Hon'ble Manoj Misra, J.
1. We have heard Sri Satish Chaturvedi appearing for the petitioners. Sri K.C. Sinha has made submissions on behalf of respondent No.1 - Ms. Anju Nigam.
2. The petitioners are aggrieved by the judgment of the Central Administrative Tribunal dated 20.2.2002, in Original Application No. 367 of 1995, by which it has declared the cut off date 1.8.1989, fixed in the Office Memorandum dated 7.8.1989, giving pay protection to the employees of the Public Sector Undertakings joining the Government service, as arbitrary and violative of Article of 14 of the Constitution of India. The Tribunal, while considering the question of delay between 15.5.1989 and 18.12.1993, found that since the cause of action was continuing, the applicant-respondent No.1 will be entitled to pay protection upto the date of her representation dated 19.12.1993 notionally, and the actual benefit would be applicable after that date.
3. The facts giving rise to this writ petition are that Ms Anju Nigam - applicant-respondent No.1 was initially appointed as Probationary Officer in the State Bank of India, and served there from 1.10.1985 to 13.5.1989. She was given permission by the Bank, to appear in the Civil Services Examination 1987, conducted by the Union Public Service Commission. She was selected for I.A.S. (Allied), and joined the Department of Posts on 15.5.1989, as Indian Postal Service (Professional Group 'A '). While serving as Senior Superintendent, R.M.S., Kanpur Division, she made a representation on 19.12.1993, claiming pay protection on the basis of Office Memorandum dated 7.8.1989. Her claim was rejected vide order dated 18.4.1994, on which she approached the Tribunal on 17.4.1995. The pay drawn by the applicant-respondent No.1 in the State Bank of India, and as an Officer in the Indian Postal Services (Professional Group - A), for the purpose of comparison, as quoted in para 3 of the order of the Tribunal, is given as follows:-
"The undersigned is directed to say that as per extant rules/orders on the subject, pay protection is granted to candidates, who are appointed by the method of recruitment selection through U.P.S.C., if such candidates are in Government Service. No such pay protection is granted to candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies, when they are appointed in Government. As a result of this, it has not been possible for the Government to draw upon the talent that is available in non-Government organizations."
5. By Office Memorandum dated 8.6.1993, the Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, Government of India issued guidelines for fixing pay of candidates working in Public Sector Undertakings etc., recommended for appointment by the Commission, which is as follows:-
"The undersigned is directed to invite a reference to the provisions contained in this Department's O.M. of even number dated 7.8.1989 on the above subject and to say that doubts have been expressed by Ministries/Departments regarding the applicability of the said orders for those who join Central Government from the Nationalised Banks. The matter has been carefully considered in consultation with the Finance Ministry, it is clarified that the orders referred to above are also applicable to candidates from Nationalised Banks including SBI and RBI who join Central Government as Direct Recruits on selection through a properly constituted agency on or after 1.8.1989."
6. The Tribunal relying upon judgments in D.S. Nakara Vs. Union of India [1983 SCC (L&S) 145]; and R.L. Marwaha Vs. Union of India and others [1987 SCC (L&S) 350], and quoting paras 11 and 9 respectively of the judgments, held that the object sought to be achieved, behind giving benefit vide O.M. dated 7.8.1989, was to attract talent to Government service. The object has no nexus with the cut off date 1.8.1989, provided in the O.M. dated 7.8.1989. The Tribunal also found that there was no intelligible differentia between the two groups of employees who joined the Government service on or after 1.8.1989, and those who joined before that date. In both cases, the past service rendered in the Government Undertaking or in the Bank in the present case, has to be calculated. by the method of recruitment by selection appointment. The Tribunal thereafter, even after finding that the applicant had approached the Tribunal, with delay, and that the question of delay between 15.5.1989 and 19.12.1993 has its effect, directed that the benefits of pay protection will be given to the applicant notionally upto 19.12.1993, and its actual effect will be only after that date.
