# Praveen Kumar Agarwal and others v. State of U.P and another

- **Citation:** (2011) 1 ILRA 21
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-20
- **Case number:** Service Bench No. 556 of 2009
- **Bench:** Devi Prasad Singh, Vedpal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-agarwal-and-others-v-state-of-u-p-and-another-41775
- **Pages:** 20

## Headnote

Centerlised Services Rules, 1985-Rule34, 37 and 38-Post retiral benefits
including regular pension-claimed by
the
employees
Development
Authorities-on background by statuary
provision-when
they
got
retirement
benefits
like
other
State
Govt.
employees up to 1999-by impugned
circular it can not be denial-heldbeneficial
legislation
dealing
with
human
rights-should
not
be
facial
cosmetics-it can not be taken-away or
with held while made available up to
1999-even
on
different
mode
of
recruitment with different appointing
authorities-they constitute one block
and collectively carry out the statutory
provisions can not be discriminated.

Held: Para 47 and 57

Provisions contained in Rule 34, 37 and
Rule
38
(supra),
are
beneficial
provisions
and
should
be
read
collectively along with Section 24 and
other related provisions. The beneficial
legislation
or
statutory
provisions
dealing with
the
human
rights
or
livelihood should be made functional
and not facial cosmetics as held by
Hon'ble Supreme court in AIR 1987 SC
1086: M.C. Mehta and another. Vs.
Union
of
India
and
others.
Their
lordships in the said case has reiterated
the constitutional spirits propounded in
the case reported in Rammana Shett's
case
(AIR
1979
SC1628)
and
the
Constitution
Bench
observed
that
functional realism should be looked into
and not facial cosmetics.

In spite of repeated query made by this
Court, learned standing counsel failed to
bring on record any material which may
justify the issuance of impugned order
more so, when regular pension was paid
in pursuance of earlier circular/orders of
1983 (supra) which are in consonance
with the Statutory provisions (supra).
The State Government seems to have
acted arbitrarily in violation of statutory
provisions. By executive instructions, the
rights
flowing
from
the
statutory
provisions, cannot be taken away or
withheld more so, when it was made
available upto 1999.
Case law discussed:
(2002) 4 SCC 297, (2003) 3 SCC 410, (2006) 5
SCC 745, (2007) 10 SCC 528, AIR 1954 SC
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
224, AIR 1964 SC 179, (1971) 2 SCC 188,
(1974) 4 SCC 335, (1981) 4 SCC 335, (1989)
Supp-1 SCC 116=AIR 1989 SC 307, (1978) 1
SCC 248, (2001) 1 SCC 442, (1971) 2 SCC
330, (1973) 1 SCC 120, (1983) 1 SCC
305,(1987) 2 SCC 179, AIR 1992 SC 767, AIR
1987 SC 1086, (1999) 3 Supreme Court 601,
(2002) 8 Supreme Court Cases 400, (2003) 4
Supreme Court Cases 27, (2004) 5 Supreme
Court Cases 385, AIR 1972 SC 1546, 1993
Supp (2) SCC 415, 2005 LCD 1696,

## Text

_Characters 0–39,863 of 65,257. This is a partial read: ask again with offset=39863 for what follows._

1 All] Praveen Kumar Agarwal and others V. State of U.P and another
21
obscene against any person. Gandhian
theory as propounded by the petitioner was
his
prerogative,
therefore,
in
the
circumstances, it appears that process of law
has been misused.

13. Since it is at the interim stage, I do
not dwelve into that subject further.

14. Let learned AGA may file counter
affidavit within four weeks and the
thereafter the petitioner has two weeks to
file rejoinder affidavit. List thereafter.

15. In the meantime the operation of
the summoning order dated 2.4.2010 passed
in Case No. 1107/2010 (State Vs. Sanjay
Dutt) pending in the court of Chief Judicial
Magistrate, Pratapgarh, shall remain stayed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.11.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VEDPAL, J.

Service Bench No. 556 of 2009

Praveen Kumar Agarwal and others

 ...Petitioners
Versus
State of U.P.and another ...Respondent

Counsel for the Petitioner:
Asit Kumar Chaturvedi

Counsel for the Respondents:
C.S.C.

