WP(C) 3916/2007 BEFORE THE HON’BLE JUSTICE MR B.K. SHARMA JUDGEMENT AND ORDER (ORAL) The matter relates to fixation of cut-off date for payment of Death-cum- Retirement Gratuity (hereinafter referred to as DCRG) to the employees of the As sam State Electricity Board (hereinafter referred to as ASEB). As per the impugn ed Office Memorandum dated 28.5.2005, the said cut-off date is 05.08.2004, whic h is not conducive to the petitioners, who have retired from service on attainin g the age of superannuation on 31.3.2003, 31.3.2003, 31.12.2001, 28.2.2002 and 3 0.4.2004 respectively. For a ready reference, the impugned Annexure-E OM dated 2 8.5.2005 is quoted below :- ASSAM STATE ELECTRICITY BOARD No. ASEB(RF)163/94/179 Dated, Guwahati the 28th May/05 OFFICE MEMORANDUM As already decided vide its Resolution No. 9 dated 5.8.04 and after taking into account, the views of the Govt. of Assam and those of the Successor Companies, t he ASEB is pleased vide its Resolution No.11 dated 9.5.05 to enhance the maximum admissible ceiling of DCR Gratuity from existing limit of Rs. 2.00 lakh to Rs. 3.5 lakhs, to its employees with effect from 5.8.04 i.e. the date of Resolution by which Board had initially decided to enhance the maximum ceiling of admissibl e DCR Gratuity to its employees. This modifies the clause - 5 of the office Memorandum No. ASEB(PC)59/99/117 dtd. 28.4.99, to the above extent only. By order etc., Sd/- K.N. Buragohain Member(P&A) Assam State Electricity Board, Paltanbazar :: Guwahati-1. 2. According to the petitioners, the State Govt. having had control over AS EB and the ASEB having followed the guidelines issued by the Govt. of Assam from time to time, the cut-off date fixed by the State Govt. which is 26.03.2001, sh ould have been followed and / or adopted by the ASEB instead of introducing alto gether a different cut-off date i.e. 5.8.04 and thereby depriving the petitioner s from the enhanced rate of DCRG, which was raised from Rs. 2 lakhs to Rs. 3.5 l akhs. As per Annexure-A OM dated 5.9.2001 issued by the Govt. of Assam in the Pu blic Grievances Department, the provisions contained in para 9 of the particular OM dated 19.11.98 issued under Assam Service (pension) Rules, 1969, stood revis ed to the extent of raising the existing limit of Rs. 2 lakhs to Rs. 3.5 lakhs i n respect of DCRG. In the increase was made effective from 26.3.2001. 3. It is the stand of the petitioners that the State Govt. having adopted a particular cut-off date as indicated in the said OM dated 5.9.2001 and the ASEB having following the said OM by way of enhancing the rate of DCRG from Rs. 2 la khs to Rs. 3.5s, could not have deviated in respect of the cut-off date, so as t o deprive some of the employees of the ASEB, who otherwise are at par with the S tate Govt. employees. 4. The respondents have filed their counter affidavit denying the aforesaid plea of the petitioners. According to the respondents, the ASEB having had its own entity, is not bound by the decision of the State Govt. and it can deviate i n matters concerning the ASEB and its financial resources. Referring to the part icular OM dated 28.4.99 (Annexure-F to the writ petition) on which the petitione rs have placed reliance, it is the stand of the respondents that the said OM now here restricts the power and jurisdiction of the ASEB to take a decision as rega rds the rate at which it would require to pay the DCRG. For a ready reference, t he particular clause in the Annexure-F OM dated 28.4.99 is quoted below:- 5. Death-cum-Retirement-Gratuity : With due consideration of the recommendation of the Pay Committee 1997 the Board is pleased to lay down the principles that Death-cum-Retirement Gratuity of an employee should be calculated on the basis of last pay drawn with the dearness a llowance admissible thereon. The Board is also pleased to raise the maximum limit of admissible Death-cum-Ret irement Gratuity to a Board employee from Rs. 1 lakh to Rs. 2 lakhs with effect from 1.4.97. At the same time, it is also laid down that in such matters, Board should be guided by the Death-cum-Retirement Gratuity Rules of the Govt. of Assa m. 5. The respondents have also referred to the decision of this Court in WP(C ) No. 7061/2003 (Girindra Nath Neog