Dismissed

R.Vijayakumar v. Government of Tamilnadu

Madras HC6 Feb 2013WP/2470/2013

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition challenging G.O.Ms.No.259 and 430 which introduced a contributory pension scheme for government teachers appointed on or after 01.04.2003. The Court held that fixing a cut-off date is within the executive's domain and not arbitrary unless capricious.

What did the court decide?

The writ petition challenging the Government Orders establishing the contributory pension scheme was dismissed, and connected miscellaneous petitions were closed.

R.Vijayakumar Vs Government of Tamilnadu — Pension and Retirement Benefits | Madras HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 06.02.2013

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE K.CHANDRU

¶5

W.P.No.2470 of 2013 and M.P.Nos.1 and 2 of 2013

¶6

1.R.Vijayakumar 2.K.Sivakumar 3.J.Jayakrishnan 4.V.Sharmila 5.N.Geethakumari 6.S.Sasikala 7.J.Kavitha Selvakumari 8.S.Venkatesan 9.R.Rajamanikam 10.K.Balamurugan 11.E.Rajasekar 12.K.Gopalakrishnan 13.K.Elangovan 14.V.Sivasankar 15.B.Umamaheswari 16.M.Selvi 17.T.K.Saraswathi 18.M.Jayalakshmi 19.Cholavandan 20.E.Bharathi 21.Sivasakthi 22.K.R.Kanniyappan 23.S.Pannerselvam 24.Durai 25.Maragatha Valli 26.R.K.Mani 27.T.Rosy 28.S.Sivakumar 29.S.Dharani 30.M.Mahalakshmi 31.T.Saraladevi 32.M.Velayutham 33.Vijimarry Bency 34.Violet Vanithakumari .. Petitioners

¶7

Vs.

¶8

https://hcservices.ecourts.gov.in/hcservices/

¶9

1.Government of Tamil Nadu, represented by its Secretary, Finance (Pension Department), Fort St. George, Chennai-600 009. 2.The Director of Elementary Education, College Road, Chennai-600 006. 3.The District Elementary Educational Officer, Office of District Elementary Education, Vellore District. .. Respondents

¶10

This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records on the file of the respondents with regard to the impugned G.O.Ms.No.259, Finance (Pension Department), dated 06.08.2003, and G.O.Ms.No.430, Finance (Pension) Department, dated 6.8.2004 and quash the same as illegal, arbitrary, discrimination, against the public policy and against the Constitutional scheme and consequently to direct the first respondent to allow the petitioners to avail the benefits as per the Tamil Nadu Pension Rules, 1978.

¶11

For Petitioners : Mr.D.Muthukumar

¶12

¶13

ORDER

¶14

These 34 petitioners are working as secondary grade teachers in various panchayat union schools coming under Thimiri Block of Vellore District. In this writ petition, the petitioners have chosen to challenge the orders of the State Government in G.O.Ms.No.259, Finance (Pension) Department, dated 6.8.2003 and G.O.Ms.No.430, Finance (Pension) Department, dated 6.8.2004 and after setting aside the same, seeks for a direction to allow them to avail the benefits under the Tamil Nadu Pension Rules 1978.

¶15

2.Admittedly, the petitioners were all appointed subsequent to these two Government Orders. By the first order in G.O.Ms.No.259, dated 6.8.2003, the State Government made the provisions of the Tamil Nadu Pension Rules not applicable to Government servants who are appointed on or after 01.04.2003 whether they are either temporary or permanent in the pensionable establishments. For taking such a decision, the State Government had chosen to follow the policy decision taken by the Government of India and that the Contributory Pension Scheme was introduced to https://hcservices.ecourts.gov.in/hcservices/ all employees who are recruited on or after 1.4.2003. By virtue of

¶16

the Contributory Pension Scheme, employees' contribution as well as the Government contribution will be spelt out separately by the Government. It is pursuant to the same, G.O.Ms.No.430, dated 6.8.2004 was passed, wherein it was made clear that the contributory pension scheme will be mandatorily applicable to all employees who are recruited on or after 1.4.2003 and they should become the members of the scheme. Each employee will have to pay a monthly contribution of 10% of basic pay and dearness allowance from his salary to the scheme. A matching contribution will be paid by the State Government. The contribution will be recovered from the salary as was being done in the case of GPF. The Accountant General will maintain the account under the scheme. The other guidelines relating to the scheme have been set out in the Government order.

