana Iyer, Retired Judge of the Travancore High Court, whichwas appointed in September, 1957. New pay scales became effective from1.4.1958. During the succeeding years, it appears that Pay Commissionswere being appointed during different intervals. In January 1965, the firstone chaired by Shri K.M. Unnithan, ICS (Ex.Chief Secretary of theGovernment of Andhra) was appointed. In 1968, it was chaired by Shri WPC.7569/2008, etc.9V.K. Velayudhan, former Chairman, Kerala Public Service Commission.There was another revision in 1974, based on the recommendation of a SubCommittee of Council of Ministers. In 1977, the Third Pay Commission,namely, a Single Member Commission was formed and Shri N.Chandrabhanu, Ex-Chief Secretary of the State was appointed as theCommission. The fourth one was in 1983 which was chaired by formerChief Justice Shri V.P. Gopalan Nambiar, the Vth one was chaired byJustice T. Chandrasekhara Menon, the next one by Shri G. GopalakrishnaPillai, followed by the one headed by Shri P.M. Abraham in 1997. In para15 of Chapter III of the above mentioned report, after tracing out thevarious historical factors, in sub para (ii) it is noted as follows:“The timing of the present Pay Commission calls for notice. It seemsto be the practice to appoint these commissions at intervals of(roughly) ten years in the Centre, and (roughly) at intervals of 5years in our State.” This observation is heavily relied upon by the learned Senior Counsel forthe petitioners for contending that the said practice ought to have resultedin implementation of the VIIIth Pay Commission report from 1.3.2002. WPC.7569/2008, etc.1012. The effective dates of the various pay revisions were 1.4.1958,1.1.1966, 1.7.1968, 1.7.1973, 1,7.1983, 1.7.1988 and 1.3.1992 which fact isrecorded in para 6.2 of Chapter VI of the Pay Commission report in 1997,wherein the date of effect was 1.3.1997. Therein also, it is mentioned thatthe intervals have generally been five years between two revisions but the1992 revision took place after 3 years and 8 months. In the said part of theReport, after stating various aspects for implementing the said pay revision,the Commission was of the view that the effective date can be 1.3.1997which will mark the expiry of five years since the last revision. This is alsorelied upon by the learned Senior Counsel for the petitioners.13. Now I will come to the decision of the Division Bench in W.P.(C) Nos.6668/2006 and 6829/2006. The said writ petitions were filed bythe Kerala Land Revenue Staff Association and another challenging thedecision of the Election Commission to put on hold the decision toimplement the recommendations of the Pay Commission. During the courseof discussion of various matters, the Bench referred to the resolutionadopted by the Legislative Assembly on 15.3.2006. The resolution was oneaddressed to the Central Election Commission to give permission toimplement the Pay Commission’s recommendations, in the light of the WPC.7569/2008, etc.11declaration in the Budget Speech of the Finance Minister made on10.2.2006. The following is the body of the resolution:“This Legislative Assembly request to the Central ElectionCommission to grant permission to implement immediately therecommendations of Pay Revision Commission in the circumstancethat, it has been declared in the Budget Speech of the FinanceMinister in the Legislative Assembly o n 10.2.2006 in respect of thepay revision, which was to be given on 1.3.2002 in Kerala wherethe principle of implementation of pay revision once in every 5years is accepted, and the required amount is allocated in 2006-2007 Budget.The Cabinet meeting held on 1st March 2006 accepted therecommendations of the Pay Revision Commission in principle anddeferred it for the consideration of the Special Cabinet meeting of2nd March.This Legislative Assembly unanimously request to theElection Commission to grant approval for the decision of theGovernment that, the recommendations of the pay revisioncommission submitted on 22.2.2006 to the Government alone needbe implemented, in the circumstance that the declaration ofelection has been issued.”The Bench was of the view that the restrictions imposed by the ElectionCommission on the basis of the Model Code of Conduct of election cannotbe accepted. WPC.7569/2008, etc.1214. The larger questions therefore are mainly whether: (i) Revisionof pay is due in every five years; and (ii) The cut off date fixed is arbitrary.I shall discuss these points, now, but separately.(i) Pay revision, if to be effective every five years.15. Before I dwell on the said question, another important questionthat arises is whether the right to have a pay revision, is a statutory one. Thenature of the power exercised by the Government in appointing the PayRevision Commission is also important while considering this issue.16. No particular statutory provision covers the field. There isnothing to show that any of the relevant statutes confer a right on theGovernment employees and teachers, etc. to have a pay revision, that too atthe end of every fifth year. The appointment of Pay Revision Commissionsis also not based on any provision under any particular statute. It can onlybe in terms of the executive power available to the State under Article 162of the Constitution of India. The Pay Revision Commission cannottherefore be described as a statutory body. It is not one appointed under theCommission of Inquiries Act, 1952 also. Therefore, as far as fixation of payscales are concerned, it is only an executive function. The Governmentleaves it to an expert body like Pay Revision Commission to go into various WPC.7569/2008, etc.13aspects, after reference to social factors and other general conditions,including the paying capacity of the State. The question whether the datefor implementation of a new pay revision should be from a date whichshould tally with the expiry of the fifth year of the pay revision orderpreviously effected, is therefore to be considered in the light of these vitalaspects. The issue is no longer res integra in the light of the decision of theApex court in Chandrasekhar A.K. v. State of Kerala and another{(2009) 1 SCC 73 = 2008 (4) KLT 597; 2008 (4) KHC 784}, relied uponby the learned Government Pleader, Smt. Nisha Bose. Therein, in para 18 ithas been held thus:“18. The question as to whether the scale of pay would be revisedor not is a matter of policy decision for the State. No legal rightexists in a person to get a revised scale of pay implemented. Itmay be recommended by a body but ultimately it has to beaccepted by the employer or by the State, who has to bear thefinancial burden.”Therefore, essentially it is a policy decision of the State and no legal rightexists in a person to get a revised scale of pay implemented. It is upto theGovernment to accept or reject a particular recommendation of the PayRevision Commission and the absolute freedom is for the State in thematter. Therefore, even though there was a practice (except the one in 1992 WPC.7569/2008, etc.14which was after 3 years and 8 months) as far as implementation of payrevision from 1.4.1958 is concerned to give effective dates roughly afterthe expiry of the five years of the previous revision, it cannot be said thatautomatically the employees get a right to have a pay revision on the expiryof the fifth year. The appointment of Pay Revision Commission being anexecutive fiat of the State, and as the Commission cannot be described as astatutory body and since the appointment of the Commission as well as theimplementation of their recommendation amounts to a policy decision of theState, as held by the Apex Court in Chandrasekhar’s case {(2009) 1 SCC73}, it can be safely concluded that there is no statutory right vested on theemployees to have a pay revision on the expiry of the fifth year of the lastpay revision. 17. The history of pay revisions effected in the State therefore maynot help to advance the case of the petitioners that it was due on completionof every fifth year. Of course various Commissions have been appointedfrom time to time during a span of five years roughly and evidently, asnoticed already, in 1992 the pay revision was effected after 3 years and 8months. Therefore, 5th year practice was not followed therein also.Therefore, the decision whether it should be a lesser term, namely, below WPC.7569/2008, etc.15five years or whether it should be five years or above, comes within therealm of policy of the State. There is no legal right as far as the employeesand teachers, etc. are concerned to have a pay revision on the expiry ofevery five years. The practice claimed cannot mature into a legallyenforceable right at all. Hence as contended by the petitioners, the date forimplementation need not be 1.3.2002, and the choice is of the Government.(ii) Choice of the date 1.7.2004, whether an arbitrary one.18. The date 1.7.2004 is one recommended by the Pay Commission.In Ext.P2 produced in W.P.(C) No.7569/2008, para 1.17 dealing with thesame reads as follows:“The demands of most of the Unions/Associations were that thenew pay scales should be effective from 1.3.2002 on the groundthat the five year period after the effective date of the previous PayRevision Commission is over on that date. This demand hashowever not found favour with the Commission. The new paystructure has been evolved by merging 59% of DA to the basic payand then stepping it up by a fitment which is in consonance with thepattern of the change of the pay structure at the CentralGovernment. At the Centre, the change was effected with effectfrom 1.4.2004 when 50% of DA was set apart as dearness pay.Pay plus Dearness Pay constituted the basic pay from 1.4.2004.There is therefore no case for granting revision in our State on a WPC.7569/2008, etc.16date earlier than 1.4.2004. In Kerala, where there are a largenumber of teachers in educational institutions including aidedinstitutions, revision of pay structure effective from the 1st of Julyhas been found to be more appropriate. The Commission wouldtherefore recommend that the revised pay scales may be grantedfrom 1.7.2004 but that arrears from 1.7.2004 to 31.3.2005 may betreated as notional and actual monetary benefit be granted witheffect from 1.4.2005 after adjusting the interim relief.”The date 1.7.2004 is suggested therein on different grounds. They are: (a)the new pay structure has been evolved by merging 59% of DA to the basicpay and then stepping it up by a fitment which is in consonance with thepattern of the change of the pay structure at the Central Government and atthe Centre the change was effected with effect from 1.4.2004 when 50% ofDA was set apart as dearness pay; (b) In the light of the above, there is nocase for granting a revision in the State earlier than 1.4.2004; and (c) Sincethere are large number of teachers in educational institutions includingaided institutions, the revision of