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2013 DIGILAW 158 (PAT)

Shailendra Kumar Singh v. State of Bihar

2013-02-04

NAVANITI PRASAD SINGH

body2013
ORDER 1. In these batch of writ petitions filed by the retired teachers of various Universities in Bihar initially their prayer was to direct the State and the Universities to revise the pension and pensionary benefits to its retired employees in consonance with the State Government Resolution No.820 dated 23.09.2009 as resolved to be made in respect of Government employees. During pendency of these writ petitions, the State Government came up with a resolution under Memo No.1674 dated 16.08.2012 specifically resolving revision of pension and pensionary benefits in relation to retired employees of the Universities and its constituent Colleges. Now, this having been done ultimately, the grievance is limited to Clause-8 of this resolution of the Government dated 16.08.2012 by which arrears of pension and pensionary benefits accruing as a consequence of revision thereunder directed to be paid in three yearly deferments. It is the propriety and legality thereof, the deferment of payment of arrears, which is now under challenge. Heard learned counsels for the petitioners, the State and the Universities and with their consent these writ petitions having been heard at length for its final disposal at this stage itself is being disposed of. 2. At the very outset, learned counsels for the Universities submitted that they cannot take any decision in the matter of either revision of pension and pensionary benefits or its payment inasmuch as that is a policy matter within the domain of the State Government which has not only to decide the policy but arrange for and provide funds for payment thereof and unless the State decides the policy and makes available the funds Universities are helpless in the matter. In my view, this position is unexceptionable. Though the Universities are autonomous, independent and statutory bodies, when it comes to finance its functional autonomy stands totally curtailed as it is totally dependent upon the State. Apart from tuition fee and examination fee, there is hardly any other meaningful source of income to the Universities and even these fees are negligible compared to the financial liability towards payment of salary and pensionary benefits. Thus, in my view, the main contestant in these writ petitions is the State Government. Apart from tuition fee and examination fee, there is hardly any other meaningful source of income to the Universities and even these fees are negligible compared to the financial liability towards payment of salary and pensionary benefits. Thus, in my view, the main contestant in these writ petitions is the State Government. Learned counsels for the petitioners firstly submitted that in view of the statutes for Grant of Retirement Benefits to Employees of Bihar/ Ranchi/Bhagalpur/L.N. Mithila University/K.S.D. Sanskrit University as is approved by the Chancellor and, in particular, statute 16, 23.3 & 27 thereof no sooner the pension and the pensionary benefits of the State Government employees were revised, it became applicable to the Universities for its employees. No separate resolution or notification was required to be issued in respect of the Universities in these regards. It is further submitted that apart from this there could not be any variance between the two. According to the State, as a decision in relation to pension and pensionary benefits entails enormous financial outlay and funds have to be accordingly made available, various practical difficulties arise which cannot be lost sight of and attempt was made to persuade the Court that keeping in view the practical difficulties the decision of the Government cannot be said to be either arbitrary or unreasonable in any manner. 3. In my view, the contentions of both the sides are correct in their own perspectives. They have merely to be understood in a rationalized and harmonized manner. It cannot be denied that right of pensioners to get their pensions revised is a very valuable and undeniable right. But, at the same time, the Court cannot be oblivious of the grave financial implications it has in relation to the Government. Both, as observed earlier, have to be fairly balanced. Therefore, the first question that arises is whether it is open for the Government to plead financial stringency to avoid/evade its obligations constitutional or statutory. My answer to this would be an emphatic no based on consistent authorities of the Apex Court. The first decision I would like to refer is in the case of Municipal Council Ratlam Vs. Vardhichand and others since reported in AIR 1980 Supreme Court 1622 = (1980) 4 Supreme Court Cases 162. In this case, the Magistrate had issued directions to the municipality in exercise of its powers under Section-133 Cr. The first decision I would like to refer is in the case of Municipal Council Ratlam Vs. Vardhichand and others since reported in AIR 1980 Supreme Court 1622 = (1980) 4 Supreme Court Cases 162. In this case, the Magistrate had issued directions to the municipality in exercise of its powers under Section-133 Cr. P.C. for removal of nuisance in the shape of open drains etc. This was challenged by the municipality unsuccessfully before the High Court and the Apex Court. The plea of the Municipality was that it had little or no finance to implement those schemes. In this connection, I may usefully refer to paragraphs-12 & 15 of the reports, which is quoted hereunder:- “12. The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under S. 123 of the Act. This „alibi? made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, S. 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.” “15. Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature?s pressure, bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self governing bodies. Similarly, providing drainage systems not pompous and attractive, but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence. A bare study of the statutory provisions makes this position clear.” Thus seen, neither the State nor the Universities can absolve itself from the obligation on the grounds of financial stringency. The next decision I may refer to is in the case of All India Imam Organization and others Vs. Union of India and others since reported in AIR 1993 Supreme Court 2086 = (1993) 3 SCC 584 , where the question arose whether Imams could be directed to be paid by the State for the duties they performed. State again pleaded financial inability. State also denied any master servant relationship. In turn, the Wakf Board also pleaded financial difficulty. In response to the aforesaid, this is what their Lordship said, inter alia, in paragraph-5 of the reports, which is quoted hereunder:- “5. …..…We are, therefore, not willing to accept the submission that in our set up or in absence of any statutory provision in the Wakf Act the Imams who look after the religious activities of mosques are not entitled to any remuneration. Much was argued on behalf of Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the Imams as they are being paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different States would not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of a citizen. It was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different States would not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of a citizen. If the Boards have been entrusted with the responsibility of supervising and administering the Wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque the very purpose for which it is created.” Next, I may refer to the case All India Regional Rural Bank Officers Federation and others Vs. Government of India and others since reported in AIR 2002 Supreme Court 1398 = (2002) 2 Supreme Court Cases 554. It appears that in an earlier decision the Apex Court in the case of South Malabar Gramin Bank Co-ordination Committee of South Malabar Gramin Bank Employees Union since reported in AIR 2001 Supreme Court 1028 had, inter alia, directed that it was for the Union of India as well as the Management of Bank under the statutory provision that they had the power to revise or fix wages of various Rural Regional Banks. But, while in doing so, the Government was bound to maintain parity between the pay structure of the employees of the Nationalized Commercial Bank and the employees of the Regional Rural Banks. Consequent to this, the Government of India issued notification which was challenged in these proceedings. One of the directions was that the payment of remuneration would be dependent upon operating profits. The Apex Court disapproved the said and their Lordships held, inter alia, in paragraph-4 of the reports, which is quoted hereunder:- “4. Mr. Mukul Rohtagi, the learned Additional Solicitor General, however tried to impress upon us the circumstances under which the notification had been issued, the same being severe financial crisis and the learned Additional Solicitor General further urged that the monetary benefits of the employees of the bank will have to be so modulated so that the banks should not ultimately be closed down by merely paying the salary of the employees. Even though the financial position of the banks may not be disputed, but having regard to the directions issued by this Court, while disposing of the civil appeal and having regard to the circumstances under which such directions had been given, it would be difficult for us to sustain the plea of the Union Government that the Notification is in compliance with the judgment and directions of this Court. The financial capacity of the Government cannot be pleaded as a ground for non-implementation of the directions of the Court inasmuch as even in the matter of determination of the pay scale of the employees of the Regional Rural Banks and maintenance of parity with their counterparts, serving under the sponsorer commercial banks, Justice Obul Reddi had not accepted the said plea and that award reached its finality. Since the financial capacity of the employer cannot be held to be a germane consideration for determination of the wage structure of the employees and the Parliament enacted the Act for bringing into existence these regional rural banks with the idea of helping the rural mass of the country, the employees of such rural banks cannot suffer on account of financial incapacity of the employer. We have no hesitation in coming to the conclusion that the issuance of notification dated 1-4-2001, by the Government of India cannot be held to be in compliance with the judgment and directions of this Court in Civil Appeal No.2218 of 1999. ……..” Thus, the law is clear that financial constraints cannot absolve a constitutional Government or a statutory authority like the Universities to refuse to exercise its constitutional or statutory obligation. It must arrange its affairs in a manner for proper implementation of constitutional and statutory obligations. Thus, there is no escape for the Government from its liability whatever may be the financial constraints. Learned counsels for the petitioners referred to Clauses 16, 23.3 & 27 of the statutes, as referred to above, for submitting that no sooner Government took a decision to revise the pension and pensionary benefits of Government employees that would automatically apply to Universities employees as well. In order to appreciate their submissions, it is necessary to note the provisions of Clause 16, 23.3 & 27, which are quoted hereunder:- “16. In order to appreciate their submissions, it is necessary to note the provisions of Clause 16, 23.3 & 27, which are quoted hereunder:- “16. An employee eligible for pension under any of the categories mentioned above, shall be granted pension according to the scales given in Schedule „A? (i) if he ceased to be in University service between 1-4-72 and 31-12-72 and schedule A (ii) if he ceased to be in University service between 1.1.73 and 30.3.79. For those who ceased to be in University service from 31.3.79 onwards, the scales given in Schedule A (iii) will be applicable. Any further change in the rate of pension as also relief in pension under the Bihar (Govt.) Pension Rules, will be equally applicable to the University employees.” (emphasis