(2012) 233 KLR 053 IN THE HIGH COURT OF KERALA AT ERNAKULAM
T. R. RAMACHANDRAN NAIR, J. W.P. (C) No. 7569, 23346, 37644 of 2008 Dated this the 5th day of January, 2012 Head Note:- Service Law - Pay Revision - There is nothing to show that any of the relevant statutes confer a right on the Government employees and teachers, etc. to have a pay revision, that too at the end of every fifth year. The appointment of Pay Revision Commissions is also not based on any provision under any particular statute. It can only be in terms of the executive power available to the State under Article 162 of the Constitution of India. The Pay Revision Commission cannot therefore be described as a statutory body. It is not one appointed under the Commission of Inquiries Act, 1952 also. Therefore, as far as fixation of pay scales are concerned, it is only an executive function. The Government leaves it to an expert body like Pay Revision Commission to go into various aspects, after reference to social factors and other general conditions, including the paying capacity of the State. Service Law - Pay Revision - There is no legal right as far as the employees and teachers, etc. are concerned to have a pay revision on the expiry of every five years. The practice claimed cannot mature into a legally enforceable right at all. Constitution of India, 1950 – Article 226 - Normally with regard to the deliberation of an expert body like the Pay Revision Commission, the Courts will be slow in interfering with their recommendations, unless it is so arbitrary and whimsical. Service Law - Pay Revision - There can be different considerations, viz. economic conditions, financial constraints, administrative exigencies, etc. in fixing a cut-off date and the Court should not normally interfere with the same. It is not as if the cut-off date if fixed from the hat and that it has no nexus with the object sought to be achieved. The power to fix a date to effect the pay revision is a concomitant of the power to revise salaries and pension. In that view of the matter, it cannot be said that the entire exercise done by the Government will be so arbitrary or unreasonable warranting interference by this Court. Service Law - Pay Revision - Cut-off date - Absence of reasons for fixing a cut-off date, may not result in an adverse conclusion on its legality. It will have to be adjudged after analysing the relevant aspects including the nature of the benefits granted and the like. Constitution of India, 1950 – Articles 14 and 39(d) - The petitioners cannot automatically insist that all the benefits granted to the existing employees by effecting the pay revision from 01-07-2004, will have to be applied to them. Evidently, the retirees upto 30-06-2004 and the persons in service from 01-07-2004 do not form the same homogeneous class. Service Law - Pay Revision - Court cannot substitute the date 01-07-2004 as 01-03-2002 on any account. Judicial Review could be exercised only to see whether the date chosen is arbitrary or not. Chronological List of Cases Cited:-
For Petitioners:-
For Respondents:-
J U D G M E N T 1. In all these writ petitions the various complaints regarding the implementation of the VIIIth Pay Revision Order in the year 2004 arise for consideration and therefore they are disposed of together. The petitioners have contended that the date of effect as 01-07-2004 is illegal and arbitrary and the same should have been made effective from 01-03-2002. 2. The VIIIth Pay Revision order was implemented with effect from 01-07-2004. The five year period of the VIIth Pay Revision order came to an end on 29-02-2002. The petitioners are retirees who had continued in service from 01-03-2002 and retired from service upto 30-06-2004. Their main grievance is regarding the alleged discrimination in not implementing the pay revision with effect from 01-03-2002. Certain allied contentions are also there. 3. Heard learned Senior Counsel Shri M. K. Damodaran appearing for the petitioners in W.P. (C) No. 7569/2008, Smt. V. P. Seemanthini, learned Senior Counsel appearing for the petitioners in W.P. (C) No. 23346/2008 and Shri Parthasarathi, learned counsel for the petitioners in W.P. (C) No. 37644/2008 and the learned Government Pleader Smt. Nisha Bose for the respondents. 4. Learned Senior Counsel appearing for the petitioners in W.P. (C) No. 7569/2008, Shri M. K. Damodaran elaborated the contentions raised by the petitioners therein. The facts of the case show that the first petitioner is a registered association of retired Government Employees, Teachers and Staff of Aided Educational Institutions and petitioners 2 to 15 are retired employees. It is mainly point out that the policy of the Government is to have revision of pay of Government employees and teachers by every 5th year which was consistently being followed from the year 1968 till 29-02-2002. The Pay Revision Commission was appointed by the Government as per GO (MS) No. 115/2005 / Fin. dated 14-03-2005. They had to consider the pay revision from 29-02-2002, but recommended implementation of the same only from 01-07-2004. It is pointed out that the normal practice ought to have been followed herein and there is no rationale in adopting 01-07-2004 as the date of implementation and therefore it is arbitrary and violative of Article 14 and Article 16 of the Constitution of India. A group of employees who had retired from service from 01-03-2002 to 30-06-2004 did not get the benefit of the VIIIth Pay Revision Commission's recommendation. The date of effect recommended by the Pay Revision Commission ought not have been automatically accepted by the Government and by the adoption of the date as 01-07-2004, 35000 and odd employees have been denied the benefit of the pay revision. The stand taken by the Government that huge financial liability would have occurred if it is implemented retrospectively from 01-03-2002, is not correct. The denial of benefits violates Article 14, Article 16 as well as Article 39(d) of the Constitution of India. The common practice followed by the State from 1968 ought to have been adopted. Ext. P2 is the introductory chapter of the Pay Revision Report and Ext. P3 is the Government Order dated 25-03-2006 by which the Government approved the recommendation of the Pay Commission. Ext. P4 is the representation submitted by the petitioners for reconsidering the matter. Exts. P5 and P6 are copies of answers given in the Legislative Assembly. The petitioners are relying upon Exts. P7 to P9, the copies of Editorials appeared in certain Dailies, which support their case. 5. It is submitted that there is great disparity in the terminal benefits as regards persons who have retired on 30-06-2004 and 31-07-2004 and in the same rank. The persons retired on 30-06-2004 gets only the benefits of Pay Revision Order of 25-11-1998 and persons of the same cadre who retired on 31-07-2004 will be entitled for the benefits under the Pay Revision Order of 25-03-2006 which was implemented from 01-07-2004. It is submitted that the same amounts to gross discrimination. 6. Learned Senior Counsel for the petitioners in W.P. (C) No. 7569/2008 Shri. M. K. Damodaran by relying upon the excerpts from the IVth Pay Revision Commission Report, elaborated the history with regard to the appointment of Pay Revision Commissions, the principles thereon and other matters. Emphasis was laid on the fact that there was a practice to appoint Pay Revision Commission during the interval of five years in the State and ten years in the Centre. It is submitted that the said practice had matured into a binding one and therefore the employees had acquired a right for the pay revision to be effected every five years. Learned Senior Counsel submitted that after the submission of the Pay Revision Commission's report an issue arose with regard to the implementation of the same in the light of the Model Code of Conduct published by the Election Commission which was taken up before this Court in W.P. (C) No. 6668/2006. In the judgment rendered therein, the resolution of the Kerala Legislative Assembly dated 15-03-2006 has been extracted, which will also support the case of the petitioners that pay revision is due every five years. It is therefore submitted that the Cabinet while implementing the same, ought not have accepted the recommendation of the Pay Revision Commission to implement it from 01-07-2004. 7. It is further pointed out that persons who were continuing in service from 01-03-2002 to 30-06-2004 and have retired during this period and persons who are the beneficiaries of the pay revision order from 01-07-2004 form a homogeneous class. Since all these persons form a homogeneous class, the benefit of the pay revision cannot be denied by arbitrarily fixing a cut - off date. The pay revision was due for all these classes of persons. Herein by implementing it only from 01-07-2004, the persons who had to be covered by the pay revision from 01-03-2002 to 30-06-2004 are taken out of the same which is arbitrary and violative of Article 14 of the Constitution of India. Various decisions of the Apex Court including the decision of the Constitution Bench in D.S. Nakara and Others Vs. Union of India, (1983) 1 SCC 305 and other decisions following the principles stated therein, were relied upon in this context. Thus, the forceful argument projected by the learned Senior Counsel for the petitioners is that as far as retirees for the period from 01-03-2002 to 30-06-2004 are concerned, they are getting pension only based on the pay which they were earning as per the pay revision order which was implemented from 01-03-1997. It makes a lot of difference as far as retirees upto 30-06-2004 and persons who retired from 01-07-2004 are concerned. It is submitted that by putting such an artificial barrier persons who are similarly placed are denied the due benefits which has resulted in great disparity. Learned Senior Counsel invited my attention to the principle of equal pay for equal work under Article 39(d) of the Constitution and submitted that persons who were working in the same cadre and rank cannot be denied such rights. Thus, it is pointed out that persons retiring in same rank are treated differently and are denied benefits without any justification. It is also pointed out that the Government, in not considering the grievances of the petitioners, has lend a deaf ear by taking recourse to the plea that it will add huge financial burden, which also is not correct. It is pointed out that during the pendency of the writ petitions the Government passed a fresh order as far as the pensioners are concerned, as per GO (P) No. 602/2010 / Fin. Dated 19-11-2010 which is produced as Ext. P15 in W.P. (C) No. 7569/2008. By the said order even though certain benefits have been granted, it is only effective from 01-04-2009 and the benefits are only marginal and therefore the same does not satisfy the demands of the petitioners. 8. The petitioners in W.P. (C) No. 23346/2008 consist of an Association as well as persons who have retired from service between 01-03-2002 to 30-06-2004. The petitioners in W.P. (C) No. 37644/2008 include an Association and other similarly placed retirees. 