CHAUHAN, J. - (1.) - These petitions have been filed for declaring the provisions of Rule 14 (1) (i) of the Rajasthan Civil Service (Revised Pay Scales) Rules, 1987, in so far as it prescribed 1.9.1986 as cut -off date for the purpose of grant of advance increment, ultra vires and for quashing the order dated 7.3.89 (Annexure 7) issuing the clarification for revision of pay scale, and all consequential orders (Annexures 12 to 27).
(2.) THE facts and circumstances giving rise to these cases are that the Union of India had issued directions to the Stats to create employment opportunities for the youth and in pursuance of the same, respondents issued an Advertisement dated 3.5.75 as part of Employment Promotion Programme (Annexure 1) and invited applications for training/apprenticeship on the post of Lower Division Clerks. Petitioners were selected for training vide letter dated 6.2.1976 (Annexure 2). During training, petitioners were asked to furnish bonds purporting to be under the Apprenticeship Act,1961, for payment of damages in case the training was abandoned before completion. After completion of the training, they were offered appointment by the Rajasthan State Electricity Board (hereinafter called the Board) vide letter dated 10.12.76 (Annexure 4) with retrospective effect, i.e. the date on which an individual completed six months'training. The State of Rajasthan revised the pay scales of its employees by promulgating the Rajasthan Civil Services (Revised Pay Scale) Rules, 1987 (hereinafter called, the Rules, 1987) with effect from 1.9.86 and Rule 14 (1) (ii) of the said Rules provides that a Government servant who had completed ten years of service, but less than 20 years of service on 1.9.86, shall be granted one advance increment. The Board also adopted the said Rules vide Resolution dated 21.10.87 (Annexure 5) with effect from 1.9.86. By reckoning the period of training in service, petitioners were considered to have completed ten years service on 1.9.86 and they were given the benefit of the said provision of the Rules,1987 and fixation of their pay was made accordingly. Vide letter dated 7.3.89 (Annexure 7), the Board issued a direction that while computing the period of ten years of service for grant of advance increment, period rendered during apprenticeship/training shall not be counted and in pursuance of the said order dated 7.3.89, the pay scale of some of the petitioners were reduced. Petitioners had filed D.B.C.W.P. No. 1030/1989, Nand Lal and others vs. R.S.E.B. and others.and D.B.C.W.P. No. 1044/1989, Ajay Kumar & others vs. R.S.E.B. and others. This Court granted interim orders not to change the pay scale or not to make any recovery in pursuance of the said order dated 7.3.89. The said writ petitions were disposed of by the judgment and order dated 25.5.89 (Annexure 9) and respondents were directed to decide the case afresh after giving an opportunity of hearing to the petitioners there in and all other similarly situated persons. The Board passed the impugned orders (Annexures 12 to 27) reducing pay scales of the petitioners and effecting recovery from them of the amount which had been wrongly paid to them as advance increment after giving petitioners full opportunities of hearing. Hence these petitions. Heard Mr. M.S. Singhvi, learned counsel for petitioners and Mr. L.M. Lodha, for respondents. Mr. Singhvi has seriously assailed the validity of cut off date canvassing that the cut off date has no rational nexus to the object sought to be achieved and is liable to be quashed being discriminatory and, thus, violative of the mandate of Article 14 of the Constitution. Mr. Lodha has contended that while fixing the cut-off date, the Authorities had to consider the financial consequences of conferring an additional benefit on its employees and the Authority has to fix a date for giving the benefit and, thus, it cannot be said to be arbitrary by any means and the cut off date fixed herein is valid having reasonable nexus to the object sought to be achieved and is a valid piece of legislation. It is settled proposition of law that a cut off date can be introduced, but it is not permissible to do in such an artificial manner that it may discriminate the similarly situated persons and the cut off date may be introduced by creating a fiction but while doing so, the consequences must be examined thoroughly and the cut off date must have some nexus to the object sought to be achieved. Generally it should be prospective but may have retrospective effect also. Consideration of financial constraints on public exchequer etc. are good and valid reasons for fixing particular cut-off date by the legislature directly or by the executive instructions.
