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KALLAKURICHI TALUK RETIRED OFFICIAL ASSOCIATION, KALLAKURICHI V/S GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY, FINANCE (PENSION) DEPARTMENT, CHENNAI, decided on Wednesday, June 28, 2006.
[ In the High Court of Madras, W.P. No. 32189 of 2005. ] 28/06/2006
Judge(s) : MS. K. SUGUNA
Advocate(s) : V. Vijay Shankar. Suresh Viswanath, Government .
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  "2006 (4) MLJ 963"  







judgment - Initially the petitioner association has filed O.A. No. 5697 of 2001 on the file of the Tamil Nadu Administrative Tribunal for the issue of a direction directing the respondent to extend the benefit of G.O. Ms. No. 488 Finance (Pension) Department dated 12.8.1996 to the members of the petitioner association who retired prior to 1.7.1996. The same has been transferred to the file of this Hon?ble Court and re-numbered as W.P. No. 32189 of 2005.2. As far as the petitioner association is concerned the Government employees who had served and retired from various departments in various capacities are its members. In the present O. A. the association is concerned with its members who had reached the age of superannuation between 1.6.1988 and 31.12.1995. They have filed O.A./Writ petition with regard to the cut-off date mentioned in G.O. Ms. No. 488 Finance (Pension) Department dated 12.8.1996 in regard to availing the benefit of encashment of leave Clauses a & b of the above referred to Government Order reads as follows:?a) At the time of retirement 50% of the leave on private affairs standing to the credit of the employees upto a maximum of 90 days be entitled for full leave salary. The Head of Office shall draw the leave salary on encashment of leave on private affairs as in the case of encashment of earned leave andb) Full leave salary including Dearness Allowance and all other allowances normally admissible while going on during service be allowed for the entire period of earned leave encashment at the time of retirement.?But prior to this Government Order a Government servant shall be entitled for encashment of leave standing to his credit at the time of retirement subject to the maximum of 240 days besides the leave salary for the period of earned leave upto 180 days including dearness allowance house rent allowance and city compensatory allowance and for the period exceeding 180 days the leave salary comprises of pay and dearness allowance only. Since this caused hardship to the Government servants and they were put to monetary loss at the time of retirement they made representations to the Government. On this the Government passed G.O. Ms. No. 488 Finance (Pension) Department dated 12.8.1996 Though this Government Order has been passed in order to grant more financial relieves to the retired people the benefit of this G.O. has been given only to those who have retired with effect from 1.7.1996 Hence with the prayer to extend the benefit granted in the above said G.O. to those who have retired prior to 1.7.1996 also this original application /writ petition has been filed.3. Learned counsel for the petitioner has contended that prior to 1.7.1996 a Government servant at the time of retirement can encash the leave upto a maximum of 240 days standing to his credit and he can encash the earned leave upto 180 days with dearness allowance and house rent allowance and city compensatory allowance which are admissible under the Rules if the earned leave exceeds 180 days he is entitled for the encashment of the leave salary only with pay and dearness allowance and not with any other benefits. But as per the present G.O. viz. G.O. 488 a Government servant at the time of his retirement can encash 50% of the leave on private affairs standing to his credit upto a maximum of 90 days. That apart this full leave salary will include dearness allowance and other allowances namely admissible under the Rule while going on leave during his service. Besides the learned counsel for the petitioner has contended that as far as the beneficiaries are concerned they for one class. But as per in the impugned Government order those who have retired on or after 1.7.1996 form a separate class since by the impugned G.O. certain benefits have been extended only to them. Hence the impugned G.O. is passed in violation of Article 14 of the Constitution of India. That apart the learned counsel for the petitioner has submitted that the cut off date prescribed namely 1.7.1996 by the impugned G.O. does not have any nexus with the objects sought to be achieved. Relying on the judgment of a Division Bench of this Court reported in Madras High Court Staff Association Chennai v. Government of Tamil Nadu Chennai and Others Madras High Court Staff Association Chennai v. Government of Tamil Nadu Chennai and Others Madras High Court Staff Association Chennai v. Government of Tamil Nadu Chennai and Others (2004) 1 MLJ 223 the learned counsel has contended that even in the case of G.O. No. 73 dated 19.3.2003 wherein the benefit of encashment of leave was restricted from 330 days to 300 days this Court has taken a view that the same is discriminatory in nature and quashed the said G.O. The learned counsel has further contended that as far as the encashment of leave is concerned actually the same was available to those who have retired prior to 1.7.1996 and after 1.7.1996. But as far as the Government employees who have retired subsequent to 1.7.1996 they were given certain liberalization in the matter of encashment of leave which has been denied to those who reached the age of superannuation prior to 1.7.1996. As per the judgment reported in V. Kasturi v. Managing Director State Bank of India Bombay and Another V. Kasturi v. Managing Director State Bank of India Bombay and Another V. Kasturi v. Managing Director State Bank of India Bombay and Another AIR 1999 SC 81: 1998 (8) SCC 30: 1999-I-LLJ-238 since the benefit of encashment of leave was available to those who have reached the age of superannuation prior to 1.7.1996 the liberlisation alone cannot be denied to them which has been granted to those who reached the age of superannuation after 1.7.1996. 