U.P.
Development
Authorities
Centerlised Services Rules, 1985-Rule34, 37 and 38-Post retiral benefits
including regular pension-claimed by
the
employees
Development
Authorities-on background by statuary
provision-when
they
got
retirement
benefits
like
other
State
Govt.
employees up to 1999-by impugned
circular it can not be denial-heldbeneficial
legislation
dealing
with
human
rights-should
not
be
facial
cosmetics-it can not be taken-away or
with held while made available up to
1999-even
on
different
mode
of
recruitment with different appointing
authorities-they constitute one block
and collectively carry out the statutory
provisions can not be discriminated.

Held: Para 47 and 57

Provisions contained in Rule 34, 37 and
Rule
38
(supra),
are
beneficial
provisions
and
should
be
read
collectively along with Section 24 and
other related provisions. The beneficial
legislation
or
statutory
provisions
dealing with
the
human
rights
or
livelihood should be made functional
and not facial cosmetics as held by
Hon'ble Supreme court in AIR 1987 SC
1086: M.C. Mehta and another. Vs.
Union
of
India
and
others.
Their
lordships in the said case has reiterated
the constitutional spirits propounded in
the case reported in Rammana Shett's
case
(AIR
1979
SC1628)
and
the
Constitution
Bench
observed
that
functional realism should be looked into
and not facial cosmetics.

In spite of repeated query made by this
Court, learned standing counsel failed to
bring on record any material which may
justify the issuance of impugned order
more so, when regular pension was paid
in pursuance of earlier circular/orders of
1983 (supra) which are in consonance
with the Statutory provisions (supra).
The State Government seems to have
acted arbitrarily in violation of statutory
provisions. By executive instructions, the
rights
flowing
from
the
statutory
provisions, cannot be taken away or
withheld more so, when it was made
available upto 1999.
Case law discussed:
(2002) 4 SCC 297, (2003) 3 SCC 410, (2006) 5
SCC 745, (2007) 10 SCC 528, AIR 1954 SC
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
224, AIR 1964 SC 179, (1971) 2 SCC 188,
(1974) 4 SCC 335, (1981) 4 SCC 335, (1989)
Supp-1 SCC 116=AIR 1989 SC 307, (1978) 1
SCC 248, (2001) 1 SCC 442, (1971) 2 SCC
330, (1973) 1 SCC 120, (1983) 1 SCC
305,(1987) 2 SCC 179, AIR 1992 SC 767, AIR
1987 SC 1086, (1999) 3 Supreme Court 601,
(2002) 8 Supreme Court Cases 400, (2003) 4
Supreme Court Cases 27, (2004) 5 Supreme
Court Cases 385, AIR 1972 SC 1546, 1993
Supp (2) SCC 415, 2005 LCD 1696,

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Employees of Development
Authorities through its Association and in
personal capacity, who were holding
various posts including Finance Advisor,
Chief Engineer, Chief Town Planner,
Executive Engineer, Assistant Engineer and
Junior Engineer, etc., have approached this
Court under Article 226 of the Constitution
of India, thereby claiming post retiral
benefits including regular pension at par
with the Government employees. Some of
the petitioners are employees of various
departments of State of U.P., State owned
Corporations,
Public
Undertakings,
Municipalities etc., appointed in pursuance
of provisions contained in sub-section 2 of
Section 5 of U.P. Urban Planning and
Development Act, 1973 (in short Act).
Their services were later on, absorbed as the
members of Centralised Services created
under the U. P. Development Authorities
Centralised Service Rules, 1985 (in short
Centralised Service Rules) which came into
force with effect from 25.6.1985 under
Section 5(A) of the Act.

2. Under the Act, following categories
of persons have been appointed in
Development Authorities of the State
namely:

1. Officers appointed under subsection (1) of Section 5 of the Act on the
post of Secretary and Chief Accounts
Officer of the Development Authorities.

2. Officers/employees appointed under
sub-section (2) of Section 5 of the Act by
the Development authorities in required
number and designation in appropriate
grade.

3. The employees or officers initially
appointed against pensionable post in
various departments of State of U.P., State
owned
Corporation
and
Public
Undertakings, having served as such for
some period and later on, appointed as
Officers
in
various
Development
Authorities under Section 5 (2) of the Act.

4.
The
employees
and
officers
appointed
under
the
Development
Authorities later on, were absorbed in
Centralised Service. Persons appointed
under sub-section (3) and (4) of Section 59
of the Act.

3. Out of 4 categories, all employees
and officers appointed in pursuance of subsection (1) of Section 5, sub-section (3) and
(4) of Section 59 of the Act, have been paid
pension except the petitioners who fall
within the second category i.e., appointed in
pursuance of powers conferred by subsection (2) of Section 5 of the Act.

