Central Administrative Tribunal - Delhi
Dr Rishipal Sharma vs Navodaya Vidyalaya Samiti on 7 February, 2024
(OA No.693-2022)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.693/2022
Reserved on:19.01.2024
Pronounced on:07.02.2024
Hon'ble Mr. Sanjeeva Kumar, Member (A)
1. Dr.Rishipal Sharma retired as Assistant Commissioner
aged about 64 Years S/o Shri Ratan Lal Sharma R/O
H.No. A-106, Alfa-Ist Greater Noida UP- 201310. GP-A,
CAT Allahabad Bench.
2. Smt Kulta Sharma retired as PGT-Hindi aged about 64
Years D/o Shri Ambarish Kumar Sharma R/O H.No. A-
106, Alfa-Ist Greater Noida UP- 201310. GP-B. CAT
Allahabad Bench.
3. Shri V.S. Gusain retired as Assistant Commissioner aged
about 65 years S/o Shri TS Gusain R/O 78 THDC Faze -
III, Street No.05, Barjarwala Dehradun Uttarakhand. GP-
A. CAT Dehradun Bench.
4. Mrs. Surinder Pal Kaur Sidhu retired as Deputy
Commissioner aged about 64 Years D/o Shri Raghbir
Singh R/O H.No.212, Urban Estate Phase-3, Patiala
Punjab GP-A. CAT Chandigarh Bench.
5. Mr Surinder Koul retired as Vice Principal aged about 65
Years S/o Shri Durga Nath Koul R/o H.No. 85, Global
Enclave Morinda city Road Road Bari MandauliGharuan SO
Rupnagar Punjab GP- B. CAT Chandigarh Bench.
6. Mr.Balbir Singh Dhaliwal retired as vice-Principal
aged about 64 Years S/o Shri Dyal Singh R/o Vill-Gehlan
Po. Mehsampur via Bhalwan,The-Bhawanigarh Distt-
Sangrur. Punjab. GP-B. CAT Chandigarh Bench.
7. Mr. Jogendra Kumar Mishra retired as TGT Hindi aged
about 65 Years S/o Shri Banshi Dhar Mishra R/o Gupta
Colony Laxmi Nagar Gaya Bihar. GP-B. CAT Patna Bench.
(OA No.693-2022)
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8. Mr. Ashok Kumar Singh retired as Principal aged
about 65 years S/o Shri Raghu Nath Singh R/o
HNo.297, Sona Devi Niwas Jai nagar colony Station
road Ghazipur. GP-A. CAT Allahabad Bench.
9. Mr. Girish Chandra retired as Deputy Commissioner aged
about 64 Years S/o Shri Ishwari Dutt R/o A-10 Anand
vihar colony, Bhaywaropur Kathghasia Haldwani GP-
B,CAT Nanital Circuit Bench.
10. Mr.M Raghu Singh retired as Librarian aged about
65 Years S/o Shri M Mangi Singh Rio
Kakchingwairi Manipur GP-B CAT Guwahati Beuch
11. Mrs. Gul jinder Kaur retired as TGT English aged about
66 Years D/o Shri Inda Pal Singh R/o vpochimabath
Distt-Amritsar Punjab GP-B. CAT Chandigarh Bench
12. Mrs. Rita Chouhan retired as TGT Art aged about 65
Years D/o Sh. Dr.B P Singh Rio JNV Khairthal Alwar
Rajasthan GP-B CAT Jaipur Bench
13. Mrs. Rita Tiwari retired as Vice Principal aged about 65
Years D/o Shri Prahlad Pandey R/o 101, Klassic B4
Jaypee wish town sector-134 Noida UP. GP-B CAT
Allahabad Bench
14. Mr Dinesh Chandra Barthwal retired as staff Nurse aged
About 66 Years S/o Shri PD Barthwal R/o Rawan Niwas
Preet Vihar Lane-5, KanharwalaBhaniyawala Dehradun,
GP-B. CAT Dehradun Bench
15. Mr. Ashok Kumar retired as vice principal aged about 65
Years S/o Sh. Nawal Sharma R/o Vill Laraua, Post-
SagarpurDist- Jehanabad Bihar GP-B. CAT Patna Bench
16. Mr. Bipra CharavMahankuda retired as Vice Principal
aged about 65 Years S/o Shri Trinath Mahankuda R/o
Govind vihar 6/2 Line LachpadaBarhampur, Distt-Ganjam
Orissa. GP-B. CAT Cuttack Bench.
