(1) wp5284-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5284 OF 2011 Association of College and University Superannuated Teachers (Maharashtra), A Society registered at No. MAH-853/2009, under the provisions of the Societies Registration Act, having its Head office at 20, Sawarkar Nagar, N-5 (South), CIDCO, Aurangabad through its President and Convener, Principal Dr. M.A. Wahul. PETITIONER VERSUS 1. Union of India, through its Under Secretary, Ministry of Finance, Department of Education, New Delhi. 2. The State of Maharashtra, through its Secretary, Higher and Technical Education Department, Mantralaya, Mumbai. 3. The Director, Higher Education, Maharashtra State, Pune. 4. The University Grants Commission, Bahadurshah Jafar Marg, New Delhi. RESPONDENTS ..... Mr. D.V. Soman, advocate for the Petitioner. Mr. Alok Sharma, Assistant Solicitor General for Respondent Nos. 1 and 4. Mr. , A.G.P. for the Respondent-State. ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 26th SEPTEMBER, 2011 (2) wp5284-11 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. Rule. Rule made returnable forthwith and heard finally, by consent. 2. By way of present petition, the petitioner seeks the implementation of the Government Resolution dated 21st August, 2009 whereby maximum amount of gratuity from Rs. 5 lacs to Rs. 7 lacs is fixed for the Government employees including the College and University Teachers, payable with effect from 1st September, 2009. 3. The Government had earlier issued a Resolution dated 5th May, 2009. By the said Resolution, in view of the recommendations of the 6th Pay Commission, the Government has raised the ceiling on the maximum amount of Retirement and Death Gratuity from Rs. 3.50 lacs to Rs. 5 lacs w.e.f. 1st June, 2006. Thereafter, vide the next Govt. Resolution dated 21st August, 2009, the ceiling was raised from Rs. 5 lacs to Rs. 7 lacs but only w.e.f. 1st September, 2009. 4. All the present petitioners have been (3) wp5284-11 superannuated between the period from 1st January, 2006 to 1st September, 2009 and, therefore, in their case, the earlier Government Resolution fixing the ceiling to Rs. 5 lacs is applicable. They, therefore, submitted that next of the Resolution raising the ceiling to Rs. 7 lacs be made applicable to them. 5. The basic grievance of the petitioners, in short, as under. 6. The State has discriminated between the employees who had been superannuated or retired during the period from 1st January, 2006 to 31st August, 2009 and the employees who had retired thereafter. According to them, this discrimination is unreasonable since the Central Government, in view of the recommendations of the 6th Pay Commission, has raised the ceiling of the gratuity to Rs. 10 lacs. The State Government, however, though earlier raised the ceiling to Rs. 5 lacs, gave a discriminatory treatment to the present petitioners who are superannuated or retired during the period from 1st January, 2006 to 31st August, 2009. It is further emphatically contended that pension includes gratuity (4) wp5284-11 and since there cannot be any discrimination in grant of pension, the act of the State Government making a sub-class of the Government employees who retired between 1st January, 2006 to 31st August, 2009 and the employees who retired thereafter, is violative of Article 14 of the Constitution of India. 7. Mr. D.V. Soman, learned counsel for the petitioners, submits that Clause 17 of Article 366 of the Constitution of India defines "pension" as inclusive of gratuity. Clause 17 reads as under : "(17) "pension" means a pension, whether contributory or not, of any kind whatsoever payable to or in respect of any person, and includes retired pay so payable, a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, of subscriptions to a provident fund." 8. He further adverted attention of the Court to Sub-Rule 37 of Rule 9 of the Maharashtra Civil Services (Pension) Rules, 1982 (for short, "the MCS (5) wp5284-11 Rules") which also declares that pension includes gratuity. 9. In the circumstances, reliance is placed on the ratio laid down in the following cases. (i) D.S. Nakara and others vs. Union of India (1983) 1 S.C.C. 305 (ii) U.P. Raghavendra Acharya and others vs. State of Karnataka and others (2006) 9 S.C.C. 630 (iii) Union of India and another vs. SPS Vains (Retd.) and another AIR 2008 SC (Supp) 598 (iv) Atmaram G. Mohite vs. State of Maharashtra and others 2004 (2) Mh.L.J. 729 10. The ratio of "D.S. Nakara" (supra) would show that when the liberalized pension formula was made applicable prospectively to the employees who retired on or after 31st March, 1979, in case of the Government servants who were covered by the Central Civil Services (Pension) Rules of 1972, the employees who retired prior to the said specific date were not entitled to the pension of liberalized pension formula. In the situation, it was held that making of classification and further classification must be for (6) wp5284-11 a valid purpose and over-classification may be hit by Article 14 of the Constitution. In that case, the State could not forward any valid reason for making a sub-classification. 