Himachal Pradesh High Court
State Of Himachal Pradesh & Others vs Tara Dutt Sharma (Deceased ) on 21 December, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No.139 of 2022 alongwith LPA Nos. 75 and 93 of 2022 .
Reserved on 1st December, 2022 Decided on: 21st December, 2022 _____________________________________________________ LPA No.139 of 2022 State of Himachal Pradesh & others .....Appellants Versus Tara Dutt Sharma (deceased ) through his LRs & others .....Respondents ______________________________________________________ LPA No.75 of 2022 State of Himachal Pradesh & others .....Appellants Versus B.C. Gupta .....Respondent ______________________________________________________ LPA No.93 of 2022 State of Himachal Pradesh & others .....Appellants Versus Ashok Kumar .....Respondent ______________________________________________________ ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 2 Coram Hon'ble Mrs. Justice Sabina, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge .
1Whether approved for reporting? Yes _____________________________________________________ For the appellants: Mr. Ashok Sharma, Advocate General with Mr. Ashwani Sharma, Additional Advocate General, in all the appeals.
For the respondents: Mr. B. Nandan Vasishta, Advocate, for respondents No.1 to 6 in LPA No.139 of 2022.
Mr. Rajnish Maniktala, Senior Advocate with Mr. Naresh K. Verma, Advocate, r for the respondent in LPA No.75 of 2022.
Mr. S.S. Sood, Advocate, for the respondent in LPA No.93 of 2022.
Sushil Kukreja, Judge Vide this judgment, the above mentioned three appeals would be disposed of as the issue involved in all these cases is the same.
2. The instant appeals have been filed by the appellants-
State, assailing the impugned common order dated 15.07.2021, passed by the learned Single Judge in the petitions (CWPOA Nos.6391, 6220 & 7876 of 2019) filed by the respondents-petitioners, thereby while allowing the petitions, it was ordered that the revised 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 21/12/2022 20:33:59 :::CIS 3pension in terms of Office Memorandum dated 21st May, 2013, shall be payable to the respondents-petitioners w.e.f. 01.01.2006 alongwith .
arrears. For avoiding repetition of facts, the pleadings raised in CWPOA No.6391 of 2019 shall be taken up for discussion.
3. According to the respondents-petitioners, after attaining the age of superannuation, they retired from the Government service prior to 01.01.2006 and their pre-revised pay scales were revised vide Resolution dated 29th August, 2008. The Central Government accepted the recommendations of 6th Pay Commission, whereby the pension was required to be 50% of the average emoluments received during the past 10 months or the last pay drawn, whichever was more beneficial to the retiring employee and the revised pension structure was to become effective from 01.01.2006 and 40% of the arrears were to be paid in cash for the years 2006-09 and the remaining 60% in the years 2009-10. The recommendation No.2, accepted by the Government, was as follows:-
"2. Linkage of full pension with 33 years of qualifying service should be dispensed with. Once an employee renders the minimum pensionable service of 20 years, pension should be paid at 50% of the average emoluments received during the past 10 months or the pay last drawn, whichever is more beneficial to the retiring employee. Simultaneously, the extant benefit ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 4 of adding years of qualifying service for purposes of computing pension/related benefits should be withdrawn as it would no longer be relevant. (5.1.33)"
.
4. Vide Office Memorandum dated 01.09.2008, the sanction of the President was accorded qua revision of pension of pre-2006 pensioners and Clause-1 and Clause-4.2 of the said Office Memorandum read as under:
pursuance r of "1. The undersigned is directed to say that in Government's decision recommendations of Sixth Central Pay Commission, on the sanction of the President is hereby accorded to the regulation, with effect from 1.1.2006, of pension/ family pension of all the pre-2006 pensioners/family pensioners in the manner indicated in the succeeding paragraphs. Separate orders will be issued in respect of employees who retired/died on or after 1.1.2006.
.... .... ....
