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Daisy Kongari and Ors Vs. State of Jharkhand and Ors - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantDaisy Kongari and Ors
RespondentState of Jharkhand and Ors
Excerpt:
1 in the high court of jharkhand at ranchi. w.p. (s) no. 3208 of 2010 … daisy kongari, daughter of late herman kongari, r/o new garden siramtoli, club road, p.o. p.s. chutia, dist. ranchi. justin toppo, son of late suleman toppo, r/o new samlong, near oxford public school, p.o. p.s. namkum, dist. ranchi. roxana toppo, d/o late christo roy mohan khess, r/o samlong, near oxford public school, p.o. p.s. namkum, dist. ranchi. anita ekka, wife of niranjan ekka, barik toli, resident of north office para, behind maa durga apartment, p.o. p.s. doranda, dist. ranchi. bansi badan nandi, son of late harihar nandi, 108, anantpur, doranda, p.o. p.s. doranda dist. ranchi. shashi bhushan mahto, son of late sudarshan mahto at sahid nirmal mahto colony, new samlong, namkum, p.o. p.s. namkum, dist......
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 3208 of 2010 … Daisy Kongari, daughter of late Herman Kongari, R/o New Garden Siramtoli, Club Road, P.O. P.S. Chutia, Dist. Ranchi. Justin Toppo, son of late Suleman Toppo, R/o New Samlong, Near Oxford Public School, P.O. P.S. Namkum, Dist. Ranchi. Roxana Toppo, D/o late Christo Roy Mohan Khess, R/o Samlong, Near Oxford Public School, P.O. P.S. Namkum, Dist. Ranchi. Anita Ekka, wife of Niranjan Ekka, Barik Toli, resident of North Office Para, behind Maa Durga Apartment, P.O. P.S. Doranda, Dist. Ranchi. Bansi Badan Nandi, son of late Harihar Nandi, 108, Anantpur, Doranda, P.O. P.S. Doranda Dist. Ranchi. Shashi Bhushan Mahto, son of late Sudarshan Mahto at Sahid Nirmal Mahto Colony, New Samlong, Namkum, P.O. P.S. Namkum, Dist. Ranchi. Prakash Anand, son of late Thomas Palathinal, Bel Bagan, Samlong, Namkum, P.O. P.S. Namkum, Dist. Ranchi. … … Petitioners -V e r s u s- 1. The State of Jharkhand.

2. The Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi. H.E.C. P.O. & P.S. Dhurwa, Dist.-Ranchi.

3. The Secretary, Department of Finance, Government of Jharkhand, Ranchi. H.E.C., P.O. & P.S. Dhurwa, Dist.-Ranchi.

4. The Director, Higher Education, Government of Jharkhand, Ranchi. H.E.C., P.O. & P.S. Dhurwa, Dist.-Ranchi.

5. Ranchi University, through its Registrar, Ranchi University, P.O. Ranchi, P.S. Kotwali, Dist. Ranchi. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. Amit Kumar Das, Advocate. For the Respondent-State: - Mr. Rakesh Kumar Shahi, J.C. to A.A.G. … 10/09.09.2016 In the accompanied writ application, the petitioners, have inter alia prayed for issuance of an appropriate writ/direction upon the respondents to allow the petitioners, the benefits of Provident Fund, Pension and Gratuity as is being provided to other employees of the Constituent Colleges of the Ranchi University by the respondents authorities. Petitioners by way of filing I.A. No. 355 of 2013, which was allowed vide order dated 30.01.2013, further prays for quashing the part of memorandum No. 1470 dated 19.12.2012, whereby the benefit of pension, gratuity and provident fund has been made applicable to only such employees who were in service 2 on the date of notification and further directing the respondents authorities to extend the benefit of pension, gratuity and provident fund to all employees of minority affiliated colleges.

