Supreme Court of India

State Of Orissa vs Orissa Khadi And Village Industries ... on 17 March, 2023

Author:
Dinesh Maheshwari

Bench:
Sanjay Kumar
,
Dinesh Maheshwari

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6944 OF 2015

STATE OF ORISSA & ANR. ….APPELLANT(S)

VERSUS

ORISSA KHADI AND VILLAGE INDUSTRIES
BOARD KARMACHARI SANGH & ANR. ….RESPONDENT(S)

JUDGMENT

DINESH MAHESHWARI, J.

1. This appeal is directed against the judgment and order dated

20.12.2012 in Writ Appeal No. 268 of 2011 whereby, the Division Bench of

the High Court of Orissa has dismissed the intra-court appeal filed by the

appellant State of Orissa and has affirmed the order dated 25.10.2010 in

W.P. (C) No. 8438 of 2010, as passed by the learned Single Judge of the

High Court, holding the employees of the Orissa Khadi and Village

Industries Board 1 entitled to pension at par with the Government

Signature Not Verified

Digitally signed by

ARJUN BISHT 1

Date: 2023.03.17

15:29:42 IST

Hereinafter also referred to as ‘the Board’.

Reason:
employees and also directing the State Government to amend the

applicable regulations accordingly.

2. In this appeal, the appellant State of Orissa has essentially

contended that the High Court was not justified in issuing directions

contrary to the applicable regulations, which rule out pensionary rights to

the employees of the Board in specific terms; and when the provisions

contained in the regulations were neither under challenge nor were

declared invalid.

3. While embarking upon the questions arising in this appeal, it shall

be apposite to take note of the relevant statutory provisions at the outset.

3.1. The Orissa Khadi and Village Industries Board was established

under the Orissa Khadi and Village Industries Board Act, 19552 with the

aim and objective to organize, promote, develop, and regulate Khadi and

Village Industries throughout the State of Orissa.

3.2. Section 3 of the Act of 1955 reads as under: -

“3. Incorporation of the Board.- (1) The State Government with
effect from such date as they may by notification appoint in this
behalf, shall establish for the purpose of this Act a Board to be called
the Orissa Khadi and Village Industries Board.

(2) The Board established under Sub-section (1) shall be a body
corporate incorporated by its name with perpetual succession and
common seal and may sue and be sued in its corporate name and
shall be competent to acquire and hold and dispose of property both

2 Hereinafter also referred to as ‘the Act of 1955’/’the Act’.
movable and immovable and to contract and do all things necessary
for the purposes of this Act.”

3.3. Section 36 of the Act of 1955 stipulates that the Board may, with

previous sanction of the State Government, make regulations consistent

with the Act and the rules made thereunder to provide, inter alia, for the

remuneration, allowances, and other conditions of service of the staff. It

reads as under: -

“36. Regulations.- (1) Subject to the provisions of Section 12
the Board may, with the previous sanction of the State Government
by notification, make regulations consistent with this Act and rules
made thereunder.

(2) In particular and without prejudice to the generality of the
foregoing power, the Board may make regulations providing for –

(a) the procedure and disposal of its business;

(b) remuneration, allowances and other conditions of service of
the staff of the Board;

(c) functions and duties of the Staff of the Board;

(d) functions of Committees and the procedure to be followed,
by such Committees in the discharge of their functions.”

3.4. In exercise of the powers so vested under Section 36 of the Act of

1955, the Board has made the Orissa Khadi and Village Industries Board

Regulations, 19603 providing for general conditions of service of its staff,

remuneration, allowances, grant of leave, retirement benefits etc.

Regulation 40 of the Regulations of 1960 reads as under: -

“40. General conditions of service.- Unless otherwise provided in
these regulations, the rules in the Orissa Service Code, Volume I
with all its Appendices, except Appendices 1 to 4, 8 and 12, as
amended from time to time by the Government shall apply to the

3 Hereinafter also referred to as ‘the Regulations of 1960’/’the Regulations’.
employees of the Board mutatis mutandis. For this purpose, the
words “Government”, “Government Servant” and “Head of
Department” wherever they occur except in Chapter-I of the Code
shall mean “the Board” “the employees of the Board” and “the
President” respectively. “Superior Service” referred to in the Orissa
Service Code shall mean posts in Classes I, II and III and “Inferior
Service” shall mean posts in Class IV.”

Regulation 52 of the Regulations of 1960, which is of direct

relevance in the present appeal, reads as under:

“52. Retirement benefits.- The employees of the Board shall not
be entitled to any pension except the gratuity and the Contributory
Provident Fund benefits admissible under these regulations.”

Regulations 53 to 57 deal with the matters related to the

Contributory Provident Fund4, subscriptions, realization of subscriptions,

and contributions etc.

4. The factual aspects of the matter are not of much dispute. However,

a few background aspects and their salient features may be noticed,

particularly concerning the proposition for providing pension to the

employees of the Board and for amendment of the above-noticed

Regulation 52 of the Regulations of 1960.

4.1. It would appear that the proposition for providing pensionary rights

to the employees of the Board had been a matter of several

communications between the Board and the State Government and had

also been the subject of a few litigations in the past. Shorn of unnecessary

4 ‘CPF’, for short.
details, it could be noticed that from 06.10.1982 onwards, various

proposals were mooted by the Board for providing pensionary benefits to

its employees and requests were also made to the State Government to

amend the Regulations of 1960 in this regard. On 25.02.1985, the

Industries Department of the Government of Orissa sought for the views of

the Director of the Industries on the proposal to provide pension to the

employees of the Board and in response, on 31.10.1985, the Additional

Director of Industries, Government of Orissa opined that there should not

be any objection to allow the pensionary benefits to the employees of the

Board. Thereafter, on 18.12.1985, the Industries Department, Government

of Orissa sought for certain information from the Board as regards the

annual requirement of funds if pension was paid to the employees of the

Board and as to whether the amount required for payment of pension was

more or less in comparison to Employees’ Provident Fund5 amount as also

the details of the employees to be retired in the coming 5 years and the

amount required for payment of pension to them. This was followed by the

letter dated 15.05.1990 from the President of the Board stating justification

for payment of pension to the Board’s employees. On 19.09.1991 and then,

on 08.10.1992, the Industries Department again sought for information

5 ‘EPF’, for short.
regarding functioning of the Board, its objectives and updated financial

statements as also the calculation of expenditure, if the pensionary benefits

were extended to the employees of the Board. In response to this, on

18.12.1992, the Secretary of the Board furnished a reply to the State

Government with justification for extending the pension scheme to the

employees of the Board.

