Rajasthan High Court - Jaipur
Shyam Sunder Lal Sahu And 4 Ors. vs Rajasthan Khadi And Village Industries ... on 9 August, 1991
Equivalent citations: 1992(1)WLC540, 1991WLN(UC)266
JUDGMENT G.S. Singhvi, J.
1. All these petitions have been filed with a common prayer for declaration that the pension scheme notified by the Government of Raj. vide Circular No. F. 4(5) IND/II/83 dated 11.9.1989 will govern and apply to all employees of the Khadi and Village Industries Board, who retired on or before 28.1.1983. The petitioners have prayed that the respondents be directed to extend the benefits of the pension scheme to the petitioners. Since common question of law is involved in all these writ petitions, they are being disposed of by a common order.
2. The facts given in all the writ petitions are more or less identical & therefore, it will be sufficient to refere to the facts given in writ petition No. 1587/90 Ram Pal Karadiya v. Rajasthan Khadi & Village Industries Board.
3. Petitioner Ram Pal Karadiya was retired from the service of the Rajasthan Khadi & Village Industries Board (hereinafter to be referred to as "the Board") after 28.1.1983 but before 1.9.1988. His date of retirement has been given as 31.1.1988. Petitioner has stated that he has rendered satisfactory service.
4. The respondent-Board is an instrumentality of the State because it is fully controlled and managed by the State and therefore, it falls within the definition of the term "state" (other authority) as used in Article 12 of the Constitution of India. Respondent Board had decided to extend the benefits of pension to its employees and for that purpose a resolution dated 28.1.1983 was passed by the Board and recommendations were sent to the Government to allow benefits of the pension scheme to the employees of the respondent Board. This resolution of the Board was considered and vide its order dated 11.9.1989, the Government extended the benefit of the pension scheme to the employees of the Board w.e.f. 1.9.1988. Since the petitioners had retired between 28.1.83 to 1.9.1988, the benefit of the pension scheme has not been extended to the petitioners. This action of the respondents is arbitrary and has resulted in hostile discrimination against the petitioner. Petitioner has stated that the date of 1.9.1988 has been fixed by the respondents without any reason and rationality and therefore, the benefit of pension scheme should be extended to all the employees of the Board who have retired on or before 1st January, 1983 when the Board had first taken the decision for extension of the pension scheme to its employees.
5. Petitioner Ratan Singh had retired from service of the Board on 30th September, while Hanuman Sahay was retired on 31.3.1988. Shyamlal had retired from service on 30.9.1987.
6. Respondent No. 2 State of Rajasthan has not filed reply to the writ petition, but the respondent Board has filed separate replied in all the writ petitions. The contents of the replies are same and therefore, reference to the reply filed in Writ Petition No. 1587/90 will be made. In its reply, the respondent Board has stated that it is not a 'State' under Article 12 of the Constitution of India. Regarding resolution dated 28.1.1983, it has been stated that the respondent Board had not taken any decision to give pension to its employees, but only a permission had been granted for sending proposals of pension scheme to the Government. The Government approved the scheme and then conveyed its approval to the Board vide communication dated 11.9.1989. By that order the pension scheme has been made applicable to the employees of the respondent Board w.e.f. 1.9.1988. Regarding fixation of the date of 1.9.1988, the respondent Board has stated that some date had to be fixed for the purpose of extension of the benefit of pension scheme and the Government is fully competent to fix the date. This date has been fixed keeping in view the fact that the Government had taken decision in the year 1989. In the additional pleas, the respondent Board has alleged that the petition is liable to be dismissed on the ground of laches and concealment of facts. It is stated that the petitioners have already received pensionary benefits and they have accepted C.P.F. amount.
7. A rejoinder has been filed by the petitioner, wherein the petitioner has stated that the respondent Board is a 'State' under Article 12 of the Constitution of India. Petitioner has the stated that there is no nexus or reasonableness in fixing the date of application of pension scheme, as 1.9.1988. Merely because the Government had taken more than 6 years in taking decision, the petitioner and Ors. similarly situated persons cannot be put to prejudice.