17. Mr. B Ramanjali Devi retired as Staff Nurse aged about
64 Years S/O Shri B Chittaranjan Das R/o 1845/248, I
main IX cross vinayank Vidyanagar Devangree Karnataka
GP-B. CAT Bangalore Bench.
(OA No.693-2022)
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18. Mr. Pooran Singh Manral retired as PGT History aged
about 64 Years S/o Gulab Singh Manral R/o Manral
Cottage Bharatpuri Ram Nagar Nanital GP-B. CAT
Nanital Bench.
19. Mr. Rakesh Goswami retired as music teacher aged
about 64 Years S/o Shri Nandan Goswami R/o 16/170
River Height society Rajnagar Extension Ghaziabad. GP-
B. CAT Allahabad Bench.
20. Mr. Rajiv Upadhyay retired as Assistant commissioner
aged about 66 Years S/o Shri D-1199, Indira Nagar
Lucknow UP. GP-A. CAT Lucknow Bench.
21.Mr. Kanhaiya Lal retired as Pricipal aged about 65 years
S/o Shri Bipat Lal R/o Kailash Vihar Colony Amausi
Sarojni nagar Lucknow UP, GP-A, CAT Lucknow Bench.
22. Mr. Adhir Kumar Das retited as PGT History aged about
64 S/o Shri V Dambarudhar Das R/o Plot No.398/13,
Laxmi Nagar pateaBhubneshwar Odisha. CAT Cuttack
Bench
23.Mr. Kewala Nand Upadhyay retired as Asst Commissioner
aged about 66 Years S/o Shri Revadhar Upadhyay R/o
21 Adarsh Vihar Niliyam colony Haldwani Diste-Nainital
UK GP-A CAT Nanital Circuit Bench
24. Dr. DL Pareek retired as Vice principal aged about 65
yours So Shri KL. Pareek Rio 55 B Tejaji Nagar mear Sri
Gopal magar post Shyam nagarjaipur Rajasthan, GPA
CAT
25. Mr. Sharanappa R Angali retired as vice principal aged
about 65 years S/o Shri RudrappaAngali R/o
KallinathKrug Road Bhagya Nagar cross koppal
Karnataka GP-A CAT Bangalore
26. Mr. Shridhar M Waramballi retired as TGT Hind aged
about 65 years S/o Shri B ManjurathWarambolli R/o
1057 Hills ParadiscoChannareddy Bangalore, GP-B, CAT
Bangalore.
(OA No.693-2022)
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27. Mr Madan lal Gupta retired as Vice Principal age about
65 years S/o Shri Des Raj Gupta R/o ward No.01,
ramrnik Bihar opposite Degree college Kathua Distt-
Kathua J & K.. Group-B, CAT-Jammu.
28. Mr. Ravinder Shripad kane retired as PET aged
about 64 years S/o Shri Raju bhan Joshi R/o 55
Dindyal nagarswavlambigruhariman Santha Nagpur.
Maharashratha, GP-B, CAT- Nagpur bench.
29. Mr. Arvind Daulat rao Kale retired as Art teacher
aged about 64 years S/o Shri Daulat rao S kale R/o
H.no. 07, Sadichha colony Mosshi rod Amravat (MS),
Cp-B, CAT-Nagpur
30. Mrs M Madhu Bala Devi retired as Music teacher
aged about 64 years D/o Shri M Thambalangou
Singh R/o Nachou khor leikai post-Bishnapur
Manipur Gp-B, CAT Guhawati
31. Mr MD Amanullah retired as Principal aged about
65 years S/o Shri MD Ataullah R/o
DanubighamanjhoshmakhdumprurJehenabad
Bihar Gp-A, CAT-Patna.