2. Mr. Amit Kumar Das, learned counsel appearing for the petitioners submits that so far as petitioners in the main writ petition, Petitioner No. 4, Bina Horo, Petitioner No. 8, Mrinmoy Dey, Petitioner Nos. 10, 11 and 12, namely, Vinod Kant Mishra, Ram Prasad and Janardan Prasad respectively are concerned, their grievances have already been redressed. As such, their names have been deleted vide order dated 30.01.2013 from the main writ petition, by this Court.

3. Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. appearing for the respondents does not dispute the aforesaid position.

4. Learned counsel for the petitioners on the basis of facts available on records has referred to the decision of this Court dated 12.08.2016, passed in W.P. (S) No. 1654 of 2013 and analogous cases and submitted that in the said judgment exhaustive reasons have been enumerated and the case of the petitioners is squarely covered by the well reasoned order of this Court in the aforesaid order.

5. The relevant points involved for adjudication of the writ application are stated hereunder: (i) Whether in view of the facts that the respondents-State have agreed in principle to extend the triple benefits of Pension, Gratuity and Provident Fund to the employees of the Minority Affiliated Colleges of Ranchi University, the respondents are justified in delaying the implementation of the same by completion of necessary formalities? (ii) Whether in view of the fact that the State Government vide its Resolution dated 5.11.1980 have introduced the triple benefits of Pension, Gratuity and Provident Fund to the employees of the University, its constituent as well as Affiliated Colleges, the respondents are justified in depriving the petitioner of the said benefits inspite of the fact that the College of the petitioners is also an affiliated College of Ranchi University established by a Minority Community? (iii) Whether in view of the fact that the employees of the aided Minority Primary and Secondary Schools are getting the beenfit of 3 Pension, Gratuity and Provident Fund, the employees of the Minority Aided Colleges can be deprived of the said benefit? (iv) Whether in view of the notings made by the Secretary, Human Resources Development Department, the Chief Secretary and the O.S.D. to the Governor on behalf of the Governor, the respondents are justified in still not implementing the decision of the extending the benefits of the Pension, Gratuity and Provident Fund to the employees of the Minority Affiliated Colleges? (v) Whether the action on the part of the respondents are violative of Article 14 of the Constitution of India? (vi) Whether in absence of any cogent reasons and a rational basis, the deprivation of the benefits of the Pension, Gratuity and Provident Fund to the employees of the Minority Affiliated Colleges amounts to illegal classification and discrimination?.

6. Shorn of unnecessary details, the facts as disclosed in the aforesaid writ applications are that all the petitioners were appointed on or before 01.12.2004. The petitioners were appointed as Readers, Lecturers and after rendering considerable length of services, they retired. Minority Colleges in the State of Jharkhand are those colleges which are established and administered as per the Articles 29 and 30 of the Constitution of India. The Minority Colleges are run and administered by the Members of the Minority but the Governing Body are constituted by the representative of the Universities as well as the representative of the Government.

7. It would be relevant to refer the provisions of Section 71 of the Jharkhand State Universities Act, 2000. It deals about the payment of retiral dues like Pension, Gratuity, Insurance and Provident Fund etc., which is quoted hereunder: “Section-71. Pension, gratuity, insurance and provident fund.- (1) The University shall, subject to such manners and conditions as may be prescribed by the Statutes, constitute any pension, gratuity, insurance or provident fund, as it may deem fit for the benefit of its officers, teachers and other employees (excluding those who are members of public services of India and whose services are lent to the University under Section 66). (2) Where any such pension, gratuity, insurance or provident fund is constituted in this manner, the State Government may declare that the 4 provisions of the Provident Funds Act, 1925 (Act No.19 of 1925) shall apply to the said Fund, as if that fund is State Provident Fund.”

8. Heard Mr. Amit Kumar Das, learned counsels appearing for the petitioners as well as Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. appearing for the respondents.

