IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.5376/2008 Reserved on: 28.7.2010 Decided on: 3.9. 2010 _____________________________________________ Surjit Kaur. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents: Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Material facts necessary for the adjudication of this petition are that petitioner joined the services of respondent-Department on 4.5.1960, as Junior Basic Trained Teacher. She was given the benefit of Trained Graduate Teacher for the purpose of fixation of pay etc. under the Government orders. She was inducted as Trained Graduate Teacher since 1978 after she acquired qualification of B.Ed. She superannuated on 30.9.1994. She was paid gratuity amounting to Rs. 60,501/- vide communication dated 25.11.1994. Respondent-State has issued memorandum dated 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 15.5.1997 whereby dearness allowance as admissible to the employees as on 1.4.1993 (linked to AICPI level 1201.66) was to be treated as dearness pay for reckoning emoluments for the purpose of death cum retirement gratuity. However, in the memorandum cut-off date, i.e. 1.4.1995 has been prescribed for the purpose of benefit of notification dated 15.5.1997. 2. Mrs. Ranjana Parmar has strenuously argued that the cut-off date, i.e. 1.4.1995 is illegal, arbitrary and unconstitutional being violative of Articles 14 and 16 of the Constitution of India. She further contended that all the retirees constitute homogeneous class and they could not be discriminated against on the basis of cut-off date, i.e. 1.4.1995. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the memorandum Annexure A-3 dated 15.5.1997 has been issued by following Punjab Pattern. He further contended that some cut-off date was required to be fixed/prescribed by the State for the purpose of extending facilities to its employees and the same cannot be termed as illegal or arbitrary. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner has retired after attaining the age of superannuation on 30.9.1994. The memorandum has been issued on 15.5.1997 and the dearness allowance as admissible to the employees as on 1.4.1993 was directed to be treated as dearness pay for reckoning emoluments for the purpose of death cum 3 retirement gratuity under the Central Civil Services (Pension) Rules, 1972. However, the benefits of this memorandum have been made applicable qua those employees, who have already retired/died on or after 1.4.1995. In other words, the benefit of memorandum has been denied to its employees, who have retired before 1.4.1995. It is settled law by now that the date required to be fixed by the employer must have some rationale/justification. The justification given by the respondent-State in the instant case is that memorandum has been issued strictly by following the Punjab Pattern for the purpose of pay scales and treatment of dearness allowance as dearness pay for reckoning emoluments. The learned counsel for the petitioner could not convince the Court how the cut-off date, i.e. 1.4.1995 prescribed is discriminatory or arbitrary. The persons, who have retired before 1.4.1995 constitute distinct and separate class and cannot claim parity with those incumbents who have retired or died after 1.4.1995. The employer has to fix some date for the purpose of release of pay scales and extending other facilities etc. to its employees after taking into consideration all the attending circumstances, i.e. financial health, administrative and other exigencies. 6. Their Lordships of the Hon’ble Supreme Court in Government of Andhra Pradesh and others versus N. Subbarayudu and others, (2008) 14 SCC 702 have held that cut- off date is an executive function based on several factors like economic conditions, financial constraints, administrative and other circumstances. Their Lordships also held that rigidity of 4 “D.S. Nakara’s” case has considerably been watered down and their Lordships have further held that even if no reason is forthcoming from executive for fixation of a particular date, it should not be interfered by court unless cut-off date leads to some blatantly capricious or outrageous result. Their Lordships have held as under: “5. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab & Ors. Vs. Amar Nath Goyal & Ors., (2005) 6 SCC 754). 6. No doubt in D.S. Nakara & Ors. vs. Union of India 1983(1) SCC 305 this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara's Case (supra), as observed in para 29 of the decision of this Court in State of Punjab & Ors. vs. Amar Nath Goyal & Ors. (supra). 7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection. 8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, 5 (unless it is shown to be totally capricious or whimsical) vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368, Union of Indian & Anr. vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide para 5), Ramrao & Ors. vs. All India Backward Class Bank Employees Welfare Association & Ors. 2004 (2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result.” 7. Accordingly, the cut-off date, i.e. 1.4.1995 fixed/prescribed by the respondent-State is neither arbitrary/ irrational nor unreasonable. 8. Consequently, there is no merit in the petition and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 3.9. 2010 *awasthi*