Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 67 (HP)

ROSHAN LAL MEHTA v. HONBLE HIGH COURT OF H. P.

2004-04-07

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J.—Facts regarding which learned Counsel for the parties were not at variance are, that petitioner No. 1 had undergone sterilization operation at Rippon Hospital, Shimla on 24.5.1976. Similarly wife of petitioner No. 2 had undergone family planning operation at Lady Reading Hospital, Shimla. Both the petitioners are the employees of respondent No. 1. 2. Keeping in view the population explosion, as well as its every increasing number, the State of Himachal Pradesh decided to introduce incentives amongst State Government employee for promoting small family norms. Vide Government of Himachal Pradesh, Health and Family Planning Department Letter No. 17-45/75/H&FP, dated 19.7.1976, addressed by the Chief Secretary to the Government of Himachal Pradesh, to all the Heads of Departments and all Deputy Commissioners incentives were notified. 3. Object sought to be achieved was zero growth rate of population by the end of 6th Five Year Plan period. With the said end in view higher targets of sterilization were fixed. Such employees of the Government of Himachal Pradesh in the category of eligible couples as were undergoing sterilization after the birth of two or less children were to be given one advance increment in their respective scales of pay. Similar instructions were also issued, granting incentives as contained in the communication, copy whereof has been placed by respondent No. 2 as Annexure RA-1. However, Annexure RA-1 was withdrawn on 18.5.1977 by the Government of Himachal Pradesh with immediate effect. Copy of the communication in that behalf is placed on record by respondent No. 2 as Annexure RA-2. For ready reference contents of this Annexure RA-2 are extracted hereinbelow: "I am directed to say that the position with regard to incentives provided under the Family Welfare programme by this Government was reviewed by the Government and it has been decided to withdraw the incentives contained in this department letter No. 17-45/75. H&FP dated the 19th July, 1976, with immediate effect, both for Government employees/daily waged employees and General public.” 4. State Government after the issuance of Annexure RA-2 (supra), issued Office Memorandum No. Fin(C) A(3)-6/80, dated 8.12.1981. This was also on the subject of introduction of incentives amongst State Government employees for promoting the small family norms. H&FP dated the 19th July, 1976, with immediate effect, both for Government employees/daily waged employees and General public.” 4. State Government after the issuance of Annexure RA-2 (supra), issued Office Memorandum No. Fin(C) A(3)-6/80, dated 8.12.1981. This was also on the subject of introduction of incentives amongst State Government employees for promoting the small family norms. Its introductory paragraph and other relevant clauses for deciding this petition are extracted hereinbelow : "The undersigned is directed to say that the question of providing incentive to promote the small family norms among the State Government employees in Himachal Pradesh has been under consideration of the Government for sometime past. The Governor, Himachal Pradesh is now pleased to decide that the employees who undergo sterilization after having two or three surviving children may be granted a special increment in the form of personal pay not to be absorbed in future increases in Day either in the same post or on promotion to higher posts. The rate of personal pay would be equal to the amount of the next increment due at the time of grant of the concession and will remain fixed during the entire service. In the case of persons drawing pay at the maximum of the scale the rate of personal pay would be equal to the amount of the increment last drawn. The grant of the concession will be subject to the following conditions:— (1) ................................................................................................................. (2) The employee should have two or three living children. (3) ................................................................................................................. (4) The Sterilization Operation can be undergone either by the employee or his/her spouse, provided the conditions at serial Nos. (1) to (3) are fulfilled. (5) to (10) .................................................................................................. (11) If both husband and wife are Government employees, the concession would be drawn either by the husband or by the wife, the choice being left to them to choose the higher of the two increments available to them. (12) The Government employees who have one child or more than 3 children and are within the re-productive age group, the benefit of special increment would not be admissible, if they undergo sterilization operation, as a family consisting of 2 or 3 children has been taken to be an ideal family." 