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Judgment
Sudhir Narain, J.—The petitioner seeks writ of mandamus commanding the respondents to fix pension of the petitioner in accordance with the Government Orders dated 28th April, 1980 (Annexure2 to the writ petition) or Government Orders 18th January, 1983 (Annexure3 to the writ petition).
The Utioner entered into the service of Bareilly College Library, Bareilly as an Assistant on 16th July, 1941 and continued there upto 30th September, 1948. He worked as Librarian in Kedar Nath Girdhari Lal Khattri (Post Graduate) College, Moradabad (here in after referred to as the institution) from 1st October, 1948 to 31st October, 1981. He retired on31st October, 1981.
The State Government under the Triple Benefit Scheme for the employees serving in the State aided educational institutions by the Government Order No. A5355XV/31331962 dated December 17,1965 granted triple benefits consisting of (i) Contributory Provident Fund, (ii) Compulsory Life Insurance and (iii) Pension including Family Pension.
The State Government, considering that the amount of pension granted under the aforesaid Government Order dated 17th December, 1965 was meagre, revised the scheme by another Order dated 28th April, 1980. It raised Government contribution to the Provident Fund of teachers of aided educational institutions and those teachers not opting for the benefits of Government''s increased contributions towards their Provident Fund were made eligible for increased pension as applicable to Government servants. The condition in that event was that the Government contributions towards Provident Fund upto 31st March, 1979 shall be refundable with interest by the teachers to Government and shall be deposited by them under the head delicnated there in. This order was made applicable to the teachers of Government aided educational institutions with effect from 1st April, 1979. This Government Order was not applicable to other employees of the State aided educational institutions. The State Government by G.O. dated 18th January, 1983 made applicable the aforesaid scheme to other employees of the State aided educational and Post Graduate institutions also with effect from 1st September, 1982. The scheme incorporates completely all the benefits contained in Government Order dated 28th April, 1980 as made applicable to teachers of State institutions.
The petitioner submitted representation to the Director of Education on 26th June, 1984 and 29th August, 1985 requesting that he may be granted benefit under the said scheme and be permitted to deposit the Management''s contribution of Provident Fund with interest. Similar representation was also submitted to the Education Minister on 30th June, 1984. None of the authorities gave any reply to the petitioner. The petitioner there upon sought writ of mandamus commanding the respondents to grant benefits of pension scheme as provided under the Government Order dated 2841980. Learned Standing Counsel was granted time to file counteraffidavit but no counter affidavit has been filed.
The core question is whether the cut off date given in the Government Order dated 1811983 providing the benefits of the scheme of pension as envisaged under Government Order dated 28th April, 1980 only to the employees of the State aided educational institutions retiring on 1st September, 1982, is arbitrary and discriminatory. Similar question was considered by the Hon''ble Supreme Court in D.S. Nakara and others v. Union of India, AIR 1983 SC 130. The Government of India, Ministry of Finance issued Office Memorandum on May 25, 1979 where by the formula for computation of pension was liberalised but was made applicable to Government Servants who retired from service on or after March 31, 1979. The cut off date fixed by this Office Memorandum came under the close scrutiny of the Apex Court. The Government justified the action on the doctrine of classification, namely, the pensioners who retire prior to a certain date and those who retire subsequent to a certain date form distinct and separate class. This contention was rejected holding that all the persons who were in the Government service should be treated as homogeneous class and cannot be divided arbitrarily fixing cut off date unrelated with any purpose for making division. If this classification is further extended to the date of retirement of each servant it will lead to further absurdity.
In this context the Government Order dated December 17, 1965 giving reasons for providing benefits of pension and life insurance to the State Educational institutions can be examined
"The question of ameliorating the service conditions of employees serving in the State aided educational institutions has been receiving attention of the Government for some time past. The recommendations of the Secondary Education Commission, appointed by the Government of India under the Chairmanship of Dr. A.L. Mudaliar the Triple Benefit Scheme were considered in this context. It was observed that the employees serving in the State aided educational institutions were enjoying the benefit of the Contributory Provident Fund only, but no provision for their Life Insurance and Pension existed. It was considered necessary that these benefits might also be made available to them to relieve them of the worries after retirement."