pay can be effective from 1st of July.19. The Government accepted the report of the Pay Commission byissuing order dated 25.3.2006, produced as Ext.P3. Therein, in para 5 it isstated that “the existing scales of pay will be revised with effect from1.7.2004” and finally, in para 53, the date of effect is given as the WPC.7569/2008, etc.17following:“Date of effect of revised scales will be from 1.7.2004. Date ofeffect of revised time bound higher-grade scheme, variousallowances and other benefits (except surrender of earned leave)will be from 1.3.2006. Date of effect of improved ratio/percentagebased higher grades will be from the date of this order.Modification to rules 28A and 37(a) Part I KSR (vide clauses 47 to52 above) will apply to promotions, etc. taking place after the dateof this order.”The background of the choice of the date as 1.7.2004 is these. Thequestion is whether the same is arbitrary.20. With regard to the fixation of a cut of date, in various decisionsof the Apex Court, the relevant questions have been examined. Herein, asalready noticed, the status of the Pay Revision Commission is that of anexpert body. The principle which has been evolved in various decisionswill also show that normally with regard to the deliberation of an expertbody like the Pay Revision Commission, the Courts will be slow ininterfering with their recommendations, unless it is so arbitrary andwhimsical. While considering the effect of the recommendations of the PayCommission, the Apex court in Secretary, Finance Department andothers v. West Bengal Registration Service Association and others WPC.7569/2008, etc.18{(1993) Supp(1) SCC 153}, examined and laid down the limits of thepower of the Court to go into the validity of such recommendations of thePay Commission. In para 12, it was held thus:“We do not consider it necessary to traverse the case law on whichreliance as been placed by counsel for the appellants as it is wellsettled that equation of posts and determination of pay scales is theprimary function of the executive and not the judiciary and,therefore, ordinarily courts will not enter upon the task of jobevaluation which is generally left to expert bodies like the PayCommission, etc. But that is not to say that the Court has nojurisdiction and the aggrieved employees have no remedy if they areunjustly treated by arbitrary State action or inaction. Courts must,however, realize that job evaluation is both a difficult and timeconsuming task which even expert bodies having the assistance ofstaff with requisite expertise have found difficult to undertakesometimes on account of want of relevant data and scales forevaluating performances of different groups of employees……………………………. There can, therefore, be no doubt that equation ofposts and equation of salaries is a complex matter which is best leftto an expert body unless there is cogent material on record to cometo a firm conclusion that a grave error had crept in while fixing thepay scale for a given post and Court’s interference is absolutelynecessary to undo the injustice.”Of course, the above observations were made while considering the scope of WPC.7569/2008, etc.19interference on the principles adopted by the Pay Commission, but theseprinciples will have to be borne in mind while considering the questionsposed herein and the validity of the recommendation made by theCommission in Ext.P2, regarding the date of effect.21. As regards fixation of cut off date and the scope of interferenceby Courts, the relevant principles were examined in State of West Bengaland others v. Ratan Behari Dey and others {(1993) 4 SCC 62}, inparagraphs 7, 8 and 9 and finally it was held thus:“It is open to the State or to the Corporation, as the case may be, tochange the conditions of service unilaterally. Terminal benefits aswell as pensionary benefits constitute conditions of service. Theemployer has the undoubted power to revise the salaries and/orthe pay scales as also terminal benefits/pensionary benefits. Thepower to specify a date from which the revision of pay scales orterminal benefits/pensionary benefits, as the case may be, shalltake effect is a concomitant of the said power. The State canspecify a date with effect from which the Regulations framed, oramended, as the case may be, shall come into force. It waswithin the power of the Corporation to enforce the Regulationseither prospectively or with retrospective effect from such date asthey might specify. Only condition is that in such cases the Statecannot pick a date out of its hat. It has to prescribe the date in areasonable manner, having regard to all the relevant facts and WPC.7569/2008, etc.20circumstances. So long as such date is specified in a reasonablemanner, i.e. without bringing about a discrimination betweensimilarly situated persons, no interference is called for by the Courtin that behalf on ground of discrimination.” (Emphasis supplied).Herein, the principles stated in D.S. Nakara's case {(1983) 1 SCC 305}have been distinguished. The relevant principles laid down by the ApexCourt therein would show that it is the power of the employer to revise thesalaries and/or the pay scales as also terminal benefits/pensionary benefits.Therefore, the power to fix a cut off date is the concomitant of the saidpower. The date has to be fixed in a reasonable manner. 22. Relying on the above decision, in a later case in State ofRajasthan and another v. Amrit Lal Gandhi and others (AIR 1997 SC782), it was held that financial impact can be a sole consideration whilefixing the cut off date. 23. In this context, Shri Damodaran relied upon the decision of aConstitution Bench of the Apex Court in D.S. Nakara’s case {(1983 (1)SCC 305}. Para 42 of the said judgment reads as follows:“If it appears to be indisputable, as it does to us that the pensionersfor the purpose of pension benefits form a class, would its upwardrevision, permit a homogeneous class to be divided by arbitrarilyfixing an eligibility criteria unrelated to purpose of revision, and WPC.7569/2008, etc.21would such classification be founded on some rational principle?The classification has to be based, as is well settled, on somerational principle and the rational principle must have nexus to theobjects sought to be achieved. We have set out the objectsunderlying the payment of pension. If the State considered itnecessary to liberalise the pension scheme, we find no rationalprinciple behind if for granting these benefits only to those whoretired subsequent to that date simultaneously denying the same tothose who retired prior to that date. If the liberalisation wasconsidered necessary for augmenting social security in old age togovernment servants then those who retired earlier cannot be worstoff than those who retire later. Therefore, this division whichclassified pensioners into two classes is not based on any rationalprinciple and if the rational principle is the one of dividingpensioners with a view to giving something more to personsotherwise equally placed, it would be discriminatory. Toillustrate, take two persons, one retired just a day prior and anothera day just succeeding the specified date. Both were in the samepay bracket, the average emolument was the same and both had putin equal number of years of service. How does a fortuitouscircumstance of retiring a day earlier or a day later will permittotally unequal treatment in the manner of pension? One retiring aday earlier will have to be subject to ceiling of Rs.8100 p.a. Andaverage emolument to be worked out on 36 months; salary whilethe other will have a ceiling of Rs.12,000 p.a. And averageemolument will be computed on the basis of last 10 months; WPC.7569/2008, etc.22average. The artificial division stares into face and is unrelated toany principle and whatever principle, if there be any, hasabsolutely no nexus to the objects sought to be achieved byliberalising the pension scheme. In fact, this arbitrary division hasnot only no nexus to the liberalised pension scheme but it iscounterproductive and runs counter to the whole gamut of pensionscheme. The equal treatment guaranteed in Article 14 is whollyviolated inasmuch as the pension rules being statutory in character,since the specified date, the rules accord differential anddiscriminatory treatment to equals in the matter of commutation ofpension. A 48 hours' difference in matter of retirement would havea traumatic effect. Division is thus both arbitrary andunprincipled. Therefore, the classification does not stand the testof Article 14.”Of course, the principles stated therein would show that when thepensioners form a class, such a homogeneous class cannot be divided byarbitrarily fixing an eligibility criteria. It was held that the classifications insuch cases will not stand the test of Article 14 of the Constitution. The saiddecision of the Apex Court was considered in various later decisions withregard to the universal applicability of the principles stated, as quotedabove. In fact, the said judgment considered a case where a liberalizedpension scheme was introduced for computation of pension as far as WPC.7569/2008, etc.23pensioners are concerned. The said liberalized pension formula was madeapplicable prospectively to those who were in service and retired on orafter March 31, 1979 in respect of Government employees. Therefore,actually it was the liberalization of an existing formula and it was not theintroduction of a new formula. This is the distinguishing feature as far asthe said case is concerned, as explained by the Apex Court in subsequentdecisions including Constitution Bench decisions. In fact, in para 46 of thejudgment in Nakara's case (supra), it was held thus:“And beware that it is not a new scheme, it is only a revision ofexisting scheme. It is not a new retiral benefit. It is an upwardrevision of an existing benefit. If it was a wholly new concept, anew retiral benefit, one could have appreciated an argument thatthose who had already retired could not expect it.”These observations are quite important.24. I shall now refer to certain decisions of the Apex Court whereinthe principles stated in Nakara's case (supra) have been explained anddistinguished. In Union of India v. P.N. Menon and others {(1994) 4SCC 68, the dictum laid down in D.S, Nakara’s case {(1983) 1 SCC 305)was distinguished. While considering the question whether a cut off datefixed can be termed as arbitrary, the relevant principles were laid down thus WPC.7569/2008, etc.24in para 8:“Whenever the Government or an authority, which can be held tobe a State within the meaning of Article 12 of the Constitution,frames a scheme for persons who have superannuated from service,due to many constraints, it is not always possible to extend thesame benefits to one and all, irrespective of the dates ofsuperannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which canbe held to be reasonable and rational in the light of Article 14 of theConstitution, need not be held to be invalid. It shall not amount to“picking out a date from the hat”, as was said by this Court in thecase of D.R. Nim v. Union of India (AIR 1967 SC 1301) inconnection with fixation of seniority. Whenever a revision takesplace, a cut-off date becomes imperative because the benefit hasto be allowed within the financial resources available with theGovernment.” (Emphasis supplied)It will be evident from the said paragraph that the financial resourcesavailable to the Government is also a relevant criterion. It was held furtherthus in para 14 wherein the explanation given by the Central Governmentwith regard to the choice date, was accepted.