IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NOs.775-787 OF 2015(S-R) C/W WRIT PETITION NOs.49241-49242 OF 2015(S-RES) IN W.P. NOs.775-787/2015 BETWEEN 1. DR. K. GOPALA S/O LATE SRI B.V KRISHNAPPA, AGED ABOUT 77 YEARS, EARLIER WORKING AS PROFESSOR IN PHYSICS, DEPARTMENT OF POST GRADUATE STUDIES & RESEARCH, UNIVERSITY OF MYSORE, MANASAGANGOTHRI, MYSORE 570006.
SINCE RETIRED AND RESIDING AT NO.498, II CROSS, III MAIN ROAD, MARUTI TEMPLE ROAD, SARASWATHIPURAM, MYSORE 570009.
2. DR. P. VENKATARAMAIAH SON OF LATE P T.PUTTAIAH, AGED ABOUT 77 YEARS, EARLIER WORKING AS VICE CHANCELLOR, KUVEMPU UNIVERSITY, SINCE RETIRED AND RESIDING AT NO.436, VISHWA MANAVA DOUBLE ROAD, KUVEMPU NAGAR, MYSORE 570009.
3. SRI. K. KEMPEGOWDA SON OF KEMPEGOWDA, AGED ABOUT 77 YEARS, EARLIER WORKING AS PROFESSOR OF LINGUISTICS, INSTITUTE OF KANNADA STUDIES, UNIVERSITY OF MYSORE, MANASAGANGOTHRI, MYSORE 570006, SINCE RETIRED AND RESIDING AT NO.527, 3RD CROSS, 15TH MAIN ROAD, SARASWATHIPURAM, MYSORE 570009.
4. PROF. S.N. HEGDE SON OF SADASHIVA HEGDE, AGED ABOUT 72 YEARS, EARLIER WORKING AS VICE CHANCELLOR, UNIVERSITY OF MYSORE, MANASAGANGOTHRI, MYSORE 570006 SINCE RETIRED RESIDING AT NO.2437, VIJAYANAGAR II STAGE, MYSORE 570017.
5. DR. D. A. SHANKAR S/O LATE D ASHWATHANARAYANA RAO, AGED ABOUT 77 YEARS, EARLIER WORKING AS PROFESSOR EMERITUS, DEPARTMENT OF POST GRADUATE STUDIES & RESEARCH IN ENGLISH, UNIVERSITY OF MYSORE, MANASAGANGOTHRI,MYSORE-570 006 SINCE RETIRED R/AT NO.995,DODDERIMANE, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570 023.
6. PROF. E. SAMPATH KUMAR S/O LATE EMBAR KRISHNAMACHAR, AGED ABOUT 78 YEARS, EARLIER WORKING AS PROFESSOR IN MATHEMATICS, DEPARTMENT OF POST GRADUATE STUDIES & RESEARCH IN MATHEMATICS, UNIVERSITY OF MYSORE, MANASAGANGOTHRI, MYSORE-570 006 SINCE RETIRED R/AT NO.8/1, 13TH CROSS, ADI PAMPA ROAD, V. V. MOHALLA, MYSORE-570 002.
7. PROF. S. BHARGAVA S/O J SRINIVASAMURTHY, AGED ABOUT 74 YEARS, EARLIER WORKING AS PROFESSOR DEPARTMENT OF POST GRADUATE STUDIES & RESEARCH IN MATHEMATICS, UNIVERSITY OF MYSORE, MANASAGANGOTHRI,MYSORE-570 006 SINCE RETIRED R/AT NO.5, II STAGE, GANGOTHRI LAYOUT,SAHUKAR CHANNAYYA ROAD, MYSORE-570 009.
8. SRI. H. S. GOPALAKRISHNA SON OF H SUNDARAM IYER, AGED ABOUT 76 YEARS, EARLIER WORKING AS PROFESSOR, DEPARTMENT OF POST GRADUATE STUDIES & RESEARCH IN MATHEMATICS , UNIVERSITY OF MYSORE, MANASAGANTOTHRI, MYSORE-570006 SINCE RETIRED RESIDNG AT NO.746/B, 17TH MAIN ROAD, SARASWATHIPURAM, MYSORE-570009.