9. Learned Senior Counsel for the petitioners in W.P. (C) No. 23346/2008, Smt. V. P. Seemanthini supported the arguments raised by learned Senior Counsel Shri. M. K. Damodaran. It is further pointed out that actually persons like the petitioners are entitled for the benefits of pay revision itself, apart from pension revisions. It is argued that the classification adopted is unreasonable and discriminatory. There is violation of Article 39(d) and Article 43 of the Constitution. Various decisions of the Apex Court were cited in support of the argument. Both the learned Senior Counsel submitted that by implementing the pay revision from 01-03-2002, there will not be huge financial burden for the Government apart from the fact that the petitioners' right for such revision of pay cannot be taken away by the arbitrary fixation of the cut - off date. 10. As far as W.P. (C) No. 37644/2008 is concerned also, the same reliefs have been sought for. Learned counsel Shri. Parthasarathy explained the detailed grounds taken therein. Shri. Damodaran, learned Senior Counsel further submitted that if due weightage is given, it will redress the grievance of the petitioners in a long way. 11. Before going into the niceties of the questions posed, I will briefly refer to the historical background relied on by the petitioners. In the IVth Pay Revision Commission's Report, Chapter III contains various historical aspects relating to the efforts taken by the various Governments for redressing the grievance of the Government employees and teachers under different strata. It shows that after the State was formed on 01-11-1956, the first attempt was taken in March 1957 for unifying the pay scales of employees of the State to be effective from 01-11-1956. Orders were passed in respect of various sections, viz. gazetted officers, primary school teachers, aided school teachers and nurses, etc. initially. The Pay Revision Committee appointed for the task was headed by Shri. R. Sankaranarayana Iyer, Retired Judge of the Travancore High Court, which was appointed in September, 1957. New pay scales became effective from 01-04-1958. During the succeeding years, it appears that Pay Commissions were being appointed during different intervals. In January 1965, the first one chaired by Shri. K. M. Unnithan, ICS (Ex.Chief Secretary of the Government of Andhra) was appointed. In 1968, it was chaired by Shri. V. K. Velayudhan, former Chairman, Kerala Public Service Commission. There was another revision in 1974, based on the recommendation of a Sub Committee of Council of Ministers. In 1977, the Third Pay Commission, namely, a Single Member Commission was formed and Shri. N. Chandrabhanu, Ex - Chief Secretary of the State was appointed as the Commission. The fourth one was in 1983 which was chaired by former Chief Justice Shri. V. P. Gopalan Nambiar, the Vth one was chaired by Justice T. Chandrasekhara Menon, the next one by Shri. G. Gopalakrishna Pillai, followed by the one headed by Shri. P. M. Abraham in 1997. In para 15 of Chapter III of the above mentioned report, after tracing out the various historical factors, in sub-para (ii) it is noted as follows: "The timing of the present Pay Commission calls for notice. It seems to be the practice to appoint these commissions at intervals of (roughly) ten years in the Centre, and (roughly) at intervals of 5 years in our State." This observation is heavily relied upon by the learned Senior Counsel for the petitioners for contending that the said practice ought to have resulted in implementation of the VIIIth Pay Commission report from 01-03-2002. 12. The effective dates of the various pay revisions were 01-04-1958, 01-01-1966, 01-07-1968, 01-07-1973, 01-07-1983, 01-07-1988 and 01-03-1992 which fact is recorded in para 6.2 of Chapter VI of the Pay Commission report in 1997, wherein the date of effect was 01-03-1997. Therein also, it is mentioned that the intervals have generally been five years between two revisions but the 1992 revision took place after 3 years and 8 months. In the said part of the Report, after stating various aspects for implementing the said pay revision, the Commission was of the view that the effective date can be 01-03-1997 which will mark the expiry of five years since the last revision. This is also relied upon by the learned Senior Counsel for the petitioners. 13. Now I will come to the decision of the Division Bench in W.P. (C) Nos. 6668/2006 and 6829/2006. The said writ petitions were filed by the Kerala Land Revenue Staff Association and another challenging the decision of the Election Commission to put on hold the decision to implement the recommendations of the Pay Commission. During the course of discussion of various matters, the Bench referred to the resolution adopted by the Legislative Assembly on 15-03-2006. The resolution was one addressed to the Central Election Commission to give permission to implement the Pay Commission's recommendations, in the light of the declaration in the Budget Speech of the Finance Minister made on 10-02-2006. The following is the body of the resolution: "This Legislative Assembly request to the Central Election Commission to grant permission to implement immediately the recommendations of Pay Revision Commission in the circumstance that, it has been declared in the Budget Speech of the Finance Minister in the Legislative Assembly on 10-02-2006 in respect of the pay revision, which was to be given on 01-03-2002 in Kerala where the principle of implementation of pay revision once in every 5 years is accepted, and the required amount is allocated in 2006-2007 Budget. The Cabinet meeting held on 1st March 2006 accepted the recommendations of the Pay Revision Commission in principle and deferred it for the consideration of the Special Cabinet meeting of 2nd March. This Legislative Assembly unanimously request to the Election Commission to grant approval for the decision of the Government that, the recommendations of the pay revision commission submitted on 22-02-2006 to the Government alone need be implemented, in the circumstance that the declaration of election has been issued." The Bench was of the view that the restrictions imposed by the Election Commission on the basis of the Model Code of Conduct of election cannot be accepted. 14. The larger questions therefore are mainly whether: (i) Revision of pay is due in every five years; and (ii) The cut - off date fixed is arbitrary. I shall discuss these points, now, but separately. 15. (i) Pay revision, if to be effective every five years. Before I dwell on the said question, another important question that arises is whether the right to have a pay revision, is a statutory one. The nature of the power exercised by the Government in appointing the Pay Revision Commission is also important while considering this issue. 16. No particular statutory provision covers the field. There is nothing to show that any of the relevant statutes confer a right on the Government employees and teachers, etc. to have a pay revision, that too at the end of every fifth year. The appointment of Pay Revision Commissions is also not based on any provision under any particular statute. It can only be in terms of the executive power available to the State under Article 162 of the Constitution of India. The Pay Revision Commission cannot therefore be described as a statutory body. It is not one appointed under the Commission of Inquiries Act, 1952 also. Therefore, as far as fixation of pay scales are concerned, it is only an executive function. The Government leaves it to an expert body like Pay Revision Commission to go into various aspects, after reference to social factors and other general conditions, including the paying capacity of the State. The question whether the date for implementation of a new pay revision should be from a date which should tally with the expiry of the fifth year of the pay revision order previously effected, is therefore to be considered in the light of these vital aspects. The issue is no longer res integra in the light of the decision of the Apex Court in Chandrasekhar A.K. Vs. State of Kerala and Another, (2009) 1 SCC 73 : 2008 (4) KLT 597 : 2008 (4) KHC 784, relied upon by the learned Government Pleader, Smt. Nisha Bose. Therein, in para 18 it has been held thus: "18. The question as to whether the scale of pay would be revised or not is a matter of policy decision for the State. No legal right exists in a person to get a revised scale of pay implemented. It may be recommended by a body but ultimately it has to be accepted by the employer or by the State, who has to bear the financial burden." Therefore, essentially it is a policy decision of the State and no legal right exists in a person to get a revised scale of pay implemented. It is upto the Government to accept or reject a particular recommendation of the Pay Revision Commission and the absolute freedom is for the State in the matter. Therefore, even though there was a practice (except the one in 1992 which was after 3 years and 8 months) as far as implementation of pay revision from 01-04-1958 is concerned to give effective dates roughly after the expiry of the five years of the previous revision, it cannot be said that automatically the employees get a right to have a pay revision on the expiry of the fifth year. The appointment of Pay Revision Commission being an executive fiat of the State, and as the Commission cannot be described as a statutory body and since the appointment of the Commission as well as the implementation of their recommendation amounts to a policy decision of the State, as held by the Apex Court in Chandrasekhar's case, (2009) 1 SCC 73 it can be safely concluded that there is no statutory right vested on the employees to have a pay revision on the expiry of the fifth year of the last pay revision. 17. The history of pay revisions effected in the State therefore may not help to advance the case of the petitioners that it was due on completion of every fifth year. Of course various Commissions have been appointed from time to time during a span of five years roughly and evidently, as noticed already, in 1992 the pay revision was effected after 3 years and 8 months. Therefore, 5th year practice was not followed therein also. Therefore, the decision whether it should be a lesser term, namely, below five years or whether it should be five years or above, comes within the realm of policy of the State. There is no legal right as far as the employees and teachers, etc. are concerned to have a pay revision on the expiry of every five years. The practice claimed cannot mature into a legally enforceable right at all. Hence as contended by the petitioners, the date for implementation need not be 01-03-2002, and the choice is of the Government. 