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2014 DIGILAW 618 (PAT)

Raksha Ray v. State of Bihar

2014-05-15

AJAY KUMAR TRIPATHI

body2014
ORDER 1. These batch of writ applications have been filed by the government servants for a direction upon the respondent authorities to amend or to rectify paragraph 2 (vi) (kha) of Resolution No. 137/08, dated 23.9.2009 issued by the Finance Department by virtue of which the benefit of enhanced gratuity from Rs. 3.50 lakhs to 10 lakhs was limited to those employees who have retired after the issuance of the said Resolution i.e. 1.1.2006. They have also filed an IA No. 5122 of 2013 seeking yet another prayer that there is a discrimination against these petitioners created by Resolution No. 137/08, dated 23.9.2009 that those employees who have retired after the date of that notification would be entitled to full pension on completion of only 20 years of service even though the effective date with regard to the said benefit should relate back to 1.1.2006. By creating two class of employees in one Resolution of the State Government, the respondent State authorities have violated Articles 14 and 16 of the Constitution of India. 2. The question of entitlement of enhanced gratuity on the basis of cut off date of 1.1.2006 became a subject matter of challenge in CWJC No. 20041 of 2012. Since the learned single Judge struck down the notification, which had created the anomalous situation in matters of award of enhanced gratuity, the State Government decided to accept the verdict and issued a modified notification no. 774 of 27.5.2013. Therefore, the issue of entitlement of enhanced gratuity is no longer an issue to be adjudicated. The issue left now is whether the benefit of only 20 years of service for full pension would be limited to those employees, who have retired after the date of notification or for such employees, who have retired between 1.1.2006 and 23.9.2009 when the notification was issued. 3. The contention of counsel for the petitioners is that by creating an artificial group of employees during the above mentioned period, who will be covered by the previous rules and not by the present notification, there is creation of a class or a sub class, which amounts to creating discrimination between a homogeneous group. 4. It is widely known that the recommendation of the 6th Pay Revision Committee gave various benefits to the employees of the Central Government with effect from 1.1.2006. 4. It is widely known that the recommendation of the 6th Pay Revision Committee gave various benefits to the employees of the Central Government with effect from 1.1.2006. Naturally, on a clamour being made by the State Government employees, deliberations were made by the State of Bihar and a set of notifications came to be issued bringing some kind of parity in the benefits relating to pay revision and other service conditions with that of the Central Government servants. The notification dated 23.9.2009 came to be issued as decision was taken by the State government to formulize the benefits which was required to be extended to its employees. What was agreed to be extended in matters of pension and gratuity is evident from the said notification but the said notification became a subject matter of controversy first on the question of grant of gratuity of two different kinds. This came to be tested in CWJC No. 20041 of 2012. The learned single Judge taking into consideration the diverse legal propositions held that the notification did create discrimination and sub classification of a homogeneous group without any valid reason or rational. This legal position has been accepted by the State and a new notification in harmony with the said pronouncement of the High Court was issued on 27.5.2013. 5. The primary reason why these petitioners have moved the High Court is the cut off date by which eligibility for full pension on only 20 years of service instead of 30 years is to accrue. For most of the issues, the benefits accrue with effect from 1.1.2006 but by a curious decision taken by the State when it came down to the matter of granting benefits of pension on the number of years of service, the same was made applicable from the date of notification dated 23.9.2009 instead of extending it from 1.1.2006. This according to petitioners per se has no object and nexus with the background under which the State Government issued the said notification. The primary object of the issuance of the said notification is to extend similar benefits to State Government employees as was recommended by the 6th Pay Revision Committee. But by keeping a set of employees, who retired between 1.1.2006 and 23.9.2009, in a different class is discriminatory more so when all other benefits accrue from 1.1.2006. 6. The primary object of the issuance of the said notification is to extend similar benefits to State Government employees as was recommended by the 6th Pay Revision Committee. But by keeping a set of employees, who retired between 1.1.2006 and 23.9.2009, in a different class is discriminatory more so when all other benefits accrue from 1.1.2006. 6. Yet another issue, which has been urged at the bar, is that in terms of the definition in the Bihar Pension Rules ‘pension’ includes gratuity. The State Government tried to give a different date for benefit of enhanced gratuity in the same said notification dated 23.9.2009 and it has been struck down by the High Court in the case of Hari Ram vs. State of Bihar, decided on 30th of April, 2013, which was CWJC No. 20041 of 2012. If the analogy and the ratio of the above decision is taken into consideration, the notification even with regard to reduced period of service of 20 yeas for grant of pension from the date of notification instead of 1.1.2006 is also required to be struck down. 7. The State Government has taken a stand that whatever has been done has been done on the basis of recommendations of the Pay Revision Committee. The question of financial capability of the State Government was an equal important aspect of the matter since extending same benefits would create a burden of thousands of crores upon the State Government. The State Government took a conscious policy decision to notify such benefits. 8. The Court after hearing the parties does not accept the stand of the State to be based on legal touchstone of rationality because for the reason indicated in the case of Hari Ram (supra), the issue of applicability of revised gratuity was struck down as irrational and arbitrary as it created a sub class amongst a homogeneous class If that is what was held by the learned single Judge and that position was accepted by the State, which led to issuance of a notification extending that benefit w.e.f. 1.4.2007, the date when the actual financial benefits was allowed to the State Government employees. The Court is tempted to reproduce paragraphs 41 and 42 of the Hari Ram decision, which has relevance even to the present adjudication. “41. The Court is tempted to reproduce paragraphs 41 and 42 of the Hari Ram decision, which has relevance even to the present adjudication. “41. I may also note here that no binding precedent was cited by the learned Principal Additional Advocate General with regards to a case where a right ordinarily occurring was granted to a group while taking it away for another group and it was held to be valid by any Court. All judgments cited related to petitioner seeking extension of benefit given to another group to them. They were all cases of extension sought and not deprivation as challenged in the present case. Last month’s pay being retrospectively enhanced for all but the State, by this pension resolution, gives benefit of this to a group and deprives the benefit to another when it comes to revising gratuity based on last months pay. This is nothing but hostile and capricious discrimination not permissible under Article-14 of the Constitution. 42. To conclude, that for calculating gratuity, depriving a groups of retirees of the benefit that would accrue to them by virtue of retrospective pay revision, while allowing the benefit of the retrospective pay revision to another group similarly situated as done by the pension revision notification dated 23.09.2009, cannot be sustained as legal and valid. It is per se unfair, capricious, arbitrary, unreasonable and is a hostile discrimination as also violative of Article-14 of the Constitution and in conflict with the Constitution Bench judgment in the case of D.S. Nakara case (supra) which clearly prohibits sub-classification of a homogeneous group without valid reason or rational. The result is that the clauses of the said notification, which deprives the petitioner of the right to get his gratuity revised as per the retrospective pay revision, has to be held to be illegal and, thus, unenforceable. Petitioner would thus be entitled to revision of his gratuity on the basis of the retrospective revision of the pay-scale but the same would be restricted to the maximum of Rs. 3.50 lacs.” 9. In view of the above, the Court comes to a considered opinion that the benefit of only 20 years of service for pension would be extended to all such persons, who has superannuated on or after 1.4.2007 instead of 23.9.2009, the date of the notification. 3.50 lacs.” 9. In view of the above, the Court comes to a considered opinion that the benefit of only 20 years of service for pension would be extended to all such persons, who has superannuated on or after 1.4.2007 instead of 23.9.2009, the date of the notification. The relevant clause of Resolution No. 137/08 is hereby struck down and the writ applications are allowed in terms of the above. 10. Petitioners have liberty to agitate the left over issues before the appropriate authority.