Meghalaya High Court
Shri Wandell Passah And Ors vs The State Of Meghalaya And Ors on 16 April, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No. 334/2012
1. Shri. Wandell Passah,
S/o (L) Rev. P.L. Wann,
R/o Assam Rifles Public School,
Shillong, East Khasi Hills District,
Meghalaya.
2. Shri. Dinendu Choudhury,
S/o (L) D.C. Choudhury,
R/o Gordon Road,
Laitumkhrah, Shillong,
East Khasi Hills District,
Meghalaya.
3. Shri. Jotirmoy Sen,
S/o (L) J.K. Sen,
R/o St Edmunds College Campus,
Shillong, East Khasi Hills District,
Meghalaya.
4. Shri. Kamal Ch. Chakravarty,
S/o (L) B.C. Chakravarty,
R/o Oxford Compound,
Kench's Trace, Shillong,
East Khasi Hills District,
Meghalaya.
5. Dr. Bhaskar Neogi,
S/o (L) S.B. Neogi,
R/o Nongrimbah Road,
Laitumkhrah, Shillong.
East Khasi Hills District,
Meghalaya.
6. Shri. Mohan Ch. Gogoi,
S/o (L) M. Gogoi,
R/o Khanapara, Guwahati,
District: Kamrup, Assam.
7. Smti. Milliancy Gatphoh,
W/o Shri. K. Sawian,
R/o Nongthymmai,
Shillong, East Khasi Hills District,
Meghalaya.
8. Smti. Rekha Devi,
W/o (L) K.K. Nath,
R/o DPI Compound,
Nongmalki Road, Shillong,
East Khasi Hills District,
Meghalaya.
Page 1 of 13
9. Shri. Rama Sarkar,
S/o (L) M.N. Sarkar,
R/o Lachumiere,
Hopkinson Road, Shillong,
East Khasi Hills District,
Meghalaya.
10. Shri. Durbadal Mukherjee,
S/o (L) S.C. Mukherjee,
R/o Kench's Trace,
Opp. Circuit House, Shillong,
East Khasi Hills District,
Meghalaya.
11. Shri. Nar Bahadur Rai,
S/o (L) B.B. Rai,
R/o Nongmynsong, Shillong,
East Khasi Hills District,
Meghalaya.
:::: Petitioners
-Vs-
1. The State of Meghalaya, represented by the
Commissioner & Secretary to the Govt. of
Meghalaya, Education Department, Shillong.
2. The Under Secretary to the Govt. of Meghalaya,
Education Department, Shillong.
3. The Director,
Higher & Technical Education,
Education Department, Shillong. :::: Respondents
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner : Mr. S Sen, Adv.
For the Respondent : Mr. R. Gurung, GA
Date of hearing : 16.04.2014
Date of Judgment & Order : 16.04.2014
JUDGMENT AND ORDER(ORAL)
This writ petition, filed by the 11 (eleven) writ petitioners, who are the retired Lecturers of the Deficit Colleges in the State of Meghalaya, is Page 2 of 13 assailing the illegal and arbitrary classifications amongst the same groups i.e. retired Lecturers of the Deficit Govt. colleges in the matter of enhancement of ceiling of DCRG from Rs.3.50 lakhs to Rs.7.00 lakhs vide impugned letter dated 19.03.2012 (Annexure-4 to the writ petition) and the impugned letter dated 27.06.2012 (Annexure-7 to the writ petition).
2. In the present writ petition, the respondents, for the reason best known to them, refused to file their affidavit-in-opposition inspite of giving ample of opportunities to them to file their affidavit-in-opposition under different orders of this Court passed in the present writ petition, some of the orders are:- (i) 25.02.2013, (ii) 18.03.2013, (iii) 16.04.2013, (iv) 08.05.2013,
(v) 27.05.2013, (vi) 12.06.2013 and (vii) 13.06.2013, which read as follows:-
"25.02.2013 Heard Mr. K Paul, learned counsel for the petitioner. Also heard Ms. A Gurung, learned counsel appearing on behalf of the State who prayed for 3 weeks time to file counter affidavit.