5. A Government employee and/or his/her spouse, who underwent family planning operation between 18.5.1977 till 7.12.1981, as per the aforesaid circular of 1981, was not entitled for any benefit. A Government employee and/or his/her spouse, who underwent family planning operation between 18.5.1977 till 7.12.1981, as per the aforesaid circular of 1981, was not entitled for any benefit. Having realized this position Government of Himachal Pradesh, Finance (Regulations) Department, vide office memorandum No. Fin(C)A(3)-6/80 dated April 1985, granted benefit to such employees. This is extracted hereinbelow : "Subject.—Introduction of incentive among State Government employees for promoting the small family norms. As the Administrative Departments are aware that in order to progressively reduce the rate of growth of population by the end of 6th Five Year Plan period, the Government in the Health Department decided to enforce the incentive of one advance increment to such employees of the Government of Himachal Pradesh in the category of eligible couples who undergo sterilization after the birth of two or less children in their respective scales of pay. Orders in that behalf were issued on 19th July, 1976. In May, 1977, the matter was reviewed by the Government in the Health Department and it was decided to withdraw the aforesaid incentive with immediate effect. On the 8th December, 1981, the State Government adopted the Central Government pattern for promoting incentives among State Government employees for promoting the small family norms and orders in that behalf were issued by the Finance Department vide Office Memorandum of even number dated the 8th December, 1981 effective from 1.10.1981. These orders of the Finance Department are still applicable to the State Government employees. The question of giving incentive of one advance increment to those employees of the Government who underwent sterilization operation during the period from 20.5.1977 to 30.9.1981 (i.e. after the withdrawal of orders issued by the Health Department and prior to the orders issued by the Finance Department regarding incentive of one increment for undergoing sterilization operation) has been under consideration of the Government for some time past. The Governor Himachal Pradesh is now pleased to order that the employees who underwent sterilization during the intervening period (i.e. 20.5.1977 to 30.9.1981) may be given the incentive of one increment as under :— (1) One advance increment will be given to those employees in the eligible couple group who underwent sterilization etc. after two or less children. (2) The increment will be governed in the same manner as it is being governed under the existing instructions (i.e. O.M. No. Fin (C) A(3)-6/80, dated 8.12.1981). after two or less children. (2) The increment will be governed in the same manner as it is being governed under the existing instructions (i.e. O.M. No. Fin (C) A(3)-6/80, dated 8.12.1981). (Rajmani Tripathi) Deputy Secretary (Reg.) to the Government of Himachal Pradesh." 6. Last Office Memorandum issued by respondent No. 2 on this subject was dated 31.5.1997. Its contents are also extracted hereinbelow: "A copy of office memorandum No. Fin (C)A(3)-8/88/IV dated 31st May, 1997 received from Ram Sarup Verma, Under Secretary (Fin-Reg.) to the Government of Himachal Pradesh, Copy forwarded to all the Heads of Departments in H.P., the Registrar, High Court of H.P. Shimla and others. Subject : Introduction of incentives among State Government employees for promoting the small family norms. The undersigned is directed to invite a reference to this Departments Office Memorandum No. Fin-(C)A(3)-6/80, dated the 8th December, 1981 and subsequent orders/clarifications issued from time to time on the subject noted above and to say that the Governor, Himachal Pradesh, is pleased to decide that incentive increment may be granted to those Government employees who undergo sterilization operation, after having up to two living children, in the norm of personal pay not to be absorbed in future increases in pay either in the same post or on promotion to higher posts. The rate of personal pay would be equal to the amount the next increment due at the time of grant of concession and will remain fixed during the entire service. In the case of persons drawing pay at the maximum of the scale, the rate of personal pay would be equal to the amount of increment last drawn. The grant of the concession will be subject to the conditions prescribed in this Departments Office Memorandum dated 8.12.1981, as referred to above. These orders will take effect from the date of issue and may be brought to the notice of all concerned. Sd/31.5.1997 (Ram Sarup Verma), Under Secretary (Fin-Reg.) to the Government of Himachal Pradesh". 7. In the aforesaid factual background, case of the petitioners is that they are entitled for the grant of the incentive aforesaid, irrespective of the fact as to at what point of time they and/or their spouse(s) underwent family planning operation. Sd/31.5.1997 (Ram Sarup Verma), Under Secretary (Fin-Reg.) to the Government of Himachal Pradesh". 