Gujarat State Pensioners Federation vs State Of Gujarat & 3 on 16 June, 2015

[Cites 13, Cited by 7]

Gujarat High Court

Gujarat State Pensioners Federation vs State Of Gujarat & 3 on 16 June, 2015

Bench: J.B.Pardiwala

         C/SCA/8251/2015                                   ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 8251 of 2015

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       GUJARAT STATE PENSIONERS FEDERATION....Petitioner(s)
                           Versus
             STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR AS ASTHAVADI, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 4
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        CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                           Date : 16/06/2015


                             ORAL ORDER

1. By this writapplication under Article 226 of the Constitution of India, the Gujarat State Pensioners Federation has prayed for the following reliefs: "(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to pay interest @ 10% to the retired primary teachers of the State of Gujarat as per the direction issued by this Hon'ble Court in order dated 30.01.2013 passed in Special Civil Application No.10142 of 2009 and allied matters and resolution dated 08.10.2014 forthwith;

(B) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities to pay interest @ 10% to the retired primary teachers of the State of Gujarat as per the direction issued by this Hon'ble Court in order dated 30.01.2013 passed in Special Civil Application No.10142 of 2009 and allied matters Page 1 of 18 C/SCA/8251/2015 ORDER and resolution dated 08.10.2014;

(C) Such other and further relief or relieves as may be deem fit, just and proper, in the facts and circumstances of the case."

2. The facts giving rise to this application may be summarized as under:

3. Some of the members of the Federation are retired Primary Teachers. They all retired prior to 1.08.1994. The Primary Teachers are entitled to the benefit of the three higher pay grade scale pursuant to the Government Resolution dated 5.07.1991. The said Policy of the higher grade scale was effective from 1.06.1987. Prior thereto, there was a policy of the Government to grant the selection grade/senior scale to the teachers on completion of certain number of years of service and, accordingly, such teachers were grated such scale as well, at the relevant time.

4. It appears that few of the retired teachers preferred writapplications being Special Civil Application No.10142 of 2009 and other allied matters and prayed for the higher grade scales. These petitions were adjudicated by a learned Single Judge of this Court, and vide order dated 30th January 2013, all the writapplications were disposed of by a common judgment and order with Page 2 of 18 C/SCA/8251/2015 ORDER directions.

5. I may quote with profit the paragraph No.15 of the judgment and order containing the necessary directions as under: "15. For the reasons recorded above, this Court arrives at the judgment and passes the order, as under:

i) Inspite of more than one judgments of this Court against the respondent authorities, the denial of benefit of higher grade scale to the petitioners as claimed by them and similarly situated persons, is held to be illegal, arbitrary and lacking bonafide on the part of respondent authorities, more particularly, Director of Primary Education, Gujarat State.

ii) The petitioners shall be paid all the three higher grade scales as per Government Resolution dated 5.07.1991, over and above selection grade availed by them which was prior to 26.12.1985, as held by this Court in Letters Patent Appeal No.1073/2004 and cognate matters vide judgment dated 14.10.2004.

iii) The retirement dues of the petitioners shall also be recalculated accordingly.

iv) Arrears of difference of pay as well as retirement dues shall be calculated and paid within a period of four months from today.

v) The petitioners shall also be entitled to interest from 1.1.1995 till 31.01.2013 on the above amount, at the rate of 10% per annum, which shall also be paid along with arrears, as directed above.

vi) While implementing these directions, it shall also be kept in view that the petitioners of Special Civil Applications No.10878 of 2008, 11380 of 2008 and 11160 of 2008, had availed one promotion on the post of Education Inspector and therefore, they will be entitled to only remaining two higher grade scales and qua them, the directions shall be implemented accordingly.

Vii) For the reasons recorded in paras8.5, 9.2, 9.3 Page 3 of 18 C/SCA/8251/2015 ORDER and 10 to 14, more particularly para 12 of this judgment, each petitioners shall be paid cost of Rs.5000/ by the Director of Primary Education, Gujarat State, which shall be paid within a period of three months from today. It would be open to the State authorities to recover this amount from erring officer(s), in accordance with law.

Viii) The Principal Secretary, Education Department is further directed to carry out the directions contained in para 13 of this judgment within a period of three months from today.

Petitions stand allowed. Rule made absolute with costs as directed above."