¶17

3.The petitioners' contention was that amounts have been collected so far, but employees are not receiving benefits. They have been unjustly denied the benefit under the Tamil Nadu Pension Rules, 1978. The Tamil Nadu Pension Rules have been framed under Article 309 of the Constitution. There is no scope for making a distinction between the employees who are in service before 01.04.2003 and after 01.04.2003 and that no cut off date can be fixed. Fixing such a cut off date is violative of the judgment of the Supreme Court in D.S.Nakara Vs. Union of India reported in (1983) 1 SCC 305. Since the constitution has been amended by the 42^nd Amendment Act, 1976 and socialistic preamble has been added, there is no scope for the Government seeking for contribution from the employees for payment of pension.

¶18

4.In this case, we are not concerned with any difficulties in the operation of the scheme. Insofar as the only question whether the scheme is unconstitutional on the ground raised by the petitioners and whether 42^nd Amendment introducing socialism in the preamble makes any difference is concerned, it is necessary to refer to a judgment of the Supreme Court in Excel Wear v. Union of India reported in (1978) 4 SCC 224, wherein in paragraph 24, the Supreme Court had observed as follows :

¶19

"24.We now proceed to deal with the rival contentions. But before we do so, we may make some general observations. Concept of socialism or a socialist State has undergone changes from time to time, from country to country and from thinkers to thinkers. But some basic concept still holds the field. In the case of Akadasi Pradhan v. State of Orissa⁵ the question for consideration was whether a law creating a State monopoly is valid under the latter part of Article 19(6) which was introduced by the (First Amendment) Act, 1951. While considering that question, it was pointed out by Gajendragadkar, J., as he then was, at p. 704:

¶20

“With the rise of the philosophy of Socialism, the doctrine of State ownership has been often https://hcservices.ecourts.gov.in/hcservices/ discussed by political and economic thinkers.

¶21

Broadly speaking, this discussion discloses a difference in approach. To the socialist, nationalisation or State ownership is a matter of principle and its justification is the general notion of social welfare. To the rationalist, nationalisation or State ownership is a matter of expediency dominated by considerations as economic efficiency and increased output of production. This latter view supported nationalisation only when it appeared clear that State ownership would be more efficient, more economical and more productive. The former approach was not very much influenced by these considerations, and treated it a matter of principle that all important and nation-building industries should come under State control. The first approach is doctrinaire, while the second is pragmatic. The first proceeds on the general ground that all national wealth and means of producing it should come under national control, whilst the second supports nationalisation only on grounds of efficiency and increased output.”

¶22

The difference pointed out between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour of nationalisation and State ownership of an industry after the addition of the word ‘Socialist’ in the Preamble of the Constitution. But so long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, is it possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely or to a very large extent the interests of another section of the public namely the private owners of the undertakings? Most of the industries are owned by limited companies in which a number of shareholders, both big and small, holds the shares. There are creditors and depositors and various other persons connected with or having dealings with the undertaking. Does socialism go to the extent of not looking to the interests of all such persons? In a State owned undertaking the Government or the Government company is the owner. If they are compelled to close down, they, probably, may protect the labour by several other methods at their command, even, sometimes at the cost of the public exchequer. It may not be always advisable to do so but that is a different question. But in a private sector obviously the two matters involved in running it are not on the same footing. One part is the management of the business done by the owners or their representatives and the other is running the business for https://hcservices.ecourts.gov.in/hcservices/ return to the owner not only for the purpose of meeting

¶23

his livelihood or expenses but also for the purpose of the growth of the national economy by formation of more and more capital. Does it stand to reason that by such rigorous provisions like those contained in the impugned sections all these interests should be completely or substantially ignored? The questions posed are suggestive of the answers."

