CWP No. 4283 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4283 of 2010 Date of decision: 07.04.2011 Krishna Devi wife of Late Sh. Jailly Ram ......PETITIONER VERSUS State of Haryana and another ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. S.K.Monga, Advocate, for the petitioner. Mr. Anil Rathee, Addl. A.G. Haryana, for respondent No. 1. Mr. Ashwani Bura, Advocate, for Mr. Rameshwar Malik, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. Sh. Jailly Ram, husband of the petitioner, was appointed as a Baildar on 01.05.1986 in the Haryana State Minor Irrigation and Tubewell Corporation (hereinafter referred to as 'the Corporation')-respondent No. 2. His services stood regularized w.e.f. 31.03.1993 and continued to serve the Corporation. A decision was taken by the Corporation to retrench its employees which process started w.e.f. 01.03.2000 and continued up to 01.03.2005. The husband of the petitioner was retrenched on 30.06.2002. CWP No. 4283 of 2010 2 The retrenchment compensation, in accordance with law, was duly paid to him. Unfortunately, he expired on 29.11.2002. Government of Haryana had issued instructions dated 06.02.2001 in the form of guidelines regarding surplus and retrenched employees of the State Public Sector and Cooperative Sector Undertakings wherein the process and the procedure to be followed due to restructuring and rationalization in various departments of the Government as well as the Public Sector and Cooperative Sector Undertakings for retrenchment and re-employment of such employees was laid down. According to para-4 clause (iii) thereof, the employees of the Public Sector and Cooperative Sector Undertakings, who were to be retrenched, were allowed relaxation in the matter of age for applying to posts to be filled up by Government Departments/Public Enterprises up to a maximum of 50 years for all categories of employees. Vide instructions dated 18.05.2001, the Government amended the instructions dated 06.02.2001 and provided that 25% of future vacancies in direct recruitment in Group 'C' and 'D' in Government Departments and State Public Sector and Cooperative Sector undertakings be reserved for retrenched employees of Government Departments and State Public Sector and Cooperative Sector Undertaking. A retrenched employee was to be eligible to apply for such vacancy within three years from the date of his retrenchment. This provision of reservation for retrenched employees was to remain operative for a period of five years from the date of issue of the policy. On 21.06.2006, the State of Haryana formulated a Scheme regarding re-employment of regular retrenched Group 'C' and 'D' employees of Boards/Corporations/Public Sector Undertakings etc., who were retrenched during the period commencing from 01.03.2000 to CWP No. 4283 of 2010 3 01.03.2005 against the vacancies of direct recruitment of Group 'C' and 'D' available in the Boards/Corporations/Public Sector Undertakings/Co- federations/Urban Local Bodies/Panchayati Raj including the departments of the State Government within a period of six months. This was, however, subject to the conditions laid down therein. As per Clause 3 thereof, the employees who were less than or 55 years of age as on 18.05.2006 were to be considered for adjustment under the scheme. As per Clause 10, this policy was in supersession of any other policy in existence and would come into effect from 18.05.2006. A notification dated 01.02.2007 was issued by the State of Haryana extending the policy dated 21.06.2006 to Group 'A' and 'B' retrenched employees also. In addition to this, compensation was also granted to retrenched regular employees of Group 'A', 'B', 'C' and 'D' categories. As per Clause (i), ` 2.5 lacs to the families of the retrenched employees who had expired after retrenchment and who would otherwise have been eligible for adjustment on 18.05.2006 i.e. the date of application of the policy for adjustment of the retrenched employees and as per Clause (ii), ` 1 lac to those retrenched employees who were over 55 years of age and less than 58 years of age on 18.05.2006. Notification dated 01.02.2007 was amended vide another notification dated 28.11.2008 wherein Clause (ia) was inserted which extended the benefit of ` 2.5 lacs to the family of retrenched employee who was found eligible for adjustment as per the policy and was issued appointment letter but expired before he could join and Clause (iia) was also inserted which granted ` 1 lac to the family of retrenched employee who was over 55 years of age and less than 58 years of age on 18.05.2006 but expired after retrenchment. As the husband of the petitioner when retrenched from service on 30.06.2002 was 56 years old, he was not entitled to and, thus, was CWP No. 4283 of 2010 4 denied the benefit of financial assistance as he was more than 58 years of age as on 