Rajasthan High Court - Jaipur
Retired Chief Engineer Welfare Society ... vs State Of Raj And Anr on 27 September, 2024
Bench: Manindra Mohan Shrivastava, Shubha Mehta
[2024:RJ-JP:38026-DB] (1 of 52) [CW-2646/2017]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 2646/2017
1. Retired Chief Engineer Welfare Society of Rajasthan, A
Society Registered Under the Provisions Of Rajasthan
Societies Act, 1958, having its office at 32, Geejgarh
Vihar, Gate No.1, Hawa Sarak, Jaipur-302019 through its
President Shri J.P. Acharya S/o Shri P.G. Acharya aged
about 80 years R/o A-3, Janki Path, Bhagirath Colony,
Chomu House, C-Scheme, Jaipur
2. J.P. Acharya S/o Shri P.G. Acharya, aged about 80 years,
R/o A-3, Janki Path, Bhagirath Colony, Chomu House, C-
Scheme, Jaipur President Of The Society
----Petitioners
Versus
1. State Of Rajasthan Through Chief Secretary,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Director, Directorate Of Pensions, Government Of
Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Mahendra Singh Advocate with
Ms. Nandni Bhown Advocate.
For Respondent(s) : Mr. Chiranji Lal Saini, Additional
Advocate General with Ms. Srijna
Shresth Advocate.
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MRS. JUSTICE SHUBHA MEHTA
(Through Video Conferencing)
Order
Reportable
27/09/2024
By the Court: (Per Manindra Mohan Shrivastava,CJ)
1. This petition under Article 226 of the Constitution of India has been filed by the petitioners, which is a society of retired Chief Engineers, constituted for their welfare and is registered (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (2 of 52) [CW-2646/2017] under the provisions of Rajasthan Societies Act, 1958. The petitioner No. 1-Society has prayed for following reliefs:-
"It is therefore prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direct:-
a) It may kindly be declared and directed that persons who retire from the same or equivalent post after rendering the same length of service are entitled to parity and equality in the matter of retirement benefits including pension/family pension,
b) it may kindly be declared and directed that as and when the pay scale, pay band and/or grade pay of a particular post is revised all persons who have previously retired from the said post are entitled to corresponding and consequential revision of their monthly pension so that all persons who have retired from such a post after rendering the same length of service are given same monthly pension irrespective of their dates of retirement, and the monthly pension/family pension is to be revised accordingly,
c) It may kindly be declared and directed that the respondents having revised and enhanced the gratuity payable to retired employees from Rs.3.5 lacs to Rs.10 lacs and that too with retrospective effect the said benefit ought to have been given to all persons who have retired from the same post after rendering same length of service,
d) The impugned notification dated 12.09.2008 and memorandum dated 22.05.2008 to the extent they provide differential treatment in the matter of monthly pension, family pension and gratuity to persons who have retired from the post of Chief Engineer after rendering the same length of service may kindly be declared unconstitutional and set aside.
e) The respondents may kingly be directed to suitably enhance the monthly pension, family pension as well as gratuity of the members of the petitioner society with effect from the date when such benefits were given to other similarly situated persons who have retired from the same post after rendering the same length of service in terms of aforementioned notification and memoranda,
f) It may kindly be declared and directed that the fixation of cutoff date as a result of which equals were treated as unequals in the matter of payment of pension, family pension and gratuity is arbitrary and that a single class of pensioners cannot be discriminated on basis of date of retirement,
g) It may kindly be declared and directed that since Grade Pay 23 ceased to exist from 20.7.2011, members of the petitioner society are automatically entitled to have their monthly pension/family pension enhanced and computed as per Grade Pay 24, (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (3 of 52) [CW-2646/2017]
h) Without prejudice to aforesaid it may kindly be declared and directed that members of the petitioner society are entitled to the payment of enhanced minimum pension as Rs.24295 from 1.1.2006 to July 2011 and Rs.27350 from July 2011 onwards, and to corresponding enhancement of family pension,
i) The respondents may kindly be directed to calculated the payment of pension, family pension and gratuity accordingly and the arrears be paid up to the date of decision to all members of the Society (names listed in Annexure-3) with cost of petition and interest thereon @ 12% per annum, and
j) Any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioners."
Factual matrix of the case:-
2. Petitioner No.1-Retired Chief Engineer Welfare Society has ventilated grievance concerning certain anomalies in the matter of fixation of pension under revised pension policy, promulgated from time to time by the State. Notification dated 12.09.2008 and Memorandum dated 22.05.2008 have been assailed and prayer for quashment has been made to the extent impugned Notification and Memorandum provide for differential treatment in the matter of monthly pension, family pension and gratuity to persons who have retired from the post of Chief Engineer.
Prayer has also been made for issuance of directions to extend the benefit of revised gratuity amount of Rs.10 lacs with retrospective effect. Prayer has also been made to direct enhancement and computation of monthly pension/family pension according to Grade Pay 24.
Moreover, fixation of cutoff date for extending various benefits under the revised pension scheme has also been challenged and declaration is sought that the retired Chief Engineers/members of the petitioner No.1-Society are entitled to payment of enhanced minimum pension @ Rs.24,295/- from (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (4 of 52) [CW-2646/2017] 01.01.2006 to July 2011 and Rs.27,350/- from July 2011 onwards as also corresponding enhancement of family pension. Cost of petition and interest @ 12% per annum from the due date has also been sought as consequential relief.
3. Petitioner No.1-Society has filed this petition in representative capacity for and on behalf of retired Chief Engineers and legal heirs of the deceased pensioners who retired from the post of Chief Engineers.
Facts unfolded from the pleadings are that the Pay Scales in respect of various posts in the government service in the State of Rajasthan, which also include post of Chief Engineers in three Engineering Departments came to be revised from time to time as under:-
"(A) Notification dated 17.02.1983 framing the Rajasthan Civil Services (Revised Pay Scale) Rules, 1983 w.e.f. 01.09.1981.
(B) Notification dated 02.02.1987 framing the Rajasthan Civil Services (Revised Pay Scale) Rules, 1987 w.e.f. 01.09.1986.
(C) Notification dated 23.09.1989 framing the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 w.e.f. 01.09.1988.
(D) Notification dated 17.02.1998 framing the Rajasthan Civil Services (Revised Pay Scales) Rules, 1998 w.e.f. 01.01.1996.
(E) Notification dated 12.09.2008 framing the Rajasthan Civil Services (Revised Pay) Rules, 2008 w.e.f. 01.09.2006.
(F) Notification dated 29.12.2011 framing the Rajasthan Civil Services (Revised Pay) (Seventh Amendment) Rules, 2011.
By this amendment, Grade Pays were changed and for the running Pay Band of Rs.37400-67000, new Grade Pay of Rs.10,000/- in place of Rs.8,900/- was brought into force w.e.f. 20.07.2011.
(G) Vide Notification dated 06.04.2013, revised Pay Rules, 2008 were further amended so as to make applicable revised Pay Rules w.e.f. 01.01.2006 in place of 01.09.2006. Moreover, in place of "31.01.2006" was substituted by "31.12.2005"."
4. However, there existed different schemes insofar as payment of pension to retired government servants of Rajasthan (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (5 of 52) [CW-2646/2017] is concerned. In exercise of powers vested under proviso to Article 309 of the Constitution of India, the then Rajpramukh of the State of Rajasthan framed rules generally governing the conditions of service of persons appointed to services and posts in connection of the affairs of Rajasthan vide Notification dated 23.03.1951 known as the Rajasthan Services Rules. These rules not only deals with the conditions of the services of those who were members of the services but also, a separate Chapter, Vol.I, Part II deals with pension payable to the retired government employees. However, with a view to make exhaustive provisions regarding pension, separate rules were framed by the Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India, vide Notification dated 18.09.1996 known as the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as 'the Pension Rules of 1996'). These rules were brought into force w.e.f. 01.10.1996. Rule 54 of the Pension Rules of 1996 provides for amount of pension payable to a retired government servant. The pension amount was to be paid to different categories of persons based on period of qualifying service.
5. A memorandum was issued on 22.05.2008 providing for revision of pension/family pension in respect of government servants, who had retired before the Pension Rules of 1996 were brought into force. It provided that the basic pension of such pre- 1996 pensioners shall not be less than 50% of the minimum pay in the revised Pay Scales introduced w.e.f. 01.09.1996 in respect of the post last held by the pensioners and if the existing pension was less, it was to be revised w.e.f. 01.04.2008. It was further (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (6 of 52) [CW-2646/2017] provided that the basic family pension of pre-1996 family pensioners shall not be less than 30% of the minimum pay in the revised Pay Scales introduced w.e.f. 01.09.1996.
6. Another Notification was issued on 12.09.2008 by which the Pension Rules of 1996 were further amended. By virtue of this amendment, government servant retiring on or after 01.09.2006 became entitled to receive monthly pension on the basis of revised definition of expression "emoluments" which would include the sum of pay in the running Pay Band + Grade Pay and NPA/NCA (Non practicing Allowance/ Non Consultancy Allowance), which he was receiving or was entitled to receive immediately before his retirement or on the basis of average of last 10 months immediately before the date of retirement, whichever be beneficial. By the aforesaid notification, Rule 54A was inserted in the Pension Rules of 1996 providing for nominal enhancement of the basic pension/family pension of the pensioners upon attaining age of 80 years, 85 years, 90 years, 95 years and 100 years respectively.
