Patna High Court - Orders
Ramadhar Sharma vs The State Of Bihar & Ors on 8 July, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20478 of 2012
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Ramadhar Sharma S/o Late Bindeshwar Singh, resident of village - Nawan,
P.O.- Jamui, P.S.- Dulhin Bazar, District- Patna.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Director, Secondary Education, Govt. of Bihar, Budh Marg, Patna.
3. The District Education Officer, Patna
4. The Accountant General, Birchand Patel Marg, R-Block, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Dr. Mayanand Jha, Adv.
For the Respondent/s : Mr. A. Haider, SC-16
Mr. A. Prasad, AC to SC 16
For the Accountant General Mr. S.M.Ehtesham, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
C.A.V.
10 08-07-2014Heard learned counsel for the petitioner and learned counsel for the State.
In this case, the petitioner is seeking a relief that he should be paid full pension in terms of Bihar Pension Rule vide Govt. Notification dated 23/9/2009 in view of fact that he is covered under the 6th Pay Commission Report, which has been accepted by the State Government, has been implemented with effect from 1st January 2006 notionally but the actual payment has been implemented with effect from 1st April 2007.
The Government of Bihar issued a Notification dated 23rd September 2009 whereby and whereunder the Government has taken a policy decision giving reference of letter of the Central Patna High Court CWJC No.20478 of 2012 2/19 Government vide Memo No. 38/37/08-P&P W(A) dated 2nd September 2008, the persons who have retired on and after 23rd September 2009, the minimum requirement of full pensionable service would be 20 years and those who have retired before 23rd September 2009, the minimum requirement for full pensionable service would be 33 years. Similarly, with regard to the gratuity, those who have retired on or after 23rd September 2009, their gratuity would be calculated at revised scale of pay and the maximum limit for gratuity would be Rs. 10,000,00/- (ten lakhs) but those who have retired before the issuance of Notification, the gratuity would be calculated on the basis of unrevised scale of pay and a limit was provided Rs. 3,50,000/ (three lakhs and fifty thousand).
The counsel for the petitioner submits, the said notification is discriminatory and arbitrary, as it creates sub-class within the class itself as pensioner is one class, Article 14 and 16 of the Constitution prohibits to create a separate class in that class itself.
From the record it appears that the petitioner was appointed initially as Assistant Teacher, Baliga High School, Khagaul in the year 1979 and has superannuated from service on 31st December 2007 having a clean record of service. He has been Patna High Court CWJC No.20478 of 2012 3/19 benefited by the 6th Pay Commission Report and has also been paid the gratuity at the revised scale of pay in terms of maximum limit of Rs. 10,000,00/- (ten lakhs). Now, he has raised a grievance that he has completed 28 years and 5 months in service but has been given the pension proportionately, treating minimum period of 33 years pensionable service for full pension. As per the Circular dated 23rd September 2009, the benefit of 20 years of pensionable service should be given to the petitioner as not providing the full pension is an act of arbitrariness on the part of the State to create a separate class of pensioner in the class of pensioner without any valid reason and rational without any object sought to be achieved is not permissible in law.
The counsel for the petitioner has submitted that the identical issue with regard to gratuity came before this Court in Hari Ram Vs. State of Bihar (CWJC No. 20041 of 2012) where the issue was raised with regard to calculation of the gratuity at revised scale and the limit of Rs. 10,000,00/- will be applicable to those persons who have retired from 1st April 2007 or it will be applicable from the date of Notification. He further submits that the Court had arrived to a conclusion that the gratuity would be calculated at revised scale to those who have already retired from 1st April 2007. He further submits that in terms of that judgment, Patna High Court CWJC No.20478 of 2012 4/19 the Resolution fixing 20 years of pensionable service be made applicable with regard to entitlement of full pension period and as such, the petitioner who has superannuated from service on 31/12/2007, 20 years should be treated to be the proper period for the purposes of entitlement of full pension.
