THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.23712 of 2011 07.09.2011 Between: T.Balraj …. Petitioner AND The State of A.P., rep. by its Chief Secretary to Government, Secretariat Buildings, Hyderabad, and others. … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.23712 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner was Assistant Registrar in the Special Court constituted under Andhra Pradesh Land Grabbing (Prohinition) Act, 1982. He retired from service on 28.02.2009 on attaining the age of superannuation. He filed the instant writ petition assailing para 7(i) of G.O.Ms.No.100, Finance (Pension-I) Department, 06.04.2010 and para 3(i) of G.O.Ms.No.101, dated 06.04.2010 as illegal and arbitrary and for a direction to the Government of Andhra Pradesh, to remove the cut off dates from 01.07.2008 to 01.02.2010 (both inclusive) for the purpose of payment of retirement gratuity and for the purpose of reckoning the interim relief for computation of dearness allowance, house rent allowance, city compensatory allowance, leave encashment, pay fixation, pension and gratuity. The Government of Andhra Pradesh constituted 9th Pay Revision Commission (PRC) vide orders in G.O.Ms.No.438, dated 07.07.2008. Awaiting the final report on PRC, the Government issued G.O.Ms.No.303, dated 15.10.2008 directing the payment of interim relief at 15% from 01.10.2008 and 22% from 01.10.2009. The benefit of interim relief was also extended to those who retired before 01.08.2009. The PRC gave its report on 05.12.2009. By order vide G.O.Ms.No.100, dated 06.04.2010, the Government decided to apply revised scales to pensioners also subject to certain conditions. Those relevant for the purose of this case are (i) the revised consolidated basic pension at 39% on fitment benefit on the basic pension that shall come into force notionally with effect from 01.07.2008 and with monetary benefit from 01.02.2010; (ii) there shall be no difference on retirement gratuity or encashment of earned leave in case of employees who retire from 01.07.2008 and 31.01.2010; (iii) the employees who retired from 01.07.2008 and 31.01.2010 are eligible for revision of their pay in the Revised Pay Scales 2010; (iv) no difference on retirement gratuity/encashment of leave shall be allowed and (v) the difference of commutation value of pension shall be allowed on the pension notionally fixed in view of the Judgment of the Supreme Court in Civil Appeal No.6780/2005 arising out of S.L.P.(C) 5394 – 5470 of 2004, dated 11.11.2004, and in case of employees who retire on or before 01.02.2010, the pension shall be calculated on the pay in the Revised Pay Scales, 2010. It is to be noticed that after taking a decision to implement the recommendations of the PRC, in exercise of the powers under proviso to Article 309 of the Constitution of India, the Government of A.P., promulgated the Andhra Pradesh Revised Scales of Pay Rules, 2010 (2010 Rules). These came into effect retrospectively from 01.07.2008. Rule 2(ii) defines ‘existing emoluments’ to mean, the basic pay including the stagnation increments if any, in the existing scale of pay as on 1st July, 2008 or on any other date of entry into the Revised Pay Scales, 2010. The term ‘existing scale of pay’ means, the Revised Pay Scales 2005 (Rule 2(iii)). Rule 3 provides with the existing scales of pay mentioned in column (2) of Schedule I shall be revised as specified in the corresponding entry in column (4) of the said schedule. It may also be noted that the Government while extending 2010 Revised Scales to pensioners, issued G.O.Ms.No.101, dated 06.04.2010, raising the maximum limit of retirement gratuity from Rs.3,50,000/- to Rs.7,00,000/-, but as per para 4, such increase come into force with effect from 01.02.2010. As per para 7(i) of G.O.Ms.No.100, though the pensioner is eligible for revision of his pay as per PRC 2010, and is allowed monetary benefit from 01.02.2010, he is not entitled to claim difference of retirement gratuity/encashment of earned leave though he can claim difference in commutation. Similarly, as per para 4 of G.O.Ms.No.101, he would not be eligible for the upwardly revised gratuity amount as the same came into force from 01.02.2010. Placing reliance on LIC of India v LIC Officers Association[1], the counsel would submit that the petitioner and other pensioners are subjected to discrimination in the matter of eligibility for retirement gratuity/encashment of leave with reference to the PRC 