8. So far as the State is concerned, it has also filed a reply to the writ petitions, sum and substance of the reply filed by the State is that according to it also, the Khadi & Village Industries Board is not the 'State' under Article 12 of the Constitution of India. It has admitted that the Khadi Board had decided to sanction the sending of proposal to the State Government for giving benefit of pension scheme to the employees of the Board on the pattern of Karnataka State Board. After considering the proposal of the Khadi Board, the Government decided to implement the pension scheme for the employees of the Board w.e.f. 1.9.1988. The date of 1.9.88 has been fixed because the Revised Pay Scale Rules have also been made effective from 1.9.1988. According to the respondent-State of Rajasthan, the petitioners cannot claim that they have been discriminated.
9. The first question which arises for determination is as to whether Khadi & Village Industries Board is an agency or instrumentality of the State an as to whether it comes within the scope of the term "other authority" under Article 12 of the Constitution of India and is thus amenable to writ jurisdiction. Khadi & Village Industries Board has been set up under the provisions of the Rajasthan Khadi & Village Industries Board Act, 1955 (hereinafter to be referred to as "1955 Act"). Chapter I of that Act contains the definition clauses Chapter II contains provisions regarding establishment and constitution of Rajasthan Khadi & Village Industries Board Section 3 which falls in Chapter II provides that the Government is required to establish Rajasthan Khadi & Village Industries Board by issuing a notification in the official gazette. The Chairman of the Board is required to be a non-official to be nominated by the State Government 12 others members are to be appointed by the State Government, of whom atleast 8 should be non-official members. The non-official members can elect the Vice Chairman from amongest themselves. The functions of the Chairman and Vice Chairman have been specified in Section 6 Section 8-A provides for appointment of financial Advisor of the Board by the State Government. That person must not be a member of the Board. Section 9 empowers the Government to appoint Secretary of the Board. The resignation of the member of the Board can be accepted by the State Government. Section 13 empowers the State Government to remove any member of the Board other than an ex-officio member. Section 17 authorises the State Government to disolve the Board with the previous approval of the State Legislative Assembly and by issuing notification in the official gazette. Section 18 specifies the functions of the Board. These functions relate to encouragement and assistance in running of the Khadi and Village Industries, to organise cooperative societies for Khadi and Village industries, to conduct training centers and to train people at these centres out side the State in Khadi & Village industries, to arrange for the supply of raw materials, tools & implements for Khadi & Village Industries & for sale of the finished products, to endeavour, to educate public opinion & to cultivate in the public a liking & bais for Khadi & Village Industries & for the utilization of products of such industries and. to undertake & encourage research etc. The Office of the Board is required to be at the Head Quarters of the Government. Pay and conditions of service of the Secretary of the Board and the Financial Advisor are required to be fixed by the State Government. The State Government is empowered to transfer property for the use and management by the Board. The Budget of the Board is required to be submitted by the State Government and is required to be sanctioned by the Government. Annual Report of the Board is required to be prepared and submitted by the State Government. Similarly, other reports are also required to be submitted by the State Government. The Accounts and audit reports are required to be placed before the State legislature. Section 35 of the Act empowers the State Government to issue instructions on the policies. It is, therefore, clear that the State Government has wide and pervasive administrative control over the functioning of the Board. It has power to give directions to the Board on the policy matters. The activities of the Board are for the benefit of the rural masses. Thus, the Board under-takes the activities, which would normally be required to be under-taken by the State. The Board, therefore, clearly discharges the functions which are taking to the activities of the State & therefore, in my opinion, the respondent Board is an agency/instrumentality of the State and is amenable to writ jurisdiction as it comes within the scope of 'other authorities' used in Article 12 of the Constitution of India.
10. The next question, which requires consideration is as to whether the State Government is justified in fixing the date as 1-9-1988, from which the pension scheme has been made applicable to the employees of the Board?
