1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

ON THE 17TH DAY OF SEPTEMBER 2013

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

WRIT PETITION No.16482/2006(S-RES)

And WP Nos.43208-10/2013 C/w.WP No.12837/2008(S-RES) And WP Nos.43211-43233/2013

WRIT PETITION No.16482/2006(S-RES) And WP Nos.43208-10/2013 BETWEEN: 1.STATE BANK OF INDIA PENSIONERS’ ASSOCIATION (KARNATAKA) STATE BANK BUILDINGS ST. MARK'S ROAD, BANGALORE 1, REPRESENTED BY ITS PRESIDENT. 2.R.N.GODBOLE S/O N.K.GODBOLE AGED ABOUT 71 YEARS, EARLIER WORKING AS OFFICER IN MIDDLE MANAGEMENT GRADE SCALE-II, AT STATE BANK OF INDIA, LOCAL HEAD OFFICE, BANGALORE SINCE RETIRED R/AT NO.24, SBI OFFICERS’ COLONY BANGALORE 560 079. SINCE DEAD BY L.R.

2

2(a). SMT. ROHINI RAVINDRA GODBOLE, W/O. LATE R.N.GODBOLE, AGED ABOUT 73 YEARS, R/AT. NO.24, SBI OFFICERS’ COLONY BASAVESHWARANAGARA, BANGALORE-79. (AMENDED VIDE COURT ORDER DT:20.7.2012) 3.V.N.INAMDAR S/O N.S.INAMDAR AGED ABOUT 60 YEARS, EARLIER WORKING AS OFFICER IN MIDDLE MANAGEMENT GRADE SCALE-II, STATE BANK OF INDIA COMMERCIAL BRANCH, RAJAJINAGAR, B'LORE, SINCE RETD. R/AT NO.45, SBI OFFICER COLONY, B'LORE 79 4.L MENEZES S/O LATE B MENEZES AGED ABOUT 76 YEARS, EARLIER WORKING AS ASSISTANT GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICER, BANGALORE SINCE RETIRED R/AT NO.11, STATE BANK OF INDIA OFFICERS’ COLONY,BANGALORE 79. …PETITIONERS

(BY SRI M.N.PRASANNA, ADV, FOR M/S.P.S.RAJAGOPAL, ADVS.)

AND: 1.STATE BANK OF INDIA A BODY CONSTITUTED UNDER THE STATE BANK OF INDIA ACT, 1955, PERSONNEL MANAGEMENT DEPARTMENT, CORPORATE CENTRE, STATE BANK BHAVAN, MADAME CAMA ROAD, MUMBAI 400 021, REPRESENTED BY ITS CHAIRMAN.

3

2.UNION OF INDIA BY ITS SECRETARY TO THE GOVERNMENT DEPARTMENT OF BANKING, MINISTRY OF FINANCE, JEEVAN VIHAR, PARLIAMENT STREET NEW DELHI 110 011. 3.RESERVE BANK OF INDIA CENTRAL OFFICE, MUMBAI, REPRESENTED BY ITS GOVERNOR, 4.STATE BANK OF INDIA EMPLOYEES PENSION FUND REPRESENTED BY THE CHAIRMAN STATE BANK OF INDIA, CORPORATE CENTRE, MUMBAI 400 021. …RESPONDENTS

(BY SRI R.SUBRAMANYA, ADV. FOR, SRI ASHOK HARANAHALLI FOR R1 & R4,

SRI B.PRAMOD FOR R2,R3-RESERVE BANK OF INDIA SD.ABSENT)

THESE WRIT PETITIONS ARE FILED UNDER

ARTS.226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE EXCLUSION OF PENSIONERS WHO RETIRED FROM THE SERVICES OF THE BANK PRIOR TO 1.11.2002 FROM THE BENEFIT OF REVISION BY CIRCULAR D. 24.8.2006 VIDE ANX-P, IS ARBITRARY, IRRATIONAL, ILLEGAL AND UNCONSTITUTIONAL, AND DIRECT THE R1/BANK TO EXTEND THE BENEFIT OF 100% NEUTRALIZATION FOR ALL PENSIONERS IRRESPECTIVE OF THE DATE OF RETIREMENT BY COMPUTING THE DEARNESS RELIEF AT 0.67% FOR THOSE WHO HAVE RETIRED UPTO AND INCLUSIVE OF 31ST OCTOBER 1992, 0.35% FOR THOSE WHO RETIRED BETWEEN 1.11.1993 TO 31.3.1998 AND AT 0.24% FOR THOSE WHO RETIRED BETWEEN 1.1.1998 AND 31.10.2002 IRRESPECTIVE OF THEIR BASIC PENSION AND ALSO DIRECT THE R1 TO PAY INTEREST ON