2010. They are also discriminated in the matter of granting enhanced gratuity. Both the submissions, in our considered opinion, are misconceived. After submission of the report by the PRC, the Government accepted recommendations in principle and promulgated 2010 Rules vide G.O.Ms.No.52, dated 25.02.2010. These Rules were given effect from 01.07.2008, but as per Rule 4, no Government employee, who opts for the same before 01.02.2010 shall be entitled to any monetary benefit from that date. Para 6 of G.O.Ms.No.52 further clarifies that the monetary benefit shall be allowed from 01.02.2010 and the arrears of salary for the month of February 2010 shall be credited to GPF of the employees. The salary in the revised pay scales shall be paid in cash from the month of March, 2010 payable in April, 2010 duly adjusting the interim relied paid for the period beyond 01.02.2010. Thus, it is very clear that the Government employees in service were allowed the monetary benefit only from February, 2010 (to be credited to GPF) and revised scales in cash from March, 2010. No Government employee is entitled to claim difference on encashment of leave or other allowances. While adopting the revised scales of pay for pensioners, the Government applied the same formula and clarified in para 7(i) that the difference on retirement gratuity/encashment of earned leave shall not be allowed to the pensioners. In our considered view, it does not contravene Articles 14 and 16(1) of the Constitution. While revising the gratuity from Rs.3,50,000/- to Rs.7,00,000/- with effect from 01.02.2010, the Government was only implementing 9th PRC Report. It is settled, that when the recommendations of the PRC are accepted by the Government, ordinarily it does not admit any challenge on the ground of discrimination. The fixation of scales of pay, gratuity and conferring other benefits is a matter entrusted to the executive. Unless there is discrimination ex facie between the same category and same class of employees in extending those benefits, in such matters the Courts would not interfere. In LIC of India, the scales of pay of officers and employees of LIC were revised for the period from 01.08.1992 to 31.07.1994 and different cut off dates were fixed for grant of different allowances. The cut off date for revision of pay from 01.04.1993 and for payment of gratuity was 01.08.1994. As a result of this, those who retired before 01.08.1994, became entitled to reduced gratuity. The instructions and fixation of cut off dates by the Chairman under Regulation 51 of the LIC Class I Officers (Revision of Terms and Conditions) Regulations, 1996, in so far as they are related to payment of gratuity, were assailed before the High Court of Kerala. Finding fault in unsettling the benefits under Regulation 77, the writ petitions were allowed. Affirming the High Court’s view, the Supreme Court held as under. The employees, irrespective of the fact whether they had superannuated or not, were given the benefit of arrears of pay from 1-8-1993. By reason of grant of such benefit both to serving employees as also the superannuated employees, both the class of employees became entitled thereto as of right. If by reason thereof, even a retired employee, as on the date of retirement, became entitled to the benefit of the revised scale of pay, the same for all intent and purpose must be taken to be the permanent basic pay, apart from other allowances, if any, which are required to be taken into consideration for the purpose of computation of the amount of gratuity. The observations of the Supreme Court in LIC of India would show that in the matter of fixation of cut off date and giving benefit, ordinarily, there cannot be any different treatment of the retired employees and the serving employees. In this case, as noticed by us, in the matter of benefit of claiming difference on encashment of leave and payment of enhanced gratuity, the retired employees and serving employees are not discriminated. Therefore, the plea of the petitioner is misconceived. It is always open to the Government to fix a cut off date for the purpose of conferring a benefit or denying a benefit. If the classification for the purpose of conferring or denying the benefit has a nexus with the object sought to be achieved Article 14 is not violated. The writ petition, for the above reasons, is dismissed. No costs. _______________ (V.V.S.RAO, J) ___________________ (K.G.SHANKAR, J) 07.09.2011 Pln [1] (2008) 3 SCC 321