Punjab-Haryana High Court
Ram Sarup A.S.I. (Retd.), Harchand ... vs State Of Panjab on 1 February, 2001
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. In the above noted 19 writ petitions, the petitioner are praying that portion of order notification dated 24.11.1988 (Annexure P/1 to the writ petition) which renders benefits as inadmissible to the petitioners for the reasons of their retirement before 31st March, 1985 be quashed and further for a direction that the leave encashment at least upto 240 days be also permitted to all the petitioners.
2. While the contention of the State is that fixing of cut off date is permissible and the action of the State denying the petitioner the benefits under the circular of 1985 or 1988 are fully justified. Resultantly, writ petitions are liable to be dismissed.
3. In order to decide this controversy, reference to facts would be necessary. The petitioners were serving in various departments of the Government of Punjab and all of them retired/superannuated from their respective post before 31st March, 1985 and all were governed by Pension Rules applicable to the employee of Government of Punjab. After their retirement they claimed the benefits given to the employees of the State of Punjab, who retired after 31st March, 1985 in regard to various matters and thus prayed for parity with these employees.
4. It is not essential to reproduce facts pleaded in each and every case as on somewhat similar facts identical relief has been claimed in all these 19 petitions. Reference to the facts of the case of Ram Sarup would suffice.
5. Ram Sarup was serving the Punjab Police as A.S.I, and attained the age of superannuation on 5th March, 1985. The petitioner was given his pensionary benefits. He was also given death-cum-retirement gratuity. But while calculating gratuity, dearness allowance was treated as dearness pay for the purposes of pensionary benefits.
6. According to the petitioner, the Government had issued circular dated 19th July, 1985 directing that dearness allowance shall be treated as dearness pay for calculating pensionary benefits and there will be no ceiling on the amount of monthly pension. This was made applicable for the employees who retired on or after 31st March, 1985. This circular is stated to be annexed to the petition as Annexure P/l. However, a perusal of Annexure P/l would show that Annexure P/l to the writ petition is another circular dated 24.11.1988 i.e. nearly more than 3 years after the date of retirement of the petitioner. Presumably a wrong document has been annexed with the writ petition. The petitioner further prays that encashment of leave be also granted for 240 days instead of shorter period, as prescribed under earlier rules. This benefit may accrue to the petitioner either under circular of July, 1985 or 24.11.1988.
7. At this stage, reference to the material part of the prayer clause would be appropriate, "(i) relevant records of the case be called for;
(ii) issue a writ in the nature of Certiorari, quashing that proportion of the Order Annexure P/l which debars the admissibility of the concessions granted under the said orders of the Government so far as the category of employees who retired before 31.3.1985 is concerned and also to issue a writ in the nature of Mandamus directing the respondents to release the balance of retirement benefits extended to other pensioners under Annexure P-1 alongwith encashment of leave upto 240 days;
(iii) issue any other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
As already noticed, the Slate contested these petitions. It has been staled in the written statement that circular dated 9th July, 1985 is not applicable to the case of petitioner and on the strength of the said circular, the petitioner is not entitled to any benefits as he had already retired/superannuated on 5th March, 1985. Under Rule 1.7 Volume-I, Part-I of Punjab Civil Service Rules, a Government employee's claim to pension shall be regulated by the rules in force/applicable at the time when the Government employee retired or is discharged from Government service. The concessions in the circular in question are based upon the advice of the expert body and has a direct nexus to the date "on or after 31st March, 1985", and, thus, the action of the State cannot be termed as arbitrary or discriminatory. The benefits in regard to leave encashment of 240 days as well as treating dearness allowance as dearness pay cannot be granted in the facts of the case and has rightly been denied to the petitioner by the State.
8. The petitioner also served a notice of demand upon the respondents as they were not granted the claimed benefits hence the petitioner filed the present writ petition.
9. From the above facts, it is clear that the only question that falls for consideration of this court is whether the petitioners, who admittedly retired prior to 31st March, 1985 are entitled to the benefits prayed in the writ petitions on the ground that fixing of cut off date, as 31st March, 1985 is invalid, arbitrary and not sustainable. The respondents have pleaded that they had granted the benefits to the employees retired on or after 31st March, 1985 on the recommendation of specified body i.e. 3rd Punjab Pay Commission. There is hardly any dispute to the facts giving rise to the present petitions and the question of law involved is squarely answered by the Hon'ble Apex Court in the following two judgments.
