Gujarat High Court
Prabhudas C Barot & 12 vs State Of Gujarat & 2 on 27 August, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/13590/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13590 of 2013
With
SPECIAL CIVIL APPLICATION NO. 4106 of 2014
With
SPECIAL CIVIL APPLICATION NO. 15094 of 2013
With
SPECIAL CIVIL APPLICATION NO. 15705 of 2013
With
SPECIAL CIVIL APPLICATION NO. 3202 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PRABHUDAS C BAROT & 12....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
IN SCA NOS.13590/2013, 4106/2014, 15094/2013 & 15705/2013
MR SHALIN MEHTA, LEARNED SENIOR ADVOCATE WITH MR BHARGAV
HASURKAR, ADVOCATE for the Petitioner(s) No. 1 - 13
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MR RONAK
RAVAL, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 3
RULE SERVED BY DS for the Respondent(s) No. 1 - 3
Page 1 of 35
C/SCA/13590/2013 JUDGMENT
IN SCA NO.3202/2014
MR S.N. SHELAT, LEARNED SENIOR ADVOCATE WITH MRS VD
NANAVATI, ADVOCATE for the Petitioner Nos.1 - 3
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MR RONAK
RAVAL, AGP for the Respondent-State
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 26-27/08/2014
COMMON ORAL JUDGMENT
1. This group of petitions involves common questions of law inter alia as to whether the Government Servants, who retired before 01.01.2006 with higher grade pay-scales, can be paid a revised pension in terms of 6th Pay Commission, on the basis of post they held, though recommendation made by the 6th Pay Commission as accepted by the State recommended the revised pay-scales on scale to scale basis ?
2. The facts, in each of the petitions, are as under:
3. Special Civil Application Nos.13590/2013, 4106/2014, 15094/2013 and 15705/2013:
3.1 The petitioners are retired Lecturers (Selection Grade) who were employed with Grant-in-Aid Colleges/Government Colleges and University, State of Gujarat. They have been drawing regular pension as recommended by the 5th Pay Commission as per the Government Resolution dated 01.11.2000.Page 2 of 35
C/SCA/13590/2013 JUDGMENT 3.2 On 13.04.2009, the Government of Gujarat came out with a
notification revising the pension of the pensioners. The said resolution is based upon the recommendation of the 6th Pay Commission. According to the recommendation of the 6th Pay Commission, the pension for the pensioners, arrived at in accordance with the formula suggested therein, cannot be less than 50% of the basic pay plus the grade pay applicable to the post.
3.3 The petitioners were drawing the salary in the pay-scale of Rs.12,000-420-18,300 which was a selection grade equivalent to the grade attached to the post of Associate Professor as recommended by the 5th Pay Commission. According to the petitioners, since the petitioners were in the higher grade pay-
scale before 01.01.2006, their appropriate equivalent pay-scale, as recommended by the 6th Pay Commission, is Rs.37,400-67,000 with the grade pay of Rs.9,000/- and thus they must get the pension at the rate of 50% of the basic pay i.e. Rs.37,400/- plus the grade pay i.e. Rs.9,000/-. Their claim is that thus Rs.23,200/- should be the revised pension.
3.4 It appears that the pension was fixed on the basis of Clause 9.2 contained in the resolution dated 13.04.2009 which prescribes Page 3 of 35 C/SCA/13590/2013 JUDGMENT the mode of calculation of the revised pension. The later portion of the said Clause 9.2 prescribes the procedure to be adopted by the Disbursing Authority on the lines of the resolution dated 01.11.2000 passed by the Finance Department to indicate the minimum pension/family pension corresponding to pre-2006 scales of pay as enclosed in Annexure-III to the resolution dated 13.04.2009. Resolution dated 01.11.2000 inter alia provides the procedure to be adopted for ascertaining the revised pension. It also contains a provision to exclude or ignore the higher grade pay-scales that pensioners might have earned and held immediately prior to 01.01.2006 for the purpose of ascertaining 50% of pension/family pension payable to the pensioners/his family.
3.5 The petitioners were not agreeable to the said formula and therefore, made representation dated 10.06.2013 claiming pension on the higher grade pay-scales, as recommended in the 6 th Pay Commission. This was not acceded to by the State, and therefore, the petitions were filed.
3.6 The petitions were amended to challenge the resolution dated 26.02.2014 passed by the Finance Department of the State Government reiterating that pension of the pensioners, who retired before 01.01.2006, will be revised after excluding the senior Page 4 of 35 C/SCA/13590/2013 JUDGMENT scales, selection scales or higher pay-scales. 3.7 On various grounds, the petitioners seek a mandamus for a direction to the respondents to revise their pension, as recommended by the 6th Pay Commission. They also challenge the order dated 24.01.2011 passed by the second respondent denying such revision of pension to the petitioners. They also seek a declaration that Clause 9.2 as contained in the resolution dated 01.11.2000 as also the resolution dated 26.02.2014 contemplating to take into consideration the pay attached to the post as violative of fundamental right of the petitioners. A further direction against the respondents to revise the pension on the basis of selection grade pay-scales of Rs.37,400-67,000 plus the grade pay of Rs.9,000/-, as recommended by the 6th Pay Commission, is also sought. A relief for a declaration that the resolution dated 26.02.2014 is contrary to the Government Civil Services (Pension) Rules, 2002 is also sought.
4. Special Civil Application No.3202/2014:
4.1 The principal facts, in this petition, are the same as Special Civil Application Nos.13590/2013 and other allied matters except that several representations were made by the petitioners between 19.02.2010 and 27.06.2013.