4. Even some of the employees falling
in the present categories, are being paid
pension in pursuance of the orders passed
by this Court.

Smt. Rita Bhatnagar wife of late Anil
Bhatnagar is being paid pension in
pursuance of the order dated 13.12.2001
passed in Civil Misc. Writ Petition
No.42495 of 2001. Sri Girija Shanker
Mishra from all Centrallised Service, is
1 All] Praveen Kumar Agarwal and others V. State of U.P and another
23
being paid pension in pursuance of the
Government order dated 12.9.2003. In
pursuance of the Government order dated
29.9.1983, the all class-III and class-I
employees of Development Authorities
have been sanctioned pension by the
respective Development Authorities.

5. It has been submitted by the
petitioners' counsel that all those employees
who retired upto 5.4.1999 belonging to
petitioners category, have been paid pension
without any break. Those, who were serving
in erstwhile Municipal Board and joined the
Development Authorities, have been paid
regular pension. During the course of
employment, provident fund was deducted
from petitioners salary by respective
Development Authorities in accordance
with U.P. Palika Centrlaised Services Rules,
1966. Some of the petitioners were also
permitted to withdraw advance from
provident
fund.
The
respective
Development
Authorities,
have
been
contributing their shares in the form of
pension fund or in the name of contributory
provident fund. The contributed fund has
been
deposited
in
pension
fund
in
accordance with the U.P. Palika Centralised
Services Rules, 1966 or in the provident
fund of the respective employees as the case
may be. After creation of Development
Authorities
under
1973
Act,
the
Government order dated 17.3.1983 was
issued providing therein that till model
pension is framed by the Development
Authorities, employees of Development
Authorities would be entitled for pension in
accordance with Uttar Pradesh Palika
Centralised Services Retirement Benefit
Rules, 1981.

6. Thereafter, another Government
order dated 29.9.1983 was issued providing
therein that pension to class-III and class-IV
employees of Development Authorities,
should be sanctioned and paid by ViceChairman of the respective Development
Authorities whereas, with respect to the
remaining i.e.,Class-II and Class-I officers,
the sanction of pension shall be made by the
State Government till finalisation of
Development
Authorities
retirement
benefits Rules.

7.

A
combined
reading
of
Government order dated 17.3.1983 and
29.9.1983, shows that Government took
decision for payment of pension to
employees and officers of Development
Authorities till formulation and enforcement
of model pension regulations.

8. Model pension Rule was drafted
and approved by the Finance Department.
The Draft Rules namely, U. P. Urban
Planning and Development Centralised
Services, Service Retirement Rules, 1997,
was placed before the Cabinet in the year
1997 and the Cabinet thereafter, constituted
a Committee headed by Chief Secretary of
U.P. Government to look into the matter.
The
petitioners'
submitted
that
the
Committee headed by the Chief Secretary
has principally agreed for payment of
pension but no Rules or Regulations have
been framed till date. Instead of framing
Rules or Regulations, by the impugned
order dated 5.4.1999 (Annexurre No.7 to
the writ petition), it has been clarified that
with
regard
to
employees
of
the
Development Authorities, no decision has
been taken for payment of pension and they
are not entitled for payment of pension. The
impugned
order
has
been
again
supplemented by another Government order
dated 5.5.1999 (Annexure No.8 to the writ
petition). However, a perusal of the
Government order dated 5.5.1999 shows
that principally, the Government has been
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
agreed to pay pension to employees of
Centralised Services appointed in pursuance
of sub-section (2) of Section 5 of the Act.

9. On one hand, the Government
principally agreed with regard to payment
of pension to the petitioners and took a
decision to frame Rules or Regulations for
the purpose but on the other, the State
Government has kept the matter pending
since last 15 years. It may be noted that all
the Development authorities had informed
the Government that they possess sufficient
fund to meet out the requirement with
regard to payment of pension to the retired
employees
who
were
appointed
in
pursuance of sub-section (2) of Section 5 of
the Act but even then no formal decision
has been taken and communicated by the
Government for framing appropriate Rules
or Regulations to ensure payment of
pension.

10. It has been vehemently argued by
the petitioners' counsel that the petitioners
are entitled for payment of pension in terms
of Government order of the year 1983
(supra) ignoring the Government order
dated 5.4.1999 as they are employees of
Centralised Services.

