Gujarat High Court
Gujarat State Retired Professors' ... vs State Of Gujarat on 21 August, 1990
Equivalent citations: (1991)1GLR168
Author: C.K. Thakker
Bench: C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. The petitioner-Association of retired Professors attached to the Universities and various affiliated Colleges in the State of Gujarat, has filed this petition challenging the legality and validity of that part of the resolution issued by the Government of Gujarat on October 15, 1984, by which certain retirement benefits are sought to be granted only to those Professors and the members of the Association who retired after April, 1982 and not to those who had retired prior to the said date.
Short facts giving rise to the present petition may now be stated:
There is University Grants Commission at the Central level which examines various facets of University education and a scheme was prepared by the said Commission relating to the pay-scales of Lecturers and Professors in affiliated Colleges and Universities. A report was submitted by the Commission which was accepted by the Government of India. So far as Government of Gujarat is concerned a policy decision was taken by the State on November 23, 1976 and the recommendations were accepted. The age of superannuation of teachers was also fixed at 60 years. The scheme was made applicable with effect from January 1, 1973.
2. Since the management of any affiliated college was not willing to bear the burden, the implementation of the said resolution was undertaken by the Government by accepting the entire responsibility for maintaining the revised scales with effect from January 1, 1973. The next stage was application of Pension Scheme for teaching staff in non-Government affiliated colleges and those in the Universities by providing for Pension, Gratuity and other retirement benefits. It was, however, provided that such retirement benefits would be granted to the employees who would retire with effect from April 1, 1982. In other words, even though as per the recommendations of Kothari Commission and Sen Committee, pay scales of the employees came to be prescribed with effect from January 1, 1973 and even the age of superannuation was fixed, the pension scheme accepted under the same resolution was not made applicable with effect from January 1, 1973 but only from April 1, 1982. The resultant effect is that all the Professors who retired between January 1, 1973 and March 31, 1982 were deprived of the said benefits. It is the contention of the petitioner-Association that the said action on the part of the respondent-State, is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. It is also the contention of the petitioner that the so-called classification between the Professors retired before April 1, 1982 and thereafter is artificial and irrational and not based on intelligible differentia. It has no nexus with the object sought to be achieved. It is, therefore, submitted on behalf of the petitioner-Association that the said classification must be held to be illegal, ultra vires and arbitrary and all those Professors who retired not only with effect from April 1, 1982 but even prior to that date must be held to be entitled to get all the benefits which are granted in favour of the Prefessors, who retired after April 1, 1982 pursuant to the impugned resolution Annexure 'A', dated October 15, 1984.
3. Mr. M.R. Anand, learned Advocate who appeared for the petitioner contended that the resolution dated November 23, 1976 conferred all the benefits in favour of Professors with effect from January 1, 1973. He has also submitted that for the first time even the age of superannuation was fixed as a result of which all those Professors who were earlier entitled to continue till they worked efficiently came to be retired on completion of 60 years. This has also been done with effect from January 1, 1973. In these circumstances there is no earthly reason to deprive those Professors from the retiral benefits to which they are entitled and the circular dated October 15, 1984 must be uniformally applied to all the employees similarly situated from January 1, 1973
4. It is further contended that cut off date of March 31, 1982 selected by the respondent-State is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
It is also contended that there is denial of the benefit of "equal pay for equal work" inasmuch as the pension and other retirement benefits are consequential and can be included in "other conditions of service" and by applying principle of equal pay for equal work liberally and construing in favour of the employees, even after their retirement.
5. In this connection, reliance was placed by Mr. M.R. Anand in the leading case of D.S. Nakara v. Union of India, . In that case the Ministry of Finance issued memoranda dt. May 25,1979 and September 28, 1979. Classification was sought to be created for the purpose of revised pension formula between the pensioners on the basis of the date of the retirement specified in memoranda. Holding the said classification on the basis of the cut off date for retirement as arbitrary, discriminatory and ultra vires, the Court observed:
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being found on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
6. The Court further observed :
If it appears to be undisputable, at it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those two retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to Government servants then those who retired earlier cannot be worse off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension. One retiring a day earlier will have to be subject to ceiling of Rs. 8100/- p.a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs. 12,000/- p.a. and average emolument will be computed on the basis of last ten months' average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours' difference in the matter of retirement of commutation of pension. A 48 hours' difference in the matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14.
7. The classification which was sought to be created between the employees who retired on different dates specified in the memoranda was held to be "wholly arbitrary and violative of Article 14 of the Constitution of India" and the Court granted relief in favour of all the employees who were similarly situated by extending pensionary benefits in favour of all the employees, similarly situated.