“According to us, for the reasons disclosed on behalf of theappellant-Union of India for fixing 30.9.1977 as the cut-off date,which date was fixed when the price index level was 272, cannot be WPC.7569/2008, etc.25held to be arbitrary. The decision to merge a part of the dearnessallowance with pay, when the price index level was at 272, appearsto have been taken on basis of the recommendation of the ThirdPay Commission. As such it cannot be held that the cut-off datehas been selected in an arbitrary manner. Not only in matters ofrevising the pensionary benefits, but even in respect of revision ofscales 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 employeesand fixes the 1st day of January of the next year for implementingthe same or the 1st day of January of the last year. In either case, abig section of its employees are bound to miss the said revision ofthe scale of pay, having superannuated before this date. Anemployee, who has retired on 31st December of the year inquestion, will miss the pay scale only by a day, which may affecthis pensionary benefits throughout his life. No scheme can beheld to be foolproof, so as to cover and keep in view all personswho were at one time in active service. As such the concern of thecourt should only be, while examining any such grievance, to see,as to whether a particular date for extending a particular benefit orscheme, has been fixed, on objective and rational considerations.”Therefore, it is evident that whenever the Government fixes the date ofimplementation of a pay revision order starting from the first day of amonth, any employee who retired on 31st of the previous month, will miss WPC.7569/2008, etc.26the new pay scale which may affect the pensionary benefits. But suchalone shall not be the consideration, going by the principles stated by theApex Court in the above decision. In taking this view, the Apex Courtrelied upon two decisions of the Constitution Benches, viz. KrishenaKumar v. Union of India {(1990) 4 SCC 207} and Indian Ex-servicesLeague v. Union of India {(1991) 2 SCC 104} both of which explainedand distinguished the principles laid down in D.S. Nakara’s case (supra).In fact, the Constitution Bench in Indian Ex-services League’s case(supra) held that the conclusion in D.S. Nakara’s case (supra) was in thecontext of the benefits of liberalization given in accordance with theliberalized pension scheme which had to be given equally to all retireesirrespective of their date of retirement and those benefits could not beconfined to only persons who retire on or after a specified date. In AmritLal Gandhi's case (AIR 1997 SC 782), the Apex Court, after consideringthe dictum laid down in Ratan Behari Dey's case (supra) and P.N.Menon’s case (supra) held in paragraph 17 that “financial impact of makingthe regulations retrospective, can be the sole consideration while fixing acut off date. In our opinion, it cannot be said that this cut off date was fixedarbitrarily or without any reason. The High Court was clearly in error in WPC.7569/2008, etc.27allowing the writ petition by substituting the date 1.1.1986 by 1.1.1990.”25. In State of W.B. v. Monotosh Roy and another {(1999) 2 SCC71} an officer who retired long prior to the acceptance of the PayCommission’s recommendations which provided revised pension, soughtfor the benefit of the same by contending that the cut off date fixed isarbitrary. The Bench noticed that the new provision for payment ofpension was only consequent to the restructuring of the pay scale. Therein,in para 10 the legal position was explained thus:“We have already referred to the fact that the new provisions forpayment of pension introduced by the amendment of 1987 wereonly consequent to the restructuring of the pay scales of themembers of the Service. The Division Bench of the High Court hasrecognized the position that the writ petitioner cannot claim benefitof higher pay scale, having retired from service long before theintroduction of such pay scales.”The decisions of the Apex Court in D.S. Nakara’s case {(1983) 1 SCC305)} was explained and reliance was placed on various decisions includingP.N. Menon’s case {(1994) 4 SCC 68} and Amrit Lal Gandhi's case (AIR1997 SC 782). Similar is the case considered by the Apex Court in State ofPunjab and others v. Boota Singh and another {(2000) 3 SCC 733}wherein also the petitioners sought the benefits conferred by WPC.7569/2008, etc.28orders/notifications issued subsequent to their retirement. It was held thatconferment of additional benefits from a particular date, cannot be termed asarbitrary. It was held thus in paragraph 7:“On merits we find that the retirement benefits which are claimedby the respondent are benefits which are conferred by subsequentorders/notifications. Therefore, persons who retired after thecoming into force of these notifications and order are governed bydifferent rules of retirement than those who retired under the oldrules and were governed by the old rules. The two categories ofpersons, who retired were governed by two different sets of rules.They cannot, therefore, be equated. Further, granting of additionalbenefits has financial implications also. Hence, specifying the datefor the conferment of such additional benefits cannot be consideredas arbitrary.”Obviously, the fact that the two sets of persons are governed by different setof rules was emphasised, to drive home the point. Another important factoris that the Apex Court was of the view that granting of additional benefitswill result in financial implications and therefore the specification of thedate cannot be considered as arbitrary. Therein also, D.S. Nakara’s case(supra) was explained and it was held thus in para 8:“………The latest decision is in the case of K.L. Rathee v. Union ofIndia – (1997) 6 SCC 7) where this Court, after referring to various WPC.7569/2008, etc.29judgments of this Court, has held that Nakara case – {(1983) 1SCC 305} cannot be interpreted to mean that emoluments ofpersons who retired after a notified date holding the same status,must be treated to be the same…….”It may be worth mentioning here that it was a case where, the new benefitswere granted to retirees on or after 31.3.1985, whereas the petitionerstherein retired in the year 1982.26. I will now refer to some of the recent decisions also wherein thesame view has been taken, after elaborately considering the decision in D.S.Nakara’s case (supra). 27. In State of Punjab v. Amar Nath Goyal {(2005) 6 SCC 754}the cut off date was adopted to give benefits to the retirees on or after1.4.1995 and one of the reasons pointed out by the Government wasfinancial constraints which was held to be a valid ground by the ApexCourt. A reading of the judgment will show that the new benefits weregranted based on the recommendation of the Pay Commission. Inparagraph 26 the legal position was explained as follows:“It is difficult to accede to the argument on behalf of the employeesthat a decision of the Central Government/State Governments tolimit the benefits only to employees, who retire or die on or after1.4.1995, after calculating the financial implications thereon, was WPC.7569/2008, etc.30either irrational or arbitrary. Financial and economic implicationsare very relevant and germane for any policy decision touching theadministration of the Government, at the Centre or at the Statelevel.”Thus, it is important to notice that financial and economic implications arealways relevant as far as evolving of any policy decision touching theadministration of the Government at Central and State level. Therein also, itwas held that the Pay Commission’s recommendations were not alwaysbinding on the Government. In fact, in that case also the cut off date wassuggested by the 5th Pay Commission and the acceptance of the same by theGovernment was held to be not irrational or arbitrary or infringement of theright under Article 14 of the Constitution of India. The said view is clearfrom the following findings in paragraph 28:“As we have already noticed, 1.4.1995 was the date suggested bythe Fifth Central Pay Commission (“Pay Commission”) in itsInterim Report. The Central Government took a conscious standthat the consequential financial burden would be unbearable. It,therefore, chose to taper down the financial burden by making thebenefits available only from 1.4.1995. It is trite that, the finalrecommendations of the Pay Commission were not ipso factobinding on the Government, as the Government had to accept andimplement the recommendations of the Pay Commission consistent WPC.7569/2008, etc.31with its financial position. This is precisely what the Governmentdid. Such an action on the part of the Government can neither becharacterised as irrational, nor as arbitrary so as to infringe Article14 of the Constitution.”The above principle will be of much application in the facts andcircumstances of the present cases. In fact, various decisions of the ApexCourt starting from D.S. Nakara’s case (supra) and followed by P.N.Menon’s case (supra) and other decisions were discussed while arriving atthe said conclusion and finally from paragraphs 31 to 37 variousjudgments were discussed and it was held that the cut off date 1.4.1995 wasfixed based on a very valid ground, viz. financial constraint. For easyreference the said paragraphs are reproduced below:“31. In Action Committee South Eastern Rly. Pensioners v.Union of India (1991 Supp.(2) SCC 544), it was held that onmerger of a part of dearness allowance as dearness pay on AveragePrice Index Level at 272 with reference to different pay ranges,fixing a cut-off date in such a manner was not arbitrary and theprinciple enunciated in D.S. Nakara (1983) 1 SCC 305, was notapplicable. 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) 2 SCC 104, State Govt. Pensioners Assn.v. State of A.P. - (1986) 3 SCC 501 and All India Reserve BankRetired Officers' Assn. v. Union of India - 1992 Supp.