9. SRI. S. SYED ABDUL AZEEZ SON OF LATE R SYAD ABDUL SUBHAN, AGED ABOUT 80 YEARS, EARLIER WORKING AS LECTURER (SELECTION GRADE) IN MATHEMATICS, YUVARAJA’S COLLEGE (A CONSTITUENT COLLEGE OF UNIVERSITY OF MYSORE) MYSORE -570006 SINCE RETIRED AND RESIDING AT FLAT NO.3A, III FLOOR, ROYAL APARTMENT NO.5-8, 8TH MAIN ROAD, I CROSS, NEW GURAPPANAPALYA, BANGALORE-560029.
10. PROF. V. B. COUTINHO S/O BERNARD COUTINHO, AGED ABOUT 70 YEARS, EARLIER WORKING AS VICE CHANCELLOR, GULBARGA UNIVERSITY, BULBARGA-585106 SINCE RETIRED AND RESIDING AT FLAT NO.202, SERENE MANOR, 26, WHEELER ROAD EXTENSION, ST THOMAS TOWN P. O., BANGALORE-560084.
11. PROF. A. M. PATHAN, S/O M R PATHAN AGED ABOUT 72 YEARS, EARLEIR WORKING AS VICE CHANCELLOR, KARNATAKA UNIVERSITY, DHARWAD-580003, SINCE RETIRED AND RESIDING AT 75/1, 3RD FLOOR, RANOJI RAO ROAD, BASAVANAGUDI, BANGALORE-560 004.
12. PROF. M. MUNIYAMMA, D/O M MUNISWAMAPPA, AGED ABOUT 76 YEARS, EARLEIR WORKING AS VICE CHANCELLOR, GULBARGA UNIVERSITY, GULBARGA-585106, SINCE RETIRED AND RESIDING AT FLAT NO.3, 11TH CROS, JAYAMAHAL, BANGALORE-560 046.
13. DR. MRUTYUNJAYA P KULENUR, S/O LATE PUTTAPPA KULENUR, RESIDING AT NO.3, DAN DEN APARTMENTS, NEAR VIJAYA BANK CIRCLE, KUVEMPUNAGARA, MYSORE-570023.
... PETITIONERS (BY SRI. P. S. RAJAGOPAL, SENIOR COUNSEL FOR M/S M. NAGA PRASANNA ASSTS, ADVOCATES) AND 1. THE STATE OF KARNATAKA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, M.S. BUILDING, DR. B.R AMBEDKAR VEEDHI, BANGALORE 560001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, VIDHANA SOUDHA, BANGALORE 560001.
3. MYSORE UNIVERSITY CRAWFORD HALL, MYSORE 570005 BY ITS REGISTRAR.
4. BANGALORE UNIVERSITY JNANA BHARATHI, BANGALORE 560056 BY ITS REGISTRAR.
5. MANGALORE UNIVERSITY MANGALAGANGOTHRI 574199 BY ITS REGISTRAR.
(BY SRI. NITIN RAMESH, AAG A/W ... RESPONDENTS SRI. SRIDHAR N HEGDE, HCGP FOR R1 & R2, SRI. T. P. RAJENDERA KUMAR SUNGAY, ADVOCATE FOR R3 TO R5) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R- 1/STATE GOVERNMENT TO GRANT TO PETITIONERS REVISION OF PENSION ON THE BASIS OF PAY SCALES INTRODUCED BY THE GOVERNMENT ORDER (ANNX-D) DTD 24.12.2009 WITH EFFECT FROM 01.01.2006, GRANT PAYMENT OF ARREARS OF PENSION ON THAT BASIS WITH EFFECT FROM 01.01.2006 AND GRANT PRESENT AND FUTURE PENSIONS ACCORDINGLY BY ISSUE OF A WRIT IN THE NATURE OF MANDAMUS IN THE INTEREST OF JUSTICE AND EQUITY.
IN W.P. NOs.49241-49242/2015 BETWEEN 1. KARNATAKA STATE UNIVERSITIES AND COLLEGES RETIRED TEACHERS ASSOCIATION (R) NO. 959, 2ND MAIN, 4TH CROSS, VIJAYANAGAR, BANGALORE 560040 REP. BY ITS PRESEIDENT, PROF. K. SIDDAGANGAIAH.