4.2. Pursuant to the aforementioned exchange of communications, on

17.03.1993, the Handicraft and Cottage Industries Department of the

Government of Orissa asked the Board to obtain written clearance from the

EPF Commissioner that they will refund the amount and forward the reply

so as to enable the Department to submit the proposal to the Finance

Department. On 24.04.1993, the Regional Provident Fund Commissioner

intimated to the Board that the proposal for refund would be considered

only as and when the proposed pension scheme was approved by the

Government of Orissa. Thereafter, on 30.04.1993, the Board informed the

Handicraft and Cottage Industries Department the total amount of

accumulation, as indicated by the Regional Provident Fund Commissioner

and requested to take up the matter with the Government and followed it

up on 19.08.1993, with a request to the Department to expedite the matter.

Again on 29.09.1993, the Department sought for certain clarifications from

the Board and thereupon, on 25.07.1994, the Board informed that there will
be no extra financial burden on the Government if pension scheme was

made applicable to the employees of the Board.

4.3. After the aforesaid communications, the Handicraft and Cottage

Industries Department, in its communication dated 26.10.1994, indicated

the anomalies which were likely to result if the pensionary benefits to the

employees of the Board were allowed with effect from 01.04.1976 and

suggested that Regulation 52 be suitably revised so that the date of

implementation of the pension scheme would be decided by the

Government instead of the Board. The relevant part of this communication

reads as under: -

“I am directed to refer to your letter No. 10491 dated 25.07.1994 on
the above subject and to say that it has been proposed by the
Orissa Khadi & VI Board (in regulation 52) to substitute every
employee who has retired on or after the 1 st day of April, 76 be
entitled either to the benefit of pension schemes as applicable to
the State Government employees as amended from time to time or
to the benefit of employees provident fund as he may opt. It is
relevant to point out that the Orissa Civil Service Pension Rules,
and Orissa Civil Service Commutation of Pension Rules have come
into force with effect from 01.04.1992. Some of the provisions of
pension and commutation Rules, i.e. commutation of pension and
50% of the last pay drawn, maximum limit of gratuity, revised rate
of family pension, liberalized voluntary retirement schemes and the
revised procedure on medial examination in connection with
pension etc. were not in existence during the year 1976 and such
applicability of pensionary benefits to the Board employees with
effect from 01.04.1976 will create discrimination and confusion. As
such, the regulation 52 may be suitably revised with approval of the
OK & VI Board so that the date of implementation of the pension
scheme will be decided by the Government instead of the Board.”

4.4. Thereafter, on 06.10.1995, the Deputy Secretary, Handicraft and

Cottage Industries Department made a request to the Accountant General
(A&E), Orissa to examine the proposal for introduction of pension scheme

and to send his comments to the Finance Department, while stating that

there will be no extra financial burden on the Government if the pension

scheme was made applicable to the Board’s employees with effect from

01.04.1976.

4.5. However, by way of the letter dated 31.07.1996, the Industries

Department informed the Board that the proposal for introduction of

pension scheme for its employees had not been agreed to by the Finance

Department for a variety of reasons, including that: (a) earlier, by the letter

dated 18.12.1992, the pension scheme was proposed to be introduced with

effect from 01.04.1985 but subsequently, the same was revised to be

effective from 01.04.1976; (b) giving retrospective effect to pension

scheme was rare and it would create administrative and financial

complications in future; (c) the employees of the Board who had retired

prior to 01.04.1976 will also claim pensionary benefits; and (d) all other

Corporations/Institutions/Bodies of the State will agitate for pensionary

benefits retrospectively, which would land the Government in

administrative and financial trouble. The Board was, therefore, requested

to re-examine the proposal in the light of the observations of Finance

Department and to re-submit the same while keeping in view the factors

concerning the sources of finance and financial burden on the Government.
4.6. In the aforementioned backdrop, some retired employees of the

Board filed a writ petition, being OJC No. 15344 of 1998, before the High

Court, which came to be disposed of by the order dated 06.02.2001,

whereby the High Court directed the Industries Department to take a

decision with regard to extension of pension scheme to the employees of

the Board.

4.7. Thereafter, on 20.07.2001, the Board wrote a letter to the Industries

Department giving justification for introducing the pension scheme in the

manner that the requirement of funds to meet the pensionary scheme will

be Rs. 1.83 crore; that by introduction of pensionary scheme, the

Government will save Rs. 1.90 crore in the coming ten years; and that the

retired employees were to refund a sum of Rs. 75.07 lakh towards EPF

amount if they come over to the pensionary scheme. However, on

27.03.2002, the Industries Department intimated that the State

Government had decided not to introduce the pensionary scheme for the

employees of the Board after taking into account the precarious financial

condition of the State.

5. Aggrieved by the aforesaid communication dated 27.03.2002, the

ex-employees of the Board filed a writ petition before the High Court, being

W.P. (C) No. 1951 of 2002. During the pendency of this writ petition, the

existing employees of the Board filed another writ petition, being W.P.(C)
No. 14729 of 2007, claiming pensionary benefits at par with other

organizations of the State and the State Government employees.

5.1. On 12.09.2008, the High Court disposed of W.P. (C) No. 1951 of

2002 with the observations, inter alia, that the said petitioners having retired

long back and there being no provision for pension in their service

conditions, no directions could be issued qua them for payment of any

pension. However, in view of the pendency of other writ petition, the High

Court provided that the claim of the said petitioners will be subject to the

result of the other writ petition filed by the employees who were in service.

5.2. Thereafter, the said other writ petition, being W.P. (C) No. 14729 of

2007, was disposed of by the High Court on 25.11.2008, with direction to

the appellant State to reconsider the matter and to take the decision

expeditiously. The High Court observed and directed as under: -

“3. No Counter Affidavit has been filed by the State. Be that as it
may, it appears that the State Government has decided to introduce
the pension scheme but then refrained from doing so due to
financial emergency. In view of the fact that six years have passed
in the meanwhile and as pension is no more a bounty this Court
feels that ends of justice and equity will be better served if Opposite
Party No. 1 is directed to reconsider the direction issued by this
Court in the earlier Writ Petition and take a decision as expeditiously
as possible, preferably within a period of six months, from the date
of communication of this order, and directs accordingly.”

6. Even after re-examination of the matter pursuant to the directions

aforesaid, the Finance Department observed that the State Government

could not bear the liabilities in implementing the pension scheme for the
employees of the Board and this was communicated to the Board by the

Industries Department, by way of its letter dated 14.12.2009, in the

following terms: -

“In inviting a reference to your letter No. 2128 dated 12.05.2009 on
the above subject, I am directed to say that after detail examination
Finance Department have been pleased to observe that State
Government cannot bear the liabilities in implementing a pension
scheme for the OK & VI Board.”

