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Meghalaya High Court · body

2022 DIGILAW 199 (MEG)

Nirmalya Bhattacharjee v. State of Meghalaya

2022-07-26

H.S.THANGKHIEW

body2022
JUDGMENT 1. The petitioner, who retired from the post of Executive Engineer (Electrical) on 31-01-2015, is aggrieved with the effect and consequences on his pensionary benefits caused by the Notification of the Meghalaya Energy Corporation Limited (Revision of Pay) Regulation, 2015, which was notified on 15-05-2017, which he alleges has resulted in Executive Engineers who were junior to the writ petitioner but who retired before 01-01-2015, drawing a higher pension. 2. The writ petitioner retired from the post of Executive Engineer (Electrical) on 31-01-2015 when his basic pay was Rs. 56,330/- and the prevailing norm for fixation of pension was 50% of the average pay of the last 6 months, including Special Pay subject to a maximum of Rs. 27,380/- per month. After computation of the last 6 months pay of the petitioner, 50% of the average emolument worked out to Rs. 27,948.33/- and accordingly his pension was fixed at Rs. 27,380/- with effect 01-02-2015 which was the maximum amount payable. 3. The respondent corporation vide Notification dated 15-05-2017, notified the Meghalaya Energy Corporation Limited (Revision of Pay) Regulation, 2015, revising the pay scale of its employees with effect 01-01-2015 and consequently by an Office Memorandum of the same day, the pensionary benefits of the employees stood revised with effect from 01-01-2015. Regulation/Paragraph 5 of the said OM dated 15-05-2017 dealt with the Revision of Pension/Family Pension and Principles of Fixation. Paragraph 5 (i) of the OM provided that Pension/Family Pension will be determined by multiplying the existing Basic Pension/Family Pension as on 01-01-2015 by a factor of 1.82, whereas Paragraph 5(iv) of the OM provided the computation and fixation of the employees who retired within 6 months from the date of coming over to the revised scale of pay i.e., MeECL (RoP) Regulation, 2015. 4. Mr. S.Sen, learned counsel for the petitioner submits that on the basis of the Revision of Pay implemented by the respondent corporation with effect from 01-01-2015, his revised pay for the month of January 2015, was fixed at Rs. 1,06,200/- and the respondent corporation relying on Paragraph 5 (iv) of the OM dated 15-05-2017, revised the pension of the writ petitioner with effect from 01-01-2015. Learned counsel submits that taking into account the last 6 months including the last month at the revised pay, the petitioner's pension was fixed at Rs. 44,330/-. 1,06,200/- and the respondent corporation relying on Paragraph 5 (iv) of the OM dated 15-05-2017, revised the pension of the writ petitioner with effect from 01-01-2015. Learned counsel submits that taking into account the last 6 months including the last month at the revised pay, the petitioner's pension was fixed at Rs. 44,330/-. This, the learned counsel contends, has created an anomalous situation vis-a-vis the cases of the Executive Engineers who retired before 01-01-2015, as their pension has been revised by applying the principle contained in Paragraph 5 (i) of the OM i.e., by multiplying their existing basic pension by a factor of 1.82 which has resulted in them drawing a higher pension. The learned counsel submits that, as he received the benefit of the revised pay only for the month of January 2015, in comparison to other Executive Engineers who were getting the same pension earlier before the said revision, but retired before 01-01-2015, his basic pension is much lower than them. To illustrate this point, the learned counsel has referred to a chart which is annexed as Annexure-4 to the writ petition showing this anomaly. 5. The learned counsel for the petitioner submits that the classification introduced by Paragraph 5 of the OM dated 15-05-2017, is unreasonable and unjustified and has no reasonable nexus with the objects sought to be achieved, as the same has resulted in discrimination in the revision of pension wherein, a junior is drawing higher pension than a senior, and as such he contends, the same is violative of Article 14 and 16 of the Constitution of India and is liable to be interfered with by this Court. 