The counsel for the State has submitted that the State Government is not bound to follow the decision of the Central Government, as the Central Government implemented the 6th Pay Commission Report including all the retiral benefits with effect from 1st January 2006 but the State of its own modified the same has implemented the 6th Pay Commission though notionally 1st January 2006 but with regard to the actual date of payment it has implemented with effect from 1st April 2007. Similarly, pension and gratuity were implemented with effect from 1st January 2006 but the State modified its pension scheme and fixed the different date for implementation of full pension as well as gratuity. He has submitted that on account of the financial burden, the State in its wisdom fixed its own date and it cannot be said the date fixed by State is arbitrary and has relied on paragraph 5 of the counter affidavit filed on behalf of the Principal Secretary, Finance Department, Government of Bihar and paragraph 6 of the supplementary counter affidavit filed by Under Secretary of Patna High Court CWJC No.20478 of 2012 5/19 Finance Department and on that strength submission has been made that the date fixed cannot be held to be arbitrary and in support of his contention he has relied on three judgments of the Hon'ble Supreme Court, reported in 1994 (4) SCC 68 (Union of India Vs. P.N. Menon & others.), 1990 (4) SCC 207 (Krishena Kumar Vs. Union of India) and 1997 (2) SCC 342 (State of Rajasthan & another Vs. Amrit Lal Gandhi & others) and on that strength the counsel for the State submits that there is no need to interfere with the Notification and it should be treated that those who have retired before the date of issuance of Notification will be entitled to full pension on completion of 33 years of service.
In the present case, primary issue has been raised as to whether the petitioner would get full pension on the basis of pensionable service of 33 years or 20 years.
Before deciding the case on merit, it will be a necessary to examine the peripheral and attending facts leading to the dispute. As is apparent from the records, the Government of India revised the pay structure/pay scale of central Government employees on the recommendation of 6th Central Pay Commission with effect from 1st January 2006. Following this, the State Government also decided to revise the pay structure/pay scale of all the State Government employees. Accordingly, the State Patna High Court CWJC No.20478 of 2012 6/19 Government vide its resolution No. 11070 dated 30th December 2008 constituted a State Level Committee for recommending the same in the light of recommendation as made by the 6th Central Pay Commission for the revised pay structure of the employees as per the central government employees. While the matter was pending with the State Pay Committee, the State Government vide Resolution dated 17th January 2009 gave immediate relief to the employees of the State Government with effect from 1st January 2009 subject to final recommendation by the State Level Committee and its acceptance by the State Government. Accordingly, the emolument payable to the employees of the State Government in service on 1st January 2009 was accordingly revised.
While the revision of pay was under consideration before the State Level Pay Revision Committee, the Government of Bihar resolved, vide resolution No. 23rd September 2009 revised the pension and gratuity in the revised scale of pay vide Annexure-1 to the writ petition. The challenge is with respect to certain provisions of the resolution dated 23rd September 2009 which is under consideration before this Court.
From the records it appears that the State Level Pay Revision Committee submitted its report dated 21st December Patna High Court CWJC No.20478 of 2012 7/19 2009 relating to revision of pay scale/pay structure and other benefits to the employees of the State Government. On 23rd December 2009 vide Resolution No. 12203, the State Government constituted a 3-Man Committee to scrutinize the recommendation of the State Level Pay Revision Committee. The State Government ultimately accepted and notified the new pay structure/pay scale for the employees of the State Government vide its resolution dated 21st January 2010. The Pay Revision Resolution dated 21st January 2010 was made effective to all the Government employees retrospectively with effect from 1st January 2006 but the actual payment/financial benefit of the revised pay structure/pay scale was given with effect from 1st April 2007. This was made applicable to all Government employees who were in service on 1st January 2006 and all of them were entitled to the revised pay scale under the revised pay structure which was much higher than the original pay scale.
