CWP No. 5770 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 5770 of 1999 Date of decision: 12.01.2010 Dr. Pardaman Singh and others ....Petitioners Versus State of Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sunil Panwar, Advocate, for the petitioners. Mr. S.S. Pattar, Sr. DAG, Haryana, for respondent No.1. Mr. B.L. Gupta, Advocate, for respondents No.2 and 3. VINOD K. SHARMA, J. Petitioners, the retired employees of Maharshi Dayanand University, Rohtak, have invoked the writ jurisdiction of this Court to challenge, the fixing of the cut off date of 1.4.1995 for extending the benefit of pension under “The Maharshi Dayanand University Employees Pension Scheme, 1997”. The petitioners also seek the striking down of the cut off date of 1.4.1995 being discriminatory, arbitrary and artificial, and prayed for a writ of mandamus directing the respondents to give benefit of pension scheme to all retired teachers of Maharshi Dayanand University, Rohtak w.e.f. 1.1.1992, from the date pension scheme stood introduced for the teachers of Haryana Agricultural University, Hisar. The petitioners retired from service between August, 1992 to CWP No. 5770 of 1999 -2- September, 1994 from Maharshi Dayanand University, Rohtak. In the year 1964 that the University Grants Commission in consultation with the Central Government extended the pensionary benefits to retired teachers of four Central Universities. In 1967, the rules framed by the Central Universities for grant of pension were sent to all the university in the country. On 9.12.1988 Maharshi Dayanand University, Rohtak, wrote a letter to all the Heads of Universities Teaching Departments/Principals of the Maintained Colleges seeking option of the employees for pension scheme. The option was directed to be given before 20.12.1988. All the petitioners opted for the pension scheme in response to the letter dated 9.12.1988. The Executive Council of the Maharshi Dayanand University passed a resolution for introduction of pension scheme in the University vide resolution dated 28.3.1992. Again on 15.6.1992, the Executive Council passed resolution No. 59(iv) for pursuing the matter of introduction of pension scheme for employees of the University. In meeting of the Executive Counsel held on 28.6.1993, a resolution was again passed, requesting the Government of Haryana to implement the pension scheme immediately. It was specifically requested, that the scheme be made applicable to all the employees retrospectively from the date when the proposal for pension scheme was mooted by the University. On 9.12.1993, in a meeting of the Executive Council a resolution No. 44 was passed, requesting the State Government to introduce the pension scheme in the University on the Haryana Agricultural University pattern. CWP No. 5770 of 1999 -3- A request was also made to the State Government for grant of approval of pension scheme before 1.4.1994. It was also stipulated in the resolution that even if the State Government does not respond to the request, the pension scheme be implemented from 1.4.1994. On 17.3.1994, Executive Council of the University passed another resolution, that pension scheme be adopted on Haryana Agricultural University, Hisar, pattern in toto and the resolution No. 44 dated 9.12.1993 be modified accordingly. On 30.5.1994, a letter was addressed by the University to all the Heads of the Teaching Department etc. seeking option of the officers working under them regarding the pension scheme. The said option was asked for by 2.6.1994. The pension scheme stands implemented in the Maharshi Dayanand University w.e.f. 1.4.1995. The petitioners represented against the “cut off date” by way of representation dated 30.1.1996, wherein it was requested that date for implementation of the pension scheme be fixed as 1.1.1992. In response to the representation, vide letter dated 23.4.1996, the University informed the petitioners, that their request for cut off date will be considered after the receipt of pension rules from the State Government. The petitioners also made representation to the Chief Minister, Haryana, Vice Chancellor, MDU. One of the petitioners Dr. K.S. Sharma even requested the University to retain his provident fund money until decision on the pension scheme was taken. On 23.6.1995, the Finance Officer of the MDU, Rohtak, wrote to the State Government for making the pension scheme applicable w.e.f. CWP No. 5770 of 1999 -4- 1988 when the matter was first taken up by the High Powered Consultative Committee at Chandigarh, as this was to involve an additional liability of only 0.78 lacs, whereas contribution by the University in the pension fund will be much more than this. The request having not been accepted, the petitioners invoked the writ jurisdiction of this Court to challenge the “cut off date” by asserting it to be unreasonable, arbitrary, and further that it had no nexus to the object, sought to be achieved. The writ petition is opposed by the respondents by raising preliminary objection, that no right, much less any statutory right of the petitioners has been infringed to maintain the present writ petition. On merit the respondents have supported the fixing of the “cut off date” by referring the rules framed in this regard. It is pleaded, that the respondents were not under any statutory duties of public nature, nor the date fixed could be said to be arbitrary, as it has been fixed after due consideration by taking in consideration the financial liabilities. Mr. Sunil