4

DELAYED PAYMENT OF PENSION FROM 1.9.2006 UNTIL THE DATE OF PAYMENT. WP No.12837/2008(S-RES) & WP Nos.43211-43233/2013: 1.SRI Y. MOHAN SHETTY S/O. Y KALAPPA SHETTY AGED ABOUT 67 YEARS R/A NO.210, HIG LAYOUT 2ND MAIN, 11TH CROSS RAJ MAHAL VILAS II STAGE BANGALORE 560 004. 2.SRI K.S.PRAKASH RAO S/O LATE SHRI SANJIV RAO AGED ABOUT 68 YEARS R/A NO.65, AICOBOONAGAR 17TH MAIN, 3RD CROSS BTM LAYOUT I STAGE BANGALORE 560 068. 3 SRI N.ANANDA RAO S/O N SHESHAPPAYYA AGED ABOUT 67 YEARS R/A FLAT NO.501/D-1 "WHITE HOUSE", R.T.NAGAR, BANGALORE 560 032. 4.SRI P.MOHAN BHAT S/O LATE P NARAYANA BHAT AGED ABOUT 66 YEARS R/A NO.G-1, BRIGADE RETREAT ADIPAMPA ROAD, V.V.MOHALLA MYSORE 570 001. 5.SRI H.S.KAMATH S/O H RANGA KAMATH AGED ABOUT 65 YEARS R/A NO.217, 16TH CROSS

5

M.C.LAYOUT, VIJAYANAGAR BANGALORE 560 040. 6.SRI P GOKULDAS KAMATH S/O LATE P NARASIMHA KAMATH AGED ABOUT 63 YEARS R/A NO.176, "GOWRI GANESH" 9TH MAIN ROAD, 2ND CROSS AICOBOONAGAR, BTM II STAGE BANGALORE 560 076. 7.SRI K RAMACHANDRA NAYAK S/O LATE K PURUSHOTHAMA NAYAK AGED ABOUT 63 YEARS R/A NO.1787 "SRI VENKATA NIVAS" 1ST FLOOR, 14TH MAIN, 34TH CROSS BANASHANKARI II STAGE BANGALORE 560070. 8.SRI U. YESHWANTH SHENOY S/O W.NARAYAN SHENOY AGED ABOUT 63 YEARS R/A NO.5, 4TH MAIN SANGOLLI RAYANNA LANE NEAR CORPORATION BANK NEW BEL ROAD, RMV II STAGE, BANGALORE-560 094. 9.SRI K N RAMASWAMY S/O LATE K NARAYANA JOIS AGED ABOUT 67 YEARS R/A NO.1359, I MAIN ROAD PRASHANTH NAGAR NEAR M.R.K.H.B.COLONY BANGALORE 560 079. 10.SRI U.P.PURANIK S/O SUBBAYYA PURANIK AGED ABOUT 70 YEARS R/A NO.25, SHRINIDHI