5. In each of the petitions, an affidavit-in-reply is filed by the Page 5 of 35 C/SCA/13590/2013 JUDGMENT respondents. The affidavit in Special Civil Application No.3202/2014 comprehensively covers the issues, and therefore, the said affidavits are referred to as representative affidavit in each of the petitions.
6. In the affidavit, the first respondent places reliance upon the resolution dated 26.02.2014 at Annexure-R3 which was passed consequent to the order passed in Special Civil Application No.15705/2013, whereby the directions were given to the respondents to take necessary decision in relation to the revision of pension for employees retiring before 01.01.2006, whose pay-
scales were not mentioned in the resolutions dated 26.02.2014 and 13.04.2009. It is stated that the said resolution at Annexure- R3 governs the field. That as per the said resolution, the pension is to be fixed on the last post held. The reliance is also placed upon the resolution dated 01.11.2000 at Annexure-R4 which also provides the same principle of revision of pay to the pensioners who retired prior to 01.01.2006. It is also stated that the State Government had provided for the Higher Pay-Scales Scheme way- back in the year 1991 in the resolution dated 05.07.1991. That as a result of the said policy, the State employees were receiving the higher pay than the Central Government employees. That the resolution dated 01.11.2000 is effective from 01.01.1996 and the said resolution fixes the minimum pension and family pension to Page 6 of 35 C/SCA/13590/2013 JUDGMENT be given to the employees. It is stated that a pay-scale of Rs.8,000-13,500 was attached to Lecturer's post which was upgraded in senior scales of Rs.10,000-325-15,200 and again to a selection grade of Rs.12,000-420-18,300 as per the 5th Pay Commission. That the said selection grade pay-scales came to be split in two parts in the 6th Pay Commission as per the University Grant Commission's recommendation being (1) Rs.15,600-39100 with academic grade of Rs.8,000/- for the Assistant Professors who have not completed three years as on 01.01.2006 in the pre- revised selection grade and (2) Rs.37,400-67,000 with academic grade of Rs.9,000/- for the Associate Professors who have completed three years of service in the pre-revised selection grade scale as on 01.01.2006.
7. It is contended that the petitions are based on the assumption that the petitioners were in service on 01.01.2006 and that they had completed three years of service in the post of Assistant Professor. According to the first respondent, such premise is unwarranted. It is stated in the affidavit that Clause 9.2 of resolution dated 13.04.2009 is sought to be challenged in the year 2014 at a belated stage.
8. Further affidavit-in-reply is also filed by the first respondent on 02.08.2014 producing therewith report of the Central 5th Pay Page 7 of 35 C/SCA/13590/2013 JUDGMENT Commission for pensioners and the resolution dated 13.04.2009 as also order passed by this Court on 17.09.2009 in Special Civil Application No.9965/2009 dismissing the appeal for fixation of the pension in the higher grade pay-scales. It is stated therein that there are in all 3,86,000 pensioners in the State of Gujarat and the same formula is applicable to all of them. That sound policy decision with no error was taken by the State which requires no interference by this Court under Article 226 of the Constitution of India. That both the resolutions dated 13.04.2009 and 01.11.2000 are required to be read together and not in isolation. Reliance is also placed upon the various definition clauses contained in the resolution of 2014 in the affidavit. The pension formula is also explained and it is stated that fitment benefits, as indicated in the 6th Pay Commission, were given, and thereafter, a cap of 50% was applied after resorting to the aforementioned two resolutions.
9. Before adverting to the rival contentions, it will be beneficial to refer to the contents of various documents placed on record of the petitions.
10. The documents, as referred to in Special Civil Application No.13590/2013, shall be referred to as documents in this paragraph for convenience for all the petitions. 10.1 Annexure-B is a resolution dated 01.11.2000 providing a Page 8 of 35 C/SCA/13590/2013 JUDGMENT procedure, mode and method of ascertaining or calculating the cap of 50% and 30% applicable to pensioners/family pensioners respectively as recommended by the 5th Pay Commission. Clause 1 and 2 contains the procedure for processing the applications and Clause 3 thereof obliges the District Treasury Office to undertake the process of sanctioning of the pension. The resolution further commands the Treasury Office to exclude higher pay- scales/selection grade/senior grade received by the respective employee while fixing the pensions. In other words, it nullifies the effect of higher pay-scales or selection grade or senior grade, etc. and brings pensioners back to the basic pay of the last post held by him excluding the higher pay-scales, selection grade or senior grade to him. The said principle of fixation of the pension is reiterated in the resolution dated 26.02.2014 at Annexure-H. The said resolution, while reiterating the resolutions dated 13.04.2009 and 01.11.2000, emphasizes that pay-scales of the post last held and corresponding pay-scales shall only be taken into consideration and that senior scales, selection scales or higher pay-scales shall not be considered. It is worthwhile to note that the resolution dated 13.04.2009 applies to all pensioners/family pensioners drawing pension/family pension as on 01.01.2006 under the Gujarat Civil Services (Pension) Rules, 2000, as amended from time to time. Clause 9.2 of the said resolution, relevant for the purpose of these petitions can beneficially be Page 9 of 35 C/SCA/13590/2013 JUDGMENT quoted hereunder:
"9.2 The revision 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 in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioners had retired.
