Madhya Pradesh High Court
Shailendra Kumar Surana vs The State Of M.P. on 6 April, 2015
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
BEFORE S. B.: HON'BLE MRS. JUSTICE S.R. WAGHMARE
Writ Petition No.238/2005
Jagdish Prasad Bindal and three others
Vs.
State of Madhya Pradesh and others
___________________________________________________
_
Smt. Ritu Bhargava, learned Counsel for the petitioners
Shri C.R. Karnik, learned Government Advocate for the
respondent /State.
ORDER
Passed on 06/04/2015 By this petition under Articles 226/227 of the Constitution of India, the petitioners are aggrieved by the inaction of the respondents in considering the case of the petitioners, who are pre 1986 retired employees and are claiming parity with the pensioners/retires who have been given the benefit of pension recommended by the Fifth Pay Commission. It has been vehemently urged that the pre 1986 retirees have been discriminated; whereas earlier fixation of the 2 pension of these retires was sought by filing Writ Petition 705/2001. However, the said Writ Petition has been disposed of with a direction to the petitioners to approach the employer i.e. respondent No.2 Jawaharlal Nehru Krishi Vishwa Vidyalay (J.N.K.V.V.), Jabalpur. They have filed appropriate representation in pursuance of the order and similarly situated petitioners also filed separate representations, which are also addressed to the State Government. However, the respondent No.2 J.N.K.V.V. replied only to the representation of the petitioner Dr. Jethmalani and expressed its inability to increase the petitioner's pension. And hence, it is prayed by the Counsel for the petitioners that it was essential to consider the case of the petitioners that the petitioners are also entitled to get the benefit of Fifth Pay Commission.
2. Counsel for the petitioners has vehemently urged that the matter is covered by the ratio laid down in the case of Smt. Kamla Jain vs. State of M.P. and others (W.P. No.5802/2011). Counsel candidly admitted that the grant of Fifth Pay Commission benefit was considered for the petitioners, who had retired prior to 1/1/1996 and the State Government provided a fitment weightage of 40% of the existing pensioners being drawn by them. When it was realized that even after granting the benefit of fitment weightage, the pensioners drawn by pre 1986 retirees remained woefully inadequate and much lower than pension drawn by later retires, the Union Government 3 issued a notification in respect of pre 1986 retirees dated 10/2/1998. By the said notification a notional fixation was done and the pensions/family pension of all pensioners who had retired before 1/1/1986 were consolidated as if they had retired on or after 1/1/1986. When even the said notional benefit did not remove the discrepancies, the Union Government accepting the recommendation of the Fifth Pay Commission, decided to link pension payable to the post held by the retired employees and accordingly issued a notification providing for the payment of pension of at least 50% of the minimum in the revised scale of pay applicable to the post held by such employee at the time of his retirement. However, this benefit is being denied to the pre 1986 employees in the State of M.P. though all the other pensioners have been given the benefit of Fifth Pay Commission report.