6

I CROSS, 6TH MAIN SARVABHOUMANAGAR CHIKKALSANDRA, BANGALORE 560 061. 11.SRI K.TARACHANDRA S/O K VITTAL KARKERA AGED ABOUT 62 YEARS R/A NO.B-16, DEVINA SRUSTI K.P.T.APARTMENTS MANIVILAS GARDEN KAMALANAGAR BANGALORE 560 079. 12.SRI K.VAIKUNTA BHAT S/O LATE K.RAMACHANDRA BHAT AGED ABOUT 70 YEARS R/A NO.198, SARASWATHINAGAR VIJAYANAGAR BANGALORE 560 040. 13.SRI DAYANANDA K SHETTY S/O KARIYANNA SHETTY AGED ABOUT 63 YEARS R/A NO.197/D/1, 8TH B MAIN 3RD BLOCK, JAYANAGAR BANGALORE 560 011. 14.SRI K.PADMANABHA NAVADA S/O K SUBRAYA NAVADA AGED ABOUT 66 YEARS R/A NO.17, 6TH MAIN, 9TH CROSS R.K.LAYOUT I STAGE PADMANABHANAGAR BANGALORE 560 070. 15.MS.SRI N PRAFULLA ANAND RAO D/O. B.N. ACHAR, AGED ABOUT 62 YEARS R/A FLAT NO.501/D-1 "WHITE HOUSE", R.T.NAGAR BANGALORE 560 032.

7

16.SRI DAYANANDA N.MALLYA S/O LATE B.NARASIMHA MALLYA AGED ABOUT 64 YEARS R/A NO.163, AICOBOONAGAR 13TH MAIN, SERVICE ROAD BTM I STAGE, MADIVALA P.O., BANGALORE 560 068. 17.SRI V.ANNAPPAYYA HOLLA S/O LATE V.RAMA HOLLA AGED ABOUT 60 YEARS R/A NO.802, SYNDICATE BANK STAFF COLONY, MOODALAPALYA BANGALORE 560 072 18.SRI KARKALA PURUSHOTHAM JOISHY S/O KARKALA GANAPATHI JOISHY AGED ABOUT 66 YEARS R/A H.NO.115, AICOBOONAGAR 13TH MAIN, 4TH BLCOK, BTM LAYOUT, I STAGE BANGALORE 560 068. 19.MANGALORE GANESH BHAT S/O PURUSHOTTAM RAM BHAT AGED ABOUT 72 YEARS R/A TEERTHROOP, 53, AICOBOONAGAR 17TH MAIN, 2ND CROSS BTM LAYOUT, I STAGE, BANGALORE. 20.SRI B RAGHURAM PRABHU S/O B YENKATRAMANA PRABHU AGED ABOUT 72 YEARS R/A H.NO.63, SREE NARASIMHA KRIPA 1ST MAIN, K.G.S.ROAD, MARENAHALLI, VIJAYANAGAR, BANGALORE 560 040.

8

21.SRI P.SACHIDANANDA BHAT S/O NARAYANA AGED ABOUT 64 YEARS R/A NO.1178, 1ST MAIN DR.AMBEDKAR LAYOUT KAVALBYRASANDRA, BANGALORE. 22.SRI K. MOHANDAS SHETTY S/O K SHIVARAM SHETTY AGED ABOUT 61 YEARS R/A "AKSA", 2ND MAIN V.P.NAGAR, KUNJIBETTU UDUPI 576 102. 23.SRI B.RANGANATH HEGDE S/O A HARIANNA HEGDE AGED ABOUT 70 YEARS R/A NO.603, CLASSIQUE APARTMENTS BUNTS HOSTEL ROAD MANGALORE 575 003. 24.SRI T.V.SWAMINATHAN S/O T VEERASWAMI IYER AGED ABOUT 68 YEARS R/A NO.102, SHARATH APARTMENTS K.R.LAYOUT, 6TH CROSS, J.P. NAGAR, 6TH PHASE, BANGALORE 560 078. .. PETITIONERS

(BY SRI.M.N.PRASANNA, M/S. P.S. RAJAGOPAL ASSOCIATES)

AND: 1.SYNDICATE BANK A BODY CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKINGS)ACT 1970 HEAD OFFICE, MANIPAL 576 104 UDUPI DISTRICT. REP BY ITS GENERAL MANAGER, PERSONNEL DEPARTMENT.

9

2.THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT DEPARTMENT OF FINANCIAL SERVICES MINISTRY OF FINANCE JEEVAN DEEP BUILDING/PARLIAMENT STREET NEW DELHI 110011. 3.THE RESERVE BANK OF INDIA CENTRAL OFFICE, MUMBAI REP BY ITS GOVERNOR. .. RESPONDENTS

(BY MS.SUBHA ANANTHI, ADV. FOR M/S KASTURI ASSOCIATES FOR R1,

SRI B.PRAMOD FOR R2, R3 SD.(ABSENT).