The principle laid down by the Hon'ble Supreme Court in Nakara's case (supra) applies with equal force in the instant case also. An identical question arose before the High Court of Bombay (Nagpur Bench) in Retired Employees of Non-Government College Association. Nagpur v. State of Maharashtra and Ors. in Spl. C.A. No. 2632 of 1985. In that case also, a distinction was sought to be made between the employees of the non-Government Colleges who had retired with effect from October 1, 1982, and prior to that date. It was contended that it was arbitrary and there was a hostile discrimination between the persons similarly situated. The petition came up for hearing before the Division Bench of the High Court and the Division Bench by a judgment and order dated February 26, 1987 allowed the said petition by holding that the provision made with regard to the cut off date of the persons similarly situated must be held to be violative of Article 14 of the Constitution of India since it deprived the petitioner and other similary situated persons who retired between January 1,1973 and September 30, 1982 of those benefits which had been granted to the employees who retired after October 1, 1982. Thus, according to the petitioner even the High Court of Bombay has also taken the similar view on the basis of Nakara's case (supra) and the present petition is required to be allowed.
8. A statement was also made at the Bar by Mr. Anand that against the said decision rendered by the High Court of Bombay, Special Leave Petition was filed before the Supreme Court of India which was registered as Special Leave Petition (Civil) No. 8569 of 1987 and the Supreme Court has summarily rejected the Special Leave Petition on September 14, 1987. Thus the decision rendered by the High Court of Bombay was even confirmed by the Hon'ble Supreme Court of India. Mr. Anand, therefore, submitted that in the instant case also on the basis of the aforesaid two decisions a clause in the impugned resolution Annexure 'A' classifying the Professors who retired prior to April 1, 1982 and after that date cannot be said to be rational and it must be held to be arbitrary, and all Professors who are similarly situated must be given all retiral benefits with effect from January 1, 1973.
9. The affidavit-in-reply has been filed by Shri M.G. Shah, Under Secretary, in-charge of Education Department, Government of Gujarat. However, the action of the Government is sought to be justified inter alia on the grounds that a welfare measure extended by the State Government in favour of the employees has to be within the limits of Government's financial resources. Such welfare benefits cannot be converted into justiciable rights. It is stated in the affidavit-in-reply that as per the Government Resolutions, the Teachers and Professors of affiliated Colleges and other Colleges who retired earlier to April 1, 1982 are not entitled to the benefits of pension. It is contended that the benefits of the pension cannot be extended in favour of the teachers who retired prior to April 1, 1982 since they have been paid CPF contribution and they were estopped from raising claims for pension. It is finally stated that once the request of the staff of non-Government Colleges would be accepted, it would cause injustice and unequality towards other categories of non-teaching servants under several Departments of Government and would impose heavy financial burden on the State Government. With regard to the judgment of the High Court of Bombay, it is contended that keeping all the aspects in mind, it is not posible to comply with the judgment of the Bombay High Court in the same subject matter.
10. Considering the above facts and legal question which has been finally I settled by the Supreme Court of India in Nakara's case (supra) as well as by the High Court of Bombay in Special Civil Application No. 2632 of 1985 the petition requires to be allowed. So far as artificial date between the employees who retired prior to April 1, 1982 and subsequently thereto can never be said to be based on an inteligible differentia nor with the object sought to be achieved thereby. The classification is arbitrary, irrational and discriminatory. Again so far as the judgment of the High Court of Bombay is concerned, even the Special Leave Petition has been rejected. In these circumstances, all the Professors who retired even prior to April 1, 1982 must be held entitled to all the retirement benefits.
14. It is also contended that principle of "equal pay for equal work" should be extended even in the case of terminal benefits to be granted in favour of the employees. It is submitted that the expression "conditions of service" would not only include the benefits when the employee is in service but in respect of retirement benefits also. However, I do not want to express any final opinion on the said question, since in my opinion, the cut off date is required to be held as arbitrary and discriminatory. Therefore, all those Professors who retired prior to April 1, 1982 are also entitled to pensionary benefits as has been done in Nakara's case (supra) as well as, as per the decision of the High Court of Bombay.
11. In view of the above facts, the petition is required to be allowed by making the Rule absolute. In view of the fact that the petition relates to the Professors and Teachers who have retired prior to April 1, 1982 and since they are entitled to pensionary benefits, it is in the fitness of things that necessary directions should be issued to the Government to take necessary action. The State Government is, therefore, directed to pass consequential orders within a period of four weeks from the receipt of the writ. Rule is accordingly made absolute with costs.