Shyam Bihari Singh vs The State Of Bihar & Ors.

“I) For setting aside/quashing the part of the letter no.4575 Patna dated 28.12.2021 (Annexure:P/8) sent to the respondent Board by the Additional Secretary Industries communicated the decision for giving effect of monetary benefit of 6th revision pay from the date of order is issued as well as for quashing of the resolution taken by the State, Department of Industries, Government of Bihar communicated to the respondent Board and concern officials contained in Memo No. 2832 Patna dated 15.05.2023 (Annexure: P/7) so issued under the signature of respondent Special Secretary Industries department whereby and where under while granting approval on the decision already taken by the respondent Board on 22.12.2018 accepting enhanced ceiling limit for payment of gratuity amount from 3.50 lacs to 10 (Ten) lacs in the Board, it has directed to be effected from 28.12.2021 w.e.f. which 6th revised pay was give effect to and thereby the petitioner who retired prior to the now fixed cutoff date by the State Government has been deprived from getting the retiral benefits such as leave salary etc. on earned/ enhanced limit of gratuity and 6th revised pay in fact applicable w.e.f. 01.01.2006/01.04.2007 (Actual payment).

ii) Also for quashing the order so passed by the respondent Chief Secretary Government of Bihar communicate vide memo no. 5783 Patna dated 04.10.2023 (Annexure: P/13) whereby and where under the respondent refused to allow the prayer for fixing cut of date of 6th revision implementation and that of the effective date fixed for payment of enhance ceiling limit of gratuity in the Board and denied consideration on the representation dated 18.08.2023 filed pursuant to order/ direction of Hon’ble Court dated 04.07.2023 (Annexure P/9) passed in C.W.J.C. No.2532 of 2020.

iii) For further order/ direction to the respondent to recalculate/ reassertion the retiral benefit on the basis of 6th revision admissible pay comes on the date of retirement (dated 31.01.2019 even on notional fixation w.e.f. 01.01.2006) so that leave salary, and gratuity etc. be paid at enhance ceiling limit as has been paid to the other staffs of the Board who could retire on or after the cut of date arbitrarily fixed (28.12.2021) So effective date by the respondent state.

iv) And/or may pass such other -order/ orders as this Hon'ble Court may deem appropriate in the facts and circumstances of the case.”

“11.

If a decision of the Apex

Court does not expressly provide its application to be prospective, then it is settled law that all decisions of this Court are retrospective in application as held in paragraph 29 of P.V. George v. State of Kerala6, which is reproduced herein below:

“29.

…….The law declared by a Court will have a retrospective effect if not otherwise stated to be so specifically. …..

12.

That another extract of the final decision in TMA Pai Foundation (supra) case by 11-Judge Bench which indicates towards the intention of the 11-Judge Bench decision to be prospective, in paragraph 393 which is reproduced below:

“393.

The learned Chief Justice has repeatedly emphasised that capitation fees cannot be charged and that there must be no profiteering. We clarify that the authorities concerned will always be entitled to prevent by enactment or by regulations the charging of exorbitant fees or capitation fees. There are many such enactments already in force. We have not gone into the validity or otherwise of any such enactment. No arguments regarding the validity of any such enactment have been submitted before us. Thus those enactments will not be deemed to have been set aside by this judgment. Of course now by virtue of this judgment the fee structure, fixed under any regulation or enactment, will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats”

12.1.

A conjoint reading of paragraph 393 of the final decision in TMA Pai Foundation (supra) case by 11-Judge Bench and the clarificatory order dated 01.04.2003 of the Division Bench of this Court makes it abundantly clear that the intention of this Court was to give prospective application to only such statutory provisions which stipulated something contrary to the ratio laid down in the final decision in TMA Pai Foundation (supra) case by 11-Judge Bench.”

“16.

In Union of India and Anr. Vs.

G.Ranjanna and Ors. reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits.

x x x x x x

18.

In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation.

19.

