The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) Nos.3485, 2999 & 2998 of 2014 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Mangaraj Lenka …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : M/s. Subrata Mishra (Advocate) For Opp. Parties : Mr. M.K. Balabantaray Addl. Govt. Advocate (appearing for State-Opp. Party) Mr. R.N. Acharya, Standing Counsel (appearing for School & Mass Education) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing & Order: 24.01.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since the issue involved in the all the three (3) writ petitions is similar and the claim made by the Petitioners is also similar, all the three (3) writ petitions were heard analogously and disposed of vide the present common order. // 2 // 2. All the three (3) writ petitions have been filed inter alia with a prayer to declare the cut-off date 01.01.2013 mentioned in the RACP Scheme under Annexure-6 as unconstitutional and with a further prayer to quash the date mentioned in the Finance Department letter under Annexure-8 making applicable the benefit of RACP w.e.f.01.01. 2013.
Legal Reasoning
hat”, as was found to be by this Court in D.R. Nim v. Union of India because of which fixation of 19-5-1991 as the date for the purpose concerned was held to be invalid. 5. As to when choice of a cut-off date can be interfered was opined by Holmes, J. in Louisville Gas & Electric Co. v. Clell Coleman by stating that if the fixation be “very wide of any reasonable mark”, the same can be regarded arbitrary. What was observed by Holmes, J. was cited with approval by a Bench of this Court in Union of India v. Parameswaran Match Works (in paragraph 10) by also stating that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark.” Page 4 of 13 // 5 // 4.4. In the case of Sita Ram Bansal (supra) Hon’ble Apex Court in Para 3 has held as follows:- “3. Shri Dhingra, learned counsel for the petitioners, contended that in view of the judgments of this Court in Union of India v. Deoki Nandan Aggarwal, R.L. Marwaha v. Union of India and M.C. Dhingra v. Union of India', the cut-off date is arbitrary: the pensionary benefits should be extended to the retirees prior to the cut-off date; otherwise, it violates Article 14 of the Constitution. We find no force in the contention. It is true that the pension is not a bounty but a right earned by the persons while in service d But, unfortunately, the pensionary scheme was not in vogue prior to the retirement of the petitioners. The pension scheme came to be introduced for the first time with effect from 1-4-1990 and it was applied to persons serving the municipalities drawn from All India Service or the Provincial Service. Subsequently, that was extended to other employees in the non-provincial service. The later GO also applied to those who retired between 1-4- 1990 and 28-7-1994, the date on which the scheme was extended to the non-provincialised employees. In other words, all of them have been treated as a class and no invidious discrimination has been meted out to them. Thus, the date of 1-4-1990 bears rationality, namely, the scheme for the first time was introduced on that date. All those employees who retired prior to that date were treated as a class and those employees either in service or retiring on and after that date have been treated as a separate class and the scheme was extended to it. Thus, we find that there is no illegality in introducing the cut-off date; nor does it violate Article 14. The Page 5 of 13 // 6 // ratio in the above judgments has no application to the facts in this case.” 4.5. In the case of Ugar Sugar Works Ltd. (supra) Hon’ble Apex Court in Para 18 has held as follows:- “18. The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State.” 4.6. In the case of State of Punjab (supra) Hon’ble Apex Court in Para 26, 30 to 36 has held as follows:- “26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1-4-1995, after calculating the financial implications thereon, was either irrational or Page 6 of 13 // 7 // arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. XXX XXX XXX 30. In Union of India v. P.N. Menon, while implementing the recommendations of the Third Pay Commission with regard to dearness pay linked to Average Index Level 272, which was to be counted as emoluments for pension and gratuity under the Central Civil Services (Pension) Rules, 1972, the Central Government had fixed a certain cut-off date and directed that only officers retiring on or after the specified date were entitled to the benefits of the dearness pay being counted for the purpose of retirement benefits. This was challenged as arbitrary and violative of Article 14 of the Constitution. This Court turned down the challenge and