Rajasthan High Court - Jaipur
Mohan Lal Sharma vs State Of Rajasthan And Anr. on 26 July, 2002
Equivalent citations: RLW2004(2)RAJ1050, 2003(1)WLN136
JUDGMENT Sharma, J.
1. The analogous cluster of 19 writ petitions involve common questions of law.
2. The petitioners, who got retired form the municipal services prior to October 1, 1987 have prayed that they alongwith all other similarly situated employees should be allowed pensionary benefits.
3. To understand the controversy, the facts of S.B. Civil Writ Petition No. 1974/1992 may be looked into. The said petition has been filed by Mohan Lal in a representative capacity on behalf of himself and 50 other employees, who were not paid pension.
4. A look at the Legislative history of Municipal Laws reveals that the Rajasthan Town Municipalities Act, 1951 came into force w.e.f. December 22, 1951. At that time Ajmer Merwara did not from part of the State of Rajasthan and the employees of Ajmer Merwara were governed by Ajmer Merwara Municipalities Regulations, 1925. Ajmer Merwara merged into the State of Rajasthan on November 1, 19956. Thereafter the Rajasthan Municipalities Act, 1959 came into force with effect from October 17, 1959 and by virtue of Section 2 read with 1st Schedule all Municipal Laws including Ajmer Merwara Regulations 1925 were replaced. Thereafter unified Municipal Service Rules for various class of employees were enacted which are known as Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 brought into force with effect from November 24, 1963, Rajasthan Municipalities (Class IV Service) Rules, 1964 was brought into force with effect from May, 2, 1964 and Rajasthan Municipal Service Rules, 1963.
5. By virtue of the Rajasthan Municipalities Act, 1959 and the Rules referred therein all the employees in Municipal Service became members of their respective services and provisions were made for provident found and pension etc.
6. Rules 35 and 36 of the Rajasthan Municipal Service Rules, 1963 make provision regarding contributory provident fund and other conditions of the service relating to pay allowances, leave, pension, gratuity, provident fund, discipline conduct etc. Similar rules were framed in the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 and Rajasthan Municipalities (Class V Service) Rules, 1964.
7. That initially under the Rajasthan Town Municipalities Provident Fund Rules, 1955 Provident fund facility was extended to those employees whose salary was not less than Rs. 25/- per month. The Provident Fund Rules 1955 were lateron converted into Rajasthan Municipalities Provident Fund Rules, 1960. However, the Ajmer Merwara Provident Fund Rules, 1937, the Bikaner Provident Fund Rules and Jodhpur Government Service Regulations continued to exist.
8. Thereafter the Rajasthan Municipalities (Contributory Provident Fund and Gratuity) Rules, 1969 were framed and brought into force with effect from August 2, 1990. By these Rules, uniformity was enforced in respect of all types of Municipalities and the employees of Ajmer Merwara, Bikaner, Udaipur and Jodhpur were given option under Rule 4 of the Rajasthan Municipalities (Contriburoty Provident Fund and Gratuity) Rules, 1969.
9. Besides the above Rules there exists various sets of Rules viz:
i) Conveyance allowance Order No. 24 (43) LSG/61 dated 30.8.62.
ii) The Rajasthan Municipalities (Supply of Livaries to employees) Rules, 1963;
iii) The Rajasthan Municipalities (Observance of Holidays and Regulating Hours of Work) Rules, 1961.
iv) Hard Duty allowance to fire Staff No. Estt. 5(F) 18 (E) (59)768/30589-949 dated October 3, 1970.
v) Staffing pattern for Municipal Boards S. 24(2) DLB/64- 65/4F2d554 dated 27/28.12.65.
vi) Staffing pattern for Municipal Councils F. 24(2) Integ.DLB 66/578-822 dated 31.10.66 and F. 24(2) Integ. DLB/66 4044 dated 6.2.1967.
vii) Payment of House Rent Allowance Rules. Thus a total uniformity was brought about.
10. It will be seen that in that manner there was total uniformity in the service conditions of all the employees of all the Municipalities.
11. A Notification dated May 26, 1987 which was published in the Rajasthan Gazette on September 17, 1987 granted pensionary benefits to the employees of erstwhile Ajmer Merwara Municipalities.
12. In terms of the Notification the employees of Ajmer Merwara Municipalities who were appointed/retired prior to 2.8.1970 were granted pensionary benefits as indicated in the order. The petitioners contention is that this Notification is discriminatory qua the employees of the former Ajmer Merwara Municipalities in as much as the employees of other Municipalities even if they were appointed or retired prior to 2.8.1970 would not get such pensionary benefits.