In this way on micro-analysis, four dates are very relevant for consideration for the issue involved in the present case, as the revised pay was made effective with effect from 1st January 2006, the actual payment was made applicable with effect from 1st April 2007 and the third date is 23rd September 2009, i.e. the date of issuance of pension resolution and the 4th Patna High Court CWJC No.20478 of 2012 8/19 date is 21st January 2010 i.e. the date the State Government in its resolution revised the pay structure/pay scale with effect from 1st January 2006.
It will also be relevant to analyze the notification dated 23rd September 2009 where it has been provided that the employees who have retired on or after 1st January 2006 would be entitled to pension in terms of revised scale of pay. In Clause-2 it has been provided that those who have completed 10 years of service would be entitled to minimum pension and those who have completed twenty years of service would be entitled to full pension and the manner of calculation has been given therein but one rider has been given that those who have retired in between 1st January 2006 to the date of notification i.e. 23rd September 2009, those employees having completed 33 years of service would only be entitled to full pension. Meaning thereby, the persons who have retired after 23rd September 2009 will be entitled to full pension on completion of 20 years of service whereas those who have retired in between 1st January 2006 to 23rd September 2009 would be entitled to full pension only after completion of 33 years of pensionable service.
In the present case the question has been raised for fixation of date of 23rd September 2009 for entitlement of full Patna High Court CWJC No.20478 of 2012 9/19 pension on completion of 20 years of service is an arbitrary date and has no reasonableness nexus and rational basis to the objects sought to be achieved. It has been submitted that Article 14 of the Constitution forbids the class legislation but permits reasonable classification for the purpose of legislation. Classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it, is that there ought to be a nexus i.e. causal connection between the basis of classification and the object of statute under consideration.
In the present case, the State has filed its counter affidavit, has not shown why they have picked up and fixed the date as 23rd September 2009 for being entitled to full pension on completion of 20 years of service. In view of the fact that revision has been made with effect from 1st January 2006 and persons retired on that date were entitled to pension at revised scale of pay but actual payment was made effective with effect from 1st April 2007 and ultimately the notification of revised pay scale was issued on 21st January 2010.
This Court is of the view that the employees in between at least 1st January 2006 and 23rd September 2009 constitute one homogenous class. When the question is raised about picking of the date from the that constituting two classes, in Patna High Court CWJC No.20478 of 2012 10/19 that circumstance the State should come forward and justify its action as to what was the reason to differentiate a class and that to on the basis of intelligible differentia.
This notification was challenged in a writ petition being CWJC No. 20041 of 2012 (Hari Ram v. The State of Bihar and others), by which grievance was made about the manner of calculation of gratuity and the ceiling fixed therein. Under the said notification it was provided that those who have retied between 1st January 2006 and 23rd September 2009 would get gratuity in the unrevised scale of pay and the maximum ceiling was fixed at Rs.3,50,000/- but those who have retired after the date of notification would be entitled to gratuity in the revised scale of pay and there too, ceiling will be at Rs.10,00,000/- The Court considered the question of homogeneity of class of retired employees. The Court has dissected and classified as to the manner the retired employees have been placed and has discussed the manner for the first group, gratuity is to be calculated with at the unrevised scale of pay but benefit of pay revision was made available whereas for the 2nd group though constitute single group, directed calculation of gratuity at revised pay scale along with benefit of 6th Pay Revision Committee.
It will also be relevant to state here that in view of Patna High Court CWJC No.20478 of 2012 11/19 the order passed in Hari Ram case (supra), Government has issued notification dated 27th May 2013 whereby it has been provided that those who have retired in between 1st April 2007 and 23rd September 2009 they would be entitled to gratuity in terms of revised pay scale and the maximum ceiling has been provided at Rupees ten lacs. In this way the State Government has principally accepted that the Notification dated 23rd September 2009 suffers from vice hostile discrimination is not in consonance with Article 14 of the Constitution of India and, accordingly, modified notification with respect to gratuity.
