Andhra HC (Pre-Telangana)
The A.P. Non-Govt. Retired Teachers ... vs The State Of A.P. Rep. By Its Chief ... on 18 February, 1991
Equivalent citations: 1991(1)ALT688
JUDGMENT A. Lakshmana Rao, J.
1. The question that arises for consideration in this appeal is whether the teachers who were employed in the schools run by Aided Managements as well as Local Bodies and retired from service prior to 1st April 1973 are entitled to the same pensionary benefits as are extended to those who retired from service on or after 1st April, 1973.
2. This appeal is preferred by the petitioners in Writ Petition No. 16686 of 1984 having been aggrieved by the dismissal of the writ petition. The first appellant herein is the Andhra Pradesh Non-Government Retired Teachers' Association and the other two appellants are the members of that association who had retired from service as Headmasters prior to 1st April 1973.
3. The State Government made Andhra Pradesh Liberalised Pension Rules, 1961 and they came into force from 1st April 1961. They were made applicable to all the Government servants.
4. With a view to improve the conditions of service of teachers employed in the schools run by Aided Managements as well as Local Bodies, the State Government framed the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961 in G.O.Ms.No. 3372 dated October 31, 1961 and those rules were made applicable to all the teachers who worked in Non-Government schools and retired from service on or after 1st April 1961. Under these rules, a teacher shall be eligible for payment of pension if he had rendered a total qualifying service of ten years or more, and a teacher who had rendered less then ten years of service but not less then five years shall be eligible to gratuity according to the scale of pension or gratuity as the case may be, as provided in the rules In order to remove the impediments for speedy disposal of pension cases, the State Government prescribed modified procedure in G.O.Ms.No. 1206 dated April 28, 1965. This G.O. also refers to what is paid to the teachers who have retired from the Non-Government Schools on or after 1st April 1961 as pension.
5. While so, the teachers who had worked in Non-Government Aided Schools and retired from service prior to 1st April, 1961 made representations to the State Government requesting that the benefit of pension be extended to them on par with the teachers who had retired from service after 1st April, 1961. On consideration of those representations, the State Government decided to grant financial assistance to those teachers who had retired prior to 1st April 1961 from Non-Government Aided Schools, including those run by Local Bodies, and accordingly issued G.O.Ms. No. 1649 dated July 5, 1966. It was specified therein that the Elementary Grade Teachers shall be eligible to Rs. 15/- and the Secondary Grade Teachers shall be eligible to Rs. 20/- per mensem by way of financial assistance. So far as the B.Ed., Assistants, Grade-I Pandits, Secretarial Assistants, Commercial Teachers and the Headmasters are concerned, it was directed that pension shall be sanctioned to them in accordance with the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961 (G.O.Ms. No. 3372 dated October 31, 1961). Thus, what was payable to those categories of employees under G.O.Ms. No. 1649 dt. July 5, 1966 was described as pension. With a view to expedite sanctioning of the amount granted in G.O.Ms. No. 1649 dated July 5, 1966, the State Government issued G.O.Ms. No. 2265 dated September 17, 1966 modifying the orders issued in Sub-para (ii) of para 3 of G.O.Ms. No. 1649 dt. July 5, 1966. As per the modification, what is paid even to B II. Asssistants, Grade-I Pandits, Secretatry and Assistants and Commercial Teachers is described as financial assistant and not pension. Though in the preamble to G.O.Ms. No. 2265 dated September 17, 1966 the word "pension" has been used, from the body of the G.O. it is evident that what is paid to the B.Ed., Assistants. Grade-I Pandits, Secretarial Assistants, Commercial Teachers and Head-masters who had retired from service prior to 1st April 1961 was intended to be financial assistance and not pension.
6. While so, the State Government decided to extend the application of the Andhra Pradesh Liberalised Pension Rules, 1961 and the Family Pension Rules, 1964 to the teachers who were employed in the schools run by Aided Managements and Local Bodies and who had retired after 1st April 1973 and accordingly issued G.O.Ms. No. 1132 Education-I Department, dated November 16, 1973.
