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2014 DIGILAW 1146 (HP)

State of H. P. v. Jagdish Chand Panta

2014-08-27

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Judgment : Mansoor Ahmad Mir, C.J. (Oral) Challenge in Letters Patent Appeal No.184 of 2011 is to the judgment, dated 19.7.2010, passed by a learned Single Judge of this Court in CWP No.2841 of 2009, titled Dr.Jagdish Chand Panta & Ors. versus State of H.P. and Ors., whereby the writ petition filed by the petitioners (respondents herein) came to be allowed and the Office Memorandum, dated 7.7.2007, (Annexure P-5 with the writ petition), was partially quashed to the extent that the benefit under the notification would be available to all those who retired after effective date of enhancement of 25% non-practicing allowance (‘NPA’ for short) i.e. 1.5.2005. 2. The other two appeals, (LPA No.491 of 2012 and LPA No.32 of 2013), have been preferred by the State of H.P. against the common judgment passed by a learned Single Judge of this Court, dated 13th June, 2012, in CWP Nos.4961 of 2010 and 5839 of 2010, titled as Keshav Singh vs. State of H.P. and Ors. and Bhupinder Singh Mehta vs. State of H.P. and others, respectively, whereby the appellants/writ respondents were directed to pay to the petitioners the enhanced retirement benefits on emoluments of 25% NPA on and w.e.f. 1.7.2007, irrespective of their date of retirement. 3. In both the judgments, the Writ Courts have determined that the NPA benefit, in terms of Office Memorandum, dated 7th July, 2007, was to be granted to all the writ petitioners irrespective of any classification. 4. It appears that the benefit of NPA was allowed to the petitioners for the first time w.e.f. on 1st April, 1997 and in terms of Office Memorandum dated 10th June, 2005, the NPA was modified and again it was enhanced in terms of Office Memorandum dated 7th July, 2007. The Office Memorandum, dated 7th July, 2007 was questioned by the writ petitioners on the ground that it is discriminatory and amounts to creating a class among the officers who are equal in all respects and had prayed that the said Office Memorandum be quashed, so far as it was impugned by the writ petitioners and benefit be given to the writ petitioners without making any classification. 5. 5. The Writ Courts after examining all the facts of the case, law occupying the field and the judgments expounded by the Apex Court from time to time, held that the writ petitioners were wrongly denied the benefit of NPA and it was held that after retirement, they are entitled to benefit of pension on the basis of said enhanced NPA rate. It is apt to reproduce paragraphs 18, 19, 20, 21 and 22 of the judgment, dated 13th June, 2012, passed in CWP Nos.4961 of 2010 & 5839 of 2010, hereunder: “18. It is well settled that whenever a 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, that is, what is called reading down the measures. 19. Non-contributory pension under 1972 Rules is a State obligation. It is an item of expenditure voted year to year depending upon the number of pensioners and the estimated expenditure. Now when the liberalized pension scheme was introduced, it is justifiably assumed that the government servants would retire from the next day of the coming into operation of the scheme and the burden will have to be computed as imposed by the liberalized scheme. Even the government has been granting since nearly a decade temporary increases from time to time to pensioners. Therefore, there will be a marginal difference as the old pensioners are on the way out and their number is fast decreasing. This number will keep on dwindling. Therefore, the financial burden is no ground which could detract the government from covering pre 2007 pensioners. 20. Therefore, there will be a marginal difference as the old pensioners are on the way out and their number is fast decreasing. This number will keep on dwindling. Therefore, the financial burden is no ground which could detract the government from covering pre 2007 pensioners. 20. In V. Kasturi v. Managing Director, State Bank of India, Bombay and another, (1998) 8 SCC 30 , the Supreme Court observed that if the person retiring is eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit 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 on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. It was observed that the line of decisions tracing their roots to the ratio of Nakara’s case (supra), would cover this category of cases. 21. In my opinion, the object sought to be achieved by the Office Memorandum dated 7.7.2007 is not to create a class within a class, but to ensure that the benefit of pension was made available to all persons of the same class equally. The decision of the State Government as projected or to hold otherwise would cause violation to the provisions of Article 14 of the Constitution. It is well settled law that when there is a clear violation of a statute or a constitutional provision or there is arbitrariness in the ‘Wednesbury sense’, the Court has every right to interfere even with the policy decisions. 22. It is well settled law that when there is a clear violation of a statute or a constitutional provision or there is arbitrariness in the ‘Wednesbury sense’, the Court has every right to interfere even with the policy decisions. 22. In the instant case, as already discussed above, the denial of the benefit of the liberalized pension scheme to the petitioners who form a homogeneous class cannot be classified by arbitrary fixing an eligibility criterion of date unrelated to the purpose of revision of pension.” 6. We have gone through the Office Memorandum impugned in the writ petitions and the discussion made by the Writ Courts. It appears that in terms of the impugned Office Memorandum, classification was made out of the same set of Officers, who are having same qualification, same rights and same title, without any justification and, therefore, the Writ Courts have rightly held that such a classification is impermissible in law. 7. It is apt to reproduce the operation portions of both the judgments hereunder, whereby the writ respondents/appellants have been asked to do the needful, pass follow-up orders and pay retiral benefits to the petitioners irrespective of their date of retirement: “11. Consequently, the writ petition is allowed and the portion of Office Memorandum, Annexure P-5, which says that the benefit under the notification will be available from 01.07.2007, is quashed and it is ordered that the benefit under the Office Memorandum, Annexure P-5, shall be available to all those, who retired after effective date of enhancement of 25 per cent NPA i.e. 01.05.2005. Writ Petition stands disposed of, accordingly. Respondents are directed to give the benefit in the matter of fixation and payment of pension and other retiral benefits to the petitioners, in terms of the Office Memorandum, Annexure P-5, within three months from today.” (Judgment in CWP No.2841 of 2009, challenged in LPA No.184 of 2011). “23.Therefore, for the above reasons, both these writ petitions are allowed and the respondents are directed to pay the petitioners the enhanced retirement benefits on emoluments of 25% NPA on and w.e.f. 1.7.2007 irrespective of their date of retirement. The due and admissible arrears shall be paid/ released to eachs of the petitioners within three months from the date of production of the copy of this judgment. The due and admissible arrears shall be paid/ released to eachs of the petitioners within three months from the date of production of the copy of this judgment. Pending application(s), if any are also disposed of.” (Judgment in CWP 4961 of 2010 & CWP No.5839 of 2010, impugned in LPA Nos.491 of 2012 & 32 of 2013) 8. Having said so, we are of the considered view that both impugned judgments are well reasoned and warrant no interference. Accordingly, the appeals merit to be dismissed and the same are dismissed accordingly.