- (1.)THIS is an appeal directed against the order of the learned Single Judge of this Court dated 22-8-1996 passed in Writ Petition No. 4379/91, whereby the learned Single Judge has allowed the petition and directed the Board to allow the respondent/petitioner to opt for his pension and fix his pension and start paying the same within a period of one month. The petitioner shall refund his provident fund in accordance with the Regulations.
(2.)THE brief facts which are necessary for disposal of the appeal are that the respondent/petitioner had filed a petition under Article 226 of the Constitution for grant of benefit of pension scheme which was brought into force w. e. f. 1-4-1988 for all employees, who had already retired or would be retiring after publication of the Pension Scheme in the M. P. Raj Patra dated 10-5-1991. The benefit of the pension scheme was not extended to the petitioner/respondent only on the ground that he retired on 1-11-1987 prior to the date 1-4-988, from that date the pension scheme was brought into force.
(3.)THE Madhya Pradesh Board of Secondary Education was constituted under the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965 (hereinafter referred to as the "act" in brevity ). Section 17 (4) (b) of the Act provides that qualification, conditions of appointment and service and scale of pay of an officer and servant of the Board. Sub-section (3) of Section 28 gives power to the Board to frame Regulations. The Board, in exercise of the aforesaid power framed the Regulations known as Madhya Pradesh Board of Seconday Education Employees (Pension) Regulations, 1991 (hereinafter referred to as the "regulations of 1991" in brevity ). By virtue of this Regulation, a pension scheme was introduced for the employees w. e. f. 1-4- 1988. Prior to this pension scheme, the Board had a provident fund scheme in force. But, by this Regulation 1991, the pension scheme was introduced and a cut off date was fixed from 1-4-1988. The respondent/petitioner made a demand for grant of benefit of new pension scheme, but he was denied the benefit of the new pension scheme because he had already retired on 1-11- 1987 prior to cut off date i. e. 1-4-1988. Hence, the petitioner approached this Court by filing a writ, petition and seeking a declaration that he may be also given the benefit of new pension scheme irrespective of the fact that he retired before the cut off date i. e. 1-4-1988 and fixation of cut off date is arbitrary. In this connection, reliance was placed on the decision of Hon'ble Supreme Court in the case of D. S. Nakara and Ors. v. Union of India, AIR 1983 SC 130. The Board submitted that the cut off date is 1-4-1988; therefore, those employees who already retired prior to 1-4-1988, they cannot get the pensionary benefit under the scheme. It was also pointed out that the petitioner/respondent was member of the Contributory Provident Fund and that scheme was in force at the time when the petitioner retired. It is submitted that after his retirement, he already collected his provident fund amount and after a gap of four years, he cannot be heard that he should have been granted the benefit of the Pension Scheme, It is also pointed out that since the scheme was approved by the State Government, therefore, the State of Madhya Pradesh is a necessary party because the State alone can justify the enforcement of the pension scheme w. e. f. 1st April, 1988. It is also placed on record that earlier a resolution was passed on 7-5-1984 in the Joint Meeting of the Executive and Finance Committee of the Board to implement the pension scheme w. e. f. 1-4-1985 and the matter remained under correspondence for quite some time. However, ultimately, the scheme could only be finalised and the cut off date was mentioned as 1-4-1988. The stand of the respondent was that the cut off date 1-4-1988 was fixed in view of the financial position of the Board and the funds available for giving pension benefits. However, no further material than this was placed. Therefore, the only plea was that because of non-availability of fund, the cut off date i. e. 1-4-1988 was fixed. Therefore, in this back ground, what we have to consider is whether the cut off date i. e. 1-4-1988, which is fixed in the Regulation, is reasonable or is arbitrary so as to being struck down. The Regulation 4 of the Regulations, which has a bearing on the subject, reads as under :