11. In the case of "U.P. Raghvendra Acharya & others" (supra), inter alia the ratio in the case of B.S. Nakara was relied. It was also a case where a sub-classification was made in revising the pension of the employees superannuated during the period between 1st January, 1996 to 31st March, 1998 and who had retired thereafter. The same was also held as amounting to deprivation of the pensionary benefits which would ultimately lead to reduction of pension with retrospective effect and it, therefore, held violative of Articles 14 and 16 of the Constitution. 12. In the case of "Union of India and another" (supra), the date of retirement in grant of pension was held to be not on rational basis. A disparity was created by notionally stepping up the pay of the Brigadiers who retired after 1st January, 1996. In that view of the matter, holding the act as discriminatory, benefit of the increased pension was (7) wp5284-11 made prospectively available from the date of filing of the petitioner to the petitioner who was aggrieved by such discrimination. 13. In the case of "Atmaram G. Mohite" (supra), a classification of pensioners on the basis of date of retirement led to the denial of pension to the employees who retired after a fixed date, was held to be in violation of Article 14 of the Constitution. 14. It is, however, required to be borne in the present case that we are not dealing with a discrimination in grant of pension but in raising of ceiling in grant of gratuity to the employees who had retired during the period between 1st January, 2006 to 31st August, 2009 and the employees who had retired thereafter. The first of the Government Resolution dated 5th May, 2009 shows that in view of the revision in the pay scale, due to implementation of the recommendations of 6th Pay Commission, the ceiling on the Death-cum-Retirement Gratuity was raised from Rs. 3.50 lacs to Rs. 5 lacs w.e.f. 1st January, 2006. The next Government Resolution dated 21st August, 2009 raised the ceiling on Gratuity to (8) wp5284-11 Rs. 7 lacs w.e.f. 1st September, 2009 i.e. it was made applicable prospectively. It was merely a raising of ceiling from Rs. 5 lacs to Rs. 7 lacs and not a revision in the rate of gratuity payable to the employees. 15. The chart/list submitted by the petitioner at Exhibit-A shows that except the employees at Serial No. 16, 17, 117 and 129, none of the employees had received the gratuity of Rs. 5 lacs i.e. the maximum gratuity that was payable in view of the first Government Resolution. All other 125 employees out of 129 employees were paid gratuity less than Rs. 5 lacs i.e. below the ceiling of Rs. 5 lacs that was made applicable to them i.e. the employees who had retired during the period from 1st January, 2006 to 31st August, 2009. Even there is no averment that the four employees who were granted gratuity at Rs. 5 lacs were so granted in view of the ceiling of the maximum amount of gratuity of Rs. 5 lacs being provided in their cases. 16. Further, the next of the Government Resolution dated 21st August, 2009 shows that the (9) wp5284-11 Government on its own had decided to raise the ceiling on maximum gratuity from Rs. 5 lacs to Rs. 7 lacs w.e.f. 1st September, 2009. This raising of the ceiling had admittedly nothing to do with any recommendations of any Pay Commission and the Government on its own raised the ceiling. The petition itself shows that the State Government earlier also had in between appointment of Pay Commissions had raised the ceiling. The same is quoted in the representation made by the petitioners at Exhibit-B. It shows that on 21st September, 1995, the ceiling on the maximum amount of the gratuity was raised from Rs. 1 lac to Rs. 2.50 lacs w.e.f. 1st April, 1995. Thereafter, in view of the recommendations of the 5th Pay Commission, the ceiling was raised from Rs. 2.50 lacs to Rs. 3.50 lacs w.e.f. 1st January, 1996. Thus, for various reasons, including inflation, etc., the State Government had raised the ceiling in the maximum amount of gratuity without having any relevance to the implementation of the recommendations of any Pay Commission. (10) wp5284-11 17. In view of all above facts, we find that the ratio laid down in the above authorities, relied upon by learned counsel for the petitioner, has no relevance to the facts in the present case, which concerns about the revision in the ceiling on the maximum amount of gratuity and not any discrimination in payment of pension to the similarly situated retired employees. In the circumstances, therefore, the petition fails. 18. In the result, the Writ Petition is dismissed. Rule is discharged accordingly with no order as to costs. [M.T. JOSHI, J.] [B.R. GAVAI, J.] npj/wp5284-11