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Judgment
Mihir Kumar Jha, J.—Heard learned counsel for the parties.
The relevant part of the prayer of the petitioners in this writ application reads as follows:-
---for commanding and directing the concerned authorities for the same and the similar treatment to the petitioner as par with the teachers working in the elementary schools taking into consideration the facts that they were appointed in pursuance of the different orders passed by the Apex Court pertaining to the appointment of 34540 Assistant Teachers and provide the pensionary benefit instead to the General Pension Scheme in terms of the ration decided by the Apex Court in case of D.S. Nakra
Learned counsel for the petitioners, in support of the aforesaid prayer, has basically concentrated on the aspect that since the appointment of the petitioners, though made in the year 2012 at a point of time when the Government has decided to do away with the earlier pension scheme by substituting it with the contributory pension scheme, the same should not be made applicable in their cases because the transaction for appointment of the petitioners had taken well before the introduction of the said policy.
Learned counsel for the State, on the other hand, has submitted that the petitioners, being appointee of the year 2012, will be governed by the provision relating to grant of pension as it was existing on the date of their appointment.
In the considered opinion of this Court, this writ application must fail only on the ground of lack of particular detail. The petitioners have not even enclosed their order of appointment which had set out the terms and conditions of their appointment. As a matter of fact, it is not in doubt that the appointment of the petitioners was made in terms of the Advertisement No. 210/2010 in terms of the Bihar Special Elementary Teachers Appointment Rules, 2010 (hereinafter to be referred to as ''the Rules''). In the said 2010 Rules, Rule-12, which reads as follows:-
while laying down the service condition, had specially incorporated that the teachers appointed under the said Rules will be getting their pay-scale and service condition of the Teachers earlier appointed in the district cadre, but for the purpose of pension, they will be governed by the Contributory Pension Scheme of the State Government.
The said Rule-12, therefore, clearly disentitle the petitioners to claim the benefit of pension as was prevalent prior to enforcement of the Contributory Pension Scheme of the State Government in the year 2005. As a matter of fact, the following clause of the Advertisement No. 210/2010 under which the petitioners had filed their application for appointment against the 34540 posts of Teachers will also automatically disentitle them from claiming pension as it was prevalent for the government employees prior to the year 2005. Clause-9 of the Advertisement No. 210/2010 reads as follows:-
The aforesaid terms and conditions of the advertisement, wholeheartedly accepted by the petitioners at the time of their filing an application in terms of the Advertisement No. 210/2010, will automatically debar them from claiming the scheme of pension which was prevalent prior to the enforcement of the Contributory Pension Scheme in the year 2005.
The overemphasized reliance of the petitioners to the judgment of the Apex Court in the case of D.S. Nakara and Others Vs. Union of India (UOI), is wholly misconceived, inasmuch as, in that case, the pensioners were governed by the Senior Central Services (Pension) Rule, 1972 and on 25.5.1979, the Government of India, Ministry of Finance had issue an office memorandum whereby the formula of computation of pension was liberalized but, made applicable to the government servant who were in service on 31st of March, 1979 and retired from service on or after that specified date. The formula introduced a slab system for computation of pension. This liberalized pension formula was applicable to all the employees who were in service on March 31, 1979 and retired from service on or after that date. The liberalized pension formula was extended to the Armed Forces personnel subject to limitations set out in the memorandum with a condition that the new rules of pension would be effect from April 1, 1979, and may be applicable to all service officers who become/became non-effective on or after that date. In effect, the Liberalized Pension Formula was to be applicable prospectively to those who retired on or after 31st March, 1979 in case a government servant governed by 1979 Rules and in respect of different personnel to those who become/became non-effective on or after 1st of April, 1979. Those who retired prior to the specified dates were not held to be entitled to the benefit of Liberalized Pension formula and the challenge was thrown by them alleging discriminatory deprivation. The Apex Court in such situation had answered in favour of the pre 1st April, 1979 retirees.