7. While the matters stood thus, the State Government framed Andhra Pradesh Revised Pension Rules, 1980 in G.O. (P) No. 88, dt. March 26, 1980. These rules consist of two parts. Part-I is applicable to all Government servants who were governed on October 29, 1979 by the Andhra Pradesh Liberalised Pension Rules, 1961 or any other rules mentioned therein such as Old Pension Rules in the Hyderabad Civil Service Rules, etc. Part-II is applicable to the Government servants holding pensionable post on 31st March, 1978 and who retired between 1st April, 1978 and 28th October, 1979 and were governed either by the A.P. Liberalised Pension Rules, 1961 or the Old Pension Rules in the Hyderabad Civil Service Rules, etc.
8. In G.O.Ms. No. 1057 dated December 19, 1979, the State Government had raised the age of retirement on superannuation of all the teachers working under Private Aided Managements from 55 years to 58 years. In the year 1982, the State Government decided that the teachers under Private Aided Managements who retired on completion of 58 years of age shall be eligible for pension and other terminal benefits on par with the State Government employees under the Andhra Pradesh Revised Pension Rules, 1980 and accordingly issued G.O.Rt.No. 902 Education, dated November 11, 1982 with effect from October 29.. 1979. However, the words "Private Aided Managements" in G.O.Rt. No. 902 Education, dated November 11, 1982 had been substituted by the words "Private Aided Schools" through G.O.Rt. No. 1026 Education, dated August 19, 1983.
9. While so, some of the pensioners' Associations whose members retired from Government service prior to April 1, 1978 filed W.P.No. 6690 of 1981 and batch of writ petitions questioning the provisions of the Andhra Pradesh Revised Pension Rules, 1980 (G.O.(P) No. 88 dt. March 26, 1980) in making them applicable only to those Government employees who had retired on or after April 1, 1978. Those writ petitions were allowed by this court by the judgment dated August 7, 1984. The operative portion of the judgment is as follows :
(a) That portion of the Rules in Part II of the 1980 Rules which exclude their applicability to pensioners i.e. Government employees who retired on superannuation on reaching the age of 55 years prior to 1-4-78 are declared as invalid and it is further declared that the benefits under Part II of the 1980 Rules shall be available to the A.P. State Government employees governed by the A.P. Liberalised Pension Rules 1961 or any other rules in force in the State which are referred to in Part II, to employees who retired on superannuation prior to 31-3-1978.
(b) The State Government will take a decision keeping in view the relevant facts and the observations in this judgment within two months of date of receipt of this judgment about the manner in which the two ad hoc reliefs granted with effect from 1-1-1983 and 1-3-75 are to be treated for the purpose of fixation of pension and payment of arrears, consequent upon the computation of pension in accordance with Part-II of 1980 Rules. The computation of pension in accordance with Part-II of 1980 Rules and taking into account the decision of the State Government regarding the ad hoc reliefs shall be done within a period of five months of the date of receipt of this judgment that is within three months after the expiry of two months period mentioned above.
(c) The arrears payable consequent upon the revision of the pensionary benefits shall be paid within a period of three months of the said computation."
10. So also, the Andhra Pradesh Non-Government Teachers Pensioners' Association formed by the teachers working in the schools run by the Private Aided Managements and Local Bodies filed W. P. No. 7855 of 1984 seeking a declaration that the Non-Government teachers who retired prior to April 1, 1978 were also entitled to the pensionary benefits under the Andhra Pradesh Revised Pension Rules, 1980 (G.O. (P) No. 88, dated March 26, 1980). Following the judgment in Writ Petition No. 6690 of 1981 dated August 7, 1984, this writ petition was also allowed on August 7, 1984. However, the relief was granted only to such of those teachers who were eligible to pension under the old rules and it was directed that there-computation of the pension shall be done under Part II of the Andhra Pradesh Revised Pension Rules, 1980 from April 1,1978. While allowing the writ petition, this court held that the Andhra Pradesh Revised Pension Rules, 1980 merely brought about a change in computation of the retirement benefits and did not effect any Change in the scheme of payment of pension and the fixation of the date April 1. 1978 making classification between the pensioners governed by the earlier rules, was arbitrary. It was also pointed out:
"When it is found that the pensioners who retired on superannuation on reaching 55 years either before 1-4-78 or after 1-4-78 (but before 29-10-79 when the age of superannuation was increased to 58 years) form one class and were governed by the same rules as mentioned in Part II of 1980 Rules and are entitled to the retirement benefits as computed in Part II of 1980 Rules from the State Funds, there is no justification for making a distinction between those who retired before 1-4-78 or after 1-4-78. The principles in Nakara's case (supra) of the Supreme Court applies squarely."
