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CASE NO.: Appeal (civil)  129 of 2003

PETITIONER: State of Punjab & Ors.                                           

RESPONDENT: Amar Nath Goyal & Ors.                                                    

DATE OF JUDGMENT: 11/08/2005

BENCH: Y. K. Sabharwal & B. N. Srikrishna  

JUDGMENT: J U D G M E N T With

Civil Appeal Nos. 132/03, 133/03, 1838/03, 1847/03, 902/04, 1061/05,  Civil Appeal No. 4987/05 @ SLP(C) No. 2947/2003,  Civil Appeal Nos.  4988-5018 /05 @ SLP (C) Nos. 6855-6886/2003,  Civil Appeal Nos. 4985-4986 /05 @ SLP (C) Nos. 12071-12072/2004  and  T.C. (Civil)  Nos.  58/04 and  41/05.

SRIKRISHNA, J.

       Delay condoned. Leave granted in the Special Leave Petitions.

       This group of Special Leave Petitions and Transferred Cases raise the  same issue of law, though the origin of the cases and the paths by which they  found their way to this Court are different. A brief resume of the facts is  called for.

Civil Appeal No. 129 of 2003:         The respondents are employees of the Government of Punjab who  retired during the period 31.7.1993 to 31.3.1995. They sought the benefit of  a circular dated 13.12.1996 under which the State Government employees,  who retired or died on or after 1.4.1995, were entitled to get retirement  gratuity/ death gratuity on the basis of addition of certain portion of the  dearness pay to the basic pay. This benefit was refused to them. The  respondents challenged the decision of the State Government declining them  the aforesaid benefit by a group of writ petitions (numbered CWP No.  4995/97 and others) before the High Court of Punjab & Haryana. The High  Court partially allowed the writ petition and held that such of the State  Government’s employees, who had retired on or after 1.7.1993, were  entitled to the higher amount of death gratuity and retirement gratuity  consequent upon the merger of a portion of dearness allowance into the  basic pay. The High Court, however, refused to grant this benefit to  employees who had retired before 1.7.1993.           The High Court also directed the State Government and its officers to  calculate the death/ retirement gratuity of the respondents who had retired on  or after 1.7.1993 in accordance with the notification dated 13.12.1996. The  said judgment of the Division Bench of the Punjab & Haryana High Court is  challenged in this appeal.

Civil Appeal No. 1061 of 2005:         The respondents, retired employees of the Education Department of  the Government of Punjab, were superannuated during the period 31.7.1993  to 31.3.1995. They also sought the benefits flowing from the order of the  Government of Punjab dated 13.12.1996 and sought a higher quantum of  death-cum-retirement gratuity. These benefits having been refused to them,  they too moved the High Court of Punjab & Haryana by a Civil Writ  Petition (CWP No. 17666/98). This writ petition was allowed by order dated

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3.5.2002 following the judgment in CWP No. 4995/97. Being aggrieved  thereby, the State of Punjab is in appeal.

Civil Appeals @ Special Leave Petitions (Civil) Nos. 12071-12072 of 2004:          The respondent-employees in this case retired on 28.2.1994 from  Postal Department Service, H.P. Circle i.e. prior to the prescribed cut-off  date of 1.4.1995. He sought the higher amount of death-cum-retirement  gratuity subject to the increased maximum limit under the Office  Memorandum ("O.M.") dated 14.7.1995 issued by the Government of India.  This O.M. directed that a certain percentage of dearness allowance was to be  treated as part of basic pay for the purpose of calculating the death gratuity  and retirement gratuity in respect of the Central Government employees who  retired after 1.4.1995. However, the Central Government rejected his claim  on the ground that he had retired prior to 1.4.1995. The employee then  moved the Central Administrative Tribunal ("CAT") (Chandigarh Bench) by  his Original Applications. The CAT directed that the benefit of O.M. dated  14.7.1995 be extended to the employee concerned, on the undertaking that,  if the connected matters pending at the time in the Bombay High Court were  to be adversely decided against him, he would refund the monies with  interest.

