Bombay High Court
Murlidhar Yadan Tonpe Since Deceased By ... vs State Of Maharashtra & Anr. on 16 February, 1996
Equivalent citations: 1996(5)BOMCR166, 1996CRILJ995, 1996(1)MHLJ926
Author: A.P. Shah
Bench: A.P. Shah
JUDGMENT
A.P. Shah. J.
1. Is petitioner entitled to receive the benefit of Government resolution dated April 28, 1961 providing for computation of temporary and officiating service for pension? Is the date of retirement a relevant consideration for eligibility for receiving the benefit of the said resolution? Whether clause 3 of the said resolution giving benefit only to the Government servants, who retire from service on or after the date of issuance of this resolution is constitutionally valid? These are some of the questions, which fall for our consideration in this petition under Article 226 of the Constitution.
2. The facts are few and almost undisputed. The petitioner joined the services of the then Province of Bombay on August 12, 1939 on temporary basis to one of the twenty permanent posts in the office of the Director of Prohibition and Excise. The said posts were created by the Government resolution No. GR/RD/347/39, for implementation of the policy of prohibition, which was then adopted by the Government.
3. On August 9, 1960, the petitioner retired prematurely after having put in continuous and uninterrupted service of 21 years, 14 years out of which were as a permanent clerk. The petitioner's initial appointment on temporary basis was followed by confirmation and there was no interruption or break in service of 21 years and it is a common ground that he held a substantive post on a permanent establishment on the date of his retirement.
4. On retirement, as aforesaid, the petitioner applied for fixation and payment of his pension.
5. By their pension payment order No. M/9653, the respondent No. 1 calculated the pension payable to the petitioner on the basis of 14 years service only instead of 21 years service which the petitioner had put in. There respondents have calculated the amount of pension payable to the petitioner by excluding 7 years in his service on the ground that the petitioner was employed for that period on temporary basis in a permanent post.
6. At this stage, we will make a reference to the Government resolution of April 28, 1961 relied upon by the petitioner. The effect of the said resolution was that for determination of the pension of an employee of the Government, his temporary service was also to be taken into account. However, the said resolution was given effect prospectively and those employees who had retired prior to April 28, 1961, were deprived of the benefit arising from the said resolution and their service with the Government on temporary basis is not taken into account for the purpose of calculation of pension benefit.
7. It will be useful to reproduce the said resolution, which runs as under :
"Government has considered the question of simplifying the rules relating to the counting of temporary and officiating service for pension and is pleased to issue orders as under in regard to Government servants whose pension is regulated under the Bombay Civil Services Rules or the Revised Pension Rules, 1950.
2. If a Government servant holds a substantive post on a permanent establishment on the date of his retirement, temporary or officiating service under Government followed without interruption by confirmation in the same or another post shall count in full as duty/qualifying service except in respect of -
(i) Periods of temporary or officiating service in non-pensionable establishment,
(ii) Periods of service in work charged establishment and
(iii) Periods of service paid from contingencies.
3. The above orders will apply to all Government servants who retire from service on or after the date of issue of these orders.
4. Necessary amendment to the Bombay Civil Services Rules will be issued in due course."
8. The basic contention of the petitioner is that by introducing clause 3 in the resolution, the Government has discriminated between its employees, who had retired prior to the said date of April 28, 1961 and those, who had retired after that date and has thus violated Article 14 of the Constitution. The grievance of the petitioner is that the distinction made between the employees retired before April 28, 1961 and those retiring after that date is arbitrary and without any rational basis. It is, therefore, contended that by making the resolution dated April 28, 1961 applicable to the Government servants, who retired from service on or after the date of issue of the said resolution and denying the benefit to those who retired before the said date, amount to arbitrary and invidious discrimination between the Government servants, who had retired before April 28, 1961 and those, who would retire thereafter and, therefore, the action of the Government is violative of Articles 14 and 16 of the Constitution.