Accepting that judgment, the State Government issued orders in G.O. (P) No. 143, dated March 30, 1985 directing payment of pension to all the Government employees who had retired prior to 1st April 1978 under Part-II of the Andhra Pradesh Revised Pension Rules. 1980. It was also specified that the order shall apply mutatis-mutandis to the teaching and non-teaching staff of Zilla Parishads, Panchayat Samithis, Municipalities and Aided Schools and Colleges who retired on or after 1st April, 1973 and who had been sanctioned pension, and family pension under the rules referred to in Part-II of the Andhra Pradesh Revised Pension Rules, 1980.
11. Prior to the issuance of G.O. (P) No. 143 dated March 30, 1985, the Andhra Pradesh Non-Government Retired Teachers' Association and two of its members who had retired prior to 1st April 1973 had filed Writ Petition No. 16686 of 1984 out of which this Writ Appeal arises, seeking a declaration that the teachers are entitled to revised pensionary benefits under the Andhra Pradesh Revised Pension Rules, 1980 irrespective of their date of retirement.
12. Writ Petition No. 16686 of 1984 was dismissed by the learned single Judge holding that the orders issued by the State Government making the Andhra Pradesh Liberalised Pension Rules, 1961 applicable only to the teachers who had worked in the Non-Government Schools and retired on or after 1st April 1973 were not in any way discriminatory and therefore teachers who retired prior to 1st April 1973 are* not entitled to pension under Part-II of the A.P. Revised Pension Rules, 1980. Aggrieved by that judgment, this Writ Appeal has been filed.
13. It is submitted by Sri V. Jogayya Sarma, the learned counsel appearing for the appellants that the teachers who were employed in the Non-Government Aided Schools and retired from service constitute one homogeneous class of pensioners irrespective of their date of retirement and any classification made among them on the basis of a date of retirement arbitrarily fixed, thereby enabling those who had retired after that date to have the benefit of pension under the pension rules framed by the State Government and depriving others who had retired prior tothat date, of such benefit, is per se discriminatory. On the other hand, it is submitted by the learned Government Pleader that the State Government, which is not the employer of the teachers working in the Non-Government Schools is under no obligation to provide for the payment of pension to them and 1st April 1973 with effect from which date, the Andhra Pradesh Liberalised Pension Rules, 1961 have been made applicable for the first time to the teachers working in the Non-Government Schools has rightly been adopted as the cut-off date. It is vehemently urged by the learned Government Pleader that though 1st April 1973 had been fixed as the cut-off date for the application of the Andhra Pradesh Liberalised Pension Rules, 1961 to the teachers working in the schools in G.O.Ms. No. 1132 dated November 16,1973, the same had not been questioned for a number of years and therefore, the learned Judge was quite justified in dismissing the writ petition on the ground of laches. It is further contended that if the relief as prayed for by the teachers is granted, it would place heavy financial burden on the State Government.
14. There can be no dispute that the right to pension is a valuable right vesting in an employee and it is not to be treated as a bounty payable to him. The right to receive pension has been held to be right to property.