7. Dissatisfied with such a response, the writ petition leading to this

appeal, being W.P. (C) No. 8438 of 2010, was filed by respondent No. 1

(an association of the employees of the Board) on 04.05.2010 with the

following prayers: -

“Under the circumstances, it is humbly requested that the Hon’ble
Court be pleased to issue a writ in the nature of mandamus or any
other appropriate writ/writs quashing the letter dated 14.12.2009 as
per Annexure – 17.

And further be pleased to direct the Opposite Party No. 1 and 2 to
give previous sanction under
Section 36(1)
of the Khadi and Village
Industries Board Act, 1955 at an early date the Opposite Party
No. 2 make regulation under
Section 36(2)
of the said Act
introducing pension scheme as per the Resolution of the Orissa
Khadi and Village Industries Board dated 10.02.2009.
And further be pleased to direct the Opposite Parties to grant
pension to the Employees of Orissa Khadi and Village Industries
Board from the date of their respective retirement.
Or pass appropriate direction(s) and order(s) as this Hon’ble Court
thinks fit and proper.”

7.1. A learned Single Judge of the High Court disposed of the writ

petition so filed by respondent No. 1 by way of the impugned order dated

25.10.2010, with directions to the State Government to amend the

Regulations of 1960 and to take appropriate steps to incorporate the
pension scheme for the Board’s employees at par with the State

Government employees. The learned Single Judge took note of the

exchange of communications as above noticed and deduced that the State

Government was desirous of extending the benefit to the Board’s

employees but, ultimately the proposition was rejected only on the ground

that the State Government could not bear the liabilities of pension scheme

for the Board. The learned Single Judge observed that if one benefit was

extended to the counterpart employees, the same could not be denied to

the others and in this regard, took note of pensionary benefits extended to

the employees of a couple of Universities as also the Social Welfare

Advisory Board; and found that not introducing pension scheme in favour

of the employees of the Board on the ground of financial stringencies,

where similarly situated organisations were enjoying the benefits, was a

matter of sheer discrimination and as a result, violative of
Articles 14
and
of the Constitution of India. The learned Single Judge also observed

that the Board is a part and parcel of the State Government when all service

rules of the State Government employees were adopted and, therefore, it

was a moral duty of the opposite parties to enact the provisions for

providing pensionary benefits to the employees of the Board. A reference

was also made to certain decisions relied upon on behalf of the employees

with regard to the pensionary benefits extended to the employees of

different Khadi and Village Industries Boards of other States and the
learned Single Judge observed that consistently, it was held by the Courts

that financial hardship was not at all a criterion or ground for depriving the

employees of the Board of service benefits, such as pension. With these

observations and analysis, the learned Single Judge proceeded to set

aside the impugned communication dated 14.12.2009 and issued

directions to the State Government in the following terms: -

“17. As such the order dated 14.12.2009 vide Anenxure-12 is not
sustainable and the same is quashed. In view of the aforesaid
submission my considered opinion is that the Board employees are
entitled to pension at par with the Government employees of the
State and like other State Government organizations and for which
the State Government should amend the Orissa Khadi and Village
Industries Board Regulation by extending the pensionary benefit to
the employees of the Orissa Khadi and Village Industries and
accordingly, the Opposite Party Nos. 1 and 2 are directed to take
appropriate steps to incorporate pension scheme for the Board’s
employees at par with State Government employees. The entire
exercise shall be completed within a period of three months from
the date of communication of this order.”

8. In challenge to the order so passed by the learned Single Judge,

the appellant State preferred an intra-court appeal, being W.A. No. 268 of

2011, which was decided by the impugned order dated 20.12.2012. The

Division Bench of the High Court observed that the direction of the learned

Single Judge was only advisory in nature and the same was in the welfare

of the employees of the Board; and the State Government shall honour the

same while keeping in view the interest of the retired employees in terms

of the mandate of
Article 41
of the Directive Principles of State Policy by

discharging its constitutional obligations towards aged persons who have
served the State through the Board. The relevant parts of the impugned

order dated 20.12.2012 could be usefully reproduced as under:

“10. After hearing learned counsel for the respective parties, we
have examined the matter at length. Perusal of the different
provisions of the Act, 1955, Rule, 1956 and Regulation, 1960
framed thereunder by the Government leaves no manner of doubt
that the real control, authority of the Board rests with the Industries
Department of the Government, in other words the Board is under
the direct control of the State Government and is totally dependant
on the Government for running its administration and in carrying out
its activities including finance. Notwithstanding the fact that the
Board is a statutory one and right from the commencement, the
management, the administration, the appointment, framing
regulations, carrying on with its activities, formulations of policy are
all controlled by the State Government. Furthermore, the
employees of the Board in question are governed and controlled by
Rules as are applicable to the State Government servants and the
provisions of the Odisha Service Code, which are applicable to the
State Government servants, are also applicable to the employees
of the Board. The Travelling Allowance Rules and Odisha Leave
Rules are also applicable to the employees of the Board. The
function of the Board is well defined in
Section 17
of the Act, 1955.
To discharge such functions, programmes have been drawn by the
Board with the sanction of the State Government and therefore, the
State Government has all pervasive control over the Board and got
power to frame Rules under
Section 35
of the Act, 1955. It is true
that the Regulation 52 of the Regulation, 1960 provides that the
employees of the Board are not entitled to pensionary benefits but
to overcome such a hurdle the Board have recommended to the
Government for amending Regulation 52 and this Court also
directed the Government to consider such demand of pension to
the employees of the Board in OJC No.15344 of 1998 and W.P. (C)
No.14729 of 2007. But the State Government on the ground that it
cannot take extra burden of providing pension to the employees of
the Board did not comply with the directions of this Court.
Admittedly, when all conditions of service of the State Government
employees are applicable to the Board employees, refusal to extend
the pensionary scheme to such employees of the Board, in our
considered view, amounts to discrimination and violative of
Articles
and
of the Constitution of India. The learned Single Judge has
dealt with the important aspect in detail in the impugned judgment.

