1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 430 OF 2003 1. The All Goa Government Pensioners Association, a Society Registered under the Societies Registration Act, 1860 under No.227/1981, represented herein by its President, Shri Pascoal Patrick Cardozo, having office at House No.127 (C/o Mr. Raimundo Andrae), Bernardo Costa Road, Margao-Goa. 2. Shri Joao Nascimento Escolastico Araujo, son of Bernardo Araujo, aged 65 years, residing near Rosary Church, Fatorda, Margao-Goa. 3. Shri Antonio Sebastiao Dourado, aged 65 years, resident of House No.1663, Housing Board Colony, Vidhyanagar, Gogol, Margao-Goa. .. Petitioners Versus 1. State of Goa, through its Chief Secretary, having office at Secretariat, Panaji-Goa. .. Respondent. Mr. M. S. Sonak, Advocate for the petitioners. Mr. S. R. Rivonkar, Government Advocate for the respondent. 2 CORAM :- S. B. DESHMUKH & U. D. SALVI, JJ. DATE OF RESERVING THE JUDGMENT : 15 th September,2009 . DATE PRONOUNCING THE JUDGMENT : 15 th October, 2009. JUDGMENT : (PER U. D. SALVI, J.) 1. Sagacity of the State's decision in imposing cut off date as 01.01.2001 for giving benefit of pay fixation on the revised/ interim revised pay scales with fitment weightage of 40 % to only those employees in service as on 01/01/2001 and denying such benefit to all other employees, who resigned, retired, expired or ceased to be in service during the period from 01/01/1996 to 31/12/2000 vide order dated 11/04/2001 is brought in question in the present petition. 2. The petitioner No.1, the All Goa Government's Pensioner Association is a society registered under the Societies Registration Act, 1860 for the purposes of espousing the cause of the pensioners. Other two petitioners are pensioners, who have retired between 01/01/1996 and 31/12/2000. According to these petitioners, the recommendations of 4th Pay Central Commission came to 3 be accepted and implemented with effect from 01/01/1986; and subsequently when the State of Goa came into existence by virtue of Goa, Daman and Dieu State Organisation Act, 1987, the pay scales of certain posts/ categories of employees were revised; and on the representations made by the Goa government's employees association, there was a general pay revision resulting in grant of interim revised scales. 3. Later on, the petitioners state, the respondent State accepted the recommendation of 5th Central Pay Commission with effect from 01/01/1996 vide orders dated 27.10.1997 and 17.11.1997 with clarification that the revisions/ interim revisions effected after 01.01.1986 shall be ignored for the purpose of determination of the corresponding scales payable as per the recommendation of 5th Central Pay Commission. The petitioners further state that the Goa Government's Employees Association raised demand for protection of the last pay drawn by the Government employees in the revised/ interim revised pay scale as on 01/01/1996 with 40 % fitment weightage; and the respondent State accepted the said demand subject to the terms and conditions stipulated in the order dated 11/04/2001. In doing 4 so, the petitioners state, the respondent State excluded the past employees, who had retired during the period 01/01/1996 to 31/12/2000 from the benefit, which would accrue as a result of the pay protection with 40 % fitment weightage in the revised/ interim revised pay scale as on 01/01/1996. 4. The respondent State in order to achieve such exclusion of the said retirees from the benefit of pay protection with 40 % fitment weightage provided for cut off date as on 01.01.2001 and thereby classified the employees in two classes i.e. (i) who retired between 01/01/1996 and 31/12/2000 and (ii) who continued to be in the service on 01.01.2001. To justify this fixation of cut off date and consequent classification of the employees, the respondent State took a view that the employees, who received, retired, expired or ceased to be in service during the period from 01.01.1996 to 31.12.2000 had availed of more beneficial schemes, namely leave encashment facility and Time Bound Promotional Scale, than those who continued to be in service on 01.01.2001. 5. According to the petitioners, the alleged basis for 5 such classification of the employees is not only practically non-existent but cannot form any basis of reasonable classification, which being patently illegal, arbitrary and unconstitutional, particularly when the sole purpose of order dated 11.04.2001 is to uphold the pay protection to the State's employees with 40 % fitment weightage as on 01/01/1996 and both the set of employees, who had retired between the period from 01.01.1996 and 31.12.2000 and the employees in service during the same period, had equally enjoyed and availed of leave encashment facility and Time Bound Promotional Scale. According to the petitioners, the later class of employees stand to gain considerably by way of pay protection with 40 % fitment weightage just for the reason of they being in service as on 01.01.2001. Secondly, the petitioners state, the respondent State ignored the fact that the TBPS (Time Bound Promotional Scale) was applicable only to non-gazetted employees and the modifications brought about with (i) leave encashment scheme in place of leave encashment facility and (ii) Assured Career Progression Scheme in place of Time Bound Promotional Scale, were marginal and could never have formed the basis for discrimination. 