Statutory Provisions

11. Section 5 of the Act empowers the
State
Government
and
Development
Authorities to make appointment on the
post falling within their jurisdiction. For
convenience, Section 5 is reproduced as
under:

"5. Staff of the Authority.--(1). The
State Government may appoint two suitable
persons respectively as the Secretary and
the chief accounts officer of the Authority
who shall exercise such powers and perform
such duties as may be prescribed by
regulations or delegated to them by the
Authority or its Vice-Chairman.

(2) Subject to such control and
restrictions as may be determined by
general or special order of the State
Government, the Authority may appoint
such number of
other officers and
employees as may be necessary for the
efficient performance of its functions and
may determine their designations and
grades.

(3) The Secretary, the Chief Accounts
Officer and other officers and employees of
the Authority shall be entitled to receive
from the funds of the Authority such
salaries and allowances and shall be
governed by such other conditions of
service as may be determined by regulations
made in that behalf."

12. Section 5-A in the Act, was
inserted by the Amending Act No.21 of
1985 with effect from 22.10.1984. Under
Section 5-A, all persons working in the
Development Authorities upon creation of
Centralised Services, unless opt otherwise,
shall be absorbed. Section 5-A of the Act is
reproduced as under:

5-A.
Creation
of
Centralised
Services.---(1). Notwithstanding anything
to the contrary contained in Section 5 or in
any other law for the time being in force,
the State Government may at any time, by
notification,
create
one
or
more
'Development
Authorities
Centralised
Services' for such posts, other than the posts
mentioned in sub-section (4) of Section 59,
as the State Government may deem fit,
common
to
all
the
Development
Authorities, and may prescribe the manner
and conditions of recruitment to, and the
1 All] Praveen Kumar Agarwal and others V. State of U.P and another
25
terms and conditions of service of persons
appointed to such service.

(2) Upon creation of a Development
Authorities Centralised Service, a person
serving on the posts included in such
service immediately before such creation,
not being a person governed by the U.P.
Palika (Centralised) Services Rules, 1966,
or serving on deputation, shall, unless he
opts otherwise, be absorbed I n such
service,---

(a) finally, if he was already confirmed
in his post, and

(b) provisionally, if he was holding
temporary or officiating appointment.

(3) A person referred to in sub-section
(2) may, within three months from the
creation of such Development Authorities
Centralised Service communicate to the
Government in the Housing Department,
his option not to be absorbed in such
Centralised Service, failing which he shall
be deemed to have opted for final or
provisional, as the case may be, absorption
in such Centralised Service.

(4) Suitability of a person absorbed
provisionally, for final absorption in a
Development
Authorities
Centralised
Service, shall be examined in the manner
prescribed and if found suitable he shall be
absorbed finally.

(5) The services of an employee who
opts against absorption or who is not found
suitable for final absorption, shall stand
determined and he shall, without prejudice
to his claim to any leave, pension, provident
fund or gratuity which he would have been
entitled to, be entitled to receive as
compensation
from
the
Development
authority concerned, an amount equal to---

(a) three months' salary, if he was a
permanent employee;

b) one month's salary, if he was a
temporary employee.

Explanation.---For the purpose of this
sub-section the term 'salary' includes
dearness allowance, personal pay and
special pay, if any.

(6) It shall be lawful for the State
Government or any officer authorised by it
in this behalf, to transfer any person holding
any post in a Development Authorities
Centralised Service from one Development
authority to another."

13.

State
Government
issued
Notification dated 22.10.1984 in pursuance
of powers conferred under sub-section (1)
of Section 5-A of the Act, creating
Development
Authorities
Centralised
Services for the post specified therein,
common to all Development Authorities.
Admittedly, the petitioners services have
been absorbed and belong to Centralised
Service. Section 24 of the Act deals with the
payment of pension and provident fund.
Section 24 of the Act provides that authority
may constitute for the benefit of its wholetime paid members and of its officers and
other employees in such manner and subject
to such conditions, as the State Government
may specify, such pension or provident
funds as it may deem fit and in case it is
done, the State Government shall declare
that provision of the Provident Funds Act,
1925, shall apply. Statutory provisions
contained in the Act reveals that for the
benefit of serving employees, the provisions
may be made for payment of pension and
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
provident fund as deemed fit by the State
Government. For convenience Section 24 of
the Act is reproduced as under:

"24. Pension and Provident fund.---
(1) The Authority may constitute for the
benefit of its whole-time paid members and
of its officers and other employees in such
manner and subject to such conditions, as the
State Government may specify, such pension
or provident funds as it may deem fit.

(2) Where any such pension or
provident fund has been constituted, the State
Government may declare that the provisions
of the Provident Funds Act, 1925, shall apply
to such fund as if it were a Government
Provident Fund."

