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2010 DIGILAW 287 (GUJ)

VINOD BEHARI SIMLOTE v. STATE OF GUJARAT

2010-06-29

D.H.WAGHELA, M.D.SHAH

body2010
Judgment D. H. W AGHELA, J. The appellant is a Medical Officer, who retired on reaching the age of superannuation on 28-2-2009 at the age of 58 from his service under the Employees State Insurance Scheme (E.S.I.S.), where he was working under the Health and Family Welfare Department of the State Government. While he was still in service, on 4-2-2009, the State Government increased the age of retirement from 58 to 62 of the scheduled cadre of Medical Officers by a resolution of that date, without including in the schedule the cadre of Medical Officers employed under E.S.I.S. Therefore, the appellant approached this Court on 25-2-2009 with a petition under Art. 226 of the Constitution, praying to remove the discrimination and direct the respondent to rectify the mistake of not including the cadre of Insurance Medical Officers, Class-II in the Schedule to the aforesaid G.R. dated 4-2-2009. Pending that petition, in Civil Application No. 1719 of 2009 prayers were also made to permit the petitioner to serve on the same post by way of interim/ad-interim relief. That petition, was however, finally heard and disposed by order dated 23-3-2009 by learned Single Judge only on the basis that learned A.G.P., under instructions from Joint Secretary, Health and Family Welfare Department, stated that proposal for enhancing the age of superannuation of Insurance Medical Officers from 58 to 62 years was under consideration with the State Government and papers were lying with the Finance Department for approval. The Court then directed the respondent to take a final decision on the proposal within a period of three months. That decision came in the form of G.R. dated 116-2009 increasing the age at par with other Medical Officers, but that G .R. was stipulated to take effect prospectively. Thus, the appellant was deprived of the benefit of G.R. dated 11-6-:2009, as he had already retired on 282-2009. Therefore, second petition, being S.C.A. No. 8629 of 2009, came to be filed and it is disposed by the same learned Judge by the impugned order dated 10-9-2009 dismissing the petition. 2. Thus, the appellant was deprived of the benefit of G.R. dated 11-6-:2009, as he had already retired on 282-2009. Therefore, second petition, being S.C.A. No. 8629 of 2009, came to be filed and it is disposed by the same learned Judge by the impugned order dated 10-9-2009 dismissing the petition. 2. The impugned order in the second petition is based on the premise that enhancing the age of retirement of an employee or a class of employees is a policy decision of the State Government, based on the proposal of Director, Medical Services (E.S.I.S.) dated 19-2-2009 in the present case; and the appellant cannot claim that retrospective effect has to be given. The Court found no substance in the argument that discrimination between the Medical Officers working under the E.S.I.S. and other Medical Officers under the same department of the State Government was unreasonable and it was held that providing different cut-off dates was permissible. Ultimately considering the overall facts and circumstances of the case, the Court found no substance in the petition. 3. Learned Counsel Mr. S. J. Gaekwad, appearing for the appellant, vehemently argued that the appellant was, as a matter constitutional right, entitled to be treated at par with other Medical Officers in the same cadre under the same department, just as parity in all other matters of employment was maintained within the same cadre, and therefore, the first G .R. dated 4-2-2009 was required to be applied in case of the appellant. When the Government decided to remove the anomaly and discrimination and time of about four months was taken in rectifying the error, the subsequent G.R. dated 11-6-2009 was required to be given effect from the date of first G.R. dated 4-2-2009, it was not open for the Government to deprive the Medical Officers like the appellant of the benefit of G.R. dated 4-2-2009 just by delaying its decision and making the G .R. dated 11-6-2009 prospective, according to the submission. He pointed out from the petition the appellant's averments on oath stating that hospitals and dispensaries under the E.S.1.S. were administered and financially controlled by Health and Family Welfare Department of the State Government and the criteria for recruitment, other service conditions including pay, promotion, benefits of higher pay scale as per Tikku Pay Commission were all made applicable to Insurance Medical Officers. The appointing authority and the parent department of Medical Officers, Class-II under the Health and Medical Department and those for the Insurance Medical Officers appointed under E.S.1.S. were the same. Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002 is also made equally applicable to all the employees serving under the Health Department and the age of retirement as prescribed in Rule 10(1) is also the same. He contended that, by the impugned G.R. dated 11-6-2009, the Government had perpetrated irrational discrimination between two sets of employees and even among the employees serving under E.S.1.S., and the appellant was subjected to such hostile discrimination for no fault on his part. 3.1. By filing an affidavit of the appellant, it was asserted that, according to the Information obtained from the Directorate of E.S.I.S. under Right to Information Act 2005, out of total 550 sanctioned posts of Medical Officers, Class-II, 203 posts were vacant as on 24-2-2009. It is also officially revealed that, as against 37 centres in 26 districts of the State E.S.I.S. required 60 new centres to be opened. It is officially confirmed by Director, Medical Services, E.S.I.S. in his letter dated 24-2-2009 to Secretary, Health and Family Welfare Department of the State Government, that recruitment procedure and criteria for eligibility for Medical Officers under E. S. I. S. and under other sections of Medical Education, Medical Services and Health Services of the State are the same. It is also confirmed in that letter that Insurance Medical Officers (E.S.I.S. Doctors) were retiring at the age of 58 years as they were on the establishment of the State Government under the Health and Family Welfare Department. Thus, there was no valid reason or rationale for any discrimination against the appellant, according to the submission. It was also argued that, in the above facts, there could be no adverse consequences for the respondent or any other medical officer, if the appellant were ordered to be reinstated and the intervening period were ordered to be regularised, in the interest of justice and in the interest of medical services rendered by E.S.I.S. 4. It was also argued that, in the above facts, there could be no adverse consequences for the respondent or any other medical officer, if the appellant were ordered to be reinstated and the intervening period were ordered to be regularised, in the interest of justice and in the interest of medical services rendered by E.S.I.S. 4. Learned A.G.P., appearing for the respondents, defended the impugned order with the submission that in every case of enhancement of the age of retirement, a cut-off date has to be prescribed and such prescription of cut-off date cannot be held to be discriminatory or arbitrary only on the basis that it placed the same class of employees into two categories only with reference to date of retirement. It was also submitted that, though service rules for Insurance Medical Officers and other Medical Officers under the Government were the same, the establishment of dispensaries under E.S.I.S. was separate, and therefore, the Government had to take a decision, separately on the basis of the recommendation dated 19-2-2009 of Director, E.S.I.S.. It was also stated at the bar that during the period between 4-2-2009 and 11-2-2009, several other doctors would have retired and paid their retiral dues accordingly, making it a falt accompli. Learned A. G. P., relied upon decision of the Apex Court in Achhalbar Maurya v. State of Uttar Pradesh, 2008 (2) SCC 639 holding that benefit of getting an extended period of service must be conferred by a statute and the legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. It is also held in Government of Andhra Pradesh v. N. Subharayudu, 2008 (14) SCC 702 that the view taken in D. S. Nakara case, 1983 (1) SCC 305 has been considerably watered down in subsequent decision. Even if no reason has been given in the counter-affidavit of the Government or the Executive Authority as to why a particular cut-off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Art. 14 unless the said cut-off date leads to some blatantly capricious or outrageous result. 5. Even if no reason has been given in the counter-affidavit of the Government or the Executive Authority as to why a particular cut-off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Art. 14 unless the said cut-off date leads to some blatantly capricious or outrageous result. 5. There is no dispute about the facts that Insurance Medical Officers as well as other Medical Officers under the State Government were all in the same cadre and were governed by Gujarat Civil Services (Pension) Rules, 2002 which were expressly made applicable to all members of service and holders of posts whose conditions of service, the Government of Gujarat is competent to prescribe. And under Rules 10 and 12 of those Rules, every Government employee, other than a Class-IV employee, shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. However, such employee may be retained in service beyond the age of 58 years only with the previous sanction of the Government in public interest, for reasons to be recorded in writing. Thus, enhancement of the age of retirement for the Medical Officers in the same cadre was in exercise of the power reserved to the Government, subject to recording in writing of reasons, presumably to ensure reasonableness in the exercise of such power. It follows therefrom that the power cannot be exercised arbitrarily, capriciously or without any nexus to the object sought to be achieved. 