It was brought to our notice that the Board on several occasions
moved the State Government through the Industries Department
which is the controlling authority of the Board for extending
pensionary benefits to the employees of the Board, but the same
did not find favour with the Government on the ground that the State
Government cannot carry the extra financial burden. In our opinion,
the view taken by the learned Single Judge with regard to making
provision for providing pension to the employees of the Board is
quite justified and calls for no interference, as the same is in
conformity with the decisions of Gujarat and Bombay High Courts
in the cases referred to supra upon which learned Senior Counsel
has rightly placed reliance. For all practical purposes, the Board is
an instrumentality of the State and therefore, it is covered under the

Article 12
of the Constitution of India and undoubtedly amenable to
the writ jurisdiction of this Court. We are quite aware of our
limitations under
Article 226
of the Constitution. The direction of the
learned Single Judge to Opposite Party Nos.1 and 2 to take
appropriate steps to incorporate the pension scheme for the
employees of the Board at par with the State Government
employees is only advisory in nature and the same is in the welfare
of the employees of the Board. The State Government shall honour
such advisory note keeping in view that the interest of the retired
employees shall be taken care of by the State Government as
mandated under
Article 41
of the directive principles of the State
policy by discharging its constitutional obligations towards aged
persons who have served the State through Board, as the State has
decentralized its power and functions through its instrumentalities
such as the Board and other statutory Corporation for good
governance of the people under the Constitution of India.

11. In the result, after making a threadbare analysis and appraisal
of factual and legal profile and proposition highlighted before us, we
find no merit in this writ appeal and the impugned order of the
learned Single Judge does not call for any interference in any
manner.

Accordingly, the writ appeal stands dismissed.”

9. The appellant State of Orissa is aggrieved by the orders so passed

by the High Court. Before proceeding further, it may be noticed that while

entertaining the petition seeking leave to appeal in this matter,

on 11.04.2014, this Court stayed the operation of the impugned judgment

and order of the High Court; and on 07.09.2015, while granting leave to
appeal, the interim order dated 11.04.2014 was continued. The same

position has continued hitherto.

10. While questioning the impugned orders and the directions issued

thereunder, learned counsel for the appellant State, after an elaborate

reference to the provisions of the Act of 1955 and the Regulations of 1960

as also the exchange of communications, has submitted that the impugned

orders remain unsustainable in law and deserve to be set aside.

10.1. Learned counsel for the appellant has contended that no direction

contrary to Regulation 52 of the Regulations of 1960 could have been

issued, particularly when the said Regulation 52 was neither a subject-

matter of challenge before the High Court nor was declared invalid in any

proceedings. Learned counsel has yet further submitted that the directions

of the learned Single Judge, as approved by the Division Bench, without

deliberating on Regulation 52 as also the other provisions in the

Regulations of 1960 including those contained in Regulations 53 to 56,

remain wholly unjustified and cannot be approved.

10.2. Learned counsel would submit that the prayers based on certain

communications exchanged between the Board and the State Government

could not have been countenanced at the instance of the employees, who

had joined the services with the Board while being conscious of the

stipulations in the Regulations and thereby, the conditions of their service.

Learned counsel has submitted that even when relying on the resolutions
adopted by the Board and the exchange of communications, the learned

Single Judge has failed to consider that at no point of time, the State ever

acceded to the proposal of the Board; and certain suggestions made by

some of the officers of the Government at different levels could not have

been taken in aid to direct the appellants to amend the said Regulation 52.

Learned counsel has further submitted that the Division Bench of the High

Court, although consciously took note of the stipulations of Regulation 52

and observed that the directions of the learned Single Judge were only

advisory in nature but then, proceeded to make further observations, which

are practically of issuing mandamus to the State Government to amend the

Regulations. These directions, according to the learned counsel, enter into

the arena of policy decisions and legislative functions; and the High Court

has not been justified in issuing the same.

10.3. Learned counsel has further submitted that the learned Single

Judge has referred to the pension granted to the employees of the State

Social Advisory Board but, has failed to notice that 50% of those expenses

were borne by the Government of India. Further, the employees of the

University and the employees of the Board do not form a homogenous

class and cannot be treated at par, especially when the Regulations of

1960 carry statutory force and Regulation 52 therein cannot be ignored.

10.4. Learned counsel for the appellant has also submitted that any

reference to the provisions contained in relation to different State Boards
remain inapposite because any prescription by any other State cannot be

ipso facto imposed on the appellant State. According to the learned

counsel, contrary to the suggestions of the writ petitioners, there are many

other State Boards in the country who have not granted pensionary benefits

to their employees.

10.5. It is also submitted that the writ petition by the retired employees of

the Board seeking pension after having withdrawn the amount from their

CPF/EPF account was liable to be dismissed and hence, the impugned

orders deserve to be set aside.

11. Per contra, learned senior counsel for respondent No. 1 has duly

supported the orders impugned and has made a variety of submissions

which could be summarised as follows:

11.1. Learned senior counsel has referred to the provisions contained in

the Act of 1955 and has submitted that respondent No. 2 is a statutory

Board with the State Government exercising absolute control over its affairs

including budgetary control; and by virtue of powers under Section 36, the

Regulations of 1960 were framed. In terms of Regulation 40, the rules in

the Orissa Service Code, Volume I apply mutatis mutandis to the

employees of the Board, meaning thereby that the employees of the Board

were and are treated at par with State Government employees but,

Regulation 52, which provides for gratuity and contributory provident fund
benefits, unjustifiably denies pensionary benefits to the employees of the

Board.

11.2. Learned senior counsel for respondent No. 1 has referred to the

aforementioned exchange of communications and has submitted that in the

given set of circumstances and in the wake of repeated representations,

the Board, in all earnestness, took up the cause for grant of pension to its

employees and also requested the Government to bring about appropriate

amendments in view of the powers under Section 36 so that Regulation 52

could be amended to include pension, particularly when Regulation 40 did

equate the employees of the Board at par with the State Government

employees. Learned senior counsel has strenuously argued that the State

Government, while in principle agreeing to grant of pensionary benefits by

the letter dated 26.10.1994, cited only a specious plea of financial

stringency for denying such pensionary benefits to the employees of the

Board which could not have been countenanced. According to the learned

counsel, the writ petition filed by the employees on the grounds of hostile

discrimination and non-consideration of representation was rightly decided

by the learned Single Judge with directions to the State Government to

amend the Regulations so as to extend the pensionary benefits to the

employees of the Board at par with the employees of the State

Government. Further, the Division Bench of the High Court, while affirming

the ultimate conclusion of the learned Single Judge, rightly observed that
the State Government, while following
Article 41
of the Directive Principles

of State Policy, should honour the advice given by the Single Judge, by

incorporating the pension scheme for the employees of the Board.