18.05.2006 leading to the challenge to the condition imposed in Clause (iia) of the notification dated 28.11.2008 (Annexure P-3). The petitioner has also challenged notification dated 21.06.2006 (Annexure P- 1) and notification dated 01.02.2007 (Annexure P-2) on the ground that the benefit of the policy/scheme has been restricted up to the age of 58 years as on 18.05.2006 and this cut off date of 18.05.2006 is arbitrary and violative of Article 14 of the Constitution of India as the same is not based on an intelligible differentia nor does it have any rational nexus to the object sought to be achieved by the policy which is primarily beneficial in nature and by introducing this artificial cut off date, hostile discrimination has resulted which is violative of Article 14 of the Constitution of India and, therefore, liable to be declared ultra-vires. Learned counsel for the petitioner submits that fixing a cut off date of 18.05.2006 for providing financial assistance to the employees is arbitrary and the same denies the benefit of financial assistance to only those retrenched employees who were retrenched between 01.03.2000 to 01.03.2005. The actual date of retrenchment should have been taken as the basis for determining the eligibility of legal heirs of such retrenched employees for getting the financial assistance rather than providing an artificial date for eligibility for entitlement of benefit. On this basis, he prays for the declaration of the cut off date of 18.05.2006 to be unreasonable and arbitrary and prays for issuance of a writ of mandamus for extending the benefit to all retrenched employees irrespective of their age on the date of their retrenchment or on the date of issuance of the policy. On the other hand, counsel for the State justifying the fixation of the date of 18.05.2006 in the policies dated 21.06.2006, 01.02.2007 and CWP No. 4283 of 2010 5 28.11.2008 submits that the first policy which was issued by the State of Haryana dealing with the surplus and retrenched employees of the State Public Sector and Cooperative Sector Undertakings in the light of their restructuring and rationalization was on 06.02.2001 (Annexure R-2). There it was provided that relaxation in age will be allowed to the retrenched employees of the State Public Sector and Cooperative Sector Undertakings up to a maximum of 50 years for all categories of employees for applying to the posts to be filled up by the Government Departments/Public Enterprises. Thereafter, on 18.05.2001, an amendment was carried out in the instructions dated 06.02.2001 where further a benefit was granted to the retrenched employees, according to which, 25% of future vacancies in direct recruitment in Group 'C' and 'D' in Government Departments and State Public Sector and Cooperative Sector Undertakings were reserved for retrenched employees. This provision of reservation for retrenched employees was to remain operative for a period of five years from the date of issue of the policy. This policy, thus, continued for a period of five years i.e. up to 17.05.2006. Thereafter, policy dated 21.06.2006 was issued which fixed the age as 55 years as on 18.05.2006. There is consistency with regard to the age for granting employment under the policies since the earlier policy expired on 17.05.2006 after a period of five years from initial policy i.e. 18.05.2001. The policy dated 21.06.2006 was made applicable w.e.f. 18.05.2001. In the subsequent policies, where the scheme was liberalized i.e. vide instructions dated 01.02.2007 and 28.11.2008, the cut off date of 18.05.2006 was continued. The rational basis for continuation of the policy is, thus, according to him, justified and there is no inconsistency as far as the policy of the State is concerned. He, accordingly, prays for dismissal of the writ petition as the same is devoid of merit. CWP No. 4283 of 2010 6 We have heard counsel for the parties and have gone through the records of the case. The first policy specifically dealing with the surplus and retrenched employees of State Public Sector and Cooperative Sector Undertakings is dated 06.02.2001 which provided for relaxation in age up to a maximum of 50 years for all categories of retrenched employees for applying for the posts to be filled up by Government Departments/Public Enterprises. Thereafter, on 18.05.2001, reservation was provided to the extent of 25% of future vacancies in direct recruitment in Group 'C' and 'D' in Government Departments and State Public Sector and Cooperative Sector Undertakings for retrenched employees. This reservation for retrenched employees remained operative for a period of five years from the date of issue of the policy i.e. 18.05.2001. This reservation, thus, came to an end on 17.05.2006. Thereafter, the State Government framed a new scheme/policy dated 21.06.2006 in supersession of its earlier policy