supplied) “23.3. The rates and the amounts of gratuity as provided for in this section shall be changed to the rates applicable to the employees of the State Government whenever there is any change in these latter rates.” “27. The rates and maximum amounts of family pension as provided for in this Section shall be changed to the rates applicable to Govt. employees whenever the latter rates undergo any change.” In my view, the submissions of learned counsels for the petitioners are correct. The statute in unambiguous term lays down that no sooner there are changes made in relation to Government employees in respect of matters specified in those Clauses it would automatically be applicable for Universities employee. Thus, in my view, virtually no separate resolution or notification is required. But when we come to practicality of it things are slightly different. As clear directives have to be issued to the Universities and funds provided, a policy formulation is necessary to fit in the facts. This may take time and mechanism has to be evolved for effective implementation and payment. Thus, the policy resolution and its communication to the Universities by the State is necessary. Ordinarily in absence of any justifiable legally reason it must be simultaneously in respect of State Government employees and University employees. That is what is contemplated by the Universities statute. But, unfortunately, in the present case, it took three years for the Government to come up with the resolution revising the pension and pensionary benefits of the Universities employees. Ordinarily in absence of any justifiable legally reason it must be simultaneously in respect of State Government employees and University employees. That is what is contemplated by the Universities statute. But, unfortunately, in the present case, it took three years for the Government to come up with the resolution revising the pension and pensionary benefits of the Universities employees. State Government employees were conferred with the benefit in the year 2009 itself but the Universities employees were given the benefits in the year 2012. This big difference in time does give a reason for making the grievance. It was not appropriate. But, when we examine the two policies it would be seen that the Government employees were given the effective benefit with effect from 01.04.2007 and the State has maintained the same date for the Universities employee as well. Thus, there is no difference in the two. Both are to receive the benefit from the same date and there can be no grievance by mere delayed policy statement. Here, I may notice an important aspect of the matter, which apparently was lost sight of by the learned counsels for the petitioners. A close reading of the aforesaid provisions clearly draw distinction between substantive right and procedure for its implication. The Clauses aforesaid create substantive right on the Universities pensioners to get the revised benefits equivalent to that of Government servants but the Clauses do not further provide that the procedure has to be the same. In the present case, the date of benefit initiation is the same. There is no dispute as to equality in other substantive aspects. The dispute is with regard to Clause-8 of the policy resolution of the State Government in relation to the Universities employees, being policy resolution dated 16.08.2012. In order to appreciate the provisions and the contentions it would first be appropriate to note the contents of this Clause and the resolution. The resolution of the State dated 16.08.2012, as applicable to the Universities employees, as noted above, provides that the pension and pensionary benefits would be revised with effect from 01.04.2007 and pension and pensionary benefits, as provided, would become payable from the said date. The policy further provides that payment of pension and pensionary benefits at the revised scale would start from the month of August, 2012. The policy further provides that payment of pension and pensionary benefits at the revised scale would start from the month of August, 2012. Thus, with effect from the month of August, 2012, which would be due and payable in the month of September, 2012, the retired employees would be entitled to receive revised pension. But, as noticed earlier, the revision takes effect from 01.04.2007 and, thus, there arises arrears of revised pension and pensionary benefits for the period April, 2007 to July, 2012. Clause-8 of this policy resolution provides that 15% of the arrears aforesaid would be paid in the financial year 2012-13, 40% arrears would be paid in the year 2013-14 and balance 45% would be paid in the financial year 2014-15. Thus, effectively there is deferment of payment of arrears over the period of three years. The first thing the Court would like to notice is that the liability to pay the revised pension has not been denied by the State. The second thing is that it has been made co-terminus with Government employees. Thus, State has fully complied with its obligations under Clause 16, 23.3 & 27 of the statutes. The only question remains is with regard to deferment of arrears and whether such deferment is illegal, arbitrary or unreasonable in any manner. In this connection, the first thing I would like to notice is that even in relation to State Government employees the decision was taken by the State Government to revise the pension and pensionary benefits with effect from 01.04.2007 on 23.09.2009. Thus, there were arrears to be paid for almost 2½ years. A reference to the Government resolution would show that in Clause-4 of the Government resolution the Government had provided for deferment of payment of arrears, in similar manner. It provided that 15% of the arrears would be paid in the financial year 2009-10, 40% of arrears would be paid in the financial year 2010-11 and the balance 45% in the financial year 2011-12. Thus, in relation to Government employees also there was three years deferment period. The proportion of arrears deferred was also the same as for the Universities employees separated over three year period as well. The only