7. In the aforesaid factual background, case of the petitioners is that they are entitled for the grant of the incentive aforesaid, irrespective of the fact as to at what point of time they and/or their spouse(s) underwent family planning operation. According to them, there is no rational much less justifiable cause to deny benefit of the aforesaid Government circulars issued from time to time irrespective when the family operation was undergone. 8. Further according to the learned Senior Counsel, action of respondent No. 1 in denying the benefit of special increment to the petitioners is clear cut in derogation of, as well as in violation of Article 14 of the Constitution of India. According to him, keeping in view the object (of the aforesaid Government circulars), sought to be achieved is uniformal in case of such Government employees, who/whose spouses, have undergone family planning operation whether before or after the issuance of circulars in question. 9. All these pleas have been controverted by Mr. M.S. Chandel, learned Advocate General. Who submitted that grant/refusal of incentive is a policy matter, therefore, no relief can be given to the petitioners. He further submitted that this Court will not interfere with the policy decision taken by the Government so far grant of incentive to its employees from a particular date is concerned. 10. So far respondent No. 1 is concerned, Mr. Trilok Chauhan submitted, that petitioner No. 2 had filed CWP No. 523 of 1987 in this Court claiming same relief, which was disposed of by this Court in the following terms :— "Mr. Rajiv Sharma states that he may be permitted to withdraw the petition. Permission granted. Rejected as withdrawn." Therefore, per him, this petition on his behalf is not maintainable. Regarding petitioner No. 1 he submitted that it all depends upon the decision of this Court in these proceedings so far matter relating to interpretation of Government instructions issued from time to time is concerned. 11. It is not the case of either of the respondents that petitioner No. 1 and spouse of petitioner No. 2 had not undergone family planning operation. It is further not the case of any of the respondents that when these operations were undertaken, persons operated upon were disqualified under any of the circulars (supra), except keeping in view number of children. It is further not the case of any of the respondents that when these operations were undertaken, persons operated upon were disqualified under any of the circulars (supra), except keeping in view number of children. 12. After having heard learned Counsel for the parties, I am prima facie satisfied that the respondents are not justified by denying the benefit of the special increment to the petitioners like other persons who had undergone family operation prior to issuance of Annexure RA-1 and/or in between Annexure RA-2 and issuance of 1981 Office Memorandum as extracted hereinabove. Thus, when the action of respondent No. 1 is examined on the touch stone of Article 14 of the Constitution of India, it can safely be said that the instructions are arbitrary, unreasonable, besides being unjust in the circumstances of this case. Reason being that looking to the ever increasing rate of population in our country of which fact judicial notice can be taken, efforts of the welfare State in the direction of checking the growth are being completely eaten up by such ever increasing population. In these circumstances to put a check on the such ever increasing population in the country, decision of respondent No. 2 in issuing instructions from time to time is laudable, keeping in view the object sought to be achieved. Therefore, respondent No.2 is not justified in saying that the benefit of said increment will be available to those strictly detailed in its communications/office memorandums referred to hereinabove and not to others who had undergone (either themselves or their spouses) such operation. 13. It may also be appropriate to observe and as noted hereinabove Article 14 of the Constitution provides equality before laws while also ensuring equal protection of the laws. No doubt, reasonable classification is always permissible under this Article, provided it has some nexus/ purpose with the object sought to be achieved. What follows this is that similarly situated persons cannot be treated dis-similarly. From this position it is also evident that so far employees of the Government are concerned they constitute a single class by themselves and are required to be governed as well as treated uniformally. What follows this is that similarly situated persons cannot be treated dis-similarly. From this position it is also evident that so far employees of the Government are concerned they constitute a single class by themselves and are required to be governed as well as treated uniformally. In the context and background of the present case, uniform Rule is that in case persons like the petitioners/their spouses, had not acquired any disqualification under the relevant circulars/rules/ memorandums, but had already undergone family planning operation, all such employees constitute a class by themselves and have to be treated homogeneously and a result of it all of them have to be treated alike. Therefore, net result of this discussion is that all of them are entitled to the grant of special increment. 