       The Union of India moved the High Court of Himachal Pradesh by   writ petition CWP No. 462/03, which was dismissed on the ground that a  similar matter was pending before the Bombay High Court against a  decision of the Full Bench of the CAT (Mumbai Bench), and that the  decision given by the Bombay High Court would decide the rights and  contentions of the parties. The Union of India’s Civil Review No. 32/03 was  also dismissed on 11.09.2003. Aggrieved thereby, the Union of India is in  appeal. Civil Appeal No. 132 of 2003:         The respondents in this case were employees of the Punjab  Government who retired from service of Municipal Committee, Malerkotla  on attaining the age of superannuation. They retired on different dates, but  between 31.10.1993 and 28.2.1994. They were paid gratuity in accordance  with the then applicable rules. The respondents demanded gratuity in  accordance with the orders of the Government of Punjab. This would have  given them the benefit of increased quantum of death gratuity and retirement  gratuity pursuant to the merger of certain percentage of the dearness  allowance with the basic pay. This benefit having been refused to them, they  moved the Punjab & Haryana High Court by their writ petition CWP No.  942/99. This writ petition was also allowed by a common judgment dated  3.5.2002 rendered by the Punjab & Haryana High Court in CWP No.  4995/97. Being aggrieved thereby, the appellant-Municipal Committee is  before this Court.

Civil Appeal No. 133 of 2003:         The appellants in this case retired from the Education Department of  the Government of Punjab upon attaining the age of superannuation on  various dates before 1.7.1993. They claimed the benefit of increased amount  of retirement-cum-death gratuity consequent upon the merger of a portion of  dearness allowance with the basic pay as indicated in the instructions of the  State Government dated 13.12.1996, made effective in the case of  Government employees who retired or died on or after 1.4.1995. Their  claims were rejected by the State Government. The employees moved the  High Court of Punjab & Haryana by their writ petition CWP No. 15212/98,  which was disposed of following the common judgment rendered by the  High Court in CWP No. 4995/97. The High Court rejected the claims of this  group of employees who had retired prior to 1.7.1993. Hence, this appeal by  the aggrieved employees.

Civil Appeal No. 1838 of 2003:         The First Respondent in this case was an employee of the Punjab State  Electricity Board, who retired before the prescribed cut-off date of  1.04.1995. His claim for increased amount of death-cum-retirement gratuity  was similarly rejected by the Punjab State Electricity Board. His writ

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petition CWP No. 12260/98 was allowed following the common judgment  in CWP No. 4995/97. The Punjab State Electricity Board is here in appeal.

Civil Appeal No. 1847 of 2003:         The first respondent was an employee of the Punjab State Electricity  Board who retired between 1.7.1993 and 31.3.1995. His claim for increased  amount of death-cum-retirement gratuity was similarly rejected by the  Electricity Board. His writ petition CWP No. 12957/98 before the High  Court of Punjab & Haryana was decided by the common judgment in CWP  No. 4995/97. Hence, this appeal by the Punjab State Electricity Board.

Civil Appeal @ Special Leave Petition No. 2947 of 2003:

       This appeal is against the judgment in CWP No. 552/99 decided by  the common judgment of the High Court of Punjab & Haryana in CWP No.  4995/97. The High Court of Punjab & Haryana took the view that  Government employees retiring on or after 1.7.1993, but before the cut off  date of 1.4.1995 would also be entitled to the gratuity calculated in  accordance with the provisions of the Government of Punjab order dated  13.12.1996. The respondent in this case is an employee of the Punjab State  Electricity Board who had retired during the aforesaid period. Being  aggrieved by the High Court’s judgment, the Punjab State Electricity Board  is before this Court by way of this appeal. T. C. No. 58/04:         The respondents in this case are all employees of the Central  Government in the Postal Department in the Maharashtra Circle who had  retired between 1.7.1993 and 31.3.1995. They claimed the benefit of the  Central Government order dated 27.9.1993 read with order dated 14.7.1995,  seeking higher benefits of death-cum-retirement gratuity pursuant to the  merger of a portion of the dearness allowance with basic pay and the  consequential raising of the ceiling on the death cum retirement gratuity  amount. Their claims were refused by the Central Government. They filed  Original Applications before the CAT (Mumbai Bench). The issue as to the  validity of the decision of the Central Government in fixing the cut-off date  of 1.4.1995 was referred to the Full Bench of the CAT. The CAT by its  order dated 21.9.2001 held that there was no nexus or rational consideration  in fixing the aforesaid date of 1.4.1995 for availability of the benefit and  allowed the Original Applications. Being aggrieved thereby, the Union of  India preferred Writ Petition No. 884/2002, which was pending before a  Division Bench of the Bombay High Court. Since the identical issue was  being agitated before this Court, by the order dated 27.7.2004, this writ  petition was ordered to be transferred to this Court to be heard along with  the connected matters. Civil Appeals @ Special Leave Petitions (C)  Nos. 6855-6886 of 2003:

       The respondents are retired employees of the Government of Punjab  who retired on or after 1.7.1993, but before the cut-off date of 1.4.1995. By  the common judgment rendered in CWP No. 4995/97, the High Court held  that they were entitled to death-cum-retirement gratuity calculated in  accordance with the provisions of the Government of Punjab Order dated  13.12.1996. Aggrieved thereby, the State of Punjab is before this Court.