Nakara''s case (supra) subsequently became the foundation of in discriminatory challenge to the statutory or administrative provision specifying a cut-off date for the applicability of benefit or a liability. Nakara case has infact been applied where no reason was given as to why the benefit was available to those retiring on or before the cut-off date. However, the Apex Court subsequently in the case of Union of India Vs. P.N. Menon and others, had distinguished Nakara case and in fact, in the case of Union of India (UOI) and Others Vs. Lieut (Mrs) E. Iacats, as also in the case of In the Matter of: Hari Ram Gupta (D) Thr. L.R. Kasturi Devi Vs. The State of Uttar Pradesh, . While distinguishing the judgment in the case of Nakara (supra), the aforesaid cases it was held that if under the terms of appointment, the employee was not entitled to the benefit of pension on retirement, such pension was not payable to him. In this regard it would be apt to quote the following passage of the judgment of the Apex Court in the case of Hari Ram Gupta (supra), which reads as follows:-
The only other question that survives for our consideration is whether the ratio in D.S. Nakara and Others Vs. Union of India (UOI), will assist the appellant in getting the relief sought for. In D.S. Nakara and Others Vs. Union of India (UOI), the question for consideration before this Court was whether on the basis of date of retirement the retirees can be classified into different groups and thereupon make provision granting some benefits to one group denying the others. In the aforesaid case, the provisions for pension were applicable to all retirees and, therefore, pensioners form a class as a whole. But when the Liberalised Pension Scheme was introduced, the said Scheme was made applicable to a group of pensioners and not to all and therefore, it was held by this Court that pensioners form a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criterion. It is to be noted that the aforesaid judgment was considered by this Court in the subsequent Constitution Bench judgment of Krishena Kumar and Others Vs. Union of India and others, wherein the decision of D.S. Nakara and Others Vs. Union of India (UOI), was explained and it was held that the pension retirees and provident fund retirees do not form one homogeneous class and on the other hand, the Rules governing the provident fund and its contribution are entirely different from the Rules governing pension and, therefore, it would not be reasonable to argue what is applicable to the pension retirees must also equally be applicable to provident fund retirees. It was further held in the aforesaid case that the rights of each individual retiree finally crystallised on his retirement whereafter no continuing obligation remained in case of those who are governed by Provident Fund Rules whereas in case of pension retirees, the obligation continues till the death of the employee. This Court categorically held that D.S. Nakara and Others Vs. Union of India (UOI), cannot be an authority for the decision in Krishena Kumar and Others Vs. Union of India and others, . In Union of India Vs. P.N. Menon and others, a similar question came up for consideration and distinguishing D.S. Nakara and Others Vs. Union of India (UOI), and following Krishena Kumar and Others Vs. Union of India and others, and other similar cases, the Court held that 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. 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. When the army personnel claimed the same pension irrespective of their date of retirement, this Court in the Constitution Bench case of the Indian Ex-Services League and others Vs. Union of India, considered the grievance of ex-servicemen who had laid the claim on the basis of D.S. Nakara and Others Vs. Union of India (UOI), but ultimately negatived the same and followed Krishena Kumar and Others Vs. Union of India and others, . In All India Reserve Bank Retired Officers Association and others Vs. Union of India and others, when the validity of the introduction of Pension Scheme in lieu of Contributory Provident Fund Scheme was challenged on the ground that bank employees who retired prior to 1-1-1986 have not been given the benefit of the said Scheme, it was held by this Court that there is no arbitrariness in the same.
As noted above, when the petitioners came to be appointed in the year 2012 pursuant to the Special Rules framed in the year 2010 containing a specific provision under Rule-12 of payment of post-retirement benefit only by way of Contributory Pension Scheme and when the petitioners with the eyes open had accepted the same when they had filed their application in terms of the advertisement also incorporating the same provision, they cannot claim pension which was or is payable to the teachers who had earlier been appointed under the Bihar Elementary Teachers Appointment Rule, 1991 which now also has been repealed by Rule 20 of Bihar Panchayat Teachers Rules 2006. The petitioners thus belonging to a separate class and as such, they are not entitled for the relief which has been sought by them in this writ application.
Thus, for the reasons indicated above, this Court does not find any merit in this writ application and the same is, accordingly, dismissed.