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2021 DIGILAW 407 (HP)

B. C. Gupta v. State Of Himachal Pradesh & Ors.

2021-07-15

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - As similar issues of facts and law are involved in these three writ petitions, they are being disposed of by a common judgment. 2. The petitioner in CWPOA No. 6391 of 2019 retired from the post of Deputy Secretary on 30.11.1988, on attaining the age of superannuation. His grievance is with regard to the in action on the part of the respondents of not revising his pension, in terms of Para 4.2 of Office Memorandum No. Fin(Pen) A(3)-1/09, Part II, dated 14.10.2009, published in Gazette No. 1464/vit/2009, dated 30.10.2009, read with Notification No. Fin(PR) B-7/2009, dated 26.08.2009, published in Gazette No. 108/Gazette 2009, dated 26.08.2009 and Office Memorandum dated 21.05.2013, which according to the petitioner is applicable in his case w.e.f. 01.01.2006 instead of 01.04.2013. Similarly, petitioners in CWPOA No. 6220 of 2019, total 6 in numbers, retired on attaining the age of superannuation before 01.01.2006 and their grievance is also similar. The details of superannuation of the said petitioners are as under: "1. Tara Dutt Sharma, retired as Deputy Secretary on 30.11.2002, PPO No. 60057/HP. 2. Khem Chand Sharma, retired as Deputy Secretary on 31.01.2002, PPO No. 54722/HP. 3. Virender Kumar Sood, retired as Under Secretary on 31.10.1999, PPO No. 45195/HP. 4. Nand Lal Bhardwaj, retired as Sr. Pvt. Secretary on 31.12.2000, PPO No. 50254/HP. 5. Shanti Swaroop Sood, retired as Deputy Secretary on 31.07.2003, PPO No. 60321/HP. 6. Jugal Kishore Sud, retired as Principal School Cadre on 31.10.1999, PPO No. 48027/HP." 3. Petitioner in CWPOA No. 7876 of 2019 retired from the post of Chief Engineer, I & PH Department on 30.06.2004 and his grievance is also the same. 4. For the sake of brevity, the Court shall be referring to the pleadings and Annexures from CWPOA No. 6391 of 2019. 5. According to the petitioners, pay revision took place on 01.01.2006 and their pre-revised pay scales were accordingly revised vide Resolution dated 29th August, 2008 (Annexure A-3). The Central Government accepted the recommendations of the 6th Pay Commission, in terms whereof, the pension was required to be 50% of the average emoluments, received during past 10 months or the last pay drawn, whichever was more beneficial to the retiring employee. The Central Government accepted the recommendations of the 6th Pay Commission, in terms whereof, the pension was required to be 50% of the average emoluments, received during past 10 months or the last pay drawn, whichever was more beneficial to the retiring employee. The revised pension structure was to become effective from 01.01.2006 and 40% of the arrears were to be paid in cash for the years 2006-09 and the remaining 60% in the years 2009-10. 6. To be more precise, the relevant recommendation, i.e., recommendation No. 2, which stood accepted by the Government, was as under "2. Linkage of full pension with 33 years of qualifying service should be dispensed with. Once an employee renders the minimum pensionable service of 20 years, pension should be paid at 50% of the average emoluments received during the past 10 months or the pay last drawn, whichever is more beneficial to the retiring employee. Simultaneously, the extant benefit of adding years of qualifying service for purposes of computing pension/related benefits should be withdrawn as it would no longer be relevant. (5.1.33)" This was followed by issuance of Office Memorandum, dated 1st September, 2008 (Annexure A-4), on the subject "Implementation of Government's decision on the recommendations of the Sixth Central Pay Commission-Revision of pension of pre-2006 pensioners/family pensioners etc.", vide which, sanction of the President was conveyed qua revision of pension of pre-2006 pensioners. Clause-1 and Clause 4.2 of the said Office Memorandum provided as under: "1. The undersigned is directed to say that in pursuance of Government's decision on the recommendations of Sixth Central Pay Commission, sanction of the President is hereby accorded to the regulation, with effect from 1.1.2006, of pension/family pension of all the pre-2006 pensioners/family pensioners in the manner indicated in the succeeding paragraphs. Separate orders will be issued in respect of employees who retired/died on or after 1.1.2006. . . . 4.2 The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pension had retired. . . . 