Himachal Pradesh High Court
K.P. Nayar vs State Of H.P. And Another on 27 August, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No. 7945 of 2019 .
Reserved On: 27th August, 2020.
Decided on : 1st Setember, 2020.
K.P. Nayar ...Petitioner Versus State of H.P. and another ...Respondents ___________________________________________ Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting? yes ________________________________________________ For the petitioner : Mr. Mohit Thakur, Advocate.
For the respondents: Mr. Hemanshu Mishra, Addl. A.G. with Mr. Narender Thakur, Dy.
A.G., for the respondents.
Sureshwar Thakur, Judge Through the instant writ petition, the writ petitioner, seeks, rendition(s), of, the hereinafter extracted directions, upon, the respondents:
(a) That the respondents may be direted to grant revised and due admissible pension to the Applicant with effect from 01.01.2006 after taking into consideration the qualifying service of 20 years instead of 33 years in ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 2 terms of the recommendation of sixth pay commission at the rate of fifty percent of the minimum of the pay in the pay band plus grade pay corresponding to the pre-
revised pay scale from which the pensioner Applicant .
has retired at the time of retirement and further not toeffect any pro-rata reduction in basic pension with effect from 01.01.2006.
(b) That the respondents may be directed to fix the Pension of the Applicant (including Family Pension) correctly with effect from 01.01.2006 and also grant full arrears from the said date with all consequentialbenefits
(c) That any rule, notification, office memorandum which in any manner curtails the right of the Applicant to receive revised pension as per Prayer clause (a) may be set aside and quashed and the respondent state may be directed to affirm their rules and regulations in accordance with the principles enunciated in the judgment Annexure A-1.
(d) Any other relief may also kindly be passed in favour of lthe Applicant as is deemed fit and proper in the peculiar facts and circumstances of the case.
2. The petitioner became superannuated from service in the year 1983, after, rendering 26 years, of, service. The learned counsel appearing for the petitioner, allude to Annexure R-1I, Annexure whereof, is, an office memorandum, of, 14.10.2009, and, more specifically, he 2 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 3 draws the attention of this Court, to, Clause 4.2 thereof, clause whereof, is, extracted hereinafter:
"The fixation of pension will be subject to the .
provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. The pension will be reduced pro-rata, where of the pensioner had less than the maximum required service full pension as per rule 49 of CCS (Pension) Rules, 1972 as applicable on 1.1.2006 and in no case it will be less than Rs.
3500 p.m. Similarly, the fixation of family pension, in no case, shall be lower than thirty percent of the minimum of the pay band plus grade pay corresponding to the pre-revised pay scale in which the pensioner/deceased Govt. servant had last worked. In case the pension/family pension consolidated as per para 4.1 above is higher than the pension/family pension calculated in the manner indicated above the same (higher 3 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 4 consolidated pension/family pension) will be treated as Basic Pension/family pension.
3. Though, therein exists a mandate for apposite pro-
.
rata deductions, being made vis-à-vis, those pensioner/pensioners, who render less than the maximum contemplated 33 years', of, qualifying service, however, thereafter, he proceeds to make a submission, that, the afore mandate, becomes diluted, vis-à-vis, its vigor, through clause 5.2, embodied in the office memorandum, made on 14.10.2009, clause whereof, rather snaps linkage(s) for entitlement(s), of, full pensions, to, all the pensioner/pensioners, and, appertaining to imperative rendition(s), of, 33 years, of, qualifying service by each/all. Furtherthereonwards, in clause, 5.4, existing, in the afore office memorandum, clause whereof is extracted hereinafter:
"5.4 The revised provisions for calculation of pension in para 5.2 and para 5.3 above shall come into force with effect from 2nd September, 2008 and shall be applicable to Government servants retiring on or after that date. The Government servants who have retired 4 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 5 onor after 01.01.2006 but before 2nd September, 2008, will continue to be governed by the Rules/orders which were in force immediately prior to 2nd September 2008, .