15. With a view to improving the conditions of service of the teachers employed in non-government schools, the State Government sanctioned the pension scheme and framed rules thereunder, namely, the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961 in G.O. Ms. No. 3372, dated, October 31, 1961 extending the benefit under those rules to all those teachers employed in the non-government schools and who retired from service on or after the 1st April 1961. In the very same year 1961, the State Government framed the Andhra Pradesh Liberalised Pension Rules, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Under these rules, every Government employee is eligible to pension. Under the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961, all the teachers who had worked in non-government schools and retired from service on or after the 1st April 1961 are eligible for pension, if the teacher had rendered a total qualifying service of ten years or more and the quantum of pension has been regulated, as specified thereunder. Thus, it is evident that though the Andhra Pradesh Liberalised Pension Rules, 1961 had not been made applicable to the teachers employed in the non-government schools, they were, however, paid pension under a different set of rules from 1st April 1961. The Andhra Pradesh Liberalised Pension Rules were extended to all the teachers who were employed in non-government schools and had retired from service on or after 1st April 1973. The teachers who retired on or after 1st April 1961 and prior to 1st April 1973 continued to be governed by the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961. Thus, the teachers employed in the non-government schools and who were governed by the same set of rules for payment of pension had been classified into two categories in G.O. Ms. No. 1132 dated November 16, 1973 with effect from 1st April 1973. It is no doubt true that the State Government is not the employer of the teachers working in the non-government schools. But, at the same time, as a welfare measure, the State Government had taken a decision to sanction and implement a scheme providing for payment of contributory provident fund-cum-pension and gratuity to the teachers working in the non-government schools and ever since 1961 all the teachers had been paid pension under that scheme without any discrimination. But, the benefit under the Andhra Pradesh Liberalised Pension Rules, was extended only to those teachers who retired on or after 1st April 1973 and thus they had been classified into two categories with effect from April 1, 1973. Merely because the application of the Andhra Pradesh Liberalised Pension Rules, 1961 had been extended to the teachers working in the non-government schools only from 1st April 1973, can the fixation of 1st April 1973 as the cut-off date for classifying the teachers, who were similarly situated till that date, into two categories subjecting one category of teachers to one set of rules and the other category to a different set of rules for payment of pension, be said to be valid. Except that the State Government had taken a decision in the year 1973 extending the benefits under the Andhra Pradesh Liberalised Pension Rules, 1961 to the teachers employed in the non-government schools, no other material is produced before us for justifying the fixation of 1st April, 1973 as the cut-off date.
16. In such circumstances, it has to be considered in the light of the decision of the Supreme Court in D.S. Nakara v. Union of India, whether the classification made by the State Government is valid or not.
17. When the State Government framed the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961 governing the teachers employed in the non-government schools, their operation was extended to the teachers who retired on or after 1st April 1961. However, on representations made by the teachers who retired prior to 1st April 1961, the State Government felt that financial assistance should be provided to those teachers who retired from service prior to 1st April 1961 instead of pension and accordingly issued order in G.O. Ms. No. 1649, dated July 5, 1966, specifying the amount to be paid to each teacher per month. The contention advanced by Sri V. Jogayya Sarma, the learned counsel for the appellants, is that though what is paid to them is described as financial assistance, from the preamble to G.O. Ms. No. 1649 dated July 5, 1966 and the subsequent G.O. Ms. No. 2265 dated September 17, 1966, it is evident that what is paid to them in substance and effect is pension, and therefore, the benefits under the Andhra Pradesh Liberalised Pension Rules, 1961 shall be extended to them also for the same reasons for which the teachers who retired after 1st April 1 961 and prior to 1st April 1973 are claiming. We are unable to accept this contention. On a close scrutiny of the contents of G.O. Ms. No. 1649 dated July 5, 1966, it is abundantly clear that what has been sanctioned to the teachers who retired prior to 1st April 1961 is only financial assistance and not pension. The payment of financial assistance to the B.Ed., Assistants including Grade I Pandits, Secretarial Assistants, Commercial Teachers and the Headmasters who have retired prior to 1st April 1961 had been described as "pension" in Sub-para (ii) of para 3 of the G.O. But, that portion of the G.O. had been subsequently amended by substituting the expression "financial assistance" in place of "pension" (vide G.O. Ms. No. 2265, dated September 17, 1966). Therefore, by the use of the expression "pension" in the preamble to G.O. Ms. No. 1649 dated July 5, 1966, it cannot be said that what is being paid to the teachers who retired from service prior to 1st April, 1961 is not financial assistance, but pension. Therefore, they stand on a different footing from those who had retired from service on or after 1st April, 1961.
18. In Nakara's case (2 supra) the issue for determination was whether the pensioners entitled to receive superannuation or retiring pension under Central Civil Services (Pension) Rules, 1972 formed a class as a whole and whether classification within that class into those who retired by certain date and those who retired after that date, was valid. The Supreme Court observed:
"Pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings."
So far as the Government servant is concerned, it was held :
"(i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right...... .(ii) that the pension is not an ex gratia payment for the past service rendered ; and (iii) 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."