Vs. The ASEB and others), a copy of which ha s been annexed as Annexure-10 to the counter affidavit. The judgement in the sai d case was delivered on 24.5.2006. As in the instant case, in the said case also , the grievance of the petitioner was in respect of the rate of DCRG. The claim of the petitioner was that since the rate was enhanced to Rs. 3.5 lakhs from Rs. 2 lakhs, he was also entitled to the same, more particularly, in view of the of the Annexure-A OM dated 5.9.2001 and Annexure-F OM dated 28.4.99. The writ peti tion was dismissed by the aforesaid judgement holding that Clause-5 of the OM qu oted above can, in no way, be read to mean that the enhancement of DCRG of the S tate Govt. employees would, automatically, apply to the employees of the ASEB. I t was further held that the said OM did not divest the ASEB of its power to take a decision as regards the rate at which the ASEB would pay the DCRG to its empl oyees, though in terms of the OM dated 28.4.99, it did undertake to be guided, i n such matters, by the rules of the State Government. 6. With the above observation and finding recorded in the judgement, the wr it petition was dismissed. While doing so, it was also noted that the impugned d ecision challenged in the writ petition, was not put to challenge in the said wr it petition. 7. I have heard Mr. P.C. Dey, learned counsel for the petitioners as well a s Mr. D. Bhattacharyya, learned Standing Counsel, ASEB. 8. Mr. Dey, learned counsel for the petitioners submits that since the Sta te Govt. fixed the cut-off date in the aforementioned OM dated 5.9.2001 as 26.3. 2001, the ASEB could not have fixed another cut-off date while adopting the said OM. His further submission is that by fixing a separate cut-off date, the ASEB has discriminated its employees. In this connection, he has placed reliance on t he decision of the Apex Court reported in (2001) 8 SCC 71 (Subrata Sen and other s Vs. Union of India & Ors). 9. Countering the above argument, Mr. Bhattacharyya, learned Standing Couns el, ASEB, submits that in view of the earlier judgement of this Court, referred to above and which has attained finality, the petitioners in the garb of making a challenge to the Annexure-E OM dated 28.5.2005, cannot re-open the issue. He s ubmits that the authority in the ASEB after considering the matter in its entire ty and also taking opinions of the State Govt. and its Companies had arrived at the decision and in absence of any allegation of malafide exercise of power and / or violation of any statutory rules, the petitioner is not entitled to challen ge the said decision. 10. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also perused the entire materials on recor d. 11. Except the challenge in the instant proceeding in respect of Annexure-E OM dated 28.5.2005, the claim of the present petitioners was the claim in the ea rlier writ petition that was filed by Girindra Nath Nego, referred to above. In the said judgement, Clause-5 of the OM dated 28.4.99, quoted above, has been int erpreted holding that the same can in no way be read to mean that the enhancemen t of the DCRF of the State Govt. employees would automatically apply to the empl oyees of the ASEB. 12. The specific observation made in the said judgement can be found in para graph 8 of the judgement, which is quoted below :- 8. When considered in the above backdrop, there remains no escape from the conclusion that the rate of DCRG applicable to the employees of the ASEB was not to change, automatically, with the change in the rate of DCRG of the State Gove rnment employees ; rather, a conscious decision is still required to be taken by the ASEB, whenever such a question arises, though, while taking the decision, t he ASEB, in terms of the office memorandum, dated 20.04.99, undertook to be guid ed by the rules of the State Government framed in this regard. That there was no change in the policy of the ASEB is clear from the fact that the ASEB, as the u ndisputed affidavit-in-opposition of the ASEB reflects, resolved, on 03.01.2002, to see the State Government’s approval on its views on the enhancement of the D CRG in respect of its own employees. The Government, however, clarified that it was for the ASEB to decide as to what it