32. Smt Sushma Grover retired as TGT-Hindi aged
about 66 years D/o Shri DN Bhalla R/o Suchara
Niwas behind church parabat pura Ajmer
Rajasthan, GP-B, CAT-Jaipur. ...Applicants.
(By Advocate: Shri Durgesh Kumar Sharma)
Versus
1. Union of India through the Secretary, Minister of
HRD, Department of Education, Govt. of India,
Sastri Bhawan, New Delhi.
2. The Secretary, Ministry of Finance, Department of
Expenditure, Govt. of India, New Delhi.
3. The Commissioner, Navodaya Vidyalaya Samiti,
B-15, Institutional Area, Sector 62, Noida (UP).
...Respondents
(By Advocate: Shri G.S.Virk)
(OA No.693-2022)
(5)
ORDER
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have sought the following relief(s) :-
"(a) The Hon'ble Tribunal may graciously be pleased to quash and set aside the speaking (impugned order) dated 14 Dec 2021 issued by respondent No.03 on the instruction/direction of respondent No.01 &
02 in the interest of justice.
(b) The Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant the benefits of enhance rate of gratuity @ Rs.20 lakh to applicants and also remaining/balance amount of gratuity be paid to applicants along with interest @ 12% per annum from the date of retirement till the payment is being made in the interest of justice.
(c) To award the costs for litigation expenses, mental harassment & agony @ Rs.75,000/-
against the respondents in favour of applicants in the interest of justice.
(d) Any other relief or order which this Hon'ble Tribunal considers appropriate in applicant's favour, in the facts and circumstances of this case."
2. The applicants have filed the present OA against the alleged inaction of the Respondents, by which the respondents who have though paid all the retirement benefits to all applicants as per the 7th CPC as the effective date of implementation of 7th CPC was 01.01.2016 but only (OA No.693-2022) (6) a gratuity amount Rs.10 lacs (maximum limit) was paid to applicants according to old Notification whereas all the applicants are entitled for the enhanced rate of gratuity limit (maximum) @ Rs.20 lakh.
3. The facts of the case, in brief, as indicated in the OA are that the applicants joined the Navodaya Vidyalaya Samiti (NVS) prior to 01.01.2004 on the post of TGT/PGT/Vice Principal/Principal and subsequently got promoted/higher scale in accordance with the departmental examinations/policies. It is submitted that the payment of gratuity act is a piece of social welfare legislation and deals with the payment of gratuity which is kind of retirement benefit like pension, provident fund etc. A gratuity in its etymological sense is a gift, especially for services rendered. It has been universally recognized that all persons in society need protection against the loss of income due to unemployment arising out of incapacity to work due to invalidity, old age. Thus, the main purpose and concept of gratuity is to help the employee after retirement whether retirement is a result of rules of superannuation or physical disablement or impairment of vital part of the body. It is further submitted that gratuity is an amount paid (OA No.693-2022) (7) unconnected with any consideration and not resting upon it and has to be considered as something given freely voluntarily or without recompense. Keeping in view, the NVS vide its order No.1-18/2001-NVS (Admin) dated 23 Nov 2001 adpoting the Payment of Gratuity Act, 1972 for the employees of NVS, mutatis mutandis with effect from 03 April 1997.
4. Subsequently, the NVS vide its notification dated 30th May 2008 has framed "Navodaya Vidyalaya Samiti Payment of Gratuity Rules 2007" for regulating payment of gratuity to the employees of the samiti. It was stated that these regulations will be applicable to the employees till such time the Payment of Gratuity Act, 1972 is amended to include teachers for gratuity benefits. Thereafter the Samiti will either follow the amended payment of Gratuity Act or seek exemption from the act under Section 5 of the act if it wishes to continue under these regulations. These regulations will come into force with effect from the date of this notification. All cases relating to payment of gratuity to the employees of samiti will henceforth be determined as per these rules.