for purposes of calculating pension in terms of paras 5.2 and 5.3 above;
Rather contemplations occur, vis-à-vis the therethrough bestowment(s) made, upon, pensioner(s), dehors theirs' completing 33 years, of, qualifying serviced, being limited only to, post 1.1.2006 retirees besides upon apposite superannuations, occurring upto 2.9.2008. He, thereafter, also alludes to like therewith Annexure(s) respectively, borne in Annexure A-3, in Annexure A-4, and, in office memorandum, of, 28.5.2020,
4. The learned counsel appearing, for, the petitioner, submits that the class of pensioners, is, a composite class and no further classes or categories, are amenable, for, creation(s) therewithin(s), especially for the purpose, of, meteing pensionary benefits, to them, moreso, on prescription(s), of, arbitrary cut off dates, for, the relevant purpose. He also proceeds to make a submission, that, the creation, of, class(es), within, the composite class, of, 5 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 6 pensioner, for, full bestowment(s), of, full pensionary benefits, through fixation(s), of, an arbitrary cut off date, rather made hence through, the, afore alluded Annexures, .
more specifically through clause 5.4, embodied in Anneure R-II, inasmuch as its being made applicable, only, to pre 2006 retirees not to pre 2006, retirees, besides hence conferring through fixation, of, the afore untenable cut off date(s), untenable bestowment, only upon post 2006 retirees (i) concomitantly, thereupon, the afore classification, becomes not founded, upon, any intelligible differentia, and, also, it not holding any rational nexus, with, the object(s), if any, strived to be achieved, nor, any rational object, is, gaugable therefrom. Secondly, he submits that the petitioner, alongwith each pre-2006 retirees, be also bestowed all the fullest benefits, of, enhancement(s) in pension, as recommended by 6th pay commission, hence at par with post 2006 retirees, and, without any purported pro-rata reductions, or on the purported angle of his/their, not, completing 33 years, of, qualifying service, as, the afore linkage becomes snapped, and, is to be applied uniformly, vis-à-vis, each pensioner, 6 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 7 hence falling within the in-segregable homogeneous class, of, pensioners.
5. The afore argument, is, meritworthy, and, warrants .
its becoming vindicated by this Court, as clause 5.2, of, Annexure R-III, Annexure whereof, is, extracted hereinafter:
"5.2 Linkage of full pension with 33 years of qualifying service shall be dispensed with. Once a Government servant has rendered the minimum qualifying service of twenty years, pension shallbe paid at 50% of the emoluments or average emoluments received during the last 10 months, whichever is more beneficial to him."
though does, dispense with the necessity, of, rendition, of, 33 years, of qualifying service, for hence, a retiree, becoming entitled to full pensionary benefits. However, subsequent thereto, made prescriptions vis-à-vis, the pensioner(s)/retiree(s), completing minimum qualifying service, of, 20 years, qua his/their becoming entitled, to, 50%, of, the emoluments, or average emoluments, received during the last 10 months, whichever, is, more beneficial 7 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 8 to them, also become fully delinked, for, the requisite purpose. Further, in clause, 5.4 of Annexure R-III, some classification(s) or category(ies), become created rather .
within the composite class(s), of, pensioner(s), ininasmuch, as, only post 2006 retirees, become conferred with, the, apposite full pensionary entitlements, merely upon a perse legally flawed, hence breaches, vis-à-
vis, the mandate of equality, and, of, non-arbitrariness, (a) besides, of non-discriminatoriness , rather encapsulated in Articles 14 and 16, of, the Constitution of India, (b)as necessarily the afore prescription, of cut off date(s), and, wherethrough the apposite untenable segregation, is, made, vis-à-vis, the homogenous class of pensioners, falls outside, the, holistic/virtuous ambits, and, domains thereof.
6. The respondents would become entitled, to, vindicate, the afore segregation(s) or creation of classes or categories, within the homogeneous class of pensioners, as made, on anvil, of, the afore alluded cut off date, (i) upon apposite material, surging forth, and, its making display(s) vis-à-vis, despite linkage(s), appertaining to the 8 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 9 entitlement, of, full pensions, to the pensioner/pensioners, arising from his/theirs completing, the, hitherto 33 years, of, qualifying service, becoming hence, snapped. (ii) yet, .
