ASHOK KUMAR GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The question:

(2.) In order to appreciate the situation, we may briefly refer to the facts of this case. M/s. Jessop & Company Limited (Jessop), a subsidiary of Bharat Bhari Udyog Nigam Limited (BBUNL), a Public Sector Undertaking of the Government of India, became sick sometimes in 1995. A reference was made to the Board for Industrial and Financial Reconstruction (B.I.F.R.). On 2nd June, 1995, B.I.F.R. held Jessop a sick industrial company. State Bank of India was appointed as operating agency. On 15th Dec., 1997, a rehabilitation scheme was considered. The draft scheme was notified in May 1998. Pursuant to such scheme by a notice dated 3rd March, 1998, a V.R.S., according to B.I.F.R. package for rationalising manpower strength, was issued. Eligible employees were required to exercise option in the manner prescribed. The petitioners having opted for the same, had voluntarily retired between 31st March, 1998 and Nov. 1998 respectively. Various benefits were paid in terms of the V.R.S., which are not in dispute now. Under the said scheme, compensation for the balance period of service foregone were paid to the petitioners in accordance with a formula for calculation on the basis of the scale of existing pay. In the meantime, the Government of India had decided to revise the pay scale of the executives holding the post below the board level and non-unionized supervisory staff, with effect from 1st Jan., 1992, through a decision taken on 19th July, 1995. Admittedly, at that point of time, the petitioners were in service. The earlier pay scale, intro ducted in 1987, was due to be revised after expiry of five years, namely from 1st Jan., 1992, as is done almost in all Public Sector Undertakings (P.S.Us.). On 30th May, 1997 Bharat Pumps And Compressors Limited implemented the said revision. Whereas Jessop took the decision on 29th Jan., 1999 to implement the revision with effect from 1st of Jan., 1992, on condition that no arrears on account thereof would be payable, and the benefit of such implementation would be available with effect from 1st of Jan., 1999. The said order dated 29th Jan., 1999 also contained a clause that arrears with effect from 1st Jan., 1992 would be payable after Jessop's opertional and internal resource generation reach a level- to absorb the liability. Admittedly, such level has not been reached. On 19th April, 200, Burn Standard allowed the benefit of revised scale to everyone, who were in service on 1st of Jan., 1992, upon being sanctioned by the Government of India. It also provided for payment to those, who were in service on 1st of Jan., 1992, but ceased to be in service, subsequently on account of VR. On 8th of Dec., 2000 in a V.R.S., the Government of India points out that the V.R.S. optees would be entitled to subsequent revision of Pay effective for a period prior to the acceptance of VRS. In this background, the petitioners are claiming the benefit of the said revised Scale with effect from 1st Jan., 1992 for re calculating the terminal/retiral benefits and release the amount of fitment benefits and the arrears of Pay including re- calculation of the ex gratia as well. Submission on behalf of the Petitioners :

(3.) Mr. Saktinath Mukherjee, learned Counsel for the petitioner, had elaborately argued the matter and had pointed out having reference to the relevant records and materials that there cannot be different stand for different categories of people, though similarly situated. He further contended that the respondents themselves having issued a memorandum that such recalculation of ex gratis would be made on the basis of the revised scale, the respondents cannot refuse the same to the petitioners. He relied on the decision in Netai Bag And Others Vs. State of West Bengal And Others, 2000 (8) SCC 262 to contend that the State cannot escape its liability to show its action to be fair and reasonable and in accordance with law. Relying on the facts of this case, he contended that the State has not acted fairly and reasonably in denying the same relief to the petitioners while granting it to others. He then releid upon the decision in R.L. Marwaha Vs. Union of India, 1987 (4) SCC 31 : [1987(4) SLR 728 (SC)] to contend that the petitioners having opted for V.R.S. a little earlier, cannot be excluded from the purview of Art. 14 of the Constitution of India. The benefit, which is denied to the petitioner, appear to be arbitrary. As such it can be struck down by the Court, directing the respondents authority to extend the same benefit to the petitioners. He relied on Dhanraj And Others Vs. State of J&K And Others, 1998 (4) SCC 30 : [1998(2) SLR I (SC)] to support his contention that a decision to deny pension to people, who retired before 9th June, 1981, when it was so allowed to those, who retired after, though, it was not made retrospective in the Government Order, was equally applicable to those retired earlier. This principle is also equally applicable in the present case. He cited Deokinandan Prasad Vs. State of Bihar And Others, AIR 1971 SC 1409 : [1971(l) SLR 175 (SC)] and contended that such entitlement is a right to property and as such is enforceable through writ jurisdiction. Relying upon Salabuddin Mohamed Yunus Vs. State of Andhra Pradesh, AIR 1984 SC 1905 = 1984 Lab I.C. 1738: [1984(3) SLR 119 (SC)] , he contended that the right claimed is a right to property and cannot be denied. He also relied on State of Punjab Vs. K.R. Erry & Sobhag Rai Mehta, 1973 (1) SCC 120: [1972 SLR 836 (SC)] , that the relief, which the petitioners is claiming, is not a bounty but a property. On this ground, he contended that the relief asked for in the writ petition should be allowed. Submission on behalf of the Union of India :