1. Heard Sri O.P. Srivastava, learned Senior Advocate assisted by Sri Shobh Nath Pandey and Sri Kaushlendra Yadav, Advocates for the petitioners and Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel for the State-respondents. Useful assistance was provided by Law Trainee/ Clerk (Ms. Shama Parveen) of this Court
2. By means of first writ petition i.e. Writ Petition No.2306 (S/S) of 2004, the petitioners have prayed for the following reliefs:-
"(a) to issue a writ, order or direction in the nature of certiorari to quash the Government Orders dated 20.07.2001, 08.08.2001 and 03.09.2001, contained in Annexure Nos.1, 2 and 3 to the writ petition, to the extent they provide cut off date as 01.07.2001 for the grant of the benefit of the amended pay-scale of Rs.5500-9000, by declaring it arbitrary and unconstitutional
(b) to issue a writ, order or direction in the nature of mandamus thereby commanding the opposite parties to extend the benefit of the amended pay-scale of Rs.5500-9000 with effect from 01.01.1996 in accordance with the earlier Government Order dated 10th July, 1998, contained in Annexure No.4 to the writ petition and to fix the pension of the petitioner accordingly at their respective basic pay."
3. By means of second writ petition i.e. Writ Petition No.4953 (S/S) of 2006, the petitioners have prayed for the following reliefs:-
"(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.09.2005, contained in Annexure No.1 to the writ petition.
(ii) to issue a writ, order or direction in the nature of certiorari quashing the impugned government order dated 03.09.2001, contained in Annexure No.2 to the writ petition, to the extent the petitioners have been deprived from getting the benefit of revision of the pay-scale in Vth Pay Commission Report (Central) w.e.f. 01.01.1996 and thereafter the pensionery benefits accordingly.
(iii) to issue a writ, order or direction in the nature of mandamus directing and commanding the opposite parties to allow the benefit of Vth Pay Commission Report (Central) to the petitioners and thereby the pay of the petitioners be accordingly fixed in the revised scale on 01.01.1996 and thereafter the pensionery benefits of the petitioners be computed accordingly and the arrears of the pensionery benefits be also given to them within some reasonable time which may be 2 weeks."
4. In both the writ petitions, the question of law to be considered is the same and, therefore, with the consent of learned counsel for the parties both the writ petitions are being decided by a common judgment and order.
5. The question to be considered is that as to whether the benefit of pay-scale revision which has been extended with effect from 01.01.1996 can be restricted with effect from 01.07.2001 without having any rational nexus with the object sought to be achieved.
6. Ignoring the unnecessary facts of both the cases the relevant facts to adjudicate the controversy in question are being considered.
7. In both the writ petitions, the petitioners have retired after 01.01.1996 and before 01.07.2001. However, by mans of Government Order dated 20.07.2001 and subsequent Government Orders the benefit of pay-scale revision has been restricted with effect from 01.07.2001 saying that the benefit of pay-scale revision would be extended with effect from 01.01.1996 to those employees who have retired on or after 01.07.2001. All those Government Orders have been assailed on the ground that those Government Orders are violative of Article 14 of the Constitution of India for creating class within the class for no cogent reason.
8. In the first writ petition, all the relevant Government Orders dated 20.07.2001, 08.08.2001 and 03.09.2001 have been assailed, whereas in the second writ petition only one Government Order dated 03.09.2001 has been assailed and the order dated 22.09.2005 has been assailed whereby the benefit, so prayed by the petitioners, has been rejected by the Joint Director of Education, VIth Region, Lucknow.
9. Since the very fact that all the petitioners of both the writ petitions have been retired on or after 01.01.1996 while serving on the post of Assistant Teacher in various Educational Institutions except petitioner No.1 in the second writ petition who retired from the post of Principal (Junior High School), Sohan Lal Inter College, Lucknow, therefore, there would be no use to go into the details of the relevant facts relating to the petitioners inasmuch as regarding their services as Assistant Teacher and Principal has not been disputed by the opposite parties and the only ground to not providing the benefit of the pay-scale revision to the petitioners is that they had been retired from service on or before 01.07.2001, therefore, they are not entitled for the benefit of the pay-scale revision in view of the Government Orders dated 20.07.2001 and 08.08.2001.