4.2 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 in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pension had retired. In the case of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale."::: Downloaded on - 21/12/2022 20:33:59 :::CIS 5
5. Vide Office Memorandum dated 14th October, 2009, the Government of Himachal Pradesh accorded sanction to the .
Regulation w.e.f. 01.01.2006 of pension/family pension of all the pre-
2006 pensioners/family pensioners and Clause 4.2 of the Office Memorandum provided that the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than 50% of the minimum of the Pay Band plus the Grade pay, corresponding to the pre-revised pay scale from which the pensioner had retired. Thereafter, vide Office Memorandum dated 21st May, 2013 on the subject 'Revision of pension of pre-2006 pensioners-
reg.', the Finance (Pension) Department of the Government of Himachal Pradesh, ordered that in pursuance to instructions contained in Office Memorandum dated 14th October, 2009, the Governor of Himachal Pradesh was pleased to order that pension of pre-2006 pensioners, as revised w.e.f. 01.01.2006, in terms of Para 4.1 or Para 4.2 of the aforesaid OM, would be further stepped up to 50% of the sum of minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired, as arrived at with reference to fitment tables attached with H.P. Civil Services (Revised Pay) Rules, 2009, notified on 26.08.2009. This was followed by issuance of Communication dated ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 6 31st July, 2013 in case of the petitioner in CWPOA No.6391 of 2019, in terms whereof, the family pension of the respondents-petitioners .
was revised, but w.e.f. 01.04.2013.
6. The grievance of the respondents-petitioners, thus, is that vide Office Memorandum dated 21.05.2013, their pension in accordance with Office Memorandum dated 14th October, 2009 is required to be fixed at 50% of the emoluments w.e.f. 01.01.2006 and not w.e.f. 01.04.2013, as has been done by the respondents-State.
Hence, these petitions were filed praying therein that the respondents-State be directed to revise the pension of the respondents-petitioners w.e.f. 01.01.2006 instead of 01.04.2013 and arrears be paid to them for the period between 01.01.2006 to 31.03.2013.
7. The respondents-State filed reply, wherein it has been averred that the State Government has absolute powers to make its own service rules for its employees and pensioners under proviso to Article 309 of the Constitution of India and the pension to the State Government employees is the subject matter of the State Government and the State Government had decided to adopt the Central Civil Services (Pension) Rules, 1972 for its employees and pensioners, however, subsequent amendments made under CCS ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 7 (Pension) Rules, 1972 by the Government of India are within the power of State Government to amend, modify and adopt these rules .
in accordance with the suitability and feasibility of the same with respect to the State of Himachal Pradesh. The State Government does not follow the recommendations of the Central Pay Commission, therefore, the Government of India instructions/orders issued as per the recommendations of Central Pay Commission are not applicable to the State Government servants. The State Government had taken a conscious decision for regulation of pension/family pension of pre-
2006 pensioners/family pensioners and for this purpose issued own instructions for revision of pension/family pension of pre-2006 pensioners/family pensioners vide Office Memorandum dated 14.10.2009 after considering all the aspects. The State Government in the year 2013-14 had taken its own decision to step up the pension and family pension of pre-2006 pensioners to 50% and 30% respectively to the sum of the pay of minimum of pay in the Pay Band plus Grade Pay corresponding to pre revised pay scale from which the Government servant had retired/died and accordingly the State Government had issued instructions vide Office Memorandum dated 21.05.2013, making provision for further stepping up of pension and family pension of pre-2006 pensioners upto 50% and 30% ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 8 respectively of the sum of minimum of pay in the pay band and grade pay corresponding to the pre revised pay scale from which the .
pensioner had retired. The Government of India had issued its own instructions for revision of pension of pre-2006 pensioners from time to time. The State Government neither follows the recommendations of the Central Pay Commission nor any instructions issued by the Government of India based on the report of the Central Pay Commission. Hence, instructions dated 01.09.2008 and further clarification issued on 03.10.2008 and Office Memorandum of even number dated 14.10.2008, which were subject matter of the dispute in CAT and High Court of Punjab and Haryana are not applicable to the State of Himachal Pradesh as all these orders are based on the recommendations of the 6th pay commission. It has also been stated that all the pensioners/family pensioners have already been getting the benefits of enhanced pension/family pension w.e.f. 01.04.2013 without any discrimination. Office Memorandum dated 14.10.2009 clearly stipulates that these orders apply to all the pensioners/family pensioners, who were drawing pension/family pension on 01.01.2006 under the CCS (Pension) Rules, 1972. The State Government has not adopted the Government of India instructions contained in Office Memorandum dated 01.09.2008 and other related instructions in any ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 9 manner. It has also been submitted that the Government of Himachal Pradesh vide Office Memorandum dated 21.05.2013 has already .
