Full Judgment Text
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PETITIONER:
STATE OF RAJASTHAN AND ANR.
Vs.
RESPONDENT:
AMRIT LAL GANDHI & ORS.
DATE OF JUDGMENT: 10/01/1997
BENCH:
J.S. VERMA, B.N. KIRPAL
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
KIRPAL, J.
Leave granted.
The common question of law which arises in these
appeals by special leave relates to the date with effect
from which the revised pension is to be paid to the teachers
of the Jai Narayan Vyas University and Mohan Lal Sukhadia
University who had retired between 1.1.1986 and 1.1.1990.
Though the facts in these appeals are similar, for the
purpose of this judgment. We need only refer to the facts in
Civil Appeal Nos. 9710-9717 of 1995 and S.L.P. (C) No. 19231
of 1996 which arise from the judgment dated 30.8.1994 of the
Division Bench of the High Court in D.B. Civil Writ Petition
No. 115/1993 which considered the rival contentions of the
parties on merit.. The said judgment has been followed by
the High Court while allowing the writ petition from which
Civil Appeal No. 9718 of 1995 arises.
In 1962, Jodhpur University Act, 1962 was promulgated.
For the teaching staff of the University contributory
provident fund rules were framed and there was no pension
scheme which was applicable to them.
It appears that the University Grant Commission in 1983
constituted a committee known as Mehrotra Committee to
examine the structure of emoluments and also the conditions
of service of the University and College teachers.
The Mehrotra Committee submitted its report in 1986,
containing various recommendations. One of the
recommendations related to extending pension-cum-gratuity
scheme to the teachers of Universities and colleges.
Pursuant to the said recommendations, resolutions were
passed in 1986 by the Syndicate of University of Jodhpur
(now known as Jai Narayan Vyas University) and approved by
the University Senate for the introduction or pensionary
scheme in the University. According to this scheme, option
was to be given to the university employees to opt either
for contributory provident fund or for pension in lieu of
the provident fund. Draft rules providing for payment of
pension were also approved.
As the proposed scheme had financial implications, the
University had to seek the approval of the Government. The
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Education Department of the Rajasthan Government, vide its
letter dated 16.4.191, informed the Vice-chancellors of the
Rajasthan University, Jaipur, Jodhpur University, Jodhpur,
M.L. Sukhadia University, Udaipur, Ajmer University, Ajmer
and Kota Open University, Kota that the State Government had
decided to introduce the pension scheme in the Universities
of the State W.E.F. 1.1.1990. It is pursuant thereto that
the cabinet of the Jodhpur University on 24.4.1991 approved
the resolutions of the Syndicate and the Senate providing
for the introduction of the pension scheme. Thereafter
Pension Regulations 1990 and General Provident Fund
Regulations 1990 were framed and on 3.8.1991 options were
invited from all persons who were in the service of the
University of Jodhpur on or after 1.1.1990 to give their
options whether they wanted to be covered by the Provided
Fund Regulations or desired to be covered by the Pension
Regulations of 1990.
Thereafter, several writ petitions were filed in the
High Court of Rajasthan. Two writ petitions were filed by
the erstwhile teachers of the Rajasthan University who had
retired prior to 1.1.1986 while eight writ petitions were
filed by those who had retired between 1.1.1986 and
1.1.1990.
The Single Judge of the High Court allowed all the
aforesaid writ petitions and directed that the revised
pension scheme should be made applicable to all the
petitioners including those who had retired prior to
1.1.1986. Appeals were then filed before the Division Bench
which, vide judgment dated 30.8.1994. held that the revised
pension scheme should be made applicable to only those
employees who had retired between 1.1.1986 and 1.1.1990.
As already noticed above, the aforesaid judgment of the
Division Bench was followed in D.B. Civil Writ Petition No.
3489 of 1993 filed by the retired university teachers of the
Mohan Lal Sukhadia University, Udaipur from which Civil
Appeal No. 9718 of 1995 arises.
On behalf of the appellants, main arguments were
addressed by Shri Tapas Ray, Sr. learned counsel in C.A.
9718 of 1995. He referred to the observations of the High
Court to the effect that the Mehrotra Committee had made its
recommendations in 1986 and the Syndicate and Senate of the
University had approved of the grant of pension to those
employees who had retired after 1.1.1986, and there was no
reason as to why the Pension Regulations should have been
made applicable with effect from 1.1.1990. It was contended
by Shri Ray that the High Court overlooked the fact that the
Pension Regulations which were framed and were made
applicable w.e.f. 1.1.1990 in view of the decision of the
State of Rajasthan contained in its letter dated 16.4.1991.
He further submitted that the date, as to when pension
scheme was to be made applicable, was a policy matter. The
Government having decided, as a matter of policy, that all
the Universities in Rajasthan were to introduce the Pension
w.e.f. 1.1.1990 the said decision could not, it was
submitted, be challenged.
Mr. Ray drew our attention to the decisions of this
Court in State of West Bengal and others Vs. Ratan Behari
Dey and others, (1993) 4 SCC 62 and Union of India Vs. P.N.
Menon and others, (1994) 4 SCC 68 and contended that the
High Court fell in error in not following the ratio of the
aforesaid decisions in which it was clearly held that a
particular cut-off date could be fixed while granting
pensionary benefits.