10. Sri O.P. Srivastava, learned Senior Advocate for the petitioners has drawn attention of this Court towards the Government Order dated 10.07.1998, which is contained as Annexure No.3 to the second writ petition, whereby on the basis of recommendations of the Pay Commission, U.P., 1998 the decision has been taken to provide the benefit of the pay-scale revision to the teaching and non-teaching staff of the Educational Institutions with effect from 01.01.1996.
11. On the basis of the aforesaid Government Order dated 10.07.1998, another Government Order dated 20.07.2001 (Annexure No.4 of the second writ petition) has been issued providing the benefit of the pay-scale revision to the teachers of the Primary and Secondary Educational Institutions with effect from 01.01.1996 providing further that the pay-scale shall be revised with effect from 01.07.2001.
12. By means of subsequent Government Order dated 08.08.2001 (Annexure No.5 of the second writ petition), it has been provided that the benefit of the pay-scale revision shall be given with effect from 01.01.1996 and employees concerned would submit their option as to whether they want to opt the benefit of such pay-scale revision or they do not want to opt such revision provided vide Government Order.
13. As a matter of fact, the Government Order dated 08.08.2001 provides the modalities providing the benefit of revised pay-scale revision. The Government Order dated 08.08.2001 has been modified vide Government Order dated 03.09.2001 (Annexure No.2 of the second writ petition), wherein it has been indicated that the benefit of the revised pay-scale revision shall be provided to those teachers who were in the employment on or after 01.07.2001. It has been further clarified in this Government Order dated 03.09.2001 that the benefit of pay-scale revision with effect from 01.01.1996 to 30.06.2001 shall be given on notional basis as no arrears shall be paid to any of the employees.
14. Sri O.P. Srivastava, learned Senior Advocate has submitted that he has instructions to say that none of the petitioners are claiming any arrears of benefit of revision of pay-scale with effect from 01.01.1996 to 30.01.2001. He has also submitted that the petitioners are claiming the benefit of pay-scale revision with effect from 01.01.1996 notionally for the reason that after 01.01.1996 the pay-scale was revised by the State Government and whatever the pay-scale was fixed after the said revision, the petitioners be provided such pay-scale and on the basis of the said pay-scale the petitioners be provided the consequential service benefits except the arrears of salary.
15. Sri O.P. Srivastava, learned Senior Advocate for the petitioners has submitted with vehemence that there may be no rational nexus with the object sought to be achieved by the impugned Government Orders, pursuant to which the rider has been imposed that those employees who have retired on or before 01.07.2001 would not be entitled for the benefit of the pay-scale revision. He has further submitted that the Government Order dated 01.07.1998 (supra) clearly indicates that the benefit of pay-scale revision would be paid to the employees with effect from 01.01.1996 without imposing any rider. Therefore, by means of the subsequent Government Orders whereby the aforesaid riders has been imposed, is not only illegal, discriminatory, unwarranted and uncalled for but the same is violative of Article 14 of the Constitution of India inasmuch as the aforesaid rider creates class within the class which is not permissible.
16. Sri O.P. Srivastava has further submitted that if the authorities impose the rider that the benefit of the pay-scale revision would not be paid to those employees who have retired on or before 01.01.1996, the date when the said benefit is extended to the employees, the said rider would have been justified but the rider so imposed by the Government Order 03.09.2001 for providing the benefit of pay-scale revision to the employees retired on or after 01.07.2001 is absolutely unwarranted. There is no dispute that the petitioners were very much in service when the benefit of pay-scale revision was extended to the employees i.e. 01.01.1996, therefore, such discrimination may not be permitted in the eyes of law.
17. On the other hand, Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel has submitted that for providing the benefit of Government Order dated 10.07.1998, the Government Order dated 20.07.2001 has been issued revising the pay-scale with effect from 01.07.2001 extending the benefit of pay-scale revision with effect from 01.01.1996 fixing the cut off date as 01.07.2001. He has further submitted that as per the subsequent Government Order dated 08.08.2001 the options were to be sought from the employees for extending the benefit of pay-scale revision with effect from 01.07.2001, therefore, such options would have been submitted by those employees who were working at that point of time. Since the petitioners have already retired from service on or before 01.07.2001, so no options could have been sought from them and, therefore, the benefit of revision of pay-scale could have not been extended.