(OA No.693-2022) (8)
5. The NVS vide its notification No.F, No.1-18/2001- NVS(Admin)/1133 dated 10 Nov 2009 enhanced the ceiling from 3 lac fifty thousand to ten lacs with the orders issued by Govt of India, Ministry of Personnel Public Grievances, and Pension Deptt of Pension and Pensioners welfare vide OM No.38/37/08-P & PW(A) dated 2nd September, 2008. Subsequently, the NVS vide its notification No.F,No.1- 18/2001- NVS(Admin)/1148 dated 13th November, 2009 categorically stated in the said notification, "In continuation of the Samiti's notification Number No.F, No.1-18/2001- NVS (Admin)/1133 dated 10 Nov 2009, it is informed that enhanced rate for payment of Gratuity will be applicable in case of employees retiring after Ist January 2006.
6. It is submitted that all the applicants according to their post on attaining the age of superannuation retired between the period from 01.01.2016 to 28.03.2018 and their retirement benefits except gratuity given to them as per the 7th CPC as the effective date of implementation of 7th CPC was 01 Jan 2016 whereas a gratuity amount @ Rs. 10 lacs (maximum limit) was paid to the applicants according to old notification/limit not as per the enhance limit of Rs.20 lakhs as applicable to all Central Government employees who were (OA No.693-2022) (9) retired on or after 01.01.2016. It is further stated that the NVS vide its letter No. F.1- 7/2018-NVS(Admn)/754 dated 17 Feb 2021 submitted the desired information to Ministry of Education in response to their letter No. 17-30/2018-UT.3 dated 07 Dec 2020 for enhancement of gratuity amount limit @ Rs.20 lakhs was to be payable to employees of NVS retired in the period from 01.01.2016 to 28.03.2018.
7. The Govt of India, Ministry of Personnel Public Grievances, and Pension Deptt of Pension and Pensioners welfare vide OM. No, FNo.38/37/2016-P&PWA dated 04 Aug 2016 implementation of government's decision on the recommendation of the 7th Central Pay Commission revision of provisions regulating pension/disability pension/ex gratia lump sum compensation etc. In this OM it was mentioned that the revised provisions as per these orders shall apply to Government servants who retire/die in harness on or after 01.01.2016. The maximum limit of retirement gratuity and death shall be Rs.20 lakh. Consequent to this, all the employees who have been retired on or after 01.01.2016 got the benefits of enhanced rate of gratuity maximum @ Rs.20 lakh whereas the NVS did not grant the benefit of same though the NVS in earlier occasion at the implementation of (OA No.693-2022) (10) 5th & 6th CPC paid the enhanced rate at par with other Central Government employees. It is submitted that the Kendriya Vidyalaya Sangahtan (KVS) which is also an autonomous body & educational institute like NVS under the same ministry fully funded by GOI like NVS implemented the same regulation and paid the enhanced rate of gratuity limit @ Rs.20 lakh to their teachers/employees who were retired on or after 01.01.2016.
8. The applicants submit that GOI vide its S.O. 1420 (E) dated 29 March 2018, in exercise of the powers conferrred by sub section(3) of secion (4) of the payment of Gratuity Act, 1972 specified that the amount of gratuity payable to an employee under the said act shall not exceed twenty lakhs rupees and the date of effective this notification w.e.f. 29th March 2018.
9. Being aggrieved to inaction and discriminatory of NVS, applicants through their Association approached to the competent authority for the implementation of enhanced rate of gratuity @ Rs.20 lakh (maximum limit) but same was not given to applicants despite of their repeated request made by all of them to the competent authority but no avail.
(OA No.693-2022) (11)
10. The NVS vide its notification dated 24 Feb 2020 notified that the ceiling limit of Gratuity has been enhanced from Rs. 10 lakh to Rs. 20 lakh with effect from 29.03.2018 in respect of the employees who joined the NVS prior to 01.01.2004. It was also notified that the NVS payment of gratuity rules 2007 hither to in operation has been scrapped. Henceforth the payment of Gratuity as amended from time to time under payment of Gratuity act 1972 (amended in 2018) will be applicable for employees of NVS who joined NVS prior to 01.01.2004. This was in light of the approval of the Ministry as communicated vide letter dated 11.02.2020.