The pension calculated at 50% of the minimum of pay in the pay band plus grade pay would be calculated-(i) at the minimum of the pay in the pay bank (irrespective of the pre- revised pay scale of pay) plus grade pay corresponding to the pre-revised pay scale. For example, if a pensioners had retired in the pre-revised scale of pay of Rs.18400-22400, the corresponding grade pay being Rs.10,000/- p.m., his minimum guaranteed pension would be 50% of 37,400 + Rs10,000/- (i.e. 23,700). The revision of family pension will be subject to the provision that the revised family pension in no case shall be lower than 30% of the sum of the minimum of the pay in the pay band plus the grade thereon corresponding to the pre- revised pay scale in which the pensioner/deceased government servant had last worked. The procedure to be adopted by the disbursing authorities shall be on the line of Finance Department Resolution No.PPF/1099/GOG-1(2)-P, dated 1.11.2000. A statement indicating the minimum pension/family pension corresponding to each of the pre-2006 scales of pay is enclosed at Annexure-III."
10.2 Annexure-D is the resolution dated 04.12.2009 which was passed as a result of representation made by various unions/employees. It is clarificatory in nature. It reiterates the pay- scales for the post of Lecturers (Selection Grade), Readers, Assistant Librarian/College Librarian (Selection Grade) and Deputy Librarian, as indicated in Annexure-A. Insofar as Lecturers (Selection Grade) and Readers are concerned, the pre-revised pay- scales is Rs.12,000-420-18,300 and revised pay band as recommended by the University Grant Commission and accepted by the Central Government by its letter dated 31.12.2008 has Page 10 of 35 C/SCA/13590/2013 JUDGMENT been split into two pay-scales being Rs.15,600-39,100 with an academic grade pay of Rs.8,000/-for Assistant Professor and Rs.37,400-67,000 with an academic grade pay of Rs.9,000/- for Associate Professor. The pay band of Rs.15,600-39,100 is applied to in service Readers as well as Lecturers (Selection Grade) who have not completed three years of service in the pre-revised scales and the pay band of Rs.37,400-67,000 is applied to the said cadres completing three years of service in the pre-revised scales.
It is evident from the resolution dated 26.02.2014 and other relevant documents that three pre-revised pay-scales being Rs.8000-13500, Rs.10,000-15200 (Senior Scale) and Rs.12000- 18300 (Selection Grade) were applicable by virtue of resolution dated 07.09.1998 to the post of Lecturers/Readers. All these pay- scales were assimilated into one scale in the revised pay-scales as per the recommendation of the 6th Pay Commission being Rs.15,600-39,100 with the only difference being the grade pay of Rs.6,000/-, Rs.7,000/- and Rs.8,000/-, respectively. 10.3 The questions as to whether in absence of the authority with the respondents to take into consideration the last post held by the pensioners under the Rules of 2002, the resolutions aforementioned are contrary to the said Rules and consequently the need to interpret various Government Resolutions dated Page 11 of 35 C/SCA/13590/2013 JUDGMENT 13.04.2009, 04.12.2009, 26.02.2014 and 01.11.2000 as also the 'pensionable pay' envisaged in the Gujarat Civil Services (Pension) Rules, 2000 arise for consideration in this group of petitions. 10.4 Relying upon State of Rajasthan and others Vs. Shankar Lal Parmar (2011 (14) SCC 235) which discusses the purpose of the higher grade/senior grade or selection grade in Paragraph-23, learned Senior Advocate raised the question as to whether the purpose of higher grade scales can be nullified by the resolution in absence of the relevant Rules. The question as to whether pay-scales attached to the post can be taken into consideration for fixation of revised pension in absence of such recommendation in the 5th Pay Commission which recommends revision of pay-scales from scale to scale is also raised. It is also argued that in absence of a specific exclusion of the selection grade in Paragraph-9.2 of the resolution aforesaid, it has to be taken into consideration for revising the pension. It is also argued that the pension is a property within the meaning of Article 300A as also a fundamental right under Article 21 of the Constitution of India and the Rule contemplating the principle of last pay drawn for fixation of pension in the Rules of 2002 cannot be whittled down by the resolution dated 13.04.2009 which, in fact, is not prohibitory in nature but only postulates the procedure to be followed by Treasury Office and not to decide substantive rights. Page 12 of 35
C/SCA/13590/2013 JUDGMENT
11. Learned counsel would rely upon Sant Ram Sharma Vs. State of Rajasthan and others (AIR 1967 SC 1910) and the decision of the Delhi High Court in Writ Petition (C)No.1535/2012 (Paragraph-7). It is contended that the resolution dated 13.04.2009 clearly indicates particularly by way of illustration that selection grade is required to be taken into consideration and if, at all, anomaly is created by Clause 9.2 thereof, the benefits must go to the petitioners.
11.1 Learned Senior Advocate Mr.S.N. Shelat appearing with Ms.V.D. Nanavati for the petitioner in Special Civil Application No.3202/2014 would contend that unlike the recommendation of the 5th Pay Commission, the 6th Pay Commission recommended the revision of pay from scale to scale and not from post to post. It is contended that therefore, the petitioners are entitled to the revised pay-scales corresponding to the revised pay-scales contemplated in the resolution dated 13.04.2009. In his submission, Clause 9.2 merely prescribes a procedure to be adopted by the Disbursing Authority and the procedure cannot circumscribe the substantive right. Learned counsel relied upon Black's Law Dictionary, 1990 Edition which defines the word 'procedural law' and 'procedure' as under:
"Procedural law. That which prescribes method of enforcing rights or obtaining redress for their invasion, Long v.Page 13 of 35
C/SCA/13590/2013 JUDGMENT Storms, 52 Or.App. 685, 629 P.2d 827, 828;
machinery for carrying on procedural aspects of civil or criminal action; e.g. Rules of Civil, Criminal, and Appellate Procedure, as adopted by the Federal and most state courts. Barker v. St. Louis County, 340 Mo.986, 104 S.W.2d 371, 377, 378, 379; Schultz v. Gosselink, 260 lowa 115, 148 N.W..2d 434, 436. As a general rule, laws which fix duties, establish rights and responsibilities among and for persons, natural or otherwise, are "substantive laws" in character, while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are "procedural laws". State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 157 N.E.2d 475, 478."