11.3. Learned senior counsel has vehemently argued that financial

stringency cannot be a reason for denying pensionary benefits to the

employees with reference to the decisions of this Court, including that in

Haryana State Minor Irrigation Tubewells Corporation and Ors. v. G.S.

Uppal and Ors.
: (2008) 7 SCC 375, where, in paragraphs 33 and 34, this

Court held that the High Court was right in rejecting the plea of the

Corporation about inability to revise the pay scales of the employees on

account of the financial burden on the Corporation.

The learned counsel

has also referred to the decision of this Court in
Punjab State Cooperative

Agricultural Development Bank Ltd. v. Registrar, Cooperative

Societies and Ors.
: (2022) 4 SCC 363. It has further been submitted that

other Departments of the State, as noticed by the High Court, have been

granted pensionary benefits where the cadre strength is much larger and

hence, any reference to financial stringency is nothing but a bogey

argument of the State Government.

11.4. Learned senior counsel for respondent No. 1 has further argued,

with reference to the decisions of this Court in D.S. Nakara and Ors. v.

Union of India: (
1983) 1 SCC 305 and State of Jharkhand and Ors. v.

Jitendra Kumar Srivastava and Anr.
: (2013) 12 SCC 210, that pension
is neither a bounty nor is it a matter of grace, but is a claimable right.

Therefore, feeble reasons such as financial constraints cannot be

considered good enough for not extending pensionary benefits to retired

employees, who are anyways treated at par with the State Government

employees for other purposes.

Rather, the denial of such pensionary rights

amounts to hostile discrimination between two sets of employees who are

otherwise similarly circumstanced, and remains impermissible, as held by

this Court in the case of
Air India v. Nergesh Meerza and Ors.
: (1981) 4

SCC 335.

11.5. It has also been submitted that there were 383 employees (past and

present) eligible for pension with effect from 01.04.1976, out of which,

between the year 1976 to the month of May, 2022, 140 employees have

died; at present, the existing posts are only 210 as the Government has

abolished 173 posts; and the existing staff strength is only 58 because no

appointment has been made since the year 1996. It has, thus, been

contended that while the State Government employees, who are huge in

number, are entitled to pension, denial of the same to a miniscule number

of the Board employees (who are otherwise treated at par with State

Government employees), on the ground of financial stringency does not

behove well of a model employer like the State of Orissa, which is one of

the few financially strong States within the Union of India.
11.6. Learned senior counsel has further submitted that in similar

circumstances, a Division Bench of the Gujarat High Court, by the judgment

dated 23.07.2004 in the case of
Gujarat State Khadi Gramodyog Board

v. Gujarat State Khadi Gramodyog Pensioners Association
: 2004 SCC

OnLine Guj 105, allowed the grant of pensionary benefits to the employees

of Gujarat State Khadi Gramodyog Board; and the said judgement was not

interfered with by this Court in SLP (Civil) CC No.1321- 1482 of 2005,

which also persuaded the High Court of Orissa to grant similar reliefs by

the impugned orders and in the given set of facts, the impugned orders

would call for no interference.

11.7. Further, it has been submitted on behalf of respondent No. 1 that in

very many cases, the employees who were drawing or contributing, or had

withdrawn the CPF after retirement, were given the liberty of refunding such

amount with interest as was determined in this Court for grant of pension;

and with reference to the decision in the case of
University of Delhi v.

Shashi Kiran and Ors.
: 2022 SCC OnLine SC 594, it has been contended

that similar treatment may be provided in relation to the employees of the

Board for grant of pensionary benefits.

11.8. In the last, learned senior counsel has made a fervent plea that the

case of the employees concerned may be sympathetically considered by

this Court and for that matter, by using extraordinary powers under
Article
of the Constitution, to render complete justice, this Court may call upon
the State Government to facilitate grant of pension by recommending the

amendment of Regulation 52 so that the employees, who have toiled on

behalf of the Board representing the State Government, would have a

secured retired life.

12. Learned counsel appearing for respondent No. 2, the Board, has

duly supported the claim made by the employees for pensionary benefits

and has opposed this appeal with a few additional submissions.

12.1. Learned counsel for the Board would submit that promotion of khadi

and cottage industries being the constitutional obligation of the State in

terms of
Article 43
of the Constitution of India, the appellant State has

enacted the Act of 1955 and has established the Board. This being

essentially State endeavour, the parity claimed by the employees of the

Board with their counterparts in State services could not have been denied.

12.2. It has also been submitted that there are two type of employees in

the Board, one being those who have been recruited by the Board and the

others being those who come on deputation to the Board for a particular

period of time. While the deputationists who come from State Government

are entitled to pension and pension related benefits, the employees who

are recruited by the Board have been deprived of the same even though

essentially, they are discharging the State functions, as enshrined in
Article
of the Constitution of India.
12.3. It has further been submitted that not only the deputationists but

even the employees of the Board are governed by the rules applicable to

the State Government employees like Service Code, Financial Rules,

Record Manual, Pay Scale Rules, Leave Rules, Reservation Rules,

Conduct and Discipline Rules etc. Thus, when all other rules applicable to

the State Government employees are applicable to the employees of the

Board, it is rather unjust and violative of the principles of fairness envisaged

by
Article 14
to deny pension to such employees in terms of the Orissa

Government Pension Rules.

12.4. According to the learned counsel, the High Court has rightly drawn

analogy from Khadi Boards of different States as also from other Orissa

Government institutions, where the employees are entitled to pension; and

the direction for granting pension to the employees of the Board is neither

unjust nor unreasonable nor unfair.

12.5. Learned counsel for the Board has again referred to the statistics

to submit that only a small number of employees are to be benefitted by

grant of pension in the present case and that the Board employees are

essentially appointed in Group B and Group C posts. Thus, the pension in

their relation would not be of an astronomical figure; and, the contention of

alibi based on lack of financial resources deserves to be rejected.

12.6. As regards the question of challenge to the provision by virtue of

which pension has been denied to the employees of the Board, it has been
argued that the employees of the Board have been fighting for grant of

pension for a long period of time and the instant litigation is not the first

round of litigation. The very fact of demanding pension on the part of these

employees in itself is a direct challenge to the provision denying pension to

them; and in the backdrop of the present case, it cannot be construed that

the employees of the Orissa Khadi Board have not raised a direct grievance

against the provision denying pension to them.

12.7. Learned counsel for the Board has reiterated the plea that in this

matter of grant of pension to employees who are direct State functionaries

in terms of
Article 43
of the Constitution of India, a broad view is required

to be taken and the grievance cannot be stiffened on a narrow technicality.