In that case, it was held that when there was upward revision of the rates of pension from time to time as a sequel to inflationary inputs and diminishing purchasing power of rupee, the classification of the pensioners into two categories, one category consisting of those who retired prior to the specified date and the other category consisting of those who retired after the specified date suffered from the vice of discrimination.
19. Though the State Government was not the employer of the teachers employed in the non-Government schools, it sanctioned a scheme and framed the rules thereunder providing for payment of pension to them, as long back as in the year 1961. It was undertaken as a social welfare measure to mitigate the hardship to the teachers. The benefit under that scheme was extended uniformly to all the teachers who retired from service on or after 1st April, 1961. The rules prescribe the eligibility criterion, the minimum qualifying service required, the rates of pension and all other relevant matters relating to payment of pension. These rules are no doubt non-statutory in character. On a reading of these non-statutory rules m juxtaposition with the statutory rules applicable to the Government servants in relation to payment of pension, viz., the Andhra Pradesh Liberalised Pension Rules, 1961, we find a general striking resemblance between the two sets of rules. The Andhra Pradesh Liberalised Pension Rules, 1961 are more beneficial than the rules in G.O.Ms. No. 3372 dated October 31, 1961. But, when the operation of the Andhra Pradesh Liberalised Pension ' Rules, 1961 was extended to them, the benefit was limited only to those teachers who had retired on or after 1st April, 1973 and the rest were said to be governed by the old non-statutory rules. It is the fixation of this cut-off date, viz., 1st April 1973 which is questioned on the ground of arbitrariness and thus being violative of Article 14 of the Constitution of India.
20. In Nakara's case, the Central Government liberalised the formula for computation of pension and made it applicable only to the Government servants who retired on or after 1st April 1979 depriving the rest, the benefit of the liberalised formula. The Supreme Court struck down the classification of the Government employees into two categories on the basis of an arbitrary date fixed, by the Central Government holding that such classification was arbitrary and unreasonable. In our view, the principle enunciated by the Supreme Court in Nakara's case applies to the facts in the instant case. The mere fact that the rules issued in G.O Ms. No. 3372 dated October 31, 1961 are non-statutory in character, does not in any way militate against the applicability of the principle on the basis of which the cut-off date fixed in Nakara's case was held to be invalid. By extending the operation of the A.P. Liberalised Pension Rules, 1961 to the teachers working in the non-government schools, virtually it amounted to liberalisation of the formula for computation of pension. In such circumstances, it is not open to the State Government to classify the teachers into two categories on the basis of the date of extension of operation of the Andhra Pradesh Liberalised Pension Rules, 1961 to the teachers working in the non government schools and deprive those who retired after 1st April 1961 but prior to 1st April 1973 from the benefit of the liberalised pension rules. When the State Government had chosen to treat the teachers who had retired on or after 1st April, 1961 as a homogeneous class for payment of pension and implemented the pension scheme for about twelve years on that basis, it cannot be permitted to classify such teachers into two categories on the ground that the operation of the Andhra Pradesh Liberalised Pension Rules, 1961 which are statutory in nature had for the first time been extended to the teachers employed in the non-government schools, only with effect from 1st April, 1973. Such classification is, in our view, irrational and discriminatory, thereby violating Article 14 of the Constitution.
21. There is one other aspect which supports the contention advanced on behalf of the teachers. The State Government made the Andhra Pradesh Revised Pension Rules, 1980 in G.O. (P) No. 88, Finance & Planning, dated March 26,1980. These rules consist of two parts. Part-I applies to all Government servants who retired from service on or after 29th October 1979. Part-II applies to such of the Government servants who retired from service between 1st April 1978 and 28th October 1979. Thus, the pensioners who were governed by the Andhra Pradesh Liberalised Pension Rules, 1961 and who retired prior to 1st April, 1978 had been excluded from the operation of the Andhra Pradesh Revised Pension Rules 1980.
