JUDGEMENT AND ORDER (ORAL) The matter relates to fixation of cut-off date for payment of Death-cum-Retirement Gratuity (hereinafter referred to as DCRG) to the employees of the Assam State Electricity Board (hereinafter referred to as ASEB). As per the impugned Office Memorandum dated 28.5.2005, the said cut-off date is 05.08.2004, which is not conducive to the petitioners, who have retired from service on attaining the age of superannuation on 31.3.2003, 31.3.2003, 31.12.2001, 28.2.2002 and 30.4.2004 respectively. For a ready reference, the impugned Annexure-E OM dated 28.5.2005 is quoted below :- “ASSAM STATE ELECTRICITY BOARD No. ASEB(RF)163/94/179 Dated, Guwahati the 28th May/05 OFFICE MEMORANDUM As already decided vide its Resolution No. 9 dated 5.8.04 and after taking into account, the views of the Govt. of Assam and those of the Successor Companies, the ASEB is pleased vide its Resolution No.11 dated 9.5.05 to enhance the maximum admissible ceiling of DCR Gratuity from existing limit of Rs. 2.00 lakh to Rs. 3.5 lakhs, to its employees with effect from 5.8.04 i.e. the date of Resolution by which Board had initially decided to enhance the maximum ceiling of admissible DCR Gratuity to its employees. This modifies the clause - 5 of the office Memorandum No. ASEB(PC)59/99/117 dtd. 28.4.99, to the above extent only. By order etc., Sd/- K.N. Buragohain Member(P&A) Assam State Electricity Board, Paltanbazar :: Guwahati-1.” 2. According to the petitioners, the State Govt. having had control over ASEB and the ASEB having followed the guidelines issued by the Govt. of Assam from time to time, the cut-off date fixed by the State Govt. which is 26.03.2001, should have been followed and/or adopted by the ASEB instead of introducing altogether a different cut-off date i.e. 5.8.04 and thereby depriving the petitioners from the enhanced rate of DCRG, which was raised from Rs. 2 lakhs to Rs. 3.5 lakhs. As per Annexure-A OM dated 5.9.2001 issued by the Govt. of Assam in the Public Grievances Department, the provisions contained in para 9 of the particular OM dated 19.11.98 issued under Assam Service (pension) Rules, 1969, stood revised to the extent of raising the existing limit of Rs. 2 lakhs to Rs. 3.5 lakhs in respect of DCRG. In the increase was made effective from 26.3.2001. 3. It is the stand of the petitioners that the State Govt. 2 lakhs to Rs. 3.5 lakhs in respect of DCRG. In the increase was made effective from 26.3.2001. 3. It is the stand of the petitioners that the State Govt. having adopted a particular cut-off date as indicated in the said OM dated 5.9.2001 and the ASEB having following the said OM by way of enhancing the rate of DCRG from Rs. 2 lakhs to Rs. 3.5s, could not have deviated in respect of the cut-off date, so as to deprive some of the employees of the ASEB, who otherwise are at par with the State Govt. employees. 4. The respondents have filed their counter affidavit denying the aforesaid plea of the petitioners. According to the respondents, the ASEB having had its own entity, is not bound by the decision of the State Govt. and it can deviate in matters concerning the ASEB and its financial resources. Referring to the particular OM dated 28.4.99 (Annexure-F to the writ petition) on which the petitioners have placed reliance, it is the stand of the respondents that the said OM nowhere restricts the power and jurisdiction of the ASEB to take a decision as regards the rate at which it would require to pay the DCRG. For a ready reference, the particular clause in the Annexure-F OM dated 28.4.99 is quoted below:- “5. Death-cum-Retirement-Gratuity : With due consideration of the recommendation of the Pay Committee 1997 the Board is pleased to lay down the principles that Death-cum-Retirement Gratuity of an employee should be calculated on the basis of last pay drawn with the dearness allowance admissible thereon. The Board is also pleased to raise the maximum limit of admissible Death-cum-Retirement Gratuity to a Board employee from Rs. 1 lakh to Rs. 2 lakhs with effect from 1.4.97. At the same time, it is also laid down that in such matters, Board should be guided by the Death-cum-Retirement Gratuity Rules of the Govt. of Assam.” 5. The respondents have also referred to the decision of this Court in WP(C) No. 7061/2003 (Girindra Nath Neog Vs. The ASEB and others), a copy of which has been annexed as Annexure-10 to the counter affidavit. The judgement in the said case was delivered on 24.5.2006. As in the instant case, in the said case also, the grievance of the petitioner was in respect of the rate of DCRG. The ASEB and others), a copy of which has been annexed as Annexure-10 to the counter affidavit. The judgement in the said case was delivered on 24.5.2006. As in the instant case, in the said case also, the grievance of the petitioner was in respect of the rate of DCRG. The claim of the petitioner was that since the rate was enhanced to Rs. 3.5 lakhs from Rs. 2 lakhs, he was also entitled to the same, more particularly, in view of the of the Annexure-A OM dated 5.9.2001 and Annexure-F OM dated 28.4.99. The writ petition was dismissed by the aforesaid judgement holding that Clause-5 of the OM quoted above can, in no way, be read to mean that the enhancement of DCRG of the State Govt. employees would, automatically, apply to the employees of the ASEB. It was further held that the said OM did not divest the ASEB of its power to take a decision as regards the rate at which the ASEB would pay the DCRG to its employees, though in terms of the OM dated 28.4.99, it did undertake to be guided, in such matters, by the rules of the State Government. 