6. It appears that one of the directions issued by the learned Single Judge was that the petitioners shall be entitled to interest from 1.01.1995 till 31.01.2013 on the requisite amount at the rate of 10% per annum. It shall be paid alongwith arrears.

7. It appears that after a long drawn litigation, including contempt proceedings, the State Government implemented the directions issued by the learned Single Judge, including the direction No.5 and paid the amount of arrears with 10% interest per annum.

8. The members of the Federation i.e. the retired Teachers, in such circumstances, have prayed for the following reliefs: "(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing Page 4 of 18 C/SCA/8251/2015 ORDER the respondent authorities to pay interest @ 10% to the retired primary teachers of the State of Gujarat as per the direction issued by this Hon'ble Court in order dated 30.01.2013 passed in Special Civil Application No.10142 of 2009 and allied matters and resolution dated 08.10.2014 forthwith;

9. It is the case of the Federation that identically situated retired Teachers, although have been paid the amount of higher grade pay scale with arrears, yet the amount of interest has not been paid.

10. Mr. Asthawadi, the learned advocate appearing for the petitioner, submitted that the members of the Federation who are retired Teachers are entitled to the interest at the rate of 10% per annum. Mr. Asthawadi, invited the attention of this Court to a Resolution dated 8th October 2014 passed by the Education Department of the Government, wherein a decision was taken that 11,920 Teachers be accorded the benefit of higher pay scale with interest. A plain reading of the Resolution Annexure 'C' to this petition makes it very clear that the Government has sanctioned around 107 crore for making good the arrears of the higher grade pay scale with interest. The Page 5 of 18 C/SCA/8251/2015 ORDER necessary calculation could be found in the Resolution itself.

11. This petition has been vehemently opposed by Mr. Rohan Yagnik, the learned AGP appearing for the State. He submitted that only those petitioners who had approached before this Court with the respective writapplications are entitled to the arrears at the rate of 10% per annum. Other members of the Federation, i.e. the other retired Teachers who had not come before this Court, are only entitled to the arrears of the higher grade pay scale from 1.01.1995 till 31.01.2013.

12. It is difficult for me to appreciate the opposition of the learned AGP, mainly for two reasons;

(i) The distinction which is sought to be drawn between the retired Teachers who had approached before this Court with writapplications; and those who could not.

(ii) The Government Resolution dated 8th October 2014, (Annexure 'C' to this petition) itself makes it clear that the Government has taken the decision to make good the arrears in favour of 11,920 Teachers with interest. The financial Page 6 of 18 C/SCA/8251/2015 ORDER liability has also been worked out to the tune of Rs.107 crore.

13. Once this decision has already been taken, I fail to understand why this petition is being opposed by the State Government. Whether all the members had preferred petitions or not is of no significance. Once there is a decision of the High Court declaring that all the retired Teachers are entitled to the higher grade pay scale from 1.01.1995 till 31.01.2013, then the arrears has to be followed with 10% interest. Apart from the decision referred to above and the order passed by the learned Single Judge dated 30th January 2013, I am also supported by a judgment rendered by a learned Single Judge (coram: H.K. Rathod,J.)in Special Civil Application No.8871 and 8872 of 1999 and other allied matters.