It has, thus, been submitted that in the broader interest of justice and for

doing complete justice, this Court could invoke
Article 142
of the

Constitution of India to maintain the direction for grant of pension to the

employees concerned.

13. We have given anxious considerations to the rival submissions and

have examined the record with reference to the law applicable.

14. It may be observed in the first place that the principles enunciated

in the decisions cited by the learned counsel for respondents, that pension

is neither a charity nor a bounty nor a gratuitous payment but, is earned for

past services rendered; and that non-availability of financial resources

cannot be a defence by the Government or any of its agencies or
instrumentalities in taking away vested right accrued to the employees, are

neither of any doubt nor of any dispute. However, while adverting to the

question about applicability of these principles to the case at hand, we may

examine the relevant observations and expositions in the cited decisions

as infra.

14.1.
In
D.S. Nakara
(supra), this Court reaffirmed the principles that

pension is not a bounty or a matter of grace depending on the sweet will of

the employer as also that pension is not an ex gratia payment and is a

social welfare measure rendering socio-economic justice. In the referred

passages, this Court observed and exposited as under: -

“20. The antequated notion of pension being a bounty, a gratuitous
payment depending upon the sweet will or grace of the employer
not claimable as a right and, therefore, no right to pension can be
enforced through Court has been swept under the carpet by the
decision of the Constitution Bench in
Deokinandan Prasad v. State
of Bihar
[(1971) 2 SCC 330] wherein this Court authoritatively ruled
that pension is a right and the payment of it does not depend upon
the discretion of the Government but is governed by the rules and
a government servant coming within those rules is entitled to claim
pension. It was further held that the grant of pension does not
depend upon anyone's discretion. It is only for the purpose of
quantifying the amount having regard to service and other allied
matters that it may be necessary for the authority to pass an order
to that effect but the right to receive pension flows to the officer not
because of any such order but by virtue of the rules.

This view was
reaffirmed in
State of Punjab v. Iqbal Singh
. [(1976) 2 SCC 1]
***** ***** *****

30. The discernible purpose thus underlying pension scheme or a
statute introducing the pension scheme must inform interpretative
process and accordingly it should receive a liberal construction and
the courts may not so interpret such statute as to render them inane
(see American Jurisprudence, 2d, 881).

31. From the discussion three things emerge: (i) that pension is
neither a bounty nor a matter of grace depending upon the sweet
will of the employer and that it creates a vested right subject to 1972
Rules which are statutory in character because they are enacted in
exercise of powers conferred by the proviso to
Article 309
and
clause (5) of
Article 148
of the Constitution; (ii) that the pension is
not an ex gratia payment but it is a payment for the past service
rendered; and (iii) it is a social welfare measure rendering socio-

economic justice to those who in the hey-day of their life ceaselessly
toiled for the employer on an assurance that in their old age they
would not be left in lurch. It must also be noticed that the quantum
of pension is a certain percentage correlated to the average
emoluments drawn during last three years of service reduced to 10
months under liberalised pension scheme. Its payment is
dependent upon an additional condition of impeccable behaviour
even subsequent to retirement, that is, since the cessation of the
contract of service and that it can be reduced or withdrawn as a
disciplinary measure.”

14.2.
In the case of
Jitendra Kumar Srivastava
(supra), this Court

reaffirmed that pension is not a bounty but is a hard earned benefit which

accrues to an employee and is in the nature of property, which cannot be

taken away without the due process of law.

This Court pronounced against

denial of right of the petitioner to receive pension and, with reference to the

Constitution Bench decision in
Deokinandan Prasad v. State of Bihar
:

(1971) 2 SCC 330 as also with reference to
D.S. Nakara
(supra), said as

under:-

“8. It is an accepted position that gratuity and pension are not
bounties. An employee earns these benefits by dint of his long,
continuous, faithful and unblemished service. Conceptually it is so
lucidly described in
D.S. Nakara v. Union of India
[(1983) 1 SCC
305…..

……It is thus a hard earned benefit which accrues to an employee
and is in the nature of “property”. This right to property cannot be
taken away without the due process of law as per the provisions of

Article 300-A
of the Constitution of India.”
14.3.
In the case of
Haryana State Minor Irrigation Tubewells

Corporation
(supra), this Court disapproved the denial of revised pay

scale to the employees on the specious grounds of financial constraints

and said as under: -

“33. The plea of the appellants that the Corporation is running under
losses and it cannot meet the financial burden on account of
revision of scales of pay has been rejected by the High Court and,
in our view, rightly so. Whatever may be the factual position, there
appears to be no basis for the action of the appellants in denying
the claim of revision of pay scales to the respondents. If the
Government feels that the Corporation is running into losses,
measures of economy, avoidance of frequent writing off of dues,
reduction of posts or repatriating deputationists may provide the
possible solution to the problem. Be that as it may, such a
contention may not be available to the appellants in the light of the
principle enunciated by this Court in
M.M.R. Khan v. Union of
India
[1990
Supp SCC 191] and Indian Overseas Bank v. Staff
Canteen Workers' Union
[(2000) 4 SCC 245] . However, so long as
the posts do exist and are manned, there appears to be no
justification for granting the respondents a scale of pay lower than
that sanctioned for those employees who are brought on
deputation. In fact, the sequence of events discussed above clearly
shows that the employees of the Corporation have been treated on
a par with those in Government at the time of revision of scales of
pay on every occasion.

34. It is an admitted position that the scales of pay were initially
revised w.e.f. 1-4-1979 and thereafter on 1-1-1986. On both these
occasions, the pay scales of the employees of the Corporation were
treated and equated on a par with those in Government. It is thus
an established fact that both were similarly situated. Thereafter,
nothing appears to have happened which may justify the differential
treatment. Thus, the Corporation cannot put forth financial loss as
a ground only with regard to a limited category of employees. It
cannot be said that the Corporation is financially sound insofar as
granting of revised pay scales to other employees is concerned, but
finds financial constraints only when it comes to dealing with the
respondents who are similarly placed in the same category….”

14.4.
In the case of
Punjab State Cooperative Agricultural

Development Bank Ltd.
(supra), this Court held that non-availability of
financial resources could not be a defence by an agency or instrumentality

of the Government in taking away vested right accrued to the employees.

This Court said as follows: -

“57. In our view, non-availability of financial resources would not be
a defence available to the appellant Bank in taking away the vested
rights accrued to the employees that too when it is for their socio-
economic security. It is an assurance that in their old age, their
periodical payment towards pension shall remain assured. The
pension which is being paid to them is not a bounty and it is for the
appellant to divert the resources from where the funds can be made
available to fulfil the rights of the employees in protecting the vested
rights accrued in their favour.”