14. U. P. Development Authorities
Centralised Service Rules, 1985 was notified
on 25.6.1985 and according to it, State
Government shall be the appointing authority
and persons absorbed under Rule shall be the
members of service. The cadre and strength
of service has been given under Rule 3. The
age of superannuation has been provided
under Rule 34. Rule 37 provides that any
matter not covered by these Rules or by
special orders, the members of service, shall
be governed by Rules, Regulations and
orders applicable generally to the U.P.
Government servants serving in connection
with the affairs of the State. For convenience,
Rule 34 and 37 is reproduced as under:

"34. (1) Subject to the provisions of
Sub-rules (2) and (3), the age of retirement
from service of all officers and other
employees of the service shall be sixty years
beyond which no one shall ordinarily be
retained n the service.

(2) The appointing authority may, at
any time, by three months notice in writing
or three months pay in lieu thereof to any
officer or other employees of the service
(whether permanent or temporary) without
assigning any reason, require him to retire in
public interest after he attains the age of fifty
years.

(3) An officer or other employee of the
service may be three months notice to the
appointing
authority
seek
voluntary
retirement at any time after attaining the age
of fifty years provided he has completed
qualifying service for twenty years. The
retirement under the sub-rule shall take effect
only after the appointing authority has
allowed the officer or other employee of the
service to retire.

Provided that it shall be open to the
appointing authority to allow an officer or
other employee of the service to retire
without any notice or by a shorter notice.

(4) A retiring pension and/or other
retirement benefits, if any, shall be available
in accordance with and subject to the
provisions of the relevant rules applicable to
every officer or other employees who retires
or is required or allowed to retire under this
rule.

Explanation--(1) The decision of the
appointing authority under sub-rule (2) to
require the officer or other employee to retire
as specified therein shall be taken if it
appears to the appointing authority to be in
public interest but nothing herein contained
shall be construed to require any recital in the
order of such decision having been taken in
the public interest.

(2) Every such decision shall, unless
the contrary is proved, be presumed to have
been taken in the public interest."
1 All] Praveen Kumar Agarwal and others V. State of U.P and another
27

"37. (1) If any dispute of difficulty
arises regarding interpretation of any of the
provisions of these rules, the same shall be
referred to the Government whose decision
shall be final.

(2) In regard to the matters not covered
by these rules or by special orders, the
members of service shall be governed by the
rules, regulations and orders applicable
general to U.P. Government servants serving
in connection with the affairs of the State.

(3) Matters not covered by sub-rules (1)
and (2) above shall be governed, by such
orders as the Government may deem proper
to issue."

15. Admittedly, all the employees who
were working earlier in Nagar Palika, Nagar
Nigam and later on, whose services were
merged and absorbed with the Centralised
Services, are being paid regular pension in
pursuance of the provisions of Section 59 (3)
and (4) of the Act. The benefit available to
them, have not been withdrawn. It has also
been admitted at bar that persons appointed
in pursuance of sub-section (1) of Section 5
of the Act, have been paid regular pension.
Services of persons working in the U.P.
Palika Centralised Service under Section 66,
have been absorbed under sub-section (2) of
Section 5-A of the Act. Except the persons
appointed in pursuance of the powers under
sub-section (2) of Section 5 of the Act, all
persons have been paid regular pension. It
may be noted that Section 24 of the Act is
equally applicable to all the incumbent
appointed
in
Development
Authorities
including the petitioners or the persons
absorbed from Palika Centralised Service.
Even to petitioners cadre, regular pension
was being paid upto 1999 in pursuance of the
provisions contained in the Act, Rules
(supra), and the two Government orders:One
dated 17.3.1983 and other, dated 29.9.1983.
It shall be appropriate to reproduce the above
two Government orders dated 4.3.1983. The
Government order dated 17.3.1983 is
reproduced as under:

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lanHkZ esa eq>s vkidks ;s lwfpr djus dk funsZ"k gqvk gS
fd mRrj izns"k uxj ;kstuk vkSj fodkl vf/kfu;e
1973 dh /kkjk 561⁄421⁄2 1⁄4x1⁄2 ds v/khu izR;sd izkf/kdj.k dks
vius lsok fuo`Rr deZpkfj;ksa dks isa'ku dk Hkqxrku fd;s
tkus gsrq 'kklu ds iwoZuqeksnu ls fofu;ekoyh cukuh gS
fdUrq vc rd fdlh Hkh izkf/kdj.k ls] bl iz;kstukFkZ
vkn'kZ fofu;ekoyh cuk;s tkus gsrq dksbZ izk:I izkIr ughs
gq, gSaA vr,o ;g vuqjks/k gS fd vkn'kZ fofu;ekoyh
cuk;s tkus gsrq vko';d izk:Ik 'kklu dks ;Fkk'kh?kz
miyC/k djkus dk d"V djsaA