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE EXCLUSION OF PENSIONERS WHO RETIRED FROM THE SERVICES OF THE BANK PRIOR TO 1.11.2002, FROM THE BENEFIT OF UNIFORM NEUTRALIXATION IN THE MATTER OF DEARNESS RELIEF AND PENSION IS ARBITRARY, IRRATIONAL, ILLEGAL AND UNCONSTITUTIONAL BY ISSUE OF APPROPRIATE WRIT, ORDER OR DIRECTION AND DIRECT THE R1,BANK TO EXTEND THE BENEFIT OF 100% NEUTRALIZATION FOR ALL PENSIONERS IRRESPECTIVE OF THE DATE OF RETIREMTNT, GRANT THEM DEARNESS RELIEF EXACTLY ON THE LINES OF WORKING EMPLOYEES AND PAY ARREARS OF DEARNESS RELIEF AND PENSION ON THAT BASIS FROM 1ST FEABRUARY 2005, IRRESPECTIVE OF THEIR BASIC PENSION AND ALSO DIRECT THE R1, TO PAY INTEREST ON DELAYED PAYMENTS OF PENSION AND DEARNESS RELIEF FROM 1.4.2005, UNTIL THE DATE OF PAYMENT IN SO FAR AS PETITIONERS ARE CONCERNED. THESE WRIT PETITIONS COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

10

ORDER The petitioners in WP No.12837/08 and WP

Nos.43211-33/13 are ex-employees of the first respondent-

Syndicate Bank. The Writ Petitioners in WP No.16482/06

and WP Nos.43208-10/13 are ex-employees of first

respondent State Bank of India. The plea put-forth by the

petitioners is that, they joined the services of their respective

banks and have since retired. Each one of them is entitled to

a pension under the provisions of the Syndicate Bank

employees Pension Regulations, 1995 with respect to WP No.

WP No.12837/08 and WP Nos.43211-33/13, in respect of

WP No.16482/2006 and WP Nos.43208-10/13, petitioners

are entitled for pension under the SBI Employees Pension

Fund Rules.

2. They are aggrieved by the discriminatory and

arbitrary Dearness Allowance formula adopted by the

respondent Banks with respect to those persons who have

retired prior to 1.11.2002. It is contended that, by placing

reliance upon the Bipartite Settlement dated 2.6.2005 at

clause-7 which states that DA shall be payable with effect

11

from 1.11.2002 which the respondents have adopted,

petitioners who have retired prior to 1.11.2002 would not be

entitled for the said benefits. But, the persons who have

retired after 1.11.2002, receive a higher DA than the

petitioners who have retired prior to 1.11.2002. That all the

pensioners of the respondent-Bank constitute a particular

class. Therefore, the respondent-Banks cannot differentiate

between the persons belonging to the same category in view

of the higher DA being granted to those who have retired

after 1.11.2002 than the present petitioners who have retired

prior to 1.11.2002, thereby Article 14 stands affected and

therefore, relief that is granted to persons who have retired

after 1.11.2002, should also be extended to the case of the

petitioners.

3. On the other hand, the learned counsel appearing

for respective banks dispute the same. They contend that, so

far as employees of nationalized banks are concerned, there

was no scheme of grant of any pension or otherwise. That it

is only in the year 1993 that a settlement was arrived at

between the banks to put its employees on various terms

12

and conditions; consequence whereof, the employee of the

banks received a benefit of pension, DA etc., Subsequent to

thereof, in the year 1995, the respondent-Syndicate Bank

brought about the Syndicate Bank Employees Pension

Regulations, 1995 in terms whereof, the pension payable to

the employees is regulated in terms of Regulations 35, 36

and 37. Under the circumstances, whatever relief that may

be granted in terms of such regulations, is granted to the

petitioners. That the DA is revised from time to time covering

a particular period of time. For the period from 1.11.2002 to

31.10.2007, a rate of DA was held applicable to the persons

who retired during that period. For the persons who retired

prior to 1.11.2002 a different rate of Dearness Allowance was

granted and for those persons who retired between

1.11.1992 to 31.10.2002, it was paid at a different rate.

