Rajasthan High Court - Jodhpur
Manak Chand Jain vs Mohan Lal Sukhadia University,Udr.& ... on 19 August, 2011
Bench: A.M.Sapre, Dinesh Maheshwari
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D.B. CIVIL SPECIAL APPEAL(W) NO.619/2003
Manak Chand Jain
Vs.
Mohan Lal Sukhadia University & Ors.
D.B.CIVIL SPECIAL APPEAL (W) NO.137/2004
Manak Chand Jain
Vs.
Mohan Lal Sukhadia University & Ors.
..
Date of Judgment :: 19th August 2011
HON'BLE MR. JUSTICE A.M.SAPRE
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr.Mahesh Bora, for the appellant.
Mr.Jagdish Vyas, for the respondents.
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BY THE COURT: (Per Dinesh Maheshwari, J.)
These two appeals, though arising out of different orders passed in different writ petitions but involving similar nature issues between the same parties and relating to the claim of retiral benefits by the petitioner-appellant, have been considered together; and are taken up for disposal by this common judgment.
The issues involved in these matters have their genesis in the background of facts that the petitioner-appellant Manak Chand Jain, an erstwhile employee of the respondent Mohan Lal Sukhadia University, is said to have retired from service on 31.12.1996. The respondent University, by an order No.F17/Pension/Rules/MLSU/999 dated 26.05.1998 notified amended to the Mohan Lal Sukhadia University Pension Regulations, 1990 (hereinafter referred to as 'the Pension Regulations of 1990') whereby though the pay scales of its 2 employees were revised with effect from 01.09.1996 but with the stipulations, inter alia, that no arrears would accrue for the period from 01.09.1996 to 31.12.1996; and that in respect of the employees retiring during this period, no arrears of pension shall accrue and the pension on revised notional pay shall be payable with effect from 01.01.1997; and further that the commutation to such employees shall not be admissible on the revised notional pay, and the amount of commutation already paid/payable on the pre-revised pay shall be treated as final. On the same lines, by another order No. PF/MLSU/Gratuity/98/476-88 of the even date i.e., 26.05.1998, the respondent University notified amendment to the Mohan Lal Sukhadia University Payment of Gratuity to Employees Rules, 1970 (hereinafter referred to as 'the Gratuity Rules of 1970') with effect from 01.01.1997 with similar nature stipulations that in respect of the employees retiring between 01.09.1996 to 31.12.1996, the arrears of gratuity shall not be admissible on the revised notional pay; and the amount of gratuity paid/payable on the pre-revised pay shall be treated as final.
The petitioner-appellant filed the writ petition (CWP No. 3717/1999) on 15.09.1999 stating the grievance that the University denied him the benefit of commutation of pension on the basis of revised pay and wrongly calculated the same on the basis of pre-revised pay. The stand of the respondent- University in opposition to this writ petition had been that the 3 new pension rules came into effect from 01.09.1996 but then, under the corresponding amendment order issued by the University on 26.05.1998, the petitioner was not entitled to get the benefit of notional revised pay for the purpose of commutation, for having retired on 31.12.1996.
The learned Single Judge, relying on the order dated 26.05.1998 issued by the respondent University in amendment to the Pension Regulations of 1990, found that the petitioner was entitled to commutation of pension only on the basis of the pre-revised pay. An order dated 09.03.1999 as passed in CWP No.1983/1998: Ram Prasad V/s State of Rajasthan was placed for consideration before the learned Single Judge that was distinguished with the observations that therein, the incumbent retired on 31.12.1997; and the present petitioner would have drawn the benefit only if he had retired after 01.01.1997. The learned Single Judge proceeded to dismiss the writ petition by the order dated 30.05.2003 while observing, inter alia, as under :-
"5. Para 4 of order dtd.26.5.98 (Annex.P/1) passed by respondent No.3 (Comptroller, Mohan Lal Sukhadia University) has made the position clear that no arrears would accrue for the period from 1.9.96 to 31.12.96 and pension/family pension calculated on the pre-revised pay shall only be payable upto 31.12.96 and the pension/family pension on revised Notional Pay and the commutation to the employees who retired during the period from 1.9.96 to 31.12.96 would not be admissible on the revised notional pay and the amount of commutation already paid/payable on the pre-revised pay would be treated as final.