3. Counsel for the petitioners has submitted that in the matter of Kamla Jain (Supra) the Division Bench of this Court has held in paragraphs 6 thus:
"6. After taking note of the aforesaid principles of law in the case of the petitioner in the earlier writ petition in W.P. No.1239/2010(s) as already indicated hereinabve in paras 11 and 12, this Court has clearly held that financial resources cannot be a justification for discriminating between similarly situated officers and cannot be a justification for fixing the cutoff date as 4 1/4/2007 for the purpose of revising the benefit of pension to all categories for employees. In the return filed and the impugned order Annexure P-13, no justification or the reasonable nexus for fixing the cut off date 1/4/2007 is forthcoming from the State Government. On the contrary both in the order passed vide Annexure P/13 so also in the return filed, if is only stated that in the matter of granting arrears to pensioners the State Government is competent enough to fix cut off date taking note of the financial resources of the State Government. In para-3 of the return it is only stated that taking note of the financial implication involved the cut off date has been fixed, no other justification or nexus for fixing the said cut off date is forthcoming from the State Government. As the ground of financial implication and resources is already found to be unsustainable by this Court in the earlier order passed in the case of the present petitioner as indicated hereinabove this justification cannot be accepted. That apart even in the case of SPS Vains (Retd.) (supra) the Supreme Court has held that merely on the financial consideration the classification or of similarly situated pensioners is not permissible and if it creates a class, it is violative of Article 14 of the Constitution of India. In the case of SPS Vains (Retd.) (supra) also revision of pay took place w.e.f. 01-01-1996 on the pay so revised, revision of pension was ordered in a different manner as is done 5 in the present case. The Union of India came out with a plea that as certain persons have already retired prior to 1- 1-1996, the question of re-fixation of their pay does not arise. This argument of Union of India was rejected by the Supreme Court in the said case. In the present case also similar factual situation exists. Not only that, in the present case as on 01-01-1996 the revision of basic pay of persons who have retired prior to 1.1.1996 is already undertaken and their basic pay as on 1-1-1996 is fixed at Rs.12,840/- after such a revision. That being so, the respondents cannot come out now with any justification once the question is answered by the Supreme Court in para-24 in the judgment rendered in the case of SPS Vains (Retd.) (supra).
7. Keeping in view the settled principles of law in this regard as is evident from the judgment rendered by the Supreme Court and ground particularly the fact with regard to inter se dispute between the petitioner and the State Government already crystallized and decided by this Court on 26-11-2010 in W.P.1239/2010(s), the impugned order cannot be sustained.
This Court had given direction to the respondents to grant arrears of pension to the petitioner Kamla Jain with effect from 1.1.1996 up to 1.1.2007with interest at the rate of 6% per annum. The same became a matter of challenge by the State Government in the matter of State of M.P. and others vs. Smt 6 Kamla Jain (Writ Appeal No. 1488/2012) whereby the Division Bench of this Court/the previous Chief Justice of this High Court held thus:
"6. We have carefully gone through the order passed by the learned Single Judge and have also examined the relief claimed by the respondent in the writ petition. For the purposes of proper appreciation, it would be profitable to refer the relief claimed by the respondent in the writ petition, which reads as follows:-
(1)It is therefore, prayed that a writ of mandamus may kindly be issued to the respondents, directing them to pay the entire arrears of pension @ Rs.12,840/- per month with 9% interest per annum as directed by the Hon'ble High Court in W.P. 1239/2010, decided on 26/11/2010, as the order passed by the Hon'ble High Court has attained finality since the respondents did not reconsider the matter within a period of 3 months as directed by the Hon'ble High Court. All other consequential benefits arising from the facts of the case may also be conferred on the petitioner. (2) Any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts & circumstances of the case, may also kindly be passed in the interest of justice."
7. As has been admitted before us, the respondent would not be entitled to the pension @ 12,840/- per month, but would be entitled to the pension which is to be calculated taking into account Rs.12,840/- per month as basic pay with effect from 1.1.1996. Since the learned Single Judge in the operative part of the order has directed payment of arrears of pension to the respondent with effect from 1.1.1996 up to 7
1..4.2007 "as claimed by the petitioner"
(respondent herein) along with interest, we modify this part of the order passed by the learned Single Judge and direct that the respondent would be entitled to the arrears of pension with effect from 1.1.1996 up to 1.4.2007 calculated on the basis of pay at Rs.12,840/- per month. If the said amount of arrears of pension is already calculated and paid to the respondent, the appellants need not to pay any interest. However, if if is found that the amount of arrears of pension or part thereof has not yet been paid to the respondent, the appellants would pay the balance of arrears of pension to the respondent with interest @ 9% per annum within a period of one month from today."