¶24

5.As to whether any cut off date can be introduced among the Government servants in the matter of applying different pension scheme, it is necessary to refer to a judgment of the Supreme Court in State Bank of India v. L. Kannaiah reported in (2003) 10 SCC 499 and in paragraph 6, it was observed as follows :

¶25

"6......True, a new benefit has been conferred on the ex-servicemen and therefore, a cut-off date could be fixed for extending this new benefit, without offending the ratio of the decision in D.S. Nakara v. Union of India¹ but, there could be no arbitrariness or irrationality in fixing such date......"

¶26

6.Subsequently, the Supreme Court in Government of Andhra Pradesh v. N. Subbarayudu reported in (2008) 14 SCC 702 had upheld the fixing of cut off date and distinguished the Nakaras case and in paragraphs 5 to 9, the Supreme Court had observed as follows :

¶27

"5.In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal¹ .)

¶28

No doubt in D.S. Nakara v. Union of India² this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case² as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal¹ .

¶29

There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some https://hcservices.ecourts.gov.in/hcservices/ leeway and free play at the joints in this connection.

¶30

In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad³ , Union of India v. Sudhir Kumar Jaiswal⁴ (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn.⁵ (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary⁶ , etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.

¶31

9.As has been held by this Court in Aravali Golf Club v. Chander Hass⁷ and in Govt. of A.P. v. P. Laxmi Devi⁸ the court must maintain judicial restraint in matters relating to the legislative or executive domain."

¶32

Therefore, reliance placed by the petitioners either for socialistic preamble of the Constitution or for the cut off date fixed by the State Government, i..e, 01.04.2003 does not stand to reason and the writ petition must fail.

¶33

7.It must be noted that an employer can fix different service conditions by indicating their terms of appointment for newly recruited persons. They cannot compare themselves with persons who were already in service as held by the Supreme Court in Transport and Dock Workers Union v. Mumbai Port Trust reported in (2011) 2 SCC 575 and in paragraphs 15, 22,25,26,27,32,35 to 38, it was observed as follows :

¶34

"15.From the record the following facts emerge:

¶35

(i) As a matter of practice, duty hours of the personnel working on indoor establishment including Typist-cum-Computer Clerk were seven hours, which included half an hour lunch break;

¶36

(ii) The respondent Port as a matter of policy decided to include a condition in the offer of appointment that was given to the personnel who were selected for being appointed as Typist-cum-Computer Clerk after 1-11-1996 that they will have to work in shift of eight hours duration;

¶37

(iii) They were to give their acceptance of this term, and it was only on their acceptance of the term that they were given appointment;

¶38

(iv) It is an admitted position that so far as the https://hcservices.ecourts.gov.in/hcservices/ personnel working on outdoor establishment of

¶39

Respondent 1 are concerned their duty hours were identical to the Typist-cum-Computer Clerk appointed after 1-11-1996;

¶40

(v) As a result of change in the policy after 1-11-1996 in the indoor establishment of the respondent Port, there were Typist-cum-Computer Clerks appointed before 1-11-1996 whose duty hours were seven hours and there were Typist-cum-Computer Clerks appointed after 1-11-1996 whose duty hours are eight hours;

¶41

Except for different duty hours all other conditions of service of Typist-cum-Computer Clerks working on the indoor establishment of Respondent 1 were identical.

¶42

22.Thus the classification would not violate the equality provision contained in Article 14 of the Constitution if it has a rational or reasonable basis. However, the question remains: what is “rational” or “reasonable”? These are vague words. What may be regarded as rational or reasonable by one Judge may not be so regarded by another. This could lead to chaos in the law.

¶43

In our opinion while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines. There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is: is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational.

¶44

In the present case, as we have noted, the purpose of the classification was to make the activities of the Port competitive and efficient. With the introduction of privatisation and setting up private ports, the respondent had to face competition. Also, it wanted to rationalise its activities by having uniform working hours for its indoor and outdoor establishment employees, while at the same time avoiding labour disputes with employees appointed before 1-11-1996. In the modern world businesses have to face competition with other businesses. To do so they may have to have longer working hours and introduce efficiency, while avoiding labour disputes. Looked at from this point of view the classification in question is clearly reasonable as it satisfies the test laid down above.