9. Mr. Amit Kumar Das, learned counsel appearing for the petitioners has strenuously urged that the notification issued vide memo no. 1470 dated 19.12.2012 has created a class amongst class itself which are violative of Articles 14, 16, 21 and 300A of the Constitution of India. Learned counsel further submits that there are catena of judgments of the Hon’ble Apex Court, which inter alia hold that the class amongst one class cannot be created and specially in the case of D.S. Nakara, reported in (1983) 1 SCC305 the Hon’ble Supreme Court has been pleased to hold that the pensionary benefits which are specially meant for the persons, who are already retired and who needs some help after the retirement, but if a class is created amongst the equals, it would not be allowed to continue, so it is struck down. Learned counsel further submits that the only rider which has been imposed by the State is that the pensionary benefits shall not be allowed to those teachers who have already retired on the cut-off date i.e. the date of enforcement. This rider creates a class within a class and violates the provisions of Articles 14, 15, 21 and 300A of the Constitution of India as it violates the twin test of Article 14 that there may be reasonable classification and that classification must have nexus with the object sought to be achieved by its maker. Although the petitioners are fulfilling the other criteria like they are appointed before 01.12.2004. So, at least pensionary benefits may be allowed to the petitioners w.e.f. 19.12.2012.

10. In order to buttress his argument, learned counsel appearing for the petitioners has referred to and relied on the judgments reported in: (i) AIR1983SC130(D.S Nakara Vs. Union of India) (Para 6, 8, 15, 32 and 49). (ii) (2008) 9 SCC125(Union of India vs. S.P.S. Vains) (Para 26, 27 and 28). (iii) (2011) 11 SCC429(K.J.S. Buttar vs. Union of India) (para 8, 9 and 5 10). (iv) (2013) 2 SCC772 (Kallakkurichi Taluk Retired Officials Association, Tamil Nadu and Ors. vs. State of Tamilnadu) (para-1, 12, 32, 33, 35, 37 and 39). (v) (2015) 9 SCC540(State of Rajasthan vs. Mahendra Nath Sharns) (Para-30).

11. Per contra, a counter affidavit has been filed on behalf of the respondents, controverting the averments made in the writ application. It has been inter alia submitted that the petitioners were teaching/non-teaching staffs of the Minority Colleges, which come within the category of affiliated College and petitioners cannot compare themselves with the teachers of Constituent Colleges/Universities. As per the definition given in Section 2 (i) of the Jharkhand State Universities Act, 2000 (Adopted) Constituent College means a teaching institution maintained or controlled by the University. The mode of appointment of teachers of Constituent College is different from the mode of appointment of teachers of affiliated Colleges. As per the provisions made in Sub Section 57 (A) of the Jharkhand State Universities Act, 2000 (Adopted) the governing body of Affiliated Minorities Colleges based on religion and language appoint their teachers with the approval of the Jharkhand Public Service Commission whereas, as per the provisions made in Section 58 of the Act, the teachers of University/ Constituent Colleges are appointed by the Vice-Chancellor of the University on the recommendation of J.P.S.C. The provision made in Section 71 of the Jharkhand State Universities Act, 2000 (Adopted) is related with the employees of Universities including the Constituent Colleges. This provision is not related with the employees of Minority Aided Colleges or any Affiliated College, therefore, the petitioners who are teaching/non teaching staffs are not the University employees. The employees of the Minority Colleges are not Government employees and so the State Government is not bound to extend the pensionary benefits to the teachers of Minority Colleges who have retired prior to 19.12.2012. The deficit grant receiving Minority Colleges are Affiliated Colleges. Moreover, the State Government are not giving any assistance to any affiliated colleges for meeting retiral benefits to its employees prior to issuance of the impugned notification dated 6 19.12.2012. The extension of pensionary benefits to the employees of the Minority deficit grant-in-aid receiving Colleges is an important financial decision of the State Government and it involves a huge amount to spend on it. The implementation of scheme from the date of notification of the resolution is not discriminatory and violative of any Article of the Constitution of India as the benefits has been extended to all such employees of the deficit grant receiving Minority Colleges, who fulfils the requisite terms and conditions mentioned in the resolution and are working on the date of issuance of the resolution and are appointed validly and regularly against posts sanctioned with finance.

12. Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. appearing for the respondents, apart from reiterating the submissions made in the counter affidavit has assiduously submitted that the pensioners and non-pensioners do not constitute the same class. In this respect, he has referred to the decision of the Hon’ble Apex Court reported in (1997) 1 SCC208(Commander Head Quarter, Calcutta & Ors. vs. Capt. Biblabendra Chanda), wherein at paragraph 4, it has been held as under:

“4. We are of the opinion that the ratio of D.S. Nakara has no application here. D.S. Nakara prohibits discrimination between pensioners forming a single class and governed by the same Rules. It was held in that case that the date specified in the liberalised pension rules as the cut-off date was chosen arbitrarily. That is not the case here. No pension was granted to the respondent because he was not eligible therefor as per the Rules in force on the date of his retirement. The new and revised Rules (it is not necessary for the purpose of this case to go into the question whether the Rules that came into force with effect from 1-1-1986 were new Rules or merely revised or liberalised Rules) which came into force with effect from 1-1-1986 were not given retrospective effect. The respondent cannot be made retrospectively eligible for pension by virtue of these Rules in such a case. This is not a case where a discrimination is being made among pensioners who were similarly situated. Accepting the respondent’s contention would have very curious consequences; even a person who had retired long earlier would equally become eligible for pension on the basis of the 1986 Rules. This cannot be.” In this respect, he has further referred to the decision of the Hon’ble Apex Court reported in (1991) 2 SCC104(Indian Ex-Services League & Ors. Vs. Union of India), wherein at paragraph 14, it has been held as under:

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“14. Nakara decision came up for consideration before another Constitution Bench recently in Krishena Kumar v. Union of India. The petitioners in that case were retired Railway employees who were covered by or opted for the Railway Contributory Provident Fund Scheme. It was held that PF retirees and pension retirees constitute different classes and it was never held in Nakara that pension retirees and PF retirees formed a homogeneous class, even though pension retirees alone did constitute a homogeneous class within which any further classification for the purpose of a liberalised pension scheme was impermissible. It was pointed out that in Nakara, it was never required to be decided that all the retirees for all purposes formed one class and no further classification was permissible. We have referred to this decision merely to indicate that another Constitution Bench of this Court also has read Nakara decision as one of limited application and there is no scope for enlarging the ambit of that decision to cover all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pension be different.”

13. Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G., in respect of the power of the State to set a cut-off date, has referred to the decision of the Hon’ble Apex Court reported in (1993) 4 SCC62(State of West Bengal and Ors. vs. Ratan Behari Dey and Ors.), wherein at paragraph 7 and 8, it has been held as under:

“7. In our opinion, the principle of Nakara has no application to the facts of this case. The precise principle enunciated in Nakara has been duly explained in Krishena Kumar by a coordinate Bench. For reasons to be assigned hereinafter, it cannot be said that prescribing April 1, 1977 as the date from which the new Regulations were to come into force is either arbitrary or discriminatory. Now, it is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the court in that behalf. It appears that in the Calcutta Corporation, a pension scheme was in force prior to 1914. Later, that scheme appears to have been given up and the Provident Fund Scheme introduced. Under the Provident Fund Scheme, a certain amount was deducted from the salary of the employees every month and credited to the Fund. An equal amount was contributed by the employer which too was credited to the Fund. The total amount to the credit of the employee in the Fund was paid to him on the date of his 8 retirement. The employees, however, were demanding the introduction of a pension scheme. The demand fell on receptive ears in the year 1977 … maybe because in that year the Left Front Government came to power in that State, as suggested by the writ petitioners. The State Government appointed a Commission to examine the said demand and to recommend the necessary measures in that behalf. The three members constituting the Commission differed with each other in certain particulars. The Government examined their recommendations and accepted them with certain modifications in the year 1981. After processing the matter through relevant departments, the Regulations were issued and published in the year 1982. In the above circumstances, the State Government thought that it would be appropriate to give effect to the said Regulations on and from April 1, 1977 i.e., the first day of the financial year in which the Pay Commission was appointed by the Government — a fact which could not have been unknown to the Corporation employees. We cannot say that the Government acted unreasonably in specifying the said date. It may also be said that, that was the year in which the Left Front came into power in that State, but does not detract from the validity of the aforesaid reasons assigned by the State in its counter affidavit filed before the Division Bench of the High Court. We are not in agreement with the opinion expressed by the High Court that the reasons assigned by the State Government are neither relevant nor acceptable.