9. The concept of pension is now well known and has been clarified by the Apex Court time and again. It is not a charity or bounty nor is it gratuitous payment solely dependent on the whim or sweet-will of the employer. It is earned for rendering long service and is often described as deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution.
10. It is now will settled that Article 14 will be attracted where eqpuals are treated differently without any rational basis. In Re. Special Courts Bill AIR 1979 S.C. 479, it was held that the classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, but those qualities or characteristics must have a reasonable relation to the object of the legislation. In Ajay Hasia, etc. v. Khalid Mujib Sahravardi , the Constitution Bench observed that it must now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Apex Court made it explicit that where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14.
11. The main contention of the petitioner is that the pensioners for the purpose of receiving pension form a class and there is no criterion on which classification of pensioners retiring prior to specified date and retiring subsequent to that date can provide a rational principle correlated to the object of receiving the advantage of the Government resolution dated April 28, 1961. The resolution appears to have been issued in view of the fact that the cost of living has increased enormously and also that the Government employees, who had rendered services for a long time as temporary servant, should get the benefit of such service in computation of his pension. In fact, the resolution is merely of a clarificatory nature. It only provides a different mode of counting the service for the purpose of fixing the pension. No new pension scheme as such has been introduced under the resolution. If that is so, we fail to understand as to why such benefit should not be extended to the employees, who retired prior to the date of the resolution. Restricting the applicability of the resolution only to those who are retiring after the date of the resolution would be defeating the very object and purpose of issuing the resolution and contrary to fair play and justice. The resolution is undoubtedly issued on April 28, 1961, but it takes into consideration the past service of the employees for providing a different method of calculating the pension. Whoever has rendered continuous service prior to coming into force of the resolution, would be entitled to claim the benefit under the said resolution. Restricting the benefit to those who are retiring after the resolution dated April 28, 1961 is arbitrary and is hit by Articles 14 and 16.
12. In D.S. Nakara v. Union of India , the Apex Court held that the classification in revised pension formula between the pensioners on the basis of date of retirement specified in memoranda is arbitrary and violative of Article 14. D.A Desai, J. speaking for the Bench observed :
"With the expanding horizons of socio-economic justice, the Socialist Republic and Welfare State which the country endeavours to set up and the fact that the old men who retired when emoluments were comparatively low are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, by introducing an arbitrary eligibility criteria, "being in service and retiring subsequent to the specified date" for being eligible for the liberalised pension scheme and there by dividing a homogeneous class, the classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, the eligibility for liberalised pension scheme of "being in service on the specified date and retiring subsequent to that date" in the memoranda, violates Article 14 and is unconstitutional and liable to be struck down. But, as the arbitrary and discriminatory portion in the memoranda can be easily severed, both the memoranda shall be enforced and implemented after severance of the unconstitutional part. However, arrears of pension prior to the specified date are not required to be paid to those who have retired before the specified date because to that extent the scheme is prospective. Accordingly, all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of their date of retirement."
13. In T.S. Thiruvengadam v. Secretary to Government of India , the Apex Court reiterated the law laid down in D.S. Nakara's case (supra). It was held that the action of the Government in extending the benefit of the memorandum dated June 16, 1967 to the Government servants, only to those who were absorbed in public undertakings after the date of the memorandum, is violative of Articles 14 and 16 of the Constitution. Keeping in mind the principles laid down by the Apex Court, we have no hesitation to hold that clause 3 of the Government resolution dated April 28, 1961 making the resolution applicable only to Government servants retiring after the date of the resolution, is violative of Article 14 and is, therefore, struck down.
14. In the result, the petition succeeds and the same is made absolute in terms of prayer clauses (a) and (b).
15. During the pendency of the petition, the original petitioner has died. The Government shall pay the dues in the amount of pension to the heirs of the petitioner within eight weeks from today.
16. Certified copy expedited.
17. Petition allowed.