4. On the other hand learned Government Pleader appearing for the Government has contended that the Government has got a power to extend the benefit of any Government Order fixing a cut-off date and the benefits granted therein cannot be claimed by the petitioner as a matter of right. That apart even as per the judgment of the Supreme Court reported in D.R. Nim v. Union of India D.R. Nim v. Union of India D.R. Nim v. Union of India AIR 1967 SC 1301: 1968-I-LLJ-264 the Government has got a right to prescribe the cut-off date for extending certain benefits to certain beneficiaries.5. I have considered the submissions of the learned counsel for the petitioner as well as the respondent/Government. As far as the encashment of leave is concerned it accumulates every year to a Government servant and at the end of his retirement it is paid to him. Hence the encashment of leave is also in the nature of pensionary benefit. Those who have retired prior to 1.7.1996 are concerned they are also entitled for encashment of leave. But at the time of retirement they can encash the leave standing to their credit upto the maximum of 240 days only. Besides upto 180 days. encashment of leave will include dearness allowance house rent allowance city compensatory allowance etc. which are admissible under the Rules. For a period exceeding 180 days encashment of leave will include only pay and dearness allowance and not any other benefits. Whereas as per the impugned Government Order a Government servant at the time of his retirement is eligible for encashment of 50% of his leave on private affairs standing to his credit upto a maximum of 90 days. Prior to this Government Order encashment of leave on private affairs was not allowed. Hence the benefit which has been in force prior to 1.7.1996 has been liberalized to those who have retired subsequent to 1.7.1996. As such the case of the petitioner association is covered by the decision of the Hon?ble Supreme Court reported in V. Kasturi v. Managing Director State Bank of India Bombay and Another V. Kasturi v. Managing Director State Bank of India Bombay and Another V. Kasturi v. Managing Director State Bank of India Bombay and Another (supra). In that decision the Hon?ble Supreme Court held that (at pp. 252 and 253 of LLJ): ?20. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time by subsequent amendment of the relevant pension scheme he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara D. S. v. Union of India Nakara D. S. v. Union of India Nakara D. S. v. Union of India AIR 2983 SC 130: 1983 (1) SCC 305: 1983-I-LLJ-104 would cover this category of cases.Category II:22. However if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners if subsequently by amendment of relevant pension Rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force the erstwhile non-pensioner might have survived then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the ersthwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only old retirees non-pensioner cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep?..?6. As contended by the learned counsel for the petitioner if certain benefit is not extended to those who have reached the age of superannuation prior to 1.7.1996 but the same is for the first time introduced to those who have retired with effect from 1.7.1996 in that case since the benefit was not available at the time of their retirement they cannot certainly seek for the benefit of the said G.O. But here it is not so. By the impugned G.O. the Government has liberalized the encashment of leave salary which were already enjoyed by the Government servants only to a particular group of persons. Hence I am of the opinion that since the benefit of the impugned G.O. is made applicable only to those who have reached the age of superannuation with effect from 1.7.1996 the same is in violation of Article 14 of the Indian Constitution.7. That apart in selecting the date as 1.7.1996 for extending the benefit of the liberalised encashment of leave salary no reason has been given by the Government. The particular date also does not have any nexus with the object sought to be achieved. To say in other words by liberalising the encashment of leave in fact the Government wanted to give some benefits in the matter of encashment of leave to retired Government employee but restricting the same only to those who have reached the age of superannuation from 1.7.1996 is arbitrary and also prima facie no reason is adduced in the impugned Government Order to take 1.7.1996 as the cut-off date. When pensioners as a whole form a class extending liberalisation and certain monetary benefits only to those who have reached the age of superannuation from a particular date alone is prima facie illegal and also arbitrary. As such the contention of the petitioner that the benefits of the impugned G.O. has to be extended to those who have reached the age of superannuation prior to 1.7.1996 also is sustainable. Hence this writ petition is allowed and the respondents are directed to extend the benefit of G.O. Ms. No. 488 Finance (Pension) Department dated 12.8.1996 to the members of the petitioner association who have reached the age of superannuation between 1.6.1988 to 30.6.1996 also.