13. On August 2, 1970 the Rajasthan Municipalities (Contributory Provident Fund and Gratuity) Rules, 1969 were brought into force. The petitioner's submission is that these Rules are hardly relevant for the purpose of denying the pensionary benefits to the employees of other Municipalities. Under the relevant and respective rules, provisions were for the Provident Fund and even in the Ajmer Merwara Municipalities Regulations of 1925 and the other provisions were the Rules of 1937 framed by the Chief Commissioner of Ajmer Merwara vide Notification dated May 22, 1937 No. 130 G.37 Municipal Account Code.
14. The case of the petitioner with reference to the Notification dated May 26, 1984 is that the petitioner and others who were in services of the Municipalities in the State of Rajasthan and others than the Municipalities Ajmer Merwara cannot be treated differently. Both the set of employees have throughout been subjected to the same set of rules covering all service matters and service prospects and in this view of the matter there is no lawful jurisdiction to deny the pensionary benefits to the petitioners and in case pensionary benefits are granted to the employees who became members of the Rajasthan Municipalities Service form the Municipalities under Ajmer Merwara it was submitted that the Provident fund facility was also available to the employees of the Ajmer Merwara Municipalities of Rajasthan. It was submitted that the Notification dated May 26, 1984 is wholly discriminatory and violative of Article 14 of the Constitution of India.
15. While pensionary benefits were denied by issuing Notification dated May 26, 1984 published on September 17, 1987, another set of rules have been framed by which the pensionary benefits have further been denied to the employees of the Municipalities who were retired prior to October 1, 1987. There Rules known as the Rajasthan Municipal Service (Pension) Rules, 1989 brought into force with effect from October 1, 1987.
16. A large number of retired employees like the, petitioners on account of discriminatory treatment by the non-petitioners filed Rajasthan Nagar Palika Seva Niwrit Karamchari Sangh v. State of Rajasthan and Ors. (1). This Hon'ble Court held as under:
"The result is that this writ petition is allowed. The order dated May 26, 1984 published in the Gazette on September 17, 1987 denying the members of the petitioner association the pensionary benefits and the order dated September 9, 1988 is delcred to be discriminator qua the members of the petitioner association and it is directed that they will be entitled to the same pensionary benefits as has been given to the erstwhile employees, who were members of the Municipal Services in Ajmer Merwara it is further directed that the contribution of the provident fund amount paid to the members of the petitioner association shall be adjusted towards the arrears of the total amount of pension to which they are found entitled from the date of entitlement. They shall also be entitled to be paid pension in future month by month in accordance with the provisions of the Rajasthan Service Rules with the benefit of commutation of pension etc. including all facilities which are being provided to the persons placed in similar situation.
In view of the fact that none appeared to oppose the writ petition, the costs is made easy."
17. Since the case of the petitioners was exactly identical to those retired employees they submitted representation in June 91, alongwith photostat copy of the judgment dated February 26, 1991 so that the benefits of the pension as was awarded to the petitioners in S.B. Civil Writ Petition No. 288/89 may also be granted to them. The State Government issued another order dated February 13, 1992 giving effect to the judgment of S.B. Civil Writ Petition No. 288/89. The benefits have been given only to the employees who were party to that writ petition and the benefits have been denied to the petitioner and similarly situated employees.
18. The respondents submitted reply to the writ petition stating therein that the employees who retired prior to October 1, 1987 were not covered under the Rules framed by the State Government and they were not entitled to get pension in view of Rules 3 & 4 of the 1989 Rules.
19. The petitioner submitted rejoinder to the reply and prayed that the Rajasthan Municipal (Pension) Rules, 1989 (for short 1989 Rules) in so far as they fix the cut off date as October 1, 1987 be quashed and set aside and it may be declared that all retired employees form a single class and would be entitled for pension under 1986 Rules.
20. 1 have given my anxious and thoughtful consideration to the rival submissions.
21. At this juncutre a look at Rules 3 & 4 of 1989 Rules, appears necessary, which read thus-
"3. Applicability of Rules:-
The rules shall apply to all employees (other than persons employed on part time/work charged/contract basis and an employee on deputation to the Board) holding posts as on 1.10.1987 or thereafter under the control of the Board provided they opt for these rules.
The employees retired or retiring on or after 1.10.1987 shall only be eligible for pension under the provision of these rules provided they opt for these rules.
4. Non applicability of Rules.
These rules shall not apply to the employees retired before 1.10.1987 or working on part time/work charged/contract deputation basis."