10. In the case of State of Punjab and others v. Boota Singh, 2800(3) Supreme Court Cases 733, the Hon'ble Supreme Court, while holding that fixing of cut off date was not impermissible and per se wilt not become arbitrary, held as under :-
"7. On merits we find that the retirement benefits which are claimed by the respondent are benefits which are conferred by subsequent orders/notifications. Therefore, persons who retired after the coming into force of these notifications and order are governed by different rules of retirement than those who retired under the old rules and were governed by the old rules. The two categories of persons, who retired were governed by two different sets of rule. They cannot, therefore, be equated. Further, granting of additional benefits has financial implications also. Hence, specifying the date for me conferment of such additional benefits cannot be considered as arbitrary.
8. In the case of Indian Ex-service League v. Union of India this Court distinguished the decision in Nakara case and held that the ambit of that decision cannot be enlarged to cover all claims by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of retirement, even though the emoluments for the purpose of computation of pension be different. We need not cite other subsequent decisions which have also distinguished Nakara case. The latest decision is in the case of K.L. Rathee v. Union of India where this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. The respondents are not entitled to claim benefits which became available at a much later date to retiring employees by reasons of change in the rules relating to pensionary benefits."
11. While in another case titled as State of Punjab and another v. J.L. Gupta and others, 2000(2) SCT 8 (SC) : 2008(3) Supreme Court Cases 737, where the same notification was under
challenge, the Hon'ble Supreme Court, while holding that Dr. Asa Singh's case has no application, the Court specifically observed that Boota Singh's case held the field and was good law. The Apex Court further directed the Slate to adopt a more careful approach towards litigation arising from Boota Singh's case. The Court held as under:-
"4. In Boota Singh case it has also been held that the benefit conferred by the notification dated 9.7.1985 can be claimed by those who retire after the date stipulated in the notification and those who have retired prior to the stipulated date in the notification are governed by different rules. They are governed by the old rules, i.e. the rules prevalent at the time when they retire. The two categories of persons are governed by different sets of rules. They cannot be equated. The grant of additional benefit has financial implications and the specific date for the conferment of addi- tional benefits cannot be considered arbitrary. It is further held that (SCC p. 735, Para 8).
"In the case of Indian Ex-Service League v. Union of India this Court distinguished the decision in Nakara case and held that the ambit of that decision cannot be enlarged to cover ail claims by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of retirement, even though the emoluments for the purpose of computation of pension be different. We need not cite other subsequent decisions which have also distinguished Nakara case. The latest decision is in the case of K.L. Rathee v. Union of India where this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. The respondents are not entitled to claim benefits which became available at a much later date to retiring employees by reasons of changes in the rules relating to pensionary benefits."
5. The controversy involved in the present appeal and connected appeals is squarely covered by the aforesaid decision. The respondents are thus not entitled to claim benefits under the notification dated 9.7.1985 since the said benefit became available on a much later date to the retiring employees by reason of changes in the rules relating to pensionary benefits. In this view, the judgment of the High Court cannot be sustained.
6. Before parting we place on record our deep anguish for the unavoidable litigation in this Court in the form of the present appeals at the instance of the appellant State of Punjab. The decision in Boota Singh case, had been rendered more than a year earlier than the impugned judgment of the High Court. It is a matter of regret that Boota Singh decision was not brought to the notice of the High Court with the result that the High Court on the basis of Dr. Asa Singh case, allowed the writ petitions. The explanation that Boota Singh decision was not reported and it could not be brought to the notice of the counsel and, therefore, could not be cited before the High Court shows a total casual approach particularly when the State of Punjab itself was the appellant in the said case. Such casual approach result in unnecessary litigation and waste of time besides incurring of unnecessary expenses and waste of public money. We can only express a hope that in future litigants such as State Governments would be more be careful."
12. In view of the aforesaid judgments, this Court is unable to find any patent error or arbitrariness on the part of the State in denying the benefits to the employees who have retired prior to 31st March, 1985. This would constitute two different and distinct classes of the employees i.e. one who retired prior to the said date and other who retired on or after the said dale. The inevitable result is that all these writ petitions will have to be dismissed.
13. For the aforestated reasons, it is not necessary for this Court to go into the question whether Annexure P/l is the correct copy of the notification impugned by the petitioner before this Court or not. In the petition reference has been made to the notification/circular dated 9th July, 1985, while Annexure P/l is dated 13th November, 1988. 1 have already discussed that the petitioners are not entitled to the benefits arising from the circular dated 9th July, 1985. Thus, in no event it can be said that they would be entitled to the benefits arising from the notification dated 13.11.1988.
14. Resultantly, all the 19 writ petitions are dismissed. However, there shall be no order as to costs .
15. Petitions dismissed.