(1) SCC 664) WPC.7569/2008, etc.32are apt. In all these cases, the prescription of a cut-off date forimplementation 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 thisCourt in numerous judgments including the following two cases.In State of Rajasthan v. Amrit Lal Gandhi - AIR 1997 SC 782 thisCourt went so as far as to note that:“Financial impact of making the Regulations retrospectivecan be the sole consideration while fixing a cut-off date. Inour opinion, it cannot be said that this cut-off date was fixedarbitrarily or without any reason. The High Court was clearlyin error in allowing the writ petitions and substituting thedate of 1.1.1986 fo4 1.1.1990.” at AIR p.784 para 17.33. More recently, in Veeraswamy - (1999) 3 SCC 414 thisCourt observed that, financial constraints could be a valid groundfor introducing a cut-off date while implementing a pensionscheme on a revised basis (SCC page 421). In that case, thepension scheme applied differently to persons who had retiredfrom service before 1.7.1986, and those who were in employmenton the said date. It was held that they could not be treated alike asthey did not belong to one class and they formed separate classes.34. In State of Punjab v. Boota Singh - (2000) 3 SCC 733(“Boota Singh”) after considering several judgments of this Courtin D.S. Nakara (1983) 1 SCC 305) to K.L. Rathee v. Union ofIndia (1997) 6 SCC 7, it was held that D.S. Nakara should not be WPC.7569/2008, etc.33interpreted to mean that the emoluments of persons who retiredafter a notified date holding the same status, must be treated to bethe same. (SCC at page 735)35. In State of Punjab v. J.L. Gupta (2000) 3 SCC 736,where one of us was on the Bench (Sabharwal, J.) the viewsexpressed in Boota Singh were reiterated, and it was held that forthe grant of additional benefit, which had financial implications,the prescription of a specific date for conferment of additionalbenefit, could not be considered arbitrary. (SCC at page 737)36. In Ramrao v. All India Backward Class BankEmployees Welfare Assn. (2004) 2 SCC 76, a Division Bench ofthis Court said, even for the purpose of effecting promotion,fixing of a cut-off date was neither arbitrary, unreasonable nor didit offend Article 14 of the Constitution. Moreover, the Court heldthat possible hardship to be endured by a person as a result did notmake cut-off dates violative of Article 14. (SCC at page 88)37. In the instant case before us, the cut-off date has beenfixed as 1.4.1995 on a very valid ground, namely, that of financialconstraints. Consequently, we reject the contention that fixing ofthe cut-off date was arbitrary, irrational or had no rational basis orthat it offends Article 14.” Herein also, the Government's stand is that by adopting the date 1.3.2002will result in huge financial liabilities to the Government. Going by thedictum laid down in the above said case, the said stand cannot be said to be WPC.7569/2008, etc.34irrational and consequently the cut off date fixed cannot be said to bearbitrary.28. The above decision of the Apex Court was relied upon in Stateof A.P. and another v. A.P. Pensioners’ Association and others {(2005)13 SCC 161}. Therein, it was held that financial constraint is a relevantcriterion for determining grant of benefits by a State Government by fixinga cut-off date. The said case also was one which considered theimplications of Pay Revision Commission’s recommendation and theargument regarding the arbitrary nature of the cut off date was repelled byrelying upon the judgment in Amar Nath Goyal’s case {(2005) 6 SCC754} and it was held thus in paragraph 39:“It is, therefore, beyond any shadow of doubt that the financialimplication is a relevant criterion for the State Government todetermine as to what benefits can be granted pursuant to or infurtherance of the recommendations made by PRC. PRC also saidthat while revision of pay shall take effect from 1.7.1998, themonetary benefit would be payable only from 1.4.1999. Ifmonetary benefit was payable only from 1.4.1999, all rights to getthe benefits computed on the basis of the revised scale of paywould only be for the purpose of payment of pay with effect from1.4.1999 or payment of the recurring amount of pension witheffect from that date.” WPC.7569/2008, etc.3529. In Government of A.P. v. Subbarayudu (2008 (2 ) KLT 681 –SC) these principles were reiterated in paragraphs 4 to 7 as follows:“4. In a catena of decisions of this Court it has been held that thecut off date is fixed by the executive authority keeping in view theeconomic conditions, financial constraints and many otheradministrative and other attending circumstances. This Court isalso of the view that fixing cut off dates is within the domain of theexecutive authority and the court should not normally interfere withthe fixation of cut off date by the executive authority unless suchorder appears to be on the face of it blatantly discriminatory andarbitrary. (See State of Punjab & Ors. v. Amar Nath Goyal &others (2005) 6 SCC 754.)5. No doubt in D.S. Nakara & Ors. v. Union of India (1983)1 SCC 305) this Court had struck down the cut off date inconnection with the demand of pension. However, in subsequentdecisions this Court has considerably watered down the rigid viewtaken in Nakara's case (supra), as observed in para 29 of thedecision of this Court in State of Punjab & Ors. v. Amar NathGoyal & Ors. (Supra).6. There may be various considerations in the mind of theexecutive authorities due to which a particular cut off date has beenfixed. These considerations can be financial, administrative orother considerations. The Court must exercise judicial restraint andmust ordinarily leave it to the executive authorities to fix the cut offdate. The Government must be left with some leeway and free play WPC.7569/2008, etc.36at the joints in this connection.7. In fact several decisions of this Court have gone to theextent of saying that the choice of a cut off date cannot be dubbedas arbitrary even if no particular reason is given for the same in thecounter affidavit filed by the Government, (unless it is shown tobe totally capricious or whimsical) vide State of Bihar v. RamjeePrasad (1990) 3 SCC 368), Union of India & Anr. v. Sudhir KumarJaiswal (1994) 4 SCC 212)(vide para 5), Ramrao & Ors. v. AllIndia Backward Class Bank Employees Welfare Association &Ors. (2004) 2 SCC 76) (vide para 31), University GrantsCommission v. Sadhana Chaudhary & Ors. (1996) 10 SCC 536)etc. It follows, therefore, that even if no reason has been given inthe counter affidavit of the Government or the executive authorityas to why a particular cut off date has been chosen, the Court muststill not declare that date to be arbitrary and violative of Art.14unless the said cut off date leads to some blatantly capricious oroutrageous result.”The above decision will show that there can be different considerations, viz.economic conditions, financial constraints, administrative exigencies, etc. infixing a cut-off date and the court should not normally interfere with thesame. 30. Even if no particular reason is given, the cut-off date fixedcannot be termed as arbitrary. This legal position was explained and WPC.7569/2008, etc.37reiterated in a recent decision of the Apex Court in Orissa PowerTransmission Corporation Limited v. Khageswar Sundaray and others{(2011) 8 SCC 269) by relying upon earlier decisions of the Apex Court,and it was held thus in paragraphs 14 and 15:“14. This Court in State of Bihar v. Ramjee Prasad - (1990) 3SCC 368) held: (SCC pp.373-74, para 8)“8. …. The choice of the date cannot be dubbed asarbitrary even if no particular reason is forthcoming for thesame unless it is shown to be capricious or whimsical or wideoff the reasonable mark”.15. In a recent case in National Council for Teacher Education v.Shri Shyam Shiksha Pr4ashikshan Sansthan – (2011) 3 SCC 238this Court after referring to various earlier authorities on the pointin Sushma Sharma (Dr.) v. State of Rajasthan – 1985 Supp.SCC45, UGC v. Sadhana Chaudhary – (1996) 10 SCC 536, Ramrao v.All India Backward Class Bank Employees Welfare Assn. – (2004)2 SCC 76 and State of Punjab v. Amar Nath Goyal – (2005) 6 SCC754, has reiterated this position of law and has held the cut-offdates specified in Clauses (4) and (5) of Regulation 5 of theNational Council for Teacher Education (Recognition Norms andProcedure) Regulations, 2007 to be valid.”Hence, absence of reasons for fixing a cut off date, may not result in anadverse conclusion on its legality. It will have to be adjudged after WPC.7569/2008, etc.38analysing the relevant aspects including the nature of the benefits grantedand the like.31. A Division Bench of this Court recently, in a similar matter didnot interfere with the cut off date fixed by the Kerala State Electricity Boardfor limiting the benefit of pay revision to its employees, in Kerala StateElectricity Board and others v. P.N. Raghukumar and others (2011 (4)KHC 900). Therein, the facts of the case show that the respondents retiredfrom the service of the Board in the year 2003 and after their retirement payrevision order was implemented, resulting in consequent increase in DCRGand rate of commutation of pension. The learned Single Judge interferedwith the cut off date fixed and the Division Bench, after examining theprinciples laid down in the decision of the Apex Court in Nakara’s case{(1983) 1 SCC 305}, relied upon P.N. Menon’s case {(1994) 4 SCC 68}and other decisions, and held that the cut-off date fixed based on financialconstraints and economic conditions, cannot be said as arbitrary. It washeld thus in para 5:“5………We find that the cut-off date fixed by the appellants inExt.P1 keeping in view of the economic conditions, financialconstraints and other administrative and attending circumstancesis neither arbitrary nor discriminatory nor illegal. The appellants WPC.7569/2008, etc.39are justified in fixing a cut-off date to limit the benefit of revisionand the learned Single Judge went wrong in interfering with theorder impugned.”32. In the light of the above principles, it can be seen that therecannot be any blind and automatic or universal application of the principlesstated by the Apex Court in Nakara’s case(supra), wherein theliberalization of an existing scheme was the important aspect that had to beconsidered. Herein the pay revision order Ext.P3 conferred various newbenefits, by introducing new pay scales for the existing serving employees.Therefore, evidently it is a new benefit that is granted as per the payrevision order. The date adopted by the Pay Revision Commission, asalready noted, was on the basis of different criteria discussed in para 1.17of Ext.P2, quoted above. They had noticed that at the Centre pay plus D.A.constitute the basic pay from 1.4.2004 which principle was also adopted forthe pay revision, wherein the new pay structure was evolved by merging59% of D.A. to the basic pay. It is accordingly that 1.7.2004 was selectedas the date for implementation. The pay revision order subsequently issuedby the Government as per Ext.P3 implemented it from 1.7.2004. Para 40therein will show that the arrears of salary on fixation of pay in the revisedpay scales for the period from 1.7.2004 to 31.3.2005 will be notional. The WPC.7569/2008, etc.40revised scale of pay and allowances will be granted from March 2006onwards. The date of the order, Ext.P3 is 25.3.2006. The arrears from1.4.2005 to 28.2.2006 would be credited to the Provident Fund Account ofthe employees. 