Civil Appeal No. 902 of 2004:

       The respondents in this appeal were employees of the Government of  Punjab who retired from various departments/ institutions of the  Government of Punjab before the prescribed cut-off date. When their claim  for enhanced death-cum-retirement gratuity was rejected by the  Government, they filed CWP No. 15032/98. By the common judgment  rendered in CWP No. 4995/97, the High Court of Punjab & Haryana held  that they were entitled to the benefit of gratuity calculated in accordance  with the provisions of the Government of Punjab order dated 13.12.1996.  Being aggrieved thereby, the State of Punjab is in appeal. T.C. No. 41 of 2005:

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       The petitioner in this case retired on 10.11.1994 as a Judge of the  Bombay High Court, Aurangabad Bench. He claimed gratuity in accordance  with O.M. dated 14.7.1995 issued by the Government of India, but  contended that the cut-off date of 1.4.1995 was arbitrary and was liable to be  struck down. His claim for the benefit of death-cum-retirement gratuity  under the O.M. dated 14.7.1995 with higher ceiling was refused. He moved  the Bombay High Court by a writ petition No. 129/97, which has been  transferred to this Court by order dated 27.7.2004 made in Civil Appeal No.  129/03, to be heard along with this group of connected matters.

The Office Memoranda:

       By O.M. dated 27.9.1993, the Ministry of Finance, Government of  India directed that the dearness allowance payable to the Central  Government employees with effect from 1.7.1993 would stand modified as  declared therein at varying rates linked to the basic pay. By another O.M.  dated 19.10.1993, the Government of India notified that for Central  Government employees who retired or died on or after 16.9.1993, a portion  of the dearness allowance as linked to Average Consumer Price Index of  729.91 obtaining as on 1.3.1988 (i.e. 20% of basic pay) would be treated as  dearness pay. This would count only for reckoning emoluments for the  purpose of retirement gratuity and death gratuity under the Central Civil  Services (Pension) Rules, 1972 and for no other purpose. The said orders  came into effect from 16.9.1993. It was directed that the death-cum- retirement gratuity of persons who have already died or retired on or after  16.9.1993 should be recalculated on the basis of the said orders and arrears,  if any, be paid.

       By O.M. dated 14.7.1995, the Central Government directed that, as  recommended by the Fifth Central Pay Commission in its Interim Report,  dearness allowance as linked to the average All India Consumer Price Index  ("AICPI") 1201.66 would be treated as dearness pay for reckoning  emoluments for the purpose of death gratuity and retirement gratuity under  the Central Civil Services (Pension) Rules, 1972. Further, it was directed  that the ceiling on gratuity would stand enhanced to Rs. 2.50 lacs. The said  O.M. indicated different percentages of dearness allowance, depending upon  the basic pay drawn, to be added to pay for calculating gratuity.  

       Following the aforesaid O.M. issued by the Central Government, the  Government of Punjab in the Department of Finance issued orders dated  13.12.1996, wherein it was notified that the Governor of Punjab was pleased  to decide that dearness allowance as admissible to the employees as on  1.7.1993 (linked to All India Consumer Price level 1201.66) would be  treated as dearness pay for reckoning emoluments for the purpose of  retirement gratuity and death gratuity under the Punjab Civil Services Rules- Volume II. This was in respect of "Punjab Government employees who  retire or whose death occurs on or after 1.4.1995". The said order indicated  the varying percentages of dearness allowance to be added to the pay for  calculating gratuity at different pay slabs. The order also notified that the  ceiling of maximum amount of retirement gratuity and death gratuity was to  be raised from Rs. 1 lac to Rs. 2.50 lacs with effect from 1.4.1995.

The Litigation:

       A large number of employees, both of the Central Government as well  as the State Governments of Punjab and Himachal Pradesh, who had retired  prior to 1.4.1995, applied for getting the additional benefits of increased  quantum of death-cum-retirement gratuity up to the increased limit of Rs.  2.5 lacs. Their claims were rejected in some cases and in other cases, the   CAT and the High Court took the view that such of the employees who had  retired between 1.7.1993 and 31.3.1995 were also eligible for the aforesaid  benefits.                  Thus, the employees whose cases were wholly rejected or partly

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rejected and partly granted, as well as the Union of India and the State  Governments are in appeal before us.