6. Since in the present case, the petitioner retired on 31.12.96, therefore, he will not entitled to commutation of pension on revised notional pay, 4 therefore, the petitioner was entitled to commutation of pension on pre-revised pay and thus the order dtd.2.9.99 (Annex.P/4) was rightly passed by the respondent No.3 (Comptroller, Mohan Lal Sukhadia University, Udaipur).
7. The learned counsel for the petitioner has placed reliance on the judgement of this Court in the case of Ram Prasad V/s State of Rajasthan (S.B.Civil Writ Petition No.1983/1998 decided on 9.3.99) and submits that the present case is squarely covered by the decision of this Court in the case of Ram Prasad (supra). The submission of the learned counsel for the petitioner carries no weight as the petitioner in that case retired on 31.12.97 whereas the petitioner in the present case retired on 31.12.96. Had the petitioner would have retired after 1.1.97, the petitioner would have been given the benefit as claimed by him, but since the petitioner in this writ petition had retired on 31.12.96, therefore, he was not entitled to commutation of pension on the basis of pay which he would be drawing on 1.1.97. Therefore, the case of Ram Prasad (Supra) stands distinguished from the facts and circumstances of the present case."
The aforesaid order dated 30.05.2003 passed in CWP No. 3717/1999 is the subject matter of challenge in one of these appeals, being SAW No. 619/2003.
Before filing the above-referred writ petition (CWP No.3717/1999), the petitioner had, in fact, filed another writ petition, being CWP No.3142/1999 on 21.08.1999 stating the the grievance against the order dated 14.08.1999 (Annex.P/2) whereby he was informed him that the payment towards gratuity earlier came to be made to him, through oversight, on the basis of revised pay scale although, as per the order dated 26.05.1998, he was entitled to receive gratuity only on pre- revised pay; and he was called upon to deposit an amount of Rs.49,102/-, said to have been paid in excess towards 5 gratuity. The petitioner contended in this writ petition that once the decision had been taken to revise the pay scale from 01.09.1996, the benefit flowing therefrom could not be denied to an incumbent like him who retired on 31.12.1996. It was submitted that Clause 2 of the amendment order dated 26.05.1998 relating to the Gratuity Rules of 1970, because of which he was held disentitled to the gratuity on the basis of revised pay, was required to be declared ultra vires and was required to be struck down for being arbitrary and unreasonable.
The said writ petition (CWP No.3142/1999) was considered later by another learned Single Judge of this Court on 18.09.2003. The learned Single Judge though noted the challenge by the petitioner to the aforesaid Clause 2 of the amendment order dated 26.05.1998 but then, held the controversy squarely covered by the earlier decision dated 30.05.2003 in CWP No.3717/1999 (as referred hereinbefore); and on this basis alone, proceeded to dismiss this writ petition. The learned Single Judge said,-
"By the instant writ petition, the petitioners have sought the relief to declare Clause 2 of Appendix-1 as ultra-vires and also to quash the impugned recovery order Annex.2.
The controversy involved in the instant case stands squarely covered by the decision of a coordinate Bench of this Court in Manak Chand Jain Vs. Mohan Lal Sukhadia University & ors., SBCWP No.3717/1999 decided on 30-5-2003, wherein the coordinate Bench held that since the petitioner (in that case) retired on 31-12-96, therefore, he will not be entitled to commutation of pension on revised notional pay and will be entitled to commutation of pension on pre-revised pay.6
In the instant case, the petitioner retired on 31-12-96 and as such he was entitled to receive the gratuity amount on the basis of pre-revised pay and not on the notional pay. Thus, in view of the aforesaid factual matrix and the decision of the coordinate Bench in Manak Chand's case (supra), the instant writ petition deserves to be dismissed.
Consequently, the writ petition lacks merit and it is accordingly dismissed. There shall be no order as to costs"
The aforesaid order dated 18.09.2003 as passed in CWP No. 3142/1999 is the subject matter of challenge in the other appeal, being SAW No.137/2004.