Panwar, learned counsel appearing on behalf of the petitioners has challenged the fixing of the “cut off date” on the plea, that it has no rationale with the object sought to be achieved. The contention of the learned counsel for the petitioners was, that the pension scheme was extended to the Central Universities, as far back as in 1964 and thereafter letter was issued to the different Universities to implement the scheme. It was on 9.12.1988 that option was sought from the employees to opt for the pension scheme, to which all employees opted, and finally the Executive Council of the University had also taken a CWP No. 5770 of 1999 -5- decision to implement the pension scheme. The fixing of cut off date of 1.4.1995 is, thus, on the face of it arbitrary. The contention of the learned counsel for the petitioners was, that besides the date being arbitrary, it is discriminatory as once the scheme was made retrospective in operation, then it had to be from the date when the initial decision was taken so that there was no discrimination between similarly situated employees i.e. the retirees only on the basis of date of their retirement as also qua the employees working in Haryana Agricultural University. In support of the contention, the learned counsel for the petitioners placed reliance on the judgment of the Hon'ble Supreme Court in Union of India and another Vs. SPS Vains (Retd.) and others, 2008(4) SCT 453, wherein the Special Army Instructions 2/S/1998, Clause 12(C) revising the pay scale w.e.f. 1.1.1996 were under challenge. The Hon'ble Supreme Court found that the situation created by excluding some of the officers of equivalent rank in defence forces, who retired prior to introduction of revised pay scales, would be arbitrary and hit by Article 14 of the Constitution of India. It was held, that the date of retirement could not form a valid criteria for classification as it resulted in differential and discriminatory treatment to equals in the matter of pension, which was not based on any rationale principle and had no nexus with the object sought to be achieved. The Hon'ble Supreme Court relied on the decision in D.S. Nakara Vs. Union of India, (1983)1 SCC 305. On consideration, I find that this judgment has no application, as it does not deal with fixing of cut off date, while implementing new CWP No. 5770 of 1999 -6- scheme. The reliance was placed by the learned counsel for the petitioners on the judgment of the Hon'ble Supreme Court in D.S. Nakara and others Vs. Union of India, AIR 1983 Supreme Court 130 (1), wherein the Hon'ble Supreme Court was pleased to lay down that the classification in revised pension formula between the pensioners on the basis of date of retirement specified in the memorandum was arbitrary and violative of Article 14 of the Constitution of India. The judgment relied upon by the petitioners, therefore was also with regard to discrimination which resulted between the set of pensioners who were similarly placed by fixing an arbitrary date for implementation of the revised pension scheme. The petitioners do not constitute the same class with that of the pensioners who are covered under the scheme to claim discrimination by fixing of date. The learned counsel for the petitioners also placed reliance on the judgment of the Hon'ble Supreme Court in Dhan Raj and others Vs. State of Jammu & Kashmir and others, 1998(2) RSJ 434 to contend that fixing of an arbitrary date to discriminate between the set of employees equally placed in the same undertaking/corporation is not permissible. The Hon'ble Supreme Court in Dhan Raj and others Vs. State of Jammu & Kashmir and others (supra) was pleased to lay down as under: - “14. Even otherwise, we do not find any justifiable criteria for the State Government to draw the line between those who retired earlier and those retired after 9th June, 1981. Both such set of employees were CWP No. 5770 of 1999 -7- equally placed in the same Undertaking/Corporation temporary in character and all having served in the organisations for more that 20 years. In fact, appellants have served with the Government for more than 30 to 40 years. The person serving for such a long period earns his legitimate expectation. It is not something which he seeks as a begging bowl. It is inappropriate for the State Government to take up a stand to get its own order to be held illegal, by giving restrictive interpretation to deny benefit to its own employees who had worked for such a long period. In fact, in the Constitution Bench decision of this Court in D.S. Nakara and others Vs. Union of India, 1983(1) SCC 305, this Court held that criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after specified date while depriving the benefits to those retiring prior to that date was violative of Article 14. Even otherwise, while considering the question of grant of pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State as stated and the assurance as given in the Directive Principles of the State Policy. A pension is a part and parcel of that goal, which secures to a person serving with the State after retirement of his livelihood. To deny such a right to such a person , without any sound reasoning or any justifiable differentia would be against the spirit of the Constitution. We find in the present case the stand taken by the State Government to be contrary to the said spirit. In the aforesaid D.S. Nakara (supra), this Court has very clearly recorded the following: - “Para 36. - Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State