Therefore, they constitute two different class of persons

having retired in two different blocks of dates. Therefore, all

persons who retired prior to 1.11.2002 would receive a

different dearness allowance than those persons who retired

after 1.11.2002. Therefore, it cannot be said that there is a

13

discrimination between these two classes of pensioners. That

such a classification has been made which is in the interest

of the employees. Therefore, to contend it is arbitrary and it

affects Article 14, is incorrect.

4. Heard Sri Nagaprasanna, learned counsel appearing

for the petitioners. Sri R.Subramanya, learned counsel

appearing for respondent nos. 1 and 4, Sri B.Pramod,

learned counsel for respondent no.2 in WP No.16482/06 and

WP Nos.43208-10/2013 Smt.Subha Ananthi, learned

counsel appearing for respondent no.1 and Sri B.Pramod,

learned counsel appearing for respondent no.2 in WP

No.12837/08 and WP Nos.43211-233/2013 examined the

material on record.

5. The contention of the petitioners is based on

discrimination. The thrust of the contention is that, the

classification made by the respondent-Banks between

persons who have retired prior to 1.11.2002 and after that,

is arbitrary. That persons who retired constitute one class.

There cannot be a differentiation between them. It is

14

contended that in certain cases officers and officials who are

junior to them would be receiving a higher pension than

their seniors. Therefore, the classification made by the

respondents leads to absurdity and hence requires to be

quashed.

6. In support of his case, he placed reliance on the

Judgment of Hon’ble Supreme Court reported in (1983) 1

SCC 305 (D.S.Nakara vs.Union of India) to contend that the

petitioners being in service and retiring subsequent to a

specific date for being eligible for liberalized pension was

violative of Article 14 of the Constitution and that is arbitrary

and discriminatory. That persons in Government service who

retired prior and subsequent to the specified date form one

class. They having been classified in two different groups for

pension, there could be no such division which classified

pensioners into two classes and it is not based on any

rational principle. He also contended, that the classification

has to be based as well as settled on some rational principle

and the rational principle must have a nexus with the object

sought to be achieved.

15

7. Reliance is placed on (1998) 8 SCC 30 in the case of

V.Kasturi vs. Managing Director, State Bank of India,

Bombay and another wherein the Hon’ble Supreme Court

held at paragraphs 21 and 22 as follows:

“21. It is now time for us to take stock of the situation. From the aforesaid resume of relevant decisions of this Court spread over the years to which our attention was invited by learned counsel for the respective parties, the following legal position clearly gets projected.

Category 1

22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time of 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

16

the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara case would cover this category of cases.”

8. He therefore, pleads that the said Judgments

come to his aid and the petitioners who have retired

prior to 1.11.2002 should be granted the same benefit

as is soguht to be granted in favour of the persons who

retired after 1.11.2002.

9. On the other hand, learned counsel for the

respondents dispute the same. They contend that the

Judgment relied upon by the learned counsel for the

petitioners in Nakara’s case has since been clarified in

subsequent judgments of the Hon’ble Supreme Court

itself. Reliance is placed on Judgment reported in AIR

1997 SC 2607 (Commander, Head Quarter, Calcutta

and others, vs. Capt. Biplabendra Chanda) with

reference to paras 5 and 6 wherein it has been held as

follows:

“5. The decision in D.S.Nakara (AIR 1983 SC 130) has indeed been explained by two subsequent Constitution Bench

17

decisions of this Court in Krishena Kumar v. Union of India (1990) 4 SCC 207 : (AIR 1990 SC 1782) and Indian Ex-Services League v. Union of India (1991) 1 SCR 158: (1991) AIR SCW 327). In the latter decision, it has been held that “the petitioners claim that all pre 1.4.1979 retirees of the Armed Forces are entitled to the same amount of pension as shown in appendices ‘A’, ‘B’ and ‘C’ for each rank is clearly untenable and does not flow from the Nakara decision.” We may also refer in this connection to the observations in another decision of this Court in State of West Bengal v. Ratan Behari Dey (1993 ) 4 SCC 62: (1993 AIR SCW 2980, Paras 7 and 8) to the following effect:

“……… 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 may 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……the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be

18

specified both prospectively as well as retrospectively. The only question is whether the prescription of the date in this case, is neither arbitrary nor unreasonable, the complaint of discrimination must fail.”