would do with regard to enhancement of the ceiling admissible to the employees of the ASEB inasmuch as the ASEB’s trans fer scheme already stood notified. It was, thereafter, that the ASEB decided, vi de its memorandum, dated 28.05.2005, to enhance the rate of gratuity from Rs. 2 lakhs to Rs. 3.5 lakhs for its employees with effect from 05.08.2004. The legali ty, correctness or justification of the Office Memorandum, dated 28.05.2005, afo rementioned are not under challenge in the present writ petition. This Court is, therefore, not required, at this stage, to make any comment if the Office Memor andum, dated 28.05.2005 aforementioned suffers from discrimination or arbitrarin ess or whether the petitioner shall also be given the benefit of the Office Memo randum, dated 28.05.2005, aforementioned or not. 13. In paragraph 9 of the judgement, it has been observed that neither the e nhancement in rate of DCRG by the State Govt. nor the reduction or lowering the limit of the benefit of CRG in respect of the State Govt. employees would automa tically apply to the employees of the ASEB. It has further been observed that in either case, a conscious decision is required to be taken by the ASEB. 14. In Paragraph 10 of the judgement, it has been observed thus :- 10. In view of the fact that the petitioner’s case rests entirely on Clause- 5 of the office memorandum, dated 28.04.99, and since this office memorandum doe s not, as discussed above, entitle, automatically, an employee of the ASEB to cl aim enhancement in the limit of gratuity with the enhancement in the limit of DC RG in respect of the State government employees, this writ petition, in my consi dered view, has no merit, particularly, when the office memorandum, dated 28.05. 2005, is not under challenge and in terms of the office memorandum, dated 28.05. 2005, the petitioner is not entitled to be paid the DCRG at the rate of 3.5 lakh s, for, the enhancement in the ceiling of the DCRG for the ASEB employees has be en made effective from 05.08.2004 ; whereas the writ petitioner retired, as ment ioned above, on 31.07.2002. 15. The question that falls for consideration in this proceeding is as to wh ether the impugned OM dated 28.5.2005 (Annexure-E) so far as the same relates to fixation of cut-off date as 05.08.2004 as against the claim of the petitioner i n reference to the Annexure-A OM dated 5.9.2001, can be said to be arbitrary and illegal. As per the said OM dated 5.9.2001, the amendment to the particular pro vision would come into force w.e.f. 26.3.2001. 16. According to the petitioners, the said cut-off date could not have been deviated by the authorities in the ASEB, so as to fix another cut-off date. In this connection, Mr. Dey, learned counsel for the petitioners has placed relianc e on the decision in Subrata Sen (supra). In the said case, the Apex Court was c oncerned with the cut-off date fixed in respect of Non-Contributory Pension Sche me and the applicability of Revised Pension Scheme. It was found that the grant of pension was governed by relevant rules and not dependent upon availability of pension fund. The rules in that particular case were amended and the pension sc heme was revised but no new scheme was introduced. It is in such circumstances, the Apex Court held that no discrimination can be created between the employees who retired prior to and after a particular date, for being entitled to the bene fits of the Revised Pension Scheme. 17. Unlike the aforesaid case, in the instant case, we are concerned with th e issue as to whether the ASEB a separate entity, is required to adopt in toto t he mandate of the OM dated 5.9.2001. As against the cut-off date fixed and for t hat matter the date of coming into effect the amended provisions of the particul ar OM under Assam Services (Pension) Rules, 1969, the ASEB while deciding to enh ance the rate of DCRG, made the effective date as 5.8.2004. In this connection, Mr. Bhattacharyya, learned Standing Counsel, ASEB has produced the relevant reco rds. In the impugned OM dated 28.5.2005, there is mention of the particular reso lution i.e. Resolution No.11 dated 9.5.2005. By the said OM, Clause-5 of the OM dated 28.4.99, quoted above, was also modified. 