CWP No. 5770 of 1999 -8- which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life.” Learned counsel for the petitioners thereafter placed reliance on the judgment of the Hon'ble Supreme Court in M.C. Dhingra Vs. Union of India and others,1996(1) RSJ 629, wherein the Hon'ble Supreme Court laid down that fixing a cut off date for tagging of the previous service in the State Government on temporary basis is not permissible in view of the law laid down by the Hon'ble Supreme Court in D.S. Nakara and others Vs. Union of India (supra). Learned counsel for the petitioners thereafter placed reliance on the judgment of the Hon'ble Supreme Court in R.L. Marwaha Vs. Union of India and others, 1987(4) SLR 728 to challenge the cut off date fixed by the Government in the pension scheme. The Hon'ble Supreme Court in the said case quashed the Government order classifying the pensioners who were working in the Government/autonomous bodies, into two classes merely on the basis of date of retirement i.e. those who retired from the date of issue of order CWP No. 5770 of 1999 -9- and those who retired after the date of order, as there was no acceptable explanation in making such classification. Mr. B.L. Gupta, learned counsel appearing on behalf of respondents No.2 and 3 supported the order by placing reliance on the judgment of the Hon'ble Supreme Court in T.N. Electricity Board Vs. R. Veerassamy and others, (1999)3 Supreme Court Cases 414, wherein the Hon'ble Supreme Court has been pleased to lay down as under: - “8. As noticed earlier, the law is very well settled on the issue on hand. In the latest judgment dated 9-10- 1998 of this Court in V. Kasturi v. Managing Director, State Bank of India, Bombay after noticing all the judgments of this Court up to that date on this issue, it was held as follows: “23. However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of the relevant pension rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force, the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non- pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non- pensioners cannot get the benefit of such a scheme even if survive such new scheme. They will remain outside its sweep. The decisions of this Court CWP No. 5770 of 1999 -10- covering such second category of cases are: Commander, Head Quarter v. Cap. Biplabendra Chanda and Govt. of T.N. v. K. Jayaraman to which we have made a reference earlier. If the claimant for pension benefits satisfactorily brings his case within the first category of cases, he would be entitled to get the additional benefits of pension computation even if he might have retired prior to the enforcement of such additional beneficial provisions. But if on the other hand, the case of a retired employee falls in the second category, the fact that he retired prior to the relevant date of the coming into operation the new scheme would disentitle him from getting such a new benefit.” 9. This Court in Union of India v. Lieut. E. Iacats to which one of us (Sujata Vs. Manohar, J.) was a party, had considered a case similar to the one on hand and held as follows: “5. The respondent, therefore, cannot claim the benefit of a scheme which came into operation from a date subsequent to the date of her retirement. The respondent also did not contend either before the High Court or in the grounds of appeal before us that a cut-off date for grant of pensionary benefits is arbitrary or unreasonable. Even otherwise in view of the fact that a study team was first appointed and pursuant to its report certain benefits were given after considering the report of the study group would show that the cut-off date had a logical nexus with the decision to grant these benefits on the basis of the report of the study team. Fresh financial benefits which are conferred also have to be based CWP No. 5770 of 1999 -11- on proper estimates of financial outlay required. Bearing in mind all relevant factors, if such a benefit is conferred from a given date, such conferment of benefits from a given date cannot be considered as arbitrary or unreasonable.” 10. In Hari Ram Gupta v. State of U.P. This Court held as follows: “9. The only other question that survives for our consideration is whether the ratio in Nakara case will assist the appellant in getting the relief sought for. In D.S. Nakara v. Union of India the question for consideration before this Court was whether on the basis of date of retirement the retirees can be classified into different groups and thereupon make provision granting some benefits to one group denying the others. In the aforesaid case, the provisions for pension were applicable to all retirees and, therefore, pensioners from a class as a whole. But when the Liberalised Pension Scheme was introduced, the said Scheme was made applicable to a group of pensioners and not to all and therefore, it was held by this Court that pensioners from a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criterion. It is to be noted that the aforesaid Bench judgment of Krishena Kumar v. Union of India wherein the decision of Nakara was explained and it was held that the pension retirees and provident fund retirees do not form one homogeneous class and on the other hand, the Rules governing the provident fund and its contribution are entirely different from the Rules governing pension and, therefore, it would not be reasonable to argue what is applicable to CWP No. 5770 of 1999 -12- the pension retirees must also