UJJAGAR SINGH Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) All the writ petitions have been brought for hearing after a direction by the Bench to be taken up after the decision in CWP No. 5986 of 1992 (Rikhi Ram Sharma v. State of Punjab,1997 1 RSJ 554. The Registry has placed this bunch of cases on a noting that the cases which were referred to by the parties have since been decided by the Supreme Court and the cases would require to be heard on that basis. The writ petitions contain a challenge to a circular issued by the Government of Punjab to all the departments treating a portion of dearness allowance as dearness pay for the purpose of retirees' benefit and restricting its operation to avail to employees retiring on or after 31.03.1985. The circular reads that it was pursuant to a decision by the President of India that dearness allowance and ad hoc dearness allowance sanctioned upto the consumer's price index level 568 could be treated as dearness pay for the purpose of pensionary benefits. The petitioner would contend that all pensioners form a homogeneous class and if a rise in price index would be a justification to link the dearness allowance as dearness pay for the purpose of pensionary benefits, it should be equally applicable to all pensioners without any distinction. The petitioners at the time of filing the writ petitions relied on a judgment of the Division Bench of this Court in CWP No. 6552 of 1988, Harbax Singh v. State of Punjab, decided on 25.04.1990, where the very same instructions had been considered and the Bench held that in terms of an earlier ruling of this Court in Shamsher Singh and others v. The State of Punjab and another, in C.W.P. No. 6863 of 1986, dated 08.04.1988, all the persons would be entitled to the benefit without any restriction, namely, that the circular would be applicable also to persons, who had retired before the particular cut off date, namely, on 31.03.1985. The decision already rendered in CWP No. 6552 of 1988 was not through any extensive legal reasons but a decision following an earlier ruling in Shamsher Singh, referred to above. There was yet another case which was decided on 01.02.1994 by a Bench of this Court in Rajinder Kumar v. State of Punjab, in C.W.P. No. 6361 of 1993 that squarely address the very same issue which made reference to the earlier decision in C.W.P. No. 6552 of 1988 . This was another way of affirming a decision already taken by the Court in Shamsher Singh . It appears that a SLP filed against this judgment in Rajinder Kumar v. State of Punjab and others, to the Supreme Court was also dismissed. At the time when the writ petitions were filed, the petitioners had the benefit of these decisions and if the case had been decided only on the basis of these decisions at that time, the matter would not be before this Court. However a Bench of this Court had referred the matter to await the decision in other cases which had raised the very same subject matter and the point was considered by the Supreme Court in State of Punjab and another v. J.L. Gupta and others, in Civil Appeal No. 1129 of 2000, dated 15.02.2000. In the said judgment, the Supreme Court had made reference to a still earlier ruling in State of Punjab and others v. Boota Singh and another, in Civil Appeal No. 10674 of 1996, decided on 07.08.1997 and held that the High Court could not have taken any other decision when the point was squarely covered by Boota Singh's case. The Court also expressed deep anguish by the unavoidable litigation that if only the High Court had looked into the decision in Boota Singh, the wrong judgment would not have been delivered and held that even the fact that the decision in Boota Singh's case had not been reported would not be a ground for the case not being brought the attention of the Court. They held that the notification issued on 09.07.1985 which was subject of challenge in this case cannot be challenged and that it was valid.

(2.) The learned counsel for the petitioners would rely on a recent ruling of the Supreme Court in the batch of cases in Kallakurichi Taluk Retired Officials Association, Tamil Nadu and others v. State of Tamil Nadu, 2013 2 SCC 772 that raised a similar point although not with reference to the very same notification as we are now concerned. The issue was whether the reference to a cut off date for application of the benefit of dearness allowance which was attached to the cost of living index and making it available only to persons, who had retired after a particular date was justified. The Division Bench of the Supreme Court held that the instructions of the State could not be supported and it was found that it offended Article 14 of the Constitution. The Supreme Court referred to the exceptions to the decision in D.S. Nakara v. Union of India, 1983 1 SCC 305 that treated the class of pensioners as a homogeneous class and a discrimination practiced was held as violative of Article 14 of the Constitution of India. The Court found there that the State had no explanation to offer for the compulsion of adopting of a cut off date such as what were regarded as permissible exceptions to Nakara jurisprudence, that there could be instances where the State was beset with financial constraints that would still be relevant as a special classification that would not violate Article 14 of the Constitution. The counsel would point out that there is nothing brought out in the written statement of the State in any of these cases providing for any justification for applying the benefits only to persons, who had been retired after 1985. On a stand alone basis, I would have had no difficulty to apply the law laid down by the Supreme Court to find that the impugned notification was liable to be struck down. However, I feel fettered by the fact that the very same notification has been considered and has been upheld by the Supreme Court in J.L. Gupta's case, referred to above. For a subsequent notification issued on 01.04.1995 and making the benefits available only to persons, who had retired subsequent to 01.04.1995, the Court again referred to J.L. Gupta's case and other decisions and upheld the notification. In State of Punjab v. Amar Nath Goyal and others, in C.W.P. No. 129 of 2003, dated 11.08.2005, I pondered over the point whether it was still possible to refer to Kallakurichi Taluk Retired Officials Association's case and make out a justification for upholding the challenge against the notification. Even as a matter of practical efficacy, it would be imprudent to allow for the same class of employees in the same State service to come by different treatment. If there have been employees of the State of Punjab, who had been denied the benefit, by holding the State notifications to be valid in J.L. Guptas case and Amar Nath Goyal's case , to allow for the benefit to some other class of persons would mean providing for an invidious distinction between the same classes of employees in the same State cadre coming by different treatment not merely through State notifications but through Court decisions speaking in different voices. It will bring a fresh act of arbitrariness with the Court's imprimatur. I would feel constrained to follow the decisions of the Supreme Court rendered in J.L. Gupta's case and Amar Nath Goyal's case where the State was taking up a similar plea that they had a justification for a cut off date and which were accepted by the Supreme Court. The contention raised that the Kallakurichi Taluk Retired Officials Association's case will govern the issue involved, in my respectful view, is not possible for being applied for the reasons referred to above. The challenge to the notifications in all these writ petitions ought to fail and the writ petitions are consequently dismissed.