allowed revised benefit w.e.f. 01.04.2013 despite financial constraints and it is well within the State Government jurisdiction to allow financial benefit from a specific cut off date keeping in view the financial position of the State. It has also been submitted that if the prayer of the respondents-petitioners was to be accepted for allowing financial benefits from 01.01.2006, an estimated liability of Rs.350/- Crore (arrears) will fall on the State exchequer which would be a huge burden on State finances.
8. We have heard the learned Advocate General for the appellants-State as well as the learned counsel for the respondents-
petitioners and also gone through the record of the case carefully.
9. The learned Advocate General contended that the State Government has absolute powers to make its own service rules for its employees and pensioners under proviso to Article 309 of the Constitution of India and the State Government neither follows the recommendations of the Central Pay Commission nor any instructions issued by the Government of India based on the report of the Central Pay Commission. He further contended that it is well within the State Government jurisdiction to allow the financial benefits from a specific ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 10 cut off date keeping in view of the financial position of the State as for allowing the financial benefits w.e.f. 01.01.2006, additional financial .
burden will fall upon the State exchequer, which would be a huge burden on the State finances.
10. On the other hand, learned counsel for the respondents-
petitioners contended that Office Memorandum dated 21.05.2013 is arbitrary and discriminatory and the cut off date cannot be fixed by the State in an arbitrary manner. They further contended that the Government of Himachal Pradesh is following the recommendations of 6th Pay Commission and the instructions issued by the Government of India from time to time for fixing/revising pay/pension of the State Government employees/pensioners and after the Government of India order dated 30.07.2015, which was issued in compliance with the final verdict of the Hon'ble Supreme Court of India in Special Leave Petition(s) No.23055/13 and 36148-50/2013, the State Government was required to issue the revised orders for revision of pension of pre-2006 pensioners w.e.f. 01.01.2006 instead of 01.04.2013. In support of their contentions, learned counsel for the respondents-petitioners also placed reliance upon U.P. Raghavendra Acharya & others vs. State of Karnataka & others, (2006) 9 SCC 630, Pepsu RTC Vs. Mangal Singh & others (2011) 11 SCC 702, ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 11 State of Rajasthan & others Versus Mahendra Nath Sharma, (2015) 9 SCC 540 and K.S. Puttaswamy (retired) and another Vs. .
Union of India and another, (2019) 1 SCC 1.
11. In U.P. Raghavendra Acharya & others vs. State of Karnataka & others, (2006) 9 SCC 630, the Hon'ble Apex Court held that pension is not a bounty and it is treated to be a deferred salary.
The relevant portion of the judgement reads as under:-
"25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement.
xxx xxx xxx
32. In Subrata Sen and Ors. vs. Union of India and Ors., a Division Bench of this Court applying the principles laid down in D.S. Nakara vs. Union of India, observed:
"14. In our view the aforesaid para does not in any way support the contention of the respondents. On the contrary, on parity of reasoning, we would also reiterate that let us be clear about this misconception. Firstly, the Pension Scheme including the liberalised scheme available to the employees is non-contributory in character. Payment of pension does not depend upon Pension Fund. It is the liability undertaken by the Company ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 12 under the Rules and whenever becomes due and payable, is to be paid. As observed in Nakara case (1983 (1) SCC 305), pension is neither a bounty, .
nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch. Maybe that in the present case, the trust for Pension Fund is created for income tax purposes or for smooth payment of pension, but that would not affect the liability of the employer to pay monthly pension calculated as per the Rules on retirement from service and this retirement benefit is not based on availability of Pension Fund. There is no question of pensioners dividing the Pension Fund or affecting the pro rata share on addition of new members to the Scheme. As per Rule 1 quoted above, an employee would become a member of the Fund as soon as he enters into a specified category of service of the Company. Under Rule 8, trustees may withhold or discontinue a pension or annuity or any part thereof payable to a member or his dependants, and that pension amount is non- assignable. Further, the payment of pension was the liability of the employer as per the Rules and ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 13 that liability is required to be discharged by the Union of India in lieu of its taking over of the Company. The rights of the employees (including .
retired) are protected under Section 11 of the Burmah Oil Company [Acquisition of Shares of Oil India Limited and of the Undertakings in India of Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited] Act, 1981."
