w w w . L a w y e r S e r v i c e s . i n



Mahendra Kumar Lalan v/s State of M. P. & Another


Company & Directors' Information:- A. KUMAR AND COMPANY PRIVATE LIMITED [Active] CIN = U19201UP1995PTC018833

Company & Directors' Information:- S KUMAR & CO PVT LTD [Not available for efiling] CIN = U51909WB1946PTC014540

Company & Directors' Information:- S KUMAR AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U45203DL1964PTC117149

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- MAHENDRA (INDIA) LIMITED [Active] CIN = U17114GJ1990PLC013483

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- KUMAR L P G PRIVATE LIMITED [Strike Off] CIN = U23201DL2001PTC113203

Company & Directors' Information:- M KUMAR AND CO PVT LTD [Strike Off] CIN = U18101DL1982PTC014823

Company & Directors' Information:- B N KUMAR & CO PVT LTD [Strike Off] CIN = U52341WB1941PTC010643

Company & Directors' Information:- MAHENDRA LTD [Strike Off] CIN = U45201WB1943PLC011234

    Writ Petition No. 7434 of 2015

    Decided On, 18 September 2020

    At, High Court of Madhya Pradesh Bench at Indore

    By, THE HONOURABLE MR. JUSTICE S.C. SHARMA

    For the Petitioner: Murtuza M. Bohra, Learned Counsel. For the Respondents: Kirti Patwardhan, Learned Panel Lawyer.