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vkn'kZ fofu;ekoyh esa dqN le; yxsxk vr,o 'kklu
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cuus rd mDr vf/kfu;e dh /kkjk 591⁄431⁄2 ds vuqlj.k esa
LFkkuh; egkikfydk dh isa'ku fu;ekoyh esa] l{ke
izkf/kdkjh esa vko';d la'kks/ku ekurs gq,] lanfHkZr
fu;ekoyh ds izkfo/kkuksa ds vuqlkj gh] lsokfuo`Rr
vf/kdkfj;ksa o deZpkfj;ksa dks isa'ku Lohd`r dh tk;A

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28 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
la[;k%& ...‰@...‰] &„&ƒ...... Mh,@ƒŠ]rn~ fnukad

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16. The Government order dated
29.9.1983, which is a clarificatory order, is
reproduced as under:

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isz'kd]

Jh vkuUn Lo:i oekZ]

la;qDr lfpo]

mRrj izns"k "kklu]

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17. The important factor seems to lie
in favour of the petitioners. Keeping in
view
Section
24
of the
Act,
the
contributory provident fund were deducted
during the entire service period. It has also
not been disputed that the Development
Authorities have informed the Government
in writing that they have sufficient fund to
meet out the expense with regard to
payment of pension (around 50 crores). In
such situation more so when the regular
pension was paid upto 1999 to the persons
appointed in pursuance of sub-section (2)
of Section 5 of the Act and retired upto
1999, then no plausible and justified
ground has been pointed out by the
respondents with regard to denial of
pension to the petitioners or employees
who retired subsequently.

18. It is settled law that while
considering the statutory provisions or intent
of Legislature, each and every word, Act, or
Rule, should be taken into account and be
given meaning. The provision contained in
the Act or Rules, should not be read in
piecemeal. They should be given meaning by
reading each section, para as well as the
entire Act or Rule, vide (2002) 4 SCC 297
Grasim Industries Limited v. Collector of
Customs; (2003) 3 SCC 410 Easland
1 All] Praveen Kumar Agarwal and others V. State of U.P and another
29
Combines v. CCE; (2006) 5 SCC 745 A.
N. Roy v. Suresh Sham Singh and (2007)
10 SCC 528 Deewan Singh v. Rajendra
Prasad Ardevi and other.

19. In view of the above, once all
persons have been given regular pension
appointed in view of the same Act and rules
and even the petitioners' cadre was also paid
regular pension upto the year 1999, then
there appears to be no embargo under the Act
or Rule to stop the payment of pension to the
petitioners' cadre who retired after 1999. The
impugned order seems to be an instance of
non-application of mind to the statutory
provisions as well as Rules. Once the State
Government exercised its discretion in
pursuance of the power conferred by Section
24 of the Act for payment of pension to all
the employees working in the Development
Authorities including the petitioners cadre,
the stoppage of payment of petition to
petitioners at later stage, seems to be unjust,
improper and discriminatory.

20. Hon'ble Supreme Court in the case
reported in AIR 1954 SC 224: M/s.Dwarka
Prasad Laxmi Narain. Vs. State of Uttar
Pradesh and others, held that limitation
imposed upon a person in enjoyment of a
right should not be arbitrary or of an
excessive nature beyond what is required in
the interest of the public. A Legislation or
order which is arbitrary or excessively
invades the right, cannot be said to contain
the quality of reasonableness unless it strikes
a proper balance.

21. In the case reported in AIR 1964
SC 179: T. Devadasan Vs. Union of India
and another, Hon'ble Supreme Court held
that State shall not deny to any person the
equality before law or equal protection
before laws within the territory of India. The
equality provided by Article 14 is equal
among equals. The aim of Article 14 is to
ensure that individual distinction or arbitrary
discrimination shall not be made by the State
between a citizen and a citizen who answer
the same description and the differences
which may obtain between them are of no
relevance for the purpose of applying a
particular law, reasonable classification is
permissible.