14. I may quote the relevant observations of the learned Single Judge as under: "The only grievance voiced by the petitioners in this group of petitions through their learned advocate is that though the petitioners are entitled to the benefit of the Government resolution dated 5th July, 1991, copy of which is annexed at annexure "A" to the petition, the respondent authorities have not revised their pay as per the said resolution and have not refixed their pension on that basis. Under the resolution dated 5th July, 1991, at the end of 9, 18 and 27 years of service, higher pay scales were Page 7 of 18 C/SCA/8251/2015 ORDER contemplated. This resolution was later on superseded by the resolution dated 16th August, 1994 by which number of years have been changed from 9, 18 and 27 to 9, 20 and 31 years. According to the petitioners, According to the petitioners, in the later resolution dated 16th August, 1994 at annexure "B", it was made clear that those who have retired between 1st June, 1987 to 31st July, 1994 would be governed by the earlier resolution dated 5th July, 1991. The petitioners have already retired from service since long and if they were entitled to the benefits of the Government resolution dated 5th July, 1991 for higher pay scale at the end of 9, 18 and 27 years, it was incumbent upon the respondents to take an early decision for the purpose of revising their pensionary benefits and pay the amounts due to them. Under these circumstances, it is directed that the concerned authorities of the respondents will immediately consider the case of the petitioner in light of the resolution dated 5th July, 1991 and take decision for fixation of their higher pay scale at the end of 9, 18 and 27 years as may be admissible to them and give revised pensionary benefits worked out by the concerned authorities on that basis. This should be done expeditiously. Therefore, it is directed that the concerned authorities shall consider the matter and take decision regarding fixation of higher pay scale of the petitioners at the end of 9, 18 and 27 years as may be admissible under the resolution dated 5th July, 1991 within eight weeks. The authorities were, in fact, expected to decide these questions before December, 1993 as per the Government communication dated 8th September, 1993. On fixation of pay as may be admissible under the resolution dated 5th July, 1991, whatsoever amount may be found due and payable to the petitioners should be paid to them within two weeks after taking that decision. The amount that may be found admissible from earlier dates would have been paid to the petitioners, if decisions were taken within a reasonable time. The admissible amounts having remained with the respondents, it would be appropriate to direct the concerned authorities of the respondents to pay the amounts that may be due to the petitioners on application of the resolution dated 5.7.1991 with interest at the rate of 12 per cent per annum from the date on which they may be held to be due and payable to the petitioners by the concerned authorities. In view of the above directions issued by this Court, recovery orders passed by the respondent authorities against the petitioners are also required to be quashed and set aside. Accordingly, orders of recovery passed against the petitioners are hereby quashed and set aside."

Page 8 of 18 C/SCA/8251/2015 ORDER

15. I may also quote with profit a decision of the Supreme Court in the case of S.K. Dua V. State of Haryana and another, AIR 2008 SC 1007. The observations of the Supreme Court in para no. 11 are as under: "The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, wer are of the view that the grievance voiced by the appellant appears to be wellfounded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14 , 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of"bounty" is, in our opinion, wellfounded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."

16. In the instant case, the petitioner has claimed interest on the delayed payment to its members of the first higher grade pay scale.

17. Here, there is no statutory rule occupying the field for payment of any interest relying on which, the members of the Federation can claim the benefit of interest on the delayed payment of Page 9 of 18 C/SCA/8251/2015 ORDER their retiral dues. The Supreme Court in the case of S.K. Dua (supra) held that in the absence of statutory rule, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution, relying on Articles 14 , 19 and 21 of the Constitution. Following the said decision of the Supreme Court, this Court has no hesitation to hold that the claim of interest on the delayed payment of retiral dues is the fundamental right of the petitioners which they can enforce in the writ jurisdiction of this Court.

18. When interest is awarded by the Court, our normal feeling is that it is so awarded by way of penalty or punishment. But interest in all cases is not granted by way of penalty or punishment. In this regard, reference may be made to the decision of the Supreme Court in the case of Alok Shanker Pandey Vs. Union of India, 2007 AIR (SC) 1198, wherein the concept of grant of interest has been explained in the following manner: "It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say ten years ago, but he offers that amount Page 10 of 18 C/SCA/8251/2015 ORDER to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B ten years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal but also interest thereon to B."

19. The abovenoted decision of the Supreme Court makes it clear that the claim of interest on the delayed payment of retiral dues or any other dues, to which an employee is otherwise entitled to, flows from the fundamental rights guaranteed under the Constitution. The claim for interest cannot be held to be a stale claim as a right to claim interest. All delayed payments of the legitimate dues accrue due to the continuing wrong committed by the Staterespondent for withholding the payment of the employees of the retiral dues, causing continuous injury to the petitioners until such payment is made.

20. Apparently, therefore, the delay in payment of Higher Pay Scale earned by the retired teachers by the State is without any authority of law. It has been caused only due to their own conjectures and surmises and for non statutory alleged practice and bottleneck created thereby.

Page 11 of 18 C/SCA/8251/2015 ORDER

This kind of practice perhaps is observed to harass poor retired employees. In the absence of any other valid reason shown by the learned counsel for the State, this Court is justified to infer as above. Such approach cannot be approved or condoned but deserves to be condemned in the strongest words.

21. A system controlled by the bureaucrats can create wrangles to device something which is formulated by the policy makers for the benefit of the citizen is writ large from this case. A beneficial scheme made for social welfare of the employees, can be twisted by the system creating a nightmare for the retired employees, as is quite evident. Something due today may not be available to a person right in time. It is like a person starving today is assured food to be provided after a month or two, by which time, he may die of hunger or the foodstuff itself may rot. If this is not unconstitutional then what else can be.