18. (ii) Choice of the date 01-07-2004, whether an arbitrary one. The date 01-07-2004 is one recommended by the Pay Commission. In Ext. P2 produced in W.P. (C) No. 7569/2008, para 1.17 dealing with the same reads as follows: "The demands of most of the Unions / Associations were that the new pay scales should be effective from 01-03-2002 on the ground that the five year period after the effective date of the previous Pay Revision Commission is over on that date. This demand has however not found favour with the Commission. The new pay structure has been evolved by merging 59% of DA to the basic pay and then stepping it up by a fitment which is in consonance with the pattern of the change of the pay structure at the Central Government. At the Centre, the change was effected with effect from 01-04-2004 when 50% of DA was set apart as dearness pay. Pay plus Dearness Pay constituted the basic pay from 01/04/2004. There is therefore no case for granting revision in our State on a date earlier than 01-04-2004. In Kerala, where there are a large number of teachers in educational institutions including aided institutions, revision of pay structure effective from the Ist of July has been found to be more appropriate. The Commission would therefore recommend that the revised pay scales may be granted from 01-07-2004 but that arrears from 01-07-2004 to 31-03-2005 may be treated as notional and actual monetary benefit be granted with effect from 01-04-2005 after adjusting the interim relief." The date 01-07-2004 is suggested therein on different grounds. They are: (a) the new pay structure has been evolved by merging 59% of DA to the basic pay and then stepping it up by a fitment which is in consonance with the pattern of the change of the pay structure at the Central Government and at the Centre the change was effected with effect from 01-04-2004 when 50% of DA was set apart as dearness pay; (b) In the light of the above, there is no case for granting a revision in the State earlier than 01-04-2004; and (c) Since there are large number of teachers in educational institutions including aided institutions, the revision of pay can be effective from Ist of July. 19. The Government accepted the report of the Pay Commission by issuing order dated 25-03-2006, produced as Ext. P3. Therein, in para 5 it is stated that "the existing scales of pay will be revised with effect from 01-07-2004" and finally, in para 53, the date of effect is given as the following: "Date of effect of revised scales will be from 01-07-2004. Date of effect of revised time bound higher - grade scheme, various allowances and other benefits (except surrender of earned leave) will be from 01-03-2006. Date of effect of improved ratio / percentage based higher grades will be from the date of this order. Modification to R.28A and R.37(a) Part I KSR (vide clauses 47 to 52 above) will apply to promotions, etc. taking place after the date of this order." The background of the choice of the date as 01-07-2004 in these. The question is whether the same is arbitrary. 20. With regard to the fixation of a cut of date, in various decisions of the Apex Court, the relevant questions have been examined. Herein, as already noticed, the status of the Pay Revision Commission is that of an expert body. The principle which has been evolved in various decisions will also show that normally with regard to the deliberation of an expert body like the Pay Revision Commission, the Courts will be slow in interfering with their recommendations, unless it is so arbitrary and whimsical. While considering the effect of the recommendations of the Pay Commission, the Apex Court in Secretary, Finance Department and Others v. West Bengal Registration Service Association and Others, 1993 Supp (1) SCC 153 examined and laid down the limits of the power of the Court to go into the validity of such recommendations of the Pay Commission. In para 12, it was held thus: "We do not consider it necessary to traverse the case law on which reliance as been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees...................There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice." Of course, the above observations were made while considering the scope of interference on the principles adopted by the Pay Commission, but these principles will have to be borne in mind while considering the questions posed herein and the validity of the recommendation made by the Commission in Ext. P2, regarding the date of effect. 21. As regards fixation of cut - off date and the scope of interference by Courts, the relevant principles were examined in State of West Bengal and Others Vs. Ratan Behari Dey and Others, (1993) 4 SCC 62 in paragraphs 7, 8 and 9 and finally it was held thus: "It is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and / or the pay scales as also terminal benefits / pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits / pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. The State can specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they might specify. Only condition is that in such cases the State cannot pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. So long as such date is specified in a reasonable manner, i.e. without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf on ground of discrimination." (Emphasis supplied). Herein, the principles stated in D.S. Nakara's case, (1983) 1 SCC 305 have been distinguished. The relevant principles laid down by the Apex Court therein would show that it is the power of the employer to revise the salaries and / or the pay scales as also terminal benefits / pensionary benefits. Therefore, the power to fix a cut - off date is the concomitant of the said power. The date has to be fixed in a reasonable manner. 22. Relying on the above decision, in a later case in State of Rajasthan and Another v. Amrit Lal Gandhi and Others, AIR 1997 SC 782 it was held that financial impact can be a sole consideration while fixing the cut - off date. 23. In this context, Shri Damodaran relied upon the decision of a Constitution Bench of the Apex Court in D.S. Nakara's case, (1983) 1 SCC 305. Para 42 of the said judgment reads as follows: "If it appears to be indisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision, permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind if for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the manner of pension? One retiring a day earlier will have to be subject to ceiling of Rs.8100 p.a. And average emolument to be worked out on 36 months; salary while the other will have a ceiling of Rs.12,000 p.a. And average emolument will be computed on the basis of last 10 months; average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact, this arbitrary division has not only no nexus to the liberalised pension scheme but it is counterproductive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours' difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14." Of course, the principles stated therein would show that when the pensioners form a class, such a homogeneous class cannot be divided by arbitrarily fixing an eligibility criteria. It was held that the classifications in such cases will not stand the test of Article 14 of the Constitution. The said decision of the Apex Court was considered in various later decisions with regard to the universal applicability of the principles stated, as quoted above. In fact, the said judgment considered a case where a liberalized pension scheme was introduced for computation of pension as far as pensioners are concerned. The said liberalized pension formula was made applicable prospectively to those who were in service and retired on or after March 31, 1979 in respect of Government employees. Therefore, actually it was the liberalization of an existing formula and it was not the introduction of a new formula. This is the distinguishing feature as far as the said case is concerned, as explained by the Apex Court in subsequent decisions including Constitution Bench decisions. In fact, in para 46 of the judgment in Nakara's case (supra), it was held thus: "And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benefit. It is an upward revision of an existing benefit. If it was a wholly new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not expect it." These observations are quite important. 24. I shall now refer to certain decisions of the Apex Court wherein the principles stated in Nakara's case (supra) have been explained and distinguished. In Union of India Vs. P. N. Menon and Others, (1994) 4 SCC 68 the dictum laid down in D.S. Nakara's case, (1983) 1 SCC 305 was distinguished. While considering the question whether a cut - off date fixed can be termed as arbitrary, the relevant principles were laid down thus in para 8: "Whenever the Government or an authority, which can be held to be a State within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service; due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post - retirement benefits, if implemented with a cut - off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to "picking out a date from the hat", as was said by this Court in the case of D.R. Nim v. Union of India, AIR 1967 SC 1301 in connection with fixation of seniority. Whenever a revision takes place, a cut - off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government." (Emphasis supplied) It will be evident from the said paragraph that the financial resources available to the Government is also a relevant criterion. It was held further thus in para 14 wherein the explanation given by the Central Government with regard to the choice date, was accepted. "According to us, for the reasons disclosed on behalf of the appellant - Union of India for fixing 30-09-1977 as the cut - off date, which date was fixed when the price index level was 272, cannot be held to be arbitrary. The decision to merge a part of the dearness allowance with pay, when the price index level was at 272, appears to have been taken on basis of the recommendation of the Third Pay Commission. As such it cannot be held that the cut - off date has been selected in an arbitrary manner. Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut - off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay scale of its employees and fixes the lst day of January of the next year for implementing the same or the Ist day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before this date. An employee, who has retired on 31st December of the year in question, will miss the pay scale only by a day, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the Court should only be, while examining any such grievance, to see, as to whether a particular date for extending a particular benefit or scheme, has been fixed, on objective and rational considerations." Therefore, it is evident that whenever the Government fixes the date of implementation of a pay revision order starting from the first day of a month, any employee who retired on 31st of the previous month, will miss the new pay scale which may affect the pensionary benefits. But such alone shall not be the consideration, going by the principles stated by the Apex Court in the above decision. In taking this view, the Apex Court relied upon two decisions of the Constitution Benches, viz. Krishena Kumar v. Union of India, (1990) 4 SCC 207 and Indian Ex - services League v. Union of India, (1991) 2 SCC 104 both of which explained and distinguished the principles laid down in D. S. Nakara's case (supra). In fact, the Constitution Bench in Indian Ex - services League's case (supra) held that the conclusion in D. S. Nakara's case (supra) was in the context of the benefits of liberalization given in accordance with the liberalized pension scheme which had to be given equally to all retirees irrespective of their date of retirement and those benefits could not be confined to only persons who retire on or after a specified date. In Amrit Lal Gandhi's case, AIR 1997 SC 782 the Apex Court, after considering the dictum laid down in Ratan Behari Dey's case (supra) and P. N. Menon's case (supra) held in paragraph 17 that "financial impact of making the regulations retrospective, can be the sole consideration while fixing a cut - off date. In our opinion, it cannot be said that this cut - off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petition by substituting the date 01-01-1986 by 01-01-1990." 