JUDGMENT : (Per M.S. Sonak, J.) Heard the learned Counsel for the parties.
2. Learned Counsel for the parties agree that all these Petitions can be disposed of by a common Judgment and Order.
3. According to us as well, the main issue involved in all these Petitions is the same, though, the facts in Writ Petition No.439/2014 are slightly different than the facts involved in the remaining Petitions. Accordingly, it is only appropriate that we dispose off all these Petitions by a common Judgment and Order, no doubt, having regard to some of the distinguishing features in Writ Petition No.439/2014.
4. The Petitioners, in all these Petitions were inducted in service prior to the appointed day i.e. 30thMay, 1987, as provided under the Goa, Daman and Diu Reorganisation Act, 1987 (Reorganisation Act), a Parliamentary enactment, by which the State of Goa and the Union Territory of Daman and Diu came into being.
50
There is also no dispute that the age of superannuation for the various posts to which the Petitioners came to be appointed was, as on the appointed day, 60 years. However, the Petitioners, post- appointed day, were made to retire at the age of 58 years which they contend, is in violation of the proviso to Section 60(6) of the Reorganisation Act which provides that the conditions of service applicable immediately before the appointed day, shall not be varied to the disadvantage of the employees appointed prior to the appointed day, except with the approval of the Central Government.
5. The issue as to whether the retirement of the Petitioners at the age of 58 years was valid or not, is really no longer res integra, not only in the light of the clear provisions in the proviso to Section 60(6) of the Reorganisation Act, but also the rulings of the Hon'ble Supreme Court and this Court, interpreting similar or the same provisions. The State of Goa had sought to justify such superannuation in case of some other similarly situated employees by relying upon an ex post facto sanction dated 30thJuly, 2001 from the Central Government. However, a Division Bench of this Court in Zilo Zo and ors. vs. State of Goa and ors.1ruled that the proviso to Section 60(6) of the Reorganisation Act only contemplated 'previous approval' of the Central Government and, therefore, any post facto approval was of no avail. Such post facto approval dated 30thJuly,
WP No.609/2008 decided on 6/5/2011
1
2001 was, in fact, struck down and it was held that the Petitioners in the case of Zilo Zo (supra) were entitled in law to continue upto the age of 60 years, that being their conditions of service prior to the appointed day. The relief was, ultimately, moulded and directions were issued to grant the said Petitioners retiral benefits (but not back wages) on the basis that they continued in service until they attained the age of 60 years. The arrears of payment were directed to be paid within 3 months from the date of the decision.
6. In these Petitions, the Petitioners seek similar reliefs to that which were applied for in the case of Zilo Zo (supra). However, perhaps, realising that the present Petitions have been instituted after some delay, the learned Counsel for the Petitioners, in the course of their arguments, submitted that the reliefs prayed for by them, may be suitably moulded, so as to award the Petitioners retiral benefits on the basis that they had continued in the service upto the age of 60 years.
7. The learned Counsel for the Petitioners, viz. Mr. Parikshit Sawant, Ms. Asha Desai and Mr. Jitendra Supekar, contend that this is a case of continuing wrong, particularly when it comes to the issue of fixation and award of correct pension and other retiral benefits and, therefore, the principle of delay or laches will not apply. They
52
submit that in the facts of the present case, arrears, upto the extent of 3 years prior to the institution of these Petitions may be allowed. They submit that the Petitioners had made representations and, this is not a case where the Petitioners can be described as mere fence sitters. They submit that laches is not a mere physical running of time and the delay, if any in institution of these Petitions, has not created any right in any other parties which, it would be inequitable to disturb at this point of time.
8. The learned Counsel for the Petitioners point out that the Respondents have not even filed any returns in these Petitions and the Respondents, in any case, cannot claim to have any vested right to continue to practise hostile discrimination against the Petitioners. They point out that there can be no acquiescence or waiver, when the issues of fundamental right, equality or the right to life are involved. They point out that pension is no longer a bounty, but it is a right to be read in the provisions of Article 21 of the Constitution of India. They point out that even, otherwise, limitation never extinguishes any right as such but, at the highest may extinguish a remedy. They point out that the State Government, as a model litigant, should never deny the citizens, including, in particular, the retired employees their due pension on the basis of some hyper technical pleas like delay and laches.
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9. The learned Counsel for the Petitioners rely on Haryana State Electricity Board vs. State of Punjab and ors.2Union of India and ors. vs. Tarsem Singh3; State of Madhya Pradesh and ors. vs. Yogendra Shrivastava4Asger Ibrahim Amin vs. Life Insurance Corporation of India5; B. Venkatesalu and anr. vs. The Additional Chief Secretary and others6; State of Karnataka and ors. vs. N. Parameshwarappa and others7State of Karnataka and ors. vs. C. Lalitha8; N.S. Balasubramanian and ors. vs. Food Corporation of India9; Tukaram Kana Joshi and ors. vs. Maharashtra Industrial Development Corporation and ors.10;Dehri Rohtas Light Railway Company Limited vs. District Board, Bhojpur and ors.11and Punjab National Bank and ors. vs. Surendra Prasad Sinha 12 in support of their contentions.
