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2012 DIGILAW 255 (GAU)

Biraj Choudhury and Ors. v. State of Assam and Ors.

2012-02-23

I.A.ANSARI

body2012
1. The petitioners, in the present writ petition, are all persons, who retired on reaching the age of superannuation, while working in various departments of the Government of Assam, their individual dates of retirement, though different, being on or before 1st March, 2001. 2. Following the recommendations of the Central Fifth Pay Commission. Government of India fixed, vide its Office Memorandum, dated 27.10.1997, the maximum Death-cum-Retirement Gratuity ('DCRG') at Rs. 3.5 lakhs for all Central Government employees with effect from 1.1.1996. However, as far as the Government of Assam was concerned, it, on recommendations of the State Pay Commission, raised, vide its Office Memorandum, dated 19.11.1998, DCRG for the State Government employees from 72,000 to Rs. 2 lakhs with effect from 1.1.1996. The petitioners, on their retirement from service, accordingly received DCRG @ Rs. 2 lakhs. Later on, by Office Memorandum, dated 5.9.2001, issued by the State Government, the Government of Assam raised the then existing limit of DCRG, for the State Government employees, from Rs. 2 lakhs to Rs. 3.5 lakhs. However, this enhancement, in the rate of DCRG for the State Government employees from Rs. 2 lakhs to Rs. 3.5 lakhs, was given effect from 26.3.2001. 3. Claiming that the selection of 26.3.2001, as the date for making DCRG available to the retired State Government employees @ Rs. 3.5 lakhs by Office Memorandum, dated 5.9.2001, is arbitrary, discretionary and illegal, the petitioners have filed this writ application seeking to invoke this court's extraordinary jurisdiction, under section 226 of the Constitution of India, for issuance of appropriate direction(s) to the State respondents commanding them to make the enhanced rate of DCRG effective from 1.1.1996 instead of 26.3.2001. 4. The respondents have resisted the writ petition, their case being, in brief, thus: (i) Though the Government of India had granted DCRG to its employees @ Rs. 3.5 lakhs with effect from 1.1.1996, the State Government decided to increase the maximum limit of DCRG to Rs. 2 lakhs, with effect from 1.1.1996, on the recommendations of the Assam Pay Commission, 1994, the Empowered Committee and Cabinet Sub-Committee, by a Notification, issued, in this regard, on 4.7.1998. The Pension and Public Grievances Department, Government of Assam, too, issued an Office Memorandum allowing the maximum limit of DCRG as Rs. 2 lakhs. 2 lakhs, with effect from 1.1.1996, on the recommendations of the Assam Pay Commission, 1994, the Empowered Committee and Cabinet Sub-Committee, by a Notification, issued, in this regard, on 4.7.1998. The Pension and Public Grievances Department, Government of Assam, too, issued an Office Memorandum allowing the maximum limit of DCRG as Rs. 2 lakhs. (ii) However, following consideration of the demands, raised by the Assam Secretariat Service Gazetted Officers (Class-I) Association, for enhancement of the maximum limit of DCRG, the Finance Department, Government of Assam, reconsidered its earlier decision and, with the approval of the Cabinet, on 15.3.2001 decided to enhance the maximum limit of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs and the Finance Department accordingly issued a Notification, on 26.3.2001, making the date of enhancement of the maximum limit of DCRG, from Rs. 2 lakhs to Rs. 3.5 lakhs, effective from the date of issue of the Notification, i.e., 26.3.2001. The Pension and Public Grievances Department, Government of Assam, accordingly issued an Office Memorandum, in this regard, on 5.9.2001. (iii) It is not necessary, far less mandatory, for the State Government to give to its employees DCRG at the same rate as may be fixed by the Central Government for the Central Government employees. The State Government is required to arrive at a decision, in such matters, depending upon its own available financial resources. (iv) Thus, based upon the recommendations of the Assam Pay Commission, 1994, the Empowered Committee and the Cabinet Sub-Committee, the Government of Assam enhanced the maximum limit of DCRG to Rs. 2 lakhs with effect from 1.1.1996 and, in the same manner, the Government of Assam, on reaching a decision to enhance the rate of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs, made the revised enhancement effective from 26.3.2001 as had been approved by the State Cabinet after taking into account all aspects of the matter. 5. I have heard Mr. B. Chakraborty, learned counsel for the writ petitioners, and Mr. D. Saikia, learned Additional Advocate General, Assam, appearing for the State respondents. 6. Mr. Chakraborty, learned counsel, contends that a plain reading of the Office Memorandum, dated 5.9.2001, suggests that the enhancement, in the rate of DCRG from Rs. 2 lakhs to Rs. 5. I have heard Mr. B. Chakraborty, learned counsel for the writ petitioners, and Mr. D. Saikia, learned Additional Advocate General, Assam, appearing for the State respondents. 6. Mr. Chakraborty, learned counsel, contends that a plain reading of the Office Memorandum, dated 5.9.2001, suggests that the enhancement, in the rate of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs, was arrived at by the State Government consequent upon the decision taken by the Government of India inasmuch as the State Government employees had demanded that there should be enhancement in the rate of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs in the same manner as had been made available by the Central Government to the Central Government employees. However, while so enhancing the maximum limit of DCRG at par with that of the Central Government employees, the State Government chose an artificial date, i.e., 26.3.2001, as the date from which the enhancement was to be given effect to, though, as far as the Central Government is concerned, it had made available to its employees the enhanced maximum limit of DCRG with effect from 1.1.1996. 