As per case facts, doctors' associations raised concerns about limited promotional opportunities, leading the Government to introduce a Dynamic Assured Career Progression scheme. Initially prospective, it was later made retrospective. ...
No Acts & Articles mentioned in this case
2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.09.2026
PRONOUNCED ON : 30-09-2026
CORAM
THE HON'BLE MR JUSTICE C.V. KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
WA(MD) Nos. 440 to 444 of 2026
CNR:{HCMD010325792026}
and
CMP(MD) Nos. 4005, 4006, 4007, 4008, 4009 and 5231 of 2026
WA(MD) No. 440 of 2026
1.The Principal Secretary to Government
Finance (PC-2) Department, Secretariat,
Fort St. George,
Chennai 600 009.
2.The Principal Secretary to Government,
Health and Family Welfare (A1) Department,
Secretariat, Fort St George,
Chennai -600 009.
3.The Director of Medical Education and
Research Department,
Kilpauk, Chennai - 600 010.
4.The Director of Treasuries and Accounts,
3rd Floor, Perasiriyar K.Anbazhagan Maaligai,
No.571, Anna Salai, Nandanam,
Chennai - 600 035.
..Appellant(s)
Vs
1.Dr.V.Sathyavan
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2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
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2.Dr.T Rajagopal
3.R.Venkataratnam
4.Dr.V. Soundarajan
5.Dr.S. Nagarathinam
6.Dr.V Narayanasamy
7.Prof.Dr M Eswaran
8.Dr. S. Kamaraj
9.Dr.Kalaivani A
10.Dr.S Ramasamy
11.Dr.R. Ganesan
12.Dr.Chandramathi
13.Dr.G. Chandrakanthan
14.Dr.A. Natarajan
15.Dr.A. Raju
16.Dr.V. Natarajan
17.Dr.P. Ravikumar
18.Dr.V. D Raghavendran
19.Dr.N. Krishnamoorthy
20.Dr.N. Thambi Arul
21.Dr.S. Prathab Anbunathan
22.Dr.S. Selvam
23.Prof.Dr.M Rajaguru
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24.Prof.Dr.S Rajarajeswari
25.Dr.S.Balakrishnan
26.Dr.Rathi Aditynan D
27.Dr.M. Vasantha
28.Dr.U.Sornamala
29.Dr.A. Jaffarullah
30.Dr.Felsia Newton
31.Dr.C. Shanmugasundaram
32.Dr.Dhamayanthi A
33.Dr.G. Krishnan
34.V.Ramamoorthy
35.Dr.P. Vedamoorthy
36.Dr.D. Meikandan
37.Dr.M. Kamaraj
38.Dr.A. Mossadeq
39.Dr.P. Kalyani
40.Dr.N. Vijayasankaran
41.Dr.A. Jayaveer
42.Dr.V. Murugesan
43.Dr.M. Arunagiri
44.Dr.M. Chandra
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45.Dr. G. Regupathy
46.Dr. S. Indirani
47.Dr. R. Pugalendhi
48.R. Nalini
..Respondent(s)
WA(MD) No. 441 of 2026
1.The Principal Secretary to Government
Finance (PC-2) Department Secretariat,
Fort St George, Chennai 600 009
2.The Principal Secretary To Government
Health Family Welfare A1,
Department Secretariat,
Fort St.George,
Chennai 600 009
3.The Director Medical Education Research
Department, Kilpauk Chennai 600 010.
4.The Director Of Treasuries And Accounts,
3
rd
Floor, Perasiriyar K.Anbazhagan Maaligai,
No.571, Anna Salai, Nandanam,
Chennai-600 035.
..Appellant(s)
Vs
S.M.Mohideen Sahib
..Respondent(s)
WA(MD) No. 442 of 2026
1.The Principal Secretary,
Finance (PC-2) Department,
Secretariate,
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2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
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St.George Fort,
Chennai-600 009.
2.The Principal Secretary,
Health and Family Welfare Department,
Secretariat, St.George Fort, Chennai-600 009.
3.The Director Of Medical Education And
Research Department,
Kilpauk, Chennai - 10.
4.The Director Of Medical And Rural Services
No 359- 361, DMS Campus,
Anna Salai Teynampet,
Chennai 600 006.
5.The Director of Medical And Rural
Services [ESI]
No 359- 361, DMS Campus,
Anna Salai Teynampet,
Chennai 600 006.
6.The Director,
Public Health and Preventive Medicine,
No.359, Anna Salai,
DMS Campus, Teynampet,
Chennai-600 006.
7.The Director of Treasuries and Accounts,
3
rd
Floor, Perasirayar K.Anbazhagan Maligai,
571, Anna Salai,
Nanthanam,
Chennai.
..Appellant(s)
Vs
1.N.Balasubramanian
2.Dr T Jeyaramakrishnan
..Respondent(s)
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2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
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WA(MD) No. 443 of 2026
1.The Principal Secretary
Finance (PC-2) Department,
Secretariate,
St.George Fort,
Chennai-600 009.
2.The Principal Secretary to Government
Health and Family Welfare Department
Secretariat St George,
Fort Chennai 600 009
3.The Director Of Medical Education and
Research Department,
Kilpauk, Chennai.
4.The Director of Medical and Rural Services
No 359- 361, DMS Campus,
Anna Salai Teynampet,
Chennai 600 006.
5. The Director of Medical And Rural
Services [ESI]
No 359- 361, DMS Campus,
Anna Salai Teynampet, Chennai 600 006.
6.The Director
Public Health and Preventive Medicine,
No 359 Anna Salai,
DMS Campus Teynampet,
Chennai 600 006.
7.The Director Of Treasuries And Accounts,
3
rd
Floor,
Perasiriyar K.Anbazhagan Maligai,
571, Anna Salai,
Nanthanam,
Chennai.
..Appellant(s)
Vs
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2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
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1.Dr.C.Kamaraj
2.Dr.M.Jeyaprakash
3.Dr.A.J.Thirruthuvathas
4.Dr.C.Annaroja
5.Dr.C.Somasundaram
6.Dr.S.Koilpillai Packiaraj
7.Dr.S.Syed Ibrahim
8.Dr.T.R.Somasundaram
9.Dr.N.Elangovan
10.Dr.Marina Packiaraj
11.Dr.M.PrabakaraSundaralingam
12.Dr.M.Sakthivel
13.Dr.V.Jeganathan
14.Dr.S.Subbaiah
15.Dr.A.Mahakrishnan
16.Dr.M.C.A.Kallelullah
17.Dr.S.Jeyalakshmi
18.Dr.P.Chokalingam
19.Dr.K.Govindan
20.Dr.N.T.Srinvasan
21.Dr.V.Veerasamy
22.Dr.Chinnasamy Prabhakaran
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23.Dr.Jeevankumar
24.Dr.Indirani Kuppusamy
..Respondent(s)
WA(MD) No. 444 of 2026
1.The Principal Secretary
Finance (PC-2) Department,
Secretariate,
St.George Fort,
Chennai-600 009.
2.The Principal Secretary to Government
Health and Family Welfare Department
Secretariat St George,
Fort Chennai 600 009
3.The Director Of Medical Education and
Research Department,
Kilpauk, Chennai.
4.The Director of Medical and Rural Services
No 359- 361, DMS Campus,
Anna Salai Teynampet,
Chennai 600 006.
5. The Director of Medical And Rural
Services [ESI]
No 359- 361, DMS Campus,
Anna Salai Teynampet, Chennai 600 006.
6.The Director of Treasuries And Accounts,
3
rd
Floor, Perasiriyar K.Anbazhagan Maligai,
571, Anna Salai, Nanthanam,
Chennai.