10. For all the aforesaid reasons, the learned Counsel for the Petitioners submit that these Petitions may be allowed and the reliefs, at least in the moulded form proposed by them, be granted.
12
11. Mr. Dhargalkar, Mr. Shirodkar and Ms. Linhares, learned Additional Government Advocates appearing for the Respondents, in the first place attempted to contend that there is a conflict between the decisions of the Division Bench of this Court in Dr. A.K. Joshi vs. State of Goa and anr.13and Zilo Zo (supra). On this ground, they submit that Zilo Zo (supra) may be declared as per incuriam and the ratio of the same may not be followed in case of the present Petitioners. In any case, they point out that the present Petitions are barred by inordinate and unexplained delay and laches. The learned Additional Govt. Advocate point out that the Hon'ble Apex Court in the case of U.P. Jal Nigam and another vs. Jaswant Singh and another14has denied the relief to the Petitioners who were somewhat similarly placed. They point out that this is not at all a case of any continuing wrong. They submit that at the highest, this may be a case of some injury or damages continuing on account of a concluded wrong. They rely on Balakrishna Savalram Pujari Waghmare and ors. vs. Shree Dhyneshwar Maharaj Sansthan and ors.15to submit that in such a case, the Petitioners cannot seek any redressal from the Courts of law which are bound by the statute of limitation, or otherwise by the principle of delay and laches.
12. For all these reasons, they submit that the present Petitions
13
WPs No.159/2003 and 196/2005 decided on 12.11.2009
14
2006 (11) SCC 464
AIR 1959 SC 798
15
may be dismissed.
13. The rival contentions now fall for our determination.
14. In all these Petitioners, there is no dispute whatsoever with regard to the following basic facts :
(i) That all the Petitioners were in service prior to the appointed day as defined under Section 2(b) of the Reorganisation Act; and
(ii) That the age of superannuation in respect of the posts which the Petitioners held prior to the appointed day, was 60 years.
15. Section 60(6) of the Reorganisation Act, reads as follows :
"60 (6) Nothing in this section shall be deemed to affect, on or after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the State of Goa or the Union:
Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government."
16. There is absolutely no dispute that to the Petitioners, in the present Petitions, the provisions of Section 60(6) clearly apply. Therefore, in terms of the proviso to Section 60(6) of the
56
Reorganisation Act, the State Government was not entitled to vary the conditions of service of the Petitioners to their disadvantage, except with the previous approval of the Central Government. The right to continue in service until the age of 60 years was, undoubtedly, a condition of service applicable to the Petitioners in these Petitions. By requiring the Petitioners to retire at the age of 58 years, the State Government has, therefore, varied to the disadvantage of these Petitioners their conditions of service applicable immediately before the appointed day. There was no prior approval of the Central Government for such disadvantageous variation in the condition of service. Accordingly, the action of the State Government in requiring the Petitioners to retire at the age of 58 years or preventing them from continuing in service until they attained age of 60 years, was illegal, ultra vires, null and void, taking into consideration the proviso to Section 60(6) of the Reorganisation Act.
17. The proviso to Section 60(6) of the Reorganisation Act, refers to "previous approval" of the Central Government. In this case, therefore, the post facto approval dated 30thJuly, 2001, secured by the State Government from the Central Government, is really of no avail, as was specifically held by the Division Bench of this Court in the case of Zilo Zo (supra). In taking this view, the Division Bench of this Court has relied upon the decisions of the Hon'ble Supreme
57
Court, in which it is held that the approval, as contemplated under the proviso to Section 60(6) of the Reorganisation Act has to be prior or previous and cannot be post facto.
18. The contention, based upon the decision of this Court in A.K. Joshi (supra), or the attempt to style the decision in Zilo Zo (supra) as per incuriam, is quite misconceived. A.K. Joshi (supra), was a Petition instituted by Professor & Head of the Department of English, Goa University, whose service conditions were governed by the Goa University Act, 1984. To such a Petitioner, the provisions of the Reorganisation Act, are not at all attracted. Accordingly, it cannot be said that there is any conflict as such between A.K. Joshi (supra) and Zilo Zo (supra), so as to hold that Zilo Zo (supra) is per incuriam, as urged by the learned Additional Government Advocates.
19. Admittedly, even the decision in Zilo Zo (supra) was never challenged by the State Government. But, rather the same was accepted and even implemented in case of the Petitioners who were similarly placed. The Petitioners have, for example, placed on record the decisions in Ashok Madhusudhan Ganpate vs. State of Goa and ors16and Mrs. Mary Fernandes and ors. vs. State of Goa and another17. To a query as to whether the State Government had instituted a Special Leave Petition to question the decision in Zilo Zo
16
WP NO.341/2009 decided on 6/5/2011
WP NO. 47/2007 decided on 24/4/2013
17
(supra), the learned Additional Government Advocates stated that they were not aware whether this was done. However, it is not the case of the learned Additional Government Advocates that the decision of this Court in the case of Zilo Zo (supra) or for that matter the decisions in Ashok Ganpate (supra) or Mary Fernandes (supra) were ever interfered with by the Hon'ble Apex Court. Therefore, it is really not open to the State Government to raise any contentions which run counter to the law laid down by this Court in the cases of Zilo Zo (supra), Ashok Ganpate (supra) and Mary Fernandes (supra).