Assailing the order dated 30.05.2003 as passed in CWP No.3717/1999, the learned counsel for the appellant contended that the commutation is required to be allowed on the basis of pension which a person receives; and when the appellant was in service until 31.12.1996, as far as pension is concerned, it started only from 01.01.1997 and was calculated on the basis of revised pay scale. According to the learned counsel, when the pension was calculated on the basis of the revised pay scale, commutation of pension ought to have been allowed on the basis of this actual pension and could not have been ordered with reference to the pre-revised pay scale. Learned counsel also contended that the decision in CWP No.1983/1999 was erroneously held inapplicable by the learned Single Judge though having direct application to the present case.
In relation to the order dated 18.09.2003 as passed in CWP No.3142/1999, the learned counsel for the petitioner- 7 appellant contended that the challenge in the said writ petition to Clause 2 of order dated 26.05.1998 amending Appendix-I of the Gratuity Rules of 1970 has been omitted from consideration by the learned Single Judge and the case was erroneously decided as if covered by the order passed in CWP No.3717/1999. The learned counsel further contended that the offending Clause 2 ibid., deserves to be struck down for being arbitrary and unreasonable. The learned counsel again submitted that the pay scale having been revised with effect from 01.09.1996, the University could not have denied the payment of gratuity on the basis of such revised pay scale.
The learned counsel for the respondents on the other hand supported the orders impugned and submitted that the petitioner having retired on 31.12.1996, as per the amendment orders dated 26.05.1998, commutation in his case has rightly been allowed with reference to the pre-revised pay; and, similarly, the claim of gratuity as made by the petitioner also remains baseless because the gratuity is admissible only with reference to the services actually rendered and on the admissible pay scale. The learned counsel relied upon the decisions in State of A.P. and Anr. Vs. A.P.Pensioners' Association & Ors.: (2005) 13 SCC 161, State of Punjab and Ors. Vs. Boota Singh & Anr.: (2000) 3 SCC 733 and State Government Pensioners' Association & Ors. Vs. State of Andhra Pradesh: AIR 1986 SC 1907.
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Having given a thoughtful consideration to the rival submissions and having examined the impugned orders, we are not persuaded to consider interference in these matters. Though there appears to be a slight error of approach on the part of learned Single Judge so far the order dated 18.09.2003 in CWP No.3142/1999 is concerned, where challenge to the aforesaid Clause 2 in order dated 26.05.1998 relating to the Gratuity Rules of 1970 has not been dealt with but then, on the substance of the matter, none of the provisions restricting operation of the benefit of revised pay scales from a particular date appear to be suffering from any vice of unconstitutionality; and, in the ultimate analysis, the petitioner-appellant is not entitled to any of the reliefs as claimed.
By the said order dated 26.05.1998 amending the Pension Regulations of 1990, the provision was made regarding non-accrual of arrears in the following terms:-
"4.Non-accruals of arrears:
The university has revised the pay scales of University Employees w.e.f. 1-9-96 with the conditions that no arrears would accrue for the period from 1-9-96 to 31-12-1996. Accordingly on the same lines in respect of University Employees retired/died while in service during the period 1-9-1996 to 31-12- 1996, no arrears of Pension shall accrue upto 31-12- 1996. Pension/Family Pension calculated on pre- vised pay shall only be payable upto 31-12-1996 and the pension/family pension on revised Notional Pay and as per the above mentioned amendments shall be payable w.e.f. 1-1-1997. The commutation to these University Employees shall not be admissible on the revised notional Pay, and the amount of commutation already paid/payble on the pre-revised pay shall be treated as final."9
Similarly, in the other order dated 26.05.1998 whereby the University proceeded to amend the Gratuity Rules of 1970 pursuant to the orders revising the pay scales, again, in its impugned Clause 2, non-accrual of arrears was provided in the following terms:-
"2.Non-accruals of arrears:
The University has revised the pay scales of University Employees w.e.f.1-9-96 with the conditions that no arrears would accrue for the period from 1-9- 96 to 31-12-1996. Accordingly on the same lines in respect of University Employees retired/died while in service during the period 1-9-1996 to 31-12-1996, arrears of gratuity shall not be admissible on the revised Notional Pay, and the amount of Gratuity already paid/payable on the pre-revised pay shall be treated as final."