7. This was the first time when the retired Chief Engineers/members of Petitioner No.1-the Society felt aggrieved as according to them, a differential treatment came to be introduced between pre-1996 and post-1996 pensioners. While post-1996 pensioners were entitled to receive pension, which was to be computed at 50% of the total emoluments last drawn by them on the date of retirement, the monthly pension of pre- 1996 pensioners was limited to 50% of the minimum of the Pay Scale of the post from which they retired irrespective of the (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (7 of 52) [CW-2646/2017] length of service rendered and annual increments earned by them on the post from which they retired.
8. On 12.09.2008, various memoranda came to be issued by the State. The first memorandum No.F.12(3) FD (Rules)/2008 inter alia provided that pension/family pension of pre-1.9.2006 pensioners/family pensioners will be consolidated by adding together with the existing pension/family pension, dearness pension @ 50% of the pension/family pension, dearness relief @ 24% of the original pension/family pension and fitment weightage with certain exclusions. It also provided that the consolidated pension of pre-2006 pensioners shall not be lower than 50% of the sum of minimum pay of the post and that consolidated pension of a family pensions shall not be less than 30% of the minimum pay of the post.
9. Another memorandum No.F.12(4) FD (Rules)/2008 issued on 12.09.2008 provided for dearness relief to the existing pensioners/family pensioners.
10. In course of time, another memorandum No.F.12(3) FD/Rules/2008 was issued on 06.04.2013, whereby, earlier memorandum dated 12.09.2008 was amended by substituting the words and figures "01.09.2006" and "pre 01.09.2006" with the words and figures "01.01.2006 and "pre 01.01.2006" and the existing figures "31.08.2006" were substituted by the figures "31.12.2005". Para 14 of the memorandum dated 12.09.2008 was also amended providing that no arrears shall be paid from 01.01.2006 to 31.12.2006 on account of consolidation of pension/family pension.
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11. Another memorandum No.12(2) FD/Rules/2013 was issued on 18.06.2013, which provided that pension of pre-2006 pensioners would be further stepped upto 50% of the sum of minimum of pay in the Pay Band and Grade Pay prescribed as on 01.01.2006 corresponding to the pre revised Pay Scale of the post from which the pensioner had retired, as arrived at with reference to the fixation table annexed to the said memorandum.
12. Earlier, Notification No.F.14(2) FD/Rules/2008 was issued on 29.12.2011 amending the Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter referred to as 'the Pay Rules of 2008') wherein the existing Grade Pay 23 (Rs.8900) given to the Chief Engineers and equivalent was substituted by Grade Pay 24 (Rs.10000) w.e.f. 20.07.2011. However, those pensioners who had retired before 20.07.2011 continued to draw pension as per Grade Pay 23 (Rs.8900) which correspondences to minimum pension of Rs.24295 (Table 33). The other set of grievance arose on account of providing cutoff as 20.07.2011. According to the petitioners, once the Grade Pay was amended w.e.f. 20.07.2011, minimum pension as per Grade Pay 24 (@ Rs.10000), should be allowed which correspondences to Rs.27350 (Table 34) appended in Schedule III referable to Rule 12 of the Rajasthan Civil Services (Revised Pay) Rules, 2008. The grievance arose, as the members of the pensioner No. 1-society, who had retired earlier, have not been granted Grade Pay 24. On representation made by some of the affected retired Chief Engineers in various Engineering Departments of the State, it was replied that as they have retired prior to 20.07.2011, they were not entitled to revision of pension.
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13. The differential treatment meted out to the pensioners by providing cutoff date for the purposes of computation of pension based on Emoluments, Grade Pay and Gratuity is sought to be remedied in the factual backdrop, as stated above. Submissions on behalf of the petitioner:-
14. The first contention of learned counsel for the petitioners is that as the pensioners were drawing pension derived on the basis of emoluments, which they were drawing on their respective dates of retirement and not on the basis of minimum pay of Pay Scale, which they were drawing, policy decision taken vide Memorandum dated 22.05.2008 followed by Notification and Memorandum issued on 12.09.2008 formulating policy of revision of pension by notionally fixing pay in the fixing emoluments at the minimum of the revised Pay Scale is contrary to the provisions contained in Rule 45 read with Rule 54 of the Pension Rules of 1996. Submission is that once a policy decision to revise pension was taken, the basis for grant of pension ought to be on the basis of formula as contained in Rule 45 read with Rule 54 of the Pension Rules of 1966 and it could not be confined to minimum of the Pay Scales, which are revised after retirement. In order to substantiate that such policy results in treating unequals as equals, it has been illustrated that when a Chief Engineer retired and at the time of retirement, he was drawing pay in the given Pay Scale with five increments, which he was actually drawing, he would be fixed at higher pension amount, whereas, another Chief Engineer who was getting pay with only two increments at the time of retirement, would be fixed at lower amount of pension. If all of them are clubbed together by (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (10 of 52) [CW-2646/2017] notionally fixing their pay in the revised pay at the minimum of the Pay Scale for the purposes of revising pension, this would amount to treating unequals as equals.
15. Another contention of learned counsel for the petitioners is that as and when Pay Scales are revised under various revisions of Pay Rules applicable to serving government servants, the State as a welfare State, is constitutionally and legally obliged to revise pension on the basis of notional fixation of pay which retired employee was actually getting on the date of his retirement, in the revised pay at appropriate stage and then working out the amount of pension as per the provisions contained in Rule 54 of the Pension Rules of 1996. State cannot remain oblivious of the price inflation and escalation in living cost in the matter of framing policy of revision of pension. Once recommendations of the pay commission for revision of pay of government servants are implemented by the State, it acknowledges that rising price index and increased living cost are required to be duly compensated by enhancement of pay. There is no reason why the same principle should not be made applicable in the case of pensioners and revising pension as and when pay revision takes place and that too by notional fixation at the appropriate stage of pay in the revised pay, taking into consideration the emoluments which retired employee was drawing on the date of his retirement.
16. Next contention of learned counsel for the petitioners is that though vide Notification issued on 29.12.2011 amending the Rajasthan Civil Services (Revised Pay) Rules, 2008 provided for substitution of existing Grade Pay 23 (Rs.8900) to Grade Pay 24 (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (11 of 52) [CW-2646/2017] (Rs.10000), an arbitrary cutoff date was provided that those pensioners who had retired before 20.07.2011 would continue to draw pension as per Grade Pay 23 (Rs.8900), corresponding to minimum pension of Rs.24295 (Table 33). There is no intelligible differentia why benefit of revised Grade Pay was limited to pensioners who had retired on or before 20.07.2011. Further submission is that the amending rule makes it clear that it was a case of substitution and not mere insertion of new Grade Pay. Therefore, the effect of substitution would be that the Grade Pay of Rs.10,000/- shall be treated to be part of the statutory rule from the day the rules were framed and not from the date when it was actually substituted vide amending notification. The arbitrary cutoff date with regard to substitution of Grade Pay has resulted in financial loss to one class of pensioners, Chief Engineers as those who retired prior to the order of substitution, were getting Grade Pay of Rs.8,900/- and, therefore, placed at Level 22 with the result that their pay is notionally fixed at the minimum of the Pay Scale of Level 22 which is Rs.1,29,700/- whereas, those who were getting higher Grade Pay of Rs.10,000/- after coming into force of the amendments, their pay has been notionally fixed at the minimum of the Pay Scale of Level 24, which is Rs.1,48,000/-. In this manner, it is ventilated as grievance, pensioners Chief Engineers have been classified in different classes based on the Grade Pay applicable before and after 20.07.2011. The classification of pensioner Chief Engineers is not based on any rational basis except a fortuitous cutoff date, therefore, respondents are obliged under the law to provide same (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (12 of 52) [CW-2646/2017] Grade Pay to all retired Chief Engineers once Grade Pay was revised vide Notification dated 29.12.2011.
17. Though respondents have revised and enhanced the gratuity payable to the retired employees from Rs.3,50,000/- to Rs.10,00,000/-, that too with retrospective effect, this benefit could not have been confined to a class of pensioners and all those pensioners who retired from the same post after rendering the same length of service are entitled to equal amount of gratuities and no distinction in the amount of gratuity is permissible. On such submission, it has been contended before us that once the amount of gratuity is revised, not only those who retired after the effective date of revision but also those, who had retired prior to the effective date of revision of gratuity, are entitled to payment of gratuity at the enhanced rate by making payment of additional amount towards gratuity. According to learned counsel for the petitioners since revised Pay Scales were made effective from 01.01.2007, corresponding benefit of enhanced gratuity of Rs.10,00,000/- ought to have also been given to all those who retired during the period from 01.01.2006 to 31.12.2006.