¶45

We do not mean to say that the above is the only test to decide what is reasonable, but in our opinion it is certainly one of the tests to be adopted if we want our country to progress. We have to take a practical view of the matter instead of relying on abstract, a priori notions of equality.

¶46

https://hcservices.ecourts.gov.in/hcservices/ 32. In our opinion, since the classification with

¶47

reference to the date of appointment of Typist-cumComputer Clerks was for the purpose of bringing about uniformity in working hours of the personnel working in indoor and outdoor establishments, and its aim was to make the organisation competitive and efficient, it cannot be said that it was unreasonable and hence violative of Article 14 of the Constitution. Also, avoidance of labour disputes is a reasonable basis for the classification.

¶48

Those who entered service after 1-11-1996 knew that they have to work for seven-and-half hours excluding lunch break and with open eyes they accepted the employment. Hence there is no question of violation of Article 14 of the Constitution. In our opinion, fixing of hours of work, provided they do not violate any statutory provision or statutory rule, are really management functions and this Court must exercise restraint and not ordinarily interfere with such management functions.

¶49

Differential treatment in our opinion does not per se amount to violation of Article 14 of the Constitution. It violates Article 14 only when there is no conceivable reasonable basis for the

¶50

differentiation. In the present case, as pointed out above, there is a reasonable basis and hence in our opinion there is no violation of Article 14 of the Constitution.

¶51

In our opinion it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection.

¶52

As regards cut-off dates, this Court in Govt. of A.P. v. N. Subbarayudu¹⁵ has observed vide SCC paras 5- 9: (SCC pp. 703-04)

¶53

“5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal¹⁶ .)

¶54

No doubt in D.S. Nakara v. Union of India¹⁷ this Court had struck down the cut-off date in connection https://hcservices.ecourts.gov.in/hcservices/ with the demand of pension. However, in subsequent

¶55

decisions this Court has considerably watered down the rigid view taken in Nakara case¹⁷ as observed in SCC para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal¹⁶ .

¶56

There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.

¶57

In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad¹⁸ , Union of India v. Sudhir Kumar Jaiswal¹⁹ (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn.²⁰ (vide SCC para 31) and UGC v. Sadhana Chaudhary²¹ , etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.

¶58

As has been held by this Court in Aravali Golf Club v. Chander Hass¹³ and in Govt. of A.P. v. P. Laxmi Devi¹⁴ the court must maintain judicial restraint in matters relating to the legislative or executive domain.”

¶59

(emphasis supplied)

¶60

8.In the light of the above, the challenge made by the petitioners cannot be countenanced by this court. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.

Sd/

Asst. Registrar

/True Copy/

Sub Asst.Registrar

https://hcservices.ecourts.gov.in/hcservices/ vvk

¶66

To
1.The Secretary,
Government of Tamil Nadu,
Finance (Pension Department),
Fort St. George,
Chennai-600 009.
2.The Director of Elementary Education,
College Road,
Chennai-600 006.
3.The District Elementary Educational Officer,
Office of District Elementary Education,
Vellore District.
+1 CC to M/S.D.MUTHU KUMAR Advocate SR No.
ORDER IN
W.P.No.2470 of 2013
KSJ (CO)
JV / 18.02.2013

¶67

https://hcservices.ecourts.gov.in/hcservices/

R.Vijayakumar v. Government of Tamilnadu

Case brief

What is this about?

What did the court decide?

R.Vijayakumar v. Government of Tamilnadu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

C.P.C.(P) Ltd. Vs the District Collector

Mr.v.Govinda Rajasekaran Vs the General Manager

Anamalai Ambedhkar Vs the State of Tamilnadu

R.Santhakumari Vs the Director (Higher Secondary

The Correspondent Vs the Assistant Commissioner

P.Ramasamy Vs the Tamil Nadu State Transport