further enhancement(s), appertaining to years of qualifying service being enhanced from the hitherto 33 years, of, qualifying service, for the relevant purpose. However, though clause 5.2 of Annexure A-2, de-links the necessity, of, rendition, of, 33 years, of, qualifying service, it yet does not enhance, the afore earlier thereto imperative period of rendition, of, qualifying service, by pensioners, rather it reduces the period, of, rendition, of, qualifying service, from hitherto 33 years, to 20 years, and yet it also prescribes, a, cut off date, in notes, 1 and 2, of, clause 5.4, rather for applications, of, benefits thereof, notes whereof are extracted hereinafter:
" (i) The provision for payment of pension at 50% of the emoluments (pay last drawn) or 50% of average emoluments received during the last 10 months, whichever is more beneficial to the retiring employee, shall be applicable to all Government servants retiring on or after 1.1.2006. However, only those 9 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 10 Government servangts, who retired during 1.1.2006 to 1.9.2008 after completion of 33 years of qualifying service, will be eligible for full pension and the .
pension of those Government servants, who retired during 1.1.2006 to 1.9.2008 with qualifying service of less than 33 years, will continue to be proportionate to the full pension based on their actual qualifying service.
(ii) The pension of a post 1.1.2006 pensioner shall not be lower than fifty percent of the minimum of the pay band plus the grade pay from which the pensioner has retired. For example, if a pensioner has retired in the grade pay of Rs. 10,000/- p.m. in the pay band of Rs. 37,400-67000, his minimum guaranteed pension would be 50% of Rs. 37,400_Rs.
10,000 (i.e. Rs. 23,700). For those who have retired between 1.1.2006 and 2.9.2008 the pension will be reduced pro-rata, where the pensioner had less than the maximum required service for full pension as per rule 49 of CCS (Pension) Rules 1972 as applicable during that period and in no case, it will be less than 10 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 11 Rs. 3500 p.m. In case the pension calculated in accordance with Rule 49 of CCS (Pension) Rules 1972, as, applicable before 2.9.2008, is higher than .
the pension calculated in the manner indicated above, the same (higher pension) will be treated as Basic Pension."
inasmuch as, only post 2006 retirees, and not pre 2006 retirees, becoming conferred with the apposite benefits, (i) conspicuously in, making, enhancements in the earlier thereto rendition(s), of, maximum period, of, qualifying service, inasmuch as from 33 years, to, years' above 33 years, would hence qua those, completing more than 33 years, of, service, hence, foster a valid inference qua a constitutionally valid rational separate class, becoming created from them, (ii) and, also the class of, pensioners, hence completing, less than 33 years, or upto 33 years of, service, being validly segregated, from, the earlier class, as, higher or enhanced length of qualifying service, does vis-à-
vis, those rendering lesser years of service, hence, cause(s) higher amount(s) of tax, flowing into the exchequer, and, concomitantly, upon retirement(s), of, the above validly 11 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 12 created class, of, retirees/pensioners, they would be justifiably, and, vindicably, become entitled, for, monetary recompense(s), for hence theirs becoming taxed, during, .
their prolonged years, of service, than those, who had rendered service, hence, below, the apposite enhanced years of service, from the hitherto 33 years, of, service, (b) the long devoted/dedicated years, of, service, beyond 33 years, and, lesser thereto years' of service, hence performed by other pensioners would, vis-à-vis, each hence become construable to be a validly segregable class, of, pensioners. (c) Moreover, all the afore constituted class(es), would become founded rather, upon, a valid intelligible differentia, interse those pensioners, performing higher length, of, service, and, those performing, a, lesser length of service, (d) besides hence, the meteing(s), of, higher pensionary benefits, qua them would be valid, and, also there would be an obvious nexus, with, the obvious object, of, rendition, of, committed efficient length of service, by, an employee, hence making him entitled to higher pensionary benefits, than those, who render lesser years' of apposite qualifying service. However, despite the 12 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP 13 apposite linkage,becoming snapped through clause 5.4, of, Annexure R-II, yet the benefits, of full pensionary benefits, has been ill-founded, upon, an invalid segregation, .
created, within the composite class of pensioners, merely, upon, an arbitrarily fixed cut off date, inasmuch as pre 2006 retirees, becoming denied benefits thereof.
Thereupon, there is evident breach, of, the mandate of Articles 14 and 16 of the Consitution of India, and, thereupon the afore alluded segregation, rather becomes discountenanced, and, also, is, concomitantly quashed, and, set aside .
7. Consequently, there is merit in the petition, and, the same is allowed, and all the directions, as prayed, are rendered, upon, the respondents.
(Sureshwar Thakur) Judge (Chander Bhusan Barowalia) Judge 1st September, 2020 Kalpana 13 ::: Downloaded on - 01/09/2020 20:18:10 :::HCHP