Even when the University proceeded to revise the pay scales of the employees with effect from 01.09.1996, such revision had been with the specific condition that no arrears would accrue for the period from 01.09.1996 to 31.12.1996. As a necessary corollary, it has been provided for the employees retiring during this period i.e., from 01.09.1996 to 31.12.1996 that commutation of pension would be admissible on the pre- revised pay and not on the notional pay to be fixed from 01.09.1996; and that gratuity would also be payable to them according to the pre-revised pay. There appears to be nothing wrong or objectionable in such stipulations. In the case of Boota Singh (supra), amongst other principles, the Hon'ble Supreme Court has been pleased to affirm the principle that granting of additional benefits when having financial 10 implications, specifying the date for conferment of such additional effects cannot be considered as arbitrary. In the case of A.P. Pensioners' Association (supra), the Hon'ble Supreme Court, with reference to the other decision in Amar Nath Goyal's case, has pointed out thus:
"36. In State of Punjab v. Amar Nath Goyal [(2005) 6 SCC 754] upon consideration of a large number of decisions, this Court opined that the decision of a State of limit the benefits only to employees who retired or died on or after a particular date upon calculating the financial implications thereof was neither irrational nor arbitrary. It was observed:
"28......... It is trite that, the final recommendations of the Pay Commission were not ipso facto binding on the Government, as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position. This is precisely what the Government did. Such an action on the part of the Government can neither be characterised as irrational, nor as arbitrary so as to infringe Article 14 of the Constitution."
Looking to the nature and purport of such amendments in pay scales and resultant benefits, the University cannot be faulted in providing a date from which notional benefits would be given and another cut off date whereafter actual payment would be admissible. Whenever such cut off date is provided, there could be some cases falling right on the cut off date itself, like that of the present petitioner; but for that matter, the provision is not rendered illegal or unconstitutional. The following observations made by the Hon'ble Apex Court in Government Pensioners' Association (supra), while not 11 approving some of the referred decisions of the High Courts, make it absolutely clear that the submissions as made by the petitioner do not make out a case of legal grievance,-
"The High Court considered it shocking and was carried away by the fact that an employee who retired even one day before the enforcement of the upward revision would not get the benefit if the specified date of enforcement was not effaced by striking down the relevant provision. But in all cases of prospective operation it would be so. Just as one who files a suit even one day after the expiry of limitation would lose his right to sue, one who retires even a day prior to enforcement of the upward revision would not get the benefit. This cannot be helped, there is nothing shocking in it unless one can say legislation can never be made prospective, and nothing turns on it."
Taking the case of the petitioner in SAW No. 619/2003 (relating to CWP No.3717/1999), we find that the claim for commutation of pension on the basis of revised pay is entirely baseless. Apart from the fact that the petitioner has not put the said Clause 4 of the relevant order dated 26.08.1998 to challenge in CWP No.3717/1999, the University cannot be faulted in providing that though the pay scales shall stand revised from 01.09.1996 but actual payment shall be from 01.01.1997 only and commutation would not be admissible on the revised notional pay to the employees retiring during the period from 01.09.1996 to 31.12.1996; and, for them, the amount of pension paid/payable on pre-revised pay shall be treated as final. The benefit of commutation of a part of pension could have only been allowed only on the basis of the actual pay received by the employee until the date of 12 retirement. The petitioner-appellant, who retired right at the last date of this period i.e., on 31.12.1996, could have been allowed the benefit of commutation only on the actual pay received; and the respondents do not appear having committed any illegality in doing so. The respondents have clarified in their reply that commutation has been allowed to the petitioner with reference to his service period from 14.05.1966 to 31.12.1996. As on the date of the petitioner's retirement, amendment in the Pension Regulations of 1990 has not been brought about and even when brought about by the order dated 26.05.1988, the revised pay scale was allowed to the employees with effect from 01.09.1996 with the specific condition that no arrears would accrue for the period 01.09.1996 to 31.12.1996 and no arrears would be paid to the employees retiring between 01.09.1996 to 31.12.1996.