11. It is submitted that without granting the benefits of enhanced rate of gratuity limit @ Rs. 20 lakhs to applicants NVS scrapped its own rule against the rule of natural justice, thus violated the statutory/fundamental rights of applicants.
12. The Ministry of Finance, Department of Expenditure vide its letter dated 19 May 2021 stated that this department has only conveyed its "No Objection" to the proposal of Ministry of Education for implementation of payment of Gratuity act 1972 which is administered by the M/o Labour & Employment and grant of gratuity benefits to employees of NVS was subsequently denied on account of financial crunch (OA No.693-2022) (12) and organization's inability to generate funds to meet this liability. The applicants submit on the grounds of equity and parity with other similarly situated organizations, gratuity benefits may be extended to the applicants who were retired in period from 01.01.2016 to 28.03.2018, as gratuity is an important social security factor after retirement.
13. Consequently being aggrieved from all corners, applicants through its retired employees association filed the OA No. 2081/2021 before the Hon'ble CAT Mumbai regional bench for the grant of enhance rate of gratuity amount to applicants and same was disposed of with direction to respondents to consider and dispose of the representation as per the law and speaking order within a period of eight week from the date of receipt. Subsequently representation of applicants was rejected by respondent No.03 vide dated 14 Dec 2021 and stated that "regarding enhancement of gratuity limit from Rs.10 lakh to Rs.20 Lakh for NVS employees retired between 01.01.2016 to 28.03.2018, it is to inform that the proposal was considered by GOI but same has not been agreed to." Thereafter, the present OA has been filed.
(OA No.693-2022) (13)
14. The applicant are seeking relief on the following grounds:
i) The respondents not granted the benefits of enhance rate of gratuity @ Rs.20 lakh (Maximum Limit) to applicants at par with the other permanent employee (KVS) & other central govt employees is clearly violation of fundamental rights of the applicants.
ii) The applicants No-1 to 20 was retired as TGT/PGT/Vice Principal/ Principal/ Asst. Commissioner/ Deputy Commissioner in NVS on or after 01.01.2016 thus entitled for enhance rate of gratuity @ Rs.20 lakh(Maximum Limit).
iii) The respondents deliberately not granting the benefits of enhance rate of gratuity @ Rs.20 lakh (Maximum Limit) to applicants.
iv) The applicants are not treated equally at par with the other teachers/employees of KVS despite of same educational institution under the same ministry.
v) The respondents is state which cannot discriminate the applicants by not giving them benefits of enhance rate of gratuity @ Rs.20 lakh (Maximum Limit) for an uncertain periods in the present juncture of life.
(OA No.693-2022) (14)
15. In support of their claim, the applicants have cited a catena of judgments as follows:
a) The Hon'ble Apex Court in Deokinandan Prasad Vs State of Bihar AIR 1971 SC page 1409 has held "that pension/retirement benefits is not a bounty payable on the sweet will and pleasure of the Government servant.
b) The Hon'ble Supreme Court in Kallakkarichi Taluk Retired official associations Vs State of Tamilnadu (2013) 2 SCC 772 has also held that financial implications cannot form the basis of determining matter concerning pension and other retirement benefits and same view has been taken by again in All Manipur Pensioners Associations Vs State of Manipur (CA No 10857/2016 decided on 11.07.2019).
c) The Hon'ble Madras High court in W.A.1478/2016 in P.Selvaraj VS Management of Shardlow India, "The gratuity act is beneficial piece of legislation and it should receive an interpretation consistent with principles of equity and fair play. Therefore, the term last drawn wage found in section 4(2) of the gratuity act should receive its full meaning and it cannot give any fractured interpretation. Further the settlement provides as to what should be wages that should be paid to a workman and the management cannot adopt an (OA No.693-2022) (15) artificial interpretation with reference to the term wages. It is in this context the term wages which is defined under the gratuity act must include not only what is paid what is payable to a workman.