Judgment Text

This Court has delivered a judgment in Writ Petition No.7429/2015 (Shri Virendra Kr. Nagar Vs. State of Madhya Pradesh and Another) in identical facts and circumstances of the case on 30/01/2020 and the same reads as under:-"Parties through their counsel.I.A. No.373/2020 has been filed for disposal of the present writ petition as the same matter has already been decided by the co-ordinate Bench.With the consent of the parties, the matter has been heard. The facts of the case reveal that the petitioner before this Court, who is a retired government servant attained the age of superannuation prior to 01.01.2006 has filed this present petition being aggrieved by the notification dated 03.08.2009 issued by the Finance Department of the Government of Madhya Pradesh in respect of consolidation of pension / family pension of the pensioners retired or died before 01.01.2006.Undisputed facts reveal that based upon the recommendations of 6th pay commission higher pay-scales were granted to the employees / posts in the State of Madhya Pradesh and as well as recommendations were made in respect of pensioners. By the aforesaid notification, in respect of pensioners / family pensioners retired/died before 01.01.2006, as per clause 1.1, the basic pension / family pension was enhanced by applying multiplier of 2.26.In respect of existing employees and the persons, who have attained the age of superannuation after 01.01.2006, it was held that they will be entitled for pension equivalent to 50% of the basic pay + grade pay and in those circumstances, a petition was preferred alleging discrimination before this Court.This Court while deciding W.P. No.18811/2013 (Madhya Pradesh (Uccha Siksha) Seva Nivrita Pradhyapik Sangh, Jabalpur Vs. State of Madhya Pradesh and other) as well as other connected matters has allowed the petition keeping in view the judgment delivered by the Hon'ble Supreme Court in the case of All Manipur Pensioners Association Vs. State of Manipur and others, reported in AIR 2019 SC 3338.A similar issue was before the Hon'ble Supreme Court i.e. creation of two classes for grant of revised pension without any nexus with the object and purpose of grant of revised pension. It was held to be violative Article 14. The coordinate Bench of this Court in W.P. No.18811/2013 in paragraph Nos.2 to 7 has held as under:-"2. As per the claim made in all the petitions and in support of the same the pleadings made therein, the core issue involved in the case is whether discrimination in between pensioner though they legally belong to the single class is permissible by making 'class within class' on the ground that a part of the pensioners, who were retired prior to 01.01.2006 and remaining part retired on or after 01.01.2006 for the purpose of granting arrears of pension w.e.f. 01.01.2006.3. As per the petitioners, they belong to category retired before 01.01.2006, but, they are being deprived of the benefit of arrears of pension making fixation erroneously, which is against the recommendation of 6th Pay Commission accepted by the Government. As per the petitioners, the respondents denied the benefit of the said Pay Commission to the petitioners for the reasons that the same came into effect w.e.f. 01.01.2006 whereas the petitioners have retired prior to that and accordingly they are not entitled to get the benefit of the same. The respondents have taken a stand that as per the gazette notification dated 10.09.2008 (Annexure P/1), the benefit of the said Pay Commission would be granted to the employees retired between 01.01.2006 to 31.08.2008. The petitioners, therefore, are claiming that such a classification made by the respondents is arbitrary, illegal and contrary to the object of Article 14 of the Constitution of India. As per the petitioners, there cannot be 'class within class'. They have submitted that this issue has already been decided by this Court in the cases of Smt. Kamla Jain Vs. State of M.P. & others - WP No. 5802/2011 and Pensioners' Federation, Madhya Pradesh through its President Shri Ambika Prasad Pandey Vs. The Government of Madhya Pradesh - WA No. 353/2015. Therefore, while dealing with the issue involved in the case, necessary facts are required to be mentioned in brief, which are as follows.4. All the petitioners are government employee, appointed on various dates and on various posts, but, the common feature in all the petitions is that all the petitioners have retired before 01.01.2006. The Central Government constituted the 6th Pay Commission on 05.10.2006, which submitted its recommendation on 24.03.2008 and the same was accepted by the Central Government on 29.08.2008 taking decision to grant the benefit of the same w.e.f. 01.01.2006 to its employees as well as to the pensioners. The Government of Madhya Pradesh as such also decided to grant the benefit of 6th Pay Commission to its employee and pensioners and the gazette notification to that effect was published on 10.09.2008 (Annexure P/1 in WP No. 3519/2015). The Central Government has also issued a regulation containing the procedure for grant of revised pension in respect of the retirees of pre-01.01.2006 (Annexure P/2 in WP No. 3519/2015). As per the said regulation, it was clear that the revised pension in no case shall be less than 50% of the minimum of pay in the pay band plus grade pay corresponding to the very revised pay scale. The State of Madhya Pradesh, on 16th May, 2007 issued a circular instructing all the departments mentioning as to in what manner the pension of retirees before 01.01.2006 shall be revised. A notification was also issued by the State of Madhya Pradesh on 28th February, 2009 framing rules exercising powers provided under Article 309 of the Constitution of India known as M.P. Revision of Pay Rules, 2009, which was made effective w.e.f. 01.01.2006. As such, for the first time the 6th Central Pay Commission was introduced and the concept of pay band and grade pay was also introduced in the Pay Rules. The State of Madhya Pradesh, Department of Finance, issued a circular dated 3rd August, 2009 (Annexur P/5 in WP No. 3519/2015) prescribing manner in which the pension of retirees retired and died before 01.01.2006 was to be revised. This circular has given cause to the petitioners for filing the petitions as the same created anomaly in fixation of revised pension of employees retired or died prior to 01.01.2006. As per the petitioners, they will suffer huge financial loss if the method as prescribed in Annexure P/5 is adopted. It is also stated by the petitioners that this method is in contravention to the gazette notification dated 10th September, 2008 (Annexure P/1), which clearly provides to grant the same benefit as has been given in 6th Pay Commission recommendation, but, the calculation, according to Annexure P/5, does not provide the similar benefit as recommended by Annexure P/1. The petitioners have therefore filed these petitions raising their grievance and challenging the mechanism of revised pension as contained in Annexure P/5 dated 3rd August, 2009.5. The respondents have filed their return and have taken the stand therein that the petitioners were retired prior to 01.01.2006 and the 6th Pay Commission came into effect w.e.f. 01.01.2006, therefore, the same is not applicable to the petitioners, because on the date of enforcement of the said pay scale, the petitioners were not in service and accordingly the benefit of the said pay scale was not available to the petitioners.6. Having considered the submissions made by the learned counsel for both the parties and also after perusal of the averments made in the petition, return, rejoinder and the documents filed by the parties as well as having gone through the orders passed by this Court in the cases of Smt. Kamla Jain and Pensioners' Federation, Madhya Pradesh (supra), I am of the opinion that the issue involved in the present case has already been dealt with by this Court on several occasions and has decided the same. In the case of Smt. Kamla Jain (supra) this Court has considered the implementation of 5th Pay Commission and the benefit of the same to the employees retired or died prior to 01.01.1996. As per the stand of the respondents/State, the benefit of 5th Pay Commission could not be granted to the employees retired prior to 01.01.1996 because, on 01.01.1996, the recommendation of the said Pay Commission was implemented and the employees, who were not in service, were not found entitled to get the benefit of the said Pay Commission, but, the Court finally found them eligible and directed the respondents to grant the said benefit to them. The stand of the respondents was rejected by the Court. It would be appropriate to mention here that the order passed by the Writ Court in the case of Smt. Kamla Jain (supra) was challenged by the State in writ appeal, but, that writ appeal was dismissed. The State further challenged said order in the Supreme Court by filing Special Leave Petition, but the SLP was also dismissed. Thus, the order passed by the Writ Court was affirmed. Similarly, in the present case, whether refusal to grant the benefit of 6th Pay Commission, which was made effective w.e.f. 01.01.2006 to the employees retired prior to 01.01.2006 is justified or not has to be examined. The