5.1. The first G.R. dated 4-2-2009 expressly stated in its preface that enhancement of the age of retirement of all employees of Medical Colleges and Medical and Health Services was under consideration on account of requirement of their services. And it was after due consideration thereof that age of retirement was increased for the employees in various cadres under the Commissioner, Medical Education and Research; the Commissioner, Medical Services and the Commissioner, Health Services. It could not be gainsaid that the Insurance Medical Officers were in the same cadre as the Medical Officers in Public Health and Medical Services, Medical Education and Dental Services under the State Government in their Health and Family Welfare Department. Therefore, there was no valid reason to exclude the Insurance Medical Officers from the operation of first G. R. dated 4-2-2009. Therefore, there was no valid reason to exclude the Insurance Medical Officers from the operation of first G. R. dated 4-2-2009. The fact that Insurance Medical Officers were working at dispensaries under E.S.I.S. is irrelevant insofar as such Medical Officers were appointed by the State Government and governed by all the service rules and conditions of service prescribed by the State Government. In that view of the matter, exclusion of Insurance Medical Officers from the operation of G. R. date 4-2-2009 was irrational and arbitrary and possibly their exclusion was an inadvertent omission, as stated at the bar. Unfortunately, that grievance and contention amply voiced in the first petition of the appellant, i.e. Spl.C.A. No. 1719 of 2009, was not duly dealt with only on account of the statement made at the bar on behalf of the respondent. When it came to really redressing the grievance, even after the Government putting the Insurance Medical Officers at par with other Medical Officers in the same cadre working in various other Sections, the cut-off date of 11-6-2009 came to be pressed into service deny any relief to the appellant. It is against such backdrop of sequence of events that the sanctity of the cut-off date and the requirement of giving retrospective effect to G .R. dated 11-6-2009 has to be examined. 6. It was held by Constitution Bench of the Supreme Court in D. S. Nakara v. Union of India, 1983 (l) SCC 305 that date of retirement cannot form a valid criterion for classification, for if that be the criterion, those who retire at the end of every month shall form a class by themselves. This is too microscopic a classification to be upheld for any valid purpose. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable effect of dividing a homogeneous class and of introducing discrimination, the same can be easily servered and set aside. It was also held that there is no principle that "severance" limits the scope of legislation and can be over enlarge it. The Court can strike down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. It was also held that there is no principle that "severance" limits the scope of legislation and can be over enlarge it. The Court can strike down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification, by striking down words of limitation, the resultant effect may be of enlarging the class. In such a situation, the Court can strike down the words of limitation in an enactment. That is what is called reading down the measure. Such reading down may result into extending the benefit of the liberalised person scheme as well to those retired earlier. It would not be a new scheme but an upward revision of an existing benefit. Although, these observations were made in the context of payment of pension at the revised rates, the basic principle laid down by the Constitution Bench of the Apex Court was that legislative and executive action could be sustained if it satisfies the twin tests of reasonable classification and rational principle correlated to the object sought to be achieved. The burden of proof lies on the State to affirmatively establish that these twin tests have been satisfied. The State, must therefore, not only establish the rational principle on which classification is founded but correlate it to the objects sought to be achieved. 6.1. A three-Judge Bench of the Apex Court in B. Prabhakar Rao v. State of Andhra Pradesh, 1985 (Supp.) SCC 432 held: "20. .....Legislations to remedy wrongs ought not to exclude from their purview a few of the wronged persons unless the situation and the circumstances make the redressal of the wrong, in their case, either impossible or so detrimental to the public interest that the mischief of the remedy outweighs the mischief sought to be remedied. We do not find that there is any such impossibility or detriment to the public interest involved in reindicting into service those who had retired as a consequence of the legislation which was since thought to be inequitable and sought to be remedied. . . . . "21. ..... We do not find that there is any such impossibility or detriment to the public interest involved in reindicting into service those who had retired as a consequence of the legislation which was since thought to be inequitable and sought to be remedied. . . . . "21. ..... We must further remember, quite apart from aI1Y question of retrospectivity, that unlike in the United Kingdom, here in .India we have a written Constitution which confers justiciable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non-retroactivity or non-application clause, as offending the fundamental right to equality before the law and the equal protection of the laws. That is the situation that we have here." 6.2. In State of U.P. v. G. Ramakishan, 2001 (1) SCC 323 , the action of the Government was challenged on the ground of arbitrariness and discrimination and the Government failed to establish any reasonable basis for giving effect to the enhanced rates of stipend with effect from different dates. While in case of post-graduate students of medical colleges the benefit was extended with effect from an anterior date, in case of postgraduate students of Agricultural University, the benefit was extended from a date subsequent thereto. That department from parity in the matter between two groups of post-graduate students, which parity had admittedly been maintained all along, was assailed as arbitrary and discriminatory. That