6. With the above observation and finding recorded in the judgement, the writ petition was dismissed. While doing so, it was also noted that the impugned decision challenged in the writ petition, was not put to challenge in the said writ petition. 7. I have heard Mr. P.C. Dey, learned counsel for the petitioners as well as Mr. D. Bhattacharyya, learned Standing Counsel, ASEB. 8. Mr. Dey, learned counsel for the petitioners submits that since the State Govt. fixed the cut-off date in the aforementioned OM dated 5.9.2001 as 26.3.2001, the ASEB could not have fixed another cut-off date while adopting the said OM. His further submission is that by fixing a separate cut-off date, the ASEB has discriminated its employees. In this connection, he has placed reliance on the decision of the Apex Court reported in (2001) 8 SCC 71 (Subrata Sen and others Vs. Union of India & Ors). 9. Countering the above argument, Mr. Bhattacharyya, learned Standing Counsel, ASEB, submits that in view of the earlier judgement of this Court, referred to above and which has attained finality, the petitioners in the garb of making a challenge to the Annexure-E OM dated 28.5.2005, cannot re-open the issue. Union of India & Ors). 9. Countering the above argument, Mr. Bhattacharyya, learned Standing Counsel, ASEB, submits that in view of the earlier judgement of this Court, referred to above and which has attained finality, the petitioners in the garb of making a challenge to the Annexure-E OM dated 28.5.2005, cannot re-open the issue. He submits that the authority in the ASEB after considering the matter in its entirety and also taking opinions of the State Govt. and its Companies had arrived at the decision and in absence of any allegation of malafide exercise of power and/or violation of any statutory rules, the petitioner is not entitled to challenge the said decision. 10. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. 11. Except the challenge in the instant proceeding in respect of Annexure-E OM dated 28.5.2005, the claim of the present petitioners was the claim in the earlier writ petition that was filed by Girindra Nath Nego, referred to above. In the said judgement, Clause-5 of the OM dated 28.4.99, quoted above, has been interpreted holding that the same can in no way be read to mean that the enhancement of the DCRF of the State Govt. employees would automatically apply to the employees of the ASEB. 12. The specific observation made in the said judgement can be found in paragraph 8 of the judgement, which is quoted below :- “8. When considered in the above backdrop, there remains no escape from the conclusion that the rate of DCRG applicable to the employees of the ASEB was not to change, automatically, with the change in the rate of DCRG of the State Government employees; rather, a conscious decision is still required to be taken by the ASEB, whenever such a question arises, though, while taking the decision, the ASEB, in terms of the office memorandum, dated 20.04.99, undertook to be guided by the rules of the State Government framed in this regard. That there was no change in the policy of the ASEB is clear from the fact that the ASEB, as the undisputed affidavit-in-opposition of the ASEB reflects, resolved, on 03.01.2002, to see the State Government's approval on its views on the enhancement of the DCRG in respect of its own employees. That there was no change in the policy of the ASEB is clear from the fact that the ASEB, as the undisputed affidavit-in-opposition of the ASEB reflects, resolved, on 03.01.2002, to see the State Government's approval on its views on the enhancement of the DCRG in respect of its own employees. The Government, however, clarified that it was for the ASEB to decide as to what it would do with regard to enhancement of the ceiling admissible to the employees of the ASEB inasmuch as the ASEB's transfer scheme already stood notified. It was, thereafter, that the ASEB decided, vide its memorandum, dated 28.05.2005, to enhance the rate of gratuity from Rs. 2 lakhs to Rs. 3.5 lakhs for its employees with effect from 05.08.2004. The legality, correctness or justification of the Office Memorandum, dated 28.05.2005, aforementioned are not under challenge in the present writ petition. This Court is, therefore, not required, at this stage, to make any comment if the Office Memorandum, dated 28.05.2005 aforementioned suffers from discrimination or arbitrariness or whether the petitioner shall also be given the benefit of the Office Memorandum, dated 28.05.2005, aforementioned or not.” 13. In paragraph 9 of the judgement, it has been observed that neither the enhancement in rate of DCRG by the State Govt. nor the reduction or lowering the limit of the benefit of CRG in respect of the State Govt. employees would automatically apply to the employees of the ASEB. It has further been observed that in either case, a conscious decision is required to be taken by the ASEB. 14. In Paragraph 10 of the judgement, it has been observed thus :- “10. employees would automatically apply to the employees of the ASEB. It has further been observed that in either case, a conscious decision is required to be taken by the ASEB. 14. In Paragraph 10 of the