6. The learned counsel for the

respondent relied upon a recent decision of this Court in M.C.Dhingra v. Union of India, (1996) 7 SCC 564: (1996 Air SCW 176), but that was also a case where a distinction was sought to be made between the same class of pensioners. The said decision, therefore, cannot come to the rescue of the respondent.”

10. Reliance was placed on the Judgment of the

Supreme Court reported in 2005(6) SCC 754 in the

case of State Bank of Punjab and Others vs. Amar

Nath Goyal and others, wherein it has been held at

paragraphs 29 and 30 as follows:

“29. D.S. Nakara (supra), which is the

mainstay of the case of the employees, arose

under special circumstances, quite different

from the present case. It was a case of revision

of pensionary benefits and classifications of

pensioners into two groups by drawing a cut-off

line and granting the revised pensionary

benefits to employees retiring on or after the

cut-off date. The criterion made applicable was

"being in service and retiring subsequent to the

specified date". This Court held that for being

eligible for liberalised pension scheme,

application of such a criterion is violative of

19

Article 14 of the Constitution, as it was both

arbitrary and discriminatory in nature. The

reason given by the Court was that the

employees who retired prior to a specified date,

and those who retired thereafter formed one

class of pensioners. The attempt to classify them

into separate classes/ groups for the purpose of

pensionary benefits was not founded on any

intelligible differentia, which had a rational

nexus with the object sought to be achieved.

However, it must be noted that even in cases of

pension, subsequent judgments of this Court

have considerably watered down the rigid view

taken in D.S. Nakara (supra) as we shall see

later in T. N. Electricity Board v. R. Veerasamy

and Ors. ("Veerasamy"). In any event, this is

not a case of a continuing benefit like pension;

it is a one-time benefit like gratuity.

30. In Union of India v. P.N.Menon and

Ors., while implementing the recommendations

of the Third Pay Commission with regard to

dearness pay linked to average index level 272,

which was to be counted as emoluments for

pension and gratuity under Central Civil

Services (Pension) Rules, 1972, the Central

Government had fixed a certain cut-off date and

directed that only officers retiring on or after

the specified date were entitled to the benefits of

the dearness pay being counted for the purpose

of retirement benefits. This was challenged as

arbitrary and violative of Article 14 of the

Constitution. This Court turned down the

challenge and observed:

"Not only in matters of

revising the pensionary benefits, but

even in respect of revision of scales

20

of pay, a cut-off date on some

rational or reasonable basis, has to

be fixed for extending the benefits.

This can be illustrated. The

Government decides to revise the pay

scale of its employees and fixes the

1st day of January of the next year

for implementing the same or the 1st

day of January of the last year. In

either case, a big section of its

employees are bound to miss the said

revision of the scale of pay, having

superannuated before that date. An

employee, who has retired on 31st

December of the year in question,

will miss that pay scale only by a day,

which may affect his pensionary

benefits throughout his life. No

scheme can be held to be foolproof,

so as to cover and keep in view all

persons who were at one time in

active service. As such the concern of

the court should only be, while

examining any such grievance, to see,

as to whether a particular date for

extending a particular benefit or

scheme, has been fixed, on objective

and rational considerations."

11. Reliance is placed on the Judgment reported

in 2002 (2) SCC 179 in the case of State of West

Bengal and another vs. West Bengal Govt.Pensioners’

Associations and others paragraph-20 which reads as

follows:

21

“20. What is noticeable is that the

definition of the word “emoluments” in

the 1971 Rules was not amended. As

such pension continued to be calculated

on the basis of emoluments as defined in

the 1971 Rules, namely, the last pay

drawn immediately prior to retirement.

The pay of the pre-1986 pensioners was

not revised. The Third Pay Commission

had given a reason for choosing 1-1-

1986, as the cut-off date. As held in

Krishena Kumar v. Union of India

((1990) 4 SCC 207) and Union of India

v. P.N. Menon (1994) 4 SCC 68 merely

because a cut-off date is fixed would not

make the exercise invalid although

persons in the service immediately

before the cut-off date would be deprived

of the benefit of the revised scales of pay.