8. In this context, it may be remembered that the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail.” Further, in this respect, he has referred to the decision of the Hon’ble Apex Court reported in (2008) 14 SCC702(Government of Andhra Pradesh and Ors. vs. N. Subbarayudu and Ors.), wherein at paragraph 5 and 6, it has been held as under:

“5. In a catena of decisions of this Court it has been held that the cut- off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain 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 appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.)”

6. No doubt in D.S. Nakara v. Union of India this Court had struck down the cut-off date in connection with the demand of pension. 9 However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.”

14. In order to appreciate the rival contentions, the point to be determined the basic principles of making classification: (i) The main basic principle of making classification is that there may be reasonable differentia; (ii) That the differentia must have its nexus sought to be achieved by the Legislature.

15. In the present case, it is to be seen as to whether there is any basis for making any cut off date between those who retired before 19.12.2012 and those who shall retire after the date of Notification i.e. 19.12.2012. But, on perusal of the impugned notification dated 19.12.2012 issued by the Principal Secretary, Department of Human Resources Development (Higher Education), Government of Jharkhand, creates two class amongst the similar situated persons by making cut off date, which is discriminatory and violative of Articles 14, 15, 16, 21, 29, 30 and 300A of the Constitution of India.

16. After bestowing my anxious consideration to the rivalized submissions and on perusal of the relevant documents, the petitioners have made out a case for interference on the ground of hostile discrimination with regard to the memo no. 1470 dated 19.12.2012. So far as exclusion of the petitioners from the benefit of grant of pension to the teachers of Deficit Grant Minority College from the prospective effect, the artificial rider which has been imposed by the State for not allowing pensions to the retired teaching/non-teaching staffs of the Minority Colleges on the cut off date i.e the date of enforcement.

17. The conspectus of legal position which has emerges from the aforesaid pleadings is that the rider creates a class within a class and violates the provision of Articles 14, 15, 21 and 300A of the Constitution of India as it violates the twin test of Article 14 which postulates that there may be reasonable classification and that classification must have nexus with the object sought to be achieved.

18. The grievance of the petitioners for grant of pension, were 10 engaging the attention of the Government since long. Moreover, as it appears from Annexure-3 to the W.P (S) No.1654/2013, His Excellency, the Chancellor has been pleased to direct the Vice-Chancellor of the Ranchi University to consider the cases of petitioners who retired prior to 19.12.2012. But the said recommendation of His Excellency, the Chancellor have not been taken into account in the notification dated 19.12.2012.

19. For better appreciation, it would be apposite to advert to the relevant Sections of the Jharkhand State Universities Act, 2000. “Section-46. Contribution by Government to the University.- (1) The State Government shall contribute annually to the University fund a recurring grant out of the Consolidated Fund of the State which shall include all expenses of recurring nature. (2) The State Government shall calculate the amount of annual recurring grant in consultation with the Vice- Chancellor and the amount may be revised at the expiry of a period of every five years. (3) The State Government may, from time to time, contribute such additional grants to the University funds, as it may deem fit having regard to the need of expansion and development of the University or the College.

48. Approval of the Budget by the State Government.- (1) Notwithstanding anything contained in this Act or the Statutes, University Ordinance or Regulation made thereunder, every University shall send its budget for every financial year to the State Government. The University shall show therein estimates of receipts and disbursement for the ensuing year. The State Government shall return the budget to the University with such modification as it may deem fit and the University shall act in conformity with such modified and approved budget. (2) At any time during the financial year, the University may send a supplementary budget to the State Government and the State Government shall return the budget to the University with such modifications and approval as it may deem proper. (3) No expenditure shall be incurred by any University unless such an expenditure has become a part of the budget as finally approved under sub-section (1) or (2).”