25. In State of W.B. Vs. Monotosh Roy and Another, (1999) 2 SCC 71 an officer who retired long prior to the acceptance of the Pay Commission's recommendations which provided revised pension, sought for the benefit of the same by contending that the cut - off date fixed is arbitrary. The Bench noticed that the new provision for payment of pension was only consequent to the restructuring of the pay scale. Therein, in para 10 the legal position was explained thus: "We have already referred to the fact that the new provisions for payment of pension introduced by the amendment of 1987 were only consequent to the restructuring of the pay scales of the members of the Service. The Division Bench of the High Court has recognized the position that the writ petitioner cannot claim benefit of higher pay scale, having retired from service long before the introduction of such pay scales." The decisions of the Apex Court in D.S. Nakara's case, (1983) 1 SCC 305 was explained and reliance was placed on various decisions including P.N. Menon's case, (1994) 4 SCC 68 and Amrit Lal Gandhi's case, AIR 1997 SC 782. Similar is the case considered by the Apex Court in State of Punjab and Others v. Boota Singh and Another, (2000) 3 SCC 733 wherein also the petitioners sought the benefits conferred by orders / notifications issued subsequent to their retirement. It was held that conferment of additional benefits from a particular date, cannot be termed as arbitrary. It was held thus in paragraph 7: "On merits we find that the retirement benefits which are claimed by the respondent are benefits which are conferred by subsequent orders / notifications. Therefore, persons who retired after the coming into force of these notifications and order are governed by different rules of retirement than those who retired under the old rules and were governed by the old rules. The two categories of persons, who retired were governed by two different sets of rules. They cannot, therefore, be equated. Further, granting of additional benefits has financial implications also. Hence, specifying the date for the conferment of such additional benefits cannot be considered as arbitrary." Obviously, the fact that the two sets of persons are governed by different set of rules was emphasised, to drive home the point. Another important factor is that the Apex Court was of the view that granting of additional benefits will result in financial implications and therefore the specification of the date cannot be considered as arbitrary. Therein also, D. S. Nakara's case (supra) was explained and it was held thus in para 8: ".........The latest decision is in the case of K.L. Rathee Vs. Union of India, 1997 (6) SCC 7 where this Court, after referring to various judgments of this Court, has held that Nakara case, 1983 (1) SCC 305 cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same......." It may be worth mentioning here that it was a case where, the new benefits were granted to retirees on or after 31-03-1985, whereas the petitioners therein retired in the year 1982. 26. I will now refer to some of the recent decisions also wherein the same view has been taken, after elaborately considering the decision in D. S. Nakara's case (supra). 27. In State of Punjab Vs. Amar Nath Goyal, (2005) 6 SCC 754 the cut - off date was adopted to give benefits to the retirees on or after 01-04-1995 and one of the reasons pointed out by the Government was financial constraints which was held to be a valid ground by the Apex Court. A reading of the judgment will show that the new benefits were granted based on the recommendation of the Pay Commission. In paragraph 26 the legal position was explained as follows: "It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government / State Governments to limit the benefits only to employees, who retire or die on or after 01-04-1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level." Thus, it is important to notice that financial and economic implications are always relevant as far as evolving of any policy decision touching the administration of the Government at Central and State level. Therein also, it was held that the Pay Commission's recommendations were not always binding on the Government. In fact, in that case also the cut - off date was suggested by the 5th Pay Commission and the acceptance of the same by the Government was held to be not irrational or arbitrary or infringement of the right under Article 14 of the Constitution of India. The said view is clear from the following findings in paragraph 28: "As we have already noticed, 01-04-1995 was the date suggested by the Fifth Central Pay Commission ("Pay Commission") in its Interim Report. The Central Government took a conscious stand that the consequential financial burden would be unbearable. It, therefore, chose to taper down the financial burden by making the benefits available only from 01-04-1995. It is trite that, the final recommendations of the Pay Commission were not ipso facto binding on the Government, as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position. This is precisely what the Government did. Such an action on the part of the Government can neither be characterised as irrational, nor as arbitrary so as to infringe Article 14 of the Constitution." The above principle will be of much application in the facts and circumstances of the present cases. In fact, various decisions of the Apex Court starting from D.S. Nakara's case (supra) and followed by P.N. Menon's case (supra) and other decisions were discussed while arriving at the said conclusion and finally from paragraphs 31 to 37 various judgments were discussed and it was held that the cut - off date 01-04-1995 was fixed based on a very valid ground, viz. financial constraint. For easy reference the said paragraphs are reproduced below: "31. In Action Committee South Eastern Rly. Pensioners Vs. Union of India, 1991 Supp (2) SCC 544, it was held that on merger of a part of dearness allowance as dearness pay on Average Price Index Level at 272 with reference to different pay ranges, fixing a cut - off date in such a manner was not arbitrary and the principle enunciated in D.S. Nakara, 1983 (1) SCC 305, was not applicable. In this connection, the ratios in Krishena Kumar Vs. Union of India, 1990 (4) SCC 207, Indian Ex - Services League Vs. Union of India, 1991 (2) SCC 104, State Govt. Pensioners Assn. Vs. State of A.P., 1986 (3) SCC 501 and All India Reserve Bank Retired Officers'Assn. Vs. Union of India, 1992 Supp (1) SCC 664 are apt. In all these cases, the prescription of a cut - off date for implementation of such benefits was held not to be arbitrary, irrational or violative of Article 14 of the Constitution. 32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan Vs. Amri Lal Gandhi, AIR 1997 SC 782 this Court went so as far as to note that: "Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut - off date. In our opinion, it cannot be said that this cut - off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 01-01-1986 for 4 01-01-1990." at AIR p.784 para 17. 33. More recently, in Veeraswamy, 1999 (3) SCC 414 this Court observed that, financial constraints could be a valid ground for introducing a cut - off date while implementing a pension scheme on a revised basis (SCC page 421). In that case, the pension scheme applied differently to persons who had retired from service before 01-07-1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes. 34. In State of Punjab Vs. Boota Singh, 2000 (3) SCC 733 ("Boota Singh") after considering several judgments of this Court in D.S. Nakara, 1983 (1) SCC 305 to K.L. Rathee Vs. Union of India, 1997 (6) SCC 7, it was held that D. S. Nakara should not be interpreted to mean that the emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. (SCC at page 735) 35. In State of Punjab Vs. J.L. Gupta, 2000 (3) SCC 736, where one of us was on the Bench (Sabharwal, J.) the views expressed in Boota Singh were reiterated, and it was held that for the grant of additional benefit, which had financial implications, the prescription of a specific date for conferment of additional benefit, could not be considered arbitrary. (SCC at page 737) 36. In Ramrao Vs. All India Backward Class Bank Employees Welfare Assn., 2004 (2) SCC 76, a Division Bench of this Court said, even for the purpose of effecting promotion, fixing of a cut - off date was neither arbitrary, unreasonable nor did it offend Article 14 of the Constitution. Moreover, the Court held that possible hardship to be endured by a person as a result did not make cut - off dates violative of Article 14. (SCC at page 88) 37. In the instant case before us, the cut - off date has been fixed as 01-04-1995 on a very valid ground, namely, that of financial constraints. Consequently, we reject the contention that fixing of the cut - off date was arbitrary, irrational or had no rational basis or that it offends Article 14." Herein also, the Government's stand is that by adopting the date 01-03-2002 will result in huge financial liabilities to the Government. Going by the dictum laid down in the above said case, the said stand cannot be said to be irrational and consequently the cut - off date fixed cannot be said to be arbitrary. 28. The above decision of the Apex Court was relied upon in State of A.P. and Another Vs. A.P. Pensioners' Association and Others, (2005) 13 SCC 161. Therein, it was held that financial constraint is a relevant criterion for determining grant of benefits by a State Government by fixing a cut - off date. The said case also was one which considered the implications of Pay Revision Commission's recommendation and the argument regarding the arbitrary nature of the cut - off date was repelled by relying upon the judgment in Amar Nath Goyal's case, (2005) 6 SCC 754 and it was held thus in paragraph 39: "It is, therefore, beyond any shadow of doubt that the financial implication is a relevant criterion for the State Government to determine as to what benefits can be granted pursuant to or in furtherance of the recommendations made by PRC. PRC also said that while revision of pay shall take effect from 01-07-1998, the monetary benefit would be payable only from 01-04-1999. If monetary benefit was payable only from 01-04-1999, all rights to get the benefits computed on the basis of the revised scale of pay would only be for the purpose of payment of pay with effect from 01-04-1999 or payment of the recurring amount of pension with effect from that date." 29. In Government of A.P. Vs. Subbarayudu, 2008 (2) KLT 681 (SC) these principles were reiterated in paragraphs 4 to 7 as follows: "4. In a catena of decisions of this Court it has been held that the cut - off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut - off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut - off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See - State of Punjab and Others Vs. Amar Nath Goyal and Others, 2005 (6) SCC 754) 5. No doubt in D.S. Nakara and Others Vs. Union of India, (1983) 1 SCC 305 this Court had struck down the cut - off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara's case (supra), as observed in para 29 of the decision of this Court in State of Punjab and Others Vs. Amar Nath Goyal and Others (Supra). 