22. The State Government Pensioners' Association and some others filed Writ Petition No. 6690 of 1981 and batch seeking a declaration that the action of the State Government in specifying 1st April 1978 as the date for conferment of pensionery benefits under the Andhra Pradesh Revised Pension Rules, 1980 was arbitrary and unconstitutional. Those writ petitions were allowed by this Court on August 7, 1984 holding that the fixation of the date 1st April, 1978 for conferment of pensionary benefits under Part-II of the Andhra Pradesh Revised Pension Rules, 1980 was discriminatory. On the same ground, Writ Petition No. 7855 of 1984 filed on behalf of the teachers who had worked in the non-government schools and retired from service prior to 1st April 1978 was also allowed by this Court on August .7, 1984. Accepting those judgments, the State Government issued G.O. (P) No. 143 Finance & Planning, dated March 30, 1985 stating that all the State Government pensioners who were governed by either the Andhra Pradesh Liberalised Pension Rules, 1961 or the other relevant rules and retired from service prior to 1st April 1978 would be governed by Part-II of the Andhra Pradesh Revised Pension Rules, 1980. It was further specified therein that the orders shall also apply mutatis-mutandis to the teaching and non-teaching staff of non-government aided schools and colleges who retired on or after 1st April 1973 and who had been sanctioned pension and family pension under either the A.P. Liberalised Pension Rules, 1961 or the other relevant rules. It is thus clear that when a classification was made under the A.P. Revised Pension Rules, 1980 among the pensioners on the basis of their retirement either prior to or after 1st April, 1978, following the judgment of the Supreme Court in Nakara's case, this court held that such classification was arbitrary.
23. Placing reliance on two judgments of the Supreme Court in Krishna Kumar v. Union of India, and Chaudary Kesava Rao v. State of Andhra Pradesh, it is submitted by the learned Government Pleader that the classification of the teachers on the basis of the date on which the AP Liberalised Pension Rules, 1961 had been made applicable to the teachers, cannot be held to be arbitrary and thus, violative of Article 14 of the Constitution of India.
24. In Chaudhary Kesava Rao v. State of Andhra Pradesh (3 supra) it was held that the rules in parts I and II of the Andhra Pradesh Revised Pension Rules, 1980 were not discriminatory and the classification made thereunder between the pensioners who retired during the period 1-4-1978 and 28-10-1979 and those who retired after 28-10-1979 was based on an intelligible differentia having a nexus to the objects to be achieved by the rules. Prior to October 29, 1979, the age of superannuation of the Government employees was 55 years and it was raised to 58 years with effect from October 29, 1979. On that ground, the distinction was upheld, noticing at the same time as follows:
"A perusal of the Rules clearly goes to show that Part I of the Rules was no doubt made applicable to all Government servants who would retire on or after 29-10-1979 while Part II was made applicable to such Government servants who were holding pensionable posts on 31st March 1978 and who retired between 1st April, 1978 and 28th October 1979 and this distinction was necessary in view of the fact that the age of superannuation for retirement, was increased from 55 years to 58 years w.e.f. 29th October, 1979. However, all the benefits have been granted to the pensioners like the petitioners who had retired between 1-4-1978 and 29-10-1979 in the amount of pension, retirement gratuity and family pension as granted to the Government servants falling under Part I."
25. It would be necessary to refer to some of the relevant facts in Krishna Kumar v. Union of India (2 supra) in order to appreciate the decision in that case. The case of the pensioners in that case was that till 1st April, 1957 or even some time thereafter, the pensionary benefits and the alternative contributory provident fund benefits paid to the pensioners were considered to be more or less equally beneficial. During the period from 1957 to 1987 the pensionary benefits of Railway employees were enhanced on several occasions by altering the formula for computing the pension, by including the dearness allowance in the pay, by removal of ceiling of pension, and by introducing or liberalising the Family Pension Scheme etc. But, so far as the Provident Fund beneficiaries are concerned, there was no such enhancement. It was asserted before the Supreme Court on behalf of the petitioners who were Provident Fund subscribers that, due to the successive liberalisations of pensions, the pension beneficiaries derived manifold benefits while the Provident Fund beneficiaries remained stagnant. It was contended that had the petitioners known that pensionary benefits might subsequently be so increased, they would no doubt have opted for pension instead of Provident Fund. The Central Government issued notifications on twelve occasions during the period 1960 to 1987 giving option to the employees specifying the cut-off date. The last of the notifications was dated 8th May 1987. One of the clauses of the notification provided that all Provident Fund beneficiaries who were in service on January 1, 1986 and who were still in service on the date of issue of the orders of the notification will be deemed to have come over to the pension scheme. One of the contentions advanced on behalf of the petitioners was that the cut-off dates were arbitrarily chosen and that following Nakara's case, the clause fixing the cut-off date in the notification should be struck down. That contention had been repelled, holding that the pension retirees and the Provident Fund retirees constituted two separate classes and the principle laid down in Nakara's case was not applicable to the facts of that case.