..Appellant(s)
Vs
1.Dr.P.Sivalingam
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2.Dr.N.Durairaj
3.Dr.M.Kalyanasundaram
4.Dr.I.Shanmuganathan
5.Dr.S.Sankaramoorthy
6.Dr.B.K.Shanmugam
7.Dr.S.Murugan
8.Dr.S.M.Arumugam
9.Dr.R.Chandrasekaran
10.Dr.S.Rajendran
11.Dr.M.Ramasamy
12.Dr.S.Nagammal
13.Dr.G.Shanmugavel
14.Dr.D.Thamarai
15.Dr.M.Marimuthu
16.Dr.A.Chidambaram
17.Dr.M.Palanisamy
18.Dr.M.P.Mohamed Sheriff
19.Dr.A.Malathi
20.Dr.S.V.R.Sanjeevi Rajah
21.Dr.K.Srinivasan
22.Dr.K.Navaneetham Krishnasamy
23.Dr.S.Chandrabai
24.Dr.R.Sundararajan
25.Dr.M.Chidambaram
26.Dr.M.Ramasamy
27.Dr.R.Sundararajan
28.Dr.P.Jeevaraj
29.Dr.S.Munisamy
30.Dr.V.D.Krishnaram
31.Dr.A.Yamunadevi
32.Dr.V.Seetharaman
33.Dr.P.Kannan
34.Dr.R.Durairaj
35.Dr.T.Prabhakaran
36.Dr.C.Gopalakrishnan
37.Dr.S.S.Rajendran
38.Dr.P.Jagadeesapandian
39.Dr.K.Raman
40.Dr.S.Ahanatha Pillai
41.Dr.N.Krishnaveni
42.Dr.M.Ravinarayanan
43.Dr.V.Nayarayanan
44.Dr.P.Lakshmanan
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45.Dr.S.Ulaganayaki
46.Dr.S.Francis Dominic Raj
47.Dr.A.Jayalakshmi
48.Dr.V.O.A.Kathiresan
49.Dr.S.Ramarajan
50.Dr.A.Srinivasan
51.Dr.P.Ponnusamy
52.Dr.P.Selvaraj
53.Dr.P.Nithyanandam
54.Dr.R.Karunaikadal
55.Dr.S.Selvamoni
56.Dr.A.Selvaraj Jeyaseelan
57.Dr.M.Sankareswari
58.Dr.L.Subramanian
59.Dr.M.S.Somanathan
60.Dr.A.V.Samuvel
61.Dr.S.Seetharaman
62.Dr.S.Sivaraj
63.Dr.V.Saraswathi
64.Dr.S.Saraswathy
65.Dr.Promilda
66.Dr.P.Jayalakshmi
67.Dr.S.Rajendran
68.Dr.P.Indira Perathambi
..Respondent(s)
COMMON PRAYER
Writ Appeals filed under Clause 15 of Letters Patent, praying to
prefer this Memorandum of Grounds of Writ Appeal against the order passed in
WP(MD). No.9361, 32007, 9757, 9074 & 9269 of 2025 and other batch cases
dated 16.12.2025.
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WA(MD) No. 440 of 2026
For Appellant(s): Mr.Vijay Narayan
Advocate General
assisted by Mr.M.P.Senthil
Government Pleader
For Respondent(s):Mr.L.Chandrakumar
for Mr.T.Sakthi Kumaran
(RR1, 3, 5 to 39, 42 to 48)
and Mr.Shazim Shagar
(RR40 & 41)
R2 & R4 (Died)
WA(MD) No. 441 of 2026
For Appellant(s): Mr.Vijay Narayan
Advocate General
assisted by Mr.M.P.Senthil
Government Pleader
For Respondent(s):Mr.K.Venkatramani
Senior Counsel
for Mr.V.M.Jagadeesha Pandian
WA(MD) No. 442 of 2026
For Appellant(s): Mr.Vijay Narayan
Advocate General
assisted by Mr.M.P.Senthil
Government Pleader
For Respondent(s):Mr.K.Chellapandian (R1 & R2)
Senior Counsel
for Mr.A.K.Baskara Pandian
WA(MD) No. 443 of 2026
For Appellant(s): Mr.Vijay Narayan
Advocate General
assisted by Mr.M.P.Senthil
Government Pleader
For Respondent(s):Mr.K.Chellapandian (RR2 to 5, 7 to 9, 11, 14 to
20, 22 to 24)
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2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
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Senior Counsel
for Mr.A.K.Baskara Pandian
No Appearance (RR6, 10, 12 & 13)
R21-died
WA(MD) No. 444 of 2026
For Appellant(s): Mr.Vijay Narayan
Advocate General
assisted by Mr.M.P.Senthil
Government Pleader
For Respondent(s):Mr.Isaac Mohanlal (RR1 to 4, 7, 8, 10 to 32, 34 to
37, 39 to 42, 45 to 59, 61, 63 to 67)
Senior Counsel
for Mr.C.Karthik
No Appearance (RR5, 9, 33, 38, 44, 60, 68)
R6, R43 and R62 (died)
COMMON JUDGMENT
(Judgment of the Court was delivered by C.V.Karthikeyan J.)
These appeals have been filed questioning the common order of a learned
Single Judge dated 16.12.2025, by which order, the writ petitions filed by the
respondents herein had been allowed.
2. The said writ petitions have been filed by the respondents in the nature
of a certiorarified mandamus seeking records relating to G.O.Ms.No.30 (PC-2)
Department dated 05.02.2025 and had to set aside the same and also to set aside
the consequential orders. The learned Single Judge in his common order had set
aside the said Government Order and also set aside the consequential orders
complained by the writ petitioners, necessitating filing of these writ appeals by
the respondents therein /State.
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3. In view of the fact that the issues in all the writ appeals are similar and
same grounds have been urged, a common judgment is pronounced.
4. In one of the writ appeals/W.A.(MD)No.440 of 2026, C.M.P.
(MD)No.5231 of 2026 had been filed seeking to implead the petitioners therein
as further respondents. However, they align themselves with the cause of the
writ petitioners/respondents herein and since elaborate arguments have been
advanced, we are of the view that there is no necessity to implead them as
respondents as they would anyway be bound by the order passed by us. In view
of the above fact, before proceeding further, C.M.P.(MD)No.5231 of 2026
stands dismissed.
5. The writ petitioners were all pensioners/family pensioners. Either they
or their predecessors had worked as Doctors under the Government of Tamil
Nadu. It would have been a more satisfying career for each one of them, had
they continued untroubled with external factors and discharged their noble
profession. But the Tamil Nadu Government Doctors Association had raised a
representation that the Doctors functioning under the Government of Tamil
Nadu did not have adequate promotional opportunities and stagnated in a
particular level and therefore sought redressal.
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6. The Government examined this representation and formed a
Committee and on the basis of its report dated 30.08.2009 issued
G.O.Ms.No.354, Health and Family Welfare Department dated 23.10.2009.
The troubles of the Doctors commenced. Their focus now shifted to the
remuneration that they would get consequent to the representation made by their
Association and the report of the Committee. They are still disturbed, though
they have all retired earlier to 23.10.2009. Many of them have died. Their legal
representatives are receiving family pension. Those, who are alive are
constantly grieving.
7. It would had been a far far better situation, if they are permitted to
reflect, when in vacant or pensive mood, about their successes and triumphs in
treating patients, rather than suffering for the alleged denial of adequate
pension. They have now approached the corridors of the Court, an unknown
and unwanted place for them.
8. Be that as it may, in G.O.Ms.No.354, referred supra, the Government
had examined the representation and granted Dynamic Assured Career
Progression (DACP) to compensate lack of promotional opportunities and
stagnation at various levels. The Government had examined the modalities of
providing DACP and had issued various directions granting such career
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progression. The Government also had to equalise the Doctors working in
hospitals, who come under the Director of Medical and Rural Health Services
and Director of Public Health and Preventive Medicines and who are normally
catagorised as Assistant Surgeons, Senior Assistant Surgeons, Civil Surgeons
and Senior Civil Surgeons and the Doctors, who come under the Director of
Medical Education categorised as Assistant Professors, Associate Professors
and Professors. In order to provide an incentive, since stagnation had been
identified in each one of the post in both the streams, by the said Government
Order, a new rank of Chief Civil Surgeon was created. It was only a rank and
would not mean that the person is the head of an Administrative Unit. It only
entitled him to receive higher pay than the Civil Surgeon. Similarly, in the
Education field, a new grade of Senior Assistant Professor was created, again
providing pay protection. But, he can never be an Associate Professor. It is just
a step up from the Assistant Professor.
9. We are not delving into this particular Government Order, since it is
not the subject matter of challenge before this Court. But we only refer to the
further steps taken by the Government, which has been followed by this
unfortunate litigation. The time bound promotions were then clarified by a
further Government Order in G.O.Ms.No.245 dated 31.10.2013, wherein the
Doctors were held out to be entitled for promotion on completion of 8/15/17/20
years of service. Then there was a confusion as to when this particular time
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bound promotion would take effect. It was first stated that it would be from the
date of issuance of G.O.Ms.No.245 dated 30.10.2013, but later by
G.O.Ms.No.301 dated 06.10.2025, it was held that such time bound promotions
would be given from the date of G.O.Ms.No.354 dated 23.10.2009.
10. This consideration by the Government gave rise to further
complications. The Doctors, who had retired started to claim pension on the
basis of time bound promotions. They had not been given time bound
promotions, but they claimed that when they had completed 8/15/17/20 years of
service, they should have been promoted, though they had actually not been, but
should have been considered as having been promoted and therefore sought
revision of pension. The Government had issued an answer for the same and
passed G.O.Ms.No.236, Finance (Pay Cell) Department, dated 12.07.2018
revising the pension/family pension of Medical Officers/Professors, who had
retired prior to 23.10.2019/ date of issuance of G.O.Ms.No.354. The
Government further granted pensionary benefits with prospective effect in view
of the financial commitment, which is a significant factor to be considered by
the Government, since the Government had to budget the benefits of not only
the Doctors, but the entire public and its welfare scheme for the entire public
and the whole gamut other public servants. However, the pension would be
revised with reference to higher pay scale notionally and monetary benefits
would be granted prospectively.
