B.S Chauhan, J.:— These petitions have been filed for declaring the provisions of Rule 14(1)(i) of the Rajasthan Civil Service (Revised Pay Scales) Rules, 1987, in so far as it prescribed 1.9.1986 as cut-off date for the purpose of grant of advance increment, ultra vires and for quashing the order dated 7.3.89 (Annexure-7) issuing the clarification for revision of pay scale, and all consequential orders (Annexures 12 to 27).
2. The facts and circumstances giving rise to these cases are that the Union of India had issued directions to the Stats to create employment opportunities for the youth and in pursuance of the same, respondents issued an Advertisement dated 3.5.75 as part of Employment Promotion Programme (Annexure 1) and invited applications for training/apprenticeship on the post of Lower Division Clerks. Petitioners were selected for training vide letter dated 6.2.1976 (Annexure 2). During training, petitioners were asked to furnish bonds purporting to be under the Apprenticeship Act, 1961, for payment of damages in case the training was abandoned before completion. After completion of the training, they were offered appointment by the Rajasthan State Electricity Board (hereinafter called the Board) vide letter dated 10.12.76 (Annexure 4) with retrospective effect, i.e the date on which an individual completed six months' training.
3. The State of Rajasthan revised the pay scales of its employees by promulgating the Rajasthan Civil Services (Revised Pay Scale) Rules, 1987 (hereinafter called, the Rules, 1987) with effect from 1.9.86 and Rule 14(1)(ii) of the said Rules provides that a Government servant who had completed ten years of service, but less than 20 years of service on 1.9.86, shall be granted one advance increment. The Board also adopted the said Rules vide Resolution dated 21.10.87 (Annexure 5) with effect from 1.9.86 By reckoning the period of training in service, petitioners were considered to have completed ten years service on 1.9.86 and they were given the benefit of the said provision of the Rules, 1987 and fixation of their pay was made accordingly. Vide letter dated 7.3.89 (Annexure 7), the Board issued a direction that while computing the period of ten years of service for grant of advance increment, period rendered during apprenticeship/training shall not be counted and in pursuance of the said order dated 7.3.89, the pay scale of some of the petitioners were reduced. Petitioners had filed D.B.C.W.P No. 1030/1989, Nand Lal v. R.S.E.B. and D.B.C.W.P No. 1044/1989, Ajay Kumar v. R.S.E.B. This Court granted interim orders not to change the pay scale or not to make any recovery in pursuance of the said order dated 7.3.89 The said writ petitions were disposed of by the judgment and order dated 25.5.89 (Annexure 9) and respondents were directed to decide the case afresh after giving an opportunity of hearing to the petitioners there in and all other similarly situated persons. The Board passed the impugned orders (Annexures 12 to 27) reducing pay scales of the petitioners and effecting recovery from them of the amount which had been wrongly paid to them as advance increment after giving petitioners full opportunities of hearing. Hence these petitions.
4. Heard Mr. M.S Singhvi, learned counsel for petitioners and Mr. L.M Lodha, for respondents.
5. Mr. Singhvi has seriously assailed the validity of cut off date canvassing that the cut off date has no rational nexus to the object sought to be achieved and is liable to be quashed being discriminatory and, thus, violative of the mandate of Article 14 of the Constitution. Mr. Lodha has contended that while fixing the cut-off date, the Authorities had to consider the financial consequences of conferring an additional benefit on its employees and the Authority has to fix a date for giving the benefit and, thus, it cannot be said to be arbitrary by any means and the cut off date fixed herein is valid having reasonable nexus to the object sought to be achieved and is a valid piece of legislation.
6. It is settled proposition of law that a cut off date can be introduced, but it is not permissible to do in such an artificial manner that it may discriminate the similarly situated persons and the cut off date may be introduced by creating a fiction but while doing so, the consequences must be examined thoroughly and the cut off date must have some nexus to the object sought to be achieved. Generally it should be prospective but may have retrospective effect also. Consideration of financial constraints on public exchequer etc. are good and valid reasons for fixing particular cut-off date by the legislature directly or by the executive instructions.
