BHATNAGAR, J. - (1.) THIS appeal under section 18 of the Rajasthan High Court Ordinance, 1959 is directed against the order dated September 3, 1985 passed by the learned single Judge of this Court in a writ petition under Article 226 of the Constitution of India filed by the respondent, the retired Contributory Provident Fund Holders' Association (for short 'the Association' hereinafter) Jodhpur, against the State of Rajasthan, in grievance to the denial of pension benefits to the Members of the Association.
(2.) THE facts material for the disposal of this appeal are that, the Members of the Association were employees of the erstwhile Princely State of Jodhpur and were the Members of the Contributory Provident Fund Scheme (for short "the C. P. F. Scheme' hereinafter) which was prevalent in the former State of Jodhpur. After the formation of Rajasthan, those employees became the employees of the Government of Rajasthan and were governed by the Rajasthan Service Rules, 1951 (for short 'the Rules' hereinafter ). THE Scheme of C. P. F. was that the employees were to give their own subscription and an amount equal there to was contributed by the Government. Those employees were asked to give option for pension. Some of them opted for pension while others did not. Those who opted for pension were placed in an advantageous position than the rest. THE pay scales of the Rajasthan employees were revised in the years 1961,1966,1969,1971, 1976 and 1983. THE increase in the pay scales naturally brought an increase in the pension to be paid to the retired employees. However, no such corresponding benefit was available to those who had opted for continuing in the C. P. F. Scheme. In order to revise the pay scales and redress the grievances of the employees under the pressure of rising prices, the State of Rajasthan constituted a Pay Commission headed by Hon'ble Mr. Justice B. P. Beri, Former Chief Justice of Rajasthan, by a notification dated May 31, 1979. THE Commission filed its report on February 17, 1983 and the recommendations were made effective from September, 1, 1981. Point No. 7 of that report relates to the recommendation for exgratia payment to those who had retired as Members of the C. P. F. Scheme. THE C. P. F. Holders made a representation to the Chief Minister for an opportunity of exercising fresh option for pension. Memorandum/circulars Exhibits 5 to 8 had been issued by the Government of Rajasthan by which it was made open to the Government Servants who were Members of the C. P. F. Scheme and had retired after the date mentioned therein or were in service on a particular date, to opt for pension. THE case of the Members of the respondent's Association was not governed by those Circulars and therefore, they could not have opted for pension. THE benefit given to some and denial of the same to others was taken to be a hostile discrimination by the Members of the Association and taking it to be violative of Articles 14 and 16 of the Constitution of India, the Association invoked the extra ordinary jurisdiction of this Court by filing the writ petition in this Court. THE learned single Judge placed reliance on the principles enunciated by Hon'ble the Supreme Court in the case of D. S. Nakara Vs. Union of India (1) and followed in the case of Bidhubhushan Malik Vs. Union of India (2) which was confirmed by Hon'ble the Supreme Court in a Special Leave Petition in the case of Union of India Vs. Bidhubhushan Malik (3 ). According to the learned single Judge, all Government Servants who were C. P. F. Holders constituted one class governed by the Rules and on the basis of the date of retirement the classification amongst the retired C. P. F. Holders could not be made because it does not pass the test of permissible classification. Discussing in detail the unconstitutional and invalid portions of the memorandum/circulars Exs. 5 to 8 whereby opportunities to opt for pension were given to the persons who had retired on or after a particular date or were in service on the dates mentioned therein, his Lordships concluded that the unconstitutional part in each of the memos shall be omitted. Resultantly, the writ petition was allowed and words "on or after 1. 9. 68" in Ex. 5, "after 1. 9. 76" in Ex 6, "on or after 31. 1. 77" in Ex. 7 "after 1. 9. 81" in Ex. 8 were held to be unconstitutional and struck down. Feeling dissatisfied by the decision of the learned single Judge, the State of Rajasthan has assailed the same in this Special Appeal. Mr. J. P. Joshi, learned Additional Advocate General strenuously contended that all the C. P. F. Holders were given opportunity to opt for pension after the merger of the Princely State in the State of Rajasthan. That having failed to avail the opportunity so given, the Member of the Association are estopped from making such a claim subsequently and that too after the lapse of approxi mately about two decades of their retirements from service. It has been stressed by Mr. Joshi that whenever there was any liberlisa-tion in Pension Rules or service conditions, the C. P. F. Holders were given option. That, fixing a particular date in the various memorandums, orders and circulars for making available the opportunity of option to the C. P. F. Members had an object behind it and cannot be said to be discriminatory or hosttie to the interest of those who did not fall in the category mentioned in those orders and circulars. The reason according to Mr. Joshi for inserting the various dales in Exs. 5 to 8, which according to the learned single Judge are unconstitutional, was that the cases of the Members of the respondent-Association had been settled long back and they had availed the benefit of provident fund allowed and having done so there was no justification for their further demanding the benefit available to others who either retired subsequently or were in service on the dates these orders were issued and as such formed a different category.
(3.) MR. M. R. Calla, learned counsel for the respondent-Association vehemently argued that the classification made between the persons similarly situated was not permissible and the learned single Judge has rightly held it to be violative of Articles 14 and 16 of the Constitution of India. That, there was a recurring cause of action to the respondent-Association. That, when the Beri Commission, upon considering the hard hit state in which the C. P. F. Holders were placed, recommended ex-gratia payment to those who had retired as Members of the C. P. F. Scheme, the C. P. F. Holders approached the Government and being unsuccessful there, sought relief from the Court by filing the writ petition. That, there was no uniform policy. Those who retired after them in or after the year mentioned in Exs. 5 to 8 or were in service on the dates mentioned therein had two, three or four opportunities for option, whereas the Members of the respondent-Association filing the writ petition had only one opportunity in the year 1954 which they did not avail because at that time there was not much difference between the benefits under the C. P. F. and Pension Schemes. It was on account of subsequent revision of the pay scales and liberalisation of pension that there was remarkable difference between the benefits under the C. P. F. and Pension Schemes. Mr. Calla, emphasized that if the change of circumstances necessitated allowing an opportunity for option for pension scheme it should have been allowed to all those who fell in that category and not only to those who had retired on or before the dates mentioned in the circulars and orders or were in service on the dates mentioned therein. There is no dispute on the point that after the formation of Rajasthan, the Members under the C. P. F. Scheme were given option and some of them at that time opted for pension while others continued in the C. P. F. Scheme. Subsequently because of the change of circumstances, such as rise in prices, the Government of Rajasthan realised the difficulties of its employees and revised the Pay Scales in the years 1961, 1966, 1971, 1976, and 1983. While doing so the Ranawat Commission Report of 1971 made applicable from 1. 9. 1968 and the Beri Commission Report of 1983, made effective from 1. 9. 1981, were kept in view. In consonance with the revised Pay Scales, there was also liberalisation in the Pension Rules and as stated earlier option was given to the C. P. F. Holders who retired on or before the dates mentioned in Exs. 5 to 8 or were in service on the dates maintioned therein, The C. P. F. Holders who have ventilated their grievances in the writ petition did not fall in that category and are placed in a pitiable situation because of the rise in prices and their having no or inadequate means of livelihood. ;