7. By fixing the cut-off date as 26.3.2001 for making the enhanced limit of DCRG available to its employees, the State Government, according to Mr. Chakraborty, has created two classes, within its employees, and there is no nexus between the classification, so made, and the object sought to be achieved. Hence, submits, Mr. Chakraborty, learned counsel for the petitioners, this classification, which the State Government has introduced by fixing 26.3.2001 as the cut-off date, is violative of article 14 of the Constitution. It is also submitted by the learned counsel for the petitioners that the cut-off date has been arbitrarily chosen by the State Government. When the enhancement, in the rate of DCRG, has been made available on the basis of the recommendations of the Fifth Pay Commission, the enhancement ought to have been effective from 1.1.1996 instead of 26.3.2001. So insists Mr. Chakraborty. This apart, points out. Mr. Chakraborty, learned counsel for the petitioners, that, as per definition of pension under Rule DC of the Assam Services (Pension) Rules, 1969, pension includes gratuity and death-cum-retirement gratuity. Hence, the State Government could not have created two different classes from within one class of retired State Government employees. Support for this submission is sought to be derived by Mr. Mr. Chakraborty, learned counsel for the petitioners, that, as per definition of pension under Rule DC of the Assam Services (Pension) Rules, 1969, pension includes gratuity and death-cum-retirement gratuity. Hence, the State Government could not have created two different classes from within one class of retired State Government employees. Support for this submission is sought to be derived by Mr. Chakraborty from the decision, in Nakara and Others v. Union of India and Others, (1983) 1 SCC 305 . 8. Appearing on behalf of the respondents, Mr. D. Saikia, learned Additional Advocate General, Assam, has submitted that the decision on death-cum-retirement benefit is taken by the Government depending upon its financial resources and the State Government has, on taking into consideration its financial resources and other relevant factors, increased the limit of DCRG to Rs. 2 lakhs with effect from 1.1.1996, but in view of the grievances expressed by its employees on the limit of DCRG and considering their demands for raising the maximum limit of DCRG at par with that of the Central Government employees, the State Government has chosen the cut-off date of giving effect to the enhancement in the rate of DCRG and that the State Government has chosen the date depending upon its own financial resources and various other relevant factors. Fixation of such a cut-off date cannot be treated, according to the learned Additional Advocate General, discriminatory, arbitrary, unreasonable or violative of article 14, because, whatever cut-off date is chosen, it would always make the remaining employees, who are not covered by the cut-off date, aggrieved and the Government cannot fix such a cut-off date, which would cover all its retired employees, for, this would put the State Government under incalculably high financial burden. It is, thus, according to Mr. Saikia, Government's fiscal policy decision reached by taking into consideration a host of factors. 9. Hence, even if the State Government chose 1.1.1996 as the cut-off date, those retired employees, who were not covered by the said cut-off date, could have put to challenge the selection of the cut-off date on the same ground, as has been done by the present petitioners. Since the Government's financial resources, submits Mr. 9. Hence, even if the State Government chose 1.1.1996 as the cut-off date, those retired employees, who were not covered by the said cut-off date, could have put to challenge the selection of the cut-off date on the same ground, as has been done by the present petitioners. Since the Government's financial resources, submits Mr. Saikia, does not permit all its employees to be covered by the enhanced limit of DCRG, the Government had to choose a cut-off date and the Government has chosen 26.3.2001 as the cut-off date taking into consideration all aspects. Moreover, nothing has been brought on record by the petitioners, submits the learned Additional Advocate General, to show that the choosing of the cut-off date is artificial except making a bald statement, that the enhancement ought to have been made effective from 1.1.1996. In such circumstances, pleads Mr. Saikia, the Government's policy decision on fiscal matter may not be interfered with. Mr. Saikia, in support of his submissions, relies upon the decision in Rabindranath Mukhopadhyay and Another v. Coal India Ltd. and Another, (1997) 4 SCC 252 , State of Punjab and Others v. AmarNath Goyal and Others, (2005) 6 SCC 754 and State of Haryana and Others v. Rai Chand Jain and Others, (1997) 5 SCC 167 . 10. While considering the rival submissions made before this court, it needs to be noted that a State Government is not bound to give the same rate of DCRG to its employees as may be done by the Central Government. Be it the Central Government or the State Government, it has to decide the rate of DCRG depending upon its financial resources, financial commitments, the expenditure involved and host of other factors. The selection of the cut-off date, in such a case is, basically, a policy matter. Such a policy matter is not, ordinarily, open to challenge by taking recourse to article 226 of the Constitution. 