6 6. The petitioners further state that financial implications of extending the pay protection with 40 % weightage to the said retirees for the respondent State would be virtually negligible in as much as maximum benefit to such retirees in the pension would be Rs.250/- per month each. Despite several representations made by the petitioners, the petitioners state, the respondent State did not make any amends and extend the benefit of pay protection with 40 % fitment weightage to them and, therefore, they had to knock the doors of the Court for justice. 7. The respondent State resisted the petition with the affidavit-in-reply dated 14.08.2009 sworn in by Mr. Michale D'Souza, Joint Secretary Finance, Government of Goa. Besides general denials, the respondent State explained that with the withdrawal of leave encashment facility and Time Bound Promotional Scale scheme and its replacement with less beneficial leave encashment scheme and Assured Career Progression Scheme as framed by the Central Government respectively, the employees, who retired, resigned, expired or ceased to be in service during the period from 01.01.1996 to 31.12.2000 formed different 7 class from those employees in service from 01.01.2001 as the former class of employees had already availed of the benefits of the said more beneficial schemes. As regards the teaching staff, the respondent State averred, they were covered under a different scheme namely part B scales and governed by special pay scales provided by UGC, AICTE or other special pay scales. The respondent State further revealed that the finances of the State had come under tremendous pressure mainly due to the implementation of 5th Pay Commission scales for the government employees and pensioners with effect from 01/01/1996 and, therefore, the Government had impounded the arrears in the G.P.F account of the employees and the arrears of the pensioners were paid in instalments. As such, the respondent State pleaded, the cut off date 01/01/2001 was not arbitrary, but result of timely well thought of financially viable decision; and no differential treatment was given to the homogeneous class of employees. 8. The respondent State averred that under leave encashment facility, the employees had an opportunity to get monetary benefit in lieu of their earned leave accumulated and the employees could disallow lapsing of their accumulated earned leave by availing the leave encashment 8 facility, and with the withdrawal of such facility, an employee either has to forgo further accumulation of earned leave or apply for leave. As per the Assured Career Progression Scheme, an employee, unlike as per T.B.P.S. (Time Bound promotional Scale Scheme), remained eligible for only two financial upgradations in his career. 9. The petitioner countered the affidavit-in-reply with the rejoinder dated 29.08.2009 and produced before us the statement to demonstrate the difference in pay fixation done under Time Bound Promotional Scheme and Assured Career Progression Scheme. The learned Advocate Mr. Sonak for the petitioner took us through the copies of the orders, memorandum, correspondence, representations and statements annexed to the petition in order to unfold the facts concerning the petitioners' case. He submitted that the petitioners, particularly retirees during the period between 01/01/1996 and 31/12/2000, and the employees, who continued to be in service after the said period formed one homogeneous class and the division between the two tried to be effected with cut off date 01/01/2001 is totally artificial and not based on any intelligible differentia having any rational nexus to the object/s sought to be achieved by the 9 order dated 11.04.2001. He further pointed out from the office memorandum dated 22.2.2001 annexure D collectively to the petition that Assured Career Progression Scheme which superseded the earlier Time Bound Promotional Scale Scheme is much wider in the application and its benefits are applicable to Group 'B', 'C' & 'D' employees and isolated posts in Group 'A', 'B', 'C' & 'D' unlike Time Bound Promotional Scale Scheme, which were applicable only to Group 'C' and 'D' Government employees. Learned Advocate Mr. Sonak for the petitioners quoting the words of wisdom from para Nos.2, 5, 26, 29, 31 and 42 of the landmark judgment in D.S. Nakara's case – 1983(1)SCC 305 D.S. Nakara and Others Versus Union of India, questioned the classification of employees based on fortuitous circumstance of retirement before or subsequent to the date, not fixed on any rational principle and done for denying to one class of employees the benefits of pay fixation due to them. 10. The argument of learned Government Advocate Mr. Rivonkar for the State was straight and simple to such an extent as to lure any naviete to simply accept the distinction made between the employees on the basis of their retirement prior to and after the cut off date. He submits that the State 10 by fixing the cut off date has brought into existence one group of employees, who retired before the cut off date and another group of employees, who did not. Reading from the pension rules, he further submitted that the pensioners were not entitled to any pay much less the pay fixation no sooner such pensioners ceased to discharge their duties and as such the classification of the employees done on the basis of the ceasation in service was the rational classification made to achieve the object of the impugned order dealing with the pay fixation of employees in service. He further submitted that the persons in employment unlike the pensioners were bound by rules of transfer and/or posting and, therefore, formed a distinct class clearly distinguishable from the petitioners. Such difference in conditions (working conditions) called for differential treatment and this premise has been upheld by the Apex Court in Lieutenant E. IACATS's case -(1997)7 SCC 334, Union of India and others Versus Lieutenant E. IACATS. He placed reliance on R. Sarangpani's case – (2000) 4 SCC 335 Union of India and another versus R. Sarangpani and others, wherein the Apex Court did not see any violation of the principles of equality under Article 14 in the matter of classification of employees as technical and non-technical persons. 