7. Learned counsel for the petitioners submits that the Tribunal has wrongly relied upon D.S. Nakara's case and R.L. Marwaha's case. Both the cases relate to discrimination amongst pensioners who were similarly situated, and in which the Supreme Court has held that the differentia must have a rational relation to the objects sought to be achieved by the scheme on which the Court can strike down an unconstitutional part of a legislative action.
8. It is submitted that in D.S. Nakara's case, it was held that Article 14 of the Constitution condemns discrimination not only by a substantive law but also by a law of procedure. , Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia, which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
9. In R.L. Marwaha's case, a cut off date was fixed with relation to employees, who have retired prior to August 20, 1984, and those who have retired subsequently. The Supreme Court held that denial of benefit to those retired prior to that date was discriminatory and violative of Article 14 of the Constitution. The Supreme Court found that the scheme certainly looks backward, and takes into consideration the past event that the period of service under the Central Government for the purposes of computing qualifying service because such additional service can only be the service rendered prior to the date of issue of the Government Order. By doing so, the Government Order will not become an order having retrospective effect. It still continues to be prospective in operation. Whoever has rendered service during any past period would entitle to claim the additional financial benefit of that service, and to that extent, the order was discriminatory.
10. Learned counsel appearing for the petitioner has also placed reliance upon Rao Soma Shekhara and others Vs. State of Karnataka and another [(1997) 7 SCC 649], in which the Supreme Court in the matter of teachers of Karnataka Primary Schools on one hand, and teachers of Hyderabad Primary School on the other hand found that framing and enforcement of the Karnakata Civil Services (Revised Pay) Rules 1970 w.e.f. 1.1.1970, bringing the pay scale of local officers on a par with the scales of allotted Hyderabad Officers prospectively from 1.1.1970, and not respectively from 1.1.1957, was fixed after taking all the factors into account. The Supreme Court could not decide as to form what date the continuance of the existing scales should be treated as discriminatory or the continuance would lose its temporary character arising out of Section 119 of the States Reorganisation Act. An observation was also made that above all the financial burden involved was also a matter of relevant consideration.
11. Sri Satish Chaturvedi has also relied upon Orissa Power Transmission Corporation Ltd Vs. Khageswar Sundaray & others [2011 (8) SCLE 629], in which the Supreme Court has set aside the judgment of the Orissa High Court, expressing its view in paras 7 and 8 as follows:-
"7. We are of the considered opinion that the view taken by the High Court that in the absence of any reason given by the decision of the OSEB in its meeting held on 12.05.1973 to fix the cut-off date of 30.06.1971 for becoming a graduate or passing the Accounts Examinations for an employee to be entitled to the two advance increments, its decision was arbitrary and discriminatory is not sustainable in law. The OSEB as the employer was fully with its powers to decide the cut-off date for the employee to become a graduate or passing the Accounts Examinations to be eligible to the two advance increments in the revised scales of pay and the decision of the OSEB could not be held to be arbitrary only because the reason for decision was not stated in the proceedings of the meeting of the OSEB in which the decision was taken. This Court in State of Bihar and Others vs. Ramjee Prasad and Others [(1990) 3 SCC 368] held:
"the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark".
8. In a recent case in National Council for Teacher Education and Others vs. Shri Shyam Shiksha Prashikshan Sansthan and Others [(2011) 3 SCC 238] this Court after referring to various earlier authorities on the point in Sushma Sharma (Dr.) vs. State of Rajasthan [1985 supp. SCC 45], UGC vs. Sadhana Chaudhary [(1996) 10 SCC 536], Ramrao vs. All India Backward Class Bank Employees Welfare Association [(2004) 2 SCC 76] and State of Punjab vs. Amar Nath Goyal [(2005) 6 SCC 754] has reiterated this position of law and has held the cut-off dates specified in clauses (4) and (5) of Regulation 5 of the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 to be valid."