2. PROF. K. SIDDAGANGAIAH S/O. LATE. KEMPAIAH, AGED ABOUT 77 YEARS, NO.959, 2ND MAIN, 4TH CROSS, VIJAYANAGAR, BANGALORE 560040.
(BY SRI. VIVEK HOLLA, ADVOCATE) ... PETITIONERS AND 1. STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, BANGALORE 560001.
2. UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG, NEW DELHI 110002 REP. BY ITS CHAIRMAN.
3. KARNATAKA HIGHER EDUCATION COUNCIL INSTITUTION OF PRINTING TECHNOLOGY BUILDING 1ST FLOOR, PALACE ROAD, BANGALORE 560001 REP. BY ITS CHAIRMAN.
... RESPONDENTS (BY SRI NITIN RAMESH, AAG A/W SRI SRIDHAR N HEGDE, HCGP FOR R1; SRI ARVIND SHARMA, ADVOCATE FOR R2; R3 SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED GOVERNMENT ORDER DTD.24.7.2015, ISSUED BY THE R-1 [ANNEX-J] AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 27.02.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
COMMON ORDER Since question for consideration and grievances urged in these writ petitions are one and the same, these matters are heard and disposed of by this common order.
2. The petitioners are retired Teachers. They were working as Teachers in the services of Universities in the State of Karnataka which were established under the Karnataka State Universities Act, 1976/2000. The petitioners admit that they have retired from service on reaching the age of superannuation after 01.01.1996 and before 01.01.2006. The only exception is petitioner No.9 who retired on 31.05.1994.
3. Initially, when the petitions were filed during the month of January, 2015, the prayer was:
“(a) Direct the 1st respondent/State Government to grant to the petitioners revision of pension on the basis of pay scales introduced by the Government Order (Annexure-D) dated 24.12.2009 with effect from 01.01.2006, grant payment of arrears of pension on that basis with effect from 01.01.2006 and grant present and future pensions accordingly by issue of a writ in the nature of mandamus in the interest of justice and equity.”
4. During the pendency of the writ petitions, the Government having passed a subsequent order dated 24.07.2015, rejecting the recommendation of the Karnataka State Higher Education Council (hereinafter referred to as “KSHE Council”) and pursuant to Court order dated 14.09.2015, the following prayer was added:
“(aa) QUASH Government Order No.ED 01 UNE 2012 dated 24.07.2015 (under Annexure-S to the writ petition) issued by the 1st respondent by issue of a writ in the nature of certiorari or such other appropriate writ, order or direction and grant all consequential benefits.”
5. The Government of India formulated a scheme of revision of pay of Teachers, etc., which is a composite scheme comprising of pension also. By letter dated 31.12.2008, the Government of India communicated to the State Governments the new scheme stipulating revised pay structure, service conditions and educational qualification in respect of Teachers, Librarians and Physical Education Directors of Universities, etc. for adoption in the States. By issuing a Government order dated 24.12.2009, the Government of Karnataka accepted the scheme advised by the Government of India. However, as evident from clause 10, the revised UGC Pay Scales were made effective from 01.01.2006 and all other allowances/benefits prospectively from the date of issue of the Government Order. The grievance of the petitioners is that the revision is not made applicable to the Teachers who retired prior to 01.01.2006.
6. Since it was argued by the learned Additional Advocate General that the State Government was not bound to accept the entire scheme, the learned counsel for the petitioners pointed out that at clause 31 of the Government Order dated 24.12.2009, the State Government chose not to extend the revised UGC Pay Scales to any of the employees, except those having coverage under the said order and who possess the requisite qualification and revised pay scale is made applicable only after due verification of the required qualification by the department. Further, revision was made applicable to the qualified Teaching Staff presently drawing UGC Pay Scales subject to the conditions stipulated in the order. It was submitted that the petitioners were also drawing UGC Pay Scale.