List the matter on 18.03.2013 and in the meantime respondents may file their counter affidavit.
18.03.2013 Heard learned counsel for the petitioners Mr. S Thapa. Learned State counsel Mr. R Gurung, sought for four weeks„ time for filing counter. Prayer is allowed. List the matter on 16.04.2013.
16.04.2013 As prayed for by the learned counsel for the respondents, another three weeks‟ time as a last chance is granted to the respondents to file affidavit-in-opposition.
List this matter on 08.05.2013.
08.05.2013 As prayed for by the State respondents, three weeks‟ is granted to the State respondents to file affidavit-in-opposition.
Post on 27.05.2013.
27.05.2013 Post on 10.06.2013.Page 3 of 13
12.06.2013 Heard Mr. S Sen, learned counsel for the petitioner. None appears for the State respondents. Post on 13.06.2013 finally.
13.06.2013 On different dates this case was listed for filing affidavit- in-opposition, but, till today, no affidavit-in-opposition has been filed by the respondents.
Admit.
Post for hearing."
3. Heard Mr. S Sen, learned counsel for the petitioners and Mr. R Gurung, learned GA appearing for the State respondents.
4. The concise facts sufficient for deciding the matter in issue in the present writ petition is briefly noted.
The writ petitioners 11 in numbers had retired from services on superannuation as hereunder:
(i) Petitioner No.1 on 19.01.2011;
(ii) Petitioner No.2 on 30.06.2012;
(iii) Petitioner No.3 on 29.01.2008;
(iv) Petitioner No.4 on 31.12.2008;
(v) Petitioner No.5 on 31.12.2007; respectively
(vi) Petitioner No.6 on 01.02.2008;
(vii) Petitioner No.7 on 10.02.2010;
(viii) Petitioner No.8 on 01.09.2008;
(ix) Petitioner No.9 on 01.01.2008
(x) Petitioner No.10 on 01.04.2008; and
(xi) Petitioner No.11 on 01.01.2008.
5. The Govt. of Meghalaya vide order of the Governor of Meghalaya being No.EDN.34/2009/91 dated 22.03.2010 adopted and Page 4 of 13 implemented U.G.C. norms as per Govt. of India's letter/circular No.1- 32/2006-U.II/U.I(1) dated 31.12.2008 relating to revision of pay scale, minimum qualifications for appointment of teachers in colleges and other measures w.e.f. 01.01.2006 and payment of arrears would be made as and when the resources of the State are available, through a separate Notification. In Para-2 of the said order of the Governor of Meghalaya dated 22.03.2010, it is clearly stated that the revision of pay scale shall also be extended to the eligible teachers of Deficit Colleges in the State of Meghalaya and status quo would be maintained in respect of the age of superannuation i.e. 60 years of age. For easy reference, the order of the Governor of Meghalaya dated 22.03.2010 is quoted hereunder:-
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT ORDER BY THE GOVERNOR NOTIFICATION Dated:Shillong, the 22nd March, 2010 No.EDN.34/2009/91:- (1) The Governor of Meghalaya is pleased to order adoption and implementation of the U.G.C. norms as per Govt. of India‟s letter/circular No.1-32/2006- U.II/U.I(1) dated 31.12.2008 relating to revision of pay scale, minimum qualifications for appointment of teachers in colleges and other measures as mentioned at Para 2(b) & 4(1) & (3) of the aforesaid letter/circular for the maintenance of standards of education in the State of Meghalaya. The U.G.C. Scale of pay and D.A. at Central Government rates shall be applicable to all eligible teachers of Government Colleges of Meghalaya on submission of option and the age of superannuation shall be as applicable to the State Government Employees. Pay and D.A. of College Teachers covered by the Scheme shall be fixed in the revised U.G.C., scale of pay with effect from 01.01.2006. The payment of arrears would be made as and when the resources of the State are available, through a separate Notification.
(2) The instructions at para (1) above shall also be extended to the eligible teachers of Deficit Colleges in the State of Meghalaya and status quo would be maintained in respect of the age of superannuation i.e. 60 years of age.