In this case also employees who retired between 1st January 2006 would be entitled to the revision of pay scale, including pension in the revised scale of pay equally to the persons who retired after 23rd September 2009 but only difference in between the two class is that one class would be entitlement of full pension only after 33 years of pensionable service and other class who retired after 23rd September 2009 would be only required to complete 20 years of service for full pension.
Why two classes have been created is not apparent from the notification or the materials brought by the State on the record. As the point is for creating a different class in the same Patna High Court CWJC No.20478 of 2012 12/19 class, it was required that it should be based on reasonable classification for the purpose of legislation and that classification must satisfy the test of classification being founded on differential basis 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 relation to the objects sought to be achieved.
In the case of D.S.Nakara v. Union of India, reported in AIR 1983 SC 130, the Hon'ble Supreme Court held that Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question. It has been held that Classification must be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e. casual connection in between the basis of classification and the object of the statute under consideration. Patna High Court CWJC No.20478 of 2012 13/19 Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
This Court in Hari Ram (supra) has held that creation of two groups, for the purpose of calculating gratuity, the pay revision with retrospective effect and other calculation of gratuity in terms of unrevised pay scale constituted two classes which is unfair, arbitrary and amounts to hostile discrimination. As has been held that similarly situated persons are treated differently on the cynical stand of the State being two groups are essentially different. It will be apt to quote Para 29 of the judgment in the case of Hari Ram (supra) which is as follows:
"The true answer to this problem can be arrived only when we examine whether we are dealing with two different cases, the differentiation having rational nexus. As noted above, the pay revision notification was issued on 21st of January 2010 giving cash benefit with effect from 1st April 2007.Thus all persons who were in service in that period between 1st April 2007 and 21st January 2010 from one homogeneous class and all of whom were entitled to their pay revision upto the time of their superannuation. Thus, the person who retired on 1st February 2009 or in Patna High Court CWJC No.20478 of 2012 14/19 case of petitioner 20th February 2009 i.e. before pension revision resolution dated 23rd September 2009 and a person who retired on 1st November 2009, i.e. after pension revision resolution dated 23rd September 2009 all were entitled to their pay revision upto the date of their retirement. Thus, all of the are a class to get her without discrimination. What the pension revision notification dated 23rd September 2009 has done is it has divided this one class into to groups solely on the basis of date of resolution. One who retired in between 1st April 2007 to 22nd September 2009 and the other who retired between 23rd September 2009 and 20th January 2010. For the first group, for the purposes of calculating gratuity, the pay revision with retrospective effect is ignored and gratuity is calculated on the last unrevised pay drawn. But when it comes to the second group it permits the gratuity to be recalculated giving effect to the pay revision. This, in my view, is clearly unfair, arbitrary and amounts to hostile discrimination where similarly situated persons are treated differently on the cynical stand of the State that the two groups are essentially different. One prior to the pension revision Patna High Court CWJC No.20478 of 2012 15/19 notification and the other after the said notification though undisputedly both are visited equally with pay revision retrospectively."
The Hon'ble Supreme Court while considering the issue involved in the case of State of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429 held that pension and gratuity are no longer bounty to be distributed by the Government to its employees. In later part of judgment of Para-26 the Court has considered the case of Krishna Kumar v. Union of India and others, reported in (1990)4 SCC 207, Union of India v. P.N.Menon & others, reported in (1994)4 SCC 68, including D.S.Nakara case. The Court has taken into consideration the judgment in the case of Union of India and another .v. S.Thakur reported in (2008)13 SCC 463 where the Hon'ble Supreme Court has held that principle of fixation of pay and date from which the benefit of revised pay scale would be admissible is the function of the executive and scope of judicial review of such an administrative decision is very limited. But it is also well settled that the Court would interfere with the administrative decision appertaining to pay fixation and pay parity as well as the date from which the revised pay scales would be made applicable, if it is found that such a decision is unreasonable, unjust and Patna High Court CWJC No.20478 of 2012 16/19 prejudicial to a section of the employees.