12. In Pepsu Road Transport Corporation Vs. Mangal Singh & others (2011) 11 SCC 702, the Hon'ble Apex Court observed that although pension is not a bounty but is claimable as a matter of right, yet the right is not absolute or unconditional. The relevant para of the judgement reads as under:-
"34. Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of the past services rendered by him. We hasten to add that although pension is not a bounty but is claimable as a matter of right, yet the right is not absolute or unconditional. The person claiming pension must establish his entitlement to such pension in law. The entitlement might be dependent upon various considerations or conditions. In a given case, the retired employee is entitled to pension or not depend on the provisions and interpretation of Rules and Regulations. The Contributory Provident Fund appears to be simple mechanism where an employee is paid the ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 14 total amount which he has contributed along with the equal contribution made by the employer ordinarily at the time of retirement of an employee. In short, we .
quote what was repeatedly said by this Court that "pension is payable periodically as long as the pensioner is alive whereas C.P.F. is paid only once on retirement". Therefore, conceptually, pension and C.P.F. are separate and distinct."
13. In State of Rajasthan & others Versus Mahendra Nath Sharma, (2015) 9 SCC 540, the Hon'ble Apex Court held that pension is not a bounty and the benefit of pension is conferred upon an employee for his unblemished career. The relevant portion of the judgement reads as under:-
"28. It is a well known principle that pension is not a bounty. The benefit is conferred upon an employee for his unblemished career. In D.S. Nakara v. Union of India, D.A. Desai, J. speaking for the Bench opined that:-
"18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 15 employment has come to an end and the employee has ceased to render service?
19. What is a pension? What are the goals of .
pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20. The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v.
State of Bihar wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 16 the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh."
.
We may hasten to add that though the said decision has been explained and diluted on certain other aspects, but the paragraphs which we have reproduced as a concept holds the filed as it is a fundamental concept in service jurisprudence. It will be appropriate and apposite on the part of the employers to remember the same and ingeminate it time and again so that unnecessary litigation do not travel to the Court and the employers show a definite and correct attitude towards employees. We are compelled to say so as we find that the intention of the State Government from paragraph 5 of the circular/ memorandum has been litigated at various stages to deny the benefits to the respondents. It is the duty of the State Government to avoid unwarranted litigations and not to encourage any litigation for the sake of litigation."
14. In K.S. Puttaswamy (retired) and another Vs. Union of India and another, (2019) 1 SCC 1, the Hon'ble Apex Court has held that the pension is not a largesse or bounty conferred by the State.
The relevant para of the judgment reads as under:-
"1371. Pension, it is well settled, is not a largesse or bounty conferred by the state. Pension, as a condition of service, attaches as a recompense for the long years of service rendered by an individual to the state and its ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 17 instrumentalities. Pensioners grow older with passing age. Many of them suffer from the tribulations of old age including the loss of biometrics. It is unfair and arbitrary .
on the part of the state to deny pension to a person entitled to it by linking pensionary payments to the possession of an Aadhaar number or to its authentication. A right cannot be denied on the anvil of requiring one and only one means of identification. The pension disbursing authority is entitled to lay down regulations (which are generally speaking, already in place) to ensure the disbursal of pension to the person who is rightfully entitled. This aim of the government can be fulfilled by other less intrusive measures. The requirement of insisting on an Aadhaar number for the payment of pensionary benefits involves a breach of the principle of proportionality. Such a requirement would clearly be contrary to the mandate of Article 14."
