Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. A close look at the decisions aforesaid makes it clear that the principles therein, though hardly requiring reiteration, are not of any application to the present case. 15.1. It is evident that in all such cases where this Court frowned upon denial of pension, the right to receive the same was found flowing from the applicable rules and the service conditions. The said decisions cannot be weighed to mean that pension is required to be granted as a matter of right even if prescription to the contrary is found in the rules and/or service conditions. 15.2. In the present case, it remains indisputable that the Regulations of 1960 governing the service conditions of the employees of the Board specifically contain the stipulation in Regulation 52 that they shall not be entitled to pension. The cited decisions on behalf of the respondents cannot be read as overriding the said Regulation 52. 15.3. So far as the questions relating to financial constraints are concerned, true it is that in the communications exchanged between the Board and the Government as also in the decisions communicated, financial constraints had also been indicated on behalf of the State Government as being one of the reasons for not acceding to the request for retrospective amendment of Regulation 52. The question is as to whether the Government could not have at all referred to the financial constraints as one of the reasons for not acceding to such a prayer for amendment. 15.4. In our view, a reference to financial constraints by the Government while denying the prayer for retrospective amendment of Regulation 52 cannot be disapproved with reference to the decisions aforesaid. A matter of denial of the revised pay scale to the employees who were otherwise treated at par with those with the Government employees at the time of revision of pay scale (as in the Haryana case, supra); or taking away vested rights accrued to the employees (as in the Punjab case, supra), cannot be imported to the present case where the Government has not found itself agreeable to the proposed alteration of the service conditions of the Board’s employees with retrospective effect, i.e., with effect from 01.04.1976. It has not been a case of denial of any vested or accrued right of the employees of the Board.
16. In the given set of facts and circumstances, the decision of this Court in the case of Air India (supra), reaffirming the principles against hostile discrimination is also of no assistance to the respondents because what Article 14 forbids is hostile discrimination but not reasonable classification. In the referred passage in the case of Air India (supra), this Court re-emphasised the principles against hostile discrimination but, at the same time, underscored the principles of reasonable classification while observing as under: “39…. “(1)….. (2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Article 14 will be completely out of the way. (3) Article 14 certainly applies where equals are treated differently without any reasonable basis. (4) Where equals and unequals are treated differently, Article 14 would have no application. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined: STATE OF ORISSA v. ORISSA KHADI AND VILLAGE INDUSTRIES BOARD KARAMCHARI SANGH [DINESH MAHESHWARI, J.] (a) the nature, the mode and the manner of recruitment of a particular category from the very start, (b) the classifications of the particular category, (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possess which are not to be found in other classes, and the like.”” 16.1. The observations in the impugned judgment and order dated 20.12.2012 as also the contentions urged on behalf of the respondents, seeking to put the employees of the Board at par with the employees of the State Government for all purposes, carry their own shortcomings. Even if Orissa Khadi and Village Industries Board has been established under an enactment of the State and for several relevant factors, it could be considered to be an instrumentality of the State, its distinct characteristic of being a Board established with particular aim and objective cannot be ignored altogether. The Board being a body corporate, incorporated by its name, has been established to carry out the purposes of the Act of 1955 and not beyond. In view of its independent corporate entity and existence, the provisions have been made in the Act of 1955 for making regulations by the Board consistent with the Act of 1955 and rules made thereunder with the previous sanction of the State Government, where the Regulations could provide, inter alia, for remuneration, allowances and other conditions of service of the staff of the Board (vide Section 36 of the Act). The Regulations of 1960 were framed accordingly. Therein, even while otherwise applying a substantial part of the Rules in the Orissa Service Code mutatis mutandis to the employees of the Board, Regulation 40 itself starts with a clause of exception, making that provision subject to the other provisions of the Regulations. Then, in Regulation 52 it has specifically been provided that the employees of the Board shall not be entitled to any pension except gratuity and CPF benefits; and further provisions have been made for the purpose of subscription/contribution to CPF. Thus, even when the State has established the Board to carry out its obligations in terms of Article 43 of the Constitution of India, it cannot follow as a corollary that the employees of this body corporate have to be treated as State Government employees in all respects. Such a corollary proposition would practically amount to merging of the Board with the State Government; rather making it as one of the Departments of the Government. This, in the face of existing statute, cannot be done. That being the position and when Regulations in question specifically make a distinct provision as regards retiral benefits, the same cannot be ignored by any stretch of arguments. 