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11. Thereafter, for the reasons best known and which we are not inclined
to examine, the Government issued show cause notices on 23.05.2020
proposing to cancel G.O.Ms.No.236. By this show cause notices, the
Government had stated that the enhanced pension /family pension would be
restored to the rates admissible prior to the issue of G.O.Ms.No.236, however,
without any recovery. The Government called for objection to be addressed by
anybody who wanted to raise objections. This show cause notice was
challenged in a batch of writ petitions in W.P.(MD)No.7905 of 2022 etc., batch.
The writ petitions came up for consideration before a learned Single Judge of
this Court, who by a common order dated 12.12.2023 had held as follows:
“15.Since the main grievance of the petitioners is with regard to
the matters stated under Paragraph Nos.4, 5 and 6 of the impugned Show
Cause Notice, this Court is of the view that part of the Show Cause Notice
alone can be set aside by granting liberty to the petitioners and all
similarly placed persons to make their representations to the Government
and on receipt of the same, the Government shall consider the
representations in the light of the observations already made and
uninfluenced by the contents of Paragraph Nos.4, 5 and 6 of the impugned
Show Cause Notice and shall pass orders.”
12. Paragraph Nos.4, 5 and 6 referred by the learned Single Judge related
to the grant of pension and in para 5 and 6, it had been stated as follows:
“5. After careful consideration of the above aspects and also considering
the estimated recurring expenditure involved, it is considered that it may not be
feasible to sustain the orders issued in the Government Order sixth cited.
6. Hence, the Government Order sixth cited is proposed to be cancelled with
prospective effect, and the enhanced pension/family pension drawn by Medical
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Officers/their family members by virtue of Government Order sixth cited will be
restored to the rates admissible prior to the issue of Government Order sixth
cited, without any recovery from their pension/family pension. If the Medical
Officers / their family members, who are in receipt of enhanced pension/family
pension based on the orders issued in Government Order sixth cited have any
objection to the same, representations in this regard should be addressed to the
Deputy Secretary to Government, Finance(Pay Cell)Department, Secretariat,
Chennai - 9 so as to reach on or before 19.06.2020 failing which it will be
considered that there is no objection to Government's proposed action.”
13. In para 4, the considerations, which lead to the confusions in para 6,
have been stated.
14. Thereafter, the Government on considering the said directions issued
by the learned Single Judge, passed G.O.Ms.No.30, Finance (PC2), Department
dated 05.02.2025 providing as follows:
“17.The Government after careful consideration and due to changed
circumstances, in view of implementation of various welfare schemes in public
interest, it is utmost necessary to re-visit the said orders. Accordingly, after
considering various aspects, Government direct that the orders issued in the
reference eighth read above is hereby cancelled with prospective effect and the
Enhanced Pension / Family Pension drawn by Medical Officers / their family
members by virtue of the above said Government Order will be restored to the
rates admissible prior to the issue of the above Government Order. The
enhanced Pension / Family Pension already drawn till the issue of orders will
be waived and no recovery will be effected. In respect of type II/III cases,
necessary orders shall be issued on the lines of the orders passed in this
Government Order.”
15. It is thus seen that the Government had once again reiterated the same
stand as given in show cause notice and had again stated that the orders issued
in G.O.Ms.No.236 stood cancelled with prospective effect and the pension
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would be restored to the rates admissible prior to issuance of the said
Government Order. However, the pension which had already been drawn
would be waived and there would be no recovery. This Government Order had
been put to challenge in the writ petitions and the common order passed by the
learned Single Judge is the subject matter of the present writ appeals.
16. The learned Single Judge had examined the arguments advanced on
behalf of the writ petitioners, who stated that the Government Order had been
passed reiterating the reasons shown in the show case notice, which had been
specifically set aside by the learned Single Judge. It was also noted that grant of
pensionary benefits is a welfare measure and there is a vested right in a public
servant to receive pension and the same cannot be recalled or revisited, except
in accordance with statutory provisions. It was also noted that the only
provision available to the Government is Rule 56 of the Tamil Nadu Pension
Rules, and that could be utilised to correct clerical errors in the pension orders.
It was also noted that though the Government Order had been issued under
Section 56 of the Tamil Nadu Pension Rules, it had gone beyond the power
vested in the said Rules. The learned Single Judge also noted the arguments
advanced that the Government required funds for other welfare measures and
welfare schemes.
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17. The learned Single Judge also noted arguments of the learned
Additional Advocate General that the Government had not only taken into
consideration the financial burden, but also the inconsistently in the policy. He
also noted that there was an earlier challenge to the entire issue and an order of
the Division Bench rejecting such challenge had been upheld by the Hon'ble
Supreme Court and the principle laid down was that the DACP Scheme should
only be prospective. The argument that there would be no recovery was also
noted by the learned Single Judge.
18. After noting the arguments, the learned Single examined the reasons
given for the issuance of the Government Order, namely, that there would an
expenditure of about 300 crores per annum to the exchequre and that the
implementation of other welfare scheme would be affected. He then examined
the judgment of the Hon'ble Supreme Court in D.S.Nakkara and other vs.
Union of India reported in 1983 (1) SCC 605, wherein the Hon'ble Supreme
Court had held that the pension is compensation for loyal services rendered in
the past and it is also a measure of socio economic justice, at a time when
physical and mental progress of an individual gets reduced owing to age.
19. The learned Single Judge then referred to the judgment of the Hon'ble
Supreme Court in 2013 (12) SCC 210, State of Jarkant and others vs.
Chitharanjan Das, wherein the import of Article 300(A) of the Constitution of
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India had been examined and it had been held that pension cannot be deprived
without authority of law. It was finally held that the Government should find its
resources to benefit its citizens and cannot rob the pensioners, who had a vested
right for enhanced pension. In view of those reasons, the learned Single Judge
set aside G.O.Ms.No.30, dated 05.02.2025 necessitating the respondents to file
the present appeals.
20. Heard Mr.Vijay Narayan, learned Advocate General, assisted by
Mr.M.P.Senthil, learned Government Pleader for the appellants,
Mr.K.Venkatramani, learned Senior Counsel for Mr.V.M.Jegadeesha Pandian,
learned Counsel, Mr.K.Chellapandian, learned Senior Counsel for
Mr.A.K.Baskara Pandian, Mr.Isaac Mohanlal, learned Senior Counsel, for
Mr.C.Karthik, learned Counsel, Mr.L.Chandrakumar, learned Counsel for
Mr.T.Sakthi Kumaran, learned Counsel for the respondents.
21. The learned Advocate General took the Court through the facts of the
case and contended that under G.O.Ms.No.354, a new concept called DACP,
Dynamic Assured Career Progress Scheme was introduced to alleviate the
grievances of medical professionals in Government Service by granting them
promotions on completion of 8/15/17/20 years of service. However, new posts
were not created for promotion, but rather new nomenclatures had been
introduced signifying higher grade of service and a higher scale of pay. This
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Government Order was issued on 23.10.2009. It was made prospective in
nature.
22.There were representations made that the stipulation that this
particular Government Order would be prospective in nature, would bring about
two separate class of pensioners namely, those who retired before 23.10.2009,
who did not have the benefit of this upgradation in posts or in pay and those
who retired after 23.10.2009, who had the benefit. It was therefore, sought that
the Government Order should be made retrospective and upgradation and
increase in payment should be calculated notionally depending on the period of
service put in by the retirees prior to the date of retirement and thereafter,
monetary benefits should be extended by increasing the pension accordingly.
23. The learned Advocate General pointed out that there was an earlier
round of litigation when the Government Order was directed to be applied
prospectively. A learned Single Judge of this Court had directed examination of
the representations seeking that relief. This judgment was taken up further in
appeal by the State and a Division Bench in a batch of writ appeals in W.A.
(MD)Nos.922 and 923 of 2013 by common judgment dated 24.03.2015
however upheld the principle that the Government Order stating that DACP
scheme would be introduced only prospectively cannot be interfered with and
rejected the contention that it would create two classes of pensioners.
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24.This order of Division Bench had been upheld by the Hon'ble Supreme
Court. Pointing out these facts, the learned Advocate General stated that the
issue now raised had actually been settled by the judgment of the Division
Bench. He pointed out that G.O.Ms.No.236, which had been subsequently
passed on the basis of the order of the learned Single Judge did not refer to the
Division Bench Judgment, but had introduced the scheme retrospectively. This
anomaly was corrected by issuing G.O.Ms.No.30, which was impugned before
the learned Single Judge. The learned Advocate General therefore contended
that the same issue can never be again re-agitated and re-opened and re-
examined as constructive res judicata prevented such re-visitation of the issue
already settled by the earlier Division Bench.