15. A close look at the decisions aforesaid makes it clear that the

principles therein, though hardly requiring reiteration, are not of any

application to the present case.

15.1. It is evident that in all such cases where this Court frowned upon

denial of pension, the right to receive the same was found flowing from the

applicable rules and the service conditions. The said decisions cannot be

weighed to mean that pension is required to be granted as a matter of right

even if prescription to the contrary is found in the rules and/or service

conditions.

15.2. In the present case, it remains indisputable that the Regulations of

1960 governing the service conditions of the employees of the Board

specifically contain the stipulation in Regulation 52 that they shall not be

entitled to pension. The cited decisions on behalf of the respondents cannot

be read as overriding the said Regulation 52.
15.3. So far as the questions relating to financial constraints are

concerned, true it is that in the communications exchanged between the

Board and the Government as also in the decisions communicated,

financial constraints had also been indicated on behalf of the State

Government as being one of the reasons for not acceding to the request

for retrospective amendment of Regulation 52. The question is as to

whether the Government could not have at all referred to the financial

constraints as one of the reasons for not acceding to such a prayer for

amendment.

15.4. In our view, a reference to financial constraints by the Government

while denying the prayer for retrospective amendment of Regulation 52

cannot be disapproved with reference to the decisions aforesaid. A matter

of denial of the revised pay scale to the employees who were otherwise

treated at par with those with the Government employees at the time of

revision of pay scale (as in the
Haryana
case, supra); or taking away

vested rights accrued to the employees (as in the
Punjab
case, supra),

cannot be imported to the present case where the Government has not

found itself agreeable to the proposed alteration of the service conditions

of the Board’s employees with retrospective effect, i.e., with effect from

01.04.1976. It has not been a case of denial of any vested or accrued right

of the employees of the Board.
16.
In the given set of facts and circumstances, the decision of this

Court in the case of
Air India
(supra), reaffirming the principles against

hostile discrimination is also of no assistance to the respondents because

what
Article 14
forbids is hostile discrimination but not reasonable

classification.

In the referred passage in the case of
Air India
(supra), this

Court re-emphasised the principles against hostile discrimination but, at the

same time, underscored the principles of reasonable classification while

observing as under:

“39….

“(1)…..

(2)
Article 14
forbids hostile discrimination but not reasonable
classification. Thus, where persons belonging to a particular
class in view of their special attributes, qualities, mode of
recruitment and the like, are differently treated in public
interest to advance and boost members belonging to
backward classes, such a classification would not amount to
discrimination having a close nexus with the objects sought to
be achieved so that in such cases
Article 14
will be completely
out of the way.

(3)
Article 14
certainly applies where equals are treated
differently without any reasonable basis.

(4) Where equals and unequals are treated differently,
Article
would have no application.

(5) Even if there be one class of service having several
categories with different attributes and incidents, such a
category becomes a separate class by itself and no difference
or discrimination between such category and the general
members of the other class would amount to any
discrimination or to denial of equality of opportunity.
(6) In order to judge whether a separate category has been
carved out of a class of service, the following circumstances
have generally to be examined:

(a) the nature, the mode and the manner of recruitment of
a particular category from the very start,

(b) the classifications of the particular category,
(c) the terms and conditions of service of the members of
the category,

(d) the nature and character of the posts and promotional
avenues,

(e) the special attributes that the particular category
possess which are not to be found in other classes, and
the like.””

16.1. The observations in the impugned judgment and order dated

20.12.2012 as also the contentions urged on behalf of the respondents,

seeking to put the employees of the Board at par with the employees of the

State Government for all purposes, carry their own shortcomings. Even if

Orissa Khadi and Village Industries Board has been established under an

enactment of the State and for several relevant factors, it could be

considered to be an instrumentality of the State, its distinct characteristic

of being a Board established with particular aim and objective cannot be

ignored altogether. The Board being a body corporate, incorporated by its

name, has been established to carry out the purposes of the Act of 1955

and not beyond. In view of its independent corporate entity and existence,

the provisions have been made in the Act of 1955 for making regulations

by the Board consistent with the Act of 1955 and rules made thereunder

with the previous sanction of the State Government, where the Regulations

could provide, inter alia, for remuneration, allowances and other conditions

of service of the staff of the Board (vide
Section 36
of the Act). The

Regulations of 1960 were framed accordingly. Therein, even while

otherwise applying a substantial part of the Rules in the Orissa Service
Code mutatis mutandis to the employees of the Board, Regulation 40 itself

starts with a clause of exception, making that provision subject to the other

provisions of the Regulations. Then, in Regulation 52 it has specifically

been provided that the employees of the Board shall not be entitled to any

pension except gratuity and CPF benefits; and further provisions have

been made for the purpose of subscription/contribution to CPF. Thus, even

when the State has established the Board to carry out its obligations in

terms of
Article 43
of the Constitution of India, it cannot follow as a corollary

that the employees of this body corporate have to be treated as State

Government employees in all respects. Such a corollary proposition would

practically amount to merging of the Board with the State Government;

rather making it as one of the Departments of the Government. This, in the

face of existing statute, cannot be done. That being the position and when

Regulations in question specifically make a distinct provision as regards

retiral benefits, the same cannot be ignored by any stretch of arguments.

16.1.1. Putting it differently, even if development of khadi and cottage

industry is a Directive Principle of State Policy, it does not follow as a

corollary that if the State establishes a Board or any organisation to carry

out the obligations under such Directive Principles, it cannot make separate

arrangements as regards the service conditions of the employees of such

a Board or organisation. Significantly, Regulation 40 of the Regulations of
1960 starts with an exception clause and while general conditions of

service of the Board’s employees have been provided in terms of the

service conditions of the employees of the State Government, the provision

is subject to the other provisions of the Regulations. Hence, the other

provision, that is the one contained in Regulation 52, cannot be ignored.

16.2. In regard to the submissions made on behalf of the State that the

aforesaid existing Regulation 52 had neither been challenged nor declared

invalid, it has been suggested on behalf of the respondents that when the

employees had regularly been raising the demand for pension by way of

representations and had taken up litigation too, challenge to the contrary

provisions is inherent in their demands/prayers. These submissions have

only been noted to be rejected for more than one reason. First, that merely

making a prayer contrary to the existing provision in the statute does not

carry in itself a challenge to the provision. Secondly, for challenging a

particular provision, specific case is required to be made out of either want

of statutory powers or of violation of any constitutional mandate. Neither

any such ground of challenge had been urged nor could be assumed.