12. Sri K.C. Sinha, on the other hand, relies upon judgments in T.S. Thiruvengadam Vs. Secretary to Government of India [1993 SCC (L&S) 495]; and M.C. Dhingra Vs. Union of India and others [1996 SCC (L&S) 646], in addition to the ration of judgments in D.S. Nakara (Supra) and R.L. Marwaha (Supra).
13. Sri Sinha submits that the plea of financial burden was neither pleaded in the Tribunal, nor in this Court. In fact, there is hardly any financial burden, as the instances of change of service may be very few. He submits that the Central Government, in order to invite talent, that is available in the Public Sector Undertakings/Banks, allowed pay protection to the employees of such Corporations/Banks, who are selected and appointed in Government service through Public Service Commission. The cut off date fixed in the office memorandum dated 7.8.1989, had no object to be achieved. The office memorandum dated 7.8.1989, creates two groups of employee, namely, those had joined in Government service prior to 1.8.1989, and those who are joined after 1.8.1989, without any rational or intelligible differentia. If a person joins after 1.8.1989, he would be given pay protection. He submits that there is no basis for fixing a cut off in respect of joining. The date had no relevance for the object to be achieved.
14. We have considered the submissions, and the ratio of judgments of the Supreme Court in the matter of discrimination in fixing the cut off date. The judgments, relied upon by the Tribunal relate to pensioners. The fixation of cut off date for increasing the pension or relating it back for increasing the pension to those who have retired from a particular date amounts to creating classes of pensioners with reference to dates and which does not amount to an intelligible differentia by creating two group of pensioners. In that sense, and for that purpose, the cut off date may be treated to be arbitrary and violative of Article 14 of the Constitution.
15. In the present case, however, we find that the benefit of pay protection, in order to attract talent in Central Government Services, was given for the first time by Office Memorandum dated 7.8.1989, making it applicable from 1.8.1989. The applicant-respondent No.1 was not given any assurance, nor was informed of any such right at the time of joining Civil Services. She left the Bank employment as Probationary Officer, and joined the Indian Postal Services (Group-A) on 15.5.1989. On that date, the Office Memorandum dated 7.8.1989, had not seen the light of the day. She had a clear option to either join the Civil Services, or to continue as Probationary Officer in the Bank. She chose to join Civil Services, having full knowledge that she will be getting lesser pay in Civil Services, as compared to her job as Probationary Officer in Bank.
16. We further find that the Office Memorandum dated 7.8.1989, does not create two groups amongst similarly situate persons, amongst whom discrimination may be pleaded. The Office Memorandum dated 7.8.1989, was issued for the first time, giving pay protection w.e.f. 1.8.1989, which is applicable to those applicants who join the Civil Services on or after 1.8.1989, by leaving their employment in non-Government Organizations. For giving any benefit, the Government has to fix a cut off date both for identifying the persons to whom it is applicable and also taking into consideration the financial implications as held in Rao Somashekara and others (Supra). No material has been brought on record, as to whether the matter regarding continuance of giving benefit of pay protection to the employees of Public Sectors Undertaking, offered appointment in Civil Services, was under consideration. In the present case, the petitioner had a clear choice. She has not informed that any any similarly situate person, who joined the Civil Services before 1.8.1989, had been offered pay protection.
17. For the aforesaid reasons, we hold that the Tribunal fell into error in applying the propositions, laid down in D.S. Nakara (Supra) and R.L. Marwaha (Supra), D.S. Nakara (Supra) and R.L. Marwaha (Supra) for giving benefit of pay protection offered by the Central Government for the first time by Office Memorandum dated 7.8.1989 to the applicant-respondent No.1, who joined the Department of Posts on 15.5.1989, as Indian Postal Service (Professional Group 'A'). The writ petition is allowed. The order of the Central Administrative Tribunal, Allahabad Bench dated 20.2.2002, in Original Application No. 367 of 1995, is set aside.
Order Date :- 31.1.2012 Nethra