22. In (1971) 2 SCC 188: Mohd.
Usman and others Vs. State of Andhra
Pradesh, their lordships held that equality is
attracted not only when equals are treated as
unequals but also where unequals are treated
as equals. In case Statutes oblige every
person extending certain benefit then one
cannot be denied from the benefit available
under the Statutes.

23. In (1974) 4 SCC 3: E.P. Royappa.
Vs. State of Tamil Nadu and another, the
everlasting observation of Hon'ble Supreme
Court shall regulate the society for all times
to come. The Hon'ble Supreme Court
observed that Article 14 is the genus while
Article 16 is a species. Equality is antithetic
to arbitrariness. In fact equality and
arbitrariness are sworn enemies; Articles 14
and 16 strike at arbitrariness in State action
and ensure fairness and equality of treatment.
It shall be appropriate to reproduce relevant
portion from Royappa case (supra) as under:

"85.
...
Art.
16
embodies
the
fundamental guarantee that Arts. 14 as there
shall be equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State. Though enacted as a distinct and
independent fundamental right because of
its great importance as a principle ensuring
equality
of
opportunity
in
public
employment which is so vital to the
building up of the new classless egalitarian
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
society envisaged in the Constitution, Art.
16 is only an instance of the application of
the concept of equality enshrined in Art. 14.
In other words, Art. 14 is the genus while
Art 16 is a species, Art. 16 gives effect to
the doctrine of equality in all matters
relating to public employment. The basic
principle which, therefore, informs both
Arts. 14 and 16 is equality and inhibition
against discrimination. Now, what is the
content and reach of this great equalising
principle? It is a founding faith, to use the
words of Bose J., "a way of life", and it
must not be subjected to a narrow pedantic
or lexicographic approach. We cannot
countenance any; attempt to truncate its allembracing scope and meaning, for to do so
would be to violate its activist magnitude.
Equality is a dynamic concept with many
aspects and dimensions and it cannot be
"cribbed cabined and confined" within
traditional and doctrinaire limits. From a
positivistic point of view, equality is
antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic
while the other, to the whim and caprice of
an absolute monarch. Where an act is
arbitrary it is implicit in it that it is unequal
both according to political logic and
constitutional law and is therefore violative
of Art. 14, and if it affects any matter
relating to public employment, it is also
violative of Art. 16. Arts. 14 and 16 strike at
arbitrariness in State action and ensure
fairness and equality of treatment. They
require that State action must be based on
valid relevant principles applicable alike to
all similarly situate and it must not be
guided by any extraneous or irrelevant
considerations because that would be denial
of equality. Where the operative reason for
State action, as distinguished from motive
inducing from the antechamber of the mind,
is not legitimate and relevant but is
extraneous and outside the area of
permissible
considerations,
it
would
:amount to mala fide exercise of power and
that is hit by Arts.14 and 16. Mala fide
exercise of Power and arbitrariness are
different lethal radiations emanating from
the same vice : in fact the matter
comprehends the former. Both are inhibited
by Arts. 14 and 16."

24. In (1974) 4 SCC 335: The
General Manager South Central Railway
Secunderabad and another. Vs. A.V.R.
Siddhantti and others, Hon'ble Supreme
Court reiterated the Royappa's case (supra)
and held that fundamental right and equality
means that persons in like situation under
like circumstances, are entitled to be treated
alike. So long as employees similarly
circumstanced in the same class of service
are treated alike, the question of hostile
discrimination does not arise.

25. In (1981) 4 SCC 335:Air India.
Vs. Nergesh Meerza and others, Hon'ble
Supreme Court has summed up the equality
clause as well as settled the law in para 39
thereof, as under:

"39. Thus, from a detailed analysis
and close examination of the cases of this
Court starting from 1952 till today, the
following propositions emerge:

(1) In considering the fundamental
right of equality of opportunity a technical,
pedantic or doctrinaire approach should not
be made and the doctrine should not be
invoked even if different scales of pay,
service terms, leave, etc., are introduced in
different or dissimilar posts.

Thus, where the class or categories of
service are essentially different in purport
and spirit, Article 14 cannot be attracted.
1 All] Praveen Kumar Agarwal and others V. State of U.P and another
31

(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 general to be examined:

(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."