15. Therefore, in view of the case law cited by the learned counsel for the respondents-petitioners, it is clear that the pension is not a bounty and is claimable as a matter of right. However, the ratio laid down in case law cited by the learned counsel for the respondents-petitioners cannot be made applicable to the facts of this case as the facts in the case in hand, are all together different. In the instant case, the grievance of the respondents-petitioners, is that their pension is required to be revised w.e.f. 01.01.2006 instead of ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 18 01.04.2013 and arrears have to be paid to them for the period between 01.01.2006 to 31.03.2013. Conversely, the stand of the .
appellants/State is that the decision taken by the State Government to grant revised pension to pre-2006 pensioners by conferring upon them the actual benefits of revised pension w.e.f. 01.04.2013 was a policy decision keeping in view the financial position of the State because if the financial benefits are allowed w.e.f. 01.01.2006, additional financial burden will fall upon the State exchequer.
16. It is not in dispute that the State of Himachal Pradesh had decided to adopt the Central Civil Services (Pension) Rules, 1972, vide Notification dated 30.04.1974 for its employees and pensioners.
It is also not in dispute that the provisions of CCS (Pension) Rules, 1972 as amended and modified by the Government of India from time to time, are applicable to the State Government employees, subject to adoption and modifications, if any, made by the State Government in the rules under proviso to Article 309 of the Constitution of India.
The contention of the learned counsel for the respondents-petitioners that after the Government of India order dated 30.07.2015, which was issued in compliance with the final verdict of the Hon'ble Supreme Court of India in Special Leave Petition(s) No.23055/13 and 36148- 50/2013, the State Government was required to issue the revised ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 19 orders for revision of pension of pre-2006 pensioners w.e.f.
01.01.2006 instead of 01.04.2013 deserves to be rejected as each .
State has its own individualistic way of governance under the Constitution and one State is not bound to follow the rules and regulations applicable to the employees of the other State or Central Government. In State of H.P. Versus P.D. Attri and others, (1999) 3 Supreme Court Cases 217, the Hon'ble Apex Court held as under:-
"5. ..........India is a union of States. Each State has its own individualistic way of governance under the Constitution. One State is not bound to follow the rules and regulations applicable to the employees of the other State or if it had adopted the same rules and regulations, it is not bound to follow every change brought in the rules and regulations in the other State. The question then arises before us is if the State of Himachal Pradesh has to follow every change brought in the States of Punjab & Haryana in regard to the rules and regulations applicable to the employees in the States of Punjab & Haryana. The answer has to be in the negative......"
17. In Secretary Mahatama Gandhi Mission and another vs. Bhartiya Kamgar Sena and others, (2017) 4 SCC 449, it was held by the Hon'ble Apex Court that even the recommendations of pay commission are not binding on the Government of India. They are ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 20 meant for administrative guidance. The Government of India may reject or accept the recommendations either fully or partly. The .
relevant para of the judgment reads as under:-
"60. The Sixth Pay Commission appointed by the Government of India is only a body entrusted with the job of making an assessment of the need to revise the pay structure of the employees of the Government of India and to suggest appropriate measures for revision of the pay structure. The recommendations of the pay commission are not binding on the Government of India, much less any other body. They are only meant for administrative guidance of the Government of India. The Government of India may accept or reject the recommendations either fully or partly, though it has never happened that the recommendations of the pay commission are completely rejected by the Government so far."
18. Thus, even the recommendations of the Central Pay Commission are not binding on the Government of India and even if Government of India accepts the recommendations of Pay Commission, then also it has no authority to compel the States to adopt structure applicable to Government of India. The State Government is well within its jurisdiction in not following the recommendations of the Central Pay Commission and the ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 21 instructions/ orders issued by the Government of India with respect to the regulation of pension/family pension. For regulation of pension/ .
family pension of pre-2006 pensioners/family pensioners, the Government of Himachal Pradesh had issued its own instructions for revision of pension/family pension of pre-2006 pensioners/family pensioners, vide Office Memorandum dated 14.10.2009, the relevant portion of which reads as under:-
"The undersigned is directed to say that Governor, Himachal Pradesh is pleased to accord sanction to the regulation, with effect from 01.01.2006, of pension/ family pension of all the pre-2006 pensioners/family pensioners in the manner indicated in the succeeding paragraphs. Separate orders will be issued in respect of employees who retired/died on or after 01.01.2006. xxxx xxxx xxxx 4.1 The pension / family pension of existing pre-2006 pensioners/family pensioners will be consolidated with effect from 01.01.2006 by adding together:-
(i) The existing pension/family pension
(ii) Dearness Pension, where applicable
(iii) Dearness Relief upto AICPI ( IW ) average index 536 (Base Year 1982=100) i.e. @ 24% of Basic Pension/ Basic family pension plus dearness pension as admissible vide this department O.M. No. Fin(Pen)B(10)-
6/98-I dated 23.6.2006.