16.1.1. Putting it differently, even if development of khadi and cottage industry is a Directive Principle of State Policy, it does not follow as a corollary that if the State establishes a Board or any organisation to carry out the obligations under such Directive Principles, it cannot make separate arrangements as regards the service conditions of the employees of such a Board or organisation. Significantly, Regulation 40 of the Regulations of 1960 starts with an exception clause and while general conditions of service of the Board’s employees have been provided in terms of the service conditions of the employees of the State Government, the provision is subject to the other provisions of the Regulations. Hence, the other provision, that is the one contained in Regulation 52, cannot be ignored. 16.2. In regard to the submissions made on behalf of the State that the aforesaid existing Regulation 52 had neither been challenged nor declared invalid, it has been suggested on behalf of the respondents that when the employees had regularly been raising the demand for pension by way of representations and had taken up litigation too, challenge to the contrary provisions is inherent in their demands/prayers. These submissions have only been noted to be rejected for more than one reason. First, that merely making a prayer contrary to the existing provision in the statute does not carry in itself a challenge to the provision. Secondly, for challenging a particular provision, specific case is required to be made out of either want of statutory powers or of violation of any constitutional mandate. Neither any such ground of challenge had been urged nor could be assumed. Thirdly, it is ex facie evident that all through the prayer had been for amendment of Regulation 52 and not of declaring the same in its existing frame as being invalid. A prayer for amendment of the Regulation cannot be equated with a prayer to declare the same as invalid. As noticed hereinbefore, the State Government’s denial of the proposed alteration was essentially based on its disagreement to alter the service conditions with effect from 01.04.1976. Viewed from any angle, invocation of the principles forbidding hostile discrimination STATE OF ORISSA v. ORISSA KHADI AND VILLAGE INDUSTRIES BOARD KARAMCHARI SANGH [DINESH MAHESHWARI, J.] remains baseless and the contentions urged on that basis are required to be rejected.
17. On behalf of respondents, strong reliance has also been placed on the decision of the Gujarat High Court in the case of Gujarat State Khadi Gramodyog Board (supra), while pointing out that this Court did not interfere with the same and rejected the petition seeking leave to appeal. It has been argued on the basis of this decision that the pension rights having been allowed to the employees of the similar Board in the State of Gujarat, there is every reason to endorse the same treatment for the employees of the respondent Board. The submissions do not take the case of the employees of the respondent Board any further. This is for the simple but pertinent reason flowing from a marked difference of the service conditions. The High Court noticed in paragraph 14 of the referred judgment that pension scheme in relation to employees of that Board was made applicable with effect from 12.11.1973; and those who were members of the contributory provident fund were also made eligible for the pension scheme. In paragraph 14, the High Court noticed, inter alia, as under: – “14. For all practical purposes, respondent no. 1-Board is an instrumentality of the State and, therefore, it is covered under Article 12 and undoubtedly amenable to the writ jurisdiction of this Court. Since 1973 in the set-up of respondent no. 1, pension scheme was introduced and was made applicable from 12.11.1973, and who were the members of the Contributory Provident Fund (CPF), they were made eligible for the pension scheme. It is, also, corroborated and supported and reinforced by the Resolution dated 06.11.87. It is, therefore, clear that the petitioners, who were employees of the respondent No. 1-Board, and who have retired after 1.1.86 were also entitled to pensionary benefits. The respondent No. 1-Board, undoubtedly, has been paying pension to the employees, those who have retired from service of the Board, got pensionary benefits but not in terms of the recommendations made by the 5th Pay Commission report until 31.12.1995. As a result of which, the pension which was being paid to the petitioners, were due and payable, prior to the recommendations of the 5th Pay Commission and it continued. However, the effect of the recommendations made by the 5th Pay Commission report, accepted by the State and despite that the respondent no. 2-State, as well as, the respondent No. 1-Board, have not been given. In other words, the pensionary benefits which were available under the pension scheme, which were not revised in terms of the 5th Pay Commission report, though accepted and adopted by the respondents authorities, have not been paid so far.” 17.1. Thus, in the said case, pension scheme had already been introduced and was made applicable from 12.11.1973; and the employees who were the members of CPF, were made eligible for the pension scheme. In fact, the question therein was as to whether the employees of the Gujarat State Khadi Gramodyog Board, who had retired prior to 01.01.1996, were entitled to the payment of pension according to the revised pay scale as per the recommendations of the 5th Pay Commission Report. The observations in the said decision cannot be applied to issue a writ of mandamus to the appellant State to amend the Regulations and to change the service conditions.