25.With respect to the judgment relied upon by the learned Single Judge
in D.S.Nakara and others vs. Union of India (1983) 1 SCC 305, the learned
Advocate General stated that the judgment considered liberalisation of pension
which was an entirely different concept, whereas under G.O.Ms.No.354, a
structured career progression scheme was introduced and it was made
prospective, only to avoid the financial commitment which the Government
would face had it been retrospective since there could be no beginning date
fixed and a huge of number of retired medical professionals would claim parity
and that would cause serious financial commitment on the Government.
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26.The learned Advocate General stated that as the concept, the separate
of two classes of pensioners has always been recognised by the Courts and
pointed that this cannot be termed as a discrimination of one clause with the
other. In this connection, the learned Advocate General placed reliance on the
following judgments of the Hon'ble Supreme Court:
“1.Krishena Kumar vs. Union of India [(1990) 4 SCC 207]
2. Union of India vs. P.N.Menon and others [(1994) 4 SCC 68]
3.Hari Ram Gupta (Dead) through LR Kasturi Devi vs. State of
Uttarpradesh [(1998) 6 SCC 328]
4. T.N.Electricity Board vs. R.Veerasamy and others [(1999) 3 SCC
414]”
27. In Krishena Kumar vs. Union of India [(1990) 4 SCC 207], the
Hon’ble Supreme Court has held as follows:
29. The court in Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S)
145 : (1983) 2 SCR 165] was not satisfied with the explanation that
the legislation had defined the class with clarity and precision and it
would not be the function of this Court to enlarge the class. The court
held in paragraph 65 of the report : (SCC pp. 344-45, para 65)
“With the expanding horizons of socio-economic justice, the
Socialist Republic and Welfare State which we endeavour to set up
and largely influenced by the fact that the old men who retired
when emoluments were comparatively low and are exposed to
vagaries of continuously rising prices, the falling value of the
rupee consequent upon inflationary inputs, we are satisfied that by
introducing an arbitrary eligibility criterion : ‘being in service and
retiring subsequent to the specified date’ for being eligible for the
liberalised pension scheme and thereby dividing a homogeneous
class, the classification being not based on any discernible rational
principle and having been found wholly unrelated to the objects
sought to be achieved by grant of liberalised pension and the
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eligibility criteria devised being thoroughly arbitrary, we are of the
view that the eligibility for liberalised pension scheme of ‘being in
service on the specified date and retiring subsequent to that date’
in impugned memoranda, Exs. P-1 and P-2, violates Article 14 and
is unconstitutional and is struck down. Both the memoranda shall
be enforced and implemented as read down as under : In other
words, Ex. P-1, the words : ‘that in respect of the government
servants who were in service on March 31, 1979 and retiring from
service on or after that date’; and in Ex. P-2, the words : ‘the new
rates of pension are effective from April 1, 1979 and will be
applicable to all service officers who became/become non-effective
on or after that date’ are unconstitutional and are struck down
with this specification that the date mentioned therein will be
relevant as being one from which the liberalised pension scheme
becomes operative to all pensioners governed by 1972 Rules
irrespective of the date of retirement. Omitting the unconstitutional
part it is declared that all pensioners governed by the 1972 Rules
and Army Pension Regulations shall be entitled to pension as
computed under the liberalised pension scheme from the specified
date, irrespective of the date of retirement. Arrears of pension
prior to the specified date as per fresh computation is not
admissible.”
30. Thus the court treated the pension retirees only as a
homogeneous class. The PF retirees were not in mind. The court also
clearly observed that while so reading down it was not dealing with
any fund and there was no question of the same cake being divided
amongst larger number of the pensioners than would have been under
the notification with respect to the specified date. All the pensioners
governed by the 1972 Rules were treated as a class because payment
of pension was a continuing obligation on the part of the State till the
death of each of the pensioners and, unlike the case of Contributory
Provident Fund, there was no question of a fund in liberalising
pension.
31……
32. In Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2
SCR 165] it was never held that both the pension retirees and the PF
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retirees formed a homogeneous class and that any further
classification among them would be violative of Article 14. On the
other hand the court clearly observed that it was not dealing with the
problem of a “fund”. The Railway Contributory Provident Fund is by
definition a fund. Besides, the government's obligation towards an
employee under CPF Scheme to give the matching contribution
begins as soon as his account is opened and ends with his retirement
when his rights qua the government in respect of the Provident Fund
is finally crystallized and thereafter no statutory obligation continues.
Whether there still remained a moral obligation is a different matter.
On the other hand under the Pension Scheme the government's
obligation does not begin until the employee retires when only it
begins and it continues till the death of the employee. Thus, on the
retirement of an employee government's legal obligation under the
Provident Fund account ends while under the Pension Scheme it
begins. The rules governing the Provident Fund and its contribution
are entirely different from the rules governing pension. It would not,
therefore, be reasonable to argue that what is applicable to the
pension retirees must also equally be applicable to PF retirees. This
being the legal position the rights of each individual PF retiree finally
crystallized on his retirement whereafter no continuing obligation
remained while, on the other hand, as regard Pension retirees, the
obligation continued till their death. The continuing obligation of the
State in respect of pension retirees is adversely affected by fall in
rupee value and rising prices which, considering the corpus already
received by the PF retirees they would not be so adversely affected
ipso facto. It cannot, therefore, be said that it was the ratio decidendi
in Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR
165] that the State's obligation towards its PF retirees must be the
same as that towards the pension retirees. An imaginary definition of
obligation to include all the government retirees in a class was not
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decided and could not form the basis for any classification for the
purpose of this case. Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S)
145 : (1983) 2 SCR 165] cannot, therefore, be an authority for this
case.
28. In Union of India vs. P.N.Menon and others [(1994) 4 SCC 68], the
Hon’ble Supreme Court had held as follows:
“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 : (1967) 2 SCR 325 : (1968) 1 LLJ 264] 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.
……….
15.IN the case of Action Committee South Eastern Railway Pensioners v.
Union of India the concept of ‘dearness pay’ was examined was examined,
including the two options which had been framed, beyond average price index
level at 272, fixing a cut-off date. It was h eld that merger of a part of the
dearness allowance as dearness pay on average price index level at 272, with
reference to different pay ranges, was not arbitrary in any manner and the
principle enunciated in the D.S.Nakara case was not applicable.”
29. In Hari Ram Gupta (Dead) through LR Kasturi Devi vs. State of
Uttarpradesh [(1998) 6 SCC 328], the Hon’ble Supreme Court had held as
follows:
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9. The only other question that survives for our consideration is whether the
ratio in Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] will assist the
appellant in getting the relief sought for. In D.S. Nakara v. Union of India
[(1983) 1 SCC 305 : 1983 SCC (L&S) 145] the question for consideration
before this Court was whether on the basis of date of retirement the retirees
can be classified into different groups and thereupon make provision granting
some benefits to one group denying the others. In the aforesaid case, the
provisions for pension were applicable to all retirees and, therefore,
pensioners form a class as a whole. But when the Liberalised Pension Scheme
was introduced, the said Scheme was made applicable to a group of pensioners
and not to all and therefore, it was held by this Court that pensioners form a
class as a whole and cannot be micro-classified by an arbitrary, unprincipled
and unreasonable eligibility criterion. It is to be noted that the aforesaid
judgment was considered by this Court in the subsequent Constitution Bench
judgment of Krishena Kumar v. Union of India [(1990) 4 SCC 207 : 1991
SCC (L&S) 112 : (1990) 14 ATC 846] wherein the decision of Nakara
[(1983) 1 SCC 305 : 1983 SCC (L&S) 145] was explained and it was held that
the pension retirees and provident fund retirees do not form one homogeneous
class and on the other hand, the Rules governing the provident fund and its
contribution are entirely different from the Rules governing pension and,
therefore, it would not be reasonable to argue what is applicable to the
pension retirees must also equally be applicable to provident fund retirees. It
was further held in the aforesaid case that the rights of each individual retiree
finally crystallised on his retirement whereafter no continuing obligation
remained in case of those who are governed by Provident Fund Rules whereas
in case of pension retirees, the obligation continues till the death of the
employee. This Court categorically held that Nakara [(1983) 1 SCC 305 :
1983 SCC (L&S) 145] cannot be an authority for the decision in Krishena
Kumar [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 : (1990) 14 ATC 846] . In
Union of India v. P.N. Menon [(1994) 4 SCC 68 : 1994 SCC (L&S) 860 :
(1994) 27 ATC 515] a similar question came up for consideration and
distinguishing Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] and
following Krishena Kumar [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 :
(1990) 14 ATC 846] and other similar cases, the Court held that 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
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and rational in the light of Article 14 of the Constitution, need not be held to be
invalid. 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. When the army personnel claimed the same pension
irrespective of their date of retirement, this Court in the Constitution Bench
case of the Indian Ex-services League v. Union of India [(1991) 2 SCC 104 :
1991 SCC (L&S) 536 : (1991) 16 ATC 488] considered the grievance of ex-
servicemen who had laid the claim on the basis of Nakara [(1983) 1 SCC 305 :
1983 SCC (L&S) 145] but ultimately negatived the same and followed
Krishena Kumar [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 : (1990) 14 ATC
846] . In All India Reserve Bank Retired Officers' Assn. v. Union of India
[1992 Supp (1) SCC 664 : 1992 SCC (L&S) 517 : (1992) 19 ATC 865] when
the validity of the introduction of Pension Scheme in lieu of Contributory
Provident Fund Scheme was challenged on the ground that bank employees
who retired prior to 1-1-1986 have not been given the benefit of the said
Scheme, it was held by this Court that there is no arbitrariness in the same.