11. In Rabindranath Mukhopadhyay (supra), which Mr. Saikia relies upon, the respondent company introduced, in May, 1989, a scheme for grant of Leave Travel Concession ('LTC') once in a block of four years. However, by a resolution, dated 14.9.1996, the scheme was modified, whereunder an option of encashment of LTC was also provided, but the option was made available prospectively with effect from 1.1.1997. The appellants contended, in Rabindranath Mukhopadhyay (supra), that the choice of date was arbitrary. However, by a resolution, dated 14.9.1996, the scheme was modified, whereunder an option of encashment of LTC was also provided, but the option was made available prospectively with effect from 1.1.1997. The appellants contended, in Rabindranath Mukhopadhyay (supra), that the choice of date was arbitrary. Rejecting the appellants' contention, the Supreme Court pointed out that the selection of cut-off date is a policy decision and the cut-off date, selected by the respondent company, was not arbitrary inasmuch as it was uniformly applicable to all employees belonging to the executive class. 12. The case of State of Punjab and Others v. Amar Nath Goyal and Others, (2005) 6 SCC 754 , which Mr. Saikia relies upon, is a case, wherein the decision of the Government to treat the dearness allowance, linked to the All India Consumer Price Index 1201.66 (as on 1.7.1993) reckonable part of dearness allowance for the purpose of calculating the DCRG, under the Central Civil Services (Pension) Rules, 1972, with effect from 1.4.1995, was put to challenge by a large number of Government employees, who had retired prior to 1.4.1995, on the ground that the decision of the Government to make available the increased quantum of gratuity (with revised ceiling) only to employees, who retired or died on or after 1.4.1995, was discriminatory and arbitrary, because any discrimination or distinction between the employees, who retired/died prior to 1.4.1995 and who retired/died on or after 1.4.1995, had no rational basis nor was intended to serve any purpose. The Supreme Court rejected the appeal holding that the decision of the Government to fix 1.4.1995 as the cut-off date was neither arbitrary nor irrational, for, financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government and that the decision to fix the cut-off date had been taken by the Government on a very valid ground, namely, that of financial constraints. 13. In the present case, too, Mr. 13. In the present case, too, Mr. Saikia, learned Additional Advocate General, is wholly correct in submitting that whatever date is selected as the cut-off date for making available the enhanced rate of DCRG to its employees by the State Government, the fact of the matter remains that there will be employees, who may not be covered by the cut-off date, and a court, in exercise of its power under article 226, would not direct the State Government to make available the enhanced rate of DCRG to all its employees irrespective of their date of retirement, because such a direction would amount to interference with the policy decision, which the Government has arrived at after taking into consideration the available financial resources vis-a-vis financial liabilities including financial constraints. Merely because the petitioners are not covered by the cut-off date, which the Government has fixed, the court cannot interfere with the decision of the Government, which, as indicated hereinbefore, is nothing but a policy decision and the policy decision cannot be said to be arbitrary and irrational, for, it is for the State Government to decide, depending upon the various relevant factors, as to what date it shall select as the cut-off date for making the enhanced rate of DCRG available to its retired employees. 14. Learned Additional Advocate General is also not incorrect in referring to the case of State of Haryana and Others v. Rai Chand Jain and Others, (1997) 5 SCC 167 . In Rai Chand Jain (supra), the Government had preferred an appeal against the decision of the High Court, whereby the High Court had interfered with the Government's policy decision to restrict the payment of back wages to a specified period and ordered for grant of selection grade to the writ petitioners with consequential benefits. The Supreme Court held that it was for the Government to decide, as a part of the executive policy, the date from which arrears would be granted to employees. The Supreme Court pointed out, in Rai Chand, Jain (supra), that such a decision of the Government being an executive policy in character, the decision ought not to be treated as arbitrary or violating article 14 of the Constitution. 15. The Supreme Court pointed out, in Rai Chand, Jain (supra), that such a decision of the Government being an executive policy in character, the decision ought not to be treated as arbitrary or violating article 14 of the Constitution. 15. What crystallizes from the above discussion is that Government's decision of financial benefits being made available to its employees by a given cut-off date is a policy decision depending upon the Government's financial resources and host of other relevant factors. Such selection of a cut-off date, being essentially a policy decision depending upon the financial condition of a State, is not, ordinarily, open to challenge by way of a writ petition under article 226 of the Constitution of India. In the present case, too, the Government, on considering, as indicated by the respondents, its financial resources and other factors, has chosen the cut-off date and such a cut-off date cannot be interfered with by this court, in exercise of its extraordinary jurisdiction, under article 226, on the ground that the choice of cut-off date is irrational, arbitrary, discriminatory or violative of article 14 of the Constitution of India, when the writ petitioners have not, either pleaded or placed on record, any such material fact, which indicates that the Government has acted irrationally or arbitrarily and its act of choosing the cut-off date, mentioned above, is discretionary or violative or article 14 of the Constitution of India. 16. Because of what have been discussed and pointed out above, this writ petition fails and the same shall accordingly stand dismissed. 17. No order as to costs. _____________