18. This Court by order dated 11.8.2011, requested the Standing Counsel, ASE B, to produce the copies of the OM dated 28.5.2005, finds mention in resolution No. 9 dated 5.8.04 and also the view of the Govt. of Assam, ASEB and Successor C ompanies and also resolution No.11 dated 9.5.2005. 19. By resolution No. 9 dated 3.1.2002, the ASEB had resolved to refer the m atter to the Govt. Thereafter, by resolution No. 9 dated 5.8.04, while taking th e decision for enhancement of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs, resolved t hat the effective date will be from the date of notification to be issued by the Board. When the opinion of the State Govt. was sought, the State Govt. by its l etter dated 12.4.2005 intimated the Member (P&A), ASEB, that if resource capacit y of the ASEB or the successor companies permitted, it would be entirely upto th e ASEB to pay the DCRG at the enhanced rate. However, it was made clear that its support for funding the fund for payment of terminal liabilities would be guide d as per Cabinet Memorandum of Finance Department Transfer Scheme, 2004. Thus, n o responsibility was taken by the State Government and it was provided that it w ould be available to the individual companies of the ASEB to take a view in the matter depending on their financial condition. Thereafter, while taking the deci sion for enhancement of the rate of DCRG from Rs. 2 lakhs to Rs. 3.5 lakhs, the Board in its meeting held on 9.5.2005 adopted the resolution No.11 to making the same effective from 5.8.2004 i.e. the date on which the resolution was initiall y adopted by the Board referred to above. 20. The Apex Court in the case of Transport and Dock Workers Union Vs. Mumba i Port Trust and another reported in (2011) 2 SCC 575, has held that the particu lar classification involved in the said case relating to the date of appointment of Typist-cum-Computer Clerk, in the backdrop of the policy decision, cannot be said to be violative of Article 14 of the Constitution of India. The whole bas is of the case of the petitioners in this writ petition is that the particular c ut-off date has discriminated the ASEB employees among them and thus, not sustai nable. 21. In the aforesaid decision, the Apex Court while dealing with the princip les involved in respect of Article 14 of the Constitution of India, has made the following significant observations :- 33. In our opinion, Article 14 cannot be interpreted in a doctrinaire or dog matic manner. Absolute and inflexible concepts are an anathema to progress and c hange. As observed by the great Justice Holmes of the U.S. Supreme Court, the ma chinery of the government would not work if it were not allowed some free play i n its joints, vide Missourie, Kansas and Texas Railway Co. v. May (48 L Ed 971 : 194 US 267(1903) . 37. In our opinion it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in th e present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection. 22. Similarly in Govt. of A.P. Vs. N. Subbarayudu, the Apex Court dealing wi th the particular cut-off date fixed by the Executive Authority, made the follow ing observations. In the observations, D.S. Nakara’s case reported in (1983) 1 S CC 305 finds mention, which is reproduced below :- 5. In a catena of decisions of this Court it has been held that the cut-off dat e is fixed by the executive authority keeping in view the economic conditions, f inancial constraints and many other administrative and other attending circumsta nces. This Court is also of the view that fixing cut-off dates is within the dom ain 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 appear s to be on the face of it blatantly discriminatory and arbitrary. (State of Punj ab vs. Amar Nath Goyal <http://www.indiankanoon.org/doc/706635/> 2005(6) SCC 754 ). 6. No doubt in D.S. Nakara vs. Union of India {1983(1) SCC 305} this Court had s truck down the cut-off date in connection with the demand of pension. However, i n subsequent decisions this Court has considerably watered down the rigid view t aken in Nakara case (supra) as observed in SCC para 29 of the decision of this C ourt in State of Punjab vs. Amar Nath Goyal {(2005) 6 SCC 754}. <http://www.indiankanoon .org/doc/706635/>7. There may be various considerations in the mind of the execu tive authorities due to which a particular cut-off date has been fixed. These co nsiderations 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 leewa y and free play at the joints in this connection. 