33. Much argument was raised with regard to the contention of theState that if the pay revision is implemented from 1.3.2002 it may causeadditional financial burden running into thousands of crores of rupees. Infact in the counter affidavit filed by the second respondent it is explainedthat the employees who had retired between 1.3.2002 to 30.6.2004 havebeen benefited by the revision of pension with effect from the same date ofpay revision. It is explained that when a revision of pay or pension isimplemented it is natural to fix a cut off date for such revision which cannotbe avoided. There will be a group within the cut off date and the insidegroup will be benefited by the revision of pay and the outside group will bebenefited by the revision of pension. It is also the stand of the Governmentthat neither it is mandatory to revise the pay and allowances of StateGovernment employees once in five years nor such a policy has beenaccepted by the Government. It is the prerogative of the Government todecide the revision of pay and allowances of its employees, to appoint pay WPC.7569/2008, etc.41commission for studying and making recommendations for the revision andto implement the recommendation with modifications, if necessary,considering the overall position which warrants the necessity of a payrevision including the financial position of the State. In para 7 it is pointedout that the recommendation of the Pay Commission to implement therevision with effect from 1.7.2004 was accepted by the Government. It isstated in para 8 that the Government have examined the matter in the lightof the directions issued by this Court, as to whether the pay revision couldbe implemented with effect from 1.3.2002 or from 1.7.2004. Onexamination it was found that the financial commitment around Rs.3275crores or Rs.2275 crores respectively cannot be borne by the Stateexchequer for implementing it. Besides, Government cannot grant revisionof scale of pay even notionally for a group of employees who retired formservice in between 1.3.2002 and 30.6.2004 while leaving others who werein service but not retired during the period, in pre revised scale for theperiod without the benefit of pay revision and that would be discriminatory.The pensioners who retired before 1.7.2004 are benefited by the pensionrevision and the periodical increase in consumer price index is beingproperly compensated by periodically increasing DA at the same rate as in WPC.7569/2008, etc.42the case of Government servants who are still in service. Thus, it is thecontention of the State that financial capacity was the relevant criterion infixing the date. Going by the various decisions of the Apex Court,financial constraint is a relevant criterion.34. The petitioners have got a case that the figures quoted by theGovernment in the counter affidavit for granting benefits if the pay revisionis implemented from 1.3.2002 may not be correct. It is contended that thefinancial implications will be far less than the figures quoted by theGovernment. As far as this Court is concerned, there is no other material inthe matter, so as to accept the plea raised by the petitioners that the financialimplications will be on a much lesser scale.35. The next question therefore is related to the important aspectargued by the learned Senior Counsel for the petitioners that the petitionersform a homogeneous class with that of the persons who are benefited by thepay revision from 1.7.2004. Learned Government Pleader submitted thatthe classification as suggested by the learned Senior Counsel for thepetitioners may not be the correct one and decisions in support of the pleawere relied on.36. As already noticed, the argument of Shri M.K. Damodaran and WPC.7569/2008, etc.43Smt. V.P. Seemanthini, learned Senior Counsel is that the pay revision hadto be effected from 1.3.2002, after five years of the previous pay revision.Therefore, all the persons who were in service and retired from 1.3.2002 to30.6.2004 and the persons in service from 1.7.2004 will form only onehomogeneous class. While accepting the recommendations of the VIIIthPay Commission, the above homogeneous class cannot be divided by fixingthe cut off date as 1.7.2004. Learned Government Pleader explained thatpersons who have retired from 1.3.2002 to 30.6.2004 will form ahomogeneous class along with the retirees upto 29.2.2002. Therefore, it isonly a case where the dividing line is between retirees and the persons inservice after 1.7.2004. The point that is argued by the learned SeniorCounsel for the petitioners could be accepted only if it is held mandatory forthe Government to implement a pay revision at the expiry of the fifth yearof the previous pay revision which was on 28.2.2002, herein. As alreadyheld by me, the decision of the Government to revise the pay scale, is amatter of policy. It is not a statutory right of the employees. If that be so,they cannot ask for a pay revision on the date of expiry of the previous payrevision, i.e. from 1.3.2002. Hence, the persons who have retired from1.3.2002 upto 30.6.2004 will only form one class along with the retirees WPC.7569/2008, etc.44upto 29.2.2002. The persons who were in service and retired upto30.6.2004 were beneficiaries of the previous pay revision order. Thepension and other benefits will have to be calculated in terms of the payscales prevalent at that point of time. They cannot contend for the positionthat they are entitled for the new pay scales as made applicable from1.7.2004. As pointed out by the Apex Court in various decisions notedalready, whenever a date is fixed for implementation of the pay revision,one set of persons who retired upto the just previous day will not be coveredby it and that itself is not a ground to show that the date adopted isarbitrary. Therefore, the argument that persons in the same rank will getdifferent rates of pension based on the date of retirement as 30.6.2004 or1.7.2004 is also of no consequence.37. Hence, I am of the view that the financial constraints pleaded bythe Government will be of relevance while considering the arguments ofthe learned Senior Counsel for the petitioners. If the argument of thepetitioners are accepted, it will have another impact also. If the pay revisionis implemented from 1.3.2002 to cover the retirees upto 30.6.2004, thenautomatically persons in service during such period and continuingthereafter also will have to be given the benefit of the pay revision as in WPC.7569/2008, etc.45their case it cannot be limited from 1.7.2004 as now implemented.Therefore, if those persons in service as on 1.7.2004 are excluded, it will betermed as arbitrary, evidently. Hence, the Government’s financial burdenwill be more and more.It can thus be seen that the date fixed as 1.7.2004cannot be termed as arbitrary for any reason.38. I will now refer to the decisions relied upon by the learned SeniorCounsel for the petitioners and learned Government Pleader. As alreadynoticed, the petitioners relied upon D.S. Nakara’s case {(1983) 1 SCC305} itself which was only a case of implementation of revised liberalizedpension formula for the retirees who formed only a homogeneous class.The decision of the Constitution Bench in Deokinandan Prasad v. TheState of Bihar and others (AIR 1971 SC 1409) was relied upon to contendthat the right of pension is a valuable right vesting in a Government servant.There cannot be any quarrel with the said proposition. The decision of theApex Court in Mohanlal Ujamshi Shah and another v. Union of India{(1984) 3 SCC 126} only adopted Nakara's case (supra) to grant benefitsto retirees irrespective of date of retirement.39. Heavy reliance was placed on K.L.Rathee v. Union of Indiaand others (1997 KHC 935). That was a case wherein the dispute arose WPC.7569/2008, etc.46based on the Government Order issued by the Central Government whileimplementing the judgment in D.S.Nakara’s case (supra). TheGovernment by order dated 22.10.1983 implemented the judgment bygranting benefit to all pensioners covered by CCS (Pension Rules) as wellas Liberalised Pension Rules, 1950. The contention was that the petitionerhad to be given the same amount of pension, as other employees of his rankirrespective of the date of retirement and accordingly a higher pension wasclaimed as was being given to persons who retired after 1.4.1979. TheApex Court examined the question in the light of the factual position also.A reading of the judgment will show that the same will not help thecontentions raised by the learned Senior Counsel for the petitioners herein.The Apex Court noticed that the judgment in D.S. Nakara’s case (supra)did not strike down the definition of ‘emoluments’. It was held as follows:“This Court did not hold that those who have retired before1.4.1979 must be treated as having the same emoluments as thosewho retired on or after 1.4.1979 for the purpose of calculation ofpension. Therefore, on the strength of Nakara’s case (AIR 1983SC 130) (supra) the petitioner is not entitled to ask forcomputation of pension with reference to emoluments which henever got.”The Apex Court examined various decisions including that of the WPC.7569/2008, etc.47Constitution Bench decisions in Indian Ex-services League’s case – 1991(1) SCR 158), Krishena Kumar v. Union of India – AIR 1990 SC 1782and other decisions and finally held in para 12 thus:“Clearly appears from all these cases that Nakara’s case (AIR1983 SC 130) is not a case of universal application irrespective ofthe facts and circumstances of the case. When the Governmentdecided that pension was to be calculated on the basis of averagesalary drawn over a period of last ten months, it was held inNakara, that this principle has to be applied even to those personswho had retired before the notified date. That, however, does notmean that the emoluments of the person who were retiring after thenotified date and those who have retired before the notified dateholding the same status must be treated to be the same. Thisargument was specifically negatived by the Constitution Bench inthe cases of All India Services Pensioners Association (AIR 1988SC 501)(supra). What the petitioner is claiming in this case ismore or less the same relief as was denied to him in the abovecase.”Thus, the dictum laid down is that emoluments of a person who retired afterthe notified date and who have retired before the notified date holding thesame status, cannot be treated as the same.40. The next decision is that of the Apex Court in T.S.Thiruvengadam v. Secretary to Government of India and others WPC.7569/2008, etc.48{(1993) 