20. In fact, in the case of Mary Fernandes (supra), we find that the learned Advocate General for the State of Goa had made a statement that in view of the earlier Judgment passed by this Court, the State Government would treat the Petitioners in the said Petition as having retired at the age of 60 years, only for the purpose of granting pensionary benefits, without any entitlement of pay. The proposal put-forth by the learned Advocate General was agreed by the Petitioners in the said Petition and gave up other reliefs sought for in their Petition. Accordingly, in Mary Fernandes (supra), the State Government was directed to treat the Petitioners as having retired at the age of 60 years and to grant them the pensionary benefits, without any back wages.
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21. As if all this was not sufficient, the State Government itself took cognizance of the Judgment and Order in Mary Fernandes (supra), and on the basis of the same issued an order dated 9th October, 2014, extending certain benefits to Government teachers who were made to retire prematurely at the age of 58 years, when in fact, they ought to have been allowed to continue in service until they attained the age of 60 years.
22. The order dated 9thOctober, 2014, makes specific reference to the Judgment and Order in Mary Fernandes (supra) i.e. Writ Petition No.47/2007. The order dated 9thOctober, 2014, however, granted only the following benefits to the prematurely retired Government teachers :
(a) The prematurely retired teachers at the age of 58 years (on superannuation) will be entitled for two notional increments on the last pay drawn for the purpose of pension only. Pension will be revised accordingly and the revised pension will be effective from 01/04/2013.
(b) These teachers (beneficiaries) will also be entitled for Pensionery benefits such as revised gratuity and commutation of pension payable based on the revised pension. The Revised commutation value will be paid to the pensioner concerned based on the revised pension and
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will be restored after 15 years from the respective dates of commutation as provided in Government of India's decision No.1 under Rule 10 of CCS (Commutation of Pension) Rules, 1981 and as per the clarification No.3 of the Office Memorandum No.38/79/2008-P&PW(G) dated 16.2.2009.
23. Mr. Sawant, learned Counsel for the Petitioners in Writ Petition No.439/2014 has, however, pointed out that benefit of the order dated 9thOctober, 2014 was curiously restricted to only the prematurely retired Government teachers, but not to other employees, like the Petitioners in Writ Petition No.439/2014, who too were prematurely retired at the age of 58 years and not permitted to continue in service until the age of 60 years. He submits that this was clearly a case of hostile discrimination practised against the Petitioners in Writ Petition No.439/2014.
24. This means that there is no option than to hold that the Petitioners, in all these Petitions, were entitled to continue in service until they attained age of 60 years and the action of the State Government in requiring them to retire from service upon attaining the age of 58 years was, ex facie, illegal, null and void, going by the proviso to Section 60(6) of the Reorganisation Act as interpreted by
61
the various decisions of the Hon'ble Apex Court, as well as the decisions of various Division Benches of this Court. The contention to the contrary urged by the learned Additional Government Advocates, with understandable diffidence, deserves no acceptance.
25. Despite the aforesaid position, it is necessary to determine whether all these Petitions are barred by inordinate delay and laches and, further, whether the Petitioners could be regarded as "fence sitters" who deserve no relief whatsoever, even in moulded form as urged by them ?
26. To attempt to answer the aforesaid issues, it is necessary to refer to the pleadings in the Petitions. Suffice to note, in none of these Petitions, the State Government has bothered to file any affidavit-in-reply. In any case, what is pleaded by the Petitioners, is a matter of record and, therefore, it is not as if these Petitions involve any seriously disputed questions of fact.
27. In respect of Writ Petition No.439/2014, which was instituted in March, 2014, or thereabouts, the Petitioners concede that they retired on various dates between 31stMay, 2000 to 30th November, 2004. The Petitioners have pleaded that after they learnt about the institution of Writ Petition No.609/2008 by Zilo Zo and
62
others, they addressed representations to various authorities of the State Government, complaining about their premature retirement at the age of 58 years and prayed for monetary/post retirement benefits on the basis that they ought to have been continued until the age of 60 years. These representations have been placed by the Petitioners on record and it is not even the case of the State Government that such representations were never made by these Petitioners.
28. This Court decided the case of Zilo Zo and others on 6th May, 2011, declaring that post facto approval secured by the State Government from the Central Government on 30thJuly, 2001 was illegal, null and void and that the Petitioners in Zilo Zo (supra) could not have been retired at the age of 58 years, but were entitled to continue until the age of 60 years.