(3.) THE issue has been considered by the Hon'ble Supreme Court time and again in a large number of case and some of which are Jaila Singh & Anr. vs. State of Rajasthan & Ors. (1); D.S. Nakara and others vs. Union of India (2); Dr. (Mrs.) Sushma Sharma & Ors. vs. State of Rajasthan and others (3); U.P.M.T.S.N.A. Samiti Varanasi vs. State of Uttar Pradesh and Ors. (4); Krishena Kumar vs. Union of India Anr. (5); All India Reserve Bank Retired Officers Association vs. Union of India & Anr. (6); State of Rajasthan vs. Rajasthan Pensioner Samaj. (7); T.S. Thiruvengadam vs. Secretary to the Government of India (8); Union of India vs. Sudhir Kumar Jaiswals (9); University Grants Commission vs. Sadhana Chaudhary & Ors. (10); State of Rajasthan & Anr. vs. Amrit Lal Gandhi & Ors. (11); Rabindranath Mukhopadhyay vs. Coal India Ltd. & Anr. (12); State of Haryana vs. Rai Chand Jain & Ors. (13); Union of India & Ors. vs. Lieut. (Mrs.) E. Iacats (14); State of Rajasthan vs. Hitendra Kumar Bhatt (15); Dr. Ami Lal Bhat vs. State of Rajasthan & Ors. (16); M.C. Dhingra vs. Union of India & Ors. (17); Chairmain, Railway Board & Ors. vs. C.R. Rangadhamaiah & Ors. (18); J & K Public Service Commission etc.vs. Dr. Narinder Mohan & Ors. (19); and Union of India and others vs. M. Bhaskar & Ors. (20). The ratio of the aforesaid judgments is that if the State cannot bear the financial burden to meet a particular requirement, it may be a sufficient cause to fix a particular cut off date and even to make the law with retrospective effect. However, the basis must be shown to have a nexus with the object of classification as well as of legislative exercise. If the choice of fixing a particular date is shown to be wholly arbitrary and introduces discrimination, which violates the mandate of Article 14 of the Constitution, the date can be struck down for the reason that a purpose of choice unrelated to the object sought to be achieved cannot be accepted as valid. However, in a given case the fixing of a period of experience or from what particular date it will run, are with in the legislative competence and wisdom and there is nothing which may warrant a Court to invalidate such an enactment/ executive instruction. If the law/ rules/ regulation is to be based on experience and the legislature has the freedom to choose the minimum period of experience required and the date from which such experience is to be computed, i.e. fixation of a certain tenure of service for the purpose of grant of advanced increment (s) /absorption/ regularisation, then fixation of such criteria has a rational nexus with the object sought to be achieved. In such matters, the homogenous class of existing employees cannot be divided in two separate classes on arbitrary and irrational basis. If fixing of a cut off date is not devoid of rational consideration and wholly not whimsical and the Authorities had not acted malafide with a view to deprive a particular section of employees of such benefits and the cut off date has been fixed on the recommendation of the Expert Committee /Board or on proper consideration by the Authority concerned, it may meet the test of reasonable and can not be held arbitrary. While examining the cases like the instant, the Court has to be very conscious because judicial review is not permissible unless the Court is satisfied that the cut off date is very wide of the reasonable mark or so capricious or whimsical as to permit judicial interference. In all such matters, the Government/Authority has to fix a particular date for computing the eligibility and if the date so adopted meets the test of reasonableness, it cannot be invalidated merely on the ground that it may adversely affect some persons. In such a case the rational behind the Policy has to be examined. In Tamilnadu Education Department Ministerial and General Subordinate Services Association etc. vs. State of Tamilnadu and others (21), the Hon'ble Apex Court has observed as under:- "Once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a marty and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where absent arbitrariness and irrationality, the Court has to adopt a hands-off policy." In State of Rajasthan and another vs. Amrit Lal Gandhi (supra), Hon'ble Supreme Court has held that for the purpose of fixing the cut off date, the paying capacity of the Authority/State is a relevant consideration. Similar view has been taken in State of U.P. vs. Jogendra Singh and another (22), wherein the Hon'ble Supreme Court distinguished the case of D.S. Nakara (supra) and held that liberalised provisions introduced giving a particular benefit to a particular class of employees cannot be said to be arbitrary. In State of Orissa vs. Ashwani Kumar Datta (23), the Court examined the validity of the cut off date while giving benefit of pay scale to the teachers of aided non-government colleges and found it neither arbitrary nor unreasonable as the burden of providing the grant-in-aid for the said purpose was on the public exchequer. Similar view has been reiterated in Union of India and others vs. K.G. Radhakrishna Panickar & Ors. (24), wherein the Court held that the principle laid down by the Hon'ble Supreme Court in D.S. Nakara (supra) can have application between similar set of employees and the said principle has no application where a new benefit is conferred to another set of employees with effect from a particular date and in such circumstances, the conferment of the benefit with effect from a particular date cannot be held to be violative of Article 14 of the Constitution on the basis that such benefit has been conferred on certain categories of employees from earlier date. The same view has been reiterated in Hari Ram Gupta vs. State of U.P. and others (25) and the principle laid down in D.S. Nakara (supra) has not been applied holding that the employees recruited prior to the cut off date form a class in itself and Articles 14 and 16 of the Constitution are not attracted. In Transport Manager, Pune Municipal Transport Undertaking vs. Basant Gopal Bhagwat & Ors. (26); State of West Bengal vs. Monotosh Roy & Anr. (27); and Tamil Nadu Electricity Board vs. R. Veerasamy and Ors. (28), the same view has been reiterated. ;