18. Another contention of learned counsel for the petitioners is that the anomalies, which had crept in the pension revision policy of 2008, under various Notifications and Memoranda due to fixation of notional pay fixation at the minimum of the revised Pay Scale was ultimately remedied by the respondents and in subsequent policy of revision of pension vide Notification dated 06.06.2018, issued during pendency of this petition, it has now been directed that in respect of all the pensioners/family (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (13 of 52) [CW-2646/2017] pensioners in whose case retirement/death had occurred prior to 01.01.2016, pension/family pension shall be revised notionally fixing their pay in the Pay Matrix prescribed under Rajasthan Civil Services (Revised Pay) Rules, 2017 corresponding to the pay in the Pay Scale/running Pay Band and Grade Pay applicable at the time of retirement/death. It has also been provided that this exercise shall be carried out by notional pay fixation under each revision of Pay Scale from time to time with a further direction that 50% of the notional pay as on 01.01.2016 shall be the revised pension and 30% of the notional pay shall be the revised family pension. This new revised policy has made only partial redressal/rectification inasmuch as arrears of pension/family pension have been made payable only from 01.01.2017. However, the exercise which was required to be undertaken in furtherance and implementation of Memorandum dated 06.06.2018 has not been done, and respondents are still continuing to revise pension by notionally revising pay restricting to the minimum of the revised Pay Scale. Under the new policy of revision of pension promulgated vide Memorandum dated 06.06.2018, the pension authorities are required to notionally revise the pay in every successive revised Pay Scale by adding the number of increments which the retired employee was getting at the time of his retirement and then emoluments have to be notionally arrived at and pension worked out on that basis under the provisions of Rule 54 of the Pension Rules of 1996. In support of his submission, learned counsel for the petitioners has relied upon several judgments.1 1 (1) D.S. Nakara and Others Versus Union of India, (1983) 1 SCC 305 (2) M.C. Dhingra Versus Union of India and Others, (1996) 7 SCC 564 (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (14 of 52) [CW-2646/2017] Submissions on behalf of the respondents-State:-
19. Learned counsel for the respondents-State would submit that the writ petition preferred by petitioner No.1-Society is not maintainable, as the reliefs sought are for individual members of the Society, which would depend upon individual facts and various factors peculiar to every retired person depending upon the date of his retirement and consequent applicability of amendment policy, circular issued from time to time.
Learned counsel for the respondents-State would oppose the prayer made by the petitioners on the submission that there is no constitutional or legal obligation cast on the State to revise pension upon revision of Pay Scales of government employees, who are in service, in implementation of recommendation of pay commission from time to time. However, the State has revised the pension also from time to time. A retired Government servant is entitled to pension in accordance with the provisions of the Pension Rules of 1996. It is not the case of the petitioner No.1 Society that while calculating pension of any of its members, the (3) Dhan Raj and Others Versus State of J&K and Others, (1998) 4 SCC 30 (4) Union of India Versus Bidhubhushan Malik and Ors., (1984) 3 SCC 95 (5) N.L. Abhyankar and Ors. Versus Union of India, (1984) 3 SCC 125 (6) Union of India and Anr. Versus Deoki Nandan Aggarwal, (1992) Supp (1) SCC 323 (7) R.L. Marwaha Versus Union of India and Ors., (1987) 4 SCC 31 (8) Krishena Kumar Versus Union of India & Ors., and connected matters (1990) 4 SCC 207 (9) V Kasturi Versus Managing Director, State Bank of India, Bombay and Anr., (1998) 8 SCC 30 (10) Union of India & Anr. Versus SPS Vains (RETD.) and Ors., (2008) 9 SCC 125 (11) A.N. Sachdeva (DEAD) By legal representatives & Ors., Versus Maharshi Dayanand University, Rohtak & Anr., (2015) 10 SCC 117 (12) Life Insurance Corporation of India and Ors. Versus Krishna Murari Lal Asthana & Anr., (2016) 6 SCC 515 (13) K.J.S. Buttar Versus Union of India and Anr., (2011) 11 SCC 429 (14) P. Ramakrishnam Raju Versus Union of India & Ors, (2014) 12 SCC 1 (15) State of Rajasthan and Ors. Versus Mahendra Nath Sharma, (2015) 9 SCC 540 (16) All Manipur Pensioners Association (By its Secretary) Versus State of Manipur and Ors., (2020) 14 SCC 625 (17) V. Sukumaran Versus State of Kerala and Another, (2020) 8 SCC 106 (18) Prem Chand Somchand Shah and Anr. Versus Union of India & Anr., (1991) 2 SCC 48 (19) Zile Singh Versus State of Haryana and Ors., (2004) 8 SCC 1 (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (15 of 52) [CW-2646/2017] provisions of the Pension Rules of 1996 have been violated. In the absence of that, it is contended, it has to be presumed that all the members of the petitioner No.1-Society including Chief Engineers whose cause is sought to be espoused in this petition, have received a pension after due fixation of their pension in accordance with the provisions of the Pension Rules of 1996.
Next submission of learned counsel for the respondents- State is that under the Pension Rules of 1996, amount of pension is determined in accordance with the provisions contained in Rule 54 of the Pension Rules of 1996 and the computation of emoluments is done on the basis of the provisions contained in Rule 54 thereof. Fixation of pension is done on the basis of the emoluments which an employee was actually drawing on the date of his retirement. Therefore, revision of pension cannot be claimed as of right but only within four corners of the scheme of revision of pension.
With a view to provide pension at a revised rate to cope up with rising price index and escalation in living cost, the State has promulgated policy of revision of pension, keeping in view its own financial resources available with it. A policy decision to revise pension by notional fixation of pay at the minimum of the revised Pay Scale, is beneficial to the pensioners Chief Engineers, who had retired prior to 01.01.1996. The obligation cast under Rule 45 read with Rule 54 in the matter of fixation of pension is with reference to the emoluments which the employee was drawing on the date of his retirement and it cannot be claimed as of right that as and when pay revision takes place in future, that Pay Scale will be taken into consideration for working out pension (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (16 of 52) [CW-2646/2017] because the retired employee is entitled to pension in accordance with Rule 45 read with Rule 54 of the Pension Rules of 1996, which is with reference to the Pay Scale which he was actually drawing on the date of retirement and not revised Pay Scale which were brought into effect to benefit in service employees from time to time in implementation of recommendations of Pay Commission.
Even though there did not exist any statutory obligation, as welfare State, the State decided to revise pension policy, though with certain limitations keeping in view financial implications and, therefore, vide Notification dated 22.05.2008 and Memorandum issued on 12.09.2008, read conjointly, minimum of the revised Pay Scale was made a basis for notional fixation of pay resulting in consequential revision of pension. This was intended to benefit those pensioners who were drawing very low pension as they had retired and their pension was fixed in the Pay Scales, which were existing prior to 01.01.1996, being quite low. That being the object of revision of pay, which is not unlawful or unconstitutional, the formula of notional fixation of the pensioners, who retired prior to 01.01.1996, including Chief Engineers does not suffer from any arbitrariness and could not be challenged on the ground that it seeks to treat unequals as equals.
Next submission of learned counsel for the respondents- State is that Grade Pay of Rs.8900/- was revised only w.e.f. 20.07.2011. The cutoff date was fixed keeping in view financial burden on the State consequent upon amendment vide Notification dated 29.12.2011. Fixation of pension is essentially (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (17 of 52) [CW-2646/2017] linked to the date of retirement and the then existing pension rules. Pension of all those who had retired prior to 20.07.2011 were benefited by the then existing Grade Pay 23 (Rs.8900/-). Moreover, it is submitted, substitution of new Grade Pay 24 @ 10,000/- cannot be made retrospective but one or the other cutoff date has to be provided. Accordingly, the rule fixes 20.07.2011 as the cutoff date. In the absence of challenge to the validity of the aforesaid Notification, a relief contrary to the provisions contained in the Notification could not be claimed through issuance of writ of mandamus.
Further submission of learned counsel for the respondents- State is that various facts based on new pension revision policy vide Memorandum dated 06.06.2018 have been brought on record by the petitioner No.1-Society only on certain appreciations which are baseless. New policy of revision of pension having been promulgated on 06.06.2018, it has to be presumed that in the matter of revision of pension, new policy would hold field.
Next submission of learned counsel for the respondents- State is that challenge to fixation of date of enhancement of gratuity, which has been enhanced from 01.01.2007 is without any basis. It is submitted that similar challenge was earlier made before this Court with regard to the benefit of gratuity in relation to Notification dated 21.03.1998 which was repelled and the said decision was upheld by the Division Bench of this Court in the case of Surendra Singh Versus State of Rajasthan and Another, D.B. Civil Writ Petition (CW) No.4228 of 2014, decided on 29.08.2016. Therefore, challenge to the cutoff date is (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (18 of 52) [CW-2646/2017] liable to be rejected. Learned counsel for the respondents-State would further submit that gratuity is payable at the time of retirement and, therefore, the rates of gratuity which were in force and applicable on the date of retirement alone would be applicable. Any further enhancement in the rate of gratuity in future will apply only to those who retired on or after the date of revision of gratuity and it could not be made applicable to those who already retired in the past. There is no inherent right for a pensioner to ask for revision of his pension or gratuity though it is open for the State to come out with policy of revision subject to its own financial resources and implications. In support of his arguments, learned counsel for the respondents-State has relied upon several judgments.2 Analysis of Submissions and Conclusion:-
20. Grant of pension whether it be superannuation pension, retiring pension, invalid pension, extraordinary pension or otherwise all forms of pensions payable to the retired servant of the State of Rajasthan is governed by the provisions contained in relevant Acts and Rules promulgated from time to time. In the year 1951, The Rajasthan Service Rules were framed by the Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India. The rules not only governed and regulated terms and conditions of the persons appointed to the services of the State of Rajasthan but also contained provisions 2 (1) Maharashtra State Financial Corporation Ex-Employees Association & Ors Versus State of Maharashtra & Ors., Civil Appeal No(s).778 of 2023, decided on 02.02.2023.