6. Mr. S. Sen, in support of his arguments, has placed heavy reliance on the judgment of D.S. Nakara & Ors. v. Union of India. (1983)1 SCC 305 and submits that as per this judgment, the Hon'ble Supreme Court has held that unequal treatment offends Article 14, if it appears that pensioners for the purpose of pension benefits who form a class are divided by arbitrarily fixing an eligibility criterion, and that any classification has to be based on some rational principle. The following decisions have also been placed by the learned counsel for consideration by this Court: (i) AIR 1989 SC 669 M.L.Jain v. Union of India & Ors. (ii) (2006) 11 SCC 709 Col. B.J. Akkara (Retd.) v. Govt. of India & Ors. The following decisions have also been placed by the learned counsel for consideration by this Court: (i) AIR 1989 SC 669 M.L.Jain v. Union of India & Ors. (ii) (2006) 11 SCC 709 Col. B.J. Akkara (Retd.) v. Govt. of India & Ors. (iii) (2021) 11 SCC 543 State of Andhra Pradesh & Anr. v. Dinavahi Lakshmi Kameswari. 7. Mr. S. Sahay, learned counsel for the respondent corporation in reply, has firstly submitted that the writ petition is not maintainable as the petitioner has not been able to disclose any legal or fundamental right which has been violated. He also submits that the petitioner is receiving pensionary benefits in accordance with the applicable terms and conditions as provided by the OM dated 15-05-2017, which has been given effect to without any deviation and that the petitioner has no vested right to claim pensionary benefits at an amount of his choosing. It is contended that the amount to be disbursed as pension is a matter of policy, and that the pay and emoluments of the employees of the corporation, are determined on the recommendations of the Pay Committee, which is an expert body constituted for the purpose. 8. Learned counsel submits that the writ petition is also barred by laches as the re-fixation of Pay and Pension, had been carried out by the respondent corporation vide the OM dated 15-05-2017, whereas the petitioner has chosen to approach this Court only on October 2021, without explaining the inordinate delay, when even the representations of the petitioner were rejected in 2017-2018 itself. On this ground alone, it is submitted the writ petition deserves no consideration and is liable to be dismissed. 9. On merits, learned counsel contends that the writ petition is unsustainable. It is submitted that the OM dated 15-05-2017, in respect of Revised Pension was introduced keeping in view the interest of the employees, but however due to the method of calculation wherein, in most cases the date of retirement plays a vital role, there cannot be parity in respect of a quantum of pensionary benefits to all its employees. It is further submitted by learned counsel that there are no Pension Protection Rules to protect the pension of an employee from their respective juniors and no provision for one rank one pension under the respondent corporation. 10. It is further submitted by learned counsel that there are no Pension Protection Rules to protect the pension of an employee from their respective juniors and no provision for one rank one pension under the respondent corporation. 10. In support of his arguments, learned counsel has cited the following cases: (i) (1993) 4 SCC 62 State of West Bengal v. Ratan Behari Dey & Ors. (ii) (2002) 2 SCC 179 State of W.B. & Anr. v. W.B. Govt. Pensioners' Associations & Ors. (iii) (1990) 4 SCC 207 Krishena Kumar v. Union of India & Ors. (iv) (1994) 4 SCC 68 Union of India v. P.N.Menon & Ors. (v) (2006) 5 SCC 65 State of Bihar & Ors. v. Bihar Pensioners Samaj. 11. The learned counsel has sought to distinguish the judgment of D.S.Nakara (supra) and submits that the principle enunciated therein is not applicable to the facts of this case and has referred to State of West Bengal v. Ratan Behari Dey (supra) wherein the Hon'ble Supreme Court has held that terminal benefits and also pensionary benefits constitute conditions of service and the employee is vested with the right to revise salaries as also terminal/pensionary benefits and also to specify a date from which the revision of pay scales, terminal/pensionary benefits shall take effect, and as long as such dates specified in a reasonable manner without discriminating between similarly situated persons, no interference is called for. Reference has also been made to the case of Krishena Kumar v. Union of India & Ors. (supra) wherein learned counsel submits the Constitution Bench