18. On being confronted learned Additional Chief Standing Counsel on the Government Order dated 10.07.1998 (Annexure No.3 of the second writ petition), by means of which the benefit of revision of pay-scale has been given with effect from 01.01.1996 asking as to why this benefit can be denied to the petitioners who were very much in service on or before 01.01.1996, Sri Shukla has submitted that since this is a policy decision, therefore, such benefit could have not been provided to the petitioners immediately after 10.07.1998 and such benefit has been made available to the employees pursuant to the Government Order dated 03.09.2001.
19. On that, Sri O.P. Srivastava, learned Senior Advocate for the petitioners has submitted that if any policy decision is taken, which is patently violative of Article 14 of the Constitution of India creating class within the class, this Court after judicial scrutiny may set aside the same. He has again reiterated that there may not be absolutely any rational imposing the bar for not providing the benefit of revision of pay-scale to the employees who have retired on or after 01.01.1996. Sri Srivastava has referred the dictum of the Constitutional Bench of Hon'ble Apex Court in re:D.S. Nakara and others vs. Union of India reported in (1983) 1 SCC 305 referring paras 42, 46 & 65, which read as under:-
"42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rationalprinciple ? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension ? One retiring a day earlier will have to be subject to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the basis of last ten months average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Art.14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the classification does not stand the test of Art.14.
46. By our approach, are we making the scheme retroactive ? The answer is emphatically in the negative. Take a government servant who retired on April 1, 1979. He would be governed by the liberalised pension scheme. By that time he had put in qualifying service of 35 years. His length of service is arelevant factor for computation of pension. Has the Government made it retroactive, 35 years backward compared to the case of a Government servant who retired on 30th March, 1979 ? Concept of qualifying service takes note of length of service, and pension quantum is correlated to qualifying service. Is it retroactive for 35 years for one and not retroactive for a person who retired two days earlier? It must be remembered that pension is relatable to qualifying service. It has correlation to the average emoluments and the length of service. Any liberalisation would pro tanto be retroactive in the narrow sense of the term. Otherwise it is always prospective. A statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing. (see Craies on Statute Law, sixth edition, p. 387). Assuming the Government had not prescribed the specified date and thereby provided that those retiring pre and post the specified date would all be governed by the liberalised pension scheme, undoubtedly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benefit. It is an upward revision of an existing benefit. If it was a wholly new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh recruits. Pension is a reward for past service. It is undoubtedly a condition of service but not an incentive to attract new entrants because if it was to be available to new entrants only, it would be prospective at such distance of thirty-five years since its introduction. But it covers all those in service who entered thirty-five years back. Pension is thus not an incentive but a reward for past service. And a revision of an existing benefit stands on a different footing than a new retiral benefit. And even in case of new retiral benefit of gratuity under the Payment of Gratuity Act, 1972 past service was taken into consideration. Recall at this stage the method adopted when pay-scales are revised. Revised pay-scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. In other words, benefit of revised scale is not limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. This is just and fair. Nowif pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to future retirees only ? Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages.
65. That is the end of the journey. With the expanding horizons of socio-economic justice, the socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria: 'being in service and retiring subsequent to the specified date' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of being in service on the specified date and retiring subsequent to that date' in impugned memoranda, Exhibits P-I and P-2, violates Art. 14and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Exhibit P-1, the words:
"that in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that date"
and in Exhibit P-2, the words:
"the new rates of pension are effective from 1st April 1979 and will be applicable to all service officers who became/become non-effective on or after that date."
are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible. Let a writ to that effect be issued. But in the circumstances of the case, there will be no order as to costs."