(2) Indra Chandra Tiwari Versus The State of Rajasthan & Another, D.B. Civil Writ Petition No.17719/2016, decided on 04.04.2017.
(3) Surendra Singh Versus State of Rajasthan & Another, D.B. Civil Writ Petition (CW) No.4228 of 2014, decided on 29.08.2016.
(4) Chiranji Lal Sharma Versus The State of Rajasthan & Ors and connected petitions , D.B. Civil Writ Petition No.23595/2018, decided on 29.07.2022. (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (19 of 52) [CW-2646/2017] with regard to pension under a separate part, i.e., Part VIII (Volume I-Part-B) thereof. Later on, Legislature of the State also enacted the Rajasthan Pension Act of 1958 (Act No.27 of 1958). The Act consists of 11 Sections and contains skeletal provisions broadly governing certain aspects of pension payable to the government servants. Later on, the Governor, in exercise of powers conferred under proviso to Article 309 of the Constitution of India, framed altogether separate rules governing pension payable to the retired government servants vide the Pension Rules of 1996. The provisions contained in the Rajasthan Service Rules 1951 (Volume I-Part-B) were accordingly repealed w.e.f. 01.10.1996, bringing into existence new regime of pensions rules w.e.f. 01.10.1996. Rule 54 of the Pension Rules of 1996 made provision with regard to the amount of pension which provision came to be periodically amended from time to time. Insofar as highest pay in the government is concerned, the relevant rule as is existed at the time of retirement of Chief Engineers, being members of the Petitioner No.1-Society is extracted herein below for ready reference :-
A-(ii) Amount of Pension "54. Amount of pension : The amount of superannuation, retiring, invalid and compensation pension and service gratuity shall be as follows -
(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than twenty eight years, the amount of pension shall be calculated at fifty percent of the emoluments subject to maximum upto fifty percent of the highest pay in Government [(the highest pay in the (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (20 of 52) [CW-2646/2017] Government is Rs.2,18,600/- since 1.1.2016)], as defined under rule 45 of these rules, which the Government servant was receiving immediately before the date of retirement.
(b) In case of a Government Servant retiring in accordance with the provisions of these rules before completing qualifying service of twenty eight years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under clause (a) and in no case the amount of pension shall be less than [Rupees Eight thousand eight hundred fifty per mensem].]
(c) Notwithstanding anything contained in clause (a) and clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (1) to rule 62.
(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one-half year and reckoned as qualifying service.
(4) The amount of pension finally determined under clause
(a) or clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next rupee."
21. Sub-rule (2) thereof contains statutory policy with regard to amount of pension payable to a retired government servant by providing that a government servant retiring in accordance with the provisions of the rules after completing qualifying service of not less than twenty eight years, the amount of pension shall be calculated at fifty percent of the emoluments subject to maximum prescribed from time to time being highest pay in Government, as defined under Rule 45 of the Pension Rules of 1996 which the Government servant was receiving immediately before the date of retirement.
Sub-rule (1) and Clause (b) of Sub-rule (2) of Rule 54 of the Pension Rules, 1996 provide for amount of pension in a case of a government servant retiring before completing qualifying service of twenty eight years, but after completing qualifying service of ten years respectively. In those cases, except cases (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (21 of 52) [CW-2646/2017] covered under Clause (a), a different formula has been provided with regard to the amount of pension. However, in all cases whether covered under Sub-rule(1) or Sub-rule (2), the basis is emoluments as defined under Rule 45 of the Pension Rules of 1996, which the government servant was receiving immediately before the date of retirement.
22. Even before promulgation of the Pension Rules of 1996, under the pre-existing scheme of pension payable under the Rajasthan Service Rules of 1951 (hereinafter referred to as 'the Rules of 1951'), the basis for pension was emoluments which the government servant was receiving immediately before the date of retirement.
23. Therefore, right from the beginning, in the State of Rajasthan, grant of pension is governed by the rules framed by the Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India. A pensioner, therefore, as of right could not have claimed pension except in accordance with the rules governing and regulating grant of pension.
Rule 45 of the Pension Rules of 1996 defines emoluments as below:-
Chapter IV Emoluments "45. Emoluments [The expression "emoluments" used for the purposes of Pension, Service Gratuity and Retirement/Death Gratuity means sum of pay in Level in the Pay Matrix of the post, NPA/NCA and Special pay, if any, which a Government servant was receiving/or to which he was entitled to immediately before his retirement or on the date of his death.
Provided that inclusion of Special Pay in the emoluments shall be on the basis of average of last ten months immediately before the date of retirement, whichever is beneficial.
(Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (22 of 52) [CW-2646/2017] Provided further that inclusion of NPA of Medical Officers and Teachers of Medical Colleges for computation of emoluments for pension, the minimum period of 2 years out of last 3 years immediately before the date of retirement, drawal of NPA shall be necessary. In case where the period of drawal of NPA is less than 2 years it shall be included in the emoluments for computation of pension on pro-rata basis. The provision of this proviso shall be applicable in respect of those Medical Officers and Teachers of Medical Colleges who retires after the date of issue of this notification.
Provided further also that the amount of Dearness Allowance admissible on sum of pay in Level in the Pay Matrix and NPA/NCA, if any at the time of retirement/death of a Government servant, as the case may be, shall be treated as part of emoluments for the purpose of grant of retirement gratuity/death gratuity."
24. On a bare reading, it is clear that emolument is what a government servant was receiving/or to which he was entitled to immediately before his retirement or on the date of death.
25. Conjoint reading of Rules 45 and 54 of the Pension Rules of 1996 makes it clear that pension under the rules is payable to a retired government servant on the basis of the emoluments which he was actually drawing or entitled to on the date of his retirement. In case of a government servant dying, or otherwise retiring in different contingency enumerated under the rules, family pension is payable under Rule 62 of the Pension Rules of 1996. In case of family pension, as provided under Rule 62 of the Pension Rules of 1996, admissible amount is @ 30% of the emoluments subject to certain minimum and maximum amount provided under Rule 62 of the Pension Rules of 1996.
26. Therefore, the statutory rules governing amount of pension payable to a retired government servant or family pension payable upon death, have always been linked to the emoluments which the government servant was drawing on the date of his retirement or the date of his death.
(Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (23 of 52) [CW-2646/2017] Consequently, pension is payable to a retired government servant based on his emoluments which he was actually drawing, applying the definition of emoluments under Rule 45 of the Pension Rules of 1996 and formula contained in Rule 54 of the Pension Rules of 1996. As the pay payable to a government servant occupying any post in government service is variable and not static due to revision of pay under various pay revision rules promulgated from time to time, the pension payable to a government servant retiring from a particular post at a given point of time is bound to differ from pension which was being paid to a government servant who retired from the same post at an earlier point of time or at a later point of time intervened by change in the emoluments on account of constant and periodical revision of pay under the pay revision rules.
As in the present case, the Petitioner No.1-Society seeks to ventilate the grievance of the retired Chief Engineers of different departments in the Government, a Chief Engineer who retired at a particular point of time would be entitled to pension and amount of pension would be fixed by applying the formula contained in Rule 54 of the Pension Rules of 1996 on the basis of the emoluments as defined in Rule 45 of the Pension Rules of 1996. However, those Chief Engineers who retired after considerable period intervened by revision of pay under revision of Pay Rules, would be entitled to pension by applying Rule 54 read with Rule 45 of the Pension Rules of 1996 with reference to emoluments which they were actually drawing on the date of his retirement. Obviously, in the subsequent case and in the earlier case both, two persons may have retired from the same post, (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (24 of 52) [CW-2646/2017] i.e., the post of Chief Engineer but their pension is bound to be different as between the two retirements, Pay Scales, Grade Pay or other benefits included in the definition of emoluments gets revised resulting in higher amount of emoluments. It, therefore, cannot be accepted that all persons retiring from the post of Chief Engineers are entitled to get the same amount of pension.
27. Neither under the old Rules of 1951, nor new Pension Rules of 1996, there exists any provision incorporating scheme of periodical revision of pension. However, government, as model employer, has been revising pension also, keeping in view rise in cost of living index. At this stage, it is pertinent to mention that in addition to pension, there are provisions for payment of Dearness Relief on Pension/Family Pension as also Interim Relief on Pension/Family Pension as provided under Rules 77 and 77A of the Pension Rules of 1996. These provisions, even without there being any provision for revision of pension, provide relief against price rise at such rates and subject to such conditions as are specified by the government from time to time.
28. In the absence of there being any provision contained in the Pension Rules of 1996 for any periodical revision of pension much less there being any provision with regard to statutory obligation cast on the government to revise pension, it could not be claimed as of right that as and when revision of pay takes place, the pension is to be revised with effect from the date of revision of pay by notionally fixing the emoluments on the basis of revised pay in a particular Pay Band with Grade Pay, though the State has been revising pension also as a matter of policy even though (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (25 of 52) [CW-2646/2017] there is no statutory scheme of revision of pension under the existing Pension Rules of 1996.
29. True it is that pay of a government servant has been revised from time to time under various revision of Pay Rules based on recommendations made by the Pay Commission from time to time. Details of those revision of Pay Rules, as stated in the petition, have been mentioned hereinabove. However, it cannot be claimed as of right that revision of pension must take place with effect from the date of revision of pay payable to a government servant and that too in a particular manner. The State, as a model employer, has been revising pension sooner or later pay is revised, in discharge of its duties laying down policy of revision as welfare State and model employer.