11. A perusal of Annexure-1 shows that the Board had decided to sanction sending of proposal to the State Government for extending the benefit of pension scheme to the employees of the Board on the pattern of the Karnataka State Board. This sanction was given vide resolution dated 28-1-1983. The matter thereafter remained with the State Government for almost 6 years and finally the Government conveyed its decision to the Board for implementation of the pension scheme vide letter dated 11-9-1989. The contention of the petitioner's is that implementation of the pension scheme w.e.f. 1-9-1988 results in an arbitrary division of the employees of the respondent Board into two classes. Those who had retired upto 31st August, 1988 will not be entitled to the benefit of the pension scheme, whereas, those retiring on or after 1-9-1988 will get the benefit of the pension scheme. According to the petitioners, the pension scheme has been introduced in order to provide better post retirement benefits to the employees. This is a piece of legislation, which is in ended to advance the cause of social justice to the retired employees. Such a beneficial scheme cannot be restricted to a particular class of employees on the basis of artificial bifurcation with reference to a particular date. The date 1-9-1988 has no relation or nexus with the object of the pension scheme, for which the respondent Board had sent the proposal in 1983 and which has been sanctioned by the Government in the year 1989. According to the petitioners, merely because the Government had taken 6 years to take decision in the matter, the persons like the petitioners cannot be made to suffer. Mere delay in taking decision by the Government insuch matters cannot furnish a reasonable ground from classification with reference to a particular date.
12. On the other hand, the respondents have asserted that some date has to be fixed in each and every case for implementation of the pension scheme and therefore, if 1-9-1988 has been fixed by the State Government as the date for implementation of the pension scheme, it cannot be termed as arbitrary or discriminatory. Moreover, the New Pay Scale Rules have been brought into force w.e.f. 1-9-1988.
13. Article 14 of the Constitution of India provides that the State shall not deny any person equality before law or equal protection of the laws, within the territory of India. Article 16 contains provision regarding equality of opportunity in the matter of employment. Clause (i) of Article 16(1) states that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office in the State. The scope of Article 14 and 16 has been examined in various matters relating to public employment, and on the basis of various decisions of the Supreme Court, it can be said that the quality clause is applicable in the pre-recruitment matters to the public service, to all service conditions which are made applicable after a person joins public post/office and even in post retirement matters the equality clause is applicable. Every State action can be tested before a court of law on the bais of equality clause contained in the Constitution. When a challenge is made to it State action on the ground of arbitrariness, unreasonableness or unfairness or where allegation of discrimination is leveled and prima-facie it is established that the State action is discriminatory or is producing unequality the State has to establish that its action does not offend the equality clauses of the Constitution. In order to justify its action the State has time and again pleaded that the allegation of discrimination or charge of discrimination made against it is untenable because the person who are claiming enforcement of equality clauses, are not similarly situated. In the course of time, determination of classification has come to be envolved. The basic features of this doctring are that if the State establishes that it has made a real division between the two groups of persons or functions and that there is a relationship between the object of the legislation or its action and the division, the charge of discrimination cannot be sustained.
14. The princiles for invoking Article 14 of the Constitution in respect of determination of classification have been discussed in detail in series of case of the Supreme Court and the High Courts. I would like to refer to some cases in which the question of fixing of a particular date has been considered by their Lordships of the Supreme Court.
15. In D.R. Nim v. Union of India and Ors. , the question which arose for consideration relating to counted of officiating service for the purpose of seniority. In holding that the date fixed was arbitrary, the Supreme Court observed as under:
In would be noticed that the date May 19, 1951 to begin with hand nothing to do with the finalisation of the Gradation List of the Indian Police Services because it was a date which had reference to the finalisation of the Gradation List for the I.A.S. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit reproduced above. This date was aparently chosen for the I.A.S. because on this date the Gradation List for all the earlier persons recruited to the service had been finalised and issued on a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. B.R.L. Iyengar, the learned Counsel for the appellant strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the affidavit of Mr. D.K. Guha, Deputy Secretary to the Government of India, Ministry of Home Affairs, dated December 9, 1966, "that the Government of India have recently decided in consultation with the Ministry of law that the Ministry of Home Affairs letter No. 2/32/51/-I.A.S., date the 25th August, 1965 will not be applicable to those SCS/SPS Officers, who were appointed to I.A.S./I.P.S. (Regulations of Seniority) Rules, 1954, and the date of the issue of above letter in their earlier continuous officiation was approved by the Ministry of Home Affairs and Union Public Service Commission." It further appears that "in the case of Shri C.S. Prasad also, as IPS Officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly." but, it is stated that as Shri Nim was appointed to IPS on the 22nd October, 1955, i.e. after the issue of promulgation of IPS (Regulation of Seniority) Rules 1954, and after the issue of letter dated 25th August, 1955, his case does not fall even under this category." The above statement of the case of the Government further shows that the date, may 19, 1951, was an artificial and arbitrary date having nothing to do with the application of the first and the second proviso to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government, in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a that and that is what it seems to have done in this case and say that a period prior to that date would not be deemed to be approved by the Central Government within the second Proviso.