14. Further question that needs consideration in this case is whether the classification based on point of time by respondent No. 2 so far matter regarding undergoing family planning operation is concerned, it creates an unreasonable classification between its employees qua those like petitioners, who/their spouse(s) had undergone the operation before the dates of communication/office memorandum referred to hereinabove. Answer would be no. Reason being that the classification is neither just nor proper, besides being unreasonable. Rather it is not a classification which has any rational and/or nexus with the object sought to be achieved by denying the benefit of special increment to the persons like petitioners simply on the ground that they have either three children living or the family planning operation was undertaken either before the issuance of Annexure RA-1 or thereafter, therefore such a classification cannot be sustained. 15. Mr. Chandel also submitted that writ petition suffers from the delay and laches on the part of the petitioners. As according to him, on their own showing family planning operations in this case were undergone some where in the years 1976 and 1977, filing of the writ petition in the year 2000 does not justify the grant of any relief. Because even if it assumed for the sake of arguments without conceding that the petitioners are entitled to any relief in this case, for delay factor it merits dismissal. Because even if it assumed for the sake of arguments without conceding that the petitioners are entitled to any relief in this case, for delay factor it merits dismissal. Suffice it to say that this may be a relevant circumstance while fixing the date for the grant of special increment in terms of the aforesaid circulars/ memorandums etc., but in the peculiar facts and circumstances of the case, it cannot be made the sole basis for rejecting the same. 16. So far plea of respondent No. 1 regarding CWP No. 523 of 1987 having been withdrawn vide order as extracted hereinabove is concerned, suffice it to say that the petitioner No. 2 is not precluded from filing this writ petition. For taking this view reliance is being placed on the decision of the Supreme Court in Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. The Workmen and another, AIR 1981 SC 960. For ready reference relevant paragraphs 20 and 21 are extracted hereinbelow :— "20. After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and circumstances had been withdrawn unconditionally. 21. We accordingly allow the appeal and set aside the impugned order and the order of the learned Single Judge dated 9th November, 1972 in writ petition No. 583 of 1972 and send the case back to him for considering the writ petition on merits. There is, however, no order as to costs." 17. So far plea of Mr. Chandel that this Court will not interfere in the policy matter as in the present case. Though, ordinarily this plea should have been upheld, however, such policy decision of the Government should not be arbitrary, unjust and irrational. Reliance placed by Mr. Chandel on Krishanan Kakkanth v. Government of Kerala and others, (1997) 9 SCC 495, is again of no consequence. Though, ordinarily this plea should have been upheld, however, such policy decision of the Government should not be arbitrary, unjust and irrational. Reliance placed by Mr. Chandel on Krishanan Kakkanth v. Government of Kerala and others, (1997) 9 SCC 495, is again of no consequence. Because what was observed by the Supreme Court in Union of India and others v. Dinesh Engineering Corporation and another, (2001) 8 SCC 491, and has relevance in this writ, for ready reference is extracted hereinbelow : "Of course, the Supreme Court has held in more than one case that where the decision of the authority is in regard to a policy matter, the Supreme Court will not ordinarily interfere. But then this does not mean that the courts have no abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and whether the said policy can be held to be beyond the pale of discrimination or unreasonableness, on the basis of the material on record." No other point is urged. In view of the aforesaid discussion, this writ petition deserves to be allowed and is ordered accordingly. Resultantly, it is ordered that petitioners are held entitled for the grant of special increment. Since the petitioners have approached the Court on 1.11.2000, therefore, they are held entitled for its grant with effect from 1.11.1997 and not to a date prior to it. No order as to costs.