Sd/-
P.S. Thangkhiew, IAS Principal Secretary to the Government of Meghalaya, Education Department.
Page 5 of 13
6. It is the case of the writ petitioners that pursuant to the said order of the Governor of Meghalaya dated 22.03.2010, which was effective from 01.01.2006, the writ petitioners had been allowed to enjoy the revised pay scale. The present case is concerned with the arrears DCRG/retirement gratuity of the present writ petitioners. The Govt. of Meghalaya framed the scheme called "The Meghalaya Aided College Employees Death-Cum- Retirement Gratuity Scheme, 1985. The amounts of gratuity of the employees of the Deficit Colleges are to be calculated under Para-6 of the said Scheme. Para 6 (1) (a) of the said Scheme clearly provides that an employee who has completed five years of qualifying service and has become eligible for service gratuity, shall on his retirement, be granted death- cum-retirement gratuity equal to one-fourth of his emoluments for each completed six monthly period of qualifying service, subject to a maximum of 16¼ time the emoluments or Rs.36,000/- whichever is less. From that Para-6 of the said Scheme, it is clear that the amount of death-cum-gratuity is to be calculated on the basis of one fourth of emoluments of the teachers for each completed six monthly period of qualifying service. It is admitted case of the parties that the ceiling limit of the amount of death-cum-retirement gratuity had been enhanced from time to time.
7. The Govt. of Meghalaya under the letter of the Under Secretary to the Govt. of Meghalaya, Education Department dated 24.02.2012, conveyed the approval of the Govt. to the proposal for enhancement of the ceiling of DCGR from Rs.3.50 lakhs to 7.00 lakhs in respect of the teaching and non-teaching staff of the Deficit colleges. However, in view of the financial constrains, the payment at the revised rates may perhaps be made in a phased manner as per the availability of fund under the existing provision 2011-2012. On bare perusal of the said letter of the Govt. of Meghalaya dated 24.02.2012, it is clear that the Govt. had conveyed the Page 6 of 13 approval to the proposal for enhancement of ceiling of DCRG from 3.50 lakhs to 7.00 lakhs in respect of teaching and non-teaching staff of Deficit colleges. But by that impugned letter of the Govt. of Meghalaya dated 19.03.2012, the ceiling limit of 7.00 lakhs mentioned in the said earlier letter dated 24.02.2012, will be applicable in respect of teaching and non-teaching staff of the Deficit colleges, who are yet to draw the DCRG amount. For easy reference the said two letters viz letter dated 24.02.2012 and letter dated 19.03.2012 are quoted hereunder:-
"GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT.
No.EDN.22/2007/81 Dated Shillong the 24th February, 2012.
From : Smti. E. Kharmawphlang, Under Secretary to the Govt. of Meghalaya, Education Department.
To, The Director of Higher & Technical Education, Meghalaya, Shillong.
Subject: Enhancement of Ceiling of D.C.R.G./Retirement Gratuity to teachers of Deficit College.
Ref : No.CE/GC/Enhance/2011/12 dt.9th August, 2011.
Sir, I am directed to convey Government‟s approval to the proposal for enhancement of the Ceiling of DCRG from Rs.3.50 lakhs to Rs.7.00 lakhs in respect of the teaching and non- teaching staff of deficit colleges. However, in view of financial constraints, payment at the revised rates may perhaps be made in a phased manner as per the availability of fund under the existing provision 2011-2012.
This issues with the concurrence of Finance PR (Deptt) vide their I/D No.F(PR)161/11 dt.17/12/2012.
Yours faithfully, Sd/-
Under Secretary to the Govt. of Meghalaya Education Department.Page 7 of 13
GOVERNMENT OF MEGHALAYA EDUCATION DEPARTMENT.
No.EDN.22/2007/82 Dated Shillong the 19th March, 2012.
From : Smti. E. Kharmawphlang, Under Secretary to the Govt. of Meghalaya, Education Department.
To, The Director of Higher & Technical Education, Meghalaya, Shillong.
Subject: Enhancement of Ceiling of D.C.R.G./Retirement Gratuity to teachers of Deficit Colleges.