In Ratan Behari case (supra), the Calcutta Corporation
had in force a provident fund scheme. A demand was raised in
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1977 for the introduction of a pension scheme. A three
member committee was constituted and pursuant to its
recommendations, which were accepted by the Government with
some modifications, Pension Regulations were framed in 1982.
Effect was given to these Regulations on and from 1.4.1977.
The fixing of the date of 1.4.1977 was challenged by some of
the members of the Calcutta Municipal Corporation who had
retired prior to 1.4.1977. The Calcutta High Court allowed
the writ petitions by holding that the date of 1.4.1977,
with effect from when the Pension Regulations were to come
into effect, was non est and void. While allowing the
appeals, and dismissing the writ petitions, this Court
examined the reasons why the date 1.4.1977 has been fixed
and then observed as follows:
"Now, it is open to the State or to
the Corporation, as the case may
be, to change the conditions of
service unilaterally. Terminal
benefits as well as pensionary
benefits constitute conditions of
service. The employer has the
undoubted power to revise the
salaries and/or the pay scales as
also terminal benefits/pensionary
benefits. The power to specify a
date from which the revision of pay
scales or terminal
benefits/pensionary benefits, as
the case maya be, shall take effect
is a concomitant of the said power.
So long as such date is specified
in a reasonable manner, i.e.,
without bringing about a
discrimination between similarly
situated persons, no interference
is called for by the court in that
behalf."
In P.N. Menon case (supra) the question again arose
with regard to fixing of cut-off date for payment of
gratuity and pension. In that case the cut-of date, which
was fixed, was 30.9.1977. While allowing the appeals and
repelling the challenge to the fixation of the said date, it
was observed at pages 73-74 as under:
"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. It shall not amount to
"picking out a date from the hat,
as was said by this Court in the
case of D.R. Nim "V. Union of India
in connection with fixation of
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seniority. 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."
It again reiterated at page 75 that "not only in
matters of revising the pensionary benefits, but even in
respect of revision of scales of pay, a cut-off date on some
national or reasonable basis, has to be fixed for extending
the benefits".
Applying the ratio of the aforesaid decisions to the
present case, we find no justification for the High Court
having substituted the date of 1..1986 in lieu of 1.1.1990.
It is evident that for introducing a pension scheme, which
envisaged financial implications, approval of the Rajasthan
Government was required. In the letter of 16.4.1991. written
to the Vice-Chancellors of different universities of
Rajasthan, it was stated as follows:
"As per the direction in regard to
the aforesaid subject, the State
Government has decided to introduce
Pension Scheme in the Universities
of the State w.e.f. 1.1.1990. In
this regard the State Legislature
has passed University Pension Rules
and General Provident Fund Rules.
Therefore, by enclosing a copy of
University Pension Regulations and
General Provident Fund Regulations
with this letter, it is requested
that by obtaining approval of the
competent body or syndicate of the
University, these Regulations be
implemented in the University
together and necessary information
regarding implementation be
intimated."
The Syndicate and forwarded their recommendations in
1986, did not contain a specific date with effect from which
the pension scheme was to be made applicable. Their
recommendations were subject to approval. The approval was
granted by the Government, after the State Legislature had
passed University Pension Rules and General Provident Fund
Rules. The Government had stated in its affidavit before the
High Court that the justification of the cut-off date of
1.1.1990 was "wholly economic". It cannot be said that the
paying capacity is not a relevant or valid consideration
while fixing the cut-off date. The University could, in
1991, validly frame Pension Regulations to be made
applicable prospectively. It, however, chose to give them
limited retrospectively so as to cover a larger number of
employees by taking into account the financial impact of
giving retrospective operation to the Pension Regulations.
It was decided that employees retiring on or after 1.1.1990
would be able to exercise the option of getting either
pension or provident fund. Financial impact of making the
Regulations retrospective can be the sole consideration
while fixing a cut-off date. In our opinion, it cannot be
said that this cut-off date was fixed arbitrarily or without
any reason. The High Court was clearly in error in allowing
the writ petitions and substituting the date of 1.1.1986 for
1.1.1990.
Mr. Anil B. Diwan, Sr. Advocate appearing in Civil
Appeal Nos. 9710-9717 of 1995 for respondent No.1, contended
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that the University had asked for extension of time to
implement the judgment and must be regarded as having
accepted the decision specially when the University had not
come in appeal and, therefore, whatever be the decision of
this court on the question of law, the benefit of the
judgment should be given to his clients who had retired
between 1.1.1986 to 1.1.1990.
It is true that the University has not filed any appeal
but the State of Rajasthan has challenged the correctness of
the decision of the High Court and it was represented at the
bar, on behalf of the appellant, that only the options had
been invited and the judgment had not been given effect to
and no pension has been given to those employees who had
retired between 1.1.1986 to 1.1.1990. Counsel for the
University stated that as the State of Rajasthan had a filed
an appeal, therefore the University chose not to file one of
it’s own. We, therefore, do not see any reason as to why
this decision should not be applicable to all the employees
who had retired prior to 1.1.1990 as it cannot be held that
the University had accepted the correctness of the High
Court’s decision.
From the aforesaid discussion, it follows that the
policy decision of the Universities, making the Pension
Regulations applicable w.e.f. 1.1.1990 has not been shown to
be arbitrary or invalid. These appeals are, accordingly,
allowed and the judgments of the High Court are set aside
and the writ petitions filed by the respondents are
dismissed. There shall be no order as to costs.