7. Several representations were made to the State Government to extend the benefit of the scheme including the Teachers who retired prior to 01.01.2006. The Minister for Higher Education in Karnataka referred the matter regarding implementation of the 6th Central Pay Commission Pension to University Teachers who retired prior to 01.01.2006, vide a letter dated 25.08.2011, to the KSHE Council. On 16.11.2011, the Council recommended to the State Government that the revised UGC Pay Scales and pensionary benefits applicable to Kendriya Vidyalayas and Colleges be extended to the retired Teachers of Universities and Colleges of the State, who were in receipt of UGC Pay Scales and retired before 01.01.2006. Inspite of the recommendation of the KSHE Council, when the State Government failed to extend the benefit to retired Teachers, many of them approached this Court, at the Principal Bench and the Dharwad Bench. Writ Petition Nos.45106-45124/ 2012 and connected matters were disposed of on 12.03.2015, while quashing the endorsement dated 11.03.2011, issued by the Education Department which had rejected the prayer for extending the benefit and the Writ Court directed the Department of Education to consider the recommendation of KSHE Council, in the light of the 6th Central Pay Commission recommendation and the State Government order implementing the UGC Pay Scales from 01.01.2006 onwards, with a specific direction to pass a speaking order. Similar was the directions issued in W.P.No.100115-100306/2015, at the Dharwad Bench.
8. By order dated 24.07.2015, the State Government passed the impugned order declining to extend the benefit of the scheme to the Teachers who retired prior to 01.01.2006.
Consequently, the petitioners are before this Court calling in question the impugned order dated 24.07.2015, while seeking a direction to the State Government to grant the petitioners revision of pension on the basis of pay scales introduced by the Government order dated 24.12.2009, w.e.f. 01.01.2006, along with arrears of pension.
9. Learned Senior Counsel Sri. P.S.Rajagopal appearing for the petitioners submits that the State Government could not have rejected the recommendations of the KSHE Council on the ground that the recommendations are not binding on the State Government. It is submitted that Section 5A of the Karnataka State Higher Education Council Act, 2010 (hereinafter referred to as “KSHEC Act, 2010”) provides that the Council shall advise the State Government, Universities and other Institutions of Higher Education in the State. Moreover, the Minister for Higher Education is himself the ex- officio President of the Council, while all the Vice-Chancellors in the State of Karnataka, Principal Secretary to the Department of Higher Education, Commissioner of Collegiate Education, Member Secretary of the Karnataka State Knowledge Commission and Advisor to the Chief Minister and experts in the field of education comprise the Council.
10. It was submitted that in the light of the directions issued by this Court in W.P.Nos.45106-45124/2012 to consider the recommendation of KSHE Council in the light of the 6th Central Pay Commission recommendation, with a specific direction to pass a speaking order, the State Government cannot contend that the recommendation of KSHE Council is not binding on the State. It was also submitted that the State Government, by seeking the advise of the Council, has implied the efficacy of the recommendation of the Council. It was therefore submitted that it was not open to the State to contend that the recommendation or decision of the Council is not binding on the State. It was also submitted that a ground not taken at the first instance before this Court is deemed to have been given up or barred by constructive res judicata.
11. The learned Senior Counsel placing reliance on a judgment of the Apex Court in the case of Union of India and Another Vs. SPS Vains (Retd) and Another, reported in (2008) 9 SCC 125, submitted that the decision in D.S.Nakara and Others Vs. Union of India, reported in (1983) 1 SCC 305, holds the field till date. It was pointed out that the Supreme Court has held that the object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pensions were made available to all persons of the same class equally.
12. While trying to differentiate between retrospectivity and retroactivity, the learned Senior Counsel submitted that in R.L.Marwaha Vs. Union of India and Others , reported in (1987) 4 SCC 31, the Apex Court has explained the difference between the two terms. It was submitted that it is true that the scheme is prospective in operation in the sense that the extra benefit can be claimed only from 01.01.2006, but it certainly looked backward and takes into consideration the service rendered in the past irrespective of date of retirement, by doing so it does not become retrospective.