6. There may be various considerations in the rnind of the executive authorities due to which a particular cut - off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut - off date. The Government must be left with some leeway and free play at the joints in this connection. 7. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut - off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter - affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide - State of Bihar Vs. Ramjee Prasad, 1990 (3) SCC 368, Union of India and Another Vs. Sudhir Kumar Jaiswal, 1994 (4) SCC 212(vide para 5), Ramrao and Others Vs. All India Backward Class Bank Employees Welfare Association and Others, 2004 (2) SCC 76 (vide para 31), University Grants Commission Vs. Sadhana Chaudhary and Others, 1996 (10) SCC 536) etc. It follows, therefore, that even if no reason has been given in the counter - affidavit of the Government or the executive authority as to why a particular cut - off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 4 unless the said cut - off date leads to some blatantly capricious or outrageous result." The above decision will show that there can be different considerations, viz. economic conditions, financial constraints, administrative exigencies, etc. in fixing a cut - off date and the Court should not normally interfere with the same. 30. Even if no particular reason is given, the cut - off date fixed cannot be termed as arbitrary. This legal position was explained and reiterated in a recent decision of the Apex Court in Orissa Power Transmission Corporation Limited Vs. Khageswar Sundaray and Others, (2011) 8 SCC 269 by relying upon earlier decisions of the Apex Court, and it was held thus in paragraphs 14 and 15: "14. This Court in State of Bihar Vs. Ramjee Prasad, (1990) 3 SCC 368 held: (SCC pp.373-74, para 8) "8. ... The choice of the date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark." 15. In a recent case in National Council for Teacher Education Vs. Shri. Shyam Shiksha Prashikshan Sansthan, 2011 (3) SCC 238 this Court after referring to various earlier authorities on the point in Sushma Sharma (Dr.) Vs. State of Rajasthan, 1985 Supp SCC 45, UGC Vs. Sadhana Chaudhary, 1996 (10) SCC 536, Ramrao Vs. All India Backward Class Bank Employees Welfare Assn., 2004 (2) SCC 76 and State of Punjab Vs. Amar Nath Goyal, 2005 (6) SCC 754, has reiterated this position of law and has held the cut - off dates specified in Clauses (4) and (5) of Regulation 5 of the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 to be valid." Hence, absence of reasons for fixing a cut - off date, may not result in an adverse conclusion on its legality. It will have to be adjudged after analysing the relevant aspects including the nature of the benefits granted and the like. 31. A Division Bench of this Court recently, in a similar matter did not interfere with the cut - off date fixed by the Kerala State Electricity Board for limiting the benefit of pay revision to its employees, in Kerala State Electricity Board and Others Vs. P. N. Raghukumar and Others, 2011 (4) KHC 900. Therein, the facts of the case show that the respondents retired from the service of the Board in the year 2003 and after their retirement pay revision order was implemented, resulting in consequent increase in DCRG and rate of commutation of pension. The learned Single Judge interfered with the cut - off date fixed and the Division Bench, after examining the principles laid down in the decision of the Apex Court in Nakara's case, (1983) 1 SCC 305 relied upon P.N. Menon's case, (1994) 4 SCC 68 and other decisions, and held that the cut - off date fixed based on financial constraints and economic conditions, cannot be said as arbitrary. It was held thus in para 5: "5.........We find that the cut - off date fixed by the appellants in Ext. P1 keeping in view of the economic conditions, financial constraints and other administrative and attending circumstances is neither arbitrary nor discriminatory nor illegal. The appellants are justified in fixing a cut - off date to limit the benefit of revision and the learned Single Judge went wrong in interfering with the order impugned." 32. In the light of the above principles, it can be seen that there cannot be any blind and automatic or universal application of the principles stated by the Apex Court in Nakara's case(supra), wherein the liberalization of an existing scheme was the important aspect that had to be considered. Herein the pay revision order Ext. P3 conferred various new benefits, by introducing new pay scales for the existing serving employees. Therefore, evidently it is a new benefit that is granted as per the pay revision order. The date adopted by the Pay Revision Commission, as already noted, was on the basis of different criteria discussed in para 1.17 of Ext. P2, quoted above. They had noticed that at the Centre pay plus D.A. constitute the basic pay from 01-04-2004 which principle was also adopted for the pay revision, wherein the new pay structure was evolved by merging 59% of D.A. to the basic pay. It is accordingly that 01-07-2004 was selected as the date for implementation. The pay revision order subsequently issued by the Government as per Ext. P3 implemented it from 01-07-2004. Para 40 therein will show that the arrears of salary on fixation of pay in the revised pay scales for the period from 01-07-2004 to 31-03-2005 will be notional. The revised scale of pay and allowances will be granted from March 2006 onwards. The date of the order, Ext. P3 is 25-03-2006. The arrears from 01-04-2005 to 28-02-2006 would be credited to the Provident Fund Account of the employees. 33. Much argument was raised with regard to the contention of the State that if the pay revision is implemented from 01-03-2002 it may cause additional financial burden running into thousands of crores of rupees. In fact in the counter - affidavit filed by the second respondent it is explained that the employees who had retired between 01-03-2002 to 30-06-2004 have been benefited by the revision of pension with effect from the same date of pay revision. It is explained that when a revision of pay or pension is implemented it is natural to fix a cut - off date for such revision which cannot be avoided. There will be a group within the cut - off date and the inside group will be benefited by the revision of pay and the outside group will be benefited by the revision of pension. It is also the stand of the Government that neither it is mandatory to revise the pay and allowances of State Government employees once in five years nor such a policy has been accepted by the Government. It is the prerogative of the Government to decide the revision of pay and allowances of its employees, to appoint pay commission for studying and making recommendations for the revision and to implement the recommendation with modifications, if necessary, considering the overall position which warrants the necessity of a pay revision including the financial position of the State. In para 7 it is pointed out that the recommendation of the Pay Commission to implement the revision with effect from 01-07-2004 was accepted by the Government. It is stated in para 8 that the Government have examined the matter in the light of the directions issued by this Court, as to whether the pay revision could be implemented with effect from 01-03-2002 or from 01-07-2004 On examination it was found that the financial commitment around Rs.3275 crores or Rs.2275 crores respectively cannot be borne by the State exchequer for implementing it. Besides, Government cannot grant revision of scale of pay even notionally for a group of employees who retired form service in between 01-03-2002 and 30-06-2004 while leaving others who were in service but not retired during the period, in pre revised scale for the period without the benefit of pay revision and that would be discriminatory. The pensioners who retired before 01-07-2004 are benefited by the pension revision and the periodical increase in consumer price index is being properly compensated by periodically increasing DA at the same rate as in the case of Government servants who are still in service. Thus, it is the contention of the State that financial capacity was the relevant criterion in fixing the date. Going by the various decisions of the Apex Court, financial constraint is a relevant criterion. 34. The petitioners have got a case that the figures quoted by the Government in the counter - affidavit for granting benefits if the pay revision is implemented from 01-03-2002 may not be correct. It is contended that the financial implications will be far less than the figures quoted by the Government. As far as this Court is concerned, there is no other material in the matter, so as to accept the plea raised by the petitioners that the financial implications will be on a much lesser scale. 35. The next question therefore is related to the important aspect argued by the learned Senior Counsel for the petitioners that the petitioners form a homogeneous class with that of the persons who are benefited by the pay revision from 01-07-2004. Learned Government Pleader submitted that the classification as suggested by the learned Senior Counsel for the petitioners may not be the correct one and decisions in support of the plea were relied on. 36. As already noticed, the argument of Shri. M.K. Damodaran and Smt. V.P. Seemanthini, learned Senior Counsel is that the pay revision had to be effected from 01-03-2002, after five years of the previous pay revision. Therefore, all the persons who were in service and retired from 01-03-2002 to 30-06-2004 and the persons in service from 01-07-2004 will form only one homogeneous class. While accepting the recommendations of the Vlllth Pay Commission, the above homogeneous class cannot be divided by fixing the cut - off date as 01-07-2004. Learned Government Pleader explained that persons who have retired from 01-03-2002 to 30-06-2004 will form a homogeneous class along with the retirees upto 29-02-2002. Therefore, it is only a case where the dividing line is between retirees and the persons in service after 01-07-2004. The point that is argued by the learned Senior Counsel for the petitioners could be accepted only if it is held mandatory for the Government to implement a pay revision at the expiry of the fifth year of the previous pay revision which was on 28-02-2002, herein. As already held by me, the decision of the Government to revise the pay scale, is a matter of policy. It is not a statutory right of the employees. If that be so, they cannot ask for a pay revision on the date of expiry of the previous pay revision, i.e. from 01-03-2002. Hence, the persons who have retired from 01-03-2002 upto 30-06-2004 will only form one class along with the retirees upto 29-02-2002. The persons who were in service and retired upto 30-06-2004 were beneficiaries of the previous pay revision order. The pension and other benefits will have to be calculated in terms of the pay scales prevalent at that point of time. They cannot contend for the position that they are entitled for the new pay scales as made applicable from 01-07-2004. As pointed out by the Apex Court in various decisions noted already, whenever a date is fixed for implementation of the pay revision, one set of persons who retired upto the just previous day will not be covered by it and that itself is not a ground to show that the date adopted is arbitrary. Therefore, the argument that persons in the same rank will get different rates of pension based on the date of retirement as 30-06-2004 or 01-07-2004 is also of no consequence. 