22. Evidently as per Rules 3 & 4 of 1989 Rules the pensionary benefits are not available to those employees who had been retired prior to October 1, 1987. The questions that require answer are-
(i) Whether with the aid of Rules 3 and 4 of 1989 rules the employees have been classified into two different groups i.e. the employees who got retired prior to October 1, 1987 and the employees who were superannuated on or after October 1, 1987?
(ii) Whether the date October 1, 1987 has been arbitrarily picked up?
23. Their Lordships of the Supreme Court in Dhan Raj v. State of J. & K. (2), indicated that while considering the question of grant of pensionary benefits the State has to act to reach the constitution goal of setting up a socialist State as stated and the assurance as given in the Directive Principles of State Policy. A pension is a part and parcel of that goal, which secures to a person serving with the State after retirement of his livelihood. To deny such a right to such person without any sound reasoning or any justifiable differentia would be against the spirit of the constitution.
24. The Constitution Bench of Hon'ble Supreme Court in D.S. Nakara v. Union of India (3), observed in para 36 thus-
"Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the Constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age atleast to those who have rendered useful service during there active years, it is indisputable nor was it questioned, that pension as a retirement benefit in consonance with and furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured atleast when it is mostly needed and least available, namely, in the fall of life."
25. The thrust of Article 14 of the Constitution is that the citizen is entitled to equality before law and equal protection of laws. Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation. Legislative and executive action may be sustained it it satisfied the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved, in Ramana Daya Ram Shetty v. International Airport Authority (4), their Lordships of the Supreme Court propounded that a discriminatory action of the government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
26. Basic argument advanced on behalf of the petitioners is that the employees for the purpose of receiving pension form a class and there is no criterion on which classification of employees retiring prior to specified date and retiring subsequent to that date can provide a rational principle correlated to the object, viz. object underlying payment of pension. Per contra the contention of the respondents is that for the purpose of pension all employees do not form one class and classification of the employees on the basis of their date of retirement is a valid classification for the purpose of pensionary benefits.
27. In D.S. Nakara v. Union of India (supra) Hon'ble Supreme Court held that criterion of date of enforcement of the revised scheme entitling benefits of the revisions to those retiring after specified date while depriving the benefits to those retiring prior to that date was violative of Article 14. It was indicated in para 65 thus-
"..... with the expanding horizons of socio-economic justice, the socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and the exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria; 'being in service and retiring subsequent to the specified date' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension and retiring subsequent to that date' in impugned memoranda, exhibits- P-1 and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words in Exhibit. P-1 the words:-
"that in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that date"
and in Exhibit P-2 the words:
"the new rates of pension are effective form 1st April, 1979 and will be applicable to all service officers who became/become non- effective on or after that date."
are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one form which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement."
28. Ratio indicated in Krishna Kumar v. Union of India (5), relied upon by the respondents, is not applicable to the facts of the instant petitions. Hon'ble Constitution Bench of the Supreme Court in Krishna Kumar's case observed that the pension scheme and the P.F. scheme are structurally different. Pension retirees and the P.F. retirees do not form a homogeneous class and the classification among them would not be violative of Article 14 of the Constitution.
29. After having closely scrutinised the material on record 1 do not find any justifiable criterion to draw the line between those who retired earlier and those retired after October 1, 1987. Both such set of employees were equally placed in the Municipalities of the State of Rajasthan. All the employees who got retired prior to October 1, 1987 had served the Municipalities for a very long period and they had earned their legitimate expectation. It is not something that they seek as a begging bowl. In my considered opinion the employees for the purpose of receiving pension from a class and there is no criterion on which classification of employees retiring prior to October 1, 1987 and retiring subsequent to that date can provided a retional principle correlated to the object under lying payment of pension. The eligibility criteria devised by Rules 3 and 4 of 1989 Rules being thoroughly arbitrary violates Article 14 and is struck down with the specification that 1989 Rules shall be applicable to all retired municipal employees irrespective of their date of retirement. In other words the employees who got retired prior to October 1, 1987 shall also be entitled to pensionary benefits.
30. For the reasons aforementioned all the writ petitions stand allowed and the respondents are directed to accord the pensionary benefits to all the petitioners after adjusting the contribution of Provident Fund paid to them, from the arrears of pension. The pensionary benefits shall be calculated from the date of retirement of each employee under the provisions of 1989 Rules alongwith the benefit of commutation of pension and other consequential reliefs. The parties shall bear their own costs.