difference, thus, remains is the policy of the Government employees was taken in the year 2009 but in respect of Universities it was taken in the year 2012. The proportion of arrears deferred was also the same as for the Universities employees separated over three year period as well. The only difference, thus, remains is the policy of the Government employees was taken in the year 2009 but in respect of Universities it was taken in the year 2012. Learned counsels for the petitioners tried to persuade this Court that as the two policies had to be virtually simultaneous Court must ignore the deferment period and direct payment of entire arrears immediately because the arrears of the State Government employees would be completely paid up by the year 2011-12. Having given my anxious consideration, I am unable to accept the view as submitted by the learned counsels for the petitioners. That no policy for the Universities employees was taken, no funds accordingly released thereunder in the year 2009, which has now been done in the year 2012, is a fait accompli. Clock cannot be turned back. Budgetary allocation cannot be assumed retrospectively. From the counter affidavit of the State, it is evident that State vide Memo No.2363 dated 25.11.2012 has released Rs.300 crores to the various Universities for payment of, inter alia, arrears of pension and pensionary benefits. Thus seen, the Universities employees would now be getting revised pension month to month and arrears in the installment as deferred. The only difference is that this policy having been taken three years later, its implementation starts three years later but with effect from the same date, i.e., 01.04.2007. As noticed earlier, it was not proper on the part of the Government to delay the matter and, that too, by number of years, but having taken the decision now the deferment of arrears cannot per se be said to be bad for any reason, especially when arrears of Government employees were also deferred. It is not in dispute that even prior to this Government resolution in respect of Universities employees, Universities employees were getting their due pension which now stands enhanced. Thus, there cannot be said to be any unreasonableness in the matter. State has not denied its liability on ground of financial constraints. It has accepted its liability. The Court can only expect that it ought to have acted earlier but better late than never. Thus, there cannot be said to be any unreasonableness in the matter. State has not denied its liability on ground of financial constraints. It has accepted its liability. The Court can only expect that it ought to have acted earlier but better late than never. Here, I may notice that in the case of All India Regional Rural Bank (supra) the Apex Court itself for clearing the arrears provided for a moratorium and deferment, which cannot be termed as illegal or unreasonable by any stretch of imagination. State is not denying its liability to pay arrears. The deferment is also not unreasonably long. It is the same three years period as in case of Government employee. At the cost of repetition, in my view, Clause 16, 23.3 & 27 merely provided parity of scale of payment as between the Government employees and Universities employees in matters of pension and pensionary benefits. Deferment is a mechanism and not substantive parity. State Government maintained the parity but while implementing it in the mechanism provided for payment or discharge, it delayed the matter, which would not make a significant difference as the principal liability is admitted and admitted to be discharged in a fixed time frame. Before parting, I would like to notice one aspect of the matter. Though the State Government came up with resolution in respect of Government employees in the year 2009, it has not been brought to my notice that retired Universities employees moved this Court immediately to issue similar policy statement with regard to Universities employees. Had they in the year 2009 approached this Court, then this Court, in view of the statutes noted above, issued immediate directions but that time having elapsed and State having taken a policy decision in the year 2012, that became fait accompli. Before parting, I would like to observe yet another aspect that as the State Government has resolved by its resolution dated 16.08.2012 to extend the benefit of revised pension and pensionary benefits to the retired Universities employees, it must act true to its resolution. It would be the duty of the State to ensure that pension and pensionary benefits of the retired Universities employees are in fact revised and paid punctually. It would be the duty of the State to ensure that pension and pensionary benefits of the retired Universities employees are in fact revised and paid punctually. There already having been inordinate delay in taking the decision, the arrears quantified and paid promptly within the time schedule as specified in Clause-8, being 15% to be paid by the end of the current financial year, i.e., 2012-13 apart from monthly pension on revised salaries. State and Universities both would be under obligation to ensure these two aspects and its proper compliance. Court hopes that the policy decision dated 16.08.2012 would not be a mere lip service as commensurate finance amounting to Rs.300 crores has already been released for the said purpose. Inadequacy of funds will not be an excuse for the Universities. On this count, they must immediately implement the revision and payment of arrears as per the scheme aforesaid. The Sate and the Universities will not fail in their duty in this regard and give rise to spate of unnecessary useless litigations once again, with funds available respective Vice Chancellors are liable for timely implementation. In the resolution it would be seen that pensioners/family pensioners above 80 years of age get extra pension. State should consider desirability in granting them the entire accumulated arrears immediately so that they can enjoy its benefit in their life time rather than leave it for their heirs. With these observations and directions above, these writ petitions are dismissed.