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2003 DIGILAW 198 (HP)

ISHWAR DASS SOOD v. STATE OF H. P.

2003-07-23

KAMLESH SHARMA

body2003
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioner retired on 6.6.1984 as Deputy Secretary of Vidhan Sabha. His precise grievance in the present writ petition is that since he has retired before 31st March, 1985, he has been deprived of the benefit of Office Memorandum dated 9th October, 1985 (Annexure P-l) whereby Dearness Allowance /Ad hoc Dearness Allowance sanctioned up to Consumers Price Index Level 568 is treated as Dearness Pay for calculating pensionary benefits, namely Pension, Gratuity/D.C.R.G. and Terminal Gratuity in respect of the employees retiring on or after 31st March, 1985. 2. The case of the petitioner is that fixing cut-off date as 31st March, 1985 in office memorandum dated 9th October, 1995 (Annexure P-l) is discriminatory and violative of Articles 14 and 16 of the Constitution of India as it creates classification which is neither found on any intelligible differentia which distinguishes between persons who retired prior to 31st March, 1985 and those persons who retired on or after 31st March, 1985 nor does aforesaid classification has any rational relation with the object sought to be achieved. 3. The respondents have filed separate reply affidavit(s). Their stand is that in the matter of grant of pension and gratuity to its employees the Government of Himachal Pradesh follows rules and instructions of the Government of India issued from time to time. Accordingly, office memorandum dated 9th October, 1985 (Annexure P-l) has been issued by the Government of Himachal Pradesh on the basis of the instructions issued by the Government of India and unless Government of India makes modification and extend similar benefits to the employees who have retired before 31st March, 1985 no relief can be granted to the petitioner. 4. After hearing learned Counsel for the parties and going through the record this Court finds that there is no justification for fixing cut off date for giving benefit of office memorandum dated 9th October, 1985 (Annexure P-l) and thereby creating a class within a class of pensioners without any intelligible differentia between the classification and the object sought to be achieved. Similar office memorandum has been quashed as unconstitutional by the Punjab and Haryana High Court in Rajbir Singh v. State of Haryana and others, 1987 (4) SLR 767; Jagdev Krishan Nanda and others v. State of Haryana and another, 1989 (6) SLR 659; Hari Singh v. State of Haryana and another, 1992 (1) SLR 500; State of Punjab and others v. Dr. Asa Singh and others, 1993 (2) SLR 229, following the law laid down in D.S. Nakara and others v. Union of India, AIR 1983 SC 130. 5. In Nakaras case (supra) the issue for determination was; whether the pensionary or retiral benefits cannot be denied to those pensioners who retired before the promulgation of the liberalised pension scheme or even the dates specified therein. The Supreme Court has answered in para 65:— "That is the end of journey. With the expanding horizons of socio-economic justice, the socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria; being in service and retiring subsequent to the specified date for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly un-related to the objects sought to be achieved by grant of liberalised pension and eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of being in service on; the specified date and retiring subsequent to that date in impugned memoranda. Exhibits P-l and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Ext. Exhibits P-l and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Ext. P-l, the words: That in respect of the Government servants, who were in service on the 31st March, 1979 and retiring from service on or after that date." And in Exhibit P-2, the words : "The new rates of pension are effective from 1st April, 1979 and will be applicable to all service officers who became/become non-effective on or after that date." Are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible. Let a writ to that effect be issued. But in the circumstances of the case, there will be no order as to costs. 6. In R.L Marwaha v. Union of India and others, (1987) 4 SCC 31, it has been further explained that, "in the absence of any explanation which is worthy of consideration it has to be held that the classification of the pensioners who were working in the Government/autonomous bodies into two classes merely on the basis of the date of retirement is unconstitutional as it bears no nexus to the object to be achieved by the order." 7. On the other hand, learned Counsel for the respondents have referred to the judgment of the Supreme Court in Krishena Kumar v. Union of India, (1990) 4 SCC 207 and Indian Express Services League v. Union of India, (1991) 2 SCC 104, to urge that there can be cut off date and different retiral benefits can be made applicable to the employees retiring prior to a particular date and retiring thereafter. The ratio of these judgments has been that all the retirees cannot form one class and their classification is permissible if they are governed by different set of rules in respect of retiral benefits. 8. The ratio of these judgments has been that all the retirees cannot form one class and their classification is permissible if they are governed by different set of rules in respect of retiral benefits. 8. Similarly in a recent judgment of the Supreme Court in State of W.B. and another v. W.B. Government Pensioners Association and others, (2002) 2 SCC 179, the learned Judges of the Supreme Court have upheld the cut off date having been satisfied with the reasons given by the State Pay Commission for fixing 1.1.1986 as cut off date for revision of pay scales and also for recomputation of pension for employees retiring after 1.1.1986, where necessary. It is held that difference between pre-1986 pensioners and the post-1986 pensioners is only on account of the revision of pay scales and not on account of failure of the State Government to equitably apply the liberalised Pension Scheme Formula. 9. Applying the ratio of the above cited judgments to the present case, in the absence of any explanation for fixing 31st March, 1985 as cut-off date for giving the benefits of the Office Memorandum dated 9th October, 1985 (Annexure P-l) this Court has no alternative but to quash the cutoff date which has created an artificial classification between the retirees who are governed by the same set of Pension Rules. In the result, the writ petition is allowed and it is held that the benefits of office memorandum dated 9th October, 1985 (Annexure P-l) will be applicable to the petitioner, who has retired before 31st March, 1985. There is no order as to costs. Petition allowed.