Contentions:         The thrust of the arguments by the learned counsel on behalf of the  employees has been on the alleged violation of Article 14 of the  Constitution. They contend that the decision of the Central Government/  State Governments to make available the increased quantum of gratuity  (with revised ceiling) only to employees, who retired or died on or after  1.4.1995, is discriminatory and arbitrary. They also contend that all  retirees/dead persons form a homogeneous class and any discrimination or  distinction between retirees/ dead persons prior to 1.4.1995 and those who  retired/died on or after 1.4.1995 had no rational basis, nor was intended to  serve any purpose. Heavy reliance was placed on the judgment of this Court  in D.S. Nakara v. Union of India   ("D.S. Nakara"). We are afraid that the  refrain of D. S. Nakara (supra) has been played too often to retain its initial  charm, which has been worn thin by subsequent dicta.  

       The learned counsel for the Union of India and the State Governments  contended that, though it is a fact that certain percentage of dearness  allowance was to be merged with the basic pay with effect from 1.7.1993  (linked to the All-India Consumer Price level 1201.66) and that the said  dearness allowance admissible to the employees on 1.7.1993 was to be   treated as dearness pay for reckoning emoluments for the purpose of death  gratuity and retirement gratuity, financial constraints impelled the  Governments, both at the Centre and the State, to restrict such payments  only to the employees who had died or retired on or after 1.4.1995.

       The learned counsel for the Union of India made available the  Government’s file from which it is seen that the Government took a  conscious decision that the benefit of the increase in the quantum of gratuity,  pursuant to the merged portion of the dearness allowance and the revised  ceiling shall be made available from 1.4.1995, which was the date  recommended in the Interim Report of the Fifth Central Pay Commission.  The Government noticed that the consequential financial burden would be  very heavy. Hence, the Central Government decided that these benefits  would be made available only from 1.4.1995. The State Governments  followed suit.

       The only question, which is relevant and needs consideration, is  whether the decision of the Central and State Governments to restrict the  revision of the quantum of gratuity as well as the increased ceiling of  gratuity consequent upon merger of a portion of dearness allowance into  dearness pay reckonable for the purpose of calculating gratuity, was  irrational or arbitrary.  

       It is difficult to accede to the argument on behalf of the employees  that a decision of the Central Government/ State Governments to limit the  benefits only to employees, who retire or die on or after 1.4.1995, after  calculating the financial implications thereon, was either irrational or  arbitrary. Financial and economic implications are very relevant and  germane for any policy decision touching the administration of the  Government, at the Centre or at the State level.

       Even by O.M. dated 19.10.1993, all that happened was that a portion  of the dearness allowance linked to average Consumer Price Index of 729.91  obtaining as on 1.3.1988 (i.e. 20% of the basic pay) was treated as dearness  pay. This would count only for reckoning the emoluments for the purpose of  calculating retirement-cum-death gratuity under the applicable rules and for  no other purpose. This change was brought into effect from 16.9.1993.

       Even at that time, interestingly, the benefits were not made admissible  from 1.3.1988, i.e. the date of the Average Consumer Price Index of 729.91,  but from a much further date i.e. 16.9.1993. The Central Government  adopted the same policy while issuing the O.M. dated 14.7.1995. Although,

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dearness allowance linked to the All India Average Consumer Price Index  1201.66 (as on 1.7.1993), was treated as reckonable part of dearness  allowance for the purpose of calculating the death-cum-retirement gratuity,  the benefit was actually made available to the employees who retired or died  on or after 1.4.1995. Similarly, the increase in the ceiling of gratuity was a  mere consequential step, which was also made applicable from 1.4.1995. As  we have already noticed, 1.4.1995 was the date suggested by the Fifth  Central Pay Commission ("Pay Commission") in its Interim Report. The  Central Government took a conscious stand that the consequential financial  burden would be unbearable. It, therefore, chose to taper down the financial  burden by making the benefits available only from 1.4.1995. It is trite that,  the final recommendations of the Pay Commission were not ipso facto  binding on the Government, as the Government had to accept and implement  the recommendations of the Pay Commission consistent with its financial  position. This is precisely what the Government did. Such an action on the  part of the Government can neither be characterized as irrational, nor as   arbitrary so as to infringe Article 14 of the Constitution.

       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  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.

       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 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

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benefit or scheme, has been fixed, on objective and  rational considerations."  