4.2 The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pension had retired. In the cae of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale." This was followed by issuance of Office Memorandum dated 14th October, 2009 (Annexure P-5) by the Finance (Pension) Department of the Government of Himachal Pradesh, in terms whereof, the respondentState accorded sanction to the Regulation with effect from 01.01.2006 of pension/family pension of all the pre-2006 pensioners/family pensioners, in the manner indicated in the said Office Memorandum. Clause 4.2 of the Office Memorandum, inter alia, provided that the fixation of pension will be subject to the provision that revised pension, in no case, shall be lower than fifty percent of the minimum of the pay band plus the Grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. 7. Thereafter, vide Office Memorandum dated 21st May, 2013 (Annexure A-11) on the subject "Revision of pension of pre-2006 pensioners-reg.", the Finance (Pension) Department of the Government of Himachal Pradesh, ordered that in pursuance to instructions contained in Office Memorandum, dated 14th October, 2009, the Governor of Himachal Pradesh was pleased to order that pension of pre-2006 pensioners, as revised w.e.f. 01.01.2006, in terms of Para 4.1 or Para 4.2 of the aforesaid OM would be further stepped up to 50% of the sum of minimum of pay in the pay band and the Grade Pay corresponding to the pre-revised pay scale from which the pensioner had retired, as arrived at with reference to fitment tables attached with H. P. Civil Services (Revised Pay) Rules, 2009, notified on 26.08.2009. 8. This was followed by issuance of Communication dated 31st July, 2013 (Annexure A-12), in case of the petitioner in CWP No. 6391 of 2019, on the subject "Revision of pension of pre-2006 pensioners/family pensioners", in terms whereof, the family pension of the petitioners was revised, but w.e.f. 01.04.2013. 9. 8. This was followed by issuance of Communication dated 31st July, 2013 (Annexure A-12), in case of the petitioner in CWP No. 6391 of 2019, on the subject "Revision of pension of pre-2006 pensioners/family pensioners", in terms whereof, the family pension of the petitioners was revised, but w.e.f. 01.04.2013. 9. The grievance of the petitioners, thus, is that vide Office Memorandum dated 21.05.2013, their pension in accordance with Office Memorandum dated 14th October, 2009 is required to be fixed at 50% of the emoluments w.e.f. 01.01.2006 and not w.e.f. 01.04.2013, as has been done by the respondent-Department. It is in this background that these petitions have been filed, primarily praying for the relief that the respondents be directed to revise the pension of the petitioners w.e.f. 01.01.2006 instead of 01.04.2013 and arrears be paid to them for the period between 01.01.2006 to 31.03.2013. 10. The stand of the State is that though the State Government took a conscious decision on 14th October, 2009 to grant pension and other pensionery benefits to the employees, who had retired before 01.01.2006 and after 01.01.2006 and said Memorandum had attained finality, in terms of Office Memorandum dated 14th October, 2009, the pension and family pension was to be governed according to Clauses- 9 & 10 contained therein and said decision was never challenged by the petitioners, who duly accepted it at the relevant time. According to the State, the decision which was taken by the Government to grant the revised pension to post 01.01.2006 retirees by conferring upon them the actual benefits of revised pension w.e.f. 01.04.2013, was a Policy decision and a prudent decision, which could not be subject to judicial scrutiny. The claim was barred by delays and latches and petitioners cannot simply seek benefits, as might have been granted to the employees of other States. On these grounds, the State prayed for dismissal of the petitions. 11. I have heard learned counsel for the parties and gone through the pleadings. 12. As agreed during the course of arguments, this Court is not going into the individual issue raised by the petitioners, but is deciding the main issue between the petitioners and the respondent-State as to whether the petitioners are entitled to the benefit of revised scale w.e.f. 01.01.2006 or is the State justified in conferring upon them the said benefit w.e.f. 01.04.2013. 13. 13. Before proceeding further, it is observed by the Court that as the relief prayed for by the petitioners is with regard to pension/revision of pension, the same being a continuing cause of action, therefore, it cannot be said that the petitions are hit by delays and latches. Otherwise also, cause of action accrued in favour of the petitioners post issuance of Office Memorandum dated 21st May, 2013 and as after the abolition of the erstwhile learned Himachal Pradesh Administrative Tribunal, these cases stand transferred to this Court and are being heard as writ petitions, therefore, the question of limitation, as envisaged under the Administrative Tribunals Act, shall not arise. 