Ref : No.EDN.22/2007/81 Dt.24th February, 2012.
Sir,
In continuation to this Department‟s Letter
No.EDN.22/2007/81 Dt.24.2.2012, I am directed to instruct you that the amount of enhancement of the ceiling of DCRG from Rs.3.50 lakhs to Rs.7.00 lakhs in respect of the teaching and non-teaching Staff of Deficit colleges will be applicable only to those lecturers who are yet to draw the DCRG amount so that inadmissible claims are not entertained.
This has the approval of the competent Authority.
Yours faithfully, Sd/-
Under Secretary to the Govt. of Meghalaya Education Department."
8. It is the further case of the writ petitioners that there cannot be artificial and arbitrary classification amongst the same groups i.e. teachers of the Deficit colleges. There cannot be classifications between the same groups by fixing a date for the purpose of enjoyment of the enhanced DCRG.
9. In the additional affidavit filed by the writ petitioners, it is clearly stated that in the case of two retired Lecturers i.e. Smti. P.R. Lyngskor (Retired) Vice Principal and Shri. Aboard Kharkongor (Retired) Lecturer who retired from service on 28.02.2010 and 31.12.2008 respectively, the Govt. had enhanced the maximum limit of DCRG to Rs.7.00 lakhs. It is clear that the present writ petitioners and the said Smti. P.R. Lyngskor and Shri. Page 8 of 13 Aboard Kharkongor belong to the same groups i.e. retired Lecturers of the Deficit colleges and as such, there cannot be artificial discrimination between the present writ petitioners and the two said Lecturers in the matter of calculating the enhanced ceiling limit of DCRG.
10. (i) Under the said Order of the Governor of Meghalaya dated 22.03.2010, the Govt. of Meghalaya adopted and implemented UGC norms for revision of pay scale of the teachers in the Govt. colleges and also for the eligible teachers of Deficit colleges in the State of Meghalaya and there was no discrimination amongst the teachers of the Deficit colleges in the State of Meghalaya in the matter of revising their pay and other allowances in the said Order dated 22.03.2010 and (ii) also under the said letter/order of the Govt. of Meghalaya dated 24.02.2012 had conveyed Government's approval to the proposal for enhancement of ceiling of DCRG from Rs.3.50 lakhs to Rs.7.00 lakhs in respect of teaching and non-teaching staff of the Deficit colleges and again there is no discrimination amongst the teachers of the Deficit colleges in the matter of enhancement of ceiling of DCRG from Rs.3.50 lakhs to Rs.7.00 lakhs. But by the impugned letter/order dated 19.03.2012 (Annexure-4 to the writ petition) and the impugned letter dated 27.06.2012 (Anexure-7 to the writ petition), an arbitrary and artificial cut-off date 24.02.2012 had been fixed for meting out discriminatory treatment to the same groups i.e. retired Lecturers of the Deficit colleges so as to deny the benefits of enhancement of ceiling of DCRG from Rs.3.50 lakhs to Rs.7.00 lakhs to a section of the retired Lecturers of the same groups i.e. retired Lecturers of the Deficit colleges, who had drawn their DGCR not on enhanced rate before 24.02.2012. It is a settled law that Article 14 of the Constitution of India only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another if as regards the subject matter of the legislation, their Page 9 of 13 position is substantially the same. Article 16 is an instance of the application of the general rules of equality laid down in Article 14 with special reference to the opportunity of appointment and employment under the Govt. However, it is also clearly well settled that in order to make the classification valid, two conditions should be fulfilled i.e. (i) classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (ii) differentia must have rational nexus or relation to the object sought to be achieved by the legislation. In the present case, there is no intelligible differentia which distinguish the sections of retired Lecturers from the other sections of retired Lecturers belong to the same groups of retired Lecturers of the Deficit colleges in the State of Meghalaya.