"all employees who were in service of the Board as on 31st March, 1988, shall exercise an option in duplicate in writing in the form appended to these regulations to elect either to retain the benefits of existing Board's Contributory Provident Fund or to come under these Regulations within three months from the date of approval of these Regulations by the State Government and submit the same to the Secretary of the Board. "
In view of the above Regulation, those employees who had already retired prior to 31 -3-1988, stand automatically excluded and those who retire after 31-3-1988, will be entitled to opt for the benefit of pension scheme. Thus, there are two classes, i. e. those who are in service upto 31st March, 1988 and those who have retired prior to 1988, such persons shall not be entitled to give option for grant of pension. In D. S. Nakara's case (supra), a similar question came up for consideration followed with another decision of the Hon'ble Supreme Court in the case of Smt. Poonamal v. Union of India, AIR 1985 SC 1195, and their Lordships have taken a view that this kind of fixation of cut off date cannot be sustained. But those decisions subsequently came up for consideration in the case of Krishna Kumar v. Union of India, AIR 1990 SC 1782, therein Hon'ble Supreme Court explained both these cases and distinguished them. Subsequently, in the case of State of West Bengal and Ors. v. Ratan Bihari Dey, 1993 (4) SCC 62, those aforesaid decisions came up for consideration and their Lordships approved the ratio laid down in the case of Krishna Kumar (supra ). A similar question came up for consideration before this Court in the case of Prabhat Chandra v. Rani Durgawati Vishwavidyalaya and Anr. , 1997 (2) JLJ 242, with regard to Dr. Hari Singh Gaur Vishwavidyalaya, Sagar and there was also a contributory provident fund scheme and the employees were given the benefit of pension w. e. f. 1-4-1987. It was resolved that those employees/officers, who are in the services of the University on 1-4-1987, shall be entitled to all pensionary benefits, which are available to the employees of the State of M. P. under the Madhya Pradesh Civil Services (Pension) Rules, 1976 and the M. P. Civil Pension (Commutation) Rules, 1976 as amended from time to time. There, the question arose that those who retired prior to 1-4-1987, are not being given the benefit of pension and the fixation of cut off date, i. e. 1-4-1987, being arbitrary, should be struck down. The Division Bench of this Court in Prabhat Chandra (supra), after examining the decision given in the case of D. S. Nakara, Krishna Kumar and Ratan Bihari Dey (supra) and in subsequent decision given by the Hon'ble Supreme Court in the case of Union of India v. P. N. Menon and Ors. , 1994 (4) SCC 68; State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti, 1995 (2) SCC 117 and Union of India v. M. Bhaskar and Ors. , 1996 (4) SCC 416, came to the conclusion that this kind of fixation of cut off date cannot be said to be arbitrary. It was observed in para 17 as under :
"from a survey of all these cases of the Hon. Supreme Court, the recent trend is that, if the cut off date could be reasonably justified then there is no justification to strike it down, simply because some cut off date has been given. When the decision regarding financial involvement is taken, certain date is bound to be specified and such fixation of date cannot necessarily be always said to be illegal or bad. In the present case, as already mentioned above, the decision was taken by the Government to give the pensionary benefits to the teachers and employees of the Universities in 1987, therefore, it was made applicable from 1-4-1987 i. e. financial year, though orders were subsequently issued. Therefore, the cut off date is not whimsical in the present case. So far as the cases which are cited by the learned counsel for the petitioners, i. e. Allahabad, Gujarat, Bombay and Gwalior Bench, they are distinguishable on their peculiar facts. The peculiar distinguishing feature has already been thought out. The recent decision of the Hon. Supreme Court is that if there is justification for fixation of cut off date and is not whimsical, then the fixation of cut off date should not be struck down. In the present case, we have found that the fixation of cut off date was justified, therefore, we do not find any illegality in cut off date from 1-4-1987. "
Same view has again been reiterated by Hon. Supreme Court in Hariram Gupta v. State of U. P. , J. T. 1998 (5) SC 127, and it was held :
"that the Rules have no retrospective operation. Even the decisions in Mehrishi v. NDMC, JT 1990 (1) SC 3861 and D. S. Nakara, 1983 (1) SCC 305, will not help to get benefit of pension under the rules of 1981, as appellant superannuated prior to the Rules coming into force. "