16. Their Lordships of the Supreme Court again in Jagdish Pandey v. Chancellor, University of Bihar and Ors. 1968 S.L.R. 252 laid down the important criteria and the following test:
The three points raised in the high Court have been urged before us in support of the appellant's contention that the two orders dated August 18, 1962 and February 18, 1963 are liable to be quashed. We shall first consider whether Section 4 is ultra vires Article 14 of the constitution. The first ground in that behalf is that the dates maintioned in Section 4 were completely arbitrary and therefore there was no valid classification to uphold the validity of the section. There is no doubt that if the dates are arbitrary, Section 4 would be violative of Article 14, for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc. between these dates and applying Section 4 to them while the rest would be out of the purview of that section.
17. Their Lordships of the Supreme Court while considering the ambit of Article 14 again laid down the following principles in Jaila Singh and Anr. v. State of Rajasthan and Ors. . The important observations are contained inparas 14 and 17, which read as under:
14. We are unable to see the nexus between the Pre-1955 conditions and post 1955 Rules and the Rajasthan Tenancy Act which came into force on 15.10.1955. In these cases we are concerned with the validity of the rules relating to the allotment of Government land which had been given on temporary leases to various persons whether before 1955 or after 1955. Both sets of leases had been cancelled by the relevant pre-1955 Condition and Post 1955 Rules and there is no dispute that the pre-1955 leases cannot be cancelled, while post-1955 leases could be cancelled. The Rajasthan Tenancy Act is not concerned with that question. Proviso to Section 15 of that Act specifically provides that no Khatedari rights shall accrue under that Section to any tenant, to whom land Is or has been let out temporarily in Gang Canal, Bhakra, Chambal or Jawai project area, or any other are notified in that behalf by the State Government. Admittedly, the Rajasthan Canal area has been included within the scope of this proviso by a notification. To make matters more clear Section 15A also provides that the land in the Rajasthan Canal area leased out on any terms "whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso earlier mentioned and no khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid. The provision thus applies to both pre-1955 as well as post 1955 leases. Both these leases stand on the same footing and therefore do not form different classes."
17. One of the arguments attempted before us, though it was not pleaded before the Rajasthan High Court was that in the case of the post-1955 tenants a smaller area had to be allotted because of the pressure for land. We have already pointed out that difference in the period of occupation between the pre 1955 and post-1955 tenants could not be of such an extent as to justify allotment of larger extent of land to the pre-1955 tenants than to the post-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes or residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Rajasthan High Court and therefore struck down and there would have been nothing more to say. The striking down of Rules 16 and 19 of 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land available for allotment to a larger number of persons at the rate of 15 bighas each. One of the justification pleaded on behalf of the State of Rajasthan for the definition of the landless tenants in the post-1955 Rules as persons holding less than 15 bighas, of land was that 15 bighas was a viable unit. In that case, it is all the more reason why all allottess whether Pre-1955 or post-1955 should get 15 bighas. We are unable to see any justification for treating the pre-1955 and post 1955 tenants differently. What promoted the Rajasthan State to do so in 1971 when they did not do so in 1967 and the decision of the Rajasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to different classes. By that standard any arbitrary difference could be fixed and it could be said that persons who got temporary leases before that date belonged to one class and the persons who had been allotted land after that date formed another class. We have already shown that in the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15.10.1955, the date on which it came into force, has no relevante to the classification attempted by pre-1955 and post 1955 tenants. The classification must have a nexus with the object sought to be achieved. We can see no such nexus in this case. We thus find that the definition of landless tenants as well as the rules for allotment in the post 1955 Rules as compared to the pre-1955 conditions are discriminatory and unjustifiable.