13. The essence of the arguments of the learned Senior Counsel is that the State Government, having accepted the scheme offered by the Government of India, could not have fixed an artificial date and thereby deny the benefit of revision of pension, without assigning any reason for fixing the cut off date. It was submitted that pension is paid for past satisfactory service rendered, to avoid destitution in old age as well as a social welfare and socio economic justice measure. Differential treatment of those retiring prior to a cut off date and those retiring subsequently could be according differential treatment to pensioners who formed a class irrespective of date of retirement, and therefore, would be violative of Article 14.
14. Reliance was placed on the decision of the Supreme Court in the case of V.Kasturi Vs. Managing Director, State Bank of India, Bombay and Another, reported in (1998) 8 SCC 30, wherein it was held that if a person retiring is eligible for pension at the time of his retirement and he survives till the time by subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional pension is being conferred on all of them. In such a situation the additional pension available to the same class cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefits to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara’s case would cover this category of cases.
15. Similarly, in the case of S.P.S.Vains (supra), it was held that specifying a cut off date resulted in differential and discriminatory treatment 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.
16. While pointing out to the impugned order dated 24.07.2015, it was submitted by the learned Senior Counsel that the recommendation of the KSHE Council was ignored by the State Government for unjustifiable reasons. It was pointed out from the impugned order that the State Government was not correct in saying that the pension structure as applicable to teachers in Central Universities and colleges are not applicable to the teachers of State Universities/Colleges on UGC pay scales which are fully funded by the State Government. It was pointed out from paragraph 7 of the judgment of the Supreme Court in the case of U.P.Raghavendra Acharya and Others Vs. State of Karnataka and Others, reported in (2006) 9 SCC 630, that the State Government had indeed admitted before the Supreme Court that the Government of Karnataka had issued appropriate notification extending the UGC pay scales as revised from 01.01.1996, inter-alia to the teachers of government and aided colleges. Therefore it was submitted that the reasons assigned by the State Government that it was not mandatory for the government to give the benefit of revision of pension structure as contemplated in the letter dated 11.03.2010 of the Ministry of Human Resources Development to the teachers, who retired prior to 01.01.2006, is demonstrably unfounded.
17. The other reason assigned in the impugned order is that if the benefit of the revised pension is given to the teachers of state universities/colleges, all other state pensioners similarly placed will claim the benefit of fixation of pension with reference to the minimum of the corresponding revised state pay scale applicable to the post held by them at the time of retirement, is also without any basis, contends the learned senior counsel. It is submitted that this reason assigned is not justifiable since the revision of pay scale and pension of the state universities/colleges is guided and based on UGC Regulations and Schemes, whereas the same does not hold good to the other State Pensioners.
18. Finally, with regard to the financial constraints of the State Government, it was submitted that the contention is not supported by facts and figures. In this regard, the learned Senior Counsel submits that all the neighbouring states of the Karnataka and many other states have extended the benefit to all retired teachers, without fixing an artificial cut off date.
19. Sri. Nithin Ramesh, learned Additional Advocate General, seeks to justify the impugned order passed by the State Government. It was contended that the law laid down in Nakara’s case has been watered down in the subsequent judgments of the Supreme Court. In that regard, the learned Additional Advocate General relied upon a decision of the Apex Court in the case of Union of India Vs. P.N.Menon and Others reported in (1994) 4 SCC 68 and Government of Andra Pradesh and Others Vs. N.Subbarayudu and Others, reported in 2008 14 SCC 702. It was pointed out from P.N.Menon (supra) that the Apex Court had in fact held that it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post retirement benefits, if implemented with a cut off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held invalid. Similarly, in N.Subbarayudu (supra), it was held that in subsequent decisions, the supreme court had considerably watered down the rigid view taken in Nakara’s case as observed in para 29 of the decision in State of Punjab Vs. Amar Nath Goyal, reported in (2005) 6 SCC 754. It was submitted that in Indian Ex-services League and Ors. Vs. Union of India (UOI) and Ors., reported in (1991) 2 SCC 104, another constitution bench deviated substantially from Nakara’s case.
