Patna High Court
Bihar Pensioner Samaj And Ors. vs State Of Bihar And Ors. on 27 April, 2001
Equivalent citations: 2001(2)BLJR1318
JUDGMENT Radha Mohan Prasad, J.
1. Initially the petitioners being aggrieved by the Resolution of the Government of Bihar, contained in Finance Department Memo No. 4159 dated 5-5-1998 (Annexure-1) with respect to the effective date for raising the limit of retirement gratuity from 1 lakh to 2.50 lakh i.e. 16 1/2 times of the emoluments or Rs. 2.50 lakh whichever is less and for treating the dearness pay for the purpose of death-cum-retirement gratuity of its employees who retired/died on or after 1-4-1987 instead of 1-4-1995 as implemented in the case of the Central Government employees challenged its validity. Later the petitioners filed an amendment application challenging the validity of the Finance Department Resolution No. PC-01/99-11556 Vi Pe dated 22-12-1999 (Annexure 11) whereby the State Government decided to notionally revise the pension, family pension and gratuity with effect from 1-1-1996 of its employees who retired or died in harness on or after 1st January, 1996 but gave actual monetary benefit with effect from 1st April, 1997 and the gratuity was to be counted on the basis of basic pay plus dearness allowance as admissible on the date of retirement or death and further that it should be with of the admissible every six monthly emolument for pensionary service which shall not exceed 16.5 times of the same and in the case of death gratuity different calculation was provided but in both the cases the maximum limit of the gratuity was increased to 3.50 lakh admissible in the case of those who retired or died on or after 1-4-1997. The prayer for amendment was allowed vide order dated 2-5-2000.
2. Petitioner No. 1 which is a registered society espousing the cause of pensioners through its General Secretary, who is also petitioner No. 2, along with three other petitioners, are aggrieved by the said decisions of the State Government insofar as the date of the implementation of the said provisions in the case of the State Government employees from 1-4-1997 instead of 1-4-1995 and 1-1-1996 as have been implemented in the case of the Central Government employees.
3. The thrust of the petitioners' case is that the State Government has always fixed the pension scheme on the pattern laid down by the Government of India and in the present case also, the aforementioned benefits have been granted in pursuance to the recommendation of the 5th Pay Revision Committee which was accepted by the Central Government and implemented with effect from 1-4-1995 for treatment of clearness allowance as clearness pay for the purpose of death gratuity and retirement gratuity and raising the maximum limit of gratuity from Rs. 1 lakh to 2.50 lakh vide Annexure-8 in pursuance to the interim report base on All-India Consumer Index 1201.66 and in the matter of final revision of pension. Family pension , DCRG, commutation of pension from 1-1-1996 but the State Government implemented the said benefits with effect from 1-4-1997 including the benefit in increase of gratuity to Rs. 3.50 lakh in pursuance to the recommendation of the Fitment Committee in the case of its employees who retired or died on or after 1-4-1997. It is contended that the State Government revised the pension scheme in question on Central Government pattern which is linked to Average Consumer Price Index 1201.66 obtaining as on 1st July, 1993 which was the basis for the Central Government to fix 1-4-1995 as the cut-off date. As such, according to the learned Counsel for the petitioners, there is no rational/ justification in not giving the similar benefit to the petitioners also. It is also submitted that once having taken a decision to follow the Central Government pattern in the matter of payment of retiral benefits from 1972 and having acted since then on that line, the State Government cannot depart from it and take an arbitrary date for implementation of the Scheme in question. According to the learned Counsel for the petitioners,, by the Cabinet decision dated 13-1-1998 a right had accrued and matured in favour of those employees who retired or died on 1-4-1995 to receive gratuity by getting dearness allowance treated as dearness pay which the State Government cannot take away by a subsequent administrative order and that too without the approval of the Government. It is submitted that the State Government having taken decision in principle on the basis of the interim report of the Central Pay Commission committed fraud on power in making the said benefit available from 1-4-1997 against its own decision to add the entire dearness allowance with pay for calculating the retiral benefits and the gratuity from 1-1-1996.
4. Learned Counsel for the State, on the other hand, submitted that the State has full power of regulating conditions of service including fixation of pay-scale and other benefits of its employees keeping in view the welfare of the masses on one hand and the resources of the State on the other. It is submitted that the State Government and the Central Government are two different employers having different resources and the employees working under the State Government cannot claim parity in all the matters with employees of the Central Government. The grant of benefit of its employees is completely within the exclusive power of the State Government depending upon financial impact and in the instant case, there is sound reason in making change in the cut-off date. The rationale behind the said change is the date of implementation of the revised pay-scale according to the agreement reached between the State Government and the Employees' Association with effect from 1-1-1996 on a notional basis and with effect from 1-4-1997 on actual basis which fact was not given due regard when the matter was originally placed before the Cabinet. As such, the matter was reconsidered and the Cabinet finally rectified it on 29-12-1998 and decided to give effect to it as well as to the enhanced limit of gratuity from 1-4-1997. Moreover, now according to the, recommendation of the Fitment Committee headed by Hon'ble Mr. Justice Sarwar Ali upper limit of gratuity has been further raised to 3.50 lakh with effect from 1-4-1997 and thus, the earlier decisions will have no bearing in the facts and circumstances of the present case. It is.submitted that the agreement on which reliance has been placed by the petitioners, contained in Annexure-15, also clearly shows that the benefit regarding Group Insurance and gratuity was to be given "as per the centre but not that 1-4-1995 was fixed as the effective date for the same.