of the Supreme Court held that notification setting a cut-off date could not be struck out by applying the ratio of Nakara (supra) and that a cut-off date for granting service benefits may not necessarily tantamount to a violation of Article 14 and will be upheld by Courts if there is some reasonable explanation in support of that date. 12. I have heard learned counsel for the parties and have perused the materials on record. Firstly, it is to be noted that on the date of retirement of the writ petitioner, the prevailing norm was that pension was fixed at 50% of the average of the last 6 months of emoluments including Special Pay subject to a maximum of Rs.27,380/-. Accordingly, the petitioner's pension was worked out as follows: - i. Pay for August 2014 Rs.55360/- + Spl. Accordingly, the petitioner's pension was worked out as follows: - i. Pay for August 2014 Rs.55360/- + Spl. Pay Rs. 375/- = Rs. 55,735/- ii. Pay for September, 2014 Rs.55360/- + Spl. Pay Rs. 375/- = Rs. 55,735/- iii Pay for October, 2014 Rs.55360/- + Spl. Pay Rs. 375/- = Rs. 55,735/- iv. Pay for November, 2014 Rs.55360/- + Spl. Pay Rs. 375/- = Rs. 55,735/- v. Pay for December, 2014 Rs.55360/- + Spl. Pay Rs. 375/- = Rs. 55,735/- vi. Pay for January, 2015 Rs.56330/- + Spl. Pay Rs. 375/- = Rs. 56,705/- Total = Rs.3,35,380/- Average emolument Rs.3,35,380 6 = Rs.55,896.66 50% of 55,896.66 = 27,948.331 Pension was fixed w.e.f. 1.2.2015 at Rs.27,380/- (this being the maximum limit). 13. On coming into effect of the Office Memorandum dated 15-05-2017, the petitioner came to be governed by paragraph 5 (iv) of the OM which provided as follows:- 'MEGHALAYA ENERGY CORPORATION LIMITED Corporate Affairs Corporate Identification No. U40101ML2009SGC008374 LUM JINGSHAI, SHORT ROUND ROAD, SHILLONG 793 001, MEGHALAYA Fax: 0364-2590355: Website address: www.meecl.nic.in No. MeECL/CA/PB/77/2017/42 Dated 15th May,2017. OFFICE MEMORANDUM 5. Revision of Pension/Family Pension and Principle of Fixation. (iv) In the case of Corporation's employees who retire within 6(six) months from the date of coming over to the revised scale of pay in terms of the Meghalaya Energy Corporation Limited (Revision of Pay) Regulations 2011 (sic) average emoluments for 6(six) months period preceding the date of retirement shall be calculated by taking into account pay as follows:- (a) For the period during which pay is drawn in pre-revised scale - Basic Pay multiplied by a factor of 1.53. (b) For the period during which pay is drawn in the revised scale - Basic Pay in the Revised Scale. NOTE - (1) In the case of employees in receipt of Special Pay, the same shall be taken into account for the purpose of calculating average emoluments. (2) The Pension/Family Pension in terms of these orders shall qualify for Dearness Allowance as per rates revised from time to time.' (Note: It appears that 2011 has been inadvertently referred to instead of 2015.) 14. On the basis of the revision of pay with effect 01-01-2015, the revised pay of the petitioner for the month of January, 2015 was fixed at Rs. 1,06,200/-. On the basis of the revision of pay with effect 01-01-2015, the revised pay of the petitioner for the month of January, 2015 was fixed at Rs. 1,06,200/-. Accordingly, by application of paragraph 5 (iv) of the OM dated 15-05-2017, the revised pension of the petitioner with effect from 01-02-2015 was as follows: Pre Revised Pay for August 2014 Rs. 55360 x 1.53 + Spl. Pay Rs. 375 = 85075.80 Pre Revised Pay for September 2014 Rs. 55360 x 1.53 + Spl. Pay Rs. 375 = 85075.80 Pre Revised Pay for October 2014 Rs. 55360 x 1.53 + Spl. Pay Rs. 375 = 85075.80 Pre Revised Pay for November 2014 Rs. 55360 x 1.53 + Spl. Pay Rs. 375 = 85075.80 Pre Revised Pay for December 2014 Rs. 55360 x 1.53 + Spl. Pay Rs. 375 = 85075.80 Revised Pay for January 2015 Rs.106200 x 1 + Spl. Pay Rs. 375 = 106575.00 Total = 531954.00 A.E. 531,954.00 6 = Rs. 88,659.00 (B) S/Pension Admissible: 50% of 88659.00 x (3030) = Rs.44329.50 Say 44330.00 15. In contrast, as projected by the writ petitioner in the case of Executive Engineers who retired before 01-01-2015, their pension has been revised by application of paragraph 5 (i) of the OM dated 15-05-2017, which was by multiplying their existing basic pension by a factor of 1.82, which has resulted in them drawing higher pension, even though they were junior to the writ petitioner but retired before 01-01-2015. This Court is therefore to examine as to whether the fixation of the cut-off date has been done arbitrarily bringing about a discrimination between similarly situated person or whether the said specification of the date was reasonable. 