"Procedure. The mode of proceeding by which a legal right is enforced, as distinguished from the substantive law which gives or defines the right, and which, by means of the proceeding, the court is to administer; the machinery, as distinguished from its product. That which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecutions; e.g. Rules of Civil or Criminal Procedure. The judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infraction of them. Sims v. United Pacific Ins. Co., D.C.Idaho, 51 F.Supp. 433, 435.
Procedure is machinery for carrying on lawsuit including pleading, process, evidence and practice, whether in trial court or appellate court. Brooks v. Texas Emp. Ins. Ass'n Tex.Civ.App., 358 S.W.2d 412, 414.
The law of procedure is what is commonly termed by jurists "adjective law".
It was contended that post last held would only mean the last scale drawn in that post, and therefore, the Government cannot deprive the petitioners the benefits earned by them while in service.
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12. The learned Additional Advocate General Mr.Prakash Jani appearing with Mr.Ronak Raval, learned AGP for the respondent- State would contend that if the plea advanced by the petitioners is accepted, those retired in 1994 will get same benefits as those retiring on 01.01.2006 or thereafter. Referring to the resolution dated 20.01.1998 particularly Paragraph-4.1, the learned AAG would contend that all the benefits, as contemplated in the said clause, accrued to the pensioners are granted and they cannot ask for anything more than what is prescribed therein. It is argued that the consolidation of pension, as indicated in the said resolution, was done after taking into consideration the selection grade wherever applicable. The learned AAG invited the attention of this Court to Paragraph-10 of the further affidavit-in-reply filed by the first respondent. The contention is that the Rules of 2002 cannot operate in case of revision of pension post retirement. It is contended that the revision of pension has been done by applying fitment formula prescribed by the Pay Commission similar to the one prescribed for revising pay of in-service employees and in cases where the revised pension, after applying fitment formula happened to be less than 50% of the minimum of the revised scale of the post last held by the pensioners, necessary stepping up was done to 50%. It is contended that 50% of the minimum of revised pay-scales of Lecturer is Rs.10,800=15,600 + 6,000 = 21,600/2 = 10,800/- as on 01.01.2006. It is contended, by citing illustration in Page 15 of 35 C/SCA/13590/2013 JUDGMENT respect of petitioner no.2, that as per the revision of pay rules with effect from 01.01.1973, the pay-scales of the Lecturer was Rs.700- 40-1,100-50-1,600 and that he retired in the year 1994 as Lecturer with the pay-scales of Rs.2200-4000 and on account of selection grade, the said petitioner was getting salary of Rs.4,825/- in the senior scale/selection grade of Rs.3700-5700 and his pensionable pay was Rs.4,713/- and accordingly, the pension was fixed at Rs.2,357/- and thus the said petitioner was drawing the said amount as on 1995 and with effect from 01.01.1996, the fitment as prescribed in the resolution dated 20.01.1998 was implemented and the pension was accordingly revised. It is contended that since the basic pension of the said petitioner as on 31.12.1995 is Rs.2,357/-, the revision formula, as indicated in the recommendation of the 5th Pay Commission, was adopted and the pension of Rs.6,203/- was fixed. It is contended that thereafter, on merger of the dearness allowance, the pension was revised to Rs.9,205/- and again, as on 01.01.2006, after adopting the prescribed formula, the pension in case of second petitioner was revised to Rs.14,021/-.
12.1 It is contended that the petitioners' claim for revised pension equivalent to the in-service employees as on 01.01.2006 is based on misconception of fact that they are in service on that date. It was argued that all the pensioners in the State are treated equally Page 16 of 35 C/SCA/13590/2013 JUDGMENT and the petitioners have no right to claim the pension on the aforementioned misconceived premise.
12.2 The learned AAG also contended that the illustration in the resolution dated 13.04.2009 is only for the purpose of arriving at the minimum of the pay-scales in fixing the cap of 50% of the pension and as indicated in Rules 80(2) and 9(56) of the Rules, pensionable pay must be actually earned and those not in service as on 01.01.2006 cannot earn the pension, and therefore, Rules of 2002 would not apply to them. It was argued that in absence of a specific provision in the Rules providing for revision of pension, the argument advanced by Mr.Shalin Mehta, learned Senior Advocate for the petitioners for the applicability of the Rules of 2002 deserves no merit.