29. The record also indicates that though the benefit in the matters of pension fixation was extended only to the Petitioners in Zilo Zo and others, following the ruling in Zilo Zo (supra), similar relief was extended to Ashok Ganapatye in Writ Petition No.341/2009 and Mary Fernandes and others in Writ Petition No.47/2007. In fact, the decision in Mary Fernandes (supra) is crucial because therein the leaned Advocate General made a statement that in view of the earlier Judgment passed by this Court,
63
the State Government would treat the Petitioners in Writ Petition No.47/2007 as having retired at the age of 60 years only for the purpose of grating pensionary benefits, without entitlement to pay.
30. This means that even the State Government, as late as April, 2013 accepted, without any demure, the position that the retirement of the employees who were in service prior to the appointed day and whose age of superannuation was 60 years, at the age of 58 years was not proper and that the State on its own, would treat such employees as having continued in service upto the age of 60 years, though only for the purpose of granting pensionary benefits, without any entitlement of pay.
31. The aforesaid position is further clear from the order dated 9thOctober, 2014 made by the State Government itself, taking express cognizance of the Judgment and Order in Mary Fernandes (supra) i.e. Writ Petition No.47/2007 decided on 24thApril, 2013. By this order, as noted earlier, only certain benefits were extended to the prematurely retired Government teachers. Writ Petition No.439/2014, as noted earlier, was instituted sometime in March, 2014. From the pleadings, it is apparent that the Petitioners in this Petition, could not be styled as "fence sitters" because, they had already made their representations even prior to the decision in the
64
case of Zilo Zo (supra).
32. Besides, the Petitioners in this Petition, had raised a legitimate grievance that they were not accorded the same treatment which was accorded to the Petitioners in Mary Fernandes (supra) by the State Government on its own accord, as is evident from the statement of the learned Advocate General made therein.
33. The Petitioners in Writ Petition No.439/2014, also had yet another legitimate grievance that even the limited reliefs flowing from the order dated 9thOctober, 2014, whereby the State Government, on its own accord, were not extended to them even though there was no qualitative difference between their cases and the case of the prematurely retired teachers. Besides, the record indicates that the representations of the Petitioners in Writ Petition No.439/2014 were rejected vide communication dated 3rdMay, 2013 and, as noted earlier, this Petition was instituted sometime in March, 2014. Taking into consideration that the basic grievance of the Petitioners relates to refixation of pension on the basis that they ought to have been continued in service until they attained age of 60 years, it is difficult to say that Writ Petition No.439/2014 is barred by some inordinate delay or laches.
65
34. In so far as Writ Petitions No.961/2015, 453/2016 and 461/2016 are concerned, it does not appear that these Petitioners had made any representation prior to the decision of this Court in Zilo Zo (supra). However, the Petitioners in these Petitions have pointed out that there was no good reason on the part of the State Government not to extend to them the same benefits as were extended by the State Government itself to the Petitioners in the case of Mary Fernandes and others.
35. These Petitioners have also pointed out that the order dated 9thOctober, 2014 itself recognizes that several Government teachers were prematurely retired and, therefore, such prematurely retired Government teachers are entitled to some additional retiral benefits on the basis of the decision of this Court in Mary Fernandes (supra), to which a specific reference was made in the order dated 9 th October, 2014. The Petitioners, in these Petitions, contend that the State Government was not justified in restricting such benefits to those indicated in the order dated 9thOctober, 2014 and the Petitioners should have been granted pensionary benefits on the basis that they ought to have been continued in service until attaining age of 60 years.
36. The Petitioners, in these Petitions, submit that at this stage, they are really not seeking any back wages or even arrears as
66
such. But they submit that this is a fit case to mould the relief, so that the Petitioners are paid revised pension on the basis that they have continued in service until age of 60 years and some arrears for a period of at least 3 years prior to the institution of their Petitions.
37. According to us, the Petitioners in Writ Petitions No. No.961/2015, 453/2016 and 461/2016 can be said to have instituted their respective Petitions with some delay, however, as has been pointed out by the Hon'ble Supreme Court in the case of M/s. Dehri Rohtas Light Railway Company Limited (supra), there is distinction between mere delay and laches. The rule which says that the Court may not enquire into belated and stale claims, is not a rule of law, but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the Petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not physical
67
running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches.
38. In all these cases, we have to consider that the Petitioners are retired employees and pensioners. In all these cases, the sole ground on which the State Government seeks to justify its illegal action of prematurely retiring the Petitioners is that of delay and laches. Therefore, the learned Counsel, in the course of arguments, have made it clear that the Petitioners will now be satisfied with only refixation of their pension on the basis that they had continued in service until 60 years. There is material on record which suggests that the State Government, on its own, has extended the benefit of revised pension to the employees identically placed to that of the Petitioners. The State Government has itself acknowledged the discrimination meted out to various sets of employees by making specific reference to the decision of this Court in Mary Fernandes (supra). Taking into account all these circumstances, we cannot say that the Petitioners should be denied the reliefs, at least in the moulded form, by way of revision in the pension and pensionary benefits.
39. Since the relief in all these Petitions is now really restricted to fixation of pension on the basis that the Petitioners ought to have
68
continued in service upto the age of 60 years, the principles laid down by the Hon'ble Apex Court in certain decided cases, will become applicable.