2 SCC 174}. Therein, a revised formula was adopted for certainGovernment employees who were absorbed in a public sector undertakingwith effect from a particular date. The Central Government issued aMemorandum providing revised terms and conditions of absorption inCentral Public Sector undertakings but restricted the revised benefits only tothose who were absorbed on or after June 16, 1967. This was held asarbitrary. Evidently, it was a case of revision of an existing formula.Therefore, the same will not apply to the facts of this case. 41. The Scheme considered in Dhan Raj and others v. State ofJ & K and others {(1998) 4 SCC 30} is also one of revision of an existingone. The appellants were originally employed under the Government ofJammu and Kashmir in the Transport Undertaking and on forming a RoadTransport Corporation, they were employed there later. A scheme wasintroduced by the Corporation for granting pension to those who retiredfrom 9.6.1981, the date of adoption of the scheme. While examining thequestion, it was held thus in paragraphs 13 and 14:“13. Learned counsel for the State then made an alternativesubmission that the order dated 3.10.1986 is in violation ofArticle 177 of the said Regulation, hence the appellant s cannotdraw any benefit under it. It seems that it is this submission WPC.7569/2008, etc.49which led to the misdirection even by the appellate court. We aresurprised that the State is taking such a stand on its own order tobe held to be ultra vires of a Regulation. Neither such asubmission was made nor was any ground raised even in theappeals filed against the order of learned Single Judge nor is sucha stand expected to be raised o n the facts and circumstances ofthis case. Even otherwise, examining this submission we findthat the amendment to Article 177 has given benefit to all theretiring employees, i.e. it would accrue to all retiring after9.6.1981 viz. the date of amendment. But it has not, by anypositive words, excluded expressly those who retired prior to thesaid date. If later the Government itself reconsidering the matterconfers the same benefits even on those who retired prior to9.6.1981, it cannot be said to be either violating Article 177 or inconflict with that. It is a case, which is not covered under Article177 is dealt with later. If Government desired otherwise, it couldhave, even after issuing order dated 3.10.1986, withdrawn thesame. On the contrary, it permitted to continue. Hence, eventhis submission of the said order being violative of Article 177,has no force.14. Even otherwise, we do not find any justifiable criteria for theState Government to draw the line between those who retiredearlier and those who retired after 9.6.1981. Both such set ofemployees were equally placed in the sameUndertaking/Corporation temporary in character and all havingserved in the organizations for more than 20 years. In fact, the WPC.7569/2008, etc.50appellants have served with the Government for more than 30 to40 years. The person serving for such a long period earns hislegitimate expectation. It is not something which he seeks with abegging bowl. It is inappropriate for a State Government to takeup a stand to get its own order to be held illegal, by givingrestrictive interpretation to deny benefit to its own employees whohad worked for such a long period. In fact, in the ConstitutionBench decision of this Court in D.S. Nakara v. Union of India{(1983) 1 SCC 305} this Court held that criterion of date ofenforcement of the revised scheme entitling benefits of therevision to those retiring after specified date while depriving thebenefits to those retiring prior to that date was violative of Article14. Even otherwise, while considering the question of grant ofpensionary benefits the State has to act to reach the constitutionalgoal of setting up a socialist State as stated and the assurance asgiven in the Directive Principles of State Policy. A pension is apart and parcel of that goal, which secures to a person servingwith the State after retirement of h is livelihood. To deny such aright to such a person, without any sound reasoning, or anyjustifiable differentia would be against the spirit of theConstitution. We find in the present case the stand taken by theState Government to be contrary to the said spirit.”The retirees therein formed a class and that was the reason for taking thesaid view.42. Subrata Sen v. Union of India and others {(2001) 8 SCC 71} WPC.7569/2008, etc.51considered a case of revision of non contributory pension scheme. Thebenefit was denied to pensioners who retired prior to the cut-off date. Itwas found that the rule was really amended and the scheme was revised butit was not one of introduction of a new scheme. Therein, the principlestated in Nakara’s case (supra) was adopted. It was held that “there is nonew scheme of payment of pension, but it is only a revision of the existingPension Scheme.” The same is rendered on its own facts. 43. Heavy reliance was placed by Shri M.K. Damodaran, learnedSenior Counsel for the petitioners, on the decision of the Apex Court inUnion of India and another v. SPS Vains (Retd.) and others {(2008) 9SCC 125}. The question considered was one of disparity within the samerank, viz. retired Major Generals of Air Force and Navy. The said judgmentis relied upon to contend that herein also persons of the same rank whoretired prior to 30.6.2004 and after 1.7.2004 will get different rates ofpension, which is unjustifiable.44. A close scrutiny of the facts of the case is therefore required. Thequestion considered was whether there could be a disparity in payment ofpension to officers of the same rank who had retired prior to theintroduction of the revised pay scales, with those who retired thereafter. WPC.7569/2008, etc.52The pay scales of Army staff were revised from 1.1.1996. Prior to the payrevision, a Major General was getting a higher pay than that of Brigadier.Thus, a Major General always drew more pension and Family Pension thanthat of a Brigadier. When the Government accepted the Fifth PayCommission Report it was found that Brigadiers began drawing more paythan Major General and consequently they were drawing more pension andfamily pension than Major Generals. The Government thereafter stepped upthe pension of Major Generals who had retired prior to 1.1.1996 by givingthem the same pension as was given to Brigadiers. The Major Generalswho were receiving pension earlier thus approached the High Courtpointing out disparity among the same rank. It was noticed by the ApexCourt in para 26 of the judgment that the new Government Order hasresulted in disparity within the same class so that two officers both retiringas Major Generals, one prior to 1.1.1996 and the other after 1.1.1006 wouldget two different amounts of pension. While the officers who retired priorto 1.1.1996 would now get the same pension as payable to a Brigadier onaccount of the stepping up of pension in keeping with the fundamentalrules, the other set of Major Generals who retired after 1.1.1996 will get ahigher amount of pension since they would be entitled to the benefit of the WPC.7569/2008, etc.53revision of pay scales after 1.1.1996. In para 27 it was held that it would bearbitrary to allow such a situation to continue since the same also offendsthe provisions of Article 14 of the Constitution. The principles stated inD.S. Nakara’s case (supra) was relied upon. It was also a case where thepensioners of the same class of Major Generals were divided into twodifferent classes, by adopting a cut-off date, resulting in creation of a classwithin a class. The circumstances herein are not identical. 45. Herein, evidently, as already held by me, it can be seen thatpetitioners became part of a group of pensioners along with the pensionerswho retired upto 29.2.2002. It is not a case of division of pensioners assuch. Therefore, the said principle may not apply here. 46. In Col.B.J. Akkara (Retd) v. Government of India and others{(2006) 11 SCC 709) after elaborately considering the various decisionsincluding D.S. Nakara’s case (supra) and other subsequent ConstitutionBench decisions, the relevant principles have been laid down thus in para20:“20. The principles relating to pension relevant to the issue arewell settled. They are:(a) In regard to pensioners forming a class, computationof pension cannot be by different formula thereby applying an WPC.7569/2008, etc.54unequal treatment solely on the ground that some retiredearlier and some retired later. If the retiree is eligible forpension at the time of his retirement and the relevant pensionscheme is subsequently amended, he would become eligibleto get enhanced pension as per the new formula ofcomputation of pension from the date when the amendmenttakes effect. In such a situation, the additional benefit underthe amendment, made available to the same class ofpensioners cannot be denied to him on the ground that he hadretired prior to the date on which the aforesaid additionalbenefit was conferred.(b) But all retirees retiring with a particular rank do notform a single class for all purposes. Where the reckonableemoluments as on the date of retirement (for the purpose ofcomputation of pension) are different in respect of two groupsof pensioners, who retired with the same rank, the groupgetting lesser pension cannot contend that their pensionshould be identical with or equal to the pension received bythe group whose reckonable emolument was higher. In otherwords, pensioners who retire with the same rank need not begiven identical pension, where their average reckonableemoluments at the time of their retirement were different, inview of the difference in pay, or in view of different payscales being in force.