20. It was also submitted that in Jagdish Prasad Sharma and Others Vs. State of Bihar and Others, reported in (2013) 8 SCC 633, the Apex Court has categorically held that UGC regulations are not automatically binding on the State since the plenary power of the state cannot be curtailed by such regulations even though the UGC regulations have statutory force. It was therefore submitted that the present fact situation comes within the ambit of the state policy and the policy decision of the State Government not to extend the revised pensionary benefits to teachers who have retired prior to 01.01.2006 is in compliance with the dicta in Jagdish Prasad Sharma.
21. The learned Additional Advocate General, while referring to the communication dated 11.03.2010 issued by the Ministry of Human Resources Development, submitted that following the letter and spirit of the decision in Jagdish Prasad Sharma, the Government of India left it to the discretion of the states to determine the applicability of the revised UGC pension scheme.
22. Heard Sri P.S.Rajagopal, learned Senior Counsel for the petitioners, Sri Nithin Ramesh, learned Additional Advocate General for the State and Sri T.P.Rajendra Kumar Sungay for the respondent - Universities.
23. The question that arises for decision making in these writ petitions is: “Whether the State Government is justified in fixing a cut off date i.e., 01.01.2006 for applying the revised pensionary benefits to retired teachers of the State Universities/Colleges and denying the benefit to the teachers who retired prior to 01.01.2006?”
24. While reliance is placed by the learned Senior Counsel on the decision in Nakara’s case, the contention of the learned Additional Advocate General is that the principles enunciated in Nakara has been watered down substantially by the Supreme Court. The decision in N.Subbarayudu (supra) is in the context of amendment brought to the age of superannuation and the consequent cut off date fixed for entitlement of pension. In P.N.Menon (supra), it was held, “whenever the Government or an authority which can be held to be a state within the meaning of Article 12 of the Constitution frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all irrespective of the dates of superannuation. As such any revised scheme in respect of post retirement benefits, if implemented with a cut off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. Whenever a revision takes place, a cut off date becomes imperative because the benefit has to be allowed within the financial resources available with the government……...no scheme can be held to be full-proof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the court should only be, while examining any such grievance, to see, as to whether a particular date for extending a particular benefit or scheme has been fixed, on objective and rational considerations.”
25. The law laid down in Nakara’s case was clarified by another constitution bench in Indian Ex-services League (supra) that the ratio in Nakara’s case was misconstrued taking that all retirees are entitled to the same amount of pension, which was not the ratio laid down in Nakara’s case. Whereas, another Constitution Bench in the case of Krishena Kumar Vs. Union of India and Others, reported in (1990) 4 SCC 207, while following the principles laid down in Nakara’s case, rejected the contentions of the retired employees covered under the Provident Fund Scheme, who had opted for the same, and alleged discrimination because the pension retirees in course of time because of revision, were better placed. The contention that a fresh option be given was also rejected, because after exercising the option the Provident Fund retirees formed a separate class from pension retirees.
26. The common thread running in the three Constitution Bench Judgments is that when the retired employees are covered under a regular pension scheme, they formed a separate class and they cannot be discriminated inter se. The petitioners are covered under the same scheme and any revision in the pay scale/pension is only a change brought about in the scheme and it cannot be construed as a separate scheme.
27. In this regard, the legal position enunciated in V.Kasturi (supra) is that there can be two categories:
Category I:
“22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time by subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of nakara's case (supra) would cover this category of cases.”
Category II:
“23.However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of relevant pension Rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep. the decisions of this Court covering such second category of cases are: Commander, Head Quarter, Calcutta & Ors. Vs. Capt. Biplabendra Chanda, 1997(1) SCC 208 (supra 606 (supra) and others to which we have made a reference earlier. If the claimant for pension benefits satisfactorily brings his case within the first category of cases he would be entitled to get the additional benefits of pension computation even if he might have retired prior to enforcement of such additional beneficial provisions. But if on the other hand the case of a retired employee falls in the second category, the fact that he retired prior to the relevant date of coming into operation of the new scheme, would disentitle him from getting such a new benefit.”
28. The petitioners herein fall within Category I as enunciated by Their Lordships in V.Kasturi (supra). It is therefore clear that the benefit of the revision which is made available to the Teachers who retired after 01.01.2006 should also be made available to Teachers who retired prior to 01.01.2006.