40. In Tarsem Singh (supra), the Hon'ble Apex Court was concerned with a Respondent working in Indian Army, who was invalidated out of army service on 13thNovember, 1983. He, however, approached the High Court only in the year 1999 i.e. after 16 years, seeking a direction to the Appellant-Union of India for payment of disability pension. The learned Single Judge allowed the writ petition, but the relief of payment of arrears was restricted to 38 months prior to the filing of the writ petition. The Respondent appealed to the Division Bench, which directed payment of arrears from 13thNovember, 1983 i.e. the date on which the same became due and payable. The question before the Hon'ble Supreme Court was whether the Division Bench was justified in directing payment of arrears for a period of 16 years, instead of restricting it to only 3 years.
41. The Hon'ble Apex Court, after reference to the decisions in Balakrishna Savalram Pujari Waghmare (supra) on the aspect of continuing wrong, made the following observations in paragraph 7 :
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where
69
remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
42. Finally, the Hon'ble Apex Court held that the High Court was not justified in directing payment of arrears relating to 16 years and that too with interest. The award of arrears should have been restricted to only 3 years before the date of writ petition or from the date of demand to the date of writ petition, whichever was lesser.
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43. Tarsem Singh (supra) recognizes that one of the exceptions to the rule that normally a belated service related claim will be rejected on the ground of delay and laches, is a case relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained.
44. In the present case, similar to the case in Tarsem Singh (supra), the Petitioners who were prematurely retired at the age of 58 years, as a result of such premature retirement, continued to draw pension at the rates which are lesser than the rates which similarly placed employees referred to in Zilo Zo (supra), Ashok Ganapate (supra) and Mary Fernandes (Supra). This is not a case where award of correct pension to the Petitioners would affect any third parties, or would unsettle the settled rights of third parties. Accordingly, there is no reason to deny to the Petitioners revised pension, at least from the date of this Judgment and Order, in the peculiar facts and
71
circumstances of the present case.
45. In M.R. Gupta v. Union of India18the Appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. The Hon'ble Apex Court applied the principles of continuing wrong and recurring wrongs and reversed the decision of the High Court by observing thus :
5. … The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time-barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion, etc., would also be subject to the defence of laches, etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation
(1995) 5 SCC 628
18
existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time- barred…."
46. In Shiv Dass vs. Union of India19, the Hon'ble Apex Court ruled that in case of pension, the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. If petition is filed beyond a reasonable period, say three years, normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.
47. In Yogendra Shrivastava (supra), the issue was about payment of difference in non-practicing allowance (NPA) to the Respondents from their respective dates of appointment. The Respondents were appointed from 1982 onwards, who had approached the Tribunal only in the year 1998 or thereafter. Hon'ble Apex Court however, held that where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser
(2007) 9 SCC 274
19
payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But, in respect of grant of consequential relief or recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore, the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of original application.
48. In Asger Ibrahim Amin ( supra ) the question which fell for consideration was whether the Appellant was entitled to claim pension even though he resigned from service of his own volition and, if so, whether his claim on this count is barred by limitation and laches. The Appellant resigned on 28.01.1991 after having worked for 23 years and 7 months in LIC. On 08.08.1995 i.e. post promulgation of Pension Rules, 1995, the Appellant inquired from the LIC whether he was entitled to any pension. The LIC, in the year 1995 itself informed him that no pension was payable. Upto the year 2000, the Appellant did nothing. However, prompted by news in a daily regards the judgments of the High Court and Tribunal, he requested the LIC to reconsider his case for pension. The request was
74
unanswered and therefore, in 2011 he sent a legal notice to the LIC. In response, the LIC reiterated that the Appellant was ineligible for any pension. Therefore, on 29.03.2012 i.e. after a period of almost 21 years, the Appellant filed a writ petition ( Special Civil Application ) before the High Court, which was dismissed by the learned Single Judge vide judgment and order dated 05.10.2012. The Letters Patent Appeal was also dismissed on the grounds of delay of almost 14 years as also on merits vide judgment and order dated 01.03.2013. Against, which the Appellant instituted the appeal before the Hon'ble Apex Court.
49. The Hon'ble Apex Court after quoting para 7 of Tarsem Singh ( supra ) made the following significant observations, in the context of delay in matters pertaining to the claims of pension :-
"We respectfully concur with these observations which if extrapolated or applied to the factual matrix of the present case would have the effect of restricting the claim for pension, if otherwise sustainable in law, to three years previous to when it was raised in a judicial forum. Such claims recur month to month and would not stand extinguished on the application of the laws of prescription, merely because the legal remedy pertaining to the time- barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh consideration".
50. The Apex Court, thereafter examined the case of the
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Appellant on merits and held that the Appellant was entitled to pension. The Hon'ble Apex Court also observed that the State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it. Finally, the Hon'ble Apex Court held that considering the huge delay, not explained by proper reasons, on the part of the Appellant in approaching the Court, the benefits of arrears of pension payable to the Appellant must be limited to three years preceding the date of the petition filed before the High Court.