Thirdly, it is ex facie evident that all through the prayer had been for

amendment of Regulation 52 and not of declaring the same in its existing

frame as being invalid. A prayer for amendment of the Regulation cannot

be equated with a prayer to declare the same as invalid. As noticed

hereinbefore, the State Government’s denial of the proposed alteration was
essentially based on its disagreement to alter the service conditions with

effect from 01.04.1976. Viewed from any angle, invocation of the principles

forbidding hostile discrimination remains baseless and the contentions

urged on that basis are required to be rejected.

17. On behalf of respondents, strong reliance has also been placed on

the decision of the Gujarat High Court in the case of
Gujarat State Khadi

Gramodyog Board
(supra), while pointing out that this Court did not

interfere with the same and rejected the petition seeking leave to appeal. It

has been argued on the basis of this decision that the pension rights having

been allowed to the employees of the similar Board in the State of Gujarat,

there is every reason to endorse the same treatment for the employees of

the respondent Board. The submissions do not take the case of the

employees of the respondent Board any further. This is for the simple but

pertinent reason flowing from a marked difference of the service conditions.

The High Court noticed in paragraph 14 of the referred judgment that

pension scheme in relation to employees of that Board was made

applicable with effect from 12.11.1973; and those who were members of

the contributory provident fund were also made eligible for the pension

scheme. In paragraph 14, the High Court noticed, inter alia, as under: -

“14. For all practical purposes, respondent no. 1-Board is an
instrumentality of the State and, therefore, it is covered under
Article
and undoubtedly amenable to the writ jurisdiction of this Court.

Since 1973 in the set-up of respondent no. 1, pension scheme was
introduced and was made applicable from 12.11.1973, and who
were the members of the Contributory Provident Fund (CPF), they
were made eligible for the pension scheme. It is, also, corroborated
and supported and reinforced by the Resolution dated 06.11.87. It
is, therefore, clear that the petitioners, who were employees of the
respondent No. 1-Board, and who have retired after 1.1.86 were
also entitled to pensionary benefits. The respondent No. 1-Board,
undoubtedly, has been paying pension to the employees, those who
have retired from service of the Board, got pensionary benefits but
not in terms of the recommendations made by the 5th Pay
Commission report until 31.12.1995. As a result of which, the
pension which was being paid to the petitioners, were due and
payable, prior to the recommendations of the 5th Pay Commission
and it continued. However, the effect of the recommendations made
by the 5th Pay Commission report, accepted by the State and
despite that the respondent no. 2-State, as well as, the respondent
No. 1-Board, have not been given.
In other words, the pensionary
benefits which were available under the pension scheme, which
were not revised in terms of the 5th Pay Commission report, though
accepted and adopted by the respondents authorities, have not
been paid so far.”

17.1. Thus, in the said case, pension scheme had already been

introduced and was made applicable from 12.11.1973; and the employees

who were the members of CPF, were made eligible for the pension

scheme. In fact, the question therein was as to whether the employees of

the Gujarat State Khadi Gramodyog Board, who had retired prior to

01.01.1996, were entitled to the payment of pension according to the

revised pay scale as per the recommendations of the 5th Pay Commission

Report. The observations in
the said decision
cannot be applied to issue a

writ of mandamus to the appellant State to amend the Regulations and to

change the service conditions.

18. In view of the foregoing, it follows that the cited decisions are of no

assistance to the claim of the respondents.
19. The other factor indicated on behalf of the respondents that a small

number of affected employees may not bring about much financial burden

on the State hardly make out a case for issuing a mandamus to the State

to amend the Regulations. Whether to amend the Regulations or not, in the

scheme of Act of 1955 as also the Regulations of 1960, is required to be

left to the State and for that matter, the number of employees to be

affected/benefitted is not of much relevance. In this regard too, as noticed

hereinbefore, apparently the objections of the State were against

retrospective amendment of the Regulations and thereby allowing pension

with effect from 01.04.1976. Moreover, the indications in the referred

communications that such a prescription is likely to bring about a huge

amount of administrative trouble to the Government cannot be dubbed as

mere pretence or a bogus alibi. We would hasten to observe that

irrespective of these observations and irrespective of the result of this

litigation, nothing would prevent the State Government to carry out the

amendment in the form suggested or in any other modified form, if the State

Government would be willing to do so. The only question in the present

appeal is as to whether a mandamus could have been issued to the State

to carry out amendment. As noticed, the answer could only be in the

negative.
20. The other submission made on behalf of the respondents as

regards refund of amount with interest in case of grant of pensionary rights

does not make out any case in favour of the employees of the Board. As

observed hereinabove, writ of mandamus cannot be issued to the appellant

State to carry out amendments as desired by the respondent. Hence, the

question of refund of the amount received by the employees concerned

does not arise in this case.

21. For what has been discussed hereinabove, we are clearly of the

view that the direction issued in the impugned order dated 25.10.2010 by

the learned Single Judge could not have been approved. The Division

Bench of the High Court was conscious of the fact that such a mandamus

cannot be issued so as to direct the State Government to carry out a

particular amendment and, therefore, in the impugned judgment and order

dated 20.12.2012, termed such a direction as being “advisory” in nature.

However, the Division Bench went miles ahead in the very next proposition

while observing that the State Government “shall” carry out this direction.

Converting an advice to the State Government into a mandate in this

manner, with great respect, is neither permissible nor countenanced by

law.

22. Learned counsel for the respondents, in all fairness, have made a

plea in the last that this Court may exercise the powers under
Article 142
of the Constitution of India to fill the gaps and to provide for pensionary

benefits to the employees of the Board so as to do complete justice. In this

regard too, even while respecting the endeavour, we could only observe

that under
Article 142
of the Constitution of India, this Court cannot issue

directions in violation of the statutory provisions; and sympathy or

sentiment, by itself, cannot be a ground for passing an order beyond and

contrary to the legal rights. In the face of existing Regulation 52, we find it

difficult to accede to the prayer made by the learned counsel for the

respondents. In this regard, we could only reiterate that nothing contained

in this judgment shall otherwise be of any impediment, if the State

Government would be willing to carry out any amendment to the

Regulations of 1960.

23. Subject to the observations foregoing, this appeal succeeds and is

allowed; the impugned orders are set aside; and the writ petition filed by

the respondent No. 1 is dismissed. No costs.

…….....……………………. J.

(DINESH MAHESHWARI)

…….....……………………. J.

(SANJAY KUMAR)

NEW DELHI;

MARCH 17, 2023.