[The petitioner, who was appointed as assistant lecturer on 01.08.1961 and attained the age of superannuation o n 31.03.1995, by filing the present petition under Article 226 of the Constitution, has challenged resolution dated 10.01.1996 of Finance Department, Government of Gujarat (AnnexureA) for its cutoff date providing that the benefit of deathcumretirement gratuity on the revised rates conferred thereunder, would be granted to those government employees retired on or after 01.04.1995.] The petitioner has also prayed to set aside the order dated 09/10.05.1996 by respondent No.1 Director of Pension (AnnexureB) and communication dated 08.01.1996 from respondent No.2 (AnenxureC) conveying that as the date of retirement of petitioner was 31.03.1995, the revised rates of gratuity under the resolution were not applicable to him. 2. It is the case of the petitioner that after having appointed in 1961 as assistant lecturer, he was promoted as lecturer in 1967 and having worked at different places, completed the age of retirement on 31.03.1995. The deathcumretirement gratuity came to be revised under the impugned resolution dated 10.01.1996. Only because his retirement date fell a day prior to the cut off date provided in the resolution, he was arbitrarily deprived of the benefit under the resolution. The petitioner has further prayed that the difference of gratuity of Rs.40,755/ be paid to him with 18% interest.
3. Affidavitinreplies on behalf of respondent No.1 as well as respondent No.2 were filed. Petitioner thereafter filed affidavitin rejoinder. Rule was issued in the petition on 26.03.1997.
4. Heard learned advocate Mr. K.M.Sheth for the petitioner and learned Assistant Govt. Pleader Mr. Alkesh N. Shah for the respondent State.
5. Learned advocate for the petitioner contended that the resolution dated 10.01.1996 created artificial division of two sets of government employees, the one who retired before 01.04.1995 and the other who retired after that date. According to the learned advocate, the cut off date adopted in the resolution for conferring benefit of the revised rates of gratuity was arbitrary and violative of Article 14 having no nexus with the object sought to be achieved. It was submitted that it was irrational that a government employee retiring on a day before the cut off date would not be paid gratuity as per revised rates whereas an employee retiring a day after the cut off date would get the benefit.
6. The challenge to the resolution dated 10.01.1996 and the provision for cut off date therein deserves an outright rejection. The impugned resolution was based on the OM dated 14.07.1995 of the Central Government whereby dearness allowance linked to the All India Consumer Price Index 1201.66 (as on 171993), was treated as reckonable part of dearness allowance for the purpose of calculating the deathcumretirement gratuity under the Central Civil Services (Pension) Rules, 1972. The said benefit was actually made available to the employees who retired or died on or after 141995 i.e. the cutoff date suggested by the First Central Pay Commission in its Interim Report. That was accepted by the State Government to provide for payment of revised gratuity on that basis.
[7. This very cut off date fell for consideration before the Supreme Court in State of Punjab & Others vs. Amar Nath Goyal & Another [(2005) 6 SCC 745] and was held to be not violative of Article 14.] It was observed and held as under.
“It is very difficult to accede to the argument that a decision of the Central Government/State Government to limit the benefits only to employees, who retire or die on o after 141995, after calculating the financial implicatios thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. In the present case, the cutoff date has been fixed as 141995 on a very valid ground, namely, that of financial constraints. Consequently, the contention that fixing of the cutoff date was arbitrary, irrational or had no rational basis o that it offends Article 14, is liable to be rejection.”
“Thus, although dearness allowance linked to the All India Consumer Pice Index 1201.66 (as on 171993), was treated as reckonable part of dearness allowance for the purpose of calculating the deathcumretirement gratuity, the benefit was actually made available to the employees who retired or died on or after 141995 i.e. the date suggested by the Fifth Central Pay Commission (“Pay Commission”) in its Interim Report. The Central Government took a conscious stand that the consequential financial burden would be unbearable. It, therefore, chose to tape down the financial burden by making the benefits available only from 141995. It is trite that the final recommendations of the Pay Commission were not ipso facto binding on the Government, as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position. This is precisely what the Government did. Such an action on the part of the Government can neither be characterized as irrational, or as arbitrary so as to infringe Article 14.”