11. The Apex Court (Three Judges) in Prabodh Verma & Ors vs. State of Uttar Pradesh & Ors: (1984) 4 SCC 251 held that:
"40. Article 14 of the Constitution forbids the State to deny to any person equality before the law or the equal protection of the laws within the territory of India. While Article 14 applies to all persons within the territory of India, Article 16 applies only to citizens of India. Clause (1) of Article 16 guarantees equality for all citizens in matters relating to employment or appointment to any office under the State. Thus, Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government (See Banarsi Das v State of Uttar Pradesh: 1956 SCR 357, 361: AIR 1956 SC 520: 1956 SCJ 529). Today, the Government is the largest employer in the country and employment or appointment to an office under it is a valuable right possessed by citizens. Article 14, however, does not forbid classification. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the territory of India irrespective of differences of circumstances. It only means that all persons similarly circumstanced should be treated alike and there should be no discrimination between one person and another if as regards the subject-matter of the legislation, their position is substantially the same. By the process of classification, the State has the power to determine who should be regarded as a class for the purposes of legislation and in relation to a law enacted on a particular subject. The classification to be valid, however, must not be arbitrary but must be rational. It must not only be based on some qualities or Page 10 of 13 characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable nexus or relation to the object of the legislation. In order to pass the test, two conditions have to be fulfilled, namely,: (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation (see Inre the Special Courts Bill, 1978: (1979) 2 SCR 476, 535: (1979) 1 SCC 380, 425: AIR 1979 SC 478).
12. The Apex Court (Constitution Bench) in Confederation of Ex- Servicemen Associations & Ors. Vs. Union of India & Ors: (2006) 8 SCC 399 reiterate that:
"26. We are unable to uphold the argument advanced by the petitioners for more than one reason. It is no doubt true, that Article 14 guarantees equality before the law and confers equal protection of laws. It clearly prohibits the State from denying persons or class of persons equal treatment provided they are equal and are similarly situated. In our opinion, however, the basis on which the argument proceeds is fallacious and ill- founded. It is well established that Article 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. It thus prohibits discrimination or class legislation. It, however, does not prohibit classification if otherwise it is legal, valid and reasonable.
30. In our judgment, therefore, it is clear that every classification to be legal, valid and permissible, must fulfill the twin test, namely,
(i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out;
and
(ii) such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question."
13. The Apex Court (Constitution Bench) in D.S. Nakara & Ors vs. Union of India reported in AIR 1983 SC 130: (1983) 1 SCC 305 held that differential treatment meted out to the pensioners basing Page 11 of 13 on a certain date is wholly arbitrary and the differential treatment to the pensioners on the basis of certain date i.e. the date of retirement would be violation of Article 14 of the Constitution of India. Para 49 of the AIR in D.S. Nakra case (Supra) read as follows:-
"49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalized pension scheme, because the scheme is a scheme for payment of pensioner to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In the case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, are not revised. The last revision of emoluments it would make a marginal difference in the case of past pensioners because the emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended R.34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words "who were in service on 31st March, 1979 and retiring from service on or after that date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be served without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily served."
The Apex Court in Subrata Sen & Ors vs. Union of India reported in (2001) 8 SCC 71 held that imposition of cut of date for applicability of revised pension scheme by denying revised pension scheme to the pensioners who retired prior to the cut of date is not valid.
14. For the foregoing reasons, this Court is of the considered view that the impugned letter dated 19.03.2012 and the impugned letter dated Page 12 of 13 27.06.2012 are in violation of Articles 14 & 16 of the Constitution of India. Accordingly, an interference to the impugned letter dated 19.03.2012 and the impugned letter dated 27.06.2012 are called for.
15. In the result, the impugned letter dated 19.03.2012 and the impugned letter dated 27.06.2012 are hereby set aside and quashed. Corollary of this judgment and order is that the ceiling limit of DCRG of the writ petitioners shall also be calculated in pursuance of the said letter of the Govt. of Meghalaya dated 24.02.2012 and Para-6 of the Meghalaya Aided College Employees Death-Cum-Retirement Gratuity Scheme, 1985 within a period of four months from the date of receipt of a certified copy of this judgment and order and after such calculation, the enhanced amount of DCRG should be released to the writ petitioners within one month.
16. With the above observations and directions, this writ petition is allowed.
JUDGE Lam Page 13 of 13