14. The sole prayer of the petitioners is that their pension be revised w.e.f. 01.01.2006 instead of 01.04.2013. The factum of the benefit of revision of pay scale having been conferred by the State to the petitioners is not in dispute. This means that the entitlement of the petitioners to receive the revised pay scale is also not in dispute. Thus, the only point which requires adjudication is as to whether the State is justified in conferring the benefit of revised pay scale w.e.f. 01.04.2013 vide Office Memorandum dated 21.05.2013 or the petitioners are entitled for the same w.e.f. 01.01.2006. 15. In the reply, which has been filed by the State, in the preliminary objections raised, it stands mentioned that a conscious decision for regulation of pension/family pension of pre-2006 pensioners/family pensioners was taken by the Government of Himachal Pradesh, which led to the issuance of Instructions dated 14th October, 2009, in terms whereof, the fixation of pension was subject to the provision that revised pension, in no case, shall be lower than 50% of the minimum of the Pay Band plus the Grade Pay corresponding to the prerevised pay scale from which the pensioner had retired. With regard to family pension, the revised family pension was to be not less than 30% of the minimum of Pay Band plus Grade Pay corresponding to the prerevised Pay Scale, in which the deceased Government servant had worked last. 16. With regard to family pension, the revised family pension was to be not less than 30% of the minimum of Pay Band plus Grade Pay corresponding to the prerevised Pay Scale, in which the deceased Government servant had worked last. 16. It is further the stand of the State that in the years 2013-14, the Government took a decision to step up the pension and family pension of pre-2006 pensioners to 50% and 30%, respectively to the sum of pay of minimum of pay in the Pay Band plus Grade Pay corresponding to pre-revised Pay Scale, from which the Government servant had retired and accordingly Instructions dated 21.05.2013 were issued. These instructions were made effective w.e.f. 01.04.2013. It is further the stand of the State that in case the prayer of the petitioners is acceded to, then the same will lead to great burden upon the State exchequer. 17. This Court is of the considered view that the primary reason as to why Office Memorandum dated 21.05.2013 has been made applicable w.e.f. 01.04.2013, is to escape this financial liability. A perusal of Office Memorandum dated 21st May, 2013 demonstrates that it was stated therein that in continuation to instructions contained in this Office Memorandum dated 14.10.2009, the Governor of Himachal Pradesh is pleased to order that pension to pre-2006 pensioners, as revised w.e.f. 01.01.2006, in terms of Para 4.1 or Para 4.2 of the aforesaid OM would be further stepped up to 50% of the sum of minimum of the pay in the Pay Band and Grade Pay corresponding to pre-revised Pay Scale, from which the pensioner had retired, but w.e.f. 01.04.2013. 18. In fact, vide Office Memorandum dated 21st May, 2013, what was being stepped up, was the Pay Scale, in continuation of Instructions contained in Office Memorandum dated 14.10.2009. Now, when one peruses Office Memorandum dated 14th October, 2009, the same demonstrates that said Office Memorandum was given effect w.e.f. 01.01.2006. That being the case, it is not understood as to why Office Memorandum dated 21st May, 2013 has been made applicable prospectively, rather than from the date from which the pension of pre2006 pensioners has been revised. This, indeed, is a discriminatory act on the part of the respondents. It is again reiterated that simply on the ground of the same entailing financial implications, the benefit could not have been curtailed by making the same prospective. This, indeed, is a discriminatory act on the part of the respondents. It is again reiterated that simply on the ground of the same entailing financial implications, the benefit could not have been curtailed by making the same prospective. It is settled law that pension is not a bounty, but hard earned property of a retiree. Petitioners before this Court are senior citizens, most of whom are more that 80 years in age. It is in lieu of their services rendered to the respective Departments of the Government that they are earning pension. In this background, the State is not doing any favour by either granting pension to the petitioners or revising the same. The stand of the State that its power to take decision with regard to revision of Pay Scales is not subsubservient to the recommendations of Central Pay Commission is not being disputed, but fact of the matter remains that the revision of the Pay Scale has been done by the Government of Himachal Pradesh by following the recommendations of Central Pay Commission. Though the stand of the State is that it does not follow the recommendations of Central Pay Commission, but the benefits which stand contained in the Instructions issued by the respondent-State are, indeed, influenced by the recommendations of the Central Pay Commission and are quite pari materia thereto. 