30. In T.N.Electricity Board vs. R.Veerasamy and others [(1999) 3 SCC
414], the Hon’ble Supreme Court had held as follows:
“11. On 17-11-1998, a three-Judge Bench in All India PNB Retired Officers'
Assn. v. Union of India while negativing an identical claim, held as follows:
“This writ petition is squarely covered by the judgment of this
Court in All India Reserve Bank Retired Officers' Assn. v. Union of
India [1992 Supp (1) SCC 664 : 1992 SCC (L&S) 517 : (1992) 19
ATC 865] . That judgment has rightly noted the distinction that
Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] drew
between a continuing scheme and a new scheme.”
12. In view of the fact that this Court, as seen above, has consistently
taken a view, we do not want to multiply the authorities for the same
proposition except to note down the undisputed facts relating to these
cases.
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13. The retired employees (respondents) while in the service of the
Government of Tamil Nadu Electricity Department were not governed
by the pension scheme but governed by the Contributory Provident
Fund Scheme. As per the rules in force on the date of retirement, the
employees (respondents) received all retiral benefits. The appellant-
Board fixed 1-7-1986 as the date for introducing the pension scheme
in view of the Central Government Notification No. S.35012/21/84-
SSIV (SS 11) dated 25-6-1986 fixing the date as 1-7-1986, while
granting exemption from the application of the Family Scheme, 1971
and the Employees' Deposit Linked Insurance Scheme, 1976. If the
date of 1-7-1986 had to be changed, it would lead to many other
complications such as reopening and revision of past cases from 1957
to 1986 as well as seeking retrospective exemption from the
Government of India. It is also brought to our notice that by giving
retrospective effect to the pension scheme as per the impugned
judgment of the Division Bench of the High Court, the financial
burden that will have to be borne by the appellant-Board would be in
the region of about Rs 200 crores which is beyond the capacity of the
Board.
14.……
15. 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
: 1983 SCC (L&S) 145] 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 1-7-1986
including financial constraints, a valid ground. We are of the view
that the retired employees (respondents), who had retired from
service before 1-7-1986 and those who were in employment on the
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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.”
31.With respect to the financial implications, which the learned Advocate
General claimed was a very important factor, the following judgments were
relied:
1. State of Punjab and others vs. Amar Nath Goyal and others [(2005)
5 SCC 754]
2. State of Tripura and others vs. Anjan Bhattacharjee and others
[(2022) 19 SCC 705.
32. In State of Punjab and others vs. Amar Nath Goyal and others
[(2005) 5 SCC 754], the Hon’ble Supreme Court had held as follows:
“25. The only question, which is relevant and needs consideration, is whether
the decision of the Central and State Governments to restrict the revision of the
quantum of gratuity as well as the increased ceiling of gratuity consequent upon
merger of a portion of dearness allowance into dearness pay reckonable for the
purpose of calculating gratuity, was irrational or arbitrary.
26. 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 1-4-1995, after calculating the financial implications
thereon, was either irrational or arbitrary. Financial and economic
implications are very relevant and germane for any policy decision
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touching the administration of the Government, at the Centre or at the
State level.
…..
29.D.S. Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] which is
the mainstay of the case of the employees, arose under special
circumstances, quite different from the present case. It was a case of
revision of pensionary benefits and classification of pensioners into
two groups by drawing a cut-off line and granting the revised
pensionary benefits to employees retiring on or after the cut-off date.
The criterion made applicable was “being in service and retiring
subsequent to the specified date”. This Court held that for being
eligible for liberalised pension scheme, application of such a criterion
is violative of Article 14 of the Constitution, as it was both arbitrary
and discriminatory in nature. The reason given by the Court was that
the employees who retired prior to a specified date, and those who
retired thereafter formed one class of pensioners. The attempt to
classify them into separate classes/groups for the purpose of
pensionary benefits was not founded on any intelligible differentia,
which had a rational nexus with the object sought to be achieved.
However, it must be noted that even in cases of pension, subsequent
judgments of this Court have considerably watered down the rigid
view taken in D.S. Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S)
145] as we shall see later in T.N. Electricity Board v. R. Veerasamy
[(1999) 3 SCC 414 : 1999 SCC (L&S) 717] (“Veerasamy”). In any
event, this is not a case of a continuing benefit like pension; it is a
one-time benefit like gratuity.
…..
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 v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC
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(L&S) 512 : 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 1-1-1986 for 1-1-1990.” [Ibid.,
at AIR p. 784, para 17 : SCC p. 348, para 17 (emphasis supplied).]
33. More recently, in Veerasamy [(1999) 3 SCC 414 : 1999
SCC (L&S) 717] 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 [ Supra fn 2 SCC at p. 421 (para
15).] . In that case, the pension scheme applied differently to persons
who had retired from service before 1-7-1986, 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.”
33. In State of Tripura and others vs. Anjan Bhattacharjee and others
[(2022) 19 SCC 705, the Hon’ble Supreme Court had held as follows:
“18. When specific statistics were provided before the High Court
justifying its policy decision and the financial crunch/financial constraint
was pleaded, there was no reason for the High Court to doubt the same.
As such the findings recorded by the High Court in the impugned
judgment and order [Anjana Bhattacharjee v. State of Tripura, 2017
SCC OnLine Tri 271] are contrary to the averments made in affidavit
filed on behalf of the State Government. From the affidavit filed before
the High Court reproduced hereinabove, we are satisfied that a conscious
policy decision was taken by the State Government to grant the benefit of
revision of pension notionally from 1-1-2006 or from the date of
superannuation till 31-12-2008 and to pay/grant the benefit of revision of
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pension actually from 1-1-2009, which was based on their financial
crunch/financial constraint.
19. Whether the financial crunch/financial constraint due to
additional financial burden can be a valid ground to fix a cut-off date
for the purpose of granting the actual benefit of revision of
pension/pay has been dealt with and/or considered by this Court in
Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6
SCC 754 : 2005 SCC (L&S) 910] . In the aforesaid decision, it is
observed and held by this Court that financial constraint can be a
valid ground for fixation of cut-off date for grant of benefit of
increased quantum of death-cum-retirement gratuity. In paras 26, 32
and 33 of the said judgment [State of Punjab v. Amar Nath Goyal,
(2005) 6 SCC 754 : 2005 SCC (L&S) 910] , it is observed and held as
under : (SCC pp. 763 & 765)
“26. 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 1-4-1995, 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.
***
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 v. Amrit Lal Gandhi [State of Rajasthan v. Amrit Lal
Gandhi, (1997) 2 SCC 342 : 1997 SCC (L&S) 512] this Court went
so as far as to note that:
‘17. … Financial impact of making the Regulations retrospective
can be the sole consideration while fixing a cut-off date. In our
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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 1-1-1986 for 1-1-1990.’
[Id, SCC p. 348, para 17 (emphasis supplied).]
33. More recently, in Veerasamy [T.N. SEB v. R. Veerasamy,
(1999) 3 SCC 414 : 1999 SCC (L&S) 717] 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 [Id,
SCC p. 421, para 15] . In that case, the pension scheme applied
differently to persons who had retired from service before 1-7-1986,
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.”
20. In the aforesaid decision this Court after considering the
earlier decisions of this Court in State of Punjab v. Boota Singh
[State of Punjab v. Boota Singh, (2000) 3 SCC 733 : 2000 SCC
(L&S) 435] and State of Punjab v. J.L. Gupta [State of Punjab v.
J.L. Gupta, (2000) 3 SCC 736 : 2000 SCC (L&S) 437] , it is
specifically observed and held that for the grant of additional benefit,
which had financial implications, the prescription of a specific future
date for conferment of additional benefit, could not be considered
arbitrary.