::: Downloaded on - 21/12/2022 20:33:59 :::CIS 22(iv) Fitment weightage @40% of the existing pension/ family pension.
Where the existing pension in (i) above includes the .
effect of merger of 50% of dearness relief w.e.f. 01.04.2004, the existing pension for the purpose of fitment weightage will be re-calculated after excluding the merged dearness relief of 50% from the pension. The amount so arrived at will be regarded as consolidated pension/family pension with effect from 01.01.2006.
4.2 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 the pensioner had less than the maximum required service for full pension as per rule 49 of CCS (Pension) Rules,1972 as applicable on 1.1.06 and in no case it will be less than Rs.3500 p.m. Similarly, the fixation of family pension will be subject to the provision that the revised 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 ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 23 (higher consolidated pension/family pension) will be treated as Basic Pension/family pension."
.
19. However, in the year 2013-14, pension and family pension of pre-2006 pensioners was stepped up to 50% and 30% respectively to the sum of the pay of minimum of pay in the Pay Band plus Grade Pay corresponding to pre revised pay scale from which the Government servant had retired/died and the State Government had accordingly issued notification dated 21.05.2013 and these instructions were made effective w.e.f. 01.04.2013. The relevant portions of which read as under:-
"The undersigned is directed to say that in continuation to instructions contained in this Departments' Office Memorandum No.Fin (Pen) A(3)- 1/09-Part-II dated 14th October,2009 the Governor, Himachal Pradesh, is pleased to order that the pension of pre-2006 pensioners as revised w.e.f.1.1.2006 in terms of para 4.1 or para 4.2 of the aforesaid OM dated 14.10.2009, would be further stepped up to 50% of the sum of minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired, as arrived at with reference to the fitment tables attached to H.P.Civil Services (Revised Pay)Rules, 2009 notified vide No. Fin- (PR)B(7)-1/2009 dated 26.08.2009.::: Downloaded on - 21/12/2022 20:33:59 :::CIS 24
2. The normal family pension in respect of pre-2006 pensioners/family pensioners as revised w.e.f. 1.1.2006 in terms of para 4.1 or para 4.2 of the aforesaid OM .
dated 14.10.2009 would also be further stepped up to 30% of the sum of minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale in which the Government servant had retired, as arrived at with reference to the fitment tables attached to H.P.Civil Services (Revised Pay) Rules, 2009 notified vide No. Fin-(PR) B (7)-1/2009 dated 26.08.2009.
xxxx xxxx
r xxxx
8. These orders will take effect from 1.04.2013. There will be no change in the amount of revised pension/family pension paid during the period 1.1.2006 and 31.3.2013 and, therefore, no arrears will be payable on account of these orders for that period."
20. Thus, vide the aforesaid Office Memorandum dated 21.05.2013, the State Government has fixed cut off date with respect to the revised pension of pre-2006 pensioners as 01.04.2013 instead of 01.01.2006. Now, the question which arises for consideration before this Court is as to whether the financial constraints could be a valid ground for introducing a cut off date while implementing a pension scheme on a revised basis. There are long line of cases, where the validity of fixation of cut off date has been considered by ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 25 the Honble Apex Court keeping in view the financial implications of the State while providing benefits for its employees/pensioners. In .
State of Rajasthan and another Versus Amrit Lal Gandhi and others, (1997) 2 Supreme Court Cases 342, the Hon'ble Apex Court observed that whenever a revision takes place, a cut off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government. The relevant para of the judgment reads as under:-
"15. In P.N. Menon case the question again arose with regard to fixing of cut-off date for payment of gratuity and pension. In that case the cut-of date, which was fixed, was 30.9.1977. While allowing the appeals and repelling the challenge to the fixation of the said date, it was observed at pages 73-74 as under:
"Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post- retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 26 held to be invalid. It shall not amount to "picking out a date from the hat, as was said by this Court in the case of D.R. Nim "V. Union of India in connection .
with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government."