30. The aforesaid discussion answers the first two submissions of learned counsel for the petitioners wherein, petitioners have prayed for issuance of writ of mandamus for revision of pension as and when pay of government servant is revised under the revision of Pay Rules and that too in a particular manner. Pension as a statutory right could be claimed except in accordance with the pension rules and statutory mandate of Rule 54 of the Pension Rules of 1996 on the basis of emoluments as defined under Rule 45 of the Pension Rules of 1996 which a particular government servant was actually drawing or entitled to on the date of his retirement.
31. Though there does not exist any statutory provision obliging the State to revise pension along with revision of pay, as would be dealt with hereinbelow, the State, being a model employer, has been revising pension from time to time. Vide Memorandum (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (26 of 52) [CW-2646/2017] dated 22.05.2008, a policy of revision of pension/family pension of pre-1996 State pensioners/family pensioners was promulgated, which partially modified earlier memoranda of revision of pay issued from time to time. The relevant extracts of the aforesaid Memorandum are reproduced herein below:-
"the Governor is pleased to order that the consolidated pension treated as final 'Basic Pension' as on 01.09.1996 of pre-1996 pensioner shall not be less than 50% of the minimum pay in the revised pay scales introduced w.e.f. 01.09.1996 of the post last held by the pensioner, subject to the condition that the existing provisions in the rules governing qualifying service for grant of pension and minimum pension shall continue to be operative.
Similarly, final 'Basic Family Pension' of pre-1996 family pensioner shall not be less than 30% of the minimum pay in the revised pay scales introduced w.e.f. 01.09.1996 of the post last held by the pensioner/deceased Government servant, as the case may be, subject to the condition that the existing provisions in the rules governing minimum family pension shall continue to be operative."
32. By the aforesaid scheme of revision of pension, the Governor was pleased to provide for consolidated pension payable to pre-1996 pensioners on the basis of a formula to the effect that final basic pension shall not be less than 50% of the minimum pay in the revised Pay Scales introduced w.e.f. 01.09.1996 of the post last held by the pensioner, subject to the condition similar provision was made for revision of family pension as well.
A reading of the aforesaid policy shows that the government intended to revise pension taking into consideration that pre-1996 pensioners were drawing pension on the basis of emoluments which they were actually drawing on the date of their retirements, which were quite low as pay payable prior to 01.09.1996 itself was too low and government servant may have earned maximum qualifying years of service and drawing pay at (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (27 of 52) [CW-2646/2017] the highest level in the Pay Scales, over a period of time. It was a welfare measure that decision was taken to revise pension on the basis of revised Pay Scales, which were introduced w.e.f. 01.09.1996. Definitely, by such scheme, the pension payable to a pre-1996 pensioner was going to be stepped up with the result that pre-1996 pensioner was entitled to higher pension than what he was actually drawing on the date of promulgation of Memorandum dated 22.05.2008.
33. The revision of pension was based on a policy framed by the State specifying the manner and the extent to which revision of pension was intended to be effected. The policy as framed by the State was that for the purposes of revising pension, the basic pension shall not be less than 50% of the minimum pay in the revised Pay Scales introduced w.e.f. 01.09.1996 of the post last held by the pensioner, subject to certain condition. The revision of pay, limiting revision with reference to the minimum of the revised Pay Scale, is essentially in the domain of policy making. There could be more than one ways of revising pension, one of them being what was laid down in Memorandum dated 22.05.2008. Revision of pension based on minimum of revised Pay Scale w.e.f. 01.09.1996 definitely increased the financial burden on the State. The reply of the respondents-State is that the policy of revision of pension is subject to availability of financial resources and financial health of the State.
34. In the absence of there being any statutory mandate contained in the Pension Rules of 1996 or under the statutory scheme of any other Acts and Rules, it could not be claimed as of right that while taking a policy decision to revise pension, the (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (28 of 52) [CW-2646/2017] formula of revision of pension based on minimum of revised Pay Scale either violates provision of any law or otherwise arbitrary and violative of Article 14 or any other provisions of the Constitution of India. As to whether pension is to be revised and if so, in what manner and to what extent it has to be revised and w.e.f. which date, are essentially matters in the domain of executive policy. Financial resources available at the hands of the State are relevant consideration for the State to formulate policy of revision of pension in a particular manner.
35. The policy of revision of pension as promulgated vide Memorandum dated 22.05.2008 was based on a particular formula and merely because it provided for minimum of the revised Pay Scale as the basis for working out 50% as the amount of pension, the same cannot be said to be arbitrary. All pre-1996 pensioners who might be drawing different amount of pension, calculated by applying formula contained in Rule 54 of the Pension Rules of 1996 on the basis of emoluments, as defined in Rule 45 of the Pension Rules of 1996, became beneficiaries of the policy of revised pension. True it is that prior to such revision of pension, the pensioners including Chief Engineers, retiring at different point of time having different emoluments and consequently different amount of pension being paid to them, were clubbed together under new scheme of revision of pension.
The contention of learned counsel for the petitioners that such revision would bring all the retired pensioners Chief Engineers at one level resulting in treatment of unequals as equals, irrespective of whether they were drawing maximum of (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (29 of 52) [CW-2646/2017] the pay or lesser of the pay as their emoluments at the time of retirement, is liable to be rejected. As has already been held hereinabove, in the absence of there being any statutory provision of revision of pension contained in the Pension Rules of 1996, a pensioner, as of right, could not have claimed that revision of pay should take place in a particular manner. While fixation of amount of pension in accordance with the provision contained in Rule 54 read with Rule 45 of the Pension Rules of 1996 is an enforceable right of a retiring government servant, revision of pension would essentially depend upon the policy, if any, framed by the State. If the policy of revision of pension, as welfare measure, comes out with a formula based with reference to minimum of the revised Pay Scale, the same could not be assailed on the ground of arbitrariness. If such an argument was to be accepted, that would amount to enforcing a right to seek fixation of amount of pension by notionally fixing last emoluments in the revised Pay Scale, in the absence of there being any statutory obligation cast on the State. In other words, fixation of amount of pension as per Rule 54 read with Rule 45 of the Pension Rules of 1996 based on emoluments which the government servant was actually drawing or entitled to on the date of retirement, is enforceable right, in the absence of any statutory prescription, there is no enforceable right created in favour of a pensioner that while laying down a policy of revision of pension, last emoluments are to be notionally drawn by notional fixation of his pay in the revised Pay Scale. Therefore, the entire basis of the argument of the learned counsel for the petitioners does not merit acceptance and consequently the (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (30 of 52) [CW-2646/2017] submission fails. The object of revising pension was to bring all the pre-1996 pensioners to a higher level of pension in view of revision of Pay Scales w.e.f. 01.09.1996 and with this object, pre-1996 pensioners were brought at one level. Such a policy of revision of pension cannot be assailed on the ground that though Chief Engineers were drawing different amount of pension depending upon their emoluments which they were drawing on the date of their retirements, they have been brought at par. Prayer for issuance of writ of mandamus that those retired Chief Engineers who were getting higher amount of pension on account of their higher emoluments being at the higher stage of pay in the Pay Scale at the time of their retirements are entitled to be given higher amount of pension as compared to those retired Chief Engineers who were drawing lesser amount of pension on account of lesser emoluments at the lower state of pay at the time of their retirements, would, in fact, amount to amending the policy of revision of pension by changing the formula of pension being 50% of the minimum of the revised Pay Scale. Revision of pension is on the basis of minimum of the revised pension which the retired Chief Engineers, represented through this petition, were actually not drawing on the date of their retirements. Therefore, argument of treating unequals as equals is untenable in law and for that reason, reliance on the decision of the Hon'ble Supreme Court in the case of Prem Chand Somchand Shah and Anr. (Supra) is also unfounded.
36. As a matter of law, the scheme of revision of pension formulated and amended vide Memorandum dated 22.05.2008, is in consonance with the settled principles adumbrated in (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (31 of 52) [CW-2646/2017] plethora of decisions including Constitution Bench judgment in the case of D.S. Nakara and Others Versus Union of India (Supra) wherein, it has been held that those who render service and retire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners' and they for the purpose of pension benefits form a homogeneous class, which cannot be sub-divided by arbitrarily fixing an eligibility criteria unrelated to the purpose of revision of pension. As the aforesaid principle has been reiterated and restated by the Hon'ble Supreme Court and various High Courts time and again, we would not burden our decision with all those decisions. The policy decision taken to revise pension was intended to enhance pension of pre-1996 pensioners because they were being paid pension on the basis of their emoluments which they were drawing on the date of their retirements. The emoluments which they were drawing was under the old Pay Scale and later on the Pay Scales were revised w.e.f. 01.01.1996. As a welfare measure and model employer, the State thought it proper to revise pension itself, based on revised Pay Scale, which was going to definitely increase the pension amount of pre-1996 pensioners. It was, thus, the object that a homogeneous class of pre-1996 pensioners was clubbed together for grant of benefit of pay revision policy. Therefore, this classification, as a homogeneous class of pre-1996 pensioners for the purposes of enhancing their pension amount by revising pension on the basis of revised Pay Scales, could, by no stretch of imagination, be said to be otherwise arbitrary or violative of Article 14 of the Constitution of India. However, while laying down this policy of (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (32 of 52) [CW-2646/2017] revision of pension, the State, keeping in view, its own financial implications and the available financial resources, came out with the policy that the pension or the family pension, as the case may be, would be 50% and 30% respectively of the minimum of the revised Pay Scale applicable from 01.01.1996.