d) In Jaipal v. State of Haryana, the Apex Court observed that the doctrine of equal pay for equal work would apply on the premise of similar work but it does not mean that there should be complete identity in all respects. If the two classes of persons do some work under the same employer with similar responsibility, under similar working conditions, the doctrine of equal pay for equal work would apply and it would not be open to the state to discriminate one class with other in paying salary.
e) The Apex Court in D.S.Nakara and Ors. vs. Union of, India "while affirming this passage has observed that Article,38(1) enjoins the State to strive to promote welfare of the people, by eliminating inequalities in income; that Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women.
f) The Hon'ble Apex court in State of UP &Ors Vs Arvind Kumar Srivastav &Ors SCC(347) 2015 held that non extension of benefit, accorded in favour of a particular set of (OA No.693-2022) (16) employees by the court to similarly situated persons violates Article 14 of the constitution of India as like should be treated alike.
16. The respondents have filed reply stating that the gratuity to the employees of the Samiti was being paid as per the NVS payment of gratuity rules 2007. After introduction of the gratuity (Amendment) Act 2018, the Samiti approached the Ministry of Education vide letter no. 1-7/2018-NVS (Admn.) dated 6.9.2018 for enhancement of ceiling of payment of gratuity to the employees of the NVS from Rs. 10 lakhs to Rs. 20 lakhs. The Ministry of Education vide their letter no. 17.30/2018-UT-3 dated 11.02.2020 approved the enhancement of ceiling of payment gratuity to the employees of the NVS from Rs. 10 lakhs to Rs. 20 lakhs i.e. the date prescribed in the notification issued by the Govt. under the payment of gratuity (Amendment) act, 2018 (Annexure-C1). The Navodaya Vidyalaya Samiti vide letter no. 1-7/2018/-NVS(Admn.)/947 dt. 03.09.2020 again requested Ministry of Education for the enhancement of ceiling of payment of gratuity from Rs. 10 Lakhs to Rs. 20 Lakhs for the employees retiring between 1.1.2016 to 28.3.2018 on the ground that the Department of Pension (OA No.693-2022) (17) and Pensioners Welfare vide OM dated 4.8.2016 enhanced the maximum limit of retirement gratuity and death gratuity for the Central Govt. Employees to Rs.20 lakhs from 1.1.2016. The Ministry of Education, however, sought subsequent clarification on the proposal sent to the Ministry which was replied vide Samiti's letter no. 1-7/2018- NVS(Admn)/754 dated 17.2.2021. The Ministry of Education vide their letter no. 17-30/2018-UT-3 dated 17.6.2021 informed that the matter was taken up with the Department of Expenditure, Ministry of Finance for their consideration and approval. In response, Department of Expenditure has conveyed that the NVS, an autonomous body, has adopted the Payment of Gratuity Act, 1972 in consultation with them and they are of view that it is imperative to adhere to the effectiveness of date of revised ceiling in terms of Government of India decision notified vide Gazette Notification dated 29.03.2018 which is effective prospectively and uniformly applicable in case of all other organizations falling under this Gratuity Act as making any exception for a particular organization may not be in order. Therefore, the enhanced ceiling of gratuity is effective from 29.03.2018. The Govt. of India scrapped the ongoing NVS payment of Gratuity rules 2007 and implemented the (OA No.693-2022) (18) payment of Gratuity Act 1972 for the pre 2004 employees of NVS and hence, the enhanced gratuity of Rs. 20 lakhs to the employees of the NVS, is applicable from the date of Gazette notification dated 29.3.2018 and hence as per the enhanced ceiling of gratuity i.e. Rs. 20 lakhs is not admissible to the employees of the Samiti retired in between 1.1.2016 to 28.3.2018. It is submitted that NVS on its own cannot take unilateral decision with regard to extend the enhanced ceiling of gratuity upto Rs. 20 lakhs to the pre-2004 employees retired in between 1.1.2016 to 28.3.2018 as NVS is dependent upon its nodal Ministry of Education (Department of School Education & Literacy) Govt. of India who has also been impleaded as party respondent in the instant OA apart from impleading the Ministry of Finance, Department of Expenditure, Govt. of India. In view of the aforesaid facts of the case, the applicants herein are not entitled for any of the relief as prayed for in the instant OA and the same is bereft of any merit and is liable to be dismissed at the very threshold.