21. In the subsequent decision in Bihar Pensioners Samaj
[State of Bihar v. Bihar Pensioners Samaj, (2006) 5 SCC 65 : 2006
SCC (L&S) 913] , the decision in Amar Nath Goyal [State of Punjab
v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] is
followed and it is observed and held that financial constraints could
be a valid ground for introducing a cut-off date while introducing a
pension scheme on revised basis. It is further observed and held by
this Court in the aforesaid decision that fixing of a cut-off date for
granting of benefits is well within the powers of the Government as
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long as the reasons therefor are not arbitrary and are based on some
rational consideration.
22. While applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, we are of the opinion that
in the instant case before us, the cut-off date has been fixed as 1-1-
2009 on a very valid ground i.e. financial constraint. Therefore, the
High Court manifestly erred in striking down Rule 3(3) of the Pension
Rules, 2009 being arbitrary and violative of Article 14 of the
Constitution.”
34. The learned Advocate General pointed out the ratio in the
aforementioned two sets of judgments. The learned Additional General stated
that it had been held that determining a cut of date was reasonable and that it
had been categorically held by the Hon'ble Supreme Court that it does not bring
about discrimination or separate classes of pensioners. With respect to the issue
of financial implications, the learned Advocate General argued that this is a
very important factor to be considered by the Courts and the interest of the State
is not only with respect to the litigants before the Courts, but also with respect
to everyone who are outside the Court and on the welfare schemes, which are an
integral policy of a welfare State and the implications necessarily have to be
considered.
35.The learned Advocate General also pointed out that recovery order has
been waived and there was only a re-fixation of the pension and therefore,
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argued that there cannot be a complaint that there is deprivation as stated under
Article 300 (A) of the Constitution. He therefore stated that the State was well
within its power to have a particular cut of date. He therefore, argued that the
writ petition should be allowed.
36. Mr.Isaac Mohanlal, learned Senior Counsel for the respondent
however, disputed the said contention. He pointed out that the respondents
were not claiming parity with anybody particularly with those who retired
subsequent to 23.09.2010. According to the learned Senior Counsel, the
respondents were claiming their right, which was granted to them by
G.O.Ms.No.236 and which had been deprived by the impugned Government
Order in G.O.Ms.No.30.
37. He pointed out that the only reason for such deprivation of a right
already granted was financial commitment. He pointed out that those who
retired in the year 2009, would now have attained the age of 76 years and
therefore claimed that they were a diminishing group or class of individuals. He
argued that the financial implication should not be of much consideration to the
State. He pointed out that nearly more than 50 of the pensioners had died by
this date and the rest were senior citizens of much advanced age. He pointed
out that the learned Single Judge had set aside the show cause notice with
respect to paragraph Nos. 4, 5 and 6 and the impugned Government Order
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contained the very same reasons, which had been set aside by the learned Single
Judge. It was for that reason that the learned Single Judge while examining the
validity of G.O.Ms.No.30, had thought it fit to strike it down.
38. He further argued that pension is a vested right equivelant to property
and Article 300 (A) of the Constitution would apply since though there is no
recovery of pension already drawn and paid, however, there is a drastic
reduction for no fault of the respondents. They had not induced the
Government to grant DACP scheme. They had raised a representation about
stagnation and it was the Government, which had introduced the Scheme and
when the Scheme was introduced, the Government should have been aware that
the consequential result was that the benefit under the Scheme would flow till
the date of retirement and after the date of retirement under Pension Scheme.
Therefore, the Government having consciousely extended DACP Scheme
should have also budgeted for the pension to be paid on the basis of that
particular Scheme.
39. The learned Senior Counsel further pointed out that in a stray case,
one Dr.K.S.Gamal Abdul Nasser, had been granted with pension
retrospectively. The Government had also passed G.O.Ms.No.64, Health and
Family Welfare Department dated 19.02.2018, complying with the directions.
It was therefore, contended that the respondents can be compared only with that
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particular individual and not with those who retired subsequent to 23.10.2009.
They seek restoration of the benefits already extended and withdrawn. The
learned Senior Counsel placed reliance on the judgment of the Hon'ble Supreme
Court in State of Jharkhand and others vs. Jitendra Kumar Srivastava and
another reported in (2013) 12 SCC 210, wherein it had been held as follows:
“….15.In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7
SCC 651, this Court recognized that even when, after the repeal of Article 19(1)
(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth
Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no
longer remained a fundamental right, it was still a Constitutional right, as
provided in Article 300A of the Constitution. Right to receive pension was
treated as right to property. Otherwise, challenge in that case was to the vires
of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit)
Rules, 1971 which conferred the right upon the Governor to withhold or
withdraw a pension or any part thereof under certain circumstances and the
said challenge was repelled by this Court.
16.Fact remains that there is an imprimatur to the legal principle that the right
to receive pension is recognized as a right in “property”. Article 300 A of the
Constitution of India reads as under:
“300-A Persons not to be deprived of property save by authority of law -
No person shall be deprived of his property save by authority of law.”
Once we proceed on that premise, the answer to the question posed by us in
the beginning of this judgment becomes too obvious. A person cannot be
deprived of this pension without the authority of law, which is the
Constitutional mandate enshrined in Article 300 A of the Constitution. It
follows that attempt of the appellant to take away a part of pension or gratuity
or even leave encashment without any statutory provision and under the
umbrage of administrative instruction cannot be countenanced.”
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40. For the principle that the Government cannot fall back on financial
commitments to deny pension to the retired employees, the the learned Senior
Counsel has also relied on the judgment in Punjab State Cooperative
Agricultural Development Bank Ltd., vs. Registrar Cooperative Societies and
others reported in (2022) 4 SCC 363, in which it has been stated as follows:
“57.In our view, nonavailability of financial resources would not be a
defence available to the appellant Bank in taking away the vested rights
accrued to the employees that too when it is for their socioeconomic
security. It is an assurance that in their old age, their periodical payment
towards pension shall remain assured. The pension which is being paid to
them is not a bounty and it is for the appellant to divert the resources from
where the funds can be made available to fulfil the rights of the employees
in protecting the vested rights accrued in their favour.
58. So far as the submission made by the serving employees is concerned,
they have no locus to question. At the same time, their apprehension as
being projected to this Court is completely misplaced for the reason that
employer/employees contribution is being provided under the employees
pension scheme(EPS) of the Act 1952 which is made applicable to the
serving employees and they are entitled to get pension in terms of the
provisions of the Act 1952. So far as their complaint regarding payment of
contribution is concerned, it is in no manner going to be adjusted for
payment of pension to retirees/respondents, who are entitled to get their
pension in terms of the pension scheme of which they are members and it is
for the appellant Bank to reserve the resources and make payment to the
retired employees seeking pension to the scheme in vogue when they
became members and took benefits pursuant thereto.”
41.Mr.K.Venkatramani, learned Senior Counsel also argued on the same
lines and further argued that the Government had modified G.O.Ms.No.354
while passing G.O.Ms.No.245, which Government Order was challenged by the
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Dr.K.S.Gamal Abdul Nasser and the Division Bench had negatived the appeal
of the Government. Therefore, the Government also passed a Government
Order affirming the pension to be granted to him. The learned Senior Counsel
contended that the respondents cannot be differentiated and denied their lawful
benefits.
42.Mr.K.Chellanpandian, learned Senior Counsel also argued on the same
lines. He further pointed out that there cannot be an apprehension that flood
gates would be opened, particularly when the class of pensioners are reducing in
number owing to their age and it would be extremely inappropriate on the part
of the Government to deny them their lawful right to receive pension for the
services rendered by them during their period of service.
43.Mr.L.Chandrakumar, learned Counsel also adopted the said arguments
and further pointed out G.O.Ms.236 and it is import and stated that
G.O.Ms.No.30, which was impugned in the writ petitions does not have any
statutory value and there has been no corresponding amendment to the Pension
Rules. He argued that terefore, in the absence of amendment brought about to
determine the reduction in pension, deprivation cannot be effected. He also
urged that the appeals should be dismissed.
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44.We have carefully considered the arguments advanced and perused the
materials placed on record.
45. The respondents in a batch of writ petitions aggrieved by the common
order of the learned Single Judge dated 16.12.2025, are the appellants herein.
The writ petitions had been filed seeking to set aside G.O.Ms.No.30, Finance
(PC-2) Department dated 05.02.2025 and the consequential orders passed.
Even before examining the said Government Order, it would only be
appropriate to narrate the background facts.
46. The respondents are all medical professionals, who had joined the
Government services either under the Director of Medical Rural Health Services
/ Director of Public Health and Preventive Medicine, wherein there are posts of
Assistant Surgeon, Senior Assistant Surgeon, Civil Surgeon and Senior Civil
Surgeon or under the Director of Medical Education, wherein the posts were
Assistant Professors and Associate Professors/Professors. A representation had
been given by the Tamil Nadu Doctors Association seeking the Government to
examine the lack of promotional opportunities and stagnation of Medical
Professionals in both the streams at a particular level for considerable period of
years.
