CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) Nos. 14179-80 of 1985
From the Judgment and Order dated 11.7.1985 of the Andhra Pradesh High Court in Writ Appeal No. 1443 and 1467 of 1984.
T.U. Mehta and A. Subba Rao for the Petitioners.
Dr. Y.S. Chitale, T.V.S.N. Chari and Miss Vrinda Grover for the Respondent.
The Judgment of the Court was delivered by
THAKKAR, J. Does that part of the provision which provides for payment of a larger amount of gratuity with prospective effect from the specified date offend Article 14 of the Constitution of India? Whether gratuity must be paid on the stepped up basis, to all those who have retired before the date of the upward revision, with retrospective effect, even if the provision provides for prospective operation, in order not to offend Article 14 of the Constitution of India? A Division Bench of the High Court of Andhra Pradesh says ’no’. In our opinion it rightly says so. The petitioners, erstwhile Government employees who had retired "before" April 1, 1978, inter alia claimed and contended before the High Court that they were entitled to the benefit to the Government order No. 88 dated 26 March, 1980 providing that:
"(b) Retirement gratuity may be 1/3rd of pay drawn
at the time of retirement for every 6 monthly
service subject to maximum of 20 months pay
limited to Rs.30,000." The said order in so far as gratuity is concerned is made effective from 1st April, 1978. Says the High Court:
"Therefore, we are now only concerned whether this
G.O. Ms. No. 88, dated 26-3-1980, should be made
applicable to the pensioners that retired prior to
1-4-1978 by revising their gratuity payable to
them. The learned Advocate General, contends, that
gratuity is something different from the other
pensionary benefits like the pension and the
family pension, which are continuing ones. The
Gratuity that accrued to the petitioners prior to
1-4-1978 was calculated on the then existing Rules
and paid. In that way, the pensioners retired
prior to 1-4-1978 will form themselves into a
distinct class for purposes of the pay-
ment of benefit of gratuity from the others that
retired after 1-4-1978, from which date, the
revised pension rules are made to be applied by
the Government. On the other hand, it is the
contention of the writ petitioners that gratuity
is a part and parcel of the pensionary benefits
and the same cannot be looked separately from the
other pensionary reliefs. The learned counsel for
the Writ Petitioners, no doubt, cited two
decisions (1) V.P. Gautama, IAS Retd. v. Union of
India (SLJ 1984 (1) 120) (2) M.P. Tandon v. State
of U.P. (1984 LAB. I.C. 677), where their
Lordships that decided the above two cases, held,
that no distinction can be made in the pensionary
benefits including death-cum-retirement gratuity
benefit between the pensioners that retired prior
to the stipulated date and after the stipulated
date. In the decision D.S. Nakara v. Union of
India, (A.I.R. 1983 S.C. 130), their Lordships of
the Supreme Court enunciated the principle as
follows:
"With the expanding horizons of socioeconomic
justice, the Socialist Republic and Welfare
State which the country endeavours to set up
and the fact that the old man who retired
when emoluments were comparatively low are
exposed to vegaries of continuously rising
prices, the falling value of the ruppe
consequent upon inflationary inputs, by
introducing an arbitrary eligibility
criteria, ’being in service and retiring
subsequent to the specified date’ for being
eligible for the liberalised pension scheme
and thereby dividing a homogeneous class, the
classification being not based on any
discernible rational principle and being
wholly unrelated to the objects sought to be
achieved by grant of liberalised pension and
the eligibility criteria devised being
throughly arbitrary, the eligibility for
liberalised pension scheme of "being in
service on the specified date and retiring
subsequent to that date" in the memoranda
Exs. P-1 and P-2, violated Art. 14 and is
unconstitutional and liable to be struck
down." After thus enunciating the principle, their Lordships have taken care to observe as follows:
"But we make it abundantly clear that arrears are
not re-
quired to be made because to that extent the
scheme is prospective."
In our opinion, the arrears relating to gratuity
benefit computed according to the Revised Pension
Rules of 1980 may not be paid to the pensioners
that retired prior to 1-4-1978 because at the time
of retirement, they are governed by the then
existing Rules and their gratuity was calculated
on that basis. The same was paid. Since the
revised scheme is operative from the date
mentioned in the scheme, i.e. 1-4-1978, the
continuing rights of the pensioners to receive
pension and family pension must also be revised
according to that scheme. But the same cannot be
said with regard to gratuity, which was accrued
and drawn. The reason why their Lordships of the
Supreme Court in Nakara’s case refused to grant
arrears to the pensioners that retired prior to
the stipulated date would ipso facto apply for
refusing to grant the revised gratuity, since that
would amount to asking the State Government to pay
arrears relating to gratuity after revising them
according to the new scheme for those that retired
prior to 1-4-1978 and that would amount to giving
retrospective effect to the A.P. Revised Pension
Rules, 1980, which came into effect from 29-10-
1979 and in the case of Part-II of those Rules
from 1-4-1978. The scheme is prospective and not
retrospective.