11 11. Admitting the fact of the instances of the employees in service as on 01/01/2001 having taken benefits of Time Bound Promotional Scale Scheme and Leave Encashment Facility, the learned Advocate Mr. Rivonkar for the State submitted that such instances are bound to occur as a result of overlapping due to different dates of appointment, but there has been no malafides involved in prescribing the cut off date. In his view, the impugned order was a balanced and reasoned order making a rational distinction between the groups of employees. He, therefore, urged for the dismissal of the petition. 12. A copy of the order dated 31.7.1996 passed by the respondent State reveals that following the revision of scales on acceptance of recommendation of 4th Central Pay Commission with effect from 01/01/1986 there was further revision of pay scales of certain posts in Directorate of Accounts, Secretariat, Mamlatdar, B.D.O., Goa Civil Services Cadre etc. when the Goa attained a Statehood in 1987; and this pay revision of certain class of employees became cause for Goa Government Employees Association to make further representations for general revision of pay scales in order to 12 maintain parity with Secretariate staff and others; and after long discussion and careful examination, the State decided to temporarily upgrade the pay scales of existing employees, save and except of those, who had already benefited due to the previous revision subsequent to the implementation of recommendation of 4th Central Pay Commission, pending the decision on the basis of 5th Central Pay Commission Report. 13. A copy of the order dated 27.10.1997 at annexure B to the petition further reveals that the Government of Goa allowed its employees to take benefits of revised pay scales as per 5 th Central Pay Commission recommendations on par with the Central Government employees with effect from 01.01.1996. It was clarified in the said order that pay fixation in the proposed scales (5th pay commission) shall be done with reference to the pay / pay scales of 4th Pay Commission existing as on 01/01/1996 and not with reference to revised/ interim revised scales given by Goa Government after 01/01/1986. A fact, therefore, clearly emerges that those who were in service on 01.01.1996 became eligible to the pay fixation in the proposed scales as per 5th pay commission with reference to the pay/ pay scales of the 4th pay commission existing on that date. 13 14. A glance at the office memorandum dated 05.07.1998 and 22.02.2001 at Annexure D collectively is sufficient to disclose the wide applicability of Assured Career Progression Scheme in as much as the Assured Career Progression Scheme is applicable to Group 'B', 'C', 'D' employees and isolated posts in Group 'A', 'B', 'C' and 'D' unlike Time Bound Promotional Scale Scheme. It further shows that first financial upgradation under Assured Career Progression Scheme has been allowed after 12 years of regular service and second upgradation after 12 years of regular service from the date of first financial upgradation. Learned Counsel Mr. Sonak for the petitioner further pointed out from the statement annexed to the rejoinder, how the employee stands to gain in Assured Career Progression Scheme in terms of the enhanced pay fixation. Keeping aside this factual aspect, it is necessary to answer more pertinent question as to whether classification based on fortuitous circumstance on retirement before or subsequent to 01.01.2001 cut off date fixed in the impugned order is violative of Article 14 or not. 15. State has tried to justify such classification 14 apparently for the reason that the employees, who resigned, retired, expired or ceased to be in service during the period from 01.01.1996 to 31.12.2000 had availed of more beneficial schemes namely the leave encashment scheme and Time Bound Promotional Scale scheme and, therefore, such employees form a different class from the employees in service as on 01.01.2001. This reason is voiced in the impugned order dated 11.4.2001. It is not in dispute that there are instances of employees in service as on 01.01.2001, who had taken advantage of the previous schemes namely the leave encashment scheme and Time Bound Promotional Scale Scheme. According to learned Advocate Rivonkar such instances have been the result of the overlapping due to different dates of appointment. On this background, how far such reasoning given in the order is justifiable, is the next question, which falls for consideration. 16. In words of the Hon'ble Apex Court, Article 14 of the Constitution is a founding faith of the Constitution and, therefore, it must not be subjected to a narrow pedantic and lexicographic approach. Principle of reasonableness, both legally and philosophically, is essential element of equality. Classification of the men done, must not be arbitrary, but 15 must be rational so much so that it must have a reasonable relation to the object of legislation/ executive action. 