Similarly the Special Leave Petition No. 13437/2013 was dismissed by the Hon'ble Supreme Court and the ratio laid down in the matter of W.P.No.5802/2011 has become final. Counsel submitted that the present petitioners are also claiming the same benefit since they are the pre 1986 retirees. However, vide Annexure P/12 the State Government/Revenue Department published the Notification pertaining to pension to be paid to the retired employees prior to 1/1/1996. However, the M.P. Pay Revision Rules 1998 made effective from 1/1/1996 with retrospective effect and the pension was consolidated and it was directed that the pension would be revised on the 50% of the lowest scale as it is existed on that date and the family pension is to be calculated on minimum scale bound. Since the wording with the notification and same would be applicable to the 8 present petitioners also. Counsel submitted that according to clause 73.24, 73.25 and 73.26 of Chapter 73 of Structure of Pension and death-cum retirement gratuity, the Government had reconsidered its decision and directed thus:
"73.25. Government of M.P. has also issued similar orders vide Memo No.B-
25/6/98/PWC/VI-2 dated 14.07.1998 in respect of consolidation of pension. However, the State Government has not accepted the notional fixation of pay as on 1.1.1986 as recommended by Fifth CPC and accepted by the Government of India. As a result a great deal of difference in the amounts of pension between the pre and post 1.1.1986 retirees has been noticed by the Committee as shown in the annexures. The Committee is of the opinion that the principle of complete parity enunciated by Fifth CPC and the law laid down by the Apex Court in the landmark judgment of D.S. Nakara and others vs. Union of India cited in preceding paragraphs are the basic elements of any desirable pension structure. The Committee therefore, recommends that the State Government may also issue orders on the lines of the orders of the Central Government dated 17/12/1988.
73.26. The Committee is cognizant of the difficulties in the notional fixation of pay of a very old retirees due to number of pay revisions which have taken place in the State. There may be cases where it may not be possible to fix the pay problems. The Committee feels that the only solution in such cases to revise the pension at the rate of 50% of the minimum revise pay of the post held by the pensioner at the time of retirement. Since the number of such pensioners may not be very large and would in any case be 9 reducing because of wastage the financial burden would also be quite small when compared to hardship faced by the pensioners."
4. Counsel further submitted that the present petitioners are also more than 80 years of age and some of the petitioners had even died and the legal representatives of the deceased have been brought on record. Counsel also submitted that there is absolutely no rational basis for discriminating between the pre 1.1.1996 retirees and the post 1.1.1996 retirees, particularly in so far as a date of implementation of the recommendation of the Fifth Pay Commission is concerned. It is submitted that since in respect of the post 1.1.1996 retirees the recommendation of the Fifth Pay Commission have been implemented w.e.f. 1.1.1996, there is absolutely no rational basis for implementing the said recommendation for the pre 1996 retirees from a different date. Counsel vehemently urged that the petitioners and similarly placed retirees have suffered a lot because of receiving a lower pension for a long period and the burden of pension of the pre 1986 employees would be minimal compared to the burden of pension of post 1.1.1986 retirees even after revision of the pay. She urged that while the post 1.1.1996 retirees received pension at 50% of their last drawn wages,the pre 1986 retirees would be receiving pension at only 50% of the minimum of the pay scale applicable to the post held by them at the time of retirement. Counsel urged that it almost 10 amounted to discrimination of the petitioners.
Counsel urged that despite the order dated 16/5/2007 passed by the State Government the relief regarding the payment of arrears of pension w.e.f. 1/1/1996 to 1/4/2007 would still need to be adjudicated upon. In the petitioners' case the urgency of granting the remaining relief is even greater as all the petitioners and other pre 1986 retirees for whose benefits the present petition has been filed, are all either above 80 years old or older with some of them being above 90 years of age. And hence, Counsel fervently urged that the respondents be directed to grant the same benefit to the present petitioners and the petition be allowed.