7. The issue has been considered by the Hon'ble Supreme Court time and again in a large number of case and some of which are Jaila Singh v. State of Rajasthan (1); D.S Nakara v. Union of India (2); Dr. (Mrs.) Sushma Sharma v. State of Rajasthan (3); U.P.M.T.S.N.A Samiti Varanasi v. State of Uttar Pradesh (4); Krishena Kumar v. Union of India (5); All India Reserve Bank Retired Officers Association v. Union of India (6); State Of Rajasthan v. Rajasthan Pensioner Samaj. (7); T.S Thiruvengadam v. Secretary to the Government of India (8); Union of India v. Sudhir Kumar Jaiswals (9); University Grants Commission v. Sadhana Chaudhary (10); State of Rajasthan v. Amrit Lal Gandhi (11); Rabindranath Mukhopadhyay v. Coal India Ltd. (12); State of Haryana v. Rai Chand Jain (13); Union of India v. Lieut. (Mrs.) E. Iacats (14); State Of Rajasthan v. Hitendra Kumar Bhatt (15); Dr. Ami Lal Bhat v. State of Rajasthan (16); M.C Dhingra v. Union of India (17); Chairmain, Railway Board v. C.R Rangadhamaiah (18); J & K Public Service Commission etc. v. Dr. Narinder Mohan (19); and Union of India v. M. Bhaskar (20).
8. The ratio of the aforesaid judgments is that if the State cannot bear the financial burden to meet a particular requirement, it may be a sufficient cause to fix a particular cut off date and even to make the law with retrospective effect. However, the basis must be shown to have a nexus with the object of classification as well as of legislative exercise. If the choice of fixing a particular date is shown to be wholly arbitrary and introduces discrimination, which violates the mandate of Article 14 of the Constitution, the date can be struck down for the reason that a purpose of choice unrelated to the object sought to be achieved cannot be accepted as valid. However, in a given case the fixing of a period of experience or from what particular date it will run, are with in the legislative competence and wisdom and there is nothing which may warrant a Court to invalidate such an enactment/executive instruction. If the law/rules/regulation is to be based on experience and the legislature has the freedom to choose the minimum period of experience required and the date from which such experience is to be computed, i.e fixation of a certain tenure of service for the purpose of grant of advanced increment(s)/absorption/regularisation, then fixation of such criteria has a rational nexus with the object sought to be achieved. In such matters, the homogenous class of existing employees cannot be divided in two separate classes on arbitrary and irrational basis. If fixing of a cut off date is not devoid of rational consideration and wholly not whimsical and the Authorities had not acted malafide with a view to deprive a particular section of employees of such benefits and the cut off date has been fixed on the recommendation of the Expert Committee/Board or on proper consideration by the Authority concerned, it may meet the test of reasonable and can not be held arbitrary. While examining the cases like the instant, the Court has to be very conscious because judicial review is not permissible unless the Court is satisfied that the cut off date is very wide of the reasonable mark or so capricious or whimsical as to permit judicial interference. In all such matters, the Government/Authority has to fix a particular date for computing the eligibility and if the date so adopted meets the test of reasonableness, it cannot be invalidated merely on the ground that it may adversely affect some persons. In such a case the rational behind the Policy has to be examined. In Tamilnadu Education Department Ministerial and General Subordinate Services Association etc. v. State of Tamilnadu (21), the Hon'ble Apex Court has observed as under:—
“Once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a marty and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where absent arbitrariness and irrationality, the Court has to adopt a hands-off policy.”
9. In State of Rajasthan v. Amrit Lal Gandhi (supra), Hon'ble Supreme Court has held that for the purpose of fixing the cut off date, the paying capacity of the Authority/State is a relevant consideration. Similar view has been taken in State of U.P v. Jogendra Singh (22), wherein the Hon'ble Supreme Court distinguished the case of D.S Nakara (supra) and held that liberalised provisions introduced giving a particular benefit to a particular class of employees cannot be said to be arbitrary. In State of Orissa v. Ashwani Kumar Datta (23), the Court examined the validity of the cut off date while giving benefit of pay scale to the teachers of aided non-government colleges and found it neither arbitrary nor unreasonable as the burden of providing the grant-in-aid for the said purpose was on the public exchequer. Similar view has been reiterated in Union of India v. K.G Radhakrishna Panickar (24), wherein the Court held that the principle laid down by the Hon'ble Supreme Court in D.S Nakara (supra) can have application between similar set of employees and the said principle has no application where a new benefit is conferred to another set of employees with effect from a particular date and in such circumstances, the conferment of the benefit with effect from a particular date cannot be held to be violative of Article 14 of the Constitution on the basis that such benefit has been conferred on certain categories of employees from earlier date. The same view has been reiterated in Hari Ram Gupta v. State of U.P (25) and the principle laid down in D.S Nakara (supra) has not been applied holding that the employees recruited prior to the cut off date form a class in itself and Articles 14 and 16 of the Constitution are not attracted. In Transport Manager, Pune Municipal Transport Undertaking v. Basant Gopal Bhagwat (26); State of West Bengal v. Monotosh Roy (27); and Tamil Nadu Electricity Board v. R. Veerasamy (28), the same view has been reiterated.
