IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6511 of 1989 (O&M) Date of decision: 23.09.2011 Bakshish Singh (since deceased), through his LRs and others. ....Petitioners versus State of Punjab, through the Secretary to Government, Punjab, Irrigation and Power Department, SCO No.333-334, Sector 35-B, Chandigarh, and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. S.P. Thukral, Advocate, for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. All the petitioners had two reliefs to claim: (i) the payment of cash equivalent to leave salary for the leave standing to their credit subject to a maximum of 240 days; and (ii) the salary of two months which had been collected from the death-cum- retirement gratuity in lieu of family pension. 2. The learned counsel for the petitioners states that there is no record on which the petitioners could prove that the deceased had 240 days of leave accumulated which could be encahsed. The State Civil Writ Petition No.6511 of 1989 (O&M) - 2 - would file a counter stating the entitlement to leave encashment sought through the Government circular dated 25.01.1978 was effective only for persons, who were retiring on superannuation on or after 31.01.1978. The basis on which the petitioners make a claim, namely, the circular is produced by the Government which says that the provision for leave encashment upto 240 days came through recommendation of the 3rd Punjab Pay Commission and it is specifically sets out a cut-off date. Admittedly, all the petitioners have retired by the time when the notification was issued and, therefore, it shall not be possible to give them the benefit even if it were to be assumed that the petitioners had to their credit 240 days of leave which had not been availed during their respective service. The learned counsel refers to me a judgment of this Court in R.P. Khosla, Former Judge, Punjab and Haryana High Court, Chandigarh Versus the Union of India and others-1987(5) Service Law Reporter 486, that held that a claim for leave encashment rejected on the ground that such provision came only subsequently and applied only to persons, who had retired after 30.09.1977, was untenable. The Bench of this Court applied D.S.Nakara Versus Union of India-1983 (1) SCC 305, to hold that the retirees constituted a single homogeneous class and a benefit, such as, leave encashment, cannot be denied by the only fact that a person retired before the particular date. Civil Writ Petition No.6511 of 1989 (O&M) - 3 - 3. The petitioners' plea that they had 240 days of leave has not been denied anywhere and their entitlement is sought to be denied only on the ground that the benefit of leave encashment itself arose only after the 3rd Pay Commission recommendation. If the benefit came through a notification dated 24.11.1988 for the first time, the writ petition filed immediately thereafter cannot be said to be belated. The petitioners shall, therefore, be entitled to encashment of earned leave in terms of the judgment, referred to above. 4. As regard the second claim relating to the refund of two months' salary, the reliance of the petitioners was on the Government's notification issued on 14.04.1978 to waive the requirement of two months' pay for claiming the benefit under the Family Pension Scheme. Admittedly, the petitioners are beneficiaries of the scheme but they would say that the scheme of the year 1964 which was made applicable by compelling them to surrender two months' salary from gratuity wherever it was applicable was later withdrawn and between the same class of pensioners, there cannot be any discrimination. The learned counsel refers to the judgment of the Hon'ble Supreme Court in N.L.Abhyankar and others Versus Union of India -AIR 1984 Supreme Court 1247, to contend that any such discrimination will offend the principle laid down by the Hon'ble Supreme Court in D.S.Nakara's case (supra) the judgment in Abhyankar's case. The Hon'ble Supreme Court was considering the issue of Judges of the Civil Writ Petition No.6511 of 1989 (O&M) - 4 - High Court and the Supreme Court being found entitled to pensionary benefits under the amendment Act of 1976. Denial of pension to a person, who had retired earlier, was found to be discriminatory. When the issue of entitlement to pension was discriminated against, the Court found that the pensioners being a homogenous class, discrimination was not possible. Here, there is no denying the fact that the petitioners are all pensioners and they are receiving the pensions. The manner of how the pension could be claimed and what contribution are necessary are invariably brought through the service conditions. In this particular case, certain amounts were to be paid, but later withdrawn through yet another notification, but effective from a particular date. It cannot be stated that any discrimination was practiced. Bringing a cut-off date for extending pensionary benefits and providing for particular scales of pension are bound to have variations and that has been recognized as constituting exceptions to Nakara's case through several decisions. It is, therefore, not possible to accommodate the petitioners' plea to refund the amount already collected by them under the scheme of the year 1964. 5. Although there is a prayer in the writ petition for production of records, the Government did not think it necessary to produce appropriate evidence of whether the petitioners had 240 days of accumulated leave or not. I will make an adverse inference against the State and proceed to impose the benefit to the petitioners Civil Writ Petition No.6511 of 1989 (O&M) - 5 - as sought for. 6. The writ petition is partly allowed and encashment of leave to the extent mentioning in the Government's circular, dated 25.01.1978 shall be permitted to the respective petitioners and the same be paid with interest at 6% from the date of the writ petition till the date of payment. (K. KANNAN) JUDGE 23.09.2011 sanjeev