Prior to enforcement of this Government Order the teachers of the State aided educational institutions were not getting the benefits at par with the teachers who were serving in the educational institutions run by the State Government. The Government in its wisdom thought it appropriate that the teachers working in State aided educational institutions should be provided the same benefits of the pension scheme which were granted to the teachers working in the State educational institutions. This Government Order, however, was not made applicable to the employees of the State aided educational institutions. It did not assign any reason as to why the benefits of that scheme should not be given at par with the employees who were serving the State educational institutions.
The Government came up with another Government Order dated 28th April, 1980 providing for the revised pension scheme but again it did not made it applicable to the other employees of the State aided educational institutions. It was only on 1811983 the scheme, as applicable to the teachers of the State aided educational institutions as given in Government Order dated 2841980, was made applicable to the employees of the State aided educational institutions but with a cut off date that those employees who retired after 1st September, 1982 were entitled to the benefit of the scheme. The Government Order itself does not indicate any reason of fixing the cut off date. In the writ petition the fixing of cut of date has been challenged on the ground that it is arbitrary. As mentioned above, no counter affidavit has been filed on behalf of respondents.
In D.S. Nakara''s case (supra) the reasonableness of fixing the cut off date was decided under the four corners of Article 14 of the Constitution of India, namely, the legislation must pass the test of permissible classification viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the groups and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. On these two tests it was found that there was no reasonable nexus to any object sought to be achieved by fixing a cut off date in respect of employees who retired after a certain date. An employee who retired after serving a long period of time is entitled to live with dignity, independence and without worries, at least in financial matters. It is no longer a bounty. The legal position was settled by the Supreme Court in Deoki Nandan Prasad v. State of Bihar, AIR 1971 SC 1409. The employees who were working in State Educational Institutions were already getting the benefits of pension scheme and it was not made applicable to the employees of the State aided educational institutions but as regards the teachers it was made elicable as far back as in the year 1965. after on it was made applicable to the employees of State educational institutions but fixing cut off date as 1st December, 1982 without any basis.
In Writ Petition No. 6027 of 1989 the validity of cut off date fixing 1st April, 1979 in respect of teachers as provided under the Government Order dated 28th April, 1980 was challenged and the Court having found that there was no justification to fix such cut off date, held it to be invalid and in that respect the Government Order dated 28th April, 1980 was quashed. The same principle is applicable in the present case in regard to fixing of cut off date 1st September, 1982 in relation to the employees of the State aided educational institutions.
The next submission of the learned Counsel for the petitioner is that the petitioner had submitted application before Director of Education for permitting him to deposit Manager''s contribution of Provident Fund with interest and also to the Principal where he worked last but no order was passed. The petitioner cannot be loser of benefits of the scheme on account of the negligence, inaction or mistake on the part of the respondents. Secondly, the Government issued order on 26th July, 1984 modifying its earlier order for deposit of College Management''s contribution towards Provident Fund in lump sum by college teachers to enable them to get increased pension by directing that such amount of Management''s contribution towards Provident Fund amount shall be adjusted from the accrued amount of pension payable to teachers. It is, however, not clear as to what is the actual amount payable by the petitioner towards provident fund and how much accrued amount of pension is still payable to the petitioner.
In case the petitioner deposits the Manager''s contribution towards Provident Fund as envisaged in Government Order dated 24th April, 1980 with in a period of three months'' from today with interest, the petitioner shall be paid the amount of pension as provided under Government Order dated 18th January, 1983 with in three months from the date the petitioner deposits the amount of Manager''s contribution towards Provident Fund calculating from the date the petitioner had given his option and submitted application for depositing the amount by him before the Director of Education.
The writ petition is accordingly allowed with the directions given above. The parties shall, however bear their own costs.