20. On perusal of the aforesaid provision, it would be crystal clear that as per Section 46 and 48 of the Universities Act, all the Government aids are given by the Government to the Universities in order to make payment of salary or other benefits to the teachers of the Universities, which are from admitted Colleges or the Constituent Colleges or the Minority Colleges besides the Universities. So far as Section 48 is concerned, it makes the provision for budgetary aids. It is admitted case of the respective parties 11 that either it is fully Aided Colleges or the Minority or other Constituent Units of the University, their budgets are prepared and sent to the Government. Accordingly, the entire salaries and other retiral dues are paid by the Government to the teachers of the Minority Colleges like the petitioners and other teachers of the Universities or the Constituent Colleges.

21. The Classification in between teaching/non-teaching staffs, who retired prior to and after 19.12.2012 is not legally permissible, being hit by Article 14 of the Constitution of India, since it is an unreasonable classification. In the present case, there is no such impossibility or detriment to the public interest involved if all those who retired even prior to 19.12.2012, are extended the benefit of pension in Government Aided Minority Colleges.

22. The aforesaid view of this Court, gets fortified by the decision of the Hon’ble Apex Court reported in (2011) 11 SCC429(K.J.S. Buttar vs.Union of India and Another) wherein at paragraph 10, it has been held as under:

“10. In Union of India v. SPS Vains it was observed: (SCC pp. 131-32, paras 26-28 & 30)

“26. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1-1-1996 and the other after 1-1-1996, would get two different amounts of pension. While the officers who retired prior to 1-1- 1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals who retired after 1-1-1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 1-1-1996.

27. In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution.

28. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in D.S. Nakara where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been 12 wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution. *** 30. However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara case. The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step-up principle envisaged in the fundamental rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension.”

23. The Hon’be Apex Court in case of (Kallakkurichi Taluk Retired Officials Association, Tamil Nadu and Ors. vs. State of Tamilnadu) reported in (2013) 2 SCC772 at praragraph 33 and 39 has held as under:

“33. At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. Article 16 of the Constitution of India permits a valid classification (see State of Kerala v. N.M. Thomas). A valid classification is based on a just objective. The result to be achieved by the just objective presupposes, the choice of some for differential consideration/treatment, over others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective. And secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. Legalistically, the test for a valid classification may be summarised as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. Whenever a cut-off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification (or valid discrimination) must necessarily be satisfied.

39. Having given our thoughtful consideration to the controversy in hand, it is not possible for us to find a valid justification for the State Government to have classified pensioners similarly situated as the 13 appellants herein (who had retired after 1-6-1988), from those who had retired prior thereto. Inflation, in case of all such pensioners, whether retired prior to 1-6-1988 or thereafter, would have had the same effect on all of them. The purpose of adding the component of “dearness pay” to wages for calculating pension is to offset the effect of inflation. In our considered view, therefore, the instant classification made by the State Government in the impugned Government Order dated 9-8-1989 placing employees who had retired after 1-6-1988 at a disadvantage, vis-à-vis the employees who had retired prior thereto, by allowing them a lower component of “dearness pay”, is clearly arbitrary and discriminatory, and as such, is liable to be set aside as violative of Articles 14 and 16 of the Constitution of India.”

24. On cumulative effect of the facts, reasons and judicial pronouncements, the writ petition is disposed of with direction to the respondents to reconsider and take a decision afresh, in accordance with law in issuing a corrigendum, so that the notification dated 19.12.2012 shall apply in the same and similar manner with regard to the teaching/non teaching staffs, who have been appointed on or before 01.12.2004 and retired prior to the issuance of notification dated 19.12.2012, within a period of sixteen weeks from the date of receipt of a copy of the order.

25. With the aforesaid direction, this writ petitions stand disposed of. (Pramath Patnaik, J.) APK


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