10. In Mehmood Alam Tariq v. State of Rajasthan (29), the Court has observed that the validity of a provision must be tested with reference to its operation and efficacy in generality of the case and not by the freaks or exceptions that its application might in some rare cases possibly produced. The affairs of the State or its instrumentality cannot be conducted on principle of distrust.
11. Thus, in view of the above, as giving benefit of one advance increment creates an enormous financial burden not only on the Board but also on the State, and if considering that aspect the legislature in its wisdom has fixed the cut off date, the Court should not disturb it without any compelling reason and I do not find any such reason to interfere with the cut off date. The contentions so vehemently raised by Sri Singhvi, challenging the validity of the cut off date, are preposterous and hence rejected. The cut off date fixed by the State and adopted by the Board cannot be held to be arbitrary or violative of Articles 14 and 16 of the Constitution.
12. It has next been contended by Mr. Singhvi that the period of training completed by the petitioners should be reckoned for determining the period of service. Thus, the question does arise whether the period of training/apprenticeship can be termed as rendering service? Mr. Singhvi has placed reliance upon a judgment of this Court in Sunil Dutta v. R.S.E.B Jaipur (30), wherein this Court has considered the Regulations of the Rajasthan State Electricity Board (Technical Workmen Service) Regulations, 1975 and held that the period of apprenticeship shall be treated as the period of service. But Mr. Singhvi has fairly conceded that the said judgment has no application to the instant cases for the reason that it was meant for industrial training and the said issue is not involved herein. However, reliance has been placed upon provisions of Clause 30 of the R.S.E.B Employees Service Regulations, wherein it has been provided that for the purpose of grant of increment in a time scale, all duties on a post of time scale, has to be reckoned. Therefore, it is submitted by Mr. Singhvi that petitioner had been doing the “duty” whatever may have been the nature of their training/apprenticeship. I find no force in this submission also for the reason that the Advertisement dated 3.5.75 makes it clear that petitioners were enrolled for training on the post of Lower Division Clerks. Clause (3) of the said Advertisement further provides that after successful completion of training, the trainees shall be offered employment. The order dated 6.2.76 (Annexure 2), by which petitioners were enrolled, also speaks of pre-service training and provides that the trainees shall be paid the amount of stipend. Clause (10) further provides that on successful completion of training, th trainees may be appointed on the post of Lower Division Clerk in the Board in a regular scale of pay against the existing vacancies or they may be kept on a panel of trained personnels and may be absorbed as soon as the vacancies arise. The Agreement of apprentic (Annexure 4) also provides that it was only a contract of apprenticeship and clause (5) of that Agreement reads as under:—
“It shall not be obligatory on the part of the employer to offer any employment to the apprentice on completion of his period of apprenticeship training in his establishment, nor shall it be obligatory on the part of the apprentice to accept the employment under the employer.”
13. Thus, in view of the above, the Court reaches the inescapable conclusion that it was merely a pre-service training for a period of six months and this view is fortified by the appointment letter dated 10.12.76 (Annexure 4) itself, whereby appointment had been given with retrospective effect, i.e from the date they completed six months, training. Petitioners did not agitate this issue and accepted the terms of appointment letter dated 10.12.76 without any protest, derived benefit out of it and now they cannot be permitted to raise any doubt about its validity after expiry of more than twelve years.
14. The word “duty”, as referred to above was only for the purpose of giving some benefit for the purpose of pension and other retiral benefits and that cannot be applied in case for giving the benefit of advance increment and during training period, an employee may be required to discharge the same duties which a regular employee is doing but that does not mean that the pre-service training can be equated with employment. Thus, no fault can be found with the order dated 29.3.88(Annexure 29) which provides that pre-service training period shall not be treated as the period of service for the purpose of giving benefit of Rules, 1987.
15. It is, therefore, held that the pre-service training cannot be treated as period of service and, therefore, petitioners cannot claim to have any benefit of Rules, 1987 for advance increment and fixation of their pay accordingly.
16. In Shyam Babu Verma v. Union of India (31); Sahib Ram v. State of Haryana (32); and Union of India v. Ram Gopal Agrawal (33), it has been held that if a higher pay scale has erroneously been given to a person long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him. Thus, in view of the above, the respondents are restrained to take any steps to recover or adjust any excess amount paid to the petitioners due to the fault of the respondent Board as the petitioners cannot, by any means, be held responsible for the same. However, it is further clarified that if the amount has already been recovered fully or partly, the recovered amount shall not be liable to be refunded to the employees.
17. With these observations, the petitions stand dismissed. There shall be no order as to costs.