equally be applicable to provident fund retirees. It was further held in the aforesaid case that the rights of each individual retiree finally crystallised on his retirement whereafter no continuing obligation remained in case of those who are governed by Provident Fund Rules whereas in case of pension retirees, the obligation continues till the death of the employee. This Court categorically held that Nakara cannot be an authority for the decision in Krishena Kumar. In Union of India v. P.N. Menon a similar question came up for consideration and distinguishing Nakara and following Krishena Kumar and other similar cases, the Court held that whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefit to one and all, irrespective of the dates of superannuation. As such, any revised scheme in respect can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government. When the army personnel claimed the same pension irrespective of their date of retirement, this Court in the Constitution Bench case of the Indian Ex-Services League v. Union of India considered the grievance of ex- servicemen who had laid the claim on the basis of CWP No. 5770 of 1999 -13- Nakara but ultimately negatived the same and followed Krishena Kumar. In All India Reserve Bank Retired Officers' Assn v. Union of India when the validity of the introduction of Pension Scheme in lieu of Contributory Provident Fund Scheme was challenged on the ground that bank employees who retired prior to 1-1-1986 have not been given the benefit of the said Scheme, it was held by this Court that there is no arbitrariness in the same.” 11. On 17-11-1998, a three-Judge Bench in All India PNB Retired Officers' Assn. v. Union of India while negativing an identical claim, held as follows: “This writ petition is squarely covered by the judgment of this Court in All India Reserve Bank Retired Officers' Assn v. Union of India. That judgment has rightly noted the distinction that Nakara case drew between a continuing scheme and a new scheme. 12. In view of the fact that this Court, as seen above, has consistently taken a view, we do not want to multiply the authorities for the same proposition except to note down the undisputed facts relating to these cases. 13. The retired employees (respondents) while in the service of the Government of Tamil Nadu Electricity Department were not governed by the pension scheme but governed by the Contributory Provident Fund Scheme. As per the rules in force on the date of retirement, the employees (respondents) received all retiral benefits. The appellant-Board fixed 1-7-1986 as the date for introducing the pension scheme in view of the Central Government Notification No. S.35012/21/84-SSIV (SS 11) dated 25-6-1986 fixing the CWP No. 5770 of 1999 -14- date as 1-7-1986, while granting exemption from the application of the Family Scheme, 1971 and the Employees' Deposit Linked Insurance Scheme, 1976. If the date of 1-7-1986 had to be changed, it would lead to many other complications such as reopening and revision of past cases from 1957 to 1986 as well as seeking retrospective exemption from the Government of India. It is also brought to our notice that by giving retrospective effect to the pension scheme as per the impugned judgment of the Division Bench of the High Court, the financial burden that will have to be borne by the appellant-Board would be in the region of about Rs.200 crores which is beyond the capacity of the Board. 14. The learned counsel appearing for the employees (respondents) however placed reliance on a judgment of this Court in Indian Bank v. K. Usha. After going through the said judgment, we do not think that the said judgment is of any help to the retired employees (respondents). The issue that arose in that case was totally different which has no bearing on the facts of the present case. 15. As noticed earlier, the learned Judges even after noticing that the ratio in the judgment of this Court in Nakara case cannot be pressed into service, erroneously granted relief on the alleged delay on the part of the appellant-Electricity Board in introducing the pension scheme which certainly cannot be a ground for the Court to give retrospective effect to the pension scheme. Moreover, the appellant-Board had given well-founded reasons for introducing the pension scheme from 1-7-1986 including financial constraints, a valid ground. We are of the view that the retired employees (respondents), who had retired from service CWP No. 5770 of 1999 -15- before 1-7-1986 and those who were in employment on the said date, cannot be treated alike as they do not belong to one class. The workmen, who had retired after receiving all the benefits available under the Contributory Provident Fund Scheme, cease to be employees of the appellant-Board w.e.f. the date of their retirement. They form a separate class. 16. In the light of the foregoing discussion and applying the rulings of this Court above-noted, we answer the issue set out at the outset by holding that the appellant-Board has not acted illegally or contrary to law in introducing the pension scheme prospectively from 1-7-1986 and that the employees (respondents) retired before 1-7-1986 cannot compel the appellant- Board to extend the benefit of the newly-introduced pension scheme with retrospective effect.” Reliance was also placed on the judgment of this Court in Bani Singh Vs. Kurukshetra University, Kurukshetra and others, 2002 (1) RSJ 513, wherein this Court has been pleased to lay down as under: -