37. In the case of D.S. Nakara and Otcdhers (Supra) itself the Constitution Bench clearly held that pension is a payment for the past services rendered and it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It was also held that pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution and it creates vested right and is governed by the statutory rules.
In the present case also, the pensioners represented through the society are getting pension under the scheme of the Pension Rules of 1996 and as a welfare measure, to cope up with rising price index and increasing cost of living, it was decided to revise pension, otherwise pre-1996 pensioners' pension would be getting a very low pension as at the time of their retirements, they were drawing their emoluments under Pay Scale existing prior to revision w.e.f. 01.09.1996. Strictly speaking, the fixation of amount of pension under the rules was in accordance with the rules but it was policy decision taken, in the absence of any provisions of revision of pension under the rules, to come out with the scheme of enhanced pension. The first two submissions are rejected.
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38. Learned counsel for the petitioners has also raised an issue regarding revision of gratuity by submitting that while revising pension rules by amending Pension Rules of 1996 vide Memorandum No.No.F.12(3) FD (Rules)/2008 dated 12.09.2008, rates of gratuity from Rs.3,50,000/- to Rs.10,00,000/- was revised but the benefit of this revised gratuity is confined in the manner that the same would be applicable w.e.f. 01.01.2007 meaning thereby that only those who retired thereafter would be entitled to benefit of revised rate of gratuity but not those who retired prior to that.
A careful perusal of the amendment in the Pension Rules of 1996 vide Notification dated 12.09.2008 would reveal that capping provided under various rules were altered to higher limits under Rules 42, 54, 55, 62, Government of Rajasthan's Decision No.1 appearing below Rule 127, Rules 152, 153, 155, 157 and Rule 4 (6) of appendix (V). Revision of gratuity was one of them.
Retirement/death gratuity is payable in accordance with the provisions contained in Rule 55 of the Pension Rules of 1996, the amendment in Sub-rule (1) of Rule 55 of the Pension Rules of 1996 provides for gratuity as a one time measure to a government servant, on his retirement. While laying down a formula, it also provides for maximum limit of gratuity. The amount of gratuity payable at the time of retirement was increased by making amendment under Rule 55, Sub-rule (1) vide Notification dated 12.09.2008. It is not a case where the decision to increase the amount of gratuity, though applied to all government servants who retired prior to 01.01.2007, is in a (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (34 of 52) [CW-2646/2017] selective manner by creating any sub-classification. Death-cum- retirement gratuity, payable at the time of retirement or the death, as the case may be, is governed by a set of rules, which are in existence and in force at the time of retirement. Any subsequent change or enhancement of amount of gratuity, could not be claimed with retrospective effect so as to include all pensioners who retired prior to the effective date of revised gratuity. The fixation of amount of gratuity essentially depends upon the gratuity rules, which were in force on the date of retirement, as provided in Rule 55 of the Pension Rules of 1996. The petitioners have not challenged the validity of Rule 55 of the Pension Rules of 1996, which makes applicable revised gratuity amount w.e.f. a particular date. Periodical increase in the rate of gratuity amount from time to time by amending pension rules would be applicable accordingly and it cannot be claimed as of right that the rates of gratuity, which have been increased periodically from time to time and applicable to pensioners who retired after coming into force the amendments in the rules should be made applicable with retrospective effect to all those government servants who retired prior to cutoff date. Gratuity is not a continuing payment like pension but is one time payment made under Rule 55 of the Pension Rules of 1996 on the basis of the rates of gratuity, which were applicable on the date of retirement of the government servant. It is not a case where a decision having been taken to revise pension under a particular liberalisation scheme, pensioners have been micro classified into sub classes without any rational integra having no basis for (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (35 of 52) [CW-2646/2017] reasonable classification. Therefore, the contention in this regard is liable to be rejected and the same is hereby rejected.
39. The next submission of learned counsel for the petitioners is with regard to applicability and cutoff date provided by the amendment in Rajasthan Civil Services (Revised Pay) Rules, 2008 vide Notification dated 29.12.2011. By the aforesaid notification, Pay Rules were amended vide Rajasthan Civil Services (Revised Pay) (Seventh Amendment) Rules, 2011. At this juncture, it be noticed that this was not an amendment in the pension rules but amendment in the Pay Rules, which is applicable to the government servants in service and it is not ipso facto applicable in the case of pensioners unless the pension scheme itself provides for payment of pension based on revised Grade Pay. By the aforesaid amendment, revised Grade Pay in the running Pay Band was provided. So far as Chief Engineers are concerned, under Clause (v) of Notification dated 29.12.2011, it was provided that existing entry at Serial No.5 appearing under heading "Public Works Department (Building and Roads)-(i) Rajasthan Service of Engineers" shall be substituted by Pay Band of Rs.10,000/- in place of pre existing Pay Band of Rs.8,900/-. Moreover, it was also provided in the said rules that it shall be deemed to have come into force w.e.f. 20.07.2011. Therefore, w.e.f. 20.07.2011, Grade Pay 23 stood revised to Rs.10,000/-. Prayer is that members of the Petitioner No.1-Society be declared entitled to have their monthly pension/family pension enhanced and computed as per Grade Pay 24 i.e., applying the Grade Pay of Rs.10,000/-.
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40. While dealing with first two contentions, we have already dealt with Memorandum No. F.15(1) FD (Rules)/1999 dated 22.05.2008 by which, the policy of revision of pension/family pension of pre-1996 State pensioners/family pensioners was promulgated. Vide another Memorandum No. F.12(3) FD (Rules)/ 2008 dated 12.09.2008, it was ordered that pension/family pension of all pre 01.09.2006 State pensioners/family pensioners be revised w.e.f. 01.09.2006 in the manner provided thereunder. It provided for revision of pension by way of consolidation as per the scheme incorporated in Clause-4 of the aforesaid memorandum so as to consolidate the existing pension/family pension with dearness pension @ 50% of the original pension/family/consolidated pension/consolidated family pension under order dated 24.05.2004, Dearness relief @ 24%, fitment weightage @ 40% with certain stipulation contained therein. This was again a new policy of revision of pension benefiting all the pensioners. Para 5 onwards in the aforesaid revised pension scheme reflects that the government intended to consolidate pension so as to enhance pension with the stipulation that the consolidated pension as on 01.09.2006 of pre-2006 pensioners shall not be lower than 50% of sum of minimum of the post in the running Pay Band given Grade Pay introduced w.e.f. 01.09.2006 corresponding to the pre revised Pay Scale of the post from which the pensioners had retired, subject to certain condition. Therefore, in the matter of further revision of pension of those pensioners who had retired before 01.09.2006, revision of pension scheme was brought into force. By a further order dated 12.09.2008, Memorandum No.F.12(4) FD (Rules)/2008, (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (37 of 52) [CW-2646/2017] the rates of dearness reliefs were also revised to provide higher rates. Vide Memorandum dated 06.04.2013, the existing words and figures "01.09.2006" and "pre 01.09.2006" were substituted by words and figures "01.01.2006 and "pre 01.01.2006"
respectively. Further existing figure "31.08.2006" was also substituted by the figures "31.12.2005".
41. It is not a case where the revision of Grade Pay @ 10,000/- corresponding to running Pay Band of Rs.37400-67000 in Grade Pay 24 was decided to be applied to only a special class of pre 01.01.2006 pensioners and arbitrary sub-classification was made without any rational integra or intelligible differentia. Revision of Pay Rules of 2008 vide Notification dated 29.12.2011 brought w.e.f. 20.07.2011 only intended to revise pay of the existing government servants who were in service. The revision of pension vide various notifications, issued in the year 2008 from time to time, which have been referred to hereinabove, did not include a policy of revising Grade Pay as well from time to time. While Memorandum dated 12.05.2008 intended to enhance pension of pre-1996 pensioners, Notification dated 12.09.2008 intended to revise and thereby enhanced pension of pre-2006 pensioners by laying down a particular scheme/formula delineating with the scope, manner and extent to which revision was to take place.
42. Subsequently, when further revision of pension of pre-2006 State pensioners/family pensioners took place vide another Memorandum dated 18.06.2013, it was provided as below:-
"3. The matter has been considered and the Governor is pleased to order that the pension of pre-2006 pensioners would be further stepped up to 50 percent of the sum of minimum of pay in the Pay Band and Grade Pay prescribed (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (38 of 52) [CW-2646/2017] as on 01.01.2006 corresponding to the pre revised pay scale of the post including selection Grade and in the case of Teachers Senior and Selection Scale from which the pensioner had retired as arrived at with reference to the fixation tables annexed to the following Rules:-
(i) Rajasthan Civil Services (Revised Pay) Rules, 2008
(ii) Rajasthan Civil Services (Revised Pay for Government Colleges Teachers including Librarians & PTIs) Rules, 2009
(iii) Rajasthan Civil Services (Revised Pay Scales for Government Polytechnic College Teachers, Librarians and PTIs) Rules, 2010
(iv) Rajasthan Civil Services (Revised Pay Scales for Diploma in Pharmacy Course Teachers) Rules, 2010
4. Similarly the family pension in respect of pre-2006 pensioners/family pensioners as revised w.e.f. 01.01.2006 would also be further stepped up to 30 percent of the sum of minimum of pay in the Pay Band and the Grade Pay prescribed as on 01.01.2006 corresponding to the pre-
revised pay scale of the post including Selection Grade in the case of Teachers Senior and Selection Scale from which the government servant had retired as arrived at with reference to the fixation tables referred in para 3 above.