37. Hence, I am of the view that the financial constraints pleaded by the Government will be of relevance while considering the arguments of the learned Senior Counsel for the petitioners. If the argument of the petitioners are accepted, it will have another impact also. If the pay revision is implemented from 01-03-2002 to cover the retirees upto 30-06-2004, then automatically persons in service during such period and continuing thereafter also will have to be given the benefit of the pay revision as in their case it cannot be limited from 01-07-2004 as now implemented. Therefore, if those persons in service as on 01-07-2004 are excluded, it will be termed as arbitrary, evidently. Hence, the Government's financial burden will be more and more. It can thus be seen that the date fixed as 01-07-2004 cannot be termed as arbitrary for any reason. 38. I will now refer to the decisions relied upon by the learned Senior Counsel for the petitioners and learned Government Pleader. As already noticed, the petitioners relied upon D.S. Nakara's case, (1983) 1 SCC 305 itself which was only a case of implementation of revised liberalized pension formula for the retirees who formed only a homogeneous class. The decision of the Constitution Bench in Deokinandan Prasad Vs. The State of Bihar and Others, AIR 1971 SC 1409 was relied upon to contend that the right of pension is a valuable right vesting in a Government servant. There cannot be any quarrel with the said proposition. The decision of the Apex Court in Mohanlal Ujamshi Shah and Another Vs. Union of India, (1984) 3 SCC 126 only adopted Nakara's case (supra) to grant benefits to retirees irrespective of date of retirement. 39. Heavy reliance was placed on K. L. Rathee Vs. Union of India and Others, (1997) 6 SCC 7. That was a case wherein the dispute arose based on the Government Order issued by the Central Government while implementing the judgment in D. S. Nakara's case (supra). The Government by order dated 22-10-1983 implemented the judgment by granting benefit to all pensioners covered by CCS (Pension Rules) as well as Liberalised Pension Rules, 1950. The contention was that the petitioner had to be given the same amount of pension, as other employees of his rank irrespective of the date of retirement and accordingly a higher pension was claimed as was being given to persons who retired after 01-04-1979. The Apex Court examined the question in the light of the factual position also. A reading of the judgment will show that the same will not help the contentions raised by the learned Senior Counsel for the petitioners herein. The Apex Court noticed that the judgment in D. S. Nakara's case (supra) did not strike down the definition of 'emoluments'. It was held as follows: "This Court did not hold that those who have retired before 01-04-1979 must be treated as having the same emoluments as those who retired on or after 01-04-1979 for the purpose of calculation of pension. Therefore, on the strength of Nakara's case, AIR 1983 SC 130 (supra) the petitioner is not entitled to ask for computation of pension with reference to emoluments which he never got." The Apex Court examined various decisions including that of the Constitution Bench decisions in Indian Ex - services League's case, 1991 (1) SCR 158, Krishena Kumar Vs. Union of India, (1990) 4 SCC 207 and other decisions and finally held in para 12 thus: "Clearly appears from all these cases that Nakara's case, AIR 1983 SC 130 is not a case of universal application irrespective of the facts and circumstances of the case. When the Government decided that pension was to be calculated on the basis of average salary drawn over a period of last ten months, it was held in Nakara, that this principle has to be applied even to those persons who had retired before the notified date. That, however, does not mean that the emoluments of the person who were retiring after the notified date and those who have retired before the notified date holding the same status must be treated to be the same. This argument was specifically negatived by the Constitution Bench in the cases of All India Services Pensioners Association, AIR 1988 SC 501(supra). What the petitioner is claiming in this case is more or less the same relief as was denied to him in the above case." Thus, the dictum laid down is that emoluments of a person who retired after the notified date and who have retired before the notified date holding the same status, cannot be treated as the same. 40. The next decision is that of the Apex Court in T.S. Thiruvengadam Vs. Secretary to Government of India and Others, (1993) 2 SCC 174. Therein, a revised formula was adopted for certain Government employees who were absorbed in a public sector undertaking with effect from a particular date. The Central Government issued a Memorandum providing revised terms and conditions of absorption in Central Public Sector undertakings but restricted the revised benefits only to those who were absorbed on or after June 16, 1967. This was held as arbitrary. Evidently, it was a case of revision of an existing formula. Therefore, the same will not apply to the facts of this case. 41. The Scheme considered in Dhan Raj and Others Vs. State of J & K and Others, (1998) 4 SCC 30 is also one of revision of an existing one. The appellants were originally employed under the Government of Jammu and Kashmir in the Transport Undertaking and on forming a Road Transport Corporation, they were employed there later. A scheme was introduced by the Corporation for granting pension to those who retired from 09-06-1981, the date of adoption of the scheme. While examining the question, it was held thus in paragraphs 13 and 14: "13. Learned counsel for the State then made an alternative submission that the order dated 03-10-1986 is in violation of Article 177 of the said Regulation, hence the appellants cannot draw any benefit under it. It seems that it is this submission which led to the misdirection even by the Appellate Court. We are surprised that the State is taking such a stand on its own order to be held to be ultra vires of a Regulation. Neither such a submission was made nor was any ground raised even in the appeals filed against the order of learned Single Judge nor is such a stand expected to be raised on the facts and circumstances of this case. Even otherwise, examining this submission we find that the amendment to Article 177 has given benefit to all the retiring employees, i.e. it would accrue to all retiring after 09-06-1981 viz. the date of amendment. But it has not, by any positive words, excluded expressly those who retired prior to the said date. If later the Government itself reconsidering the matter confers the same benefits even on those who retired prior to 09-06-1981, it cannot be said to be either violating Article 177 or in conflict with that. It is a case, which is not covered under Articie 177 is dealt with later. If Government desired otherwise, it could have, even after issuing order dated 03-10-1986, withdrawn the same. On the contrary, it permitted to continue. Hence, even this submission of the said order being violative of Article 177, has no force. 14. Even otherwise, we do not find any justifiable criteria for the State Government to draw the line between those who retired earlier and those who retired after 09-06-1981. Both such set of employees were equally placed in the same Undertaking / Corporation temporary in character and all having served in the organizations for more than 20 years. In fact, the appellants have served with the Government for more than 30 to 40 years. The person serving for such a long period earns his legitimate expectation. It is not something which he seeks with a begging bowl. It is inappropriate for a State Government to take up a stand to get its own order to be held illegal, by giving restrictive interpretation to deny benefit to its own employees who had worked for such a long period. In fact, in the Constitution Bench decision of this Court in D.S. Nakara Vs. Union of India, (1983) 1 SCC 305 this Court held that criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after specified date while depriving the benefits to those retiring prior to that date was violative of Article 14. Even otherwise, while considering the question of grant of pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State as stated and the assurance as given in the Directive Principles of State Policy. A pension is a part and parcel of that goal, which secures to a person serving with the State after retirement of his livelihood. To deny such a right to such a person, without any sound reasoning, or any justifiable differentia would be against the spirit of the Constitution. We find in the present case the stand taken by the State Government to be contrary to the said spirit." The retirees therein formed a class and that was the reason for taking the said view. 42. Subrata Sen Vs. Union of India and Others, (2001) 8 SCC 71 considered a case of revision of non contributory pension scheme. The benefit was denied to pensioners who retired prior to the cut - off date. It was found that the rule was really amended and the scheme was revised but it was not one of introduction of a new scheme. Therein, the principle stated in Nakara's case (supra) was adopted. It was held that "there is no new scheme of payment of pension, but it is only a revision of the existing Pension Scheme." The same is rendered on its own facts. 43. Heavy reliance was placed by Shri. M. K. Damodaran, learned Senior Counsel for the petitioners, on the decision of the Apex Court in Union of India and Another Vs. SPS Vains (Retd.) and Others, (2008) 9 SCC 125. The question considered was one of disparity within the same rank, viz. retired Major Generals of Air Force and Navy. The said judgment is relied upon to contend that herein also persons of the same rank who retired prior to 30-06-2004 and after 01-07-2004 will get different rates of pension, which is unjustifiable. 44. A close scrutiny of the facts of the case is therefore required. The question considered was whether there could be a disparity in payment of pension to officers of the same rank who had retired prior to the introduction of the revised pay scales, with those who retired thereafter. The pay scales of Army staff were revised from 01-01-1996. Prior to the pay revision, a Major General was getting a higher pay than that of Brigadier. Thus, a Major General always drew more pension and Family Pension than that of a Brigadier. When the Government accepted the Fifth Pay Commission Report it was found that Brigadiers began drawing more pay than Major General and consequently they were drawing more pension and family pension than Major Generals. The Government thereafter stepped up the pension of Major Generals who had retired prior to 01-01-1996 by giving them the same pension as was given to Brigadiers. The Major Generals who were receiving pension earlier thus approached the High Court pointing out disparity among the same rank. It was noticed by the Apex Court in para 26 of the judgment that the new Government Order has resulted in disparity within the same class so that two officers both retiring as Major Generals, one prior to 01-01-1996 and the other after 01-01-1996 would get two different amounts of pension. While the officers who retired prior to 01-01-1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals who retired after 01-01-1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 01-01-1996. In para 27 it was held that it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution. The principles stated in D.S. Nakara's case (supra) was relied upon. It was also a case where the pensioners of the same class of Major Generals were divided into two different classes, by adopting a cut - off date, resulting in creation of a class within a class. The circumstances herein are not identical. 