(c) When two sets of employees of the same rank retireat different points of time, it is not discrimination if: WPC.7569/2008, etc.55(i) when one set retired, there was no pension scheme andwhen the other set retired, a pension scheme was in force;(ii) when one set retired, a voluntary retirement schemewas in force and when the other set retired, such a schemewas not in force; or(iii) When one set retired, a PF scheme was applicableand when the other set retired, a pension scheme was inforce.One set cannot claim the benefit extended to the other set on theground that they are similarly situated. Though they retired with thesame rank, they are not of the “same class” or “homogeneousgroup”. The employer can validly fix a cut-off date for introducingany new pension/retirement scheme or for discontinuance of anyexisting scheme. What is discriminatory is introduction of abenefit retrospectively (or prospectively) fixing a cut-off datearbitrarily thereby dividing a single homogeneous class ofpensioners into two groups and subjecting them to differenttreatment.”The said principles will show that a different formula cannot be madeapplicable for computation of pension of the pensioners forming a classwhich will result in unequal treatment. Therefore, if the relevant scheme isamended then a retiree will be entitled for enhanced pension after the newformula of computation from the date of effect of the amendment. Sub para(b) is important for the purpose of this case. In sub para (b) it was held that WPC.7569/2008, etc.56“where the reckonable emoluments as on the date of retirement (for thepurpose of computation of pension) are different in respect of two groupsof pensioners, who retired with the same rank, the plea of discriminationcannot be raised by one group getting lesser pension. Payment of pensionwill depend upon the average reckonable emoluments at the time ofretirement and if there is difference in the scale of pay in force no such pleaof discrimination can be accepted. Importantly, it was held that the personsretired with the same rank, may not form the same class or homogeneousgroup.47. Shri M.K. Damodaran, learned Senior Counsel also relied uponthe test laid down in V. Kasturi v. Managing Director, State Bank ofIndia, Bombay and another {(1998) 8 SCC 30} in paragraph 20, wherein,after a resume of all the relevant decisions, the Apex Court categorised thelegal position as categories I and II in paragraphs 22 and 23 which reads asfollows:“Category I22. If the person retiring is eligible for pension at the time of hisretirement and if he survives till the time of subsequent amendmentof the relevant pension scheme, he would become eligible to getenhanced pension or would become eligible to get more pension asper the new formula or computation of pension subsequently WPC.7569/2008, etc.57brought into force, he would be entitled to get the benefit of theamended pension provision from the date of such order as he wouldbe a member of the very same class of pensioners when theadditional benefit is being conferred on all of them. In such asituation, the additional benefit available to the same class ofpensioners cannot be denied to him on the ground that he hadretired prior to the date on which the aforesaid additional benefitwas conferred on all the members of the same class of pensionerswho had survived by the time the scheme granting additionalbenefit to these pensioners came into force. The line of decisionstracing their roots to the ratio of Nakara case (1983) 1 SCC 305would cover this category of cases.Category II.23. However, if an employee at the time of his retirement is noteligible for earning pension and stands outside the class ofpensioners, if subsequently by amendment of the relevant pensionrules any beneficial umbrella of pension scheme is extended tocover a new class of pensioners and when such a subsequentscheme comes into force, the erstwhile non-pensioner might havesurvived, then only if such extension of pension scheme toerstwhile non-pensioners is expressly made retrospective by theauthorities promulgating such scheme; the erstwhile non-pensionerwho has retired prior to the advent of such extended pensionscheme can claim benefit of such a new extended pension scheme.If such new scheme is prospective only, old retirees non-pensionerscannot get the benefit of such a scheme even if they survive such WPC.7569/2008, etc.58new scheme. They will remain outside its sweep. The decisions ofthis Court covering such second category of cases are:Commander, Head Quarter v. Capt. Biplabendra Chandra {(1997)1 SCC 208} and Govt. of T.N. V. K. Jayaraman {(1997) 9 SCC606} and others to which we have made a reference earlier. If theclaimant for pension benefits satisfactorily brings his case withinthe first category of cases, he would be entitled to get the additionalbenefits of pension computation even if he might have retired priorto the enforcement of such additional beneficial provisions. But ifon the other hand, the case of a retired employee falls in the secondcategory, the fact that he retired prior to the relevant date of thecoming into operation of the new scheme would disentitle him fromgetting such a new benefit.”Shri M.K. Damodaran contended that the petitioners herein will fall withincategory I and therefore they will be entitled for the benefit of pensionbased on the new pay scales.48. A close reading of the judgment will show that category I thereinwill apply to pensioners who were eligible for pension at the time of theirretirement and survived upto the amendment of the relevant pensionscheme. Category II will show that when a new pension scheme isintroduced, unless it is retrospective, old retirees cannot get the benefit ofsuch a scheme. Herein, it can be seen that the petitioners are not strictly WPC.7569/2008, etc.59under category I. They are actually seeking for the benefit of the revisedpay scales which were never applied to them. Of course, the basis ofcomputation of their pension can only be the pay scales which they havereceived upto 30.6.2004. Category I will not thus apply to them. It is not acase where additional benefits are granted to the pensioners from 1.7.2004,obviously by liberalising any scheme or revising any scheme. What isimportant herein to notice is that the revision of pay scales itself and theimplementation of the same is from 1.7.2004.49. The situation as far as the petitioners are concerned, who areseeking for implementation of the various benefits including pay revisionfrom 1.3.2002, going by the principles discussed above, will be bleak.This Court cannot substitute the date 1.7.2004 as 1.3.2002 on any account.Judicial Review could be exercised only to see whether the date chosen isarbitrary or not.50. In this context, learned Government Pleader relied upon a FullBench decision of this Court in State of Kerala and others v. V.J.Philomina (2008 (1) KHC 665 = 2008 (1) KLT 666), wherein the Benchwas of the view that “when concessions having financial implications aregranted by the Government, widening the scope of such concessions by WPC.7569/2008, etc.60judicial interpretation would invite unexpected burden on the publicexchequer. Time bound higher grade is not a condition of serviceguaranteed by statutory rules but a concession extended to employees whoare stagnating in a particular post for want of regular promotion.” It iscontended that this Court cannot adopt an interpretation which will burdenthe public exchequer. Learned Government Pleader relied upon anunreported judgment in O.P.No.32614/1999, between Kerala State ServicePensioners Organisation, Kollam and State of Kerala. The same was withregard to the implementation of 1997 pay revision order. Therein, the payrevision order was implemented from 1.3.1997. The petitioners retiredprior to the said date, viz. after 1.1.1996. The denial of benefits to them wasunder challenge. The Government contended that the date of effect of a payrevision is a matter of policy for the Government as it will have to accountfor the financial stability also. While considering the same, this Court heldthus:“More over, pay revision is being effected for the last several years.Petitioners two onwards had retired after 1.1.1996. That means theyhad already enjoyed pay revision benefits ordered prior to that date.After their retirement they cannot get revision of salary. Ext.P7 isthe revised salary structure of the employees in service as on1.3.1997. There is nothing arbitrary in it. The petitioner has not WPC.7569/2008, etc.61substantiated any right and they shall not have a right to get theirsalary revised after retirement.”The said dictum will show that the petitioners herein also cannot have aright to get their salary revised after retirement, as the date fixed cannot beheld to be arbitrary. I respectfully agree with the view taken therein.51. In that view of the matter, it cannot be said that the fixation ofcut-off date 1.7.2004 is arbitrary to any extent. Various facts have beenconsidered by the Government which cannot be said to be totally irrelevantas far as adoption of the date is concerned. The matter is in the realm ofpolicy and the financial implications and financial stability of theGovernment are relevant facts. The implementation of pay revision andgrant of benefits are not statutory in nature. Therefore, the employees donot get a statutory right to get the pay revised at the interval of every fiveyears.52. The Government by Ext.P15 order produced in W.P.(C)No.7569/2008 have addressed the problems of persons like the petitionersand have modified certain clauses concerning grant of pension. But learnedSenior Counsel point out that the same will not fully satisfy their claims asdue weightage has not been given for their entire service. Smt.V.P.Seemanthini, learned Senior Counsel further submitted that if this Court WPC.7569/2008, etc.62holds the view that the pay revision should be effected every five years,then the petitioners will be entitled for pay revision benefits also.53. Ext.P15 is not under challenge in this writ petition, obviouslybecause the same further granted some concessions to the petitioners. Butthe adequacy or inadequacy of the same cannot be a matter for judicialinterpretation, since the paying capacity of the Government is a relevantfactor. If we confine the issue, in the light of the principles stated by theApex Court, that it is a matter of policy, then the petitioners cannotautomatically insist that all the benefits granted to the existing employeesby effecting the pay revision from 1.7.2004, will have to be applied to them.Evidently, the retirees upto 30.6.2004 and the persons in service from1.7.2004 do not form the same homogeneous class. 54. Shri M.K. Damodaran, learned Senior Counsel submitted that thedelay on the part of the Government in bringing into force the pay revisionalone has resulted in hardships to the petitioners and therefore it ought tohave been remedied suitably. In fact, such an argument cannot be accepted,going by two other decisions of the Apex Court in State of U.P. and othersv. J.P. Chaurasia and others {(1989) 1 SCC 121} and T.N. ElectricityBoard v. R. Veeraswamy and others {(1999) 3 SCC 414}. WPC.7569/2008, etc.6355. Learned Senior Counsel for the petitioners pointed out that thedelay in appointment of the Pay Revision Commission and the consequentacceptance of the recommendation to be effective from 1.7.2004 denied thefruits of the exercise of pay revision to a large number of employees, viz.above 35000 and odd and therefore also the cut-off date fixed cannot besaid to be reasonable. The pay revision, as already noticed, has beenimplemented by the Government as per order dated 25.3.2006 (Ext.P3produced in W.P.(C) No.7569/2008). The Government has actuallyimplemented consequent revision of pension benefits also as evident fromExt.P9 order produced in W.P.(C) No.23346/2008. This was based on thepay revision order dated 25.3.2006. Various principles for fixation havebeen stated therein. The right of the petitioners as far as the revision ofpension is concerned, is governed by the said order as well as Ext.P15order produced in W.P.