5. To facilitate payment of revised pension/family pension as per provisions of para 3 and 4 above, the table of minimum revised pension/family pension of pre-2006 pensioners on the basis of corresponding RPB and GP as on 01.01.2006 of the pre-revised pay scale of the post has been indicated in the appended annexure.
6. The pension so arrived at in accordance with para 5 above and as indicated in Col.8 of the Annexure will be reduced pro-rata, where the pensioner had less than the maximum required service for full pension as per Rule 54 of the Rajasthan Civil Services (Pension) Rules, 1996 as applicable before 01.01.2006 and in no case it will be less than Rs.3025/- p.m.
7. In case the consolidated pension/family pension calculated as per para 4 of Memorandum dated 12.09.2008 as amended vide memorandum dated 06.04.2013 is higher than the pension/family pension calculated in the manner indicated above the same (higher consolidated pension/family pension) will continue to be treated as basic pension/family pension.
8. Since the consolidated pension is inclusive of commuted portion of pension, if any, the commuted portion will be deducted from the said amount while making monthly disbursements, if not restored.
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9. All other conditions as given in Memorandum dated 12.09.2008 as amended from time to time shall remain unchanged.
10. These orders will take effect from 01.07.2013. There will be no change in the amount of revised pension/family pension during the period from 01.01.2006 to 30.06.2013 and therefore no arrears will be payable on account of these orders upto 30.06.2013.
43. While formulating revision of pension of pre-2006 pensioners, the object was to step up the amount of pension by providing that the pension of pre-2006 pensioners would be further stepped up to 50% of the sum of minimum of pay in the Pay Band and Grade Pay prescribed as on 01.01.2006 corresponding to the pre-revised Pay Scale of the post including Selection Grade. Again, the policy makers though came out with revision of pension, the basis for revision was the Pay Band in the Grade Pay prescribed as on 01.01.2006. There is nothing in the policy which allows the benefit of revised Grade Pay vide Notification dated 29.12.2011 amending Rajasthan Civil Services (Revised Pay) Rules, 2008. Unless the revised Grade Pay as per amendment of 2011 was made applicable for revision of pension to pre-2006 State pensioners/family pensioners, it could not be claimed as of right that further revision in the Pay Rules, which are essentially applicable to those who are in service, should be granted from retrospective effect or should be applied to all pre- 2006 State pensioners/family pensioners. The relief, in fact, seeks application of revision of Pay Rules for the purposes of revision of pension without there being any such prescription either under the Pension Rules of 1996 or in the Notification dated 29.12.2011 or in the policy of revision of pension vide Memorandum dated 18.06.2013.
(Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (40 of 52) [CW-2646/2017] Reliance placed on the decision of the Hon'ble Supreme Court in the case of Zile Singh Versus State of Haryana and Others (Supra), is not only misplaced in law but on facts both. The factual background of that case was that a disqualification was imposed by the Haryana Municipal Act, 1973 inserted by an amendment, which remained in operation only for a period one year upto 05.04.1994. The said provision disqualified a person to hold the office of a member of municipality, who had more than two children. However, vide another amendment effective from 04.10.1994, it was provided that a person having more than two children on or after the expiry of one year would stand disqualified.
The contention raised before the Hon'ble Supreme Court was that the period of one year should be calculated from 04.10.1994 and not 05.04.1994. In that context, the issue was whether it was at all retrospective in operation and if not, whether provision as amended by the second amendment applied to the appellant therein. The principle of law with regard to retrospective operation of statute was discussed as below:-
"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only "nova constitutio futuris formam imponere debet non praeteritis" - a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. (ibid, p.440).(Downloaded on 12/10/2024 at 11:41:30 PM)
[2024:RJ-JP:38026-DB] (41 of 52) [CW-2646/2017]
14......x.........x.........x.......x.......x
15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, 7th Edn.), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the Statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied;
(iii) the former state of the law; and (iv) what it was the legislature contemplated (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right (p.392).
16. Where a Statute is passed for the purpose of supplying an obvious omission in a former statute or to 'explain' a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature......"
Learned counsel for the petitioners places reliance upon what has been stated in Para-25 of the aforesaid decision to submit that the effect of substitution would be that Grade Pay shall be treated as having been substituted from retrospective date. We are unable to accept the submission. The broad principles with regard to operation of statute upon substitution of a provisions were discussed as below:-
"25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. (2002) 2 SCC 645, State of Rajasthan v. Mangilal Pindwal (1996) 5 SCC 60, Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael AIR 1963 SC 933. In West U.P. Sugar Mills Assn. case (supra) a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (42 of 52) [CW-2646/2017] Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case (supra) a three-Judge Bench of this Court emphasized the distinction between "supersession" of a rule and "substitution"
of a rule and held that the process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place." The aforesaid decision is not an authority for the proposition that all substitutions are retrospective in nature. On the contrary, cardinal principle of construction is that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. Further discussion on the principle is that in a given case, it can be gathered upon consideration of various relevant factors, whether the statute was intended to operate retrospectively.
However, in the present case, Pay Rules namely the Rajasthan Civil Services (Revised Pay) Rules, 2008 were amended vide Notification dated 29.12.2011 providing for higher grade of pay. The amendment in express words stated that the amendment in Grade Pay shall come into force w.e.f. 20.07.2011. Revision of Grade Pay has financial implications. Merely because in the Pay Rules of 2008, Grade Pay of Rs.8,900/- was revised to Rs.10,000/-, it cannot be said that such revision should be given retrospective effect from the date the Pay Rules of 2008 were brought into effect. In its very nature, revision of pay, Grade Pay, Allowances, unless expressly stated to be retrospective, have to be treated prospective only. Revision to higher levels of Pay Scales, Allowances, Grade Pay and financial benefits are mostly intended to compensate rising price index. Therefore, in its very (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (43 of 52) [CW-2646/2017] nature, such revisions are only prospective. However, nothing precludes the employer to give such benefits from a retrospective date and if it decides to give that benefit from a particular date, no exception can be taken to the same, nor can it be claimed that it should be given such retrospectivity as would benefit the persons who are making such claim. Therefore, the contention of learned counsel for the petitioners in this regard, is liable to be rejected.
44. The revision of pension under various pension revision policies, which have been discussed and which have been referred to hereinabove, reflects that the State has been revising pension policies from time to time keeping in view revision of pay but the manner and the extent to which such revision has to be made depend upon various factors including financial implications and resources which are in the domain of executive policy making. In other words, though pension has been revised from time to time but it is not exactly in the manner and to the extent as revision of pay has taken place from time to time in terms of the extent of financial benefits and the date of taking effect of such revision.
45. The prayers made by the petitioners are, in effect, seeking issuance of writ of mandamus directing respondents to revise pension policies in a manner as claimed by the Petitioner No.1- Society so as to bring it at par, in all respects, with the revision of pay made from time to time.
The revision of pay as also revision of pension are carried out periodically by the State keeping in view rising cost of living and price index and to cope up with the same, various provisions (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (44 of 52) [CW-2646/2017] for not only revising pay and revision of pension have been made but also extended various other reliefs like dearness relief, interim relief, additional pension, allowances etc, as variable features.
46. However, the manner in which the revision of pay or pension has to take place, is in the executive domain of State Authorities and unless in the matter of application of policy of revision of pension or liberalization of pension, sub-classification not based on intelligible differentia is created or the policy is per se violative of the provisions of any law or the provisions of Constitution, it is not within the scope of judicial review to direct amendment in the policy of revision of pension only on certain idealistic theory or based on moral obligations of the State. Like revision of pay, revision of pension also has financial implications which results in providing certain cutoff dates for applicability of enhanced benefits as also restricting actual benefits by providing a formula of notional fixation without grant of actual benefits from an enterior date which is in the domain of policy making by law makers and executive.
47. Learned counsel for the petitioners has relied upon series of decisions noted hereinabove. The decisions, which have been relied upon forbid discrimination amongst similarly situated persons. In most of the cases, on facts, it was found that the benefit of pension scheme or liberalised pension scheme was applied to pensioners with a result that the pensioners before the cutoff date were governed under one pension scheme, whereas, pensioners after the cutoff date were being governed by another revised/liberalised pension scheme.
(Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (45 of 52) [CW-2646/2017] In the case of D.S. Nakara and Others Versus Union of India, benefits of revision of non-contributory retirement pension scheme was confined to a particular class of pensioners with reference to a particular cutoff date, which were held to be unconstitutional being violative of Article 14 of the Constitution of India.
In the case of M.C. Dhingra Versus Union of India & Others, benefit of provision permitting computation of previous service for grant of pension vide Government of India Circular dated 31.03.1982 was confined only to those persons retiring on and after the date of issuance of circular, which was held arbitrary.
In the case of Dhan Raj and Others Versus State of J&K and Others, benefit to opt for pension vide order dated 03.10.1986 enabled even those already retired to opt for pension. It was held that benefit of option was applicable not only to those who retired after 09.06.1986 i.e., the date of amendment of the service regulations but also to those who retired prior to that date.