It would depend upon the relevancy of

the consideration underlying the choice

of such date. The reason stated by the

Third Pay Commission cannot be said to

be arbitrary or irrelevant.”

12. There too, the Judgment in Nakara’s case

was clarified to the following effect in paragraph-22

which reads as follows:

22. Nakara decision (1983) 1

SCC 305 did not direct the payment of an

equal amount of pension to all

pensioners. This is clear from the

following passage where the Court

discusses the financial impact of the

22

formula on the resources of the

Government: (SCC p.334, para 49)

“In our opinion, it

would make a marginal

difference in the case of past

pensioners because the

emoluments are not revised.

The last revision of

emoluments was as per the

recommendation of the Third

Pay Commission (Raghubar

Dayal Commission). If the

emoluments remain the same,

the computation of average

emoluments under amended

Rule 34 may raise the average

emoluments, the period for

averaging being reduced from

last 36 months to last 10

months. The slab will provide

slightly higher pension and if

someone reaches the

maximum the old lower ceiling

will not deny him what is

otherwise justly due on

computation.”

13. It is therefore contended that merely because

of a cut off date, it would not affect the petitioners

although immediately before the cut off date, they

would be deprived of the benefit of the revised scale of

pay. Under the circumstances, they submit that

petitions may be dismissed.

23

14. The contention of the petitioners is primarily

based on the Judgment reported in Nakara’s case. The

subsequent Judgments as relied upon by the learned

counsel for the respondents, the principles as

enunciated therein have substantially been re-read in

West Bengal Pensioners Association case wherein, the

Hon’ble Supreme Court, while considering the said

Judgment and other Judgments on the issue as per

the case of Krishena Kumar was of the view that

merely because a cut off date is fixed, would not make

the exercise invalid, although persons in service

immediately before the cut-off date would be deprived

of the benefit of the revised scales of pay. It would

depend upon the relevancy of the consideration

underlying the choice of such a date. The object of a

cut off date will not invalidate the benefit that is

denied to the petitioners therein. It would depend on

the relevancy and applicability of such a situation.

24

15. In the case of Commander, HQs, the Hon’ble

Supreme Court held that the decision in Nakara’s case

was explained by the Constitution Bench of Hon’ble

Supreme Court in Krishena Kumar and Indian Ex-

Services League case that the petitioners’ claim therein

from 1.4.1979 are entitled to the same amount of

pension for each rank but the claim for the same

amount of pension to be paid to all pre-April 1979

retirees of the armed forces as to the post-April 1979

retirees was rejected. It was held that it was clearly

untenable and that such a proposition does not flow

from the Judgment in Nakara’s case. A distinction was

sought to be made between the two classes of

pensioners. The Hon’ble Supreme Court in the said

Judgment and while explaining the Judgment in

Nakara’s case and also referring to the subsequent to

Constitution Bench judgments, was of the view that a

distinction between those two classes of pensioners

cannot be said to be arbitrary. Therefore, it was held

that the action of the respondents is not arbitrary.

25

Under the circumstances, reliance placed by the

learned counsel for the petitioners cannot be accepted.

16. The contention of the respondents that

merely because a cut off date has been fixed would

render the same as invalid or affecting Article 14

therefore, cannot be accepted.

17. Subsequently too, in the Judgment reported

in 1994(4) SCC 68 in the case of Union of India vs.

P.N.Menon and Others, the Hon’ble Supreme Court

held at paragraph-8 as follows:

“8. 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

26

D.R.Nim v. Union of India in connection with fixation of 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”. 18. Therefore, in the present case, it cannot be

said that the classification sought to be made by the

respondents cannot be said to “pick out a date from

the hat”. It is a reasonable cut off date, spread over for

two block periods of five years. Such a block of five

years was being applied by the respondent-Banks ever

since the settlement was arrived at between them from

the previous two block periods. Therefore, it cannot be

said that the fixing of this block period is either

arbitrary or without any nexus. The block period of five

years would amount to a reasonable classification. It

necessarily has a nexus in the differentiation in fixing

a cut off date for grant of pension to a class of persons

who fall within that cut off date.