18. The two important criterias for testing the validity of Statue under Article 14 were reiterated by their Lordship in Mohammed Sujat Ali and Ors. v. Union of India and Ors. 1974 (2) S.L.R. 568:
But we have to be constantly on our guard to see that this test which has been evolved as a matter of practical necessity with a view to reconciling the demand for equality with the need for special legislation directed towards specific and necessitated by the complex and varied problems which required solution at the hands of Legislature; does not degenerate into rigid formula to be blindly and mechanically applied whenever the validity of any legislation is called in question. The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by the courts to give a practical contact to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, as pointed out by Chandrachud, J., in State of Jammu & Kashmir v. Triloki Nath Khosa 1974 (1) S.L.R. 536," the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterised by different and distinct attainments". Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the guarantee of equality of its spacious content. That process would inevitably and in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and equal protection of the laws may be replaced by the over-worked methodology of classification. Our approach to the equal protection clause must, therefore, be guide by the words of caution uttered by Krishna lyear J., in State of Jammu & Kashmir v. Triloki Nath Khosa (supra) : "Mini-classification based on micro distinction are false to our egalitarian faith and only substantial and staight forward classifications plainly promoting relevant goals can have constitutional validity. To over do classification is to undo equality.
19. These principles were again reiterated and restated in In-Re-Special Courts Bill 1978. . This Court had also examined the similar questions in Brijlal and Ors. v. Rajasthan State Electricity Board (1979 W.L.N. (U.C.) 221), S.B.B.J. v. Prahlad Rai Khemka 1985 R.L.R. 345, Samrath Lal Joshi v. State of Rajasthan 1985 R.L.R. 443 and Shashikant v. State of Rajasthan 1989 (1) R.L.R. 586. In the cases of pension, this question was examined in D.S. Nakara and Ors. v. Union of India and Ors. 1983 (1) S.C.C. 305. In that case, the Supreme Court was dealing with the fixation of a date for dividing the classes of pensioners for the purpose of grant of benefit of liberalised pension. The Court proceeded to examine whether there was any rational behind eligibility qualification and after finding that there was no reational, the Court observed:
Both the impugned memoranda do not spell our the raison d'etre for liberalising the pension formula. In the affidavit in opposition by Shri S.N. Mathur, it has been stated that the liberalisation of pension of retiring government servants I was decided by the government in view of the persistent demand of the Central Government employees represented in the scheme of Join Consultative Machinery. This would clearly imply that the pre-liberalised pension scheme did not provie adequate protection in old age and that a further liberalization was necessary as a measure of economic security. When government favourably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to erstwhile government servants who would retire. The government also took note of the fact that continuous upward movement of the cost of living index as a sequal inflationary inputs and diminishing purchasing power of rupee necearitated upward revision of pension. If this be the underlying intendment of liberalised pension scheme, can anyone be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee.
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.
One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. That being not the case there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share. Therefore, there is no question of dividing the pension fund. Pension is a liability incurred and has to be provided for in the budget.
If from the impugned memoranda the event of being in service and retiring subsequent to specified date is served, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the 3rd Pay Commission but becoming operative from the specified date. It does therefore appear that the reading down of impugned memoranda by serving the objectional portion would not render the liberalised pension scheme vague, unenforceable or unworkable.
With the expending horizons of socioeconomic 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 are 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 criterion; 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 achived by grant of liberalised pension and the eligibility criteria devised being throughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of 'being in service on the specified date and retiring subsequent to that date' in impugned memeoranda, Exs. 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, Ex. P-1, the words, "that in respect of the Government servants who were in service on March 31, 1979 and retiring from service on or after that date'; & in Ex. P-2 the words: 'the new rates of pension are effective from April 1, 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 from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that the pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible.
20. In Sidhu Bhusan Malik v. Union of India A.I.R. 1983 All. 209 the question of classification of Judges came up for consideration and it was held that eligibility for liberalised pension of having retired on or after 1st October, 1974 in the said Act of 1954, being violative of Article 14 of the Constitution of India was unconstitutional. This decision has been upheld by the Supreme Court in Union of India v. Sidhu Bhushan Malik . Similar principle has been laid down in State of Rajasthan v. Retired Contributory Provident Fund Holders, Jodhpur 1987 (1) W.L.N. 237 the point for consideration, which came up in that case was as to whether classification between the Contributory Providing Fund Holders similarly situated was permissible and denial of option for pension to those retiring prior to a specified date attracted Articles 14 and 16. There being no basis for fixing the date and there by making classification between the similarly situtated, the date so fixed being held to be discriminatory and arbitrary was struck down.