The Hon'ble Supreme Court in P.N.Menon (supra) held that the cut off date was fixed for the purpose of taking certain percentage of dearness pay for the purpose of calculating pension was based on average cost of living index at 272 which fell on 30/9/77, Union of India explained why particular date was chosen for the purpose taking certain percentage of dearness pay for pension. There was rationality in choosing particular date having nexus to the object sought to be achieved. But in the present case it is missing. The judgment in P.N.Menon case is not applicable to the facts of the present case.
This Court in Hari Ram case has held that the notification dated 23rd September 2009 per say is unfair, capricious, arbitrary, unreasonable creates hostile discrimination is violative of Article 14 of the Constitution and accordingly directed for recalculation of gratuity giving retrospectivity of pay scale for the purpose of calculation of gratuity. It will be proper to rely on Para-42 of the said judgment in the case of Hari Ram (supra) which is as follows:
"To conclude, that for calculating gratuity, depriving a group of retirees of the benefit that would accrue to them by virtue of retrospective pay revision, Patna High Court CWJC No.20478 of 2012 17/19 while allowing the benefit of the retrospectives pay revision to another group similarly situated as done by the pension revision notification dated 23rd Sept ember 2009, cannot be sustained as legal and valid. It is per se unfair, capricious, arbitrary, unreasonable and is a hostile discrimination as also violative of Article 14 of the Constitution and in conflict with constitution Bench judgment in the case of D.S.Nakara case (supra) which clearly prohibits sub-classification of a homogeneous group without valid reason or rational. The result is that the clauses of the said notification, which deprives the petitioner of the right to get his gratuity revised as per the retrospective pay revision, has to be held to be illegal and, thus, unenforceable. Petitioner would thus be entitled to revision of his gratuity on the basis of the retrospective revision of the pay scale but the same would be restricted to the maximum of Rs.3,50 lacs".
Similar issue came for consideration before the High Court of Delhi in the case of Union of India v. Central Government SAG and others, SP© 1535 of 2012 and analogous cases where the question was raised how calculation would be made of pension in Para-26 the Court has directed for calculation Patna High Court CWJC No.20478 of 2012 18/19 of pension at 50 per cent of minimum pay band. It will be apt to quote Para-26 of the judgment which is as follows:
"Para-26: It is for the aforesaid reasons, we remark that there is no need to go into the legal nuances. Simple solution is to give effect to the resolution dated 29th August 2008 whereby recommendations of the 6th Central Pay Commission were accepted with certain modifications. We find force in the submission of learned counsel for the petitioners that subsequent OMs dated 3rd October 2008 and 14th October 2008 were not in consonance with that resolution. Once we find that this resolution ensures that "the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than 50 per cent of the sum of the min\mum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale from which the pensioner had retired", this would clearly mean that the pay of the retiree i.e. who retired before 1st January 2006 I to be brought corresponding to the revised pay scale as per 6th Central Pay Commission and then it has to be ensured that pension fixed is such that it is not lower than 50 per cent of the minimum of the pay in the Patna High Court CWJC No.20478 of 2012 19/19 band and the grade pay thereon. As a result, all these petitions succeed and mandamus is issued to the respondents to refix the pension of the petitioners accordingly within a period of two months and pay the arrears of pension within two months. Incase the arrears are not paid within a period of two months, it will also carry interest @ 9 per cent w.e.f. 1st March 2013. There shall, however, be no order as to costs."
In view of Hari Ram Case (supra) and the aforesaid discussion, this Court is also of the view that the said notification dated 23rd September 2009 has created two classes and is not based on intelligible differentia and there is no rationale nexus with the object sought to be achieved.
Accordingly, this Court is of the view that to the extent of limiting 33 years for those who have retired between 1st January 2006 to 23rd September 2009 is arbitrary suffers from hostile discrimination and it should be treated that they would also be entitled to full pension on completion of 20 years of pensionable service which is available to those who have retired after 23rd September 2009.
In the result, this writ petition is allowed.
Mahesh/- (Shivaji Pandey, J)