dated 18.05.2001 to appoint, by way of adjustment, the regular retrenched employees of the Boards/Corporations/Public Sector Undertakings/Co- federations/Urban Local Bodies/Panchayati Raj etc. and Government Departments who were retrenched during the period 01.03.2000 to 01.03.2005. It further stipulated that employees, who are less than 55 years of age as on 18.05.2006, shall be considered for adjustment. The reservation, which was earlier 25%, was increased to 100% and all vacancies of direct recruitment in Group 'C' posts and Group 'D' posts were kept aside for reservation amongst the retrenched employees. This policy was made effective from 18.05.2006 which clearly indicated that the intention of the Government was to continue with the earlier policy with additional benefits apart from increasing the eligibility age for applying for CWP No. 4283 of 2010 7 adjustment in tune with the time elapsed. Under the earlier policy, the maximum age for applying for the posts was 50 years as on 18.05.2001 which was increased to 55 years as on 18.05.2006 in the policy dated 21.06.2006. Notification dated 01.02.2007 extended the policy dated 21.06.2006 of retrenched employees to Group 'A' and 'B' also and further introduced compensation of ` 2.5 lacs to the families of retrenched employees who had expired after the retrenchment and who were otherwise eligible for adjustment on 18.05.2006 and ` 1 lac to those retrenched employees who were over 55 years of age and less than 58 years of age as on 18.05.2006. The reason for fixing 58 years of age as on 18.05.2006 is not far to be found as beyond the age of 58 years, an employee cannot continue in service. Instructions dated 28.11.2008 while amending the instructions dated 01.02.2007 further liberalized the grant of compensation and extended the benefit of ` 2.5 lacs to the families of the retrenched employees who were eligible for adjustment as per the policy and were issued appointment letters but expired before they could join and ` 1 lac to the families of the retrenched employees who were over 55 years of age and less than 58 years of age on 18.05.2006 but expired after retrenchment. The cut off date, as fixed by the respondent-State, has been fully justified as the same is based on and is in continuation with the earlier policy decision. It has not been introduced without any basis in the notifications dated 21.06.2006, 01.02.2007 and 28.11.2008 but is a continuing process from the earlier policies dated 18.05.2001 (Annexure R- 1) and 06.02.2001 (Annexure R-2). In any case, whenever a policy is framed by the Government there has got to be a cut off date fixed for implementation of the same and there are various reasons which may weigh with the Government while CWP No. 4283 of 2010 8 fixing such date of application and implementation of a particular policy. It would be the exclusive domain of the executive in determining such cut off date and the Courts would be reluctant and refrain from interfering in such decisions. Courts in exercise of its limited jurisdiction of judicial review would not interfere unless the decision is totally arbitrary, without any basis and intelligible differentia or without a rational nexus to the object sought to be achieved by such policy. There is no hostile discrimination nor lack of intelligible differentia or basis for fixing 18.05.2006 in the policies under challenge as spelt out above. There may be certain cases of hardship but such isolated cases cannot be made the basis for nullifying the decision of fixing a cut off date by the executive under a policy decision for which there is a reasonable justification. In view of the above, we do not find merit in the challenge posed to the notifications dated 21.06.2006, 01.02.2007 and 28.11.2008 (Annexures P-1 to P-3) and, accordingly, reject the same. In the written statement filed by the State in the present case, it has been stated in para 5 of the preliminary submissions that the issue of retrenched employees who had already attained the age of superannuation before framing of policy dated 21.06.2006 or were going to attain the age of superannuation shortly was not before the Government. The facts, as have come to light and have been highlighted above, do indicate that the Government has not addressed or taken note of the grievances of the unfortunate retrenched employees or families of those who have expired and are not covered by the policy. It is hoped that the Government would address itself to the grievances of the left out employees keeping in light their hardships and of their families and take such appropriate decisions CWP No. 4283 of 2010 9 which the Government may deem fit and appropriate within a reasonable time. The present petition is disposed of with above observation. ( RANJAN GOGOI ) ( AUGUSTINE GEORGE MASIH ) CHIEF JUSTICE JUDGE April 07, 2011 pj