In view of the aforesaid legal position coupled with the fact that the qualification of graduation prescribed is for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non-functional post or for extending the benefit of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, we are of the opinion that the judgment and order of the Division Bench of the High Court impugned in the appeals cannot be sustained. It is accordingly hereby set aside and that the judgment of the writ court dated 28.11.2017 is restored. The appellants are extended the benefit of ACP, as directed by the writ court.”

Whether the delay in obtaining approval from the

“23.

The stand of the State of Karnataka that the pensionary benefits had been conferred on the appellants w.e.f. 1-4-1998 on the premise that the benefit of the revision of scales of pay to its own employees had been conferred from 1-1-1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do not stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1-1-1996. It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the employees concerned despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 1-1-1996. By reason of such notification, as the appellants had been deprived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions.

24.

The contention of the State that the matter relating to the grant of pensionary benefits vis-à-vis the revision in the scales of pay stands on a different footing, thus, must be rejected.

25.

Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on the date of retirement.”

“37.

In All Manipur Pensioners Assn. v. State of Manipur [All Manipur Pensioners Assn. v. State of Manipur, (2020) 14 SCC 625 : (2021) 2 SCC (L&S) 317] the classification by which the formula of pension, whereby those retiring prior to 1-1-1996 were given a lower rate of revised pension, as compared to those retiring later (who were given a higher rate of revision), was held to be discriminatory : (SCC pp. 628 & 637-39, paras 2, 8 & 9)

“2.

The facts leading to the present appeal in a nutshell are as under : that the State of Manipur adopted the Central Civil Services (Pension) Rules, 1972, as amended from time to time. As per Rule 49 of the Central Civil Services Rules, 1972, a case of a government employee retired in accordance with the provisions of the Rules after completing qualifying service of not less than 30 years, the amount of pension shall be calculated at 50% of the average emoluments subject to a maximum of Rs 4500 per month. It appears that considering the increase in the cost of living, the Government of Manipur decided to increase the quantum of pension as well as the pay of the employees. That the Government of Manipur issued an office memorandum dated 21-4-1999 revising the quantum of pension. However, provided that those Manipur Government employees who retired on or after 1-1-1996 shall be entitled to the revised pension at a higher percentage and those who retired before 1-1-1996 shall be entitled at a lower percentage.

***

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 pre-1996 and another who retired post-1996, 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 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 that Article 16 of the Constitution of India permits a valid classification. However, a valid 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 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 therefore must necessarily be satisfied.

8.1.

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 cut-off date for extension of benefits especially pensionary benefits. There has to be a classification founded on some rational principle when similarly situated class is differentiated for grant of any benefit.

8.2.

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 pre-1996 or post-1996. As observed hereinabove, all the pensioners belong to one class. Therefore, by such a classification/cut-off date the equals are treated as unequals and therefore such a classification which 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 cut-off 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.

9.

In view of the above and for the reasons stated above, we are of the opinion that the controversy/issue in the present appeal is squarely covered by the decision of this Court in D.S. Nakara [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] . The decision of this Court in D.S. Nakara [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] shall be applicable with full force to the facts of the case on hand. The Division Bench of the High Court [State of Manipur v. All Manipur Pensioners' Assn., 2016 SCC OnLine Mani 22] has clearly erred in not following the decision of this Court in D.S. Nakara [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] and has clearly erred in reversing the judgment and order [All Manipur Pensioners' Assn. v. State of Manipur, 2005 SCC OnLine Gau 118] of the learned Single Judge. The impugned judgment and order [State of Manipur v. All Manipur Pensioners' Assn., 2016 SCC OnLine Mani 22] passed by the Division Bench is not sustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The judgment and order [All Manipur Pensioners' Assn. v. State of Manipur, 2005 SCC OnLine Gau 118] passed by the learned Single Judge is hereby restored and it is held that all the pensioners, irrespective of their date of retirement viz. pre-1996 retirees shall be entitled to revision in pension on a par with those pensioners who retired post-1996. The arrears be paid to the respective pensioners within a period of three months from today.””