The submission that commutation ought to be allowed on the pension payable and the pension became payable to the petitioner with effect from 01.01.1997 has its own shortcomings. The question here is not of payment of actual pension, which, it appears, has been allowed to the appellant on the basis of revised pay. The question herein is only about commutation. The respondents cannot be faulted in computing commutation amount on the basis of actual pay received by the petitioner until the date of his retirement i.e., 31.12.1996. The benefit that the petitioner wanted to derive with reference to the revised pay scale was not available to him. It is not that 13 the petitioner retired on or after 01.01.1997. The petitioner in fact retired before 01.01.1997 i.e., on 31.12.1996 and his case is directly covered by the aforesaid Clause No. 4 for non- accrual of arrears as provided in the order dated 26.05.1998 while notifying amendment to the Regulations of 1990. The learned Single Judge, in our opinion, rightly distinguished the case of Ram Prasad because therein, the employee had retired only on 31.12.1997. We are unable to find any error when the learned Single Judge has rejected the writ petition finding baseless the claim made by the petitioner for commutation on the basis of revised pay.
For the very same reasons as foregoing, we are unable to uphold the claim made by the petitioner for payment of gratuity on the basis of revised pay; and there appears nothing of arbitrariness or unconstitutionality in Clause No. 2 in the other order dated 26.05.1998 as made regarding payment of gratuity on the basis of actual pay received by the employees like the petitioner who retired on 31.12.1996. The submission that the petitioner's pay came to be fixed on 01.09.1996 at Rs.8,550/- and hence, he would be entitled to the gratuity taking into consideration such basic pay stands directly at conflict with the aforesaid Clause 2 in the order dated 26.05.1998 regarding amendment to the Gratuity Rules of 1970. It remains trite that the gratuity is ordinarily paid only once on retirement and, in the absence of expression provision, is not a part of pension. The said Clause 2 of the 14 order dated 26.05.1998 had been made precisely in conformity with the conditional amendment made in the Pension Regulations of 1990; and on the same lines, it has been provided in regard to the Gratuity Rules of 1970 that for the employees who retired during the period 01.09.1996 to 31.12.1996, arrears of gratuity shall not be admissible on the revised notional pay and the amount of gratuity paid/payable on pre-revised pay shall be treated as final.
The petitioner has challenged this clause as being arbitrary and unreasonable. Though the learned Single Judge has decided the related writ petition on the basis of decision in other writ petition and as such did not deal with the challenge to the aforesaid Clause 2 but we are unable to find any vice of illegality or unconstitutionality in this provision so as to strike it down. As noticed above, the respondent University, even while providing for revision of pay scales from 01.09.1996, was not debarred from making provision so as to take care of financial implications; and was entitled to provide a cut off date until when the actual financial benefit shall not be available or shall stand restricted. Even when the case of the petitioner falls right at the last date of such restrictions i.e., 31.12.1996, as observed by the Hon'ble Apex Court in the above quoted passage in State Government Pensioners' Association, it cannot be helped.
In the aforesaid view of the matter, the petitioner was not entitled to the reliefs claimed in either of the writ petitions; 15
and the petitions have rightly been dismissed. These appeals, therefore, remain meritless and no case for interference is made out.
In the result, both the appeals fail and are, therefore, dismissed. No costs.
(DINESH MAHESHWARI), J. (A.M.SAPRE), J.
s.soni/mk
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D.B.CIVIL SPECIAL APPEAL (W) NO.137/2004 Manak Chand Jain Vs. Mohan Lal Sukhadia University & Ors.
..
Date of Judgment :: 19th August 2011 HON'BLE MR. JUSTICE A.M.SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Mahesh Bora, for the appellant.
Mr.Jagdish Vyas, for the respondents.
This appeal is dismissed [vide common order made in D.B.Civil Special Appeal (W) No.619/2003: Manak Chand Jain Vs. Mohan Lal Sukhadia University & Ors].
(DINESH MAHESHWARI), J. (A.M.SAPRE), J.