observed: "Not only in matters of revising the pensionary benefits, but even in d respect of revision of scales of pay, a cut- off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay scale of its employees and fixes the 1st day of January of the next year for implementing the same or the 1st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31st December of the year in question, will miss that pay scale only by a day, which may affect his pensionary benefits throughout his life. Page 7 of 13 // 8 // No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the court should only be, while examining any such f grievance, to see, as to whether a particular date for extending a particular benefit or scheme, has been fixed, on objective and rational considerations." XXX XXX XXX 31. In Action Committee South Eastern Rly. Pensioners v. Union of India, it was held that, on merger of a part of dearness allowance as dearness pay on Average Price Index Level at 272 with reference to different pay ranges, fixing a cut-off date in such a manner was not arbitrary and the principle enunciated in D.S. Nakara was not applicable. In this connection, the ratios in Krishena Kamar v. Union of India, Indian Ex-Services League v. Union of India, State Govt. Pensioners’ Assn. v. State of A.P. and All India Reserve Bank Retired Officers’ Assn. v. Union of India are apt. In all these cases, the prescription of a cut-off date for implementation of such benefits was held not to be arbitrary, irrational or violative of Article 14 of the Constitution. 32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi this Court went so as far as to note that: "Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this Page 8 of 13 // 9 // cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1-1986 for 1-1- 19901.” 33. More recently, in Veerasamy this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 1-7- 1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes. 34. In State of Punjab v. Boota Singh ("Boota Singh") after considering several judgments of this Court in D.S. Nakara to K.L. Rathee v. Union of India" it was held that D.S. Nakara should not be interpreted to mean that the emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. 35. In State of Punjab v. J.L Gupta, where one of us was on the Bench (Sabharwal, J.), the views expressed in Boota Singh were reiterated, and it was held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary. 36. In Ramrao v. All India Backward Class Bank Employees Welfar Assn. a Division Bench of this Court said, even for the purpose of effecting promotion, fixing of a cut-off date was neither arbitrary, unreasonable nor did possible hardship to Page 9 of 13 // 10 // be endured by a person as a result did not make cut-off dates violative of Article 14.” 4.7. In the case of Government of Andhra Pradesh (supra) Hon’ble Apex Court in Para 5 to 9 has held as follows:- “5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.) 6. No doubt in D.S. Nakara v. Union of India this Court had struck 9 down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal. 7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection. Page 10 of 13 // 11 // 8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad, Union of India v. Sudhir Kumar Jaiswal (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result. 9. As has been held by this Court in Aravali Golf Club v. Chander Hass and in Govt. of A.P. v. P. Laxmi Devi the court must maintain judicial restraint in matters relating to the legislative or executive domain.” 4.8. In the case of Dilip Kumar Garg (supra) Hon’ble Apex Court in Para 15 & 17 has held as follows:- “15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere Page 11 of 13 // 12 // readily with administrative decisions. (See Union of India v. Pushpa Rani and Official Liquidator v. Dayanand). XXX XXX XXX 17. In Tata Cellular v. Union of India10 it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under Article 309 of the Constitution.” 5. I have heard Mr. Subrata Mishra, learned counsel for the Petitioners, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Party and Mr. R.N. Acharya, learned Standing Counsel appearing for the School & Mass Education Department. On the consent of all the Parties the matters were finally heard at the stage of admission and disposed of vide the present common order. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Petitioners have challenged the fixation of the cut-off date 01.01.2013 with regard to extension of the benefit of RACP vide Annexure-6. It is found from the record that save and except making bald allegations, the Petitioners have not justified their claim with regard to fixation of the cut-off date for extension of the benefit of RACP being arbitrary &
