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2012 DIGILAW 1415 (BOM)

Matlane Kalpana Nishikant v. State of Maharashtra

2012-07-31

B.P.DHARMADHIKARI, SUNIL P.DESHMUKH

body2012
JUDGMENT 1. Looking to the nature of the controversy, we have heard matter finally by issuing Rule & making it returnable forthwith, with consent. 2. Heard parties on Civil Application 8800 of 2012 for adding applicants who are Section Officers as party petitioners. Application is allowed. Necessary amendment be carried out immediately. 3. The petitioners who are Section Officers, claim that as all of them are identically situated, and are performing same duties, there cannot be any discrimination in their salaries. The moment a Section Officer is found entitled to pay scale of Rs.8,000-13,500/-, all Section Officers must be extended that pay scale and ceiling of completion of 4 years service as Section Officer imposed vide Govt. Resolution, dated 29.1.2010 is, therefore, arbitrary & violative of Art. 14, 16(1) & 39(d) of the Constitution of India. By placing reliance on the judgment of the Apex Court in the case of "D.S. Nakara and others Vs. Union of India" reported at AIR 1983 SC 130 : [2007 ALL SCR (O.C.C.) 38], learned counsel submits that a homogeneous class cannot be subjected to such treatment thereby artificially creating two different sections or groups within it. 4. Learned AGP for respondent Nos. 1 and 2, and Advocate Barlinge for respondent No.3 are opposing the petition. They submit that there is no such classification here. Reliance is being placed on reply affidavit filed by the law & judiciary. They rely upon State of U.P. vs. J.P. Chaurasia- (1989) 1 SCC 121 to urge that merit, experience as also need to avoid stagnation & frustration are relevant factors to grant such senior or super or selection grade or pay-scales. One of the contentions is writ under article 226 of the Constitution of India can not be issued & only remedy available to the petitioners is to move on administrative side. In support, they invite our attention to judgment delivered on 30.7.2010 at Aurangabad in W.P. 4085 of 1996. 5. Perusal of Govt. Resolution dated 29.1.2010 shows that Section Officer in employment of State Government were extended a non functional pay scale of Rs.8000-13500/- after completion of 4 years of service from 1.10.2003. The issue of extending similar treatment to Section Officers working in judiciary was engaging attention of State Government and hence, the impugned decision dated 29.1.2010 has been taken. Resolution dated 29.1.2010 shows that Section Officer in employment of State Government were extended a non functional pay scale of Rs.8000-13500/- after completion of 4 years of service from 1.10.2003. The issue of extending similar treatment to Section Officers working in judiciary was engaging attention of State Government and hence, the impugned decision dated 29.1.2010 has been taken. This decision introduces entitlement to pay scale of Rs.8000 - 13500/- for the first time and confers it upon those Section Officers who have put in 4 years as such. The pay scale of the cadre of the Section Officers is Rs. 6500-10500/- as per Vth wage revision. Even after 29.1.2010, pay scale of a Section Officer who has not completed 4 years service is Rs.6500-10500/-. In this situation, it is apparent that for the first time, a new condition of service has been created and only those Section Officers who have put in 4 years as such, have been conferred with that benefit. The benefit has been extended from a date i.e. 1.10.2003. The selection of date 1.10.2003 is not in question before us. It is the requirement of putting in 4 years service which has been argued to be arbitrary. 6. The Government has extended same treatment to Section Officers in judiciary which it had already extended to Section Officers working with it, For its commencement purpose, it has selected the same date. The requirement of putting in 4 years service, by itself, cannot be viewed as arbitrary or unreasonable. Though, Section Officers may not have same service conditions, the State Government has found that the cadre needed to be conferred with a non functional pay scale of Rs.8000-13500/- after 4 years. 7. In case of "D.S. Nakara, (2007 ALL SCR (O.C.C.) 38]" (supra), the Honourable Apex Court was considering the liberalization of pension and formula evolved for it. Benefit of that formula was extended to only to employees who had retired after a particular date. Thus, after prescribing it, there existed two sets; one, which was receiving pension as per the old formula and those who were receiving pension under liberalized formula. In the circumstances, the Honourable Apex Court has held that homogeneous class of pensioners could not have been discriminated by denying the persons who have retired prior to said date, the benefit of revised formula. In the circumstances, the Honourable Apex Court has held that homogeneous class of pensioners could not have been discriminated by denying the persons who have retired prior to said date, the benefit of revised formula. Selection of date has not been found to be arbitrary by the Honourable Apex Court. This aspect of the question was examined in the case of AIR 1991 SC 1182 - Indian Ex- Services League v. Union of India. The case was argued on behalf of Am1ed Forces personnel retiring from commissioned ranks as well as Armed Forces personnel retiring from below the commissioned rank. The Constitution Bench which heard the matter observed that the contention of the writ petitioners on the basis of Nakara decision was untenable. On behalf of the petitioners, it had been contended that all retirees who held the same ranks irrespective of their date of retirement must be given the same amount of pension. In effect, what was urged was that there must be "one rank one pension" for all the retirees irrespective of their date of retirement. This contention of the petitioners was rejected by the Constitution Bench by holding that Nakara decision was of limited application. There was no scope for enlarging the ambit of that decision to cover all claims made by the petitioners for identical amount of pension to every retired person from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of pension were different. It has been clarified that rational explained in D.S. Nakara (Supra) was not applicable in such matters. 