17. The Hon'ble Apex Court reiterated the test required to be passed by any such classification in words of Chandrachud C.J. in Special Court's Bill 1978, AIR 1979 SC 478 as under : “In order to pass the test two conditions must be fulfilled; namely (i) that classification must be founded on an intelligible differentia, which distinguishes those that are grouped together from others (ii) that differentia must have a rational relation to the object sought to be achieved by the Act.” 18. In the instant case, only differentia i.e. comprehensible from the impugned order dated 11.4.2001 is retirement/ cessation of service dividing one group of employees, who ceased to be in service between 01.01.1996 and 31.12.2000 and had availed of more beneficial schemes from those who continued to be in service thereafter. In doing so, it is conveniently forgotten that the object of the impugned order was to protect the last pay drawn by the Government employees in revised/ interim revised pay scales 16 as on 01.01.1996 and to fix the pay accordingly following acceptance of recommendations of 5th Central Pay Commission with reference to pay/ pay scales of the 4th Pay Commission existing as on 01.01.1996 with 40 % fitment weightage. The State also conveniently overlooked the fact that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer to make payment but it is a payment for the past services rendered and that it is social welfare measure rendering the socio, economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age, they would not be left in lurch. Briefly speaking, services rendered by the said retirees during the said period had created a vested right to the pension due to them with reference to their pay scales- revised or otherwise. 19. In the instant case, on acceptance of recommendations of 5th Central Pay Commission with the assurance that pay fixation would be done with reference to pay / pay scales of 4th Pay Commission existing as on 01/01/1996, the persons in employment during the period from 01.01.1996 to 31.12.2000 continued to remain entitled to pay fixation in terms of the order dated 27.10.1997. If such 17 pay fixation was in relation to any prospective date after 31.12.2000, the things could have been different for the government employees, who ceased to be in service during the period from 01.01.1996 to 31.12.2000. The State accepted the demand of Goa Government Employees Association to protect the last pay drawn of the government employees in revised/ interim revised pay scales as on 01.01.1996 with 40 % fitment weightage and, therefore, the classification sought to be made on the basis of cut off date is arbitrary and unreasonable in as much as such classification is artificial without there being any rational relation to the object sought to be achieved by the said order. Moreover, during the said period from 01.01.1996 to 31.12.2000, the Government employees had worked and had made themselves eligible for getting the payment for the proportionate past services rendered by them in terms of pensionary benefits accruable on notional fixation of their last pay, which they are seeking in this petition. 20. In Lieutenant E. IACATS's(supra) case the differential treatment in retirement age for different categories of nursing staff namely Military nursing service (local), Military nursing service (regular) and Military 18 nursing service (civilian) was upheld on the ground of different service conditions for different categories of staff and such classification was held to be non-violative of Article 14 of the Constitution of India. 21. In R. Sarangpani's case (supra) differential treatment to the two sets of employees - one technical and the other non-technical based on nature of their jobs qualifications or appointment and training period was upheld. It was further held by the Apex Court in the said case that in view of the nature of qualifications, posts, functions and duties, no equality in the dates of accrual of the increments could ever have been claimed by the technical persons comparing themselves to the non-technical persons, by invoking article 14 of the Constitution and the Government's move to bring about equalisation in the matter of commencement of their increments was obviously by way of sheer concession and not as a matter of right and, therefore, it was open to the Government to decide having regard to the budgetary provisions as to what extent it could go and whether it could fix the cut off date co-terminus with the commencement of the 4th pay commission. Ratio in both these cases on the given set of facts and circumstances, 19 therefore, does not find application in the instant case. 22. As regards the financial implications it needs only to be mentioned that if justice is to be done by ironing out the inequalities before law, no cost for it is higher than the purpose it serves. 23. In the result, it needs to be concluded that the cut off date 01.01.2001 in the order dated 11.4.2001 is wholly arbitrary and violative of Article 14 of the Constitution of India. Rule is made absolute with directions to the respondents to strike down the imposition of cut off date 01.01.2001 in the order dated 11.04.2001 and in consequence thereof to pay to the petitioners and other similarly placed retirees the pensionary benefits by providing pay protection with 40 % fitment weightage thereon as provided by the order dated 11.04.2001. No order as to costs. S. B. DESHMUKH, J. U. D. SALVI, J. SMA