12.3 The submission made by the learned AAG is that there is no basis for challenge to the resolution and the fundamental right is restricted to get the pension but the revision of pension by executive instructions is not a fundamental right and that higher pay-scales or senior grade or selection grade etc. can be considered only at the time of superannuation of an employee but not at the time of revision of pension after superannuation. It is argued that acceptance of the contentions raised by the petitioners would result into introduction of a new formula not Page 17 of 35 C/SCA/13590/2013 JUDGMENT contemplated in the relevant resolution in case of retirees retiring on or around the year 1995. It is contended that after detailed consideration by experienced and Senior Officers, a legal and proper decision, as reflected in the impugned resolution, was taken and that being the policy decision adopted by the State, this Court, under its extraordinary jurisdiction under Article 226 of the Constitution of India, should not examine the decision as only decision making process can be subject to the judicial review in policy matters. The learned AAG would rely upon the following cases in support of the aforesaid contentions:
(i) Tata Cellular Vs. Union of India (AIR 1996 SC 11)
(ii) Sanchit Bansal and another Vs. Joint Admission Board (JAB) and others (AIR 2012 SC 214)
(iii) State of Kerala and others Vs. Kandath Distilleries (2013 (6) SCC 573)
(iv) M/s.Shri Sitaram Sugar Company Limited and another Vs. Union of India and other (AIR 1990 SC 1277)
(v) Amaliyar Jayeshkumar Vichiyabhai Vs. State of Gujarat (2007 LawSuit(Guj) 2228)
(vi) K.S. Krishnaswamy Vs. Union of India (2006 LawSuit (SC) 1061)
13. Having considered the rival contentions, pleadings and the documents on record, it is relevant, at this stage, to refer to the relevant decisions in relation to exercise of extraordinary powers Page 18 of 35 C/SCA/13590/2013 JUDGMENT by the High Court under Article 226 of the Constitution of India. 13.1 In Tata Cellular (supra), the Supreme Court, while considering the extent or scope of judicial review in relation to the contractual powers exercised by the Government bodies, held as under:
"93. The duty of the Court is to confine itself to the question of legality. Its concern should be;
1. whether a decision-making authority exceeded its powers?
2. committed an error of law.
3. committed a breach of the rules of natural justice.
4. reached a decision which no reasonable Tribunals would have reached or.
5. abused its powers.
94. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality : This means the decision-maker must understand correctly the law regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
95. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department ex parte Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, 'consider whether something has gone wrong of a, nature and degree which requires its intervention."
13.2 In Sanchit Bansal (supra), the Supreme Court was concerned with admission to IIT entrance exam and the procedure Page 19 of 35 C/SCA/13590/2013 JUDGMENT adopted for fixing cut off marks with object to select candidates well equipped in all subjects, with reference to their merit, weighed against average merit of all candidates who appeared in examination. In that context, Paragraph-18 is as under:
"18. .....Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review...."
13.3 In Kandath Distilleries (supra), the Supreme Court was confronted with the question as to whether a writ can be issued asking the State to part with its exclusive right or privilege of dealing with potable liquor and in Paragraph-30, it was held thus:
"30. The legislature when confers a discretionary power on an authority, it has to be exercised by it in its discretion, the decision ought to be that of the authority concerned and not that of the court. The Court would not interfere with or probe into the merits of the decision made by an authority in exercise of its discretion. The court cannot impede the exercise of discretion of an authority acting under the statute by issuance of a writ of mandamus. A writ of mandamus can be issued in favour of an applicant who establishes a legal right in himself and is issued against an authority which has a legal duty to perform, but has failed and/or neglected to do so, but such a legal duty should emanate either in discharge of the public duty or operation of law. We have found that there is no legal duty cast on the Commissioner or the State Government exercising powers under Section 14 of the Act read with Rule 4 of the 1975 Rules to grant the licence applied for. The High Court, in our view, cannot direct the State Government to part with its exclusive privilege. At best, it can direct consideration of an application for licence. If the High Court feels, in spite of its direction, the application has not been properly considered or arbitrarily rejected, the High Court is not powerless to deal with such a situation that does not mean that the High Court can bend or break the law. Granting liquor licence is not like granting licence to drive a cab or parking a vehicle or issuing a municipal licence to set up a grocery or a fruit shop.Page 20 of 35
C/SCA/13590/2013 JUDGMENT Before issuing a writ of mandamus, the High Court should have, at the back of its mind, the legislative scheme, its object and purpose, the subject matter, the evil sought to be remedied, State's exclusive privilege etc. and not to be carried away by the idiosyncrasies or the ipse dixit of an officer who authored the order challenged. Majesty of law is to be upheld not by bending or breaking the law but by strengthening the law."
13.4 In M/s. Shri Sitaram Sugar Company Limited (supra), the Supreme Court was concerned with Section 3(3C) of the Essential Commodities Act in relation to fixation of price of levy sugar and in Paragraphs-57 and 58, it was held thus:
"57. Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert"
by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J. in Gupta Sugar Works (AIR 1987 SC 2351 at p. 2352) (supra):
"the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination."
58. Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi Valley Barge Line Company v. United States of America (1933) 292 US 282-290: 78 Law ed 1260, 1265:
"The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commission by training and experience is qualified to form .......It is not the province of a court to absorb this function to itself .... The judicial function is exhausted when there is found to be a Page 21 of 35 C/SCA/13590/2013 JUDGMENT rational basis for the conclusions approved by the administrative body".
13.5 In Amaliyar Jayeshkumar Vichiyabhai (supra), this Court laid down the following principle in Paragraph-14:
"14. This Court has purposely given the aforesaid details. As such, there is no need to give the said details by the Court. The policy is framed by the Expert Committee or persons, those who are competent and experts, to frame such policy. The Court has to only consider whether the policy framed is arbitrary, capricious or violative of statutory rights or creating any discrimination between the persons and then only the Court can entertain such petitions.
13.6 In K.S. Krishnaswamy (supra), also, the principle that the policy matters of the State cannot be interfered with unless exceptional case is made out was reiterated.