51. According to us, the principle laid down in the aforesaid decisions is that there is difference between delay per se and laches. Laches arise where a parallel right is created in third parties and it would not be equitable to disturb such parallel right where the petitioner is indolent. However, where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the ground of laches alone. Further, even the original action, as a result of which there is a mistake in pay fixation or a mistake in award of pension and pensionary benefits at the correct rates may have taken place several years ago, that, by itself, is no reason to deny the relief by specifically restricting the same or moulding the same. In most of the cases, referred to above, it was perhaps possible to urge as what the learned Additional Government Advocates in the present
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Petitions urged that the wrong, in question , was concluded several years ago and what the Petitioners are suffering the damages on account of such concluded wrongs. However, the Hon'ble Apex Court has held that when it comes to fixation of pay, or fixation of pension, there is no scope to uphold such contentions, because the cause of action accrues practically each month when the employees are condemned to accept lesser pay or lesser pension, even though their legal entitlement is for higher pay or higher pension. In holding so, the Hon'ble Apex Court, having considered its earlier decision in Balakrishna Savalram Pujari Waghmare (supra), we are not persuaded to hold that the principle in Balakrishna Savalram Pujari Waghmare (supra) should be so interpreted to perpetuate the continuing wrong, especially in the matters of payment of proper pension to the Petitioners in these Petitions.
52. It is necessary to also make a reference to the decision in N. S. Balasubramanian (supra), where the Madras High Court was concerned with the prayer to issue a direction to the Respondents to extend the benefits arising from the judgment in O.P. No.13651 of 2001 dated 20.10.2003 as confirmed by the Division Bench as well as by the Hon'ble Supreme Court, to the Petitioners, who were identically situated by stepping up the Petitioners pay on par with that of the Petitioners in the said petition with effect from
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02.01.1993 with all consequential benefits including the arrears of pay etc. By way of defence, the Food Corporation of India has urged that the petition was barred by delay, laches, estoppel, waiver and acquiescence. The High Court however took a view that there is no estoppel against or waiver of fundamental right as held by the Hon'ble Apex Court in Olga Tellis Vs Bombay Municipal Corporation [ AIR 1986 SC 180 ]. The High Court also referred to Basheshwar Nath Vs Commissioner of Income Tax, Delhi [35 ITR 190 (SC)], in which, it was held that there can be no waiver of the fundamental right founded in Article 14 of the Constitution. Whilst rejecting the objection raised by the State with regard to the estoppel and waiver, the High Court also referred to Nar Singh Pal Vs Union of India and others [(2000) I LLJ 1388 SC ], in which, it was held that mere acceptance of retrenchment compensation paid to the employee did not mean that he had surrendered all his constitutional rights and that the fundamental rights cannot be bartered away and compromised nor there can be any estoppel against exercise of fundamental right available under the Constitution. The High Court also referred to the ruling of the Hon'ble Apex Court in the State of Karnataka Vs N. Parameshwarappa [(2003) 12 SCC 192 ], in which, it was held that there can be no reasonable justification to confine the relief to only such of the teachers who approached the Court and having regard to the fact that the relief related to the revision of scales
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of pay, every one of that class of teachers would be entitled to the benefit, notwithstanding that they had not approached the Court. The High Court referred to yet another decision of the Hon'ble Apex Court in Govind Ram Purohit Vs Jagjiwan Chandra [1999 SCC 788], in which, it was held that once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-merit rule. There was no point in waiting for each and every person to file a petition. From the analysis of all these judgments, the High Court concluded that it is clear that once the point is decided in favour of a group of persons, there is no further point in waiting for each and every person to file petition and pray for the same relief. The benefit of the judgment is equally applicable to similarly placed persons in order to do complete and substantial justice.
53. In U. P. Jal Nigam and another (supra) the Respondent - Corporation, after filing a return and placing the material on record had made out a case that if any reliefs were to be granted to the retired employees, who had approached the High Court after considerable delay and laches, the financial burden on the Nigam would be to the tune of Rs.17,80,43,108/- and that this liability will unnecessarily overburden the Nigam, which will be forced to
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completely collapse. The Apex Court also observed that if the employees who had challenged their retirement in time, the Nigam could have taken appropriate steps to raise the funds so as to meet the liability but not by asserting their rights the Respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. It is mainly in these circumstances, the Hon'ble Apex Court declined to grant any relief whatsoever to the employees.
54. In the present case, apart from the fact that no circumstances similar to that which prevail in U. P. Jal Nigam case, have been pointed out, we find that the issue of delay and laches when it comes to pay fixation or payment of monthly pension, was really not considered in U. P. Jal Nigam case. Besides, in U. P. Jal Nigam case, there was no evidence that the Nigam had itself applied initially the rulings in favour of certain additional employees, as the facts in the present case indicated. Since, the Petitioners have now restricted their claim to pensionary benefits and are not claiming any salary/wages for the period of two years, as was the position in U. P. Jal Nigam case, we find that the case of the Petitioners herein is closer to the rulings of the Hon'ble Apex Court in Tarsem Singh (supra),
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Shiv Dass (supra), Yogendra (supra) and Asger ( supra), in which, the petitions seeking the benefits of pay fixation or pensionary benefits were not rejected on the ground of delay and laches. The relief was moulded by restricting the same to about three years prior to the date of institution of petitions.
