Jawahar Lal Gupta, J. - (1.) THIS order will dispose of Civil Writ Petition Nos. 7808, 9344 and 10958 of 1989, 3272, 11360, 11712, 11757, 14713 and 15031 of 1990 and 4322 and 8448 of 1991. This bunch of 11 petitions raises a common question of law viz. Is the action of the State Government in declining the benefit of special increment to such Government employees as had undergone sterlisation prior to the issue of the Notification dated July 20, 1981 discriminatory and violative of Articles 14 and 16 of the Constitution? A few facts necessary for the disposal of these petitions may be briefly noticed. Reference for this purpose may be made to the averments made by the Petitioner in Civil Writ Petition No. 9341 of 1989.
(2.) THE Petitioner herein is working as a lecturer in the State of Haryana. She is on deputation to the Union Territory of Chandigarh and is posted as a lecturer in the Government College, Chandigarh. On August 31, 1976, the State of Haryana issued a Notification under the proviso to Article 309 of the Constitution in which it was inter alia provided that "no person who has more than two children and has not got himself or herself or his or her spouse sterlised or who, having not more than two children does not give an undertaking not to have more than two children" shall be liable to removal from service. In pursuance to this Notification the Petitioner who had two children "underwent family planning operation at the age of 33 years in the year 1977 at Post Graduate Institute of Medical Education and Research, Chandigarh." A copy of the certificate issued by the Institute has been produced as Annexure P -2. On July 20, 1981, the Haryana Government issued an executive order in which it was inter alia provided that "Haryana Government employees who undergo sterlisation after having two or three surviving children may be granted a special increment in the form of personal pay not to be absorbed in future increases in pay either in the same post or on promotion to higher posts. The rate of personal pay would be equal to the amount of the next increment dut at the time of the grant of the next increment due at the time of the grant of the concession and will remain fixed during the entire service." The grant of this concession was subject to various conditions including that the Government employees must be within the reproductive age group i.e. a female Government employee must not be above 45 years and her husband must not be over 50 years of age. It was also provided that the operation must be conducted and the certificate must be issued by Government Hospital. Another condition which was laid down was that "the concession will be admissible only to the Government employees who undergo sterlisation operation on or after the date of issue of these orders." A copy of this order has been produced as Annexure P -3. The Petitioner states that she made a representation against this circular but to no avail. A copy of the representation dated January 4, 1989 submitted by the Petitioner has been produced as Annexure P -4. In continuation of the letter dated July 20, 1981, the State of Haryana issued another circular, - -vide letter dated January 10, 1989 in which it was inter alto provided that "consequent upon the revision of pay scales from 1st January, 1986, the Haryana Government has examined the matter at length and it has now been decided that the Government employees who had undergone sterlisation on or before 29th April, 1987 and were already in receipt of special increment may be granted double the rate of initial increment in the revised pay scale (made applicable with effect from 1st January, 1986) corresponding to the pre -revised in which the employee was initially granted special increment." A copy of this circular has been produced as Annexure P -5. The Petitioner avers that soon after the issue of the circular at Annexure P -5 she submitted a representation on February 24, 1989, a copy of which has been produced as Annexure P -6. Having failed to get any favourable reply, she has approached the Court through the present petition. The action of the Government in declining to give her the increment has been challenged as being wholly arbitrary and violative of Articles 14 and 16 of the Constitution.
(3.) A written statement has been filed on behalf of the State of Haryana by the Joint Director (Colleges). It has been stated by way of preliminary objection that the relief sought in the petition is for the recovery of money and the appropriate remedy for the purpose is by way of a civil suit. It has been further averred that the petition suffers from the vice of laches. On merits, it has been stated that by notification dated August 31, 1976, disqualifications have been prescribed for Government employees according to which a person who did not undergo the prescribed. Surgery was liable to be removed from service. So far as the circular dated July 20, 1981 (Annexure P -3) is concerned, it has been averred that "the said incentive is prospective in nature and the same cannot be applied retrospectively. As the Petitioner got her -self sterlised in the year 1977. - -(vide Annexure P/2) without being induced to do so, she is not entitled the incentive contained in Government orders at Annexure P -3". The Respondents further maintain that the benefit in the circular is admissible only to those persons "who underwent operation in expectation of an incentive...". Accordingly, the action is not violative of Articles 14 and 16 of the Constitution. It is also maintained that the representations "submitted by the Petitioner were wholly lacking in merit and were thus rejected by the State.;