Government neither stated in the pleadings any reasonable or rational basis for giving effect to the enhanced rate of stipend with effect from different dates nor it placed any material before the Court in that regard. The Court held that the fact that the courses of studies of post-graduate students in the two institutions and the nature of practical duty done by them were different, were of no consequence for the reason that the matter under challenge related to the date with effect from which the enhanced stipend was to be paid. The Court held that the fact that the courses of studies of post-graduate students in the two institutions and the nature of practical duty done by them were different, were of no consequence for the reason that the matter under challenge related to the date with effect from which the enhanced stipend was to be paid. The ratio of this decision applies in the facts of the present case before this Court insofar as the only ground for discrimination and different dates in application of enhanced age of retirement is stated to be that the Insurance Medical Officers, though in the same cadre of Medical Officers, were working in dispensaries under the E.S.I.S.; while the matter under challenge is related to the date from which enlaced age of retirement should be applied. 6.3. In State of Punjab v. Amar Nath Goyal, 2005 (6) SCC 754 , the Apex Court observed that the refrain of D. S. Nakara (supra) has been played too often to retain its initial charm which has been worn thin by subsequent dicta. The only question before the Court was whether the decision of the Central and State Governments to restrict the revision of the quantum of gratuity as well as the increased ceiling of gratuity consequent upon merger of a portion of dearness allowance into dearness pay reclaimable for the purpose of calculating gratuity, was irrational or arbitrary. The Court found it difficult to accede to the argument of the employees that the decision of the Government to limit the benefits only to employees, who retired or died on or after 1-4-1995, was either irrational or arbitrary. The Court held that financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. Referring to State of Rajasthan v. Amrit Lal Gandhi, 1997 (2) SCC 342 , the Court observed that the importance of considering financial implications, while providing benefits for employees, has been noted in numerous judgments holding that financial impact of making the regulations retrospective can be the sole consideration while fixing a cut-off date. Possible hardship to be endured by a person as a result did not make cut-off dates violative of Art. 14. 6.4. Possible hardship to be endured by a person as a result did not make cut-off dates violative of Art. 14. 6.4. As held in University Grants Commission v. Sadhana Chaudhary, 1996 (10) SCC 536 , it is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. In All India Reserve Bank Retired Officers Association v. Union of India. 1992 Supp. (1) SCC 664, the Apex Court distinguished the judgment in D. S. Nakara (supra) and pointed out that it is for the Government to fix a cut-off date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cut-off date and had collected their retiral benefits from the employer. A similar view was taken in Union of India v. P. N. Menon. 1994 (4) SCC 68 , relying upon which in State of Rajasthan v. Amrit Lal Gandhi (supra), it was reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis has to be fixed for extending the benefits. 7. The upshot of above discussion of relevant dicta is that two classes of employees could be treated differently and even in the same class of employees, a cut-off date could be prescribed for grant of benefits, provided that the classification is reasonable and correlated to the object sought to be achieved. In examining such matters on the anvil of constitutional rights guaranteed under Arts. 14 and 16, financial and economic implications are relevant and germane and in a given case, financial impact of making a regulation retrospective could be the sole consideration while fixing a cutoff date. Normally, decision of the legislature or its delegate is presumed to be legal and reasonable unless the classification or a cut-off date is shown to be irrational, arbitrary or capricious. Normally, decision of the legislature or its delegate is presumed to be legal and reasonable unless the classification or a cut-off date is shown to be irrational, arbitrary or capricious. However, if there is discrimination in separating a class or fixing a date for granting some benefit or conferring an advantage, which is based on irrelevant consideration unrelated to the object sought to be achieved, it cannot stand the test of right to equality enshrined in Arts. 14 and 16 of the Constitution. While considering such legal aspect of the matter, possible hardship to be endured by one or the other party may be disregarded as wholly irrelevant, but the financial implications and administrative difficulties or chaos that may ensue have to be kept in view in moulding the relief, as discussed in B. Prabhakar Rao (supra). 