55. Even in Arvind Kumar Srivastava (supra), upon which reliance was placed by the Respondents, the Hon'ble Apex Court has held that normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Supreme Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. However, this principle is subject to well recognized exceptions in the form of laches, delays as well as acquiescence. The fence- sitters are therefore not entitled to any relief in case of delay and laches. However, such exception will not apply in those cases where the judgment pronounced by the Court was judgment in rem with
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intention to give benefit to all similarly situated persons, whether they approached the Court or not.
56. Besides, we find that the impact of delay, laches and acquiescence in matters of pay fixation or revision of pension was really not the issue in Arvind Kumar Srivastava case. The impact of delay, laches and acquiescence on issue of pay fixation or revision of pension was precisely the issue in the cases of Tarsem Singh ( supra ), Shiv Dass ( supra ), Yogendra (supra) and Asger ( supra). In Arvind Kumar Srivastava (supra) the Hon'ble Apex Court referred to the case of Inder Pal Yadav Vs Union of India [(1985) 2 SCC 648], in which, it was observed that there is another area where discrimination is likely to rear its ugly head. The workmen in the said case came from the lowest grade of railway service. The Hon'ble Apex Court therefore, took cognizance of the fact that they can ill afford to rush to Court. Their federations have hardly been of any assistance. They had to individually collect money and rush to the Court, which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the Court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day-to-day. It is a Hobson's choice. Therefore, those
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who could not come to the Court need not be at comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of the Apex Court.
57. In the present case, we are also concerned with the employees not holding any high position. We are also concerned with the retired employees. In the present case, it is not as if the Petitioners were totally indolent. The Petitioners had made representations from time to time. The State Government has itself taken cognizance of premature retirement which was forced upon several employees in disregard to provisions of Reorganisation Act. The State Government also offered some benefits in order to mitigate the unauthorized premature retirement. The State Government, in some matters on its own, extended pensionary benefits though not back wages etc. In this state of matters, we cannot really say that the Petitioners are not entitled to even the relief of revised pension on the principles laid down by the Hon'ble Apex Court in Tarsem Singh ( supra ), Shiv Dass ( supra ), Yogendra (supra) and Asger ( supra).
58. Further, we are of the opinion that there has to be proportionality in the action of the State Government. The delay and laches urged by the State Government is possibly sufficient to
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deny to the Petitioners in the present case not only the relief of any back wages but also, arrears of any pensionary benefits. However, to say that forever the Petitioners are to be paid pension at rates lesser than the pension which is being paid to several other employees placed in similar circumstances, will amount to visiting the Petitioners with consequences which are totally disproportionate or in any case not at all commensurate to the so called delay and laches with which they have instituted the present petitions.
59. Again, in the present case, we need to remind ourselves that we are dealing with the issue of correct pensionary benefits payable to the Petitioners who were prematurely retired at the age of 58 years even though they were clearly entitled to continue in service until the age of 60 years. For the reasons already indicated by us, we are not entertaining the Petitioners' pleas regards the back wages or arrears of pension. In fact, the pleas of back wages have not been pressed by the Petitioners, who now contend that at least there be no continued discrimination in the matter of payment of pensionary benefits. The Constitution Bench of the Hon'ble Supreme Court in the case of D. S. Nakara and others Vs Union of India20 has already held that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past service rendered. It is a social
(1983) 1 SCC 305
20
welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. Pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The most practical raison d'etre for pension is the inability to provide for oneself due to old age. It creates a vested right and is governed by the statutory rules such as the Central Civil Services (Pension) Rules which are enacted in exercise of power conferred by Articles 309 and 148(5) of the Constitution.
60. The Constitution Bench has also held that Socio- economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards the promised millennium. Further, since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution. While interpreting or examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other. The discernible purpose thus underlying pension scheme or a
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statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane. Therefore, the interpretation must be in consonance with these principles and the constitutional goal of setting up a socialist State ( Preamble of the Constitution ) and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years.
61. In order to appreciate and evaluate the impact of directing the State to desist discrimination in the matters of at least payment of pensionary benefits prospectively, we have taken into consideration the statements/charts tendered by the learned counsel for the Petitioners as well as the learned Additional Government Advocates in relation to cases of some of the sample Petitioners. For example, in so far as the Petitioners in Writ Petition No.439 of 2014 are concerned, if we go by the chart furnished by the learned Additional Government Advocate in respect of the Petitioner Laxman J. Chavan, the position is that presently i.e. on 01.12.2019, Laxman Chavan draws pension of Rs.17,911/-, DR of Rs.3045/- making the total pension amount of Rs.20,956/-. However, if the pension of Laximan Chavan is fixed on the basis that he had retired at the age of 60 years, then, he would draw pension of Rs.19,026/- and DR of
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Rs.3235/- making it the total of Rs.22,261/-. Thus the difference of pension payable to Laximan Chavan, according to the statement/chart filed on record by the learned Additional Government Advocate Mr. Dhargalkar, comes to hardly Rs.1305/- per month.