(C) No.7569/2008.56. In J.P. Chaurasia's case {(1989) 1 SCC 121} it was held thatfixation of pay scale is an executive function and the court will notnormally interfere. In paragraph 18 therein, while considering the questionwhether parity in employment and equalisation of pay are matters forconsideration for the Pay Commission and the Government, it was held that WPC.7569/2008, etc.64the various matters with regard to the pay revision and the principlesthereon are to be left to the decision of the Executive Government and theexpert bodies like Pay Commission and the court should normally accept it.57. The question is whether the assumed delay in the matter willcome to the help of the petitioner. If it is so declared by this Court in favourof the petitioners, then the pay revision order will have to be given effectfrom 1.3.2002. A similar question was considered in R. Veeraswamy'scase {(1999) 3 SCC 414}. Therein, the Tamil Nadu Electricity Board washaving in its employment, employees of the Electricity Department of theGovernment of Tamil Nadu who have been transferred after the Board wasformed on 1.7.1957. They were governed by the Contributory ProvidentFund Scheme on the date of transfer. They retired from service prior to1.7.1986, after getting all retiral benefits. The Government of Tamil Naduhad introduced a pension scheme on 30.6.1969 to its employees who werenot governed earlier by such pension scheme which was not adopted by theBoard simultaneously. The employees were making representations fromtime to time to extent the benefit of the Scheme. After getting exemptionwith regard to certain aspects from the Central Government the Boardfinally introduced the pension scheme with effect from 1.7.1986. This led WPC.7569/2008, etc.65to the retired employees challenging the same before the High Courtaggrieved by the prospective implementation from 1.7.1986. The learnedSingle Judge rejected the claim finding that the date 1.7.1986 chosen is notone which offends Article 14 of the Constitution of India. But the DivisionBench, after accepting the argument of the Board that the principles statedin D.S. Nakara's case {(1983) 1 SCC 305} will not apply, held that thedelay on the part of the Board in bringing down the pension schemeaffected the retirees who had approached the court and directed grant ofbenefits to them. The legality of the same was considered by the ApexCourt. Their Lordships relied upon the decisions of the Apex Court in V.Kasturi's case {(1998) 8 SCC 30}, Union of India v. Lieut.E. Iacats{(1997) 7 SCC 334}, Hari Ram Gupta v. State of U.P. {(1998) 6 SCC328} and other decisions wherein the principles stated in D.S. Nakara'scase (supra) have been discussed and distinguished. The Apex Courtfinally held that the retired employees and other beneficiaries of thescheme cannot be grouped together. In para 15, the contentions of theretirees were rejected in the following manner:“As noticed earlier, the learned Judges even after noticing that theratio in the judgment of this Court in Nakara case (1983) 1 SCC305) cannot be pressed into service, erroneously granted relief on WPC.7569/2008, etc.66the alleged delay on the part of the appellant-Electricity Board inintroducing the pension scheme which certainly cannot be a groundfor the Court to give retrospective effect to the pension scheme.Moreover, the appellant Board had given well-founded reasons forintroducing the pension scheme from 1.7.1986 including financialconstraints, a valid ground. We are of the view that the retiredemployees (respondents), who had retired from service before1.7.1986 and those who were in employment on the said date,cannot be treated alike as they do not belong to one class. Theworkmen, who had retired after receiving all the benefits availableunder the Contributory Provident Fund Scheme, cease to beemployees of the appellant-Board w.e.f. the date of theirretirement. They form a separate class.”Therefore, the delay, if any, cannot be a matter for this Court to consider theplea to grant retrospective effect to the pay revision order. Evidently, thepay revision introduces new scales of pay. Various factors had to beconsidered by the Government. The decision of the Apex Court in Lieut.E.Iacats's case {(1997) 7 SCC 334} which is relied upon in R.Veeraswamy's case {(1999) 3 SCC 414}, has also taken the view thatfresh financial benefits conferred will have to be based on proper estimatesof financial outlay required, and accordingly held that the cut off date fixedcannot be termed as arbitrary and that too based on the report of a study WPC.7569/2008, etc.67team. In paragraph 5, the legal position was explained thus:“Even otherwise in view of the fact that a study team was firstappointed and pursuant to its report certain benefits were givenafter considering the report of the study group would show that thecut-off date had a logical nexus with the decision to grant thesebenefits on the basis of the report of the study team. Freshfinancial benefits which are conferred also have to be based onproper estimates of financial outlay required. Bearing in mind allrelevant factors, if such a benefit is conferred from a given date,such conferment of benefits from a given date cannot beconsidered as arbitrary or unreasonable.”Hence, it can be seen that there is nothing wrong here, in the Governmentaccepting the recommendations of the Pay Revision Commission for fixingthe cut off date.58. Learned Senior Counsel for the petitioners heavily relied uponArticles 39 and 43 of the Constitution of India and the importance of theDirective Principles to ensure adequate pay to the employees. Articles 39(d) and 43 reads as follows:“39. Certain principles of policy to be followed by the State--The State shall, in particular, direct its policy towardssecuring--(a) to (c).........(d) that there is equal pay for equal for both men and women; WPC.7569/2008, etc.6843. Living wage, etc. for workers-- The State shall endeavour tosecure, by suitable legislation or economic organisation or in anyother way, to all workers agricultural, industrial or otherwise, work,a living wage, conditions of work ensuring a decent standard oflife and full employment of leisure and social and culturalopportunities and in particular, the State shall endeavour topromote cottage industries on an individual or co-operative basisin rural areas.”The question whether there is alleged infringement of the above Articlescannot be divorced from the question whether there had been anyinfringement of Article 14. In fact, in an earlier decision of the Apex Courtin J.P. Chaurasia's case {(1989) 1 SCC 121 it was held that the principleunder Article 39(d) and the Directive Principles cannot have a mechanicalapplication in every case of similar work and they have to be read intoArticle 14 and therefore the same will have to be verified in such cases. Inparagraph 29 the said aspect has been explained thus:“29. Article 39(d) of the Constitution proclaims “equal pay forequal work”. This article and other like provisions in the DirectivePrinciples are “conscience of our Constitution”. They are rooted insocial justice. They were intended to bring about a socio-economictransformation in our society. As observed by Hegde andMukherjea, JJ. in Kesavananda Bharati v. State of Kerala (1973) 4SCC 225 (SCC p.502 para 712): “(T)he Constitution seeks to fulfil WPC.7569/2008, etc.69the basic needs of the common man and to change the structure ofour society.” In the words of Shelat and Grover, JJ. (SCC p.458.para 596): The dominant objective in view was to ameliorate andimprove the lot of the common man and to bring about a socio-economic justice.” In matter of employment the government ofsocialist State must protect the weaker sections. It must be ensuredthat there is no exploitation of poor and ignorant. It is the duty ofthe State to see that the underprivileged or weaker sections get theirdues. Even if they have voluntarily accepted the employment onunequal terms, the State should not deny their basic rights of equaltreatment. It is against this background that the principle of “equalpay for equal work” has to be construed in the first place. Second,this principle has no mechanical application in every case of similarwork. It has to be read into Article 14 of the Constitution. Article14 permits reasonable classification founded on different bases. Itis now well established that the classification can be based on somequalities or characteristics of persons grouped together and not inothers who are left out. Those qualities or characteristics must, ofcourse, have a reasonable relation to the object sought to beachieved.”Herein, it cannot therefore be said that there is any violation of Article 39(d) or Article 43. The petitioners were governed by various pay scalesduring their service. They have gone out of the new pay revision scheme astheir retirement is prior to 1.7.2004. When the State is empowered to WPC.7569/2008, etc.70bring in the revision of pay scales from a cut-off date whichever is fixed, itmay have applicability from the said date. There may be persons who maybe left out or who had retired on the previous day of the same. Therefore, inthe light of the applicability of the principle that there cannot be anystatutory right as far as the pay revision is concerned and that it is a matterof policy for the State as held by the Apex Court in A.K. Chandrasekhar'scase (2008 (4) KHC 784), the main and important question to be consideredis only whether the cut-off date fixed is violative of Article 14 of theConstitution. Herein, the date 1.7.2004 is one recommended by the PayRevision Commission based on certain aspects. The Government alsothought it fit to accept the same. Various aspects have been discussed inthe report of the Pay Revision Commission in proposing the cut off dateand which have been supplemented by the Government in their counteraffidavit. It is not as if the cut-off date if fixed from the hat and that it hasno nexus with the object sought to be achieved. The power to fix a date toeffect the pay revision is a concomitant of the power to revise salaries andpension. In that view of the matter, it cannot be said that the entire exercisedone by the Government will be so arbitrary or unreasonable warrantinginterference by this Court. As already noticed, the financial constraints of WPC.7569/2008, etc.71the State is a relevant aspect which duly empowers the State to fix the dateas 1.7.2004. The persons left out like the petitioners therefore are not partof a homogeneous class along with the persons who are entitled for the payrevision which is effective from 1.7.2004, as contended by the learnedSenior Counsel for the petitioners in the writ petitions.For all these reasons, the writ petitions are dismissed. No costs. (T.R. Ramachandran Nair, Judge.)kav/