5. Counsel for the respondents/State, on the other hand, has vehemently opposed the submissions put forth by the Counsel for the petitioners and submitted that there is no question of discrimination against the present petitioners and the petitioners were retired prior to 1.1.1986 and they are getting all the pensionary benefits as were applicable under the M.P. Civil Services (Pension) Rules prior to 1.1.1996, but they are claiming the benefit of pension as per Fifth Pay Commission ,which was not in existence at the time of retirement of the petitioners and thus Circulars of the Central government cannot be said to be applicable in the case of the petitioners. Therefore, the petitioners are not entitled to get the pension as per Fifth Pay Commission because prior to 1.1.1986 because 11 there was no Central Pay Scale prevalent in the State of M.P. and hence the petitioners cannot get the benefit of pension as per Fifth Pay Commission, as is clear from Annexure P/9 dated 30/10/1998 filed by the petitioners themselves. Besides Counsel for the respondent/State urged that by Circular Annexure P/8 dated 28/12/1998 there was a consolidation of pension/family pension of the pensioners retired prior to 1.1.1996 also in terms of the recommendation of Fifth Pay Commission which was considered and the pension was consolidated in the terms as laid down in the said Finance Department's circular.
Counsel for the respondent/State urged that the circular dated 16/5/2007 could not be made retrospective effect as the said order was issued on recommendation of the Brahmaswaroop Committee and not on the report of Fifth Central Pay Commission and the aforesaid order clearly specifies the date from which the instructions contained therein are to be given effect to, which is 1/4/2007 and the instructions contained therein from any date prior to that, much less from a date as far back as 1998. Counsel placed reliance on D.S.Nakara and others vs. Union of India AIR 1983 SC 130 whereby the Apex Court has held that such a direction cannot be given that the benefit be extended retrospectively since it was a question of financial implementation only if the order is discriminatory it would be struck down. And in this light also the pensioners pre 1986 retirees are not entitled to get any further benefit of Fifth Pay Commission.
126. On considering the above submissions, I find that the pre 1986 retirees are praying for the same benefit that have been extended to the petitioner Kamla Jain in W.P. No.5802/2011 and W.A. No.1488/2012. Counsel for the respondent/State has categorically submitted that the benefit of Fifth Pay Commission was not in existence at the time of retirement of the petitioners and their pension were regulated under the Pension Rules prior to 1/1/1996. Besides according to Circular Annexure P/8 dated 28/8/1998 there was a consolidation of pension keeping in mind the recommendation of the Fifth Pay Commission and hence they could not claim any further benefit. However, Counsel for the respondent was unable to contend as to why the ratio laid down in the case of Kamla Jain (supra) would not be applicable to the present pre 1986 retirees. And in this light the Counsel for the petitioners' contention requires to be considered. Counsel for the petitioner submits that the ratio laid down by the Division Bench in the case of Kamla Jain (supra) is to be considered and the same benefit be also given to the present petitioners.
7. Considering the ratio laid down in case of Union of India and another vs. SPS Vains (Retd.) and others, (2008) 9 SCC
125. it is held by the Apex Court that the benefit be given from 1/1/1996 and the Court considered the fact that on 1/1/1996 the revision of basic pay of persons who had retired prior to 13 1/1/1996 was also undertaken and their basic pay as on 1/1/1996 is fixed after the revision. In the matter of Kamla Jain (supra). The Court has also relied the para 24 of judgment rendered in the case of SPS Vains (Retd.). Hence, I find that this petition can also be disposed of with a direction to the respondents as follows:
(1) The petitioners shall move a representation within a period of 15 days from the date of this order before the competent authority along with a copy of the order passed in Kamla Jain (supra) and SPS Vains (Retd.) (supra) which shall be considered bny the respondent competent Authority in accordance with the provisions of law;
(2) The respondent competent authority is directed to consider the case of the pensioners for revision of their pay revision at the rate of 50% of the minimum revised pay on the post last held by the petitioners at time of retirement;
(3) The entire exercise be completed within a period of six months from the date of this order and the petitioners are granted the arrears of pension etc. along with interest of 9% per annum as directed by the Court in the case of Kamal Jain (supra);
(4) However, if the respondent/competent finds that the petitioners are not eligible for the benefit as per ratio laid down in the case of Kamla Jain (supra) they 14 should pass an order in writing given a valid and cogent reason for the same and hand over a copy of the same to the petitioners immediately. Thereafter the petitioners shall free to file fresh petition, if they are still aggrieved by the said order. The arrears of pension shall carry an interest of 9% per annum from the date of application till the realization.
(Mrs. S.R. Waghmare) Judge moni