It again reiterated at page 75 that:
"not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut-off date on some national or reasonable basis, has to be fixed for extending the benefits."
21. In Mohd. Ali Imam Versus State of Bihar Through its Chief Secretary and others, (2020) 5 SCC 685, the Hon'ble Apex Court held that even if no particular reasons are given for the cut off date by the Government, the choice of cut off date cannot be held to be arbitrary unless it is shown to be totally capricious or whimsical.
The relevant paras of the judgment read as under:-
"9. If we see the rationale of the impugned judgment as set out para 29 onwards, we may notice that the same is predicated on the absence of arbitrariness in the applicability of the cut-off date of the amendment in the Triple Benefit Scheme statute as well as the rationality behind it based on the date of the Cabinet decision granting Triple Benefit Scheme to such deficit grant ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 27 colleges. We cannot find any fault with the reasoning in the impugned order.
10. We must notice that firstly there was really no .
obligation for exercise of powers of the Government or University in the absence of the institutions being not constituent colleges, but only affiliated colleges. In order to support education, a decision was taken to provide deficit financing. There was again no requirement that the Triple Benefit Scheme ought to be extended to the 1 (1983) 1 SCC 305 2 (1993) 4 SCC 62 employees of these colleges and was not so initially extended. A second step was taken in this direction by extending the scheme. The third step was the Amendment of the Scheme. It can hardly be said that by taking these beneficial steps, the State Government is not liable to take into consideration the financial implications of the same, and that the benefits should be extended across the board. The amendments could have, in fact, been implemented prospectively, but were given part-
retrospective effect based on the rationale of the date of the Cabinet decision.
11. Apart from this, there may be other considerations in the mind of the Executive authority while fixing a particular date i.e. economic conditions, financial constraints, administrative and other circumstances, and if no reason is forthcoming from the executive for fixation of a particular date, it should not be interfered with by the Court unless the cut-off date leads to some blatantly ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 28 capricious or outrageous result. In such cases it has been opined that there must be exercise of judicial restraint and such matters ought to be left to the .
Executive authorities, to fix the cut-off date, and the Government thus, must be left with some leeway and free play at the joints in this connection. Even if no particular reasons are given for the cut-off date by the Government, the choice of cut-off date cannot be held to be arbitrary (unless it is shown to be totally capricious or whimsical)."
22. In Himachal Road Transport Corporation and another Vs. Himachal Road Transport Corporation Retired Employees Union, (2021) 4 SCC 502, the Hon'ble Apex Court has held that the financial constraint pleaded by the Government was a valid ground for fixation of cut off date. The relevant portion of the judgment reads as under:-
"18. Though there are long line of cases, where validity of fixation of cut-off date is considered by this Court, we confine and refer to the case law which is relevant to the facts of the case on hand. In the case of State of Punjab v. Amar Nath Goyal, while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum- retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 29 Constitution. While differentiating the facts with the case of D.S. Nakara1, this Court held in para 29 of the judgment, which reads as under:
.
"29. D.S. Nakara which is the mainstay of the case of the employees arose under special circumstances, quite different from the present case. It was a case of revision of pensionary benefits and classification of pensioners into two groups by drawing a cut-off line and granting the revised pensionary benefits to employees retiring on or after the cut-off date. The criterion made applicable was "being in service and retiring subsequent to the specified date". This Court held that for being eligible for liberalised Pension Scheme, application of such a criterion is violative of Article 14 of the Constitution, as it was both arbitrary and discriminatory in nature. The reason given by the Court was that the employees who retired prior to a specified date, and those who retired thereafter formed one class of pensioners.
The attempt to classify them into separate classes/groups for the purpose of pensionary benefits was not founded on any intelligible dirrerentia, which had a rational nexus with the object sought to be achieved. However, it must be noted that even in cases of pension, subsequent judgments of this Court have considerably watered down the rigid view taken in D.S. Nakara1 as we ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 30 shall see later in T.N. Electricity Board v. R.Veerasamy ("Veerasamy"). In any event, this is not a case of a continuing benefit like pension; it is .
a one-time benefit like gratuity."