26. In (1989) Supp-1 SCC 116=AIR
1989 SC 307: Roop Chand Adlakha and
others. Vs. Delhi Development Authority
and others, Hon'ble Supreme Court has
observed that classification shall depend
upon whether the differences are relevant to
the goals sought to be reached by the law
which
seeks
to
classify.
Overdo
classification is to undo equality. Their
lordships held that process of classification
is in itself productive of inequality and in
that sense antithetical of equality. However,
the process of classification itself cannot be
permitted
to
generate
or
aggravate
inequality.
Hon'ble
Supreme
Court
cautioned that undisclosed or unknown
reason for a classification rendering the
precious guarantee of equality "a mere rope
of sand". Relevant paragraphs from the case
of Roop Chand Adlakha (supra) are
reproduced as under:

"19.
But
then
the
process
of
classification is in itself productive of
inequality and in that sense antithetical of
equality.
The
process
would
be
constitutionally valid if it recognises a preexisting inequality and acts in aid of
amelioration of the effects of such preexistence inequality. But the process cannot
in itself generate or aggravate the inequality.
The process cannot merely blow up or
magnify
insubstantial
or
microscopic
differences on merely meretricious or
plausible differences. The overemphasis on
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the doctrine of classification or any anxious
and sustained attempts to discover some
basis for classification may gradually and
imperceptibly deprive the article of its
precious content and end in replacing
doctrine of equality by the doctrine of
classification. The presumption of good
faith in and of constitutionality of a
classification cannot be pushed to the point
of predicating some possible or hypothetical
but undisclosed and unknown reason for a
classification
rendering
the
precious
guarantee of equality "a mere rope of sand".

20. "To overdo classification is to undo
equality." The idea of similarity or
dissimilarity of situations of persons, to
justify classification, cannot rest on merely
differentia which may, by themselves be
rational or logical, but depends on whether
the differences are relevant to the goals
sought to be reached by the law which seeks
to classify. The justification of the
classification must needs, therefore, to be
sought beyond the classification. All marks
of distinction do not necessarily justify
classification irrespective of the relevance
or nexus to objects sought to be achieved by
the law imposing the classification."

27. In (1978) 1 SCC 248: Msr.
Maneka Gandhi. Vs. Union of India and
another, while reiterating the principle
enunciated in Royappa's case (supra) and
other cases, their lordships held that equality
and arbitrariness both are sworn enemies.
Where an act is arbitrary, it is implicit in it
that it is unequal both according to political
logic and constitutional law and is therefore
violative of Article 14 which strikes at
arbitrariness in State action and ensures
fairness and equality of treatment. The
principle of reasonableness, legally as well
as philosophically, is an essential element of
equality
or
non-arbitrariness
pervades
Article 14 like a brooding omnipresence
and the procedure contemplated by Article
21 must answer the test of reasonableness in
order to be in conformity with Article 14.

28. In (2001) 1 SCC 442: K. R.
Lakshman and others. Vs. Karnataka
Electricity Board and others, their
lordships reiterated that classification must
satisfy
two
conditions
namely,
the
classification to be founded on intelligible
differentia which distinguishes persons or
things that are grouped from others who are
left out of the group and that the differentia
must have a rational relation to the object
sought to be achieved by the legislation.
There must be a nexus between the basis of
classification and the object of the
legislation.

29. In the case reported in (1971) 2
SCC 330: Deokinandan Prasad. Vs. The
State of Bihar and others, their lordship
held that right to receive pension is property
under Article 31 (1) and by a mere
executive order the State had no powers to
withhold the same. Hon'ble Supreme Court
observed as under:

"27.
The
last
question
to
be
considered, is, whether right to receive
pension by a Government servant is
property, so as to attract Articles 19 (1 (f)
and 31 (1) of the Constitution. This question
falls to be decided in order to consider
whether the writ petition is maintainable
under Article 32. To this aspect, we have
already adverted to earlier and we now
proceed to consider the same.

28. According to the petitioner the
right to receive pension is property and the
respondents by an executive order, dated
June 12, 1968, have wrongfully withheld
his pension. That order affects his
1 All] Praveen Kumar Agarwal and others V. State of U.P and another
33
fundamental rights under Articles 19 (1) (f)
and 31 (1) of the Constitution...."

Hon'ble
Supreme
Court
further
observed that pension is not to be treated as
bounty payable on sweet will and pleasure
of the Government and the right to
superannuation
pension
including
its
amount is a valuable right vesting in a
Government servant.

30. In the case reported in (1973) 1
SCC 120: State of Punjab. Vs. K.R. Erry
and Sobhag Rai Mehta, Hon'ble Supreme
Court ruled that right of Government
servant to receive pension is property under
Article 31 (1) and by mere executive order
the State Government did not have power to
waive the same.

31. In the case reported in (1983) 1
SCC 305: D.S. Nakara and others.