16. The fixation and revision of pension in the respondent corporation as can be seen from the materials is as per rules, terms and conditions laid down by the corporation in the Office Memorandums from time to time. By OM dated 15-05-2017, revision of pensionary benefits was with effect from 01-01-2015 upto 31-12-2019 and by OM dated 11-12-2019, revision of pensionary benefits was with effect from 01-01-2020 onwards. In the case of the writ petitioner as noted above, OM dated 15-05-2017 had prescribed the computation of revised pension in the case of employees who retired within six months from the date of coming over to the revised scale of pay of 2017. In the case of the writ petitioner as noted above, OM dated 15-05-2017 had prescribed the computation of revised pension in the case of employees who retired within six months from the date of coming over to the revised scale of pay of 2017. The effect of this OM is that due to the peculiar situation of the petitioner, inasmuch as, he enjoyed the benefit of revised pay only for a month i.e., January 2015, his revised pension would therefore be less in comparison with the employees retired prior to 01-01-2015. No arbitrariness, irregularity or illegality can be attributed to the respondent corporation for fixation of the cut-off date which has resulted in the alleged anomaly. Moreover, it is to be noted that there are no Pensionary Protection Rules in place to protect the pension of the employee from that of his junior employees and further there is no provision for one rank one pension. As the discrepancy is not between similarly situated classes, the petitioner cannot be said to have been discriminated against. 17. In this context, it would be apposite to refer to the judgments of the Hon'ble Supreme Court as cited by the parties which have been pronounced in such matters:- In the case of State of West Bengal & Ors. v. Ratan Behari Dey & Ors. (1993) 4 SCC 62 , at paras 7, 8, 9 & 10 it was held as follows: '7. In our opinion, the principle of Nakara has no application to the facts of this case. The precise principle enunciated in Nakara has been duly explained in Krishena Kumar by a coordinate Bench. For reasons to be assigned hereinafter, it cannot be said that prescribing April 1, 1977 as the date from which the new Regulations were to come into force is either arbitrary or discriminatory. Now, it is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf.... 8. In this context, it may be remembered that the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail. 9. Now coming to the argument of Sri P.P. Rao that the Regulations bring about an unreasonable classification between similarly placed employees, we must say that we are not impressed by it. It is not submitted that the Corporation had no power to give retrospective effect to the Regulations. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they might specify. Of course, as repeatedly held by this Court, in such cases the State cannot, as the expression goes, pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. Once this is done, question of discrimination does not arise. Reference in this behalf may also be had to the decision of this Court in Sushma Sharma v. State of Rajasthan a decision of the Division Bench comprising E.S. Venkataramiah and Sabyasachi Mukherji, JJ. 10. As rightly pointed out in Krishena Kumar, Nakara was a case where an artificial date was specified classifying the retirees, governed by the same Rules and similarly situated, into two different classes, depriving one such class of the benefit of liberalized Pension Rules. It was found in that case that the specification of the date (from which the liberalised Rules were to come into force) was arbitrary. It was found in that case that the specification of the date (from which the liberalised Rules were to come into force) was arbitrary. Whereas in this case, the employees retiring prior to April 1, 1977 and those retiring thereafter were governed by different sets of rules. The argument to the contrary may mean that the Government can never change the conditions of service relating to retiral benefits with effect from a