21. In B. Prabhakar Rao v. State of Andhra Pradesh 1985 (Suppl.) S.C.C. 432 the facts were that the Government of Andhra Pradesh had raised the age of superannuation of its employees to 58 years. In February, 1983, the State Government decided to reduce the age of superannuation from 58 to 55 years. Rules were also amended in order to give affect to the said policy. The action of the Government was challenged before the Supreme Court and reduction of the age was up held in K. Nagrao v. State of Andhra Pradesh 1985 (1) S.C.C. 23. In the mean while, on the basis of a State-wise agitation by the affected employees, an agreement was arrived at for deleting the provision regarding retirement from the age of 55 years from the Ordinance. Thereafter some legislative instructions were brought into existence whereby the age of retirement was again raised to 58 years. The question, which arose before the Supreme Court for consideration was as to whether the employees who had retired before February, 1983 when the age was reduced from 58 to 55 and August, 1984 when the retirement age was again raised to 58 years offered a valid classification so as to discriminate between those who had retired at the age of 55 years and those who retired after the age of 58 years. After referring to the decision of the Supreme Court in Nakara's case (supra), the Supreme Court struck down a part of Ordinance No. 24 of 1984 and Act No. 3 of 1985 and held that all employees who had retired at the age of 55 years between August 22, 1983 and August 23, 1984 shall be entitled to be reinstated. Those, who were not entitled or eligible to be reinstated, should be paid pension.
22. On the basis of the principles which have been referred to hereinabove, if the facts of the present case are considered, the respondent Board had sanctioned the sending of pension scheme for approval of the Government. This scheme was on the pattern of the Karnataka Board Scheme. The Government, as already mentioned above, took 6 years to approve the pension scheme. If the Government had been bit vigilant in considering the matter, obviously the scheme would have been sanctioned/approved much earlier than 1.9.88. Now having taken more than 6 years to approve the scheme, the Government had come out with the case the it has fixed the date 1.9.1988 because the Revised Pay Scale Rules have been made applicable with effect from that date. What is the rationality of the revised Pay Scale Rules having been brought into force w.e.f. 1.8.1988 & the application of the pension scheme w.e.f. that date? No relationship has been shown to be existing about the implementation of the pension scheme w.e.f. 1.9.1988 and the application of the Revised Pay Scale Rules. Annexure 2 is totally silent about this relationship. The object of pension scheme is to provide a more beneficial scheme for the employees who may be retiring from service of the Board. Bringing of Pay Scale Rules in force w.e.f. 1.9.1988 on making the revised pay scale applicable from 1.9.1988 does not have any relation with the object with which the Board had proposed the pension scheme and the Government had approved it. In the absence of any explanation by respondent No. 2, it has to be held that the distinction sought to be made between the employees of the Board on the premise that some had retired before 1.9.1988 and others were retired after 1.9.1988 is absolutely a tificial. This artificial fixation of the date from 1.9.1988 has caused serious prejudice and injustice to the persons who have retired before 1.9.1988 and the action of the Respondent No. 2 is wholly arbitrary, discriminatory and has resulted in violation of Articles 14 and 16 of the Constitution of India.
23. In the result, the Writ Petitions are allowed. It is declared that faxation of date 1.9.1988 as the date of application of the pension scheme is arbitrary and violative of Articles 14 and 16 of Constitution of India. It is declared that the pension scheme should be treated as applicable to all employees who retired on or before 8.1.1983 when the Board has sanctioned the sending of pension scheme to the Government. The petitioners are entitled to be governed by the pension scheme. Respondents are accordingly directed to issue necessary orders for payment of pension to the petitioners. Similarly situated persons may be given option to accept pension scheme within a period of four months from the date of presentation of copy of this order.
Parties are left to bear their own costs.