19. In the Judgment reported in (2008) 14 SCC

702 in the case of Government of Andhra Pradesh and

27

others vs. N.Subbarayudu and others, the Hon’ble

Supreme Court has held at paragraph 5 and 6, 7 and

8 as follows:

“5. In a catena of decisions of

this Court it has been held that the cut

off date is fixed by the executive

authority keeping in view the economic

conditions, financial constraints and

many other administrative and other

attending circumstances. This Court is

also of the view that fixing cut off dates

is within the domain of the executive

authority and the Court should not

normally interfere with the fixation of cut

off date by the executive authority unless

such order appears to be on the face of it

blatantly discriminatory and arbitrary.

(See State of Punjab & Ors. Vs. Amar

Nath Goyal & Ors., (2005) 6 SCC 754).

6. No doubt in D.S.Nakara & Ors.

Vs.Union of India (1983(1) SCC 305)

this Court had struck down the cut off

date in connection with the demand of

pension. However, in subsequent

decisions this Court has considerably

watered down the rigid view taken in

Nakara's Case (supra), as observed in

para 29 of the decision of this Court in

State of Punjab & Ors. vs.Amar Nath

Goyal.

7. There may be various

considerations in the mind of the

executive authorities due to which a

28

particular cut off date has been fixed.

These considerations can be financial,

administrative or other considerations.

The Court must exercise judicial

restraint and must ordinarily leave it to

the executive authorities to fix the cut off

date. The Government must be left with

some leeway and free play at the joints in

this connection.

8. In fact several decisions of this

Court have gone to the extent of saying

that the choice of a cut off date cannot be

dubbed as arbitrary even if no particular

reason is given for the same in the

counter affidavit filed by the

Government, (unless it is shown to be

totally capricious or whimsical) vide

State of Bihar vs. Ramjee Prasad

1990(3) SCC 368, Union of India &

Anr.vs.Sudhir Kumar Jaiswal 1994(4)

SCC 212 (vide para 5), Ramrao & Ors.

vs. All India Backward Class Bank

Employees Welfare Association & Ors.

2004 (2) SCC 76 (vide SCC para 31),

University Grants Commission vs.

Sadhana Chaudhary & Ors. 1996(10)

SCC 536, etc. It follows, therefore, that

even if no reason has been given in the

counter affidavit of the Government or

the executive authority as to why a

particular cut off date has been chosen,

the Court must still not declare that date

to be arbitrary and violative of Article 14

unless the said cut off date leads to some

blatantly capricious or outrageous

result.”

29

20. Here too, Hon’ble Supreme Court held that a

cut off date as fixed by the respondents was because of

the economic conditions, financial constraints,

administrative and other attending circumstances.

Therefore, it is contended that, fixing the cut off date is

within the very authority of the respondents and it is

not for the Court to interfere until and unless it is

shown to be discriminatory, arbitrary or capricious or

results in an absurd result.

21. On a consideration of these very

circumstances, the respondents have taken a decision

to fix a cut off date as having a nexus to the object

sought to be achieved which would not lead to any

absurdity as mentioned by the Hon’ble Supreme Court

therein. Even otherwise, a cut-off date would

necessarily have to be applied. It cannot be a scheme

where there is no cut-off date at all. Therefore,

somewhere a cut-off has to be made. Therefore, the

respondents have fixed a block period of five years. It

30

would not discriminate among the persons who retired

or it cannot be against the interest of persons who

have retired. Such a cut-off date with this period was

in vogue earlier also. Under the circumstances, it

cannot be said that date fixed for grant of DA to

persons who have retired prior to 1.11.2012 and

subsequent, cannot be said to be arbitrary or violative

of Article 14 of the Constitution.

22. For these reasons, I’ am unable to accept the

contentions put-forth by the petitioners’ counsel.

Consequently, I do not find any merit in these

petitions.

23. In view of the above reasons, the contentions

being devoid of merit, the writ petitions must fail.

Consequently, the petitions are dismissed. Rule

discharged.

Sd/- JUDGE

Sk/-