High Court, in the case of Smt. Kamla Jain (supra), has dealt with the similar issue in respect of grant of benefit of 5 th Pay Commission, which was made effective from 01.01.1996, to the employees retired prior to that date taking note of the of the decision in the cases of Union of India and another vs. SPS Vains (Retd.) and others - (2008) 9 SCC 125 and Subrata Sen and others Vs. Union of India and others - (2001) 8 SCC 71 and observed as under:"5. I have heard the learned counsel for the parties at length and perused the record.From the facts that have come on record, it is clear that the petitioner had retired prior to 1-1-1996 and after the pay commission recommendation was implemented, the pay scale of all the employees working in the State of M.P. were revised w.e.f. 1-1-1996. For the purpose of payment of pension on such revision and with regard to manner in which the pension is to be calculated and paid the circulars in questions Annexures P-4 and P-5 were issued on16-05-2007 and 15-01-2008 respectively. What was done in these circulars are that in the case of a Principal like the petitioner it was ordered that the basic pay of these Principals as on 1-1-1996 shall be fixed at Rs. 12,840/-, and therefore, their pension fixed for the purpose of granting this pension actual in nature on such re-fixation of the basic pay at Rs.12,840/- the benefit would be granted from 01-04-2007. However, for persons who retired on 1-1-1996 or thereafter, it was ordered that they will be paid pension treating their basic pay to be Rs.12,840/-, accordingly when this policy is implemented, the pensioners who are receiving the pension between 01- 01-1996 to 01-04-2007, would fall in two categories, even though the basic of all these pensioners on 1-1-1996 would be Rs.12,840/- but the persons like the petitioner who have retired prior 1-1-1996 their pension from 1-1-96 upto 1-04-2007 would be calculated by treating their basic pay to be something which is less then Rs.12,840/- i.e. the pension of these pensioners are included not on the basis of their basic pay fixed as on 1-1-96 but on the basis of basic unrevised pay drawn by them. However, the persons who retied from 1- 1-1996 they will be getting pension treating them to have retired on the basic pay of Rs.12,840/-. It is, therefore, a case where for similarly situated employees treating the said basic pay of Rs.12,840/- as on 1-1- 6 a different yard stick is being adopted. Be that as it may similar query with regard to fixation of pay for persons retiring after 1-1-1996 and similar question is already considered in the case of SPS Vains (Retd.) (supra) and in paras 26 and 27 disparity created and different differentia has been discussed and the law is laid down in the following manner.16. The case of the respondents however, was that in view of the Constitution Bench decision of this Court in D.S. Nakara and others vs. Union of India (1983) 1 SCC 305, the fixation of a cut-off date as a result of which equals were treated as unequals, was wholly arbitrary and had been rightly interfered with by the High Court. One of the questions posed in the aforesaid decision was whether a class of pensioners could be divided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired thereafter. The question was answered by the Constitution Bench holding that such division being both arbitrary and unprincipled the classification did not stand the test of Article 14.24. On behalf of the appellant, Union of India, it has been sought to be contended that since the pay scale of those officers who had retired prior to 1.1.96 had already been fixed at the time of their retirement, the question of refixation of their pay scales on account of the revision could not be accepted as they would only be entitled to the benefits of higher pension on account of such revision. ....26. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1.1.1996 and the other after 1.1.1996, would get two different amounts of pension. While the officers who retired prior to 1.1.1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the Fundamental Rules, the other set of Major Generals who retired after 1.1.1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 1.1.1996.28. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution.29. The Constitution Bench (in D. S. Nakara) has discussed in detail the objects of granting pension and we need not, therefore, dilate any further on the said subject, but the decision in the aforesaid case has been consistently referred to in various subsequent judgments of this Court, to which we need not refer. In fact, all the relevant judgments delivered on the subject prior to the decision of the Constitution Bench have been considered and dealt with in detail in the aforesaid case. The directions ultimately given by the Constitution Bench in the said case in order to resolve the dispute which had arisen, is of relevance to resolve the dispute in this case also.30. However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara's case (supra). The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension.(Emphasis supplied)6. After taking note of the aforesaid principles of law in the case of the petitioner in the earlier writ petition in W.P.No.1239/2010(S) as already indicated hereinabove in paras 11 and 12, this court has clearly held that financial resources cannot be a justification for discriminating between similarly situated officers and cannot be a justification for fixing the cut off date as 01-04-2007 for the purpose of revising the benefit of pension to all categories for employees. In the return filed and the impugned order Annexure P-13, no justification or the reasonable nexus for fixing the cut off date 1-04-2007 is forthcoming from the State Government. On the contrary both in the order passed vide Annexure P- 3 so also in the return filed, it is only stated that in the matter of granting arrears to pensioners the State Government is competent enough to fix cut off date taking note of the financial resources of the State Government. In para-3 of the return it is only stated that taking note of the financial implication involved the cut off date has been fixed, no 10 other justification or nexus for fixing the said cut off date is forthcoming from the State Government. As the ground of financial implication and resources is already found to be unsustainable by this court in the earlier order passed in the case of the present petitioner as indicated hereinabove this justification cannot be accepted. That apart even in the case of SPS Vains (Retd.) (supra) the Supreme Court has held that merely on the financial consideration the classification or of similarly situated pensioners is not permissible and if it creates a class, it is violative of Article 14 of the Constitution of India. In the case of SPS Vains (Retd.) (supra) also revision of pay took place w.e.f. 01-01-1996 on the pay so revised, revision of pension was ordered in a different manner as is done in the present case. The Union of India came out with a plea that as certain persons have already retired prior to 1-1- 1996, the question of re-fixation of their pay does not arise. This argument of Union of India was rejected by the Supreme Court in the said case. In the present case also similar factual situation exists. Not only that, in the present case as on 01-01-1996 the revision of basic pay of persons who have retired prior to 1.1.1996 is already undertaken and their basic pay as on 1-1-1996 is fixed at Rs.12,840/-, after such a revision. That being so, the respondents cannot come out now with any justification once the question is answered by the Supreme Court in para-24 in the judgment rendered in the case of SPS Vains (Retd.) (supra).7. Keeping in view the settled principles of law in this regard as is evident from the judgment rendered by the Supreme Court and ground particularly the fact with regard to inter se dispute between the petitioner and the State Government already crystallized and decided by this court on 26-11-2010 in W.P.No.1239/2010(S), the impugned order cannot be sustained."The Supreme Court also in the case of All Manipur Pensioners Association vs. State of Manipur & others - Civil Appeal No. 10857/2016 has also dealt with the similar issue and observed 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 11 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 that Article 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 categories one set of pensioners for favourable consideration over others, the twin test for valid classification or valid discrimination therefore 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 pensionary benefits. There has to be a classification founded on some rational principle when similarly situated class is differentiated for grant of any benefit.8.1 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 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 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.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 the case of D.S. Nakara (supra). The decision of this Court in the case of D.S. Nakara (supra) shall be applicable with full force to the facts of the case on hand. The Division Bench of the High Court has clearly erred in not following t