8. As already held hereinabove in Paragraph 5, non-inclusion of Insurance Medical Officers in G.R. dated 4-2-2009 was irrational and arbitrary or possibly an inadvertent omission and that view of the matter is buttressed by the fact that the Government have extended the same benefit to such officers by the next G.R. dated 11-6-2009. Therefore, the crucial question of giving retrospective effect to the second G.R. assumes importance and upon resolution thereof depends the removal of discrimination and real relief for the Insurance Medical Officers who would have retired during the short period intervening between the two resolutions, in other words, the cut-off date indirectly prescribed by G.R. dated 11-6-2009 by making it prospective cannot be examined in isolation as a stand-alone measure, but it has to be seen as a remedial and curative measure calculated to remove the injustice meted out to Insurance Medical Officers date to their exclusion, inadvertent or arbitrary, from the operation of the first G. R. dated 4-2-2009. According to the famous observation of Lord Denning M.R. in Bradbury v. London Borough of Enfield, 1967 (3) All ER 434 : "..... it would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and public. I must say this: if a local authority does not fulfil the requirements of the law, this Court will see that it does fulfil them, it will not listen readily to suggestions of "chaos". it would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and public. I must say this: if a local authority does not fulfil the requirements of the law, this Court will see that it does fulfil them, it will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the "chaos" is much overstated. ..... I can well see that there may be a considerable upset for a number of people, but think it far more important to uphold the rule of law........" It must be noted that the appellant had indeed sought to assert his right to equality, while he was in service, by approaching this Court by way of S.C.A. No. 1719 of 2009, but unfortunately, that petition was disposed without any order on merits and without adjudicating the claim of the appellant to continue in service. Thus, a situation has arisen in which the appellant himself is excluded from the benefit of agitating and vindicating his right, for no fault on his part and only because the latter resolution dated 11-6-2009 took effect from that date. The Government could not have and could not be justified in having the intention of depriving the few Insurance Medical Officers, who might have retired during March to June, 2009, of the benefit of G.R. date 11-6-2009. Thus, the indirect fixing of the cut-off date for operation of the G. R. dated 11-6-2009 is, in the fact of the present case, having the effect of hostile discrimination without any nexus with the object sought to be achieved and also of perpetuating the effect of discrimination and injustice caused by non-inclusion of Insurance Medical Officers in the first G. R. dated 4-2-2009. There is no question of any financial impact and no such issue is raised in the facts of the present case. As held in Prabhakar Rao (supra) : " . .. . . in industrial law, we do award back and future wages on quite a large scale and there is no reason why we cannot adopt the same principle here. As held in Prabhakar Rao (supra) : " . .. . . in industrial law, we do award back and future wages on quite a large scale and there is no reason why we cannot adopt the same principle here. If as rule private employers in such situations are asked to pay back wages, we see no impediment in doing so in the case of those that are expected to be model employers, i.e. the Government public corporations and local authorities." 9. In order to overcome the last possible hurdle in moulding the relief in view of passage of time after actual retirement of the appellant, it was placed on record by him, and it could not be controverted by learned A.G.P., that the E.S.I.S. dispensaries were suffering from acute and endemic shortage of staff at every level and it was in fact in public interest to retain the experienced staff. Therefore, there is no hurdle or administrative difficulty in reinstating the appellant with continuity in service. It was stated at the bar that the appellant has not received any retiral dues or benefits except the amounts of leave encashment and group Insurance and that he is prepared to refund the same to the Government, if he is allowed to continue in service in terms of G.R. dated 11-6-2009. The issue of payment of wages for the intervening period from March, 2009 till the date of reinstatement is arising and it is in the interest of justice that the appellant is paid full wages for the period from the date of the petition (Spl.C.A. No. 8629 of 2009), i.e. 1-8-2009, till he is reinstated in service and the break. in service is regularized as leave without pay for the period from 1-3-2009 till the date of the petition, i.e. 1-8-2009. 10. Therefore, in the facts and for the reasons discussed hereinabove, the impugned order dated 10-9-2009 in Spl.C.A. No. 8629 of 2009 is set aside and the appellant is ordered to be reinstated with full wages for the period from 1-8-2009 till the date of his reinstatement in service with continuity of service. It is also directed that G.R. dated 11-6-2009 shall take effect from 4-2-2009 in case of the appellant with all the consequential benefits subject to specific order regarding back wages as stated hereinabove. 11. The appeal stands partly allowed accordingly with no order as to costs. It is also directed that G.R. dated 11-6-2009 shall take effect from 4-2-2009 in case of the appellant with all the consequential benefits subject to specific order regarding back wages as stated hereinabove. 11. The appeal stands partly allowed accordingly with no order as to costs. Civil Application is disposed as not surviving. (SBS) Appeal partly allowed.