5. This Court finds substance in the submission of the learned Counsel for the State. The agreement reached between the State Government and the Employees' Association, contained in Annexure-15, inter alia, provide that the payment of 10% of the interim relief shall be given in cash to the employees with effect from 1-4-1995 and the State Government employees are to be given revised pay-scale with effect from 1-1-1996 at par with the Central Government employees but the benefit of revised pension with effect from 1-1-1996 was given to them notionally and actual payment is to be made with effect from 1-4-1997. The benefit of Group Insurance and the gratuity was also made admissible according to centre. Thus, it has rightly been submitted by the learned Counsel for the State that rationale behind the said change is the date of implementation of the revised pay-scale. The State Government, in my opinion, acted reasonably in specifying 1st April, 1997 as the cut-off date in pursuance to the said agreement and this Court does not find any unreasonableness and arbitrariness in fixing the said cut-off date for grant of the aforementioned benefits.
6. Learned Counsel for the petitioners has placed reliance on the Division Bench decision of this Court in the case of Bihar Pensioner Samaj v. The State of Bihar and Anr. 1996(2) PUR 893 filed on behalf of the petitioning Samaj wherein the State Government Resolution revising/rationalising the pension scheme with effect from 1-1-1986 both for the employees retiring prior to and after that date but declining to give any monetary benefit for the period 1-1-1986 to 18-2-1989 was under challenge. In other words, two monetary benefits were made effective from 1-3-1989. This Court did not accept the plea of the State Government that the serving employees although not given the arrears of pay revision but were compensated by the annual increment in pay fixation besides interim relief and also that there was financial constraints. The Court also considered that the State Government had followed the same pattern as fixed by the Government of India in the past and therefore, on the materials brought on record, there was no justification for it to make a departure. Accordingly, the impugned resolution was quashed and the State Government was directed to reconsider the matter in accordance with law and in the light of the observations made therein. It is submitted that the State Government filed S.L.P. (Civil) No. 209 of 1997 against the said judgment which was dismissed by the Apex Court on 20-1-1997, As such, according to the learned Counsel for the petitioners, there is no justification to make departure in the present case also.
7. This Court is unable to accept the said submission. In my opinion, the principle decided by the Division Bench has no application to the facts of this case. The Supreme Court in the case of State of West Bengal' v. Ratan Behari Dey and Ors. , has held that it is open to the State to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits according to the Apex Court constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales and terminal benefits/ pensionary benefits and the power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e. without bringing about a discrimination between similarly situated persons, no "interference is called for by the Court in that behalf.
8. In the instant case, it is true that the State Government initially decided on the basis of interim report to grant the said benefits with effect from 1-4-1995 but later realising that the decision was not in consonance with the agreement changed the date of implementation to 1-4-1997 instead of 1-4-1995. There is no question of taking away any vested right. In fact earlier decision contained in Annexure-3 was never implemented by issuing Government Resolution/Notification and before its implementation the State Government by its subsequent decision dated 29-12-1998 rectified the error committed earlier. There cannot be any doubt that every authority has full power to rectify its mistake specially in consonance with the provision contained in Articles 14 and 16 of the Constitution before its implementation. More over, the State Government also appointed the Fitment Committee headed by the retired Judge of this Court, Mr, Justice Sarwar Ali, for revision of pension, family pension, gratuity and commutation of pension and on the recommendation of the Fitment Committee finally passed the Resolution contained in Annexure-11 fixing 1-4-1997 as the cut-off date. Thus, this Court finds it difficult to hold that the Government acted unreasonably in specifying the said date. The Apex Court in the case of State of West Bengal has held that the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. In the present case, the prescription of the date, in my opinion, is neither arbitrary nor unreasonable.
9. This Court does not find any substance in the submission of the learned Counsel for the petitioners that the State Government having taken decision in principle on the basis of the interim report of the Central Pay Commission committed fraud on power in making the said date 1-4-1997 against its own decision to add dearness allowance with pay for calculating retiral benefits and the gratuity from 1-1-1996. The earlier Cabinet decision was taken on 13-1-1998 which was not in consonance with the terms of the agreement dated 21-1-1997, contained in Annexure-15, by which the fixation of pay has notionally been done with effect from 1-1-1996 and actual payment has to be made with effect from 1-4-1997. The State Government employees were only allowed payment of 10% by way of interim relief with effect from 1-4-1995 from which it is quite obvious that the effective date for notional fixation is '1-1-1996' and for actual implementation '1-4-1997' which has uniformally been applied in the case of all existing employees as well as retired employees and thus, there is no question of discrimination in the matter of implementation of recommendation of the 5th Central Pay Commission and the same cannot be held to be arbitrary and unreasonable.
10. Accordingly, this Court does not find any merit in this writ petition and the same is dismissed but without cost.