Moreover, we must remember that when the State
Government appointed the Pay Revision Commissioner
to review the then existing scales of pay under
G.O. Ms. No. 745, General Administration (Spl. A)
Department, dated 3-11-1978, the Pay Revision
Commissioner was asked to take into account, while
making his recommendation, the economic conditions
in the State, the financial implications of his
recommendations, and the impact thereof on the
resources avilable for the plan and other
essential non-plan expenditure. Surely, the Pay
Revision Commissioner, when he made his
recommendations to revise the pensionary benefits,
is not contemplating to make his recommendations
retrospective. Otherwise, he would have taken
financial implications of those recommendations
and the impact thereof on the resources available
for plan and other essential non-plan expenditure
of the State. For this reason also, we cannot
direct the State Government to re-
vise the gratuity benefit, which was already paid
to these petitioners who retired prior to 1-4-
1978. The Supreme Court has clearly stated in
Nakara’s case that arrears are not required to be
paid because to that extent the scheme is
prospective. Similar is the case with regard to
the case of gratuity that was accrued and paid
prior to the stipulated day mentioned in the G.O.
promulgating the Revised Pension Rules of 1980."
We fully concur with the view of the High Court. The upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect. The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara’s case, AIR 1983 S.C. 130. There is no illegality or unconstitutionality (from the platform of Article 14 of the Constitution of India) involved in providing for prospective operation from the specified date. Even if that part of the Notification which provides for enforcement with effect from the specified date is struck down the provision can but have prospective operation-not retrospective operation. In that event (if the specified date line is effaced), it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who have already retired before the said date. In order to make it retrospective so that it applies to all those who retired after the commencement of the Constitution on 26 January, 1950 and before the date of issuance of the notification on 26 March, 1980, the Court will have to rewrite the notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively. Merely striking down (or effacing) the alleged offending portion whereby it is made effective from the specified date will not do. And this, the Court cannot do. Besides, giving prospective operation to such payments cannot by any stretch of imagination be condemned as offending Art 14. An illustration will make it clear. Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision. Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the then prevailing cost of living structure and pay-scale structure, cannot invoke Art. 14 in order to claim the higher pay-scale brought into force say, in 1980. If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made. Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement. The amount got crystallized on the date of retirement on the basis of the salary drawn by him on the date of retirement. And it was already paid to them on that footing. The transaction is completed and closed. There is no scope for upward or downward revision in the context of upward of downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides restrospectively (downward revision may not be legally premissible even). It would be futile to contend that no upward revision of gratuity amount can be made in harmony with Article 14 unless it also provides for payment on the revised basis to all those who have already retired between the date of commencement of the Constitution in 1950, and the date of upward revision. There is therefore no escape from the conclusion that the High Court was perfectly right in repelling the petitioners’ plea in this behalf. For the sake of record we may mention that our attention was called to an order of a Division Bench of the High Court of Gujarat LPA 280 of 1983 dated 8.9.83 per P.D. Desai Acting C.J., which does not discuss the issues involved but is based on a concession said to have been made by the Advocate General who appeared for the State. And also to a decision of the Allahabad High Court, (M.P. Tandon v. State of U.P., [1984] Lab. I.C. 677) and (Punjab & Haryana High Court (V.P. Gautama v. Union of India, A.I.R. SLJ [1984] (1) 120.) In none ot these decisions the relevant passage from D.S. Nakara v. Union of India, [1983] SC 130, was considered. Nor was the aspect regarding prospective operation considered on principle. The High Court considered it shocking and was carried away by the fact that an employee who retired even one day before the enforcement of the upward revision would not get the benefit if the specified date of enforcement was not effaced by striking down the relevant provision. But in all cases of prospective operation it would be so. Just as one who files a suit even one day after the expiry of limitation would lose his right to sue, one who retires even a day prior to enforcement of the upward revision would not get the benefit. This cannot be helped, there is nothing shocking in it unless one can say legislation can never be made prospective, and nothing turns on it. These are the reasons which impelled us to dismiss the Special Leave Petition on 18 July, 1986. A.P.J. Petition dismissed.