22. Withholding of pension and other retiral benefits including the legitimate dues under a particular scheme of the retired employees for years together is not only illegal and arbitrary but a sin, if not an offence, since no law has declared so. The officials, who are still in Page 12 of 18 C/SCA/8251/2015 ORDER service and are instrumental in such delay, causing harassment to the retired employees, must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of the social and economic justice which is one of the founding pillars of our Constitution.

23. In our system, the Constitution is supreme, but the real power vest in the people of India. The Constitution has been enacted "for the people, by the people and of the people". A public functionary cannot be permitted to act like a dictator causing harassment to a common man and in particular when the person subject to harassment is his own employee.

24. Regarding the harassment to a common man referring to the observations of Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 and Lord Devlin in Rooks v. Barnard and Ors., the Apex Court in Lucknow Development Authority v. M.K. Gupta, 1993 6 JT 307, held as under: "An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No Page 13 of 18 C/SCA/8251/2015 ORDER law provides protection against it. He who is responsible for it must suffer it... Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. (para 10)"

25. The above observatins as such have been reiterated in Ghaziabad Development Authorities v. Balbir Singh, (2004) 5 JT 17(SC).

26. The Respondents being "State" under Article 12 of the Constitution of India, its officers are public functionaries. As observed above, under our Constitution, sovereignty vest in the people. Every limb of the constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind the respondents that they are expected to perform in a more responsible and reasonable manner so as not to cause undue and avoidable harassment to the public at large and in particular their ex employees like the PetitionerS. The respondents have the support of entire machinery and various powers of the statute. An ordinary citizen or a common man is hardly equipped to match such might of State or its instrumentalities. Harassment of Page 14 of 18 C/SCA/8251/2015 ORDER a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on accountof, sometimes, lack of resources or unmatched status which give the feeling of helplessness. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match inaction in public oriented departments gets frustrated and it erodes the credibility in the system. This is unfortunate that matters which require immediate attention are being allowed to linger on and remain unattended. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action of administrative authority but where it is found that the exercise of power is capricious or other than bona fide, it is the duty of the Court to take effective steps and rise to the occasion otherwise the confidence of the common man would shake. It is Page 15 of 18 C/SCA/8251/2015 ORDER the responsibility of the Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain arbitrary and arrogant, unlawful inaction or illegal exercise of power on the part of the public functionaries.(vide Abdul Kuddus Khan V. State of UP and Others, Civil Misc. Writ petition No.22315 of 2008, decided on 22nd February, 2011).

27. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has never been a silent spectator but always reacted to bring the authorities to law.

28. In Registered Society v. Union of India and Ors., (1996) 6 SCC 530, the Apex Court said:

"No public servant can say "you may set aside an Page 16 of 18 C/SCA/8251/2015 ORDER order on the ground of mala fide but you cannot hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary."

29. In Shivsagar Tiwari v. Union of India, 1996 6 SCC 558, the Apex Court has held:

"An arbitrary system indeed must always be corrupt one. There never was a man who thought he had no law but his own will who did dnot soon find that he had no end but his own profit."

30. IN Delhi Development Authority v. Skipper Construction and Anr., 1996 AIR (SC) 715, the Court held as follows:

"A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."

31. It could be argued that all the decisions referred to above are in connection with wrongful withholding of the retiral benefits like pension gratuity etc. and the grant of the higher pay scale may not strictly fall within the ambit of retiral benefits. Higher Pay Grads Scale is something which the employees earn during their service in accordance with the rules and policy framed by the State Government. There is an object behind such policy of grant of higher pay Page 17 of 18 C/SCA/8251/2015 ORDER scale, after particular period of service. Once an employee earns such benefit then it is expected they should be paid in terms of money. The benefit which accrued in the year 1995 came to be sanctioned only in the year 2014 and that to only with the intervention of the Court.

32. In my view nothing further is necessary to be adjudicated. The State Government is directed to make good the amount of interest at the rate of 10% per annum and shall give effect to its own Resolution dated 8th October 2014, (Annexure 'C' to this petition) within a period of eight weeks from today.

33. With the above observations, this petition is disposed of. Direct service is permitted.

(J.B.PARDIWALA, J.) Manoj Page 18 of 18

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