13.7 What can be deduced from the series of the aforementioned authorities is that the policy matters which otherwise are not in conflict with the constitutional scheme or are not illegal, arbitrary, discriminatory or the likes, cannot be interfered with. To find out whether there is scope of interference, the Court will examine the decision making process in such matters. Keeping in view the above principles, it needs to be examined whether the policy contained in the resolution in question is sustainable in light of the constitutional provisions.
13.8 It cannot be disputed that the purpose of senior scale, selection grade, super-time scale, etc. is to encourage the human Page 22 of 35 C/SCA/13590/2013 JUDGMENT resource in absence of sufficient promotional avenues in their service career. Once granted, such benefits stand translated into the pay package for the employee concerned, and thereby, a fundamental right to receive such pay accrues to him. In the event of retirement, an employee carries with him the rights in pursuant to the service conditions accrued to him on the date of such superannuation. All the subsequent actions of the employer in relation to such accrued rights must, therefore, conform or be in compliance with the constitutional provisions. No action resulting into deprivation of vested rights of an employee can be countenanced under Articles 14, 16 or 300A of the Constitution of India. In the light of the aforementioned principle, the facts of the instant petitions are required to be examined.
13.9 The petitioners, since the date of their retirement, have been paid pension/family pension as the case may be and whenever the pay-scales of the post on which the petitioners superannuated was revised, the pension was also correspondingly revised. There is no dispute that in pursuant to the recommendation of the 5 th Pay Commission, the petitioners' pension/family pension came to be revised. The dispute, however, arose when it came to further revision by virtue of resolution dated 13.04.2009. The dispute lies in last sentence of Clause 9.2 of the said resolution quoted above. To appreciate the purport of the resolution, a reference to its Page 23 of 35 C/SCA/13590/2013 JUDGMENT relevant provision is necessary at this stage. As per content of the resolution, it applies to the pensioners/family pensioners who were drawing the pension/family pension as on 01.01.2006 under the Gujarat Civil Services (Pension) Rules, 2002, as amended from time to time. The existing pensioners are those who were drawing the pension as on 31.12.2005 and are entitled to such pension with effect from 01.01.2006 consequent upon retirement/death of the Government Servant as on 31.12.2005. The existing pension (inclusive of commuted portion) is the sum due on 31.12.2005 and it includes a pension which became due with effect from 01.01.2006 consequent on retirement/death of the Government Servant on 31.12.2005.
13.10 Clause 3.1 of the resolution dated 13.04.2009 contemplates a formula to arrive at consolidated pension/family pension with effect from 01.01.2006. For convenience, the said clause is quoted hereunder:
"3.1 The pension/family pension of existing pre-2006 pensioners/family pensioners will be consolidated with effect from 1.1.2006 by adding together:-
1. The existing pension/family pension.
2. Dearness Pension where applicable
3. Temporary Increase (Dearness Relief) at AICPI. Drawing average index 536 (Basic year 1982=100) i.e. @ 24%) of Basic Pension/Basic Family Pension plus dearness pension as admissible vide Finance Department, Government Resolution No.HGV/2005/2174/P Dated 15th May 2006.
4. Fitment weightage @ 40% of the existing pension/family pension.Page 24 of 35
C/SCA/13590/2013 JUDGMENT Where the existing pension in (1) above includes the effect of merger of 50% of dearness relief w.e.f. 1.4.2004, the existing pension for the purpose of fitment weightage will be re-
calculated after excluding the merged dearness pay/dearness relief of 50% from the pension.
The amount so arrived at will be regarded as consolidated pension/family pension with effect from 1.1.2006." 13.11 Thus, it is clear that the total of various components referred to in Clause 3.1 would constitute the consolidated pension/family pension with effect from 01.01.2006. This sum would have, therefore, constituted a revised pension in absence of Clause 9.2. It has been emphasized in Clause 9.2 that the revised pension, in no case, shall be lower than 50% of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay-scale from which the petitioners have retired. For arriving at the said 50% of the minimum of the pay in the pay band plus the grade pay, a minimum of the pay in the pay band irrespective of the revised pay-scales of pay plus the grade pay corresponding to pre-revised pay-scales is contemplated to be taken into consideration in Clause 9.2. The plain meaning of the Clause 9.2 discussed so far would be that after arriving at the consolidated pension/family pension, as indicated in Clause 3.1, a minimum cap, as indicated in Clause 9.2, has to be applied. Cap of prescribed percentum of minimum of pay in the pay band plus the grade pay corresponding to pre-revised pay-scales from which the pensioners retired is the most important and crucial aspect that must form the decision Page 25 of 35 C/SCA/13590/2013 JUDGMENT making process of the respondents while implementing the resolution dated 13.04.2009. This clause does not leave any discretion to the respondents to modify the said provision and opt for something other than the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay-scales from which the pensioners had retired. Thus, the said minimum of prescribed percentum must necessarily correspond to pre-revised pay-scales from which the pensioners retired. The emphasize is on pre-revised pay-scales and not on the post. A preamble of resolution would show that such a decision has been taken by the State Government after considering the various aspects, as indicated therein. Therefore, if the last sentence of Clause 9.2, which reads as under:
"A statement indicating the minimum pension/family pension corresponding to each of the pre-2006 scales of pay is enclosed at Annexure-III."