20. Sri O.P. Srivastava, learned Senior Advocate for the petitioners has also referred para-8 of the dictum of Hon'ble Apex Court in re: All Manipur Pensioners Association by its Secretary vs. State of Manipur reported in AIR 2019 SC 3338, which reads as under:-
"8. Even otherwise on merits also, we are of the firm opinion that there is no valid justification to create two classes, viz., one who retired pre1996 and another who retired post1996, for the purpose of grant of revised pension, In our view, such a classification has no nexus with the object and purpose of grant of benefit of revised pension. All the pensioners form a one class who are entitled to pension as per the pension rules.Article 14 of the Constitution of India ensures to all equality before law and equal protection of laws. At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. It is true thatArticle 16 of the Constitution of India permits a valid classification. However, a very classification must be 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. 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. Therefore, whenever a cutoff 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 discriminationtherefore must necessarily be satisfied. In the present case, the classification in question has no reasonable nexus to the objective sought to be achieved while revising the pension. As observed hereinabove, the object and purpose for revising the pension is due to the increase in the cost of living. All the pensioners form a single class and therefore such a classification for the purpose of grant of revised pension is unreasonable, arbitrary, discriminatory and violative of Article 14 of the Constitution of India. The State cannot arbitrarily pick and choose from amongst similarly situated persons, a cutoff date for extension of benefits especially pensionery benefits. There has to be a classification founded on some rational principle when similarly situated class is differentiated for grant of any benefit.
8.1 As observed hereinabove, and even it is not in dispute that as such a decision has been taken by the State Government to revise the pension keeping in mind the increase in the cost of living. Increase in the cost of living would affect all the pensioners irrespective of whether they have retired pre1996 or post1996. As observed hereinabove, all the pensioners belong to one class. Therefore, by such a classification/cutoff date the equals are treated as unequals and therefore such a classificationwhich has no nexus with the object and purpose of revision of pension is unreasonable, discriminatory and arbitrary and therefore the said classification was rightly set aside by the learned Single Judge of the High Court. At this stage, it is required to be observed that whenever a new benefit is granted and/or new scheme is introduced, it might be possible for the State to provide a cutoff date taking into consideration its financial resources. But the same shall not be applicable with respect to one and single class of persons, the benefit to be given to the one class of persons, who are already otherwise getting the benefits and the question is with respect to revision."
21. Having heard learned counsel for the parties and having perused the material available on record and also the dictum of Hon'ble Apex Court in re: D.S. Nakara (supra) and All Manipur Pensioners Association (supra), I am of the considered opinion that there is no rational basis extending the benefit of revision of pay-scale only to those employees who have retired on or after 01.07.2001 and restricting for those employees have retired on or before 01.07.2001 and there is patently no rational nexus with the object sought to be achieved by the impugned Government Orders.
22. By means of the impugned Government Orders and the impugned order, the State Government/ Authorities tried to create class within the class, which is not permissible in the eyes of law. I am afraid as to how the authorities are treating those employees/ teachers who retired on or after 01.01.1996 and on or before 01.07.2001 as one class and the employees / teachers who retired on or after 01.01.2001 as another class for providing the benefit of revision of pay-scale which has admittedly been extended to the employees with effect from 01.01.1996. As a matter of fact, both the set of employees, as aforesaid, are one class and by means of any Government order or Government Policy those employees cannot be discriminated. Had the authorities imposed rider of extending the benefit of revision of pay-scale to the employees who have retired on or before 01.01.1996, such rider would have been sustained for the reason that on the date when the benefit of revision of pay-scale was provided those employees were not in service. However, in the present case, admittedly all the petitioners were very much in service when the benefit of revision of pay-scale was extended i.e. from 01.01.1996.
23. In view of the above, both the writ petitions succeed and are allowed.
24. The order dated 22.09.2005 passed by the Joint Director of Education, VIth Region, Lucknow, which is contained as Annexure No.1 to the second writ petition, is hereby set aside/ quashed.
25. The rider so imposed in the Government Order dated 03.09.2001 to the effect that the benefit of revision of pay-scale would be given to those employees who have retired on or after 01.07.2001 is hereby declared as non est and the same may not be read against the petitioners.
26. A writ in the nature of mandamus is issued commanding the opposite parties to take appropriate decision in the issue of the petitioners in the light of the Government Order dated 10.07.1998 (Annexure No.3 of the second writ petition) providing them the benefit of revision of pay-scale with effect from 01.01.1996 notionally ignoring the such rider imposed in the Government Order dated 03.09.2001 for the petitioners only.
27. Such appropriate order shall be passed with expedition preferably within a period of two months from the date of presentation of a certified/ computerized copy of this order.
28. No order as to costs.
Order Date :- 25.8.2021 Suresh/ [Rajesh Singh Chauhan,J.]