18. In view of the foregoing, it follows that the cited decisions are of no assistance to the claim of the respondents.
19. The other factor indicated on behalf of the respondents that a small number of affected employees may not bring about much financial burden on the State hardly make out a case for issuing a mandamus to the State to amend the Regulations. Whether to amend the Regulations or not, in the scheme of Act of 1955 as also the Regulations of 1960, is required to be left to the State and for that matter, the number of employees to be affected/benefitted is not of much relevance. In this regard too, as noticed hereinbefore, apparently the objections of the State were against retrospective amendment of the Regulations and thereby allowing pension with effect from 01.04.1976. Moreover, the indications in the referred communications that such a prescription is likely to bring about a huge amount of administrative trouble to the Government cannot be dubbed as mere pretence or a bogus alibi. We would hasten to observe that irrespective of these observations and irrespective of the result of this litigation, nothing would prevent the State Government to carry out the amendment in the form suggested or in any other modified form, if the State Government would be willing to do so. The only question in the present appeal is as to whether a mandamus could have been issued to the State to carry out amendment. As noticed, the answer could only be in the negative. STATE OF ORISSA v. ORISSA KHADI AND VILLAGE INDUSTRIES BOARD KARAMCHARI SANGH [DINESH MAHESHWARI, J.]
20. The other submission made on behalf of the respondents as regards refund of amount with interest in case of grant of pensionary rights does not make out any case in favour of the employees of the Board. As observed hereinabove, writ of mandamus cannot be issued to the appellant State to carry out amendments as desired by the respondent. Hence, the question of refund of the amount received by the employees concerned does not arise in this case.
21. For what has been discussed hereinabove, we are clearly of the view that the direction issued in the impugned order dated 25.10.2010 by the learned Single Judge could not have been approved. The Division Bench of the High Court was conscious of the fact that such a mandamus cannot be issued so as to direct the State Government to carry out a particular amendment and, therefore, in the impugned judgment and order dated 20.12.2012, termed such a direction as being “advisory” in nature. However, the Division Bench went miles ahead in the very next proposition while observing that the State Government “shall” carry out this direction. Converting an advice to the State Government into a mandate in this manner, with great respect, is neither permissible nor countenanced by law.
22. Learned counsel for the respondents, in all fairness, have made a plea in the last that this Court may exercise the powers under Article 142 of the Constitution of India to fill the gaps and to provide for pensionary benefits to the employees of the Board so as to do complete justice. In this regard too, even while respecting the endeavour, we could only observe that under Article 142 of the Constitution of India, this Court cannot issue directions in violation of the statutory provisions; and sympathy or sentiment, by itself, cannot be a ground for passing an order beyond and contrary to the legal rights. In the face of existing Regulation 52, we find it difficult to accede to the prayer made by the learned counsel for the respondents. In this regard, we could only reiterate that nothing contained in this judgment shall otherwise be of any impediment, if the State Government would be willing to carry out any amendment to the Regulations of 1960.
23. Subject to the observations foregoing, this appeal succeeds and is allowed; the impugned orders are set aside; and the writ petition filed by the respondent No. 1 is dismissed. No costs. Ankit Gyan Appeal allowed. (Assisted by : Vinayak and Aarsh Choudhary, LCRAs)