26. So far as the teachers who had retired from service on or after 1st April 1961 and prior to 1st April 1973 are concerned, having regard to the facts and circumstances of the case and the decisions referred to above, we hold that there is no justification in making a discrimination between them and the teachers who retired after 1st April 1973 for the payment of pension.
27. We are, however, unable to accept the contention advanced by Sri V. Jogayya Sarma, the learned counsel for the appellants, that the same benefit shall be extended to the teachers who retired prior to 1st April, 1961. As we have already mentioned, in the year 1966, the State Government decided to sanction financial assistance to the teachers who retired prior to 1st April 1961 and issued G.O. Ms. No. 1649 dated July 5, 1966 to that effect. From that G.O. it appears that the decision was taken in view of the representations made by the teachers who retired from service prior to 1st April 1961 requesting the Government to extend the benefit of pension to them also. It is stated in the counter-affidavit filed on behalf of the State Government that the financial assistance is only a payment sanctioned on compassionate considerations and is not a pension. Though the word "pension" has been used at one or two places in G.O.Ms. No. 1649 dated July 5, 1966 and the subsequent G.O.Ms. No. 2265 dated September 17, 1966, having regard to the contents of those G.Os we are inclined to hold that what is being paid to the teachers who had retired prior to 1st April 1961 is only financial assistance and not pension. As they were not paid at any time any pension, they cannot be treated as having been similarly situated as those who retired on or after 1st April 1961. They cannot stand in comparison to those who were governed by a pension scheme.
28. The next question that arises for consideration is whether the writ petition is liable to be dismissed on the ground of laches due to inordinate delay in filing it. Writ Petition No. 16686 of 1984 out of which this writ appeal arises, was filed on December 19, 1984 on behalf of the teachers who had worked in the aided schools. Normally, the court will not inquire belated or stale claims as a rule of practice, as for instance, where interests of third parties intervene during the period of delay in order to see that the rights vested in third parties are not unsettled.
29. In Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC 121 the Supreme Court pointed out that "mere lapse of time does not lend constitutionality to a provision which is otherwise bad" and that "time does not run in favour of legislation". The said observations of the Supreme Court apply with equal force here where we are concerned with a continuing cause of action. At the same time, we are of the view that the inordinate delay in questioning the validity-either of an enactment or an executive action shall be taken into account for the purpose of restricting or pruning the relief which the writ petitioners could otherwise get, especially the monetary relief. Therefore we are not inclined to accept the contention advanced by the learned Government Pleader that the writ petition is liable to be dismissed on the ground of laches.
30. The argument relating to financial implication does not impress us. Such an argument was repelled by the Supreme Court in Nakara's case. (2 supra). As observed by the Supreme Court "the old pensioners are on the way out and their number is fast decreasing." The appellants are teachers who had worked in schools earning a meagre salary and retired during the period from 1st April 1961 to April 1, 1973. They are claiming only a marginal increase in the pension. The relief we want grant to the appellants is hedged in by conditions and it will not place any undue financial burden on the State.
31. For the reasons stated above, we hold that the teachers who had worked in non-government schools run by aided managements and had retired from service on or after 1st April 1961 and prior to 1st April 1973,A and who are surviving as on the date of this judgment shall be entitled for payment of pension under the Andhra Pradesh Liberalised Pension Rules, 1961 and consequently under Part II of the Andhra Pradesh Revised Pension Rules, 1980, with effect from 1st January 1985 as the writ petition had been filed in December 1984. In computation of arrears from the said date, the amount already paid during the relevant period by way of pension under the Andhra Pradesh Teachers Contributory Provident Fund-cum-Pension and Gratuity Rules, 1961 shall be given credit to and only the balance shall be paid.
32. The Writ Appeal is accordingly allowed. There shall be no order as to costs. Advocate's fee Rs. 200/-.
33. W.A.M.P. No. 2136 of 1990 is ordered.