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he decision of this Court in the case of D.S. Nakara (supra) and has clearly erred in reversing the judgment and order of the learned Single Judge. The impugned judgment and order 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 passed by the learned Single Judge is hereby restored and it is held that all the pensioners, irrespective of their date of retirement, viz. Pre1996 retirees shall be entitled to revision in pension at par with those pensioners who retired post1996. The arrears be paid to the respective pensioners within a period of three months from today."7. Accordingly, it is apparent that this Court on several occasions has dealt with the same issue and allowed the petitions and as such all the aforesaid petitions are also allowed directing respondents to grant benefit of 6th Pay Commission to the petitioners also and their pension be revised in the same manner as is being revised of the employees retired after 01.01.2006. The arrears of pension be also calculated for the period from 01.01.2006 to 31.08.2009 as per notification dated 10.09.2008 (Annexure P/1) and interest @ 6% per annum be also paid to them over the amount of arrears. The aforesaid exercise be completed by the respondents within a period of six months from submitting certified copy of this order. Learned government advocate has not disputed the aforesaid judgment.Resultantly, as the issue has already been concluded in the aforesaid case, the judgment delivered in the case of Madhya Pradesh Uchha Sikhsa (supra) shall be applicable mutatis mutandis in the present case also.The respondents are directed to grant the benefit of pension of 6th pay-commission (pensionary benefit) in the same manner as it has been revised in respect of employees, who have been retired after 01.1.2006. The exercise of calculating arrears of pension and revision of pension as per the notification dated 10.09.2008 be concluded within a period of 3 months from the date of receipt of certified copy of this order.The petitioner shall be entitled for arrears of pension, enhanced pension as well as interest @ 6% per annum which has been granted by the Coordinate Bench. The exercise of making actual payment be concluded within a period of three months.With the aforesaid, present petition stands allowed."In light of the aforesaid, as the lis involved in the present case has already been decided, the present petition also stands allowed.The judgment delivered in the case of Shri Virendra Kr. Nagar (Supra) shall be applicable mutatis-mutandis in the present case also.Certified copy as per rules.
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