8. In Col. B.J. Akkara (Retd.) v. Government of India - (2006) 11 SCC 709 , the Hon. Apex Court has observed The principles relating to pension relevant to the issue are well settled. They are : (a) In regard to pensioners forming a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to, the date on which the aforesaid additional benefit was conferred. (b) But all retirees retiring with a particular rank do not form a single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group whose reckonable emolument was higher. In other words, pensioners who retire with the same rank need not be given identical pension, where their average reckonable emoluments at the time of their retirement were different, in view of the difference in pay, or in view of different pay scales being in force. (c) When two sets of employees of the same rank retire at different points of time, it is not discrimination if: (i) when one set retired, there was no pension scheme and when the other set retired, a pension scheme was in force; (ii) when one set retired, a voluntary retirement scheme was in force and when the other set retired, such a scheme was not in force; or (iii) when one set retired, a PF scheme was applicable and when the other set retired, a pension scheme was in force. One set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the "same class" or "homogeneous group". The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cutoff date arbitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment." 9. The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cutoff date arbitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment." 9. Here, we find that the requirement of possessing 4 years experience to be eligible to higher or senior scale is not demonstrated to be unreasonable or arbitrary. All those who complete 4 years service as Section Officer become entitle to said better scale. In other words, it remains dormant for initial 4 years on uniform basis for all Section Officers. How this operates to the prejudice of those who enter the cadre for first time is not shown. In present matter, it is not the case of petitioners that the scale of Rs.6500-10500/- is unjust & can never be the pay-scale for said cadre & because of nature of duties of post of Section Officer, its pay-scale ought to have been always fixed in scale of Rs. 8,000-13,500/-. Judgment delivered on 30.7.2010 here at Aurangabad in W.P. 4085 of 1996 has dealt with their grievance about wrong fixation in wage revision on 1.1.1986 & hence, probably said grievance is not reiterated here. Thus independent entitlement of entire cadre of Section Officer as such to the pay scale of Rs.8,000-13,500/- or breach of right to draw salary in it is not the controversy presented. Hence, no case showing violation of principle of equal pay for equal work or then any undue favour to senior Section Officers to the prejudice of juniors can be or is established. A better or higher pay scale is introduced & extended to entire cadre & every incumbent including petitioners after 4 years of service, and that by itself does not imply that a further subdivision has been effected in otherwise equals & is not sufficient to attract Art.14 of the Constitution of India. It is a benefit available to all on uniform basis upon completion of 4 years in the cadre. Thus for a valid reason of removing disparity between two cadres i.e. one with State & the other under Judiciary, same service condition is introduced with effect from 1.10.2003 and by applying recognized criterion of experience, it is made functional after 4 years. Thus for a valid reason of removing disparity between two cadres i.e. one with State & the other under Judiciary, same service condition is introduced with effect from 1.10.2003 and by applying recognized criterion of experience, it is made functional after 4 years. Seniors & more experienced in the cadre are given a better scale. This is not a case where equals have been treated unequally or of hostile discrimination. In reply affidavit, it has been urged that the Section Officers with 4 years experience/seniority perform better & superior quality of work. The grant of higher pay scale to them is necessary to avoid frustration & stagnation. It may also act as an incentive. But as petitioners have failed to discharge the basic burden on them, it not necessary to embark on merits of this defence. Even otherwise, there is no effort to assail this defence. 10. In these facts, we find the exposition on Art. 14 by Hon. Apex Court in Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra - (2008) 10 SCC 139 apt. Hon. Apex Court lays down that Article 14 is designed to prevent discrimination. It seeks to prohibit a person or class of persons from being singled out from others similarly situated or circumstanced for the purpose of being specially subjected to discrimination by hostile legislation. It, however, does not prohibit classification, if such classification is based on legal and relevant considerations. As declared by Hon. Apex Court. Every classification, to be legal, valid and permissible, must fulfill the twin test, namely : "(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) such differentia must have a rational relation to the object sought to be achieved by the statute or legislation in question." In the light of discussion above, it can be deduced that requirement of 4 years experience is an intelligible differentia which has rational nexus to the object sought to be achieved. When object is to bring parity in same cadre under State & in judiciary, extending better pay-scale to the senior Section Officers treating those with 4 years experience as eligible as already in vogue under State Government is not a hostile discrimination at all. When object is to bring parity in same cadre under State & in judiciary, extending better pay-scale to the senior Section Officers treating those with 4 years experience as eligible as already in vogue under State Government is not a hostile discrimination at all. Nobody is singled out & all Section Officers can enjoy it after putting in requisite length of service. This better scale is not denied to any Section Officer but he has to wait for it for four years. 11. The same, therefore, cannot be said to be either discriminatory or arbitrary. No case is made out for interference. Petition is dismissed. Rule is discharged. No costs. Petition dismissed.