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47. In order to alleviate this grievance, the Government passed
G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated
23.10.2009, wherein they created an additional rank called Chief Civil Surgeon,
under the Director of Medical and Rural Health Services/Director of Public
Health and Preventive Medicine also an additional rank of Senior Assistant
Professor, equivalent to Civil Surgeon and splitted the combined cadre of
Associate Professors/Professors into two, namely Associate Professors and
Professors corresponding to Senior Civil Surgeons and Chief Civil Surgeons.
This creation of a new rank was only a mirage as it was not a promotional post,
but only an upgradation of the existing post. However, there was an increase in
the pay band.
48.Viewed independently, this was laudable as it addressed the grievance
of stagnation without promotional avenues at regular intervals in one particular
level. Thereafter, a further clarification was issued in G.O.Ms.No.245, Health
and Family Welfare (A2) Department, on 30.10.2013, wherein the Government
introduced the period within which the medical professionals under
Government Service could function in a particular level and thereafter, be
granted upgradation of post with an increased pay band. They determined this
period as completion of 8, 15, 17 and finally 20 years of service.
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49. The issue which then came up was whether this particular
Government Order in G.O.Ms.No.354 could be applied prospectively or could
be applied retrospectively. It was applied prospectively. This came to be
questioned. The Government issued letter No.27434/Pay Cell /2011-1 dated
22.07.2011, whereby they stated that it could be taken into effect prospectively.
Two writ petitions came to be filed challenging the said letter. The second writ
petition in W.P.(MD)No.9215 of 2011 was by one Dr.T.Rajagopal, which was
filed in his individual capacity and the earlier writ petition in W.P.No.5168 of
2011, was filed in his capacity as President of the Tamil Nadu Government
Retired Medical Officers Association, Madurai District.
50. A learned Single Judge of this Court by a common order dated
30.04.2013 had issued directions that G.O.Ms.No.354 would apply only
prospectively and directed grant of pension even to those who had retired prior
to 23.10.2009 on par with other similarly placed Professors and Medical
Officers, who had retired subsequent to 23.10.2009. This common order of the
learned Single Judge in the two writ petitions was challenged by the
Government in W.A.(MD)Nos.922 and 923 of 2019. A common judgment was
pronounced on 24.03.2015 by a Division Bench where it had been finally held
as follows:
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“114. Therefore, it is explicit that the object which is sought to be
achieved by way of issuance of G.O.Ms.No.354, dated 23.10.2009, does not
mean to create a new class, but to ensure that the Government doctors are
getting promotional opportunities, who have completed 8/15/20 years of
Government service by way of granting Dynamic Assured Career
Progression (DACP).
115. As it is discussed in the foregoing paragraphs, Article 14 of the
Constitution of India, does not forbid reasonable classification. In so far as
this case is concerned, the classification between the Government doctors,
who had retired prior and after 23.10.2009 is a permissible and reasonable
classification and therefore, it could be construed as an intelligible
differentia. This classification is having a rational nexus to the object sought
to be achieved by the issuance of G.O.Ms.No.354, dated 23.10.2009.
116. Having regard to the related facts and circumstances, we are of the
considered view that the cut off date viz., 23.10.2009 is not arbitrary and
therefore, it does not create any unreasonable disparity in the payment of
pension as the doctors, who had retired prior to 23.10.2009 were not
similarly placed to the Government Doctors, who have retired after
23.10.2009. Hence, the G.O.Ms.No.354, Health and Family Welfare (B2)
Department, dated 23.10.2009 cannot be given retrospective effect, as this
G.O. is having only prospective effect, which is clearly stipulated in the G.O.,
which cannot be deviated or flexed in accordance with the whims and fancies
of the petitioner and the members of his Association.
117. Keeping in view of the above facts, we are of the considered view that
the impugned order passed by the learned single Judge of this court is liable
to be set aside and the writ petitions viz., W.P.(MD)No.5168 and W.P.
(MD)No.9215 of 2011 filed by the petitioners and his association are liable
to be dismissed.
118. Accordingly, both the writ appeals are allowed. The common order,
dated 30.04.2013 is set aside and the writ petitions viz., W.P.(MD)Nos.5168
and W.P.(MD)No.9215 of 2011 are dismissed. No costs. Consequently
connected Miscellaneous Petitions are closed.”
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51. The Division Bench had very categorically held that the cut of date of
23.10.2009 does not create any unreasonable disparity in the payment of
pension as the said Government Order had been issued only to ensure that
promotional opportunities are granted to the Government Doctors by way of
granting Dynamic Assured Career Progression. It was also held that the said
Government Order can have only prospective effect and it cannot be deviated in
accordance with the whims and fancies of the writ petitioner or the members of
the Association. It is thus seen that a conclusive pronouncement had been made
about the two classes of pensioners, one prior to 23.10.2009 and the other
subsequent to 23.10.2009.
52. However, there was another twist namely, the case of one individual
Doctor, namely Dr.K.S.Gamal Abdul Nasser, who had filed W.P.No.33656 of
2016 seeking Certiorarified Mandamus relating to a letter No.2137/A1-2012-8
dated 11.09.2015 and to quash the same and refix the pay notionally in the light
of G.O.Ms.No.234 dated 01.06.2009 and G.O.Ms.No.245 dated 30.10.2013. A
learned Single Judge had allowed the writ petition. The State had filed appeal
in W.A.(MD)No.1341 of 2017.
53. G.O.Ms.No.234, Finance (Pay Cell) Department dated 01.06.2009
was prior to G.O.Ms.No.354, Health and Family Welfare (B2) dated
23.10.2009. In G.O.Ms.No.234, the Government had only revised the pay
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structure with grade pay. This had been introduced across all Departments
under the Government. By G.O.Ms.No.245, Health and Family Welfare (A2)
Department dated 30.10.2013, the Government reviewed the implementation of
G.O.Ms.No.354 dated 23.10.2009 and had introduced, the number of years for
which Medical Officers could be in a particular level and introduced the time
bound promotion on completion of 8, 15, 17 and 20 years of service. They had
not interfered with the fact that in G.O.Ms.No.354, it had been provided that the
said promotion would be prospective in nature. The writ appeal filed was
allowed and the Government complied with it the directions issued.
54. The issue in the said writ appeal was not with respect to the
promotion as envisaged under G.O.Ms.No.354, but to an earlier Government
Order in G.O.Ms.No.234 dated 01.06.2009. Therefore, the issues relating to that
writ appeal was a stand alone issue.
55. The Government then passed G.O.Ms.No.236, Finance (Pay Cell)
Department on 12.07.2018. However, when they had passed that particular
Government Order, they had not examined the import of the judgment of the
Division Bench in W.A.(MD)Nos.922 and 923 of 2013, dated 24.03.2015. This
judgment was however referred in G.O.Ms.No.30, which has been impugned in
the writ petition. The order with respect to Dr.K.S.Gamal Abdul Nasser was
also referred in G.O.Ms.No.30 and it had been stated that he was in service on
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23.10.2009 and therefore, he cannot be considered to be equal with those who
had retired prior to 23.10.2009. Therefore, the Government had consciously
drawn a distinction with the case of Dr.K.S.Gamal Abdul Nasser.
56. In G.O.Ms.No.236, which had been issued on the representation given
by Dr.T.Rajagopal, it had been stated that those who retired prior to 2009 were
senior to Dr.K.S.Gamal Abdul Nasser and therefore, they must be granted parity
of pension. They did not seek pay revision as granted to Dr.K.S.Gamal Abdul
Nasser as clarified G.O.Ms.No.64, the implementing Government Order in the
writ appeal relating to Dr.K.S.Gamal Abdul Nasser. Therefore, in
G.O.Ms.No.236, there was a comparison of those who had retired prior to
23.10.2009 with that of an individual, who was in service on 23.10.2009, on the
basis that those who retired earlier were senior to him. It is thus seen that
G.O.Ms.No.236 was the result of the confusion created by the representation
given by Dr.T.Rajagopal in his individual capacity, having failed in his earlier
efforts as seen from judgment in W.A.(MD)Nos.922 and 923 of 2013.
57. The argument of the learned Advocate General that the principles laid
in the judgment in W.A.(MD)Nos.922 and 923 of 2013, will necessarily have to
be applied while adjudicating the issues in these writ appeals cannot be
disputed. The Division Bench therein had very categorically upheld that there
can be two separate classes, one prior to 23.09.2026 and the other subsequent to
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23.09.2009. The judgments relied on by him again upholding that principle are
affirmed by us.