In the case of Union of India Versus Bidhubhushan Malik and Others, it was held that Judges of High Court including the Chief Justice are entitled to pensionary benefits in terms of Chapter II of 1954 Act, as amended by 1976 Act, irrespective of their date of retirement.
In the case of Union of India and Another Versus Deoki Nandan Aggarwal, benefit of liberalised pension scheme was denied to persons retiring prior to cutoff date, which was held impermissible in law. Once pension scheme has been liberalised, (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (46 of 52) [CW-2646/2017] it was held applicable to all, though it was held that the benefit could be given from cutoff date only.
In the case of R.L. Marwaha Versus Union of India and Others, a discrimination was practised that the benefit of counting period of Government services as part of qualifying service or computing pension upon absorption by autonomous body where also pension scheme was inoperative, was limited and confined to those retiring on or after the date of issuance of office memorandum dated 20.08.1984. It was held that such discrimination based on such cutoff date was discriminatory and violative of Article 14 of the Constitution of India.
Krishena Kumar Versus Union of India and Others and connected matters was a case where pension schemes were successively liberalised while P.F. scheme remained stagnant. Employee was given opportunity to exercise option. Ample opportunity was given to P.F. holders to exercise option for changing over to the pension scheme. Those P.F. retirees who failed to exercise the option within time, were held not entitled to be included in the pension scheme on the ground of parity. It was held that P.F. retirees and pension retirees constituted different class. In the aforesaid case, the principle propounded was that moral obligation is not binding while legal obligations are binding on the State towards his employees.
In the case of V. Kasturi Versus Managing Director, State Bank of India, Bombay and Another, test to determine whether earlier retirees were eligible for the benefit of prospective amendment in the Pension Rules, was laid down. It was held that where the amendment enhanced the pension or (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (47 of 52) [CW-2646/2017] provided for a new formula of computation of pension, even the earlier retirees, who at the time of their retirements, were eligible for pension and survived till the date of amendment, would be eligible for the benefit of such amendment from the date it came into effect. However, where the amendment extended the benefit of the pension scheme to a new class of pensioners, the earlier retirees who at the time of retirements were not eligible for pension were held ineligible to get the benefit of amendment.
In the case of Union of India and Another Versus SPS Vains (RETD.) and Others, a disparity within the same rank was noticed and relying upon the decision in the case of D.S. Nakara and Others Versus Union of India (Supra), it was held that it was not permissible to create a class within a class. Directions were issued to extend similar benefit to all pre- 01.01.1996 retirees on notional basis.
In the case of A.N. Sachdeva (Dead) By Legal Representatives and Others Versus Maharshi Dayanand University, Rohtak and Another, on the touch stone of principles enunciated under Articles 14 and 16 of the Constitution, it was held that as the pension is not an ex-gratia payment, but a payment in recognition of past service, discrimination could not have been made between those employees, who have been absorbed/allocated and they are entitled to count their services as qualifying service for the purpose of pension and not only those, who have been appointed directly as all these employees have served without any break. (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (48 of 52) [CW-2646/2017] In the case of Life Insurance Corporation of India and Others Versus Krishna Murari Lal Asthana and Another, it has been propounded that pension is not a bounty. The seminal issue arising for consideration was with regard to the power of the Chairman of the Corporation to issue instructions under the scheme of the applicable rules.
In the case of K.J.S. Buttar Versus Union of India and Another, enhanced benefits of disability pension were made available from the date much after being invalidated out of service. The benefit of enhanced retrial benefit was denied on the count of retirement of the petitioner therein in 1979, whereas, the benefits were introduced subsequently. In those circumstances, it was held that the persons, who retired prior to introduction of the beneficent scheme were also entitled to the benefits.
In the case of P.Ramakrishnam Raju Versus Union of India and Others, denial of benefit of addition of 10 years' practice as an advocate to the service for the purpose of determining pension under High Court Judges (Conditions of Service) Act, 1954 to High Court Judges directly appointed from Bar while granting the same to High Court Judges elevated from the State Judicial Services, who had joined at District Judges level from the Bar as well as to Supreme Court Judges directly appointed from the Bar and to Judges of Higher Judicial Services was held discriminatory and arbitrary being violative of Articles 14 & 16(1) and 21 of the of the Constitution.
In the case of State of Rajasthan and Others Versus Mahendra Nath Sharma, issue of denial of pension benefit in (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (49 of 52) [CW-2646/2017] higher band after pay revision was examined. In the aforesaid decision, circular/memorandum dated 12.09.2008 was also considered and explained. It was held as below:-
"26.......There is no cavil over the fact that the respondents have been fitted into a pay band and extended the benefit of pension under the revision of pay from 2006 as the respondents had completed three years of service. Para 5 clearly lays the postulate that the consolidated pension (treated as final basic pension) as on 1.9.2006, all pre-1.9.2006 pensioner shall not be lower than 50% of sum of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f. 1.9.2006 corresponding to the pre-revised pay scale of the post from which pensioner had retired. The only rider is the minimum qualifying service and all the respondents have the experience of three years by 1.9.2006. As the factual score would depict, the respondents were paid pension on a lower band after the revision of the pay scale despite the fact that the persons who were already in service with the similar qualification have been kept in the higher pay band plus grade pay.
27. Para 5 requires to be scrutinised and on such a scrutiny it becomes graphically clear that pension of a pre-1.9.2006 pensioner shall not be lower than 50% of sum of the minimum of post in the running pay band plus grade pay introduced w.e.f. 1.9.2006 corresponding to the pre-revised pay scale of the post. If the pay scale is taken into consideration, the corresponding pay revision would be Rs.37400-67000 with Rs.9000 AGP. The only qualifier is three years' service in that scale. There is no scintilla of doubt that all the respondents meet that criteria."
The aforesaid interpretation on Memorandum dated 12.09.2008 fully justifies the action of the respondents, as has been discussed in detail hereinabove.
In the case of All Manipur Pensioners Association By its Secretary Versus State of Manipur and Others, it was held that all government employees completing qualifying service are entitled to pension in terms of Pension Rules and there cannot be two classes with reference to a particular date as retiring based on cutoff year as those retiring prior to 1996 and those retiring post 1996 for the purpose of grant of revised pension. (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (50 of 52) [CW-2646/2017] In the case in hand also, scheme of revision of pension has been applied equally to all.
In the case of V. Sukumaran Versus State of Kerala and Another, the earlier principle laid down in the case of D.S. Nakara and Others Versus Union of India that pension is succor for post retirement period and is not bounty but a social welfare measure, has been highlighted.
48. During the pendency of this petition, State has again come out with revised pension vide Notification dated 30.10.2017, amended vide Notification dated 09.12.2017. Further amendments have been made in Pension Rules of 1996 vide Notification dated 09.12.2017. Again a Memorandum was issued on 06.06.2018 further revision pension of pre-01.01.2016 State pensioners/family pensioners. These new notifications and amendments further revising pension as also incorporating certain amendments in the pension rules, have also been brought on record by way of an additional affidavit by the petitioners. In response thereto in the counter affidavit, it has been stated inter alia that revision of pension/family pension would be done according to the new revision of pension policies promulgated in the year 2016 followed by latest policy of revision issued vide Memorandum dated 06.06.2018.
49. We find that there is clear departure from the earlier scheme of revision of pension in that. Now the scheme of revision of pension of pre-01.01.2016 State pensioners/family pensioners vide Memorandum dated 06.06.2018 links revision of pension to the pay in the Pay Scale/running Pay Band and Grade Pay at which pensioners retired/died. As the same are (Downloaded on 12/10/2024 at 11:41:30 PM) [2024:RJ-JP:38026-DB] (51 of 52) [CW-2646/2017] distinguished from the earlier policies of revision of pension based on minimum of revised pay, the new scheme extends better benefits by linking revision of pension with revised pay by applying the formula of notional fixation in the manner as provided under various clauses of Memorandum dated 06.06.2018.
50. After counter affidavit was filed by the State, an additional affidavit has also been filed wherein, it has been alleged that though new scheme of revision of pension requires pension to be revised on the basis of notional pay under the revised Pay Rules of 2017, the anomalies which are highlighted with reference to earlier scheme continue. However, in view of the aforesaid consideration, the relief as sought in the petition cannot be granted.
51. During the course of arguments, it was stated that though under new scheme of revision of pension vide Memorandum dated 06.06.2018, revision of pension is based on notional pay to be arrived at in the revised Pay Scale, yet, for the purposes of revision of pension, the minimum of the Pay Scale is being made a basis. We do not find there being any specific factual foundation in support of such allegations. We, however, make it clear that if in any case, there is any grievance arising in the matter of revision of pension under policy of revision of pension vide Memorandum dated 06.06.2018 on the ground that pension is not being revised on the basis of the criteria contained in Memorandum dated 06.06.2018, it will be open for the aggrieved retired Chief Engineers to approach the Competent Authority with specific representations.
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52. This petition is, accordingly dismissed.
53. No order as to costs.
(SHUBHA MEHTA),J (MANINDRA MOHAN SHRIVASTAVA),CJ SANJAY KUMAWAT-507 (Downloaded on 12/10/2024 at 11:41:30 PM) Powered by TCPDF (www.tcpdf.org)