19. In State of A.P. v. N. Subbarayudu & others, by noticing that a rigid view was taken in the case of D.S. Nakara1, this Court has considerably watered down the same and has held that fixing the cut-off date is an executive function based on several factors like economic conditions, financial constraints, administrative and other circumstances. This Court further held that even if no reason is forthcoming from executive, for fixation of a particular date, it should not be interfered by Court, unless cut-off date leads to some blatantly capricious or outrageous result."
23. In a recent judgment of The State of Tripura & Ors.
versus Smt. Anjana Bhattacharjee & Ors., 2022 LiveLaw (SC) 706, the Hon'ble Apex Court has held that the financial burden can be a valid ground to fix a cut off date for the purpose of granting the actual benefit of revision of pension/pay. The relevant paras of the judgment read as under:-
5.3 Whether the financial crunch/financial constraint due to additional financial burden can be a valid ground to fix a cut-off date for the purpose of granting the actual benefit of revision of pension/pay has been dealt with and/or considered by this Court in the case of ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 31 Amar Nath Goyal (supra). In the aforesaid decision, it is observed and held by this Court that financial constraint can be a valid ground for fixation of cut-off date for .
grant of benefit of increased quantum of death-cum- retirement gratuity. In paragraphs 26, 32 and 33 of the said judgment, it is observed and held as under:-
"26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.
xxxx xxxx xxxx
32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC (L&S) 512 : AIR 1997 SC 782] this Court went so as far as to note that:
"Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 32 allowing the writ petitions and substituting the date of 1-11986 for 111990."
33. More recently, in Veerasamy [(1999) 3 SCC 414 :
.
1999 SCC (L&S) 717] this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 1-7-1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes."
5.4 In the aforesaid decision this Court after considering the earlier decisions of this Court in the cases of State of Punjab Vs. Boota Singh; (2000) 3 SCC 733 and State of Punjab Vs. J.L. Gupta; (2000) 3 SCC 736, it is specifically observed and held that for the grant of additional benefit, which had financial implications, the prescription of a specific future date for conferment of additional benefit, could not be considered arbitrary.
5.5 In the subsequent decision in Bihar Pensioners Samaj (supra), the decision in the case of Amar Nath Goyal (supra) is followed and it is observed and held that financial constraints could be a valid ground for introducing a cut-off date while introducing a pension scheme on revised basis. It is further observed and held by this Court in the aforesaid decision that fixing of ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 33 a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some .
rational consideration."
24. Thus, from the law laid down by the Hon'ble Supreme Court, it is clear that the financial burden can be a valid ground to fix a cut off date for the purpose of granting the actual benefit of revision of pension/pay. In the instant case, the stand of the State Government is that if the cut off date for allowing the financial benefits is fixed w.e.f.
01.01.2006, then the estimated liability of Rs.350/- crore will fall on the State exchequer, which would be a huge burden on the State finances. Therefore, in view of the law laid down by the Hon'ble Supreme Court, it is well within the State Government jurisdiction to allow the financial benefits from a specific cut off date keeping in view the financial position of the State. Hence, the cut off date fixed as 01.04.2013 in the Office Memorandum dated 21.05.2013 by the appellants-State cannot be said to be arbitrary and discriminatory and, in our opinion, the same has been fixed on a very valid ground, i.e. the financial constraints and as such, the learned Single Judge had erred in quashing the Office Memorandum dated 21.05.2013 to the effect that it makes orders effective w.e.f. 01.04.2013 and in ordering that revised pension in terms of the said Office Memorandum ::: Downloaded on - 21/12/2022 20:33:59 :::CIS 34 would be payable to the respondents-petitioners w.e.f. 01.01.2006 alongwith arrears.
.
25. In view of the above, the impugned judgment dated 15.07.2021, passed by the learned Single Judge is unsustainable and the same deserves to be set aside and is, accordingly, set aside.
Hence, all the appeals are allowed and consequently all the three writ petitions filed by the respondents-petitioners are dismissed.
Pending miscellaneous application(s), if any, shall also stand disposed of.
(Sabina) Judge ( Sushil Kukreja ) Judge December 21, 2022 (VH) ::: Downloaded on - 21/12/2022 20:33:59 :::CIS