Arguments
3. It is contended that all the three (3) Petitioners while continuing as Assistant Teachers retired from service prior to 01.01.2013. After such retirement when Finance Department issued the impugned Resolution did.06.06.2013 under Annexure-6 by fixing cut-off date of 01.01.2013 and thereby making employees eligible to get the benefit of RACP only w.e.f.01.01.2013, the same is under challenge in the present writ petitions. It is contended that earlier as per the Assured Career Stipulation Scheme introduced by the Govt. an employee became eligible to get the benefit of ACP on completion of 15 years, 25 years and 30 years respectively. But during continuance of the ACP Scheme when Govt. of India vide its Office Memorandum dtd.19.05.2009 introduced a new scheme i.e. Modified Assured Career Progression Scheme for the Central Govt. Employee making the employees eligible to get the benefit of MACP on completion of 10 years, 20 years and 30 years of service, the State Govt. issued the scheme known as Revised Assured Career Progression Scheme w.e.f.01.01.2013 vide Resolution dtd.06.06.2013. 3.1. It is contended that since in the scheme issued under Annexure-6, an artificial cut-off date was fixed i.e.01.01.2013, making employees eligible to get the benefit of RACP, the same is violative of Article 14 and 16 of the Constitution of India and is not sustainable in the eye of law. By such artificial fixation of the cut-off date, the Petitioners have Page 2 of 13 // 3 // been deprived to get the benefit of RACP as all of them have retired prior to 01.01.2013. 4. Mr. M.K. Balabantaray, learned AGA contended that while in continuance of the benefit of ACP. Govt in the Finance Department vide its resolution dtd.06.02.2013 under Annexure-6 brought out a new scheme i.e. Revised Assured Career Progression Scheme (RACP) for the State Govt. employees. But vide the said resolution Govt. consciously took a decision to make it effective w.e.f.01.01.2013. 4.1. It is further contended that with regard to fixation of cut-off date, it is the Govt. who is competent to fix the same. Accordingly, it is contended that since the cut-off date 01.01.2013 is made applicable to all the employees working under State Govt., the grounds on which it has been challenged by the Petitioner is not sustainable in the eye of law. It is further contended that fixation of cut-off date is a discretion available to the Opp. Parties and it being a policy decision, not likely to be interfered with by this Court in exercise of its power under Article 226 of the Constitution of India. It is the complete prerogative of the State Govt. to fix a cut-off date and the same can only be challenged, if it is violative of the Article 14 & 16 of the Constitution of India. Since while extending the benefit of RACP, Govt consciously took a decision to extend the said benefit w.e.f.01.01.2013, no illegality can be found with regard to fixation of the cut-off date. 4.2. Mr. Balabantaray in support of his aforesaid submission relied on the decisions of the Hon'ble Apex Court in the case of Union of India & Anr. Vs. Sudhir Kumar Jaiswal ((1994) 4 SCC 212), Sita Ram Bansal & Ors. Vs. State of Punjab & Ors. ((1997) 9 SCC 250), Ugar Page 3 of 13 // 4 // Sugar Works Ltd. Vs. Delhi Administration & Ors. ((2001) 3 SCC 635), State of Punjab & Ors. Vs. Amar Nath Goyal & Ors. ((2005) 6 SCC 754), Government of Andhra Pradesh & Ors. Vs. N. Subbarayudu & Ors. ((2008) 14 SCC 702) and Dilip Kumar Garg & Anr. Vs. State of Uttar Pradesh & Ors. ((2009) 4 SCC 753). 4.3. In the case of Union of India (supra) Hon’ble Apex Court in Para 4 & 5 has held as follows:- “4. Insofar as fixation of cut-off date s concerned, the same can be regarded as arbitrary by a court if the same be one about which it can be said that it has been “picked out from a
Decision
unreasonable. In the writ petition also, there is no pleading available showing the discrimination meted out to the Petitioners for such fixation of cut-off date. 7. Since the fixation of cut-off date under Anenxure-6 is a policy decision of the Govt., the Courts are to interfere with the same in exceptional circumstances. In the present case no such ground has Page 12 of 13 // 13 // been taken with regard to discrimination meted out to the Petitioners. Since the fixation of cut-off date falls within the domain of the State Govt., placing reliance on the decisions of the Hon'ble Apex Court as cited supra, this Court is not inclined to entertain the prayer as made in the writ petition. 8. Accordingly, all the three (3) writ petitions are dismissed. However, there shall be no order as to cost. Orissa High Court, Cuttack Dated the 25th of February, 2023/Sneha (Biraja Prasanna Satapathy) Judge Page 13 of 13