17. The respondents submit that pre-2004 employees of the NVS are governed under the Gratuity Act 1972 and hence, the payment of gratuity to the retired pre-2004 employees (OA No.693-2022) (19) of the Samiti are made in accordance with the provisions of the said act and orders / Govt. gazette issued thereunder from time to time. The employees of the Navodaya Vidyalaya Samiti have not been extended the CCS (Pension) Rules, 1972 by the Govt. of India and hence the payment of gratuity under the said rules are not applicable to the employees of the NVS. They further submit that a Clause was incorporated in NVS Payment Gratuity Rules, 2007 that the rules may be applicable to NVS till such time, payment of Gratuity Act, 1972 is amended to include teachers for Gratuity benefits. The payment of Gratuity Act, 1972 was amended in the year 2009 to include the teachers under the purview of payment of Gratuity Act, 1972. NVS vide notification dated 24.2.2020 scrapped NVS payment of Gratuity Rules, 2007 and made applicable payment of gratuity, as amended from time to time, under the payment of Gratuity Act, 1972 to the employees of NVS who joined NVS prior to 1.1.1974. It is also submitted that the case laws as cited by the applicant in para under reply are not squarely applicable in respect of the issues involved in this case as the Govt. of India has extended the ceiling of Gratuity amount of Rs. 20 lakhs under the Gratuity Act 1972 from Rs.10 lakhs to Rs. 20 lakhs by gazette notification (OA No.693-2022) (20) notified on 29.3.2018 which is effective prospectively and uniformly applicable in case of all other organizations falling under the Gratuity Act 1972 and any exception for a particular organization is not in order and therefore the enhanced ceiling of gratuity is effective from 29.3.2018 to the pre-2004 employees of the Samiti who retired on or after 29.3.2018 and the employees of the Samiti who retired in between 01.01.2016 to 28.03.2018 are entitled to claim gratuity as per the ceiling of Rs. 10 lakhs as applicable. Thus, the grounds taken in the present OA are devoid of merit and as such O.A. is liable to be dismissed.
18. I have heard Shri Durgesh Kumar Sharma, learned counsel for the applicants and Shri G.S.Virk, learned counsel for the respondents and also perused the pleadings on record, including the counter reply filed by the respondents and the rejoinder filed by the applicants.
19. The undisputed facts of the case are that initially the gratuity to the employees of Samiti was being paid as per the NVS Payment of Gratuity Rules 2007. Gratuity Act, 1972 becomes but only till such time the Gratuity Act, 1972 was amended. However, the rules were amended in 2018. After introduction of the Gratuity (Amendment) Act, 2018, the (OA No.693-2022) (21) Samiti approached the Ministry of Education on 06.9.2018 for enhancement of ceiling of payment of gratuity to the employees of the NVS from Rs. 10 lakhs to Rs. 20 lakhs. Though the Ministry of Education vide their letter dated 11.02.2020 approved the enhancement of ceiling of payment gratuity, they took up the matter with the Department of Expenditure, Ministry of Finance for their consideration and approval as per the procedure. However, the Department of Expenditure did not agree to the proposal asserting that the NVS is an autonomous body, which adopted the Payment of Gratuity Act, 1972 in consultation with them and it is mandated for them to adhere to the effectiveness of date of revised ceiling gratuity which was notified on 29.03.2018. The cut-off date is effective prospectively and uniformly applicable, in case of all other organizations falling under the Gratuity Act.
20. This is also not in dispute that the Government of India scrapped the ongoing NVS payment of Gratuity Rules 2007 and implemented the payment of Gratuity Act 1972 for the pre-2004 employees of NVS as amended in 2018 and the gratuity money was sanctioned to them as per the said rules.
