Pradip Kumar Lenka vs Orissa Power Generation Corporation Ltd.

B.P. Das, J.—In this writ application, the Petitioner challenges the stipulation made in Office Order No. 136/99 dated 11.8.1999 issued by the Opposite Party-OPGC (Corporation) wherein the revised scales of pay have been introduced with effect from 1.4.1995 vide Annexure-2. In the said office order (Annexure-2), it is stipulated that revised scales of pay shall be applicable to all regular employees of the Corporation except the officers/staff, who had left services of the Corporation on or after 1.4.1995.

The case of the Petitioner in brief is that on 4.10.1993, he was appointed as Deputy General Manager (Operation/Maintenance) in the Opposite Party-Corporation and was posted at IB Thermal Power Station of the Corporation at Jharsuguda. He continued in the Corporation till August, 1997 and thereafter, he left the Corporation and joined another Company. During the period the Petitioner was working in the Corporation, he was drawing his salary in the scale applicable to E-7 Grade of the Corporation in the old scale of pay of Rs. 4800/- 6300/-. During the period the Petitioner worked in the Corporation, the revision of pay scale was due. The further case of the Petitioner is that after he left the service of the Corporation in the year 1997, in 1999 the Opposite Party-Corporation by Office Order dated 11.8.1999 (Annexure-2) revised the scales of pay of its employees with effect from 1.4.1995 with the stipulation, inter alia, that the revised scales of pay would be applicable to all regular employees of the Corporation but not the officers/staff, who had left services of the Corporation on or after 1.4.1995. Subsequently a corrigendum was also issued in Annexure-3. The grievance of the Petitioner is that though he rendered service in the Corporation from November, 1993 till he left his service in August, 1997 and the pay was revised with a retrospective effect from 1.4.1995 the Corporation deliberately denied the benefit of such revision of pay to the Petitioner by inserting a Clause that the officers/staff, who had left services of the Corporation on or after 1.4.1995 would not be entitled to such revision of pay scale. Such exclusion, according to the Petitioner being arbitrary, unreasonable and discriminatory, is violative of Article 14 of the Constitution of India. According to the learned Counsel for the Petitioner, when the Petitioner had rendered service for the past period, there is no reason to exclude him from getting the benefit of the revised scale of pay during that period for which a prayer has been made to quash Annexure-2 to the extent it deprived the Petitioner from getting the revised scale of pay and to direct the Corporation to grant the benefits of the revision scale of pay to the Petitioner with effect from 1.4.1995 till August, 1997.

A counter affidavit has been filed by the Corporation through its Company Secretary taking a stand that the decision of the Corporation not to grant the benefits of the revised scales of pay to the officers/staff, who had left services of the Corporation on or after 1.4.1995 is a policy decision of the Corporation which was taken keeping in view the financial implications thereof as well as on administrative reasons. According to the learned Counsel for Opposite Party-Corporation, the employer has the right to frame policies in the interest of business expediency and administrative efficacy and any decision taken pursuant to such policies cannot be termed as ultra vires and this Court should not interfere with such right of the Corporation in exercise of its writ jurisdiction. It is further argued that once a person on his own volition separates himself from the employment of any organization, after such separation he is estopped from claiming any right to any future benefit granted retrospectively and, according to the learned Counsel for the Opposite Party, once the Petitioner on his own volition left the Opposite Party-Corporation, he cannot claim the benefit granted to the employees of the Corporation retrospectively even if for the past period the Petitioner was working under the Opposite Party-Corporation. It is further argued by Mr. Nanda, learned Counsel for Opposite Party, that it is a conscious decision of the Corporation to reward the loyal employees of the Corporation who have been continuing in service during the period from 1.4.1995 up to the date of the office order.

On the facts narrated above, the question that falls for determination before this Court is whether the Petitioner is entitled to get the benefit of revised scales of pay, which was extended to the regular employees continuing in the Corporation and not to the employees, who had left the Corporation on or after 1.4.1995.

A bare perusal of the Office Order dated 11.8.1999 (Annexure-2) would indicate that the revision of scales of pay was introduced w.e.f. 1.4.1995 and the Dearness Allowance was revised from different dates starting from 1.7.1996 till 1.1.1999 but the Petitioner was excluded from getting the said benefit of revised scales of pay in view of Clause-1 of the Coverage. It is an admitted fact that the Petitioner has rendered service with the Opposite Party Corporation from November, 1993 till August, 1997. It is also an admitted fact that the pay revision was due from 1.4.1995 and it was done in the year 1999 and granted with retrospective effect from 1.4.1995.

Learned Counsel for the Petitioner in support of his case draws my attention to a decision of the apex Court in the case of D.S. Nakara and Others Vs. Union of India (UOI), as well as the case of State Bank of India Vs. L. Kannaiah and Others, The relevant portion of the observation of the apex Court in the D.S. Nakara''s case (supra) is extracted herein below:

The fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. The doctrine of classification was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlates it to the objects sought to be achived. Where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that cannot be done when they are in service, can that be done during their retirement? Expanding this principle, it can confidently be said that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later.

Learned Counsel for the Opposite Party in order to fortify his argument took me through some decisions in the case of Indian Ex-Services League and others Vs. Union of India, State of West Bengal and Another Vs. West Bengal Government Pensioners Associations and Others, Union of India (UOI) Vs. All India Services Pensioners'' Association and Another, Dr (Mrs) Sushma Sharma and Others Vs. State of Rajasthan and Others, State of Haryana and others Vs. Rai Chand Jain and others, etc. etc., ; State of Rajasthan and anothers etc. Vs. Amrit Lal Gandhi and others etc., Union of India and Ors. v. Lieut (Mrs.) E. IACATS 1997 SCC (L&S) 1613 and Dr. R.N. Rajanna v. State of Karnataka and Anr. 2003 (99) FLR 1055.

After due consideration of the aforesaid decisions, it appears that the principles laid down in those decisions are that any liberalized pension scheme introduced shall be made applicable to those who retired after a particular date. But the Petitioners in those cases stood retired prior to the date on which the scheme was made applicable for which it was held that those Petitioners were not entitled to the said benefit. The facts of the case at hand are not similar to the cases relied upon by the Opposite Party. So the aforesaid decisions can in no way come to the aid of the Opposite Party.

After going through the facts of this case and looking at the position of law as on date, I do not find any reason to discard the contention and claim of the Petitioner. Relying on the principles decided in Nakara''s case (supra) where the cut off date for pension was held to be invalid as well as in State Bank of India''s case (supra) where exclusion of the benefit of pension to ex-servicemen by putting a cut off date was held to be invalid, I am of considered opinion that the present case stands in a better footing, as this is not a future benefit which the Petitioner has been deprived of but the benefit relates to the service already rendered by him in the Corporation which benefit was denied by the Corporation by putting an exclusion clause in Annexure-2. The aforesaid exclusion clause prescribed by the Corporation in Annexure-2 so far as it relates to the Petitioner is illegal and accordingly the same is quashed. The Opposite Party-Corporation is directed to grant the benefit of revised scales of pay to the Petitioner with effect from 1.4.1995 till August, 1997 in accordance with Annexure-2.

The writ application is accordingly allowed.