judgement, it has been observed thus :- “10. In view of the fact that the petitioner's case rests entirely on Clause-5 of the office memorandum, dated 28.04.99, and since this office memorandum does not, as discussed above, entitle, automatically, an employee of the ASEB to claim enhancement in the limit of gratuity with the enhancement in the limit of DCRG in respect of the State government employees, this writ petition, in my considered view, has no merit, particularly, when the office memorandum, dated 28.05.2005, is not under challenge and in terms of the office memorandum, dated 28.05.2005, the petitioner is not entitled to be paid the DCRG at the rate of 3.5 lakhs, for, the enhancement in the ceiling of the DCRG for the ASEB employees has been made effective from 05.08.2004; whereas the writ petitioner retired, as mentioned above, on 31.07.2002.” 15. The question that falls for consideration in this proceeding is as to whether the impugned OM dated 28.5.2005 (Annexure-E) so far as the same relates to fixation of cut-off date as 05.08.2004 as against the claim of the petitioner in reference to the Annexure-A OM dated 5.9.2001, can be said to be arbitrary and illegal. As per the said OM dated 5.9.2001, the amendment to the particular provision would come into force w.e.f. 26.3.2001. 16. According to the petitioners, the said cut-off date could not have been deviated by the authorities in the ASEB, so as to fix another cut-off date. In this connection, Mr. Dey, learned counsel for the petitioners has placed reliance on the decision in Subrata Sen (supra). In the said case, the Apex Court was concerned with the cut-off date fixed in respect of Non-Contributory Pension Scheme and the applicability of Revised Pension Scheme. It was found that the grant of pension was governed by relevant rules and not dependent upon availability of pension fund. The rules in that particular case were amended and the pension scheme was revised but no new scheme was introduced. It was found that the grant of pension was governed by relevant rules and not dependent upon availability of pension fund. The rules in that particular case were amended and the pension scheme was revised but no new scheme was introduced. It is in such circumstances, the Apex Court held that no discrimination can be created between the employees who retired prior to and after a particular date, for being entitled to the benefits of the Revised Pension Scheme. 17. Unlike the aforesaid case, in the instant case, we are concerned with the issue as to whether the ASEB a separate entity, is required to adopt in toto the mandate of the OM dated 5.9.2001. As against the cut-off date fixed and for that matter the date of coming into effect the amended provisions of the particular OM under Assam Services (Pension) Rules, 1969, the ASEB while deciding to enhance the rate of DCRG, made the effective date as 5.8.2004. In this connection, Mr. Bhattacharyya, learned Standing Counsel, ASEB has produced the relevant records. In the impugned OM dated 28.5.2005, there is mention of the particular resolution i.e. Resolution No.11 dated 9.5.2005. By the said OM, Clause-5 of the OM dated 28.4.99, quoted above, was also modified. 18. This Court by order dated 11.8.2011, requested the Standing Counsel, ASEB, to produce the copies of the OM dated 28.5.2005, finds mention in resolution No. 9 dated 5.8.04 and also the view of the Govt. of Assam, ASEB and Successor Companies and also resolution No.11 dated 9.5.2005. 19. By resolution No. 9 dated 3.1.2002, the ASEB had resolved to refer the matter to the Govt. Thereafter, by resolution No. 9 dated 5.8.04, while taking the decision for enhancement of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs, resolved that the effective date will be from the date of notification to be issued by the Board. When the opinion of the State Govt. was sought, the State Govt. by its letter dated 12.4.2005 intimated the Member (P&A), ASEB, that if resource capacity of the ASEB or the successor companies permitted, it would be entirely upto the ASEB to pay the DCRG at the enhanced rate. However, it was made clear that its support for funding the fund for payment of terminal liabilities would be guided as per Cabinet Memorandum of Finance Department Transfer Scheme, 2004. However, it was made clear that its support for funding the fund for payment of terminal liabilities would be guided as per Cabinet Memorandum of Finance Department Transfer Scheme, 2004. Thus, no responsibility was taken by the State Government and it was provided that it would be available to the individual companies of the ASEB to take a view in the matter depending on their financial condition. Thereafter, while taking the decision for enhancement of the rate of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs, the Board in its meeting held on 9.5.2005 adopted the resolution No.11 to making the same effective from 5.8.2004 i.e. the date on which the resolution was initially adopted by the Board referred to above. 20. The Apex Court in the case of Transport and Dock Workers Union Vs. Mumbai Port Trust and another reported in (2011) 2 SCC 575 , has held that the particular classification involved in the said case relating to the date of appointment of Typist-cum-Computer Clerk, in the backdrop of the policy decision, cannot be said to be violative of Article 14 of the Constitution of India. The whole basis of the case of the petitioners in this writ petition is that the particular cut-off date has discriminated the ASEB employees among them and thus, not sustainable. 