(OA No.693-2022) (22)
21. From the above, it is evident that the 2018 (Amendment) Rules became effective through Gazette Notification dated 29.03.2018. The question for consideration before the Tribunal is whether such cut-off date fixed by the respondents which leaves out the employees' who retired between 01.01.2016 to 28.03.2018 from the benefit of enhanced gratuity is justified or not. There is no doubt that through a Gagette Notification dated 29.03.2018, a policy decision was taken to grant the benefit of enhanced gratuity of 20 lakhs with effect from 29.03.2018 which was the date of effectiveness of amended Rules of 2018. Fixing of such cut-off date cannot be held to be arbitrary unless it is shown that it is unreasonable, capricious or whimsical. The choice of date cannot be dubbed as arbitrary as that was the date of Gazette Notification of the amended 2018 Rules. Merely because the applicants were not extended the benefit of enhanced gratuity who retired before the said Gazette Notification is no reason for treating the cut-off date as arbitrary or irrational. In order to declare the same as arbitrary or ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis (OA No.693-2022) (23) or is manifestly unreasonable. At the cost of repetition, it is stated that the cut-off date fixed in this case was based on Gazette Notification and was in no way arbitrary.
22. In this matter, a reliance is placed in the case of D.S.Nakara vs. Union of India (1983) 1 SCC 305 wherein the Hon'ble Supreme Court made a distinction between pension and gratuity and observed as under:
".....But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. In our opinion the arrears relating to gratuity benefit computed according to the revised Pension Rules of 1980 may not be paid to the pensioners that retired prior to 1-4-1978 because at the time of retirement they were governed by the then existing Rules and their gratuity was calculated on that basis. The same was paid....."
14. Following Nakara's case the Supreme Court in State Government Pensioners Association and others v.State of Andhra Pradesh,has held as under:
".....Since the revised scheme is operative from the date mentioned in the scheme i.e., 1-4-1978, the continuing rights of the pensioners to receive pension and family pension must also be revised according to that scheme. But the same can not be said with regard to gratuity, which was accrued and drawn. The reason why their Lordships of the Supreme Court in Nakara's case refused to grant arrears to the pensioners that retired prior to the stipulated date would ipso facto apply for refusing to grant the revised gratuity, since that would amount to asking the State Government to pay arrears relating to gratuity after revising them according to the new scheme for those that retired periorof 1-4-1978 and that would amount to giving retrospective effect to the A.P. Revised Pension Rules, 1980, which came into effect from 29-10-1979 and in (OA No.693-2022) (24) the case of Part-II of those Rules from 1-4-1978. The scheme is prospective and not retrospective....."
15. It is further held by the Supreme Court that the Andhra Pradesh High Court is right in holding that the upward revision of gratuity takes effect from the specified date i.e., 1-4-1978 with prospective effect. It is further held as under:
"......The High Court has rightly understood and correctly applied the principle pronounced (sic propounded) by this Court in Nakara's case. There is no illegality or unconstitutionality (from the platform of Article 14 of the Constitution of India) involved in providing for prospective operation from the specified date. Even if that part of the notification which provides for enforcement with effect the specified date is struck down the provision can but have prospective operation
- not retrospective operation. In that event (if the specified date line is effaced), it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who have already retired before the said date. In order to make it retrospective so that it applies to all those who retired after the commencement of the Constitution on 26th January, 1950, and before the date of issuance of the notification on 26th March, 1980, the "Court will have to re-write the notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively......"
23. Though the learned counsel for the applicants has cited a catena of judgments, as already mentioned at Para 15, we do not find that the ratio of these judgments is applicable in this case, in the light of judgments cited above.
24. In view of the aforesaid, I do not find any reason to interfere with the cut-off date fixed by the competent (OA No.693-2022) (25) authority. The O.A. lacks merit and the same is accordingly dismissed. No order as to costs.
(Sanjeeva Kumar) Member (A) /kdr/