58. However, it must also be noted that Article 300-A of the Constitution
is very categorical when it states that no person shall be deprived of his property
‘save by authority of law’. It was introduced in Chapter IV relating to Right to
Property, which reads as follows:
“300-A Persons not to be deprived of property save by authority of law.-No
person shall be deprived of his property save by authority of law.”
59. It must be pointed out that in the Constitution in only two Articles, the
words except by authority of law, are used. The first one is Article 265 of the
Constitution, which relates to imposition of taxes and it had been very
categorically held that no tax can be levied or collected except by authority of
law. Article 265 of the Constitution is as follows:
“265.Taxes not to be imposed save by authority of law- No tax shall be
levied or collected except by authority of law.”
60.Thus, though the Government has a right to bring about different
classes giving appropriate reasons, still such division should be done only under
authority of law. The right to be paid pension by a retired employee has been
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equalised with right to property by the Hon’ble Supreme Court. This principles
had been held categorically in State of Jharkhand and others vs. Jitendra
Kumar Srivastava and Anr reported in 2013 (12) SCC 210, wherein it had been
very specifically stated as follows:
“It follows that attempt of the appellant to take away a part of
pension or gratuity or even leave encashment without any statutory
provision and under the umbrage of administrative instruction cannot be
countenanced.
...Emphasis supplied.”
61.The pension of a Tamil Nadu Public Servant is governed by the Tamil
Nadu Pension Rules, 1978, which had come into force on 01.01.1979.
62. These Rules have the authority of law. They have a binding nature
and have to be mandatorily followed. There is no other option. There cannot be
a different set of Rules distinct from Tamil Nadu Pension Rules, 1978,
applicable to any Government Servant appointed to “services and posts in
connection with the affairs of the State, which are borne on pensionable
establishments, whether temporary or permanent”.
63. There is no dispute that the respondents in this case are Government
Servants who had been appointed to a particular service in connection with the
affairs of the State and there is no dispute that their services are pensionable
establishments and that they had been in permanent employment.
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64. It had been provided under Rule 56 of the Tamil Nadu Pension Rules,
1978 as follows:
“Rule - 56. Revision of pension after sanction. (1)Subject to the
provisions of rules 8 and 9, pension once sanctioned after final assessment
shall not be revised to the disadvantage of the Government servant, unless
such revision becomes necessary on account of detection of clerical error
subsequently and where it is found to be in excess of the amount finally
assessed by the Audit Officer:
Provided that no revision of pension to the disadvantage of the pensioner
shall be ordered by the pension sanctioning authority without the sanction of
the Government if the clerical error is detected after a period of two years
form the date of sanction of pension.”
65. Rules 8 and 9 of the Tamil Nadu Pension Rules relate to grant of
pension subject to future good conduct, which does not apply to the respondents
herein and the right of competent authority to withhold or withdraw pension,
owing to departmental or judicial proceedings or misappropriation. Judicial
proceedings would mean criminal proceedings or civil proceedings. These
provisions do not apply to the respondents in this case.
66. It had been further held in State of Jharkhand and Ors. vs. Jitendra
Kumar Srivastava & Anr, referred supra, in para No.17 as follows:
“It hardly needs to be emphasized that the executive instructions are not
having statutory character and, therefore, cannot be termed as “law” within
the meaning of aforesaid Article 300A. On the basis of such a circular, which is
not having force of law, the appellant cannot withhold even a part of pension or
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gratuity. As we noticed above, so far as statutory rules are concerned, there is
no provision for withholding pension or gratuity in the given situation. Had
there been any such provision in these rules, the position would have been
different.”
67. The facts in that case were that the respondent was working in the
department of Animal Husbandry and Fisheries. In 1996, two cases were
registered against him under the provisions of the Indian Penal Code, 1860 and
Prevention of Corruption Act, 1988 alleging financial irregularities. After the
Bihar Reorganization Act, 2000, the State of Jharkand was created. The
respondent became a public servant of the appellant State Government. On
30.01.2002, disciplinary proceedings were initiated. He retired on 31.08.2002,
when disciplinary proceedings was still pending. He was granted 90% of the
pension and 10% of the pension amount was withheld. He was not paid leave
encashment and gratuity. Raising an objection for withholding 10% pension, he
filed a writ petition. The High Court directed examination of his claim. The
State Government rejected his claim. Another writ petition was filed. That writ
petition was also dismissed. However, the Division Bench allowed the writ
appeal holding that the Government had no power to withhold the pension in
the absence of specific rules under the Bihar Pension Rules, 1950. It was under
those circumstances, the State of Jharkhand had filed an appeal before the
Hon’ble Supreme Court.
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68. We hold that the instant case, if the respondents sought to deprive
pension already calculated and sanctioned, there must be an amendment to the
Rules. It is stated that the Government Order in G.O.Ms.No.30 had been issued
only under Rule 56 of the Tamil Nadu Pension Rules, 1978. But, there should
be a corresponding amendment to the Rules providing for deprivation of
pension even after the pension had been sanctioned. Though it could be stated
that the Government is waiving recovery, still reduction of pension is
deprivation and there can never be such deprivation except under the authority
of law.
69. There is no indication that Article 162 of the Constitution had been
applied while passing G.O.Ms.No.30, impugned in the writ petition. The
Supreme Court had stated in State of Jharkand referred supra, that there cannot
be any deprivation without any authority of law, even in the case of public
servants against whom departmental proceedings were initiated and criminal
cases have been registered for offences under the provisions of Indian Penal
Code, 1860 and under the Prevention of Corruption Act, 1988.
70. The respondents herein stand on a far, far higher footing. They had
discharged their noble duty while in service. There is no complaint about their
lack of dedication during their period of service. They had retired in October,
2009. As on date, the youngest of them would be 76 years of age, taking the
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age of superannuation as 60 years. They are thus a diminishing class. More
than 50 of them have died. The family pension would only be 50% of the
pension payable to a retired public servant. The financial commitment therefore
decreases on death.
71. The financial commitment for the existing pensioners is certainly not
Rs.300 /- corers as stated in the Government Order in G.O.Ms.No.30, which
was impugned before the learned Single Judge. That is an imaginary figure
given by the appellants herein. There cannot be a reduction of pension to just
satiate the pleasure of Executive Officers deciding these issues. The plight of
the retired pensioners should be seen. It is not a question of mere reduction of
pension, but the hurt caused owing to degradation of the services rendered by
them. Their services rendered to hundreds and thousands of patients should be
recognized and should not be just washed away by citing other financial
committent by the Government.
72. The Government, as a welfare State has a duty to recognise the loyal
services rendered by a public servant. He cannot be left high and dry. His
family cannot be deserted. He had not deserted his post. He had committed
himself during service putting his life on the line while treating patients with
infectious diseases. He had saved the lives of the citizens of this country,
including probably the family members of the Executives, who had advised the
Government to pass G.O.Ms.No.30, dated 05.02.2025.
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73. We hold that this deprivation is a very unkind cut. We are not
inclined to accept the argument that it is reasonable. Deprivation of sanctioned
pension could be resorted to only in the manner known to law. When the law
does not authorise such deprivation, the Government can never take away a part
of the pension under the umbrella of a Government Order, which has no
statutory value. Though it is claimed to have been passed under Rule 56 of the
Tamil Nadu Pension Rules, 1978, there are no corresponding amendments to
the Rules. There is no claim that Article 162 of the Constitution had been
applied by the Government.
74. We have no hesitation in striking down G.O.Ms.No.30 Finance
(PC-2) Department, dated 05.02.2025 and in confirming the common order of
the learned Single Judge.
75.Accordingly, these Writ Appeals are dismissed. C.M.P.(MD)No.5231
of 2026 also stands dismissed. Consequently, connected miscellaneous
petitions are closed. No order as to costs.
(C.V.K.,J.) (R.S.V.,J.)
30-09-2026
Index: Yes
Speaking
Neutral Citation: Yes
ta
https://www.mhc.tn.gov.in/judis
2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
__________
Page56 of 57
To
1. The Principal Secretary To Government
Finance (PC-2) Department, Secretariat,
Fort St. George, Chennai 600 009.
2. The Principal Secretary To Government
Health and Family Welfare (A1) Department,
Secretariat, Fort St George, Chennai -600 009.
3. The Director Of Medical Education
And Research Department,
Kilpauk, Chennai - 600 010.
4. The Director Of Treasuries And Accounts,
3rd Floor, Perasiriyar K.Anbazhagan Maaligai,
No.571, Anna Salai, Nandanam,
Chennai - 600 035.
https://www.mhc.tn.gov.in/judis
2026:MHC:4036WA(MD) Nos. 440 to 444 of 2026
__________
Page57 of 57
C.V.KARTHIKEYAN J.
AND
R.SAKTHIVEL J.
ta
Pre-Delivery Judgment made in
WA(MD) Nos.440 to 444 of 2026
30-09-2026
https://www.mhc.tn.gov.in/judis
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