8. In fact several decisions of this Court have gone to the extent of saying tha t the choice of a cut-off date cannot be dubbed as arbitrary even if no particul ar reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar vs. Ramjee Prasad <http://www.indiankanoon.org/doc/732106/> 1990(3) SCC 368, Un ion of India vs. Sudhir Kumar Jaiswal <http://www.indiankanoon.org/doc/1012409/> 1994(4) SCC 212 (vide SCC para 5), Ramrao vs. All India Backward Class Bank Emp loyees Welfare Assn. 2004(2) SCC 76 (vide SCC para 31) and University Grants Com mission vs. Sadhana Chaudhary <http://www.indiankanoon.org/doc/1742881/> 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 p articular cut-off date has been chosen, the court must still not declare that da te to be arbitrary and violative of Article 14 unless the said cut- off date lea ds to some blatantly capricious or outrageous result. 9. As has been held by this Court in Aravali Golf Club vs. Chander Hass <http:// www.indiankanoon.org/doc/47602/> {2008(1) SCC 683} and in Govt. of A.P. vs. P. L axmi Devi {2008(4) SCC 720} the court must maintain judicial restraint in matter s relating to the legislative or executive domain. ( emphasis supplied) 23. In paragraph 39 and 44 of Mumbai Port Trust (supra), it has been observe d thus :- 39. In our opinion, there is often a misunderstanding about Article 14 of th e Constitution, and often lawyers and Judges tend to construe it in a doctrinair e and absolute sense, which may be totally impractical and make the working of t he executive authorities extremely difficult if not impossible. 44. In administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative o f some statute or is shockingly arbitrary. In this connection, Justice Frankfurt er while Professor of Law at Harvard University wrote in The Public and its Gove rnment : With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleague s. His supremacy lay in his recognition of the practical needs of government. Th e great judges are those to whom the Constitution is not primarily a text for in terpretation but the means of ordering the life of a progressive people. 24. Once this Court in the aforesaid judgement and order dated 24.5.2006 pas sed in WP(C) No. 7061/2003 has recognized the power and jurisdiction of the ASEB authorities to take independent decision of its own irrespective of Clause-5 of the OM dated 28.4.99, quoted above, coupled with the fact that by the impugned order dated 28.5.2005 (Annexure-E) the said clause was modified and when it is f ound that there is no infirmity in the decision making process, I am of the cons idered opinion that the challenge to the said OM dated 28.5.2005 (Annexure-E) mu st fail. As recorded above, the only ground on which the decision contained in t he said OM has been put to challenge is violation of Article 14 of the Constitut ion of India and for that matter discrimination in the matter of enjoyment of en hanced rate of DCRG. 25. It was submitted by Mr. Bhattacharyya, learned Standing Counsel, ASEB, i n reference to the stand of the respondents in the affidavit that because of the financial crunch it is not possible for the ASEB authority to fix the same cut- off date as that of the State Govt. employees. Even otherwise also when it is wi thin the competence and jurisdiction of the ASEB authority to fix a particular c ut-off date, in absence of any malafide exercise of arbitrary jurisdiction, this Court exercising its power of judicial review under Article 226 of the constitu tion of India cannot sit on appeal over such decision, so as to over rule the sa me. As has been observed in the aforesaid decision in Mumbai Port Trust (supra), the doctrine and / or principle involved in article 14 of the Constitution of I ndia is not a abstract doctrine so as to apply in each and every case irrespecti ve of fact situation involved. 26. For all the aforesaid reasons, no reliefs can be granted to the petition ers and consequently the writ petition is dismissed. There shall be no order as to costs.