62. Similarly, in so far as some of the Petitioners in Writ Petition No.453 of 2016 are concerned, the learned Additional Government Advocate has given a statement in respect of Mr. Neves A. Rebelo and Mr. Nagesh V. N. Karmali. In respect of Mr. Neves Rebelo, the difference in pension will come to Rs.4465/- per month, for the month of December, 2019 and in respect of Mr. Nagesh Karmali, the difference will be Rs.3142/- per month. In respect of some of the Petitioners in Writ Petition No.961 of 2015, the difference in pension in so far as Mr. M. L. Patil is concerned, it comes to Rs.15,408/-. Though, in terms of chart submitted by Ms. A. Desai, the difference will be only Rs.8,278/- per month.
63. We make it clear that we have not examined the charts/statements submitted by the Petitioners or the learned Additional Government Advocates in order to determine whether they are accurate or not. The only reason such charts/statements were submitted was to indicate the difference in pension, which might
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payable, in case we were to grant the Petitioners limited relief in relation to their pension refixation.
64. According to us, upon evaluation of the aforesaid statements/charts, it cannot be said that any direction to desist from continuing with discrimination in a matter of pensionary benefits with prospective effect, will create any situation as was found in the case of U. P. Jal Nigam ( supra ). Besides, in deference to the submissions made by the learned Additional Government Advocates and upon examining the issue of proportionality qua the delay involved in the institution of the petitions, we are not inclined to award any arrears, even though, in the decisions relied upon by the Petitioners, the arrears for three years prior to the date of institution of the petitions were permitted. Though, we have held that these petitions cannot be considered as barred by the principle of delay and laches, nevertheless, since there is delay involved, the relief, will have to be moulded so that the positions of both the Petitioners as well as the Government are balanced to the extent possible. On one hand, we have held that the action of the Government in prematurely retiring the Petitioners was illegal, null and void and therefore, on the basis of such void action, the Government, cannot, at least continue to practice hostile discrimination against the Petitioners particularly in matters of payment of pension. On the other hand, we find that
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even the Petitioners did not institute these petitions with diligence. It is only upon consideration of both these aspects, we find that the Petitioners have made out a case for some relief in the matter of continued discrimination when it comes to payment of pensionary benefits. However, the Petitioners, cannot be granted benefit of any arrears as claimed by them. The moulding of relief in this manner will neither put any unreasonable strain on the resources of the State nor will it unduly affect the fundamental rights of the Petitioners to receive pension on non discriminatory basis. In forming this opinion, we have, as indicated earlier relied upon the decisions of the Hon'ble Apex Court in the case of Tarsem Singh ( supra ), Shiv Dass ( supra ), Yogendra (supra) and Asger (supra), wherein a distinction is drawn between the cases involving fixation of pension or pay fixation and other matters, since, in the cases of fixation of pension or pay fixation the cause of action is deemed to accrue from month to month.
65. For all the aforesaid reasons and considerations, and in particular, by balancing the position of the State Government as well as the Petitioners, we dispose off all these petitions by making the following order :-
(a) We declare that the action of the State Government in requiring the Petitioners to retire at the age of 58
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years or not permitting them to continue in their service upto the age of 60 years was illegal, null and void;
(b) However, notwithstanding the aforesaid declaration, none of the Petitioners will be entitled to any salary/back wages for the period of two extra years they would have got in service, mainly on the ground of delay with which most of the petitions were instituted;
(c) We however declare that the Petitioners will be entitled to the pension on the basis that they continued in service until they attain the age of 60 years;
(d) Notwithstanding the aforesaid declaration, the Petitioners will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1stJanuary, 2020;
(e) We grant the Respondents three months time to work out the revised pension payable w.e.f. 1stJanuary, 2020 and thereafter commence such payment; (f ) We clarify that though three months time is granted, the arrears regards the revised pension will have to be paid w.e.f. 1stJanuary, 2020;
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(g) In case, as a result of aforesaid benefit, any of the Petitioners are required to refund any benefits which they have already received, the Respondents will not insist upon the actual return/recovery. However, the State Government, will be at liberty to make suitable adjustment so that, any double benefits are not received by the Petitioners. In particular, we clarify that the Petitioners will not be entitled to the benefits of order dated 9thOctober, 2014, in addition to the benefits which we have now extended to the Petitioners;
(h) We clarify that except for direction of payment of revised pension on the basis that the Petitioners had continued in service upto the age of 60 years w.e.f. 1 st January, 2020, we have not awarded the Petitioners any other financial benefits on the basis of declaration that
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(i) Rule in each of these petitions is disposed of in the aforesaid terms. There shall be no order as to costs.
M.S. Jawalkar, J. M.S. Sonak, J. ssm/at*
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