45. Herein, evidently, as already held by me, it can be seen that petitioners became part of a group of pensioners along with the pensioners who retired upto 29-02-2002. It is not a case of division of pensioners as such. Therefore, the said principle may not apply here. 46. In Col. B.J. Akkara (Retd) Vs. Government of India and Others, (2006) 11 SCC 709 after elaborately considering the various decisions including D. S. Nakara's case (supra) and other subsequent Constitution Bench decisions, the relevant principles have been laid down thus in para 20: "20. The principles relating to pension relevant to the issue are well settled. They are: (a) In regard to pensioners forming a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred. (b) But all retirees retiring with a particular rank do not form a single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group whose reckonable emolument was higher. In other words, pensioners who retire with the same rank need not be given identical pension, where their average reckonable emoluments at the time of their retirement were different, in view of the difference in pay, or in view of different pay scales being in force. (c) When two sets of employees of the same rank retire at different points of time, it is not discrimination if: (i) when one set retired, there was no pension scheme and when the other set retired, a pension scheme was in force; (ii) when one set retired, a voluntary retirement scheme was in force and when the other set retired, such a scheme was not in force; or (iii) When one set retired, a PF scheme was applicable and when the other set retired, a pension scheme was in force. One set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the "same class" or "homogeneous group". The employer can validly fix a cut - off date for introducing any new pension / retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut - off date arbitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment." The said principles will show that a different formula cannot be made applicable for computation of pension of the pensioners forming a class which will result in unequal treatment. Therefore, if the relevant scheme is amended then a retiree will be entitled for enhanced pension after the new formula of computation from the date of effect of the amendment. Sub-para (b) is important for the purpose of this case. In sub-para (b) it was held that "where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the plea of discrimination cannot be raised by one group getting lesser pension. Payment of pension will depend upon the average reckonable emoluments at the time of retirement and if there is difference in the scale of pay in force no such plea of discrimination can be accepted. Importantly, it was held that the persons retired with the same rank, may not form the same class or homogeneous group. 47. Shri M. K. Damodaran, learned Senior Counsel also relied upon the test laid down in V. Kasturi Vs. Managing Director, State Bank of India, Bombay and Another, (1998) 8 SCC 30 in paragraph 20, wherein, after a resume of all the relevant decisions, the Apex Court categorised the legal position as categories 1 and II in paragraphs 22 and 23 which reads as follows: "Category I 22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula or computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara case, (1983) 1 SCC 305 would cover this category of cases. Category II. 23. However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of the relevant pension rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force, the erstwhile non - pensioner might have survived, then only if such extension of pension scheme to erstwhile non - pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non - pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non - pensioners cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep. The decisions of this Court covering such second category of cases are: Commander, Head Quarter Vs. Capt. Biplabendra Chandra, 1997 (1) SCC 208 and Govt. of T. N. Vs. K. Jayaraman, 1997 (9) SCC 606 and others to which we have made a reference earlier. If the claimant for pension benefits satisfactorily brings his case within the first category of cases, he would be entitled to get the additional benefits of pension computation even if he might have retired prior to the enforcement of such additional beneficial provisions. But if on the other hand, the case of a retired employee falls in the second category, the fact that he retired prior to the relevant date of the coming into operation of the new scheme would disentitle him from getting such a new benefit." Shri. M. K. Damodaran contended that the petitioners herein will fall within category I and therefore they will be entitled for the benefit of pension based on the new pay scales. 48. A close reading of the judgment will show that category I therein will apply to pensioners who were eligible for pension at the time of their retirement and survived upto the amendment of the relevant pension scheme. Category II will show that when a new pension scheme is introduced, unless it is retrospective, old retirees cannot get the benefit of such a scheme. Herein, it can be seen that the petitioners are not strictly under category I. They are actually seeking for the benefit of the revised pay scales which were never applied to them. Of course, the basis of computation of their pension can only be the pay scales which they have received upto 30-06-2004. Category I will not thus apply to them. It is not a case where additional benefits are granted to the pensioners from 01-07-2004, obviously by liberalising any scheme or revising any scheme. What is important herein to notice is that the revision of pay scales itself and the implementation of the same is from 01-07-2004. 49. The situation as far as the petitioners are concerned, who are seeking for implementation of the various benefits including pay revision from 01-03-2002, going by the principles discussed above, will be bleak. This Court cannot substitute the date 01-07-2004 as 01-03-2002 on any account. Judicial Review could be exercised only to see whether the date chosen is arbitrary or not. 50. In this context, learned Government Pleader relied upon a Full Bench decision of this Court in State of Kerala and Others Vs. V.J. Philomina, 2008 (1) KHC 665 : 2008 (1) KLT 666 wherein the Bench was of the view that "when concessions having financial implications are granted by the Government, widening the scope of such concessions by judicial interpretation would invite unexpected burden on the public exchequer. Time bound higher grade is not a condition of service guaranteed by statutory rules but a concession extended to employees who are stagnating in a particular post for want of regular promotion." It is contended that this Court cannot adopt an interpretation which will burden the public exchequer. Learned Government Pleader relied upon an unreported judgment in OP No. 32614/1999, between Kerala State Service Pensioners Organisation, Kollam and State of Kerala. The same was with regard to the implementation of 1997 pay revision order. Therein, the pay revision order was implemented from 01-03-1997. The petitioners retired prior to the said date, viz. after 01-01-1996. The denial of benefits to them was under challenge. The Government contended that the date of effect of a pay revision is a matter of policy for the Government as it will have to account for the financial stability also. While considering the same, this Court held thus: "More over, pay revision is being effected for the last several years. Petitioners two onwards had retired after 01-01-1996. That means they had already enjoyed pay revision benefits ordered prior to that date. After their retirement they cannot get revision of salary. Ext. P7 is the revised salary structure of the employees in service as on 01-03-1997. There is nothing arbitrary in it. The petitioner has not substantiated any right and they shall not have a right to get their salary revised after retirement." The said dictum will show that the petitioners herein also cannot have a right to get their salary revised after retirement, as the date fixed cannot be held to be arbitrary. I respectfully agree with the view taken therein. 51. In that view of the matter, it cannot be said that the fixation of cut - off date 01-07-2004 is arbitrary to any extent. Various facts have been considered by the Government which cannot be said to be totally irrelevant as far as adoption of the date is concerned. The matter is in the realm of policy and the financial implications and financial stability of the Government are relevant facts. The implementation of pay revision and grant of benefits are not statutory in nature. Therefore, the employees do not get a statutory right to get the pay revised at the interval of every five years. 52. The Government by Ext. P15 order produced in W.P. (C) No. 7569/2008 have addressed the problems of persons like the petitioners and have modified certain clauses concerning grant of pension. But learned Senior Counsel point out that the same will not fully satisfy their claims as due weightage has not been given for their entire service. Smt. V. P. Seemanthini, learned Senior Counsel further submitted that if this Court holds the view that the pay revision should be effected every five years, then the petitioners will be entitled for pay revision benefits also. 53. Ext. P15 is not under challenge in this writ petition, obviously because the same further granted some concessions to the petitioners. But the adequacy or inadequacy of the same cannot be a matter for judicial interpretation, since the paying capacity of the Government is a relevant factor. If we confine the issue, in the light of the principles stated by the Apex Court, that it is a matter of policy, then the petitioners cannot automatically insist that all the benefits granted to the existing employees by effecting the pay revision from 01-07-2004, will have to be applied to them. Evidently, the retirees upto 30-06-2004 and the persons in service from 01-07-2004 do not form the same homogeneous class. 54. Shri. M. K. Damodaran, learned Senior Counsel submitted that the delay on the part of the Government in bringing into force the pay revision alone has resulted in hardships to the petitioners and therefore it ought to have been remedied suitably. In fact, such an argument cannot be accepted, going by two other decisions of the Apex Court in State of U.P. and Others Vs. J.P. Chaurasia and Others, (1989) 1 SCC 121 and T.N. Electricity Board Vs. R. Veeraswamy and Others, (1999) 3 SCC 414. 