particular date. No such absolute proposition can be stated that while effecting any such change, no date from which such change will come into force can be specified. As stated above, a date can be prescribed but such date should not be drawn in such a manner as to bring about discrimination between persons situated similarly i.e., in a manner violative of Article 14. This aspect has been elaborately dealt with and explained in Krishena Kumar and we do not think it necessary to repeat the same.' (Emphasis supplied) In the case of State of W.B. & Anr. v. W. B. Govt. Pensioners' Associations & Ors. (2002) 2 SCC 179 , at paras 20 and 21 it was held as follows: '20. What is noticeable is that the definition of the word 'emoluments' in the 1971 Rules was not amended. As such pension continued to be calculated on the basis of emoluments as defined in the 1971 Rules namely the last pay drawn immediately prior to retirement. The pay of the pre- 1986 pensioners was not revised. The Third Pay Commission had given a reason for choosing 1-1-1986, as the cut-off date. As held in Krishena Kumar v. Union of India and Union of India v. P.N. Menon merely because a cut-off date is fixed would not make the exercise invalid although persons in the service immediately before the cut-off date would be deprived of the benefit of the revised scales of pay. It would depend upon the relevancy of the consideration underlying the choice of such date. The reason stated by the Third Pay Commission cannot be said to be arbitrary or irrelevant. 21. Because the scales of pay had been revised from 1-1-1986, the recomputation of pension for such employees as had been granted the revised scales of necessity was limited to the same cut-off date. The reason stated by the Third Pay Commission cannot be said to be arbitrary or irrelevant. 21. Because the scales of pay had been revised from 1-1-1986, the recomputation of pension for such employees as had been granted the revised scales of necessity was limited to the same cut-off date. All that the impugned Memorandum No. 4056-F dated 25-4-1990 did was to recompute the benefits in favour of post 1-1-1986 retirees according to the existing formula as provided by the Memorandum No. 7530-F and No. 7531-F both dated 6-7-1988. The same formula continues to be applied to the pre-1986 retirees. The difference between pre-1986 pensioners and the post-1986 pensioners is only on account of the revision of pay scales and not account of failure of State Government to equitably apply the liberalised pension scheme formula. The quantum of the emoluments formed no part of the formula for grant of pension during 1986 to 1995.' In the case of Union of India v. P. N. Menon & Ors. (1994) 4 SCC 68 , at para 8 it was held as follows: '8. Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to "picking out a date from the hat", as was said by this Court in the case of D.R.Nim v. Union of India ( AIR 1967 SC 1301 : (1967) 2 SCR 325 : (1968) 1 LLJ 264 ) in connection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government.' In the case of State of Bihar & Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 , at para 17 it was held as follows: '17. We think that the contention is well founded. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government.' In the case of State of Bihar & Ors. v. Bihar Pensioners Samaj (2006) 5 SCC 65 , at para 17 it was held as follows: '17. We think that the contention is well founded. The only ground on which Article 14 has been put forward by the learned counsel for the respondent is that the fixation of the cut-off date for payment of the revised benefits under the two notifications concerned was arbitrary and it resulted in denying arrears of payments to certain sections of the employees. This argument is no longer res integra. It has been held in a catena of judgments that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration.' 18. From the facts of the case and from the pronouncements of the judgments that have been quoted above, apart from the fact that the writ petition has been filed after a considerable delay, no unreasonableness can be discerned from the actions of the respondent corporation in fixing the cut-off date to warrant any sort of interference by this Court. In the circumstances therefore, this writ petition is accordingly dismissed, but however, the parties are to bear their own cost.