       In Action Committee South Eastern Railway Pensioners v. Union of  India,  it was held that, on merger of a part of dearness allowance as  dearness pay on average price index level at 272 with reference to different  pay ranges, fixing a cut-off date in such a manner was not arbitrary and the  principle enunciated in D.S. Nakara (supra) was not applicable. In this  connection, the ratios in Krishena Kumar v. Union of India,  Indian Ex- Services League v. Union of India,  State Government Pensioners’  Association v. State of A.P.,  and All India Reserve Bank Retired Officers’  Association v.  Union of India  are apt. In all these cases, the prescription of  a cut-off date for implementation of such benefits was held not to be  arbitrary, irrational or violative of Article 14 of the Constitution.                  The importance of considering financial implications, while providing  benefits for employees, has been noted by this Court in numerous judgments  including in the following two cases. In State of Rajasthan and Anr. v.  Amritlal Gandhi & Ors.,  this Court went so as far as to note that: "\005Financial 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"   

       More recently, in Veerasamy (supra), this Court observed that,  financial constraints could be a valid ground for introducing a cut-off date  while implementing a pension scheme on a revised basis.  In that case, the  pension scheme applied differently to persons who had retired from service  before 1.7.1986, and those who were in employment on the said date. It was  held that they could not be treated alike as they did not belong to one class  and they formed separate classes.                  In State of Punjab and Ors. v. Boota Singh and Anr.,  ("Boota  Singh") after considering several judgments of this Court in D.S. Nakara  (supra) to K.L. Rathee v. Union of India,  it was held that D.S. Nakara  (supra) should not be interpreted to mean that the emoluments of persons  who retired after a notified date holding the same status, must be treated to  be the same.          In State of Punjab and Anr. v. J. L. Gupta and Ors.,  where one of  us was on the Bench (Sabharwal, J.), the views expressed in Boota Singh  (supra) were reiterated, and it was held that for the grant of additional  benefit, which had financial implications, the prescription of a specific  future date for conferment of additional benefit, could not be considered  arbitrary.    

       In Ramrao and Ors. v. All India Backward Class Bank Employees  Welfare Association and Ors.,  a Division Bench of this Court said, even  for the purpose of effecting promotion, the fixing of a cut-off date was  neither arbitrary, unreasonable nor did it offend Article 14 of the  Constitution. Moreover, the Court held that possible hardship to be endured  by a person as a result did not make cut-off dates violative of Article 14.  

       In the instant case before us, the cut-off date has been fixed as  1.4.1995 on a very valid ground, namely, that of financial constraints.  Consequently, we reject the contention that the fixing of the cut-off date was  arbitrary, irrational or had no rational basis or that it offends Article 14.

       The learned counsel for the employees have referred to Union of  India v. Bidhubhushan Malik and Ors.,  All India Judges Asson. & Ors.  v. Union of India,  M.C. Desai & Ors. v. Union of India,  M.J. Sivani  and Ors. v. State of Karnataka and Ors.,  Chairman, Railway Board &  Ors. v. C.R. Rangadhamaiah & Ors.  and Union of India and Anr. v.  Pratibha Bonnerjea and Anr.  Having perused these judgments, we find

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that the issue urged before us, which has been considered in the several  judgments that we have referred to in detail, has not been adverted to. In our  view, these judgments are of no assistance in resolving the issue before us.

       In the result, we set aside the common judgment and order of the High  Court of Punjab & Haryana in CWP No. 4995/97 and in connected matters  decided thereby, in so far as they purport to grant the revised death-cum- retirement gratuity to government employees who died or retired before the  prescribed cut-off date of 1.4.1995. We also set aside judgment and orders of  the High Court of Himachal Pradesh in CWP No. 462/03 (dated 24.6.2003)  and in Civil Review No. 32/2003 (dated 11.9.2003).  

        We further allow Civil Appeal Nos. 129/03, 132/03, 1838/03, 1847/03,  902/04, 1061/05 Civil Appeals @ SLP (C) Nos. 12071-12072/04, Civil  Appeal @ SLP (C) No. 2947/03, Civil Appeals @ SLP (C) Nos. 6855- 6886/03 and T.C. No. 58/04 (and set aside the order dated 21.9.2001 of the  CAT (Mumbai Bench) in O.A. Nos. 542/97, 942/97 and 943/97) and dismiss  Civil Appeal Nos. 133/03 and T.C. No. 41/05.

       In the circumstances of the case, there shall be no order as to costs.