is read in the manner argued by the respondents, it would lead to absurdity inasmuch as whole intention of the resolution dated 13.04.2009 will stand nullified and the purpose of paying the pension with the cap of prescribed rate in the pay band plus the grade pay corresponding to the pre-revised pay-scales from which the pensioners had retired, will be totally lost. That does not appear to be the intentions in the last sentence of Clause 9.2 of the resolution. It is rightly contended that the said sentence merely empowers the Disbursing Authority to adopt the procedure, Page 26 of 35 C/SCA/13590/2013 JUDGMENT as contemplated in the resolution dated 01.11.2000. State having taken the decision to revise the pension on the principles discussed herein in detail, it is difficult to accept the submission that it would leave everything to the Disbursing Authorities which lack an authority to review the principal decision taken in the resolution dated 13.04.2009. The substantive right to receive the pension, as indicated in Clause 3.1 and Clause 9.2, is already decided as such in the resolution dated 13.04.2009 itself. 13.12 The word 'procedure' has not been defined in any of the resolution produced on record, and therefore, it will be appropriate to rely upon its definition as contained in Black's Law Dictionary, as relied upon by the learned counsel for the petitioners. This Court has already quoted the definition 'procedural law' and 'procedure' from the Black's Law Dictionary, 6th Edition in Paragraph-17.
13.13 It is more than clear from the aforesaid definition that a method of emphasizing right or obtaining redress for a right envisaged or a machinery for carrying on procedural aspects of civil or criminal action, the mode of proceedings by which a legal right is enforced is distinguished from the substantive law which gives or defines right, that which is a machinery as distinguished from the product, that which regulates steps or an action for consumption or imposition respectively of rights and liabilities is a Page 27 of 35 C/SCA/13590/2013 JUDGMENT procedure and the law that invests a substantive right or a liability is substantive law as distinguished from the procedural law. 13.14 Thus, in the instant case, after investing a substantive right in the pensioners to receive the revised pension at the minimum of defined percentum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay-scales from which the pensioners had retired, the procedure to realize such right, as contemplated in the resolution dated 01.11.2000, is required to be resorted to and thus the last sentence in Paragraph-9.2 of the resolution does not invest any substantive authority in the Disbursing Officer to ignore the substantive right contained in the resolution dated 13.04.2009 altogether.
13.15 However, another resolution dated 26.02.2014 purportedly introducing the pay-scales of the teachers of the various universities, colleges and agricultural universities as well as technical colleges in Annexure-III of the resolution dated 13.04.2009 added a rider as under:
"As mentioned in the Para 9.2 of the Government Resolution dated 13-4-2009, the provisions of Para 3 of the Government Resolution dated 1-11-2000 i.e. pay scale of the post last held and corresponding pay scale shall only to be taken into consideration, the Senior Scale, Selection Scale or Higher Pay Scale shall not be considered. The other conditions of the said Government Resolution dated 13-4-2009, shall remain unchanged."
13.16 As indicated above, the resolution dated 13.04.2009 suggests the formula of revising the pension, as discussed in Page 28 of 35 C/SCA/13590/2013 JUDGMENT greater detail. Under the guise of addition of certain categories of the pay-scales in Annexure-III to the resolution of 2009, a clause directly in conflict with the scheme contained in the resolution dated 13.04.2009 is introduced in resolution dated 26.02.2014. As indicated above, while the resolution dated 13.04.2009 emphasizes on pre-revised pay-scales for fixing the aforestated cap, this resolution emphasizes on the last post held. Such a clause violates the right to revised pension in terms of the resolution dated 13.04.2009. It is also arbitrary as it ignores the policy contained in the resolution dated 13.04.2009. The resolution dated 26.02.2014 whittles down the intent of resolution dated 13.04.2009 position by providing that the senior scale, selection grade or higher pay-scales shall not be considered. Thus, the objectionable text in the resolution dated 26.02.2014 cannot coexist with text emphasizing on the prescribed cap of defined percentum of minimum of pay in the pay band plus the grade pay corresponding to the pre-revised pay-scales from which the pensioners have retired. In the opinion of this Court, therefore, objectionable part in the resolution dated 26.02.2014 intending to deprive the benefits as are made available to the pensioners by in the resolution dated 13.04.2009 is required to be quashed and set aside.
13.17 This leads to the question as to the scale of pay on the Page 29 of 35 C/SCA/13590/2013 JUDGMENT basis of which the pension, in the present petition, is to be revised. It is not in dispute that the petitioners had retired around 1995 in the selection grade which was revised to Rs.12,000-420-18,300 by the 5th Pay Commission. The 6th Pay Commission recommended two pay-scales against the post of Lecturer (selection grade) (including Reader) being Rs.15,600-39100 with grade of Rs.8,000/- and Rs.37,400-67,000 with the grade pay of Rs.9,000/- and henceforth the holder of such pay-scales were to be designated as Assistant Professor and Associate Professor respectively. While the pay-scales of Rs.15,600-39100 with the grade pay of Rs.8,000/- is made available to the presently working incumbents as Readers and Lecturers who were in the pre-revised selection grade but did not complete three years in the said scales as on 01.01.2006, other pay-scales are made available to the presently working Readers and Lecturers, who where in the pre-revised selection grade but did not complete three years of service in the pre- revised scales. The aforesaid aspects are clear from Schedule-A to the resolution dated 04.12.2009. The resolution dated 26.02.2014 inserted the pay-scales of various cadres by way of Annexure-IV which are meant for consideration in pursuant to the resolution dated 13.04.2009. For beneficially appreciation, table containing the pay-scales, which were inserted as above, is quoted hereunder:
Page 30 of 35
C/SCA/13590/2013 JUDGMENT Sr.No. 5th CPC Name of Correspo Correspo Pension= Family Pay Scale Pay/Band/ nding 6th nding 50% of Pension= Scale COC Pay Academic sum of 30% of Bands/Sc Grade min. of sum of ales Pay PB+AGO/ Min. of Scale PB+AGP/ Scale 1 2 3 4 5 6 7 1 8000- PB-3 15600- 6000 10800 6480 13500 39100 2 10000- PB-3 15600- 7000 11300 6780 15200 39100 3 12000- PB-3 15600- 8000 11800 7080 18300 39100 4 16400- PB-4 37400- 10000 23700 14200 22400 67000
13.18 A bare perusal of the above cited table indicates that the pay band-3 of Rs.15,600-39100 with grade pay of Rs.8,000/- is made available to the Lecturers holding pre-revised selection grade of Rs.12,000-18,300 as also Readers and the pension/family pension, they would be entitled as per the formula contemplated in report of the 5th Pay Commission is Rs.11,800/-, Rs.7,080/- as the case may be. It may be recalled that the 6 th Pay Commission recommended and the State accepted the two pay-scales against pre-revised pay-scales of Rs.12,000-420-18,300. Both these pay- scales are meant for the Lecturers in the selection grade employed as on 31.12.2005. In the affidavit-in-reply, it is made clear by the respondents that the pay-scales of Rs.15,600-39100 with grade pay of Rs.6,000/- was taken into consideration for revising the pension of the petitioners. This Court may revert back to the question as to whether a minimum of Rs.6,000/- as grade pay Page 31 of 35 C/SCA/13590/2013 JUDGMENT could have been taken into consideration in light of the discussion in detail in this judgment at a later point of time. 13.19 What is required to be seen at this stage is as to whether the appropriate pay-scale, as recommended by the 6th Pay Commission, was taken into consideration for fixation of the revised pension of the petitioners. It cannot be disputed that the petitioners having retired somewhere in the year 1995 were not in service as on 01.01.2006 i.e. the date from which the aforementioned pay-scales are applicable to the employee working as on the said date. Pertinently, the selection grade held by the petitioners earlier is now split into two selection grades; one will apply to existing employees who have not completed three years of service in the pre-revised scales of Rs.12,000-420-18,300 as on 01.01.2006; and the other will apply to those who have completed the said service. The fact remains that each of the pay-scales are applicable to the employees who were in the selection grade as on 31.12.2005. Since the petitioners were not in service on 01.01.2006, their completion or non-completion of three years of service in the revised pay-scales does not arise. The petitioners appear to be insisting for pay-scales of Rs.37,400-67,000 with grade of Rs.9,000/- on the misconceived premise or presumption that they are still in service. Undisputedly, the petitioners were given all the benefits in pursuant to the Pension Rules of 2002 on Page 32 of 35 C/SCA/13590/2013 JUDGMENT their superannuation including the pension calculated on their selection grade they held then. Merely because such selection grade is split into two scales as indicated above to the advantage of the existing Readers and Lecturers in such selection grade, it is unreasonable for the petitioners to stake the claim on the basis aforesaid. No question of treating unequals as equals arises under such circumstances inasmuch as those in service as on date of implementation of the recommendation of the 5th Pay Commission form a different class than the pensioners. The conditions of service of in-service employees can always be revised differently than the pensioners. Therefore, merely because the service conditions for existing incumbent is altered to their benefits, the pensioners cannot harp upon the same.
13.20 There is no dispute as to applicability of Clause 3.1 of the resolution dated 13.04.2009. Thus, the revised pension, as contemplated in the said clause, has properly been consolidated and the question is only that of applicability of the minimum cap, as provided in Clause 9.2 of the resolution dated 13.04.2009. As discussed in greater detail, a fixed percentum of the minimum of pay in the pay band plus the grade pay corresponding to the pre- revised pay-scales from which the pensioners retired, irrespective of the pre-revised pay-scales of the pay, is the criteria which governs the field for revision of the pension by the resolution Page 33 of 35 C/SCA/13590/2013 JUDGMENT dated 13.04.2009. In the instant case, though the pay-scales of Rs.15,600-39,100 corresponding to the pre-revised pay-scales of Rs.12,375-16500 has been taken into consideration, the grade pay of Rs.6,000/- is not correctly applied. The grade pay applicable, in such cases, as indicated in Schedule-A of the resolution dated 04.12.2009, is Rs.8,000/- and not Rs.6,000/-. Therefore, to that extent, the petitioners are entitled to succeed and suitable directions are required to be given to the respondents to revise the pension of the petitioners, accordingly.
14. Under the circumstances, the petitions partly succeed. The words 'as mentioned in the Para 9.2 of the Government Resolution dated 13-4-2009, the provisions of Para 3 of the Government Resolution dated 1-11-2000 i.e. pay scale of the post last held and corresponding pay scale shall only to be taken into consideration, the Senior Scale, Selection Scale or Higher Pay Scale shall not be considered,' as contained in the resolution dated 26.02.2014 are struck off and it is held that for revision of pension of the pensioners, only procedure contemplated in Clause 1 and 2 of the resolution dated 01.11.2000 will apply and Clause 3 will not apply.
15. The respondents are directed to reconsider the case of the petitioners by taking into consideration the Clause 9.2 of the resolution dated 13.04.2009 along with the procedure contemplated in the resolution dated 01.11.2000 except Clause 3 Page 34 of 35 C/SCA/13590/2013 JUDGMENT thereof. Rule is made absolute to the aforesaid extent.
16. Considering the advanced stage of the petitioners, the respondents are directed to carry out the exercise in terms of the judgment within a period of four months from the date of receipt of writ of this Court.
Direct Service is permitted.
(G.R.UDHWANI, J.) rakesh/ Page 35 of 35