55. Learned Senior Counsel for the petitioners pointed out that the delay in appointment of the Pay Revision Commission and the consequent acceptance of the recommendation to be effective from 01-07-2004 denied the fruits of the exercise of pay revision to a large number of employees, viz. above 35000 and odd and therefore also the cut - off date fixed cannot be said to be reasonable. The pay revision, as already noticed, has been implemented by the Government as per order dated 25-03-2006 (Ext. P3 produced in W.P. (C) No. 7569/2008). The Government has actually implemented consequent revision of pension benefits also as evident from Ext. P9 order produced in W.P. (C) No. 23346/2008. This was based on the pay revision order dated 25-03-2006. Various principles for fixation have been stated therein. The right of the petitioners as far as the revision of pension is concerned, is governed by the said order as well as Ext. P15 order produced in W.P. (C) No. 7569/2008. 56. In J. P. Chaurasia's case, 1989 (1) SCC 121 it was held that fixation of pay scale is an executive function and the Court will not normally interfere. In paragraph 18 therein, while considering the question whether parity in employment and equalisation of pay are matters for consideration for the Pay Commission and the Government, it was held that the various matters with regard to the pay revision and the principles thereon are to be left to the decision of the Executive Government and the expert bodies like Pay Commission and the Court should normally accept it. 57. The question is whether the assumed delay in the matter will come to the help of the petitioner. If it is so declared by this Court in favour of the petitioners, then the pay revision order will have to be given effect from 01-03-2002. A similar question was considered in R. Veerasvvamy's case, 1999 (3) SCC 414. Therein, the Tamil Nadu Electricity Board was having in its employment, employees of the Electricity Department of the Government of Tamil Nadu who have been transferred after the Board was formed on 01-07-1957. They were governed by the Contributory Provident Fund Scheme on the date of transfer. They retired from service prior to 01-07-1986, after getting all retiral benefits. The Government of Tamil Nadu had introduced a pension scheme on 30-06-1969 to its employees who were not governed earlier by such pension scheme which was not adopted by the Board simultaneously. The employees were making representations from time to time to extent the benefit of the Scheme. After getting exemption with regard to certain aspects from the Central Government the Board finally introduced the pension scheme with effect from 01-07-1986. This led to the retired employees challenging the same before the High Court aggrieved by the prospective implementation from 01-07-1986. The learned Single Judge rejected the claim finding that the date 01-07-1986 chosen is not one which offends Article 14 of the Constitution of India. But the Division Bench, after accepting the argument of the Board that the principles stated in D.S. Nakara's case, (1983) 1 SCC 305 will not apply, held that the delay on the part of the Board in bringing down the pension scheme affected the retirees who had approached the Court and directed grant of benefits to them. The legality of the same was considered by the Apex Court. Their Lordships relied upon the decisions of the Apex Court in V. Kasturi's case, (1998) 8 SCC 30. Union of India Vs. Lieut.E. lacats, (1997) 7 SCC 334, Hari Ram Gupta Vs. State of U.P., (1998) 6 SCC 328. and other decisions wherein the principles stated in D. S. Nakara's case (supra) have been discussed and distinguished. The Apex Court finally held that the retired employees and other beneficiaries of the scheme cannot be grouped together. In para 15, the contentions of the retirees were rejected in the following manner: "As noticed earlier, the learned Judges even after noticing that the ratio in the judgment of this Court in Nakara case, (1983) 1 SCC 305 cannot be pressed into service, erroneously granted relief on the alleged delay on the part of the appellant - Electricity Board in introducing the pension scheme which certainly cannot be a ground for the Court to give retrospective effect to the pension scheme. Moreover, the appellant Board had given well - founded reasons for introducing the pension scheme from 01-07-1986 including financial constraints, a valid ground. We are of the view that the retired employees (respondents), who had retired from service before 01-07-1986 and those who were in employment on the said date, cannot be treated alike as they do not belong to one class. The workmen, who had retired after receiving all the benefits available under the Contributory Provident Fund Scheme, cease to be employees of the appellant - Board w.e.f. the date of their retirement. They form a separate class." Therefore, the delay, if any, cannot be a matter for this Court to consider the plea to grant retrospective effect to the pay revision order. Evidently, the pay revision introduces new scales of pay. Various factors had to be considered by the Government. The decision of the Apex Court in Lieut.E. Iacats's case, (1997) 7 SCC 334 which is relied upon in R. Veeraswamy's case, 1999 (3) SCC 414 has also taken the view that fresh financial benefits conferred will have to be based on proper estimates of financial outlay required, and accordingly held that the cut - off date fixed cannot be termed as arbitrary and that too based on the report of a study team. In paragraph 5, the legal position was explained thus: "Even otherwise in view of the fact that a study team was first appointed and pursuant to its report certain benefits were given after considering the report of the study group would show that the cut - off date had a logical nexus with the decision to grant these benefits on the basis of the report of the study team. Fresh financial benefits which are conferred also have to be based on proper estimates of financial outlay required. Bearing in mind all relevant factors, if such a benefit is conferred from a given date, such conferment of benefits from a given date cannot be considered as arbitrary or unreasonable." Hence, it can be seen that there is nothing wrong here, in the Government accepting the recommendations of the Pay Revision Commission for fixing the cut - off date. 58. Learned Senior Counsel for the petitioners heavily relied upon Article 39 and Article 43 of the Constitution of India and the importance of the Directive Principles to ensure adequate pay to the employees. Article 39(d) and Article 43 reads as follows: "39. Certain principles of policy to be followed by the State. - The State shall, in particular, direct its policy towards securing. - (a) to(c) xxxx xxxx xxxx (d) that there is equal pay for equal for both men and women; 43. Living wage, etc. for workers. - The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full employment of leisure and social and cultural opportunities and in particular, the State shall endeavour to promote cottage industries on an individual or co - operative basis in rural areas." The question whether there is alleged infringement of the above Articles cannot be divorced from the question whether there had been any infringement of Article 14. In fact, in an earlier decision of the Apex Court in J.P. Chaurasia's case, (1989) 1 SCC 121. it was held that the principle under Article 39(d) and the Directive Principles cannot have a mechanical application in every case of similar work and they have to be read into Article 14 and therefore the same will have to be verified in such cases. In paragraph 29 the said aspect has been explained thus: "29. Article 39(d) of the Constitution proclaims "equal pay for equal work". This article and other like provisions in the Directive Principles are "conscience of our Constitution". They are rooted in social justice. They were intended to bring about a socio - economic transformation in our society. As observed by Hegde and Mukherjea, JJ. in Kesavananda Bharati Vs. State of Kerala, (1973) 4 SCC 225 (SCC p.502 para 712): "(T)he Constitution seeks to fulfil the basic needs of the common man and to change the structure of our society." In the words of Shelat and Grover, JJ. (SCC p.458. para 596): The dominant objective in view was to ameliorate and improve the lot of the common man and to bring about a socio - economic justice." In matter of employment the government of socialist State must protect the weaker sections. It must be ensured that there is no exploitation of poor and ignorant. It is the duty of the State to see that the underprivileged or weaker sections get their dues. Even if they have voluntarily accepted the employment on unequal terms, the State should not deny their basic rights of equal treatment. It is against this background that the principle of "equal pay for equal work" has to be construed in the first place. Second, this principle has no mechanical application in every case of similar work. It has to be read into Article 14 of the Constitution. Article 14 permits reasonable classification founded on different bases. It is now well established that the classification can be based on some qualities or characteristics of persons grouped together and not in others who are left out. Those qualities or characteristics must, of course, have a reasonable relation to the object sought to be achieved." Herein, it cannot therefore be said that there is any violation of Article 39(d) or Article 43. The petitioners were governed by various pay scales during their service. They have gone out of the new pay revision scheme as their retirement is prior to 01-07-2004. When the State is empowered to bring in the revision of pay scales from a cut - off date whichever is fixed, it may have applicability from the said date. There may be persons who may be left out or who had retired on the previous day of the same. Therefore, in the light of the applicability of the principle that there cannot be any statutory right as far as the pay revision is concerned and that it is a matter of policy for the State as held by the Apex Court in Chandrasekhar A.K. Vs. State of Kerala and Another, (2009) 1 SCC 73 : 2008 (4) KLT 597 : 2008 (4) KHC 784 the main and important question to be considered is only whether the cut - off date fixed is violative of Article 14 of the Constitution. Herein, the date 01-07-2004 is one recommended by the Pay Revision Commission based on certain aspects. The Government also thought it fit to accept the same. Various aspects have been discussed in the report of the Pay Revision Commission in proposing the cut - off date and which have been supplemented by the Government in their counter - affidavit. It is not as if the cut - off date if fixed from the hat and that it has no nexus with the object sought to be achieved. The power to fix a date to effect the pay revision is a concomitant of the power to revise salaries and pension. In that view of the matter, it cannot be said that the entire exercise done by the Government will be so arbitrary or unreasonable warranting interference by this Court. As already noticed, the financial constraints of the State is a relevant aspect which duly empowers the State to fix the date as 01-07-2004. The persons left out like the petitioners therefore are not part of a homogeneous class along with the persons who are entitled for the pay revision which is effective from 01-07-2004, as contended by the learned Senior Counsel for the petitioners in the writ petitions. For all these reasons, the writ petitions are dismissed. No costs. |