19. In K.S. Puttaswamy Vs. Union of India, (2019) 1 SCC 1 , the Hon'ble Supreme Court has been pleased to hold that pension is not a largesse or bounty conferred by the State. Pension, as a condition of service, attaches as a recompense for the long years of service rendered by an individual to the State and its instrumentalities. Pensioners grow older with passing age. Many of them suffer from the tribulations of old age including the loss of biometrics. It is unfair and arbitrary on the part of the State to deny pension to a pension entitled to it by linking pensionary payments to the possession of an Aadhaar number or to its authentication. This, indeed, is a reiteration of the well settled stand of the Hon'ble Apex Court on the issue right from D.S. Nakara Vs. Union of India, (1983) 1 SCC 305 . 20. This, indeed, is a reiteration of the well settled stand of the Hon'ble Apex Court on the issue right from D.S. Nakara Vs. Union of India, (1983) 1 SCC 305 . 20. The Court does not finds any valid justification in making the benefits accruable to pensioners under Office Memorandum dated 21st May, 2013 applicable w.e.f. 01.04.2013, rather than 01.01.2006, as was done by earlier Office Memorandum dated 14th October, 2009. 21. Cut off date, though may be the prerogative of the State, but the same cannot be fixed in an arbitrary manner. In the present case, the pensioners have been classified into two categories by the State, i.e., pre-2006 and post-2006. That being the case, when it comes to the revision of pension of pre-2006 retirees, it is but natural that the revised pensionary benefits have to be conferred upon them w.e.f. 01.01.2006. In fact, even vide Office Memorandum dated 21st May, 2013, the pension of pre-2006 pensioners stands revised w.e.f. 01.01.2006, but the order has been made effective from 01.04.2013 and it has been ordered that there shall be no change in the amount of revised pension/family pension paid w.e.f. 01.01.2006 to 31.03.2013 and no arrears will be payable. 22. The plea of burden of financial exchequer, in the considered view of the Court, cannot be permitted to be taken by the State, at least in the matter of pension. As already observed herinabove, as pension is not a bounty or gratuitous payment depending upon the sweet will or grace of the employer, the date from which the pensioner shall be entitled for the benefit of revision thereof, cannot be arbitrarily determined by the employer and, indeed, a pensioner is entitled for the actual benefits from the date from which revision of pension has to come into force. 23. Though the Courts have accepted that it is the domain of the executive authority generally to fix the cut off dates, but the Courts do have the power to interfere, if the cut off date appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab & others Vs. Amar Nath Goyal, (2005) 6 SCC 754 ). 24. (See State of Punjab & others Vs. Amar Nath Goyal, (2005) 6 SCC 754 ). 24. In the present case, the cut off date for the grant of revised pension in favour of pre-2006 pensioners already stood fixed as 01.01.2006 by the Government itself vide its earlier Office Memorandum dated 14th October, 2009. In these circumstances, when Office Memorandum dated 21st May, 2013, in terms of the language contained in the same, was also in continuation to instructions contained in Office Memorandum dated 14th October, 2009, then the curtailment of benefits by fixing the cut off date to be 01.04.2013, rather than 01.01.2006, is indeed blatantly discriminatory and arbitrary. 25. In view of the discussions held hereinabove, these writ petitions are allowed. Office Memorandum dated 21st May, 2013, to the effect that it makes orders effective w.e.f. 01.04.2013, is held to be bad and it is ordered that pre-revised pension in terms of said Office Memorandum shall be payable to the petitioners w.e.f. 01.01.2006 alongwith arrears. In the event of arrears being paid within a period of four months from today, no interest shall be payable upon the same, but in case the arrears are not paid within the said period, the the same shall entail simple interest @6% per annum from the date of filing of the writ petitions. Writ petitions stand disposed of in above terms, so also pending miscellaneous applications, if any.