21. In the aforesaid decision, the Apex Court while dealing with the principles involved in respect of Article 14 of the Constitution of India, has made the following significant observations :- “33. In our opinion, Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. Absolute and inflexible concepts are an anathema to progress and change. As observed by the great Justice Holmes of the U.S. Supreme Court, the machinery of the government would not work if it were not allowed some free play in its joints, vide Missourie, Kansas and Texas Railway Co. v. May (48 L Ed 971 : 194 US 267(1903) . 37. In our opinion it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection.” 22. Similarly in Govt. of A.P. Vs. 37. In our opinion it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection.” 22. Similarly in Govt. of A.P. Vs. N. Subbarayudu, the Apex Court dealing with the particular cut-off date fixed by the Executive Authority, made the following observations. In the observations, D.S. Nakara's case reported in (1983) 1 SCC 305 finds mention, which is reproduced below :- “5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (State of Punjab vs. Amar Nath Goyal 2005(6) SCC 754 ). 6. No doubt in D.S. Nakara vs. Union of India { 1983(1) SCC 305 } this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case (supra) as observed in SCC para 29 of the decision of this Court in State of Punjab vs. Amar Nath Goyal { (2005) 6 SCC 754 }. 7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection. 8. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection. 8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368 , Union of India vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide SCC para 5), Ramrao vs. All India Backward Class Bank Employees Welfare Assn. 2004(2) SCC 76 (vide SCC para 31) and University Grants Commission vs. Sadhana Chaudhary 1996(10) SCC 536 , etc. It follows, therefore, that 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 Article 14 unless the said cut- off date leads to some blatantly capricious or outrageous result. 9. As has been held by this Court in Aravali Golf Club vs. Chander Hass { 2008(1) SCC 683 } and in Govt. of A.P. vs. P. Laxmi Devi { 2008(4) SCC 720 } the court must maintain judicial restraint in matters relating to the legislative or executive domain.” ( emphasis supplied) 23. In paragraph 39 and 44 of Mumbai Port Trust (supra), it has been observed thus :- “39. In our opinion, there is often a misunderstanding about Article 14 of the Constitution, and often lawyers and Judges tend to construe it in a doctrinaire and absolute sense, which may be totally impractical and make the working of the executive authorities extremely difficult if not impossible. 44. In administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative of some statute or is shockingly arbitrary. In this connection, Justice Frankfurter while Professor of Law at Harvard University wrote in The Public and its Government : “With the great men of the Supreme Court constitutional adjudication has always been statecraft. In this connection, Justice Frankfurter while Professor of Law at Harvard University wrote in The Public and its Government : “With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people.” 24. Once this Court in the aforesaid judgement and order dated 24.5.2006 passed in WP(C) No. 7061/2003 has recognized the power and jurisdiction of the ASEB authorities to take independent decision of its own irrespective of Clause-5 of the OM dated 28.4.99, quoted above, coupled with the fact that by the impugned order dated 28.5.2005 (Annexure-E) the said clause was modified and when it is found that there is no infirmity in the decision making process, I am of the considered opinion that the challenge to the said OM dated 28.5.2005 (Annexure-E) must fail. As recorded above, the only ground on which the decision contained in the said OM has been put to challenge is violation of Article 14 of the Constitution of India and for that matter discrimination in the matter of enjoyment of enhanced rate of DCRG. 25. It was submitted by Mr. Bhattacharyya, learned Standing Counsel, ASEB, in reference to the stand of the respondents in the affidavit that because of the financial crunch it is not possible for the ASEB authority to fix the same cut-off date as that of the State Govt. employees. Even otherwise also when it is within the competence and jurisdiction of the ASEB authority to fix a particular cut-off date, in absence of any malafide exercise of arbitrary jurisdiction, this Court exercising its power of judicial review under Article 226 of the constitution of India cannot sit on appeal over such decision, so as to over rule the same. As has been observed in the aforesaid decision in Mumbai Port Trust (supra), the doctrine and/or principle involved in article 14 of the Constitution of India is not a abstract doctrine so as to apply in each and every case irrespective of fact situation involved. 26. For all the aforesaid reasons, no reliefs can be granted to the petitioners and consequently the writ petition is dismissed. 26. For all the aforesaid reasons, no reliefs can be granted to the petitioners and consequently the writ petition is dismissed. There shall be no order as to costs.