7.1 [The mainstay of the challenge of the petitioner to the cutoff date was decision of the Supreme Court in D.S.Nakara vs. Union of India [AIR 1982 SC 130], which was relied on in the grounds of the petition. D.S.Nakara (supra) has been distinguished, diluted and departed from by the Supreme Court in the subsequent judgments. The classification rule and the fixation of cutoff date has been now settled and it is held in catena of judgments that financial constraints for the Government is a valid ground and a rationale for providing the cutoff date. Accordingly, the challenge to the resolution dated 10.01.1996 fails.]
8. [He next submitted making out alternative contention that even otherwise and keeping the resolution dated 10.01.1996 as if stood, retirement of the petitioner was required to be treated to have taken place after 01.04.1995 because his services were extended beyond the date of superannuation upto 14.06.1995.] It was submitted that he was, therefore, entitled to the benefit conferred under the resolution, and the gratuity Rs.1,32,330/ as per the revised rates, instead of Rs.91,575/, was payable with interest.
8.1 As regards the contention that date 14.06.1995 ought to have been treated as date of retirement, the resolution of Education Department dated 26.08.1987 clarified by resolution dated 16.06.1993 (produced at page 68 with affidavitinrejoinder) were relied on. They interalia provided for automatic extension of services of the lecturers/education staff of the colleges under the Education Department, who retire in the middle of the academic term. The resolution dated 16.06.1993 provided that in order to maintain uniformity, the services of those employees whose retirement occur in the midst of an academic term, would be continued upto 31st October and 14th June respectively in relation to the first academic term or the second academic term, as the case may be. According to the petitioner, since he was continued upto 14.06.1995, that date was his date of retirement and the pension and gratuity were payable on the basis of the said date.
8.2 Learned Assistant Government Pleader on the other hand relied on affidavitinreply filed on behalf of respondent No.2, and submitted that actual retirement date of the petitioner was 31.3.1995, but he was relieved on 14.06.1995 in the interest of students, since his retirement was falling during the currency of the academic term. He submitted that period subsequent to the date of superannuation was in the nature of reemployment and would be counted accordingly. He referred to pension order dated 30.05.1995 of the petitioner produced with affidavitinreply and submitted that pension was granted with effect from 01.04.1995 and not with effect from 30.05.1995. Learned Assistant Government Pleader produced and relied on resolutions dated 27.10.1989 and 22.05.1992 of the Education Department in support of his submissions. These two resolutions are taken on record.
8.3 Respondent No.1, in his affidavitinreply, also relied upon resolution dated 27.10.1989 and it was contended that extension of services was only until the academic term was over with a condition that services rendered beyond the date of superannuation shall not be counted for the purpose of pensionary benefits.
[9. Having considered the submissions, the contention that petitioner’s actual date of retirement stood extended upto 14.06.1995 is misconceived. From the perusal of the resolutions of the Education Department of the State Government relied upon by the petitioner, it is evident that when they provide for extension of services of lecturers in the colleges till the end of the academic term, the underlying purpose is to have administrative convenience. It is also for maintaining educational continuity and academic consistency which work is the interest of the student community. The object spelt out from the resolution dated 16.03.1993 is also to ensure uniformity and to facilitate pension cases of the retired employees. It is also clarified that the period of service between actual date of retirement extended till the end of the academic term concerned shall be in the nature of reemployment and the pension will be payable from the date of actual retirement.] [9.1 The date of retirement of a government employee like the petitioner is fixed statutorily by the applicable service rules. The retirement is an event which takes place when an employee attains the age of superannuation. The resolutions providing for extension of service beyond the actual date of retirement continuing an employee till the end of the academic term, do not mean, nor imply and cannot be construed in a manner that the actual date of retirement is deferred or extended thereby. Accepting the contention that such extension of services would also shift the date of superannuation, would amount to altering statutorily fixed retirement age by administrative instructions, which is impermissible in law.] 10. For the above reasons and discussion, the petition is devoid of merits and it is hereby dismissed. Rule is discharged. There shall be no orders as to costs. Sd/ [N. V. ANJARIA, J.] Amit