29. In all the decisions of the Hon’ble Apex Court relied upon by the State, where it was held that the State can fix a cut-off date, it was with a rider that the same could be done, if permitted under law and if could be demonstrated to be reasonable and rational in the light of Article 14 of the Constitution. In the opinion of this Court, the State is required to demonstrate that the case of the petitioners falls under Category II as enunciated by Their Lordships in V.Kasturi (supra). The meaning of the words ‘permissible in law’ in this context means the inherently differentiable separate classification in law, projected as Category II in V.Kasturi (supra). The State has failed to point out that the fixing of cut-off date was inherently permissible under a specific provision of law. No justifiable reason or rationale in fixing the cut-off date is provided by the State, except pointing out to the effective date fixed in the Government Order dated 24.12.2009 of Government of India and communication dated 11.03.2010, issued by the Ministry of Human Resources Development. The artificial classification by fixing a cut-off date is nothing but creating a class within a class, which is not permissible. The law laid down in Nakara (supra) that 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, continues to hold the field even to this date. The artificial classification sought to be made by the State does not satisfy the test of Article 14.
30. As regards, the financial burden or incapacity, no factual evidence or information is provided by the State. Moreover, as pointed out by the petitioners, nearly 18 States in the country have extended the benefit of revision of pension to pre-01.01.2006 retirees. The State of Karnataka has been the front-runner in the filed of education and showcases itself as the most progressive State and has always been a model State in all spheres. It is therefore unacceptable that the State of Karnataka lags behind by feigning financial incapacity.
31. Further, as pointed out by Sri. T.P.Rajendra Kumar Sungay, learned counsel for the respondent-Universities, when the very same issue cropped up before the High Court of Gujarat, the Division Bench upheld the decision of a learned Single Judge in Letters Patent Appeal No. 1175/2014 and connected matters, which were disposed of on 20.06.2017. The Division Bench of the High Court of Gujarat, while relying upon the observation of the Hon’ble Apex Court in the case of State of Rajasthan and Others Vs. Mahendra Nath Sharma, reported in (2015) 9 SCC 540, observed that the fact remains to be noted that the petitioners have been given benefit of revision in pay in past based upon the UGCs and Central Government recommendations like similarly situated Lectures in other States and therefore, this time when the 6th Pay Commission recommendations is to be translated into revision, they cannot be deprived of their right to be considered accordingly.
32. It is pertinent to note that the decision in U.Raghavendra Acharya (supra) was also taken note of where it was held that the retired Teachers of private aided college and universities were treated on par with the Government employees and given benefits of revised pay scales and pensionery benefits were extended from 01.01.1996. Thus, the contention of the State that the revision in favour of State and University Teachers would create anomaly between the petitioners, pensioners and other pensioners of private schools and colleges was rejected as untenable as it is an unfortunate attempt to equate two unequal groups namely the pensioners not governed by the guidelines and directions of the UGC and Government of India and the pensioners like the present petitioners, who have been all along given benefits on the basis of the UGCs recommendation in line with Government of India instructions and guidelines. It was held that they formed an independent class by themselves and therefore in their case, if the UGC guidelines and GOIs resolutions are not followed, then, rather it would create anomaly and would result in depriving them of their right to receive revision in pension, based upon their original scale which was selection scale.
33. As regards the decision in Jagadish Prasad Sharma (supra), suffice to note that it is not the case of the petitioners that UGCs regulations and schemes are automatically, binding on the State Governments. But, if the scheme is adopted by the State, it cannot deny the benefit flowing from the scheme by creating an artificial divide amongst the petitioners who form a class.
34. The petitions are therefore allowed. The impugned order dated 24.07.2015, issued by the 1st respondent-State Government is hereby quashed and set-aside. The 1st respondent State Government is hereby directed to pay the petitioners the revision of pension on the basis of pay scales introduced by the Government order dated 24.12.2009 w.e.f., 01.01.2006, along with arrears of pension on that basis w.e.f., 01.01.2006 and continue to pay future pension accordingly. In order to distribute the additional burden, the State may pay the arrears in 4 equal installments of 4 months each, starting from 1st June, 2019.
Ordered Accordingly.
DL/KLY/ SD/- JUDGE