MANU/SC/0237/1982 Equivalent Citation: AIR1983SC130, 1983(31)BLJR122, (1983)ILLJ104SC, 1982(2)SCALE1213, (1983)1SCC305, [1983

]2SCR165, 1983(1)SLJ131(SC) IN THE SUPREME COURT OF INDIA Writ Petition Nos. 5939-41 of 1980 Decided On: 17.12.1982 Appellants: D.S. Nakara and Ors. Vs. Respondent: Union of India (UOI) Hon'ble Judges: Y. V. Chandrachud, C.J., D.A. Desai, O. Chinnappa Reddy, v.D. Tulzapurkar and Baharul Islam, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Anil B. Divan, Vineeta Sen Gupta and P.H. Parekh, Advs For Respondents/Defendant: L.N. Sinha, Attorney General, M. M. Addul Khader, N. Nettar, A. Subhashini andG.L. Sanghi, Advs. Subject: Service Subject: Constitution Catch Words Mentioned IN Acts/Rules/Orders: Constitution of India - Articles 14, 32, 38(1), 39, 41, 148 and 309; Central Services (Pension) Rules, 1972 - Rule 34 Cases Referred: Maneka Gandhi v. Union of India MANU/SC/0133/1978; Ram Krishna Dalmia v. Justice S.R. Tendolkar MANU/SC/0024/1958; Douge v. Board of Education 302 US 74; D.R. Nim v. Union of India MANU/SC/0359/1967; Louisville Gas Co. v. Alabama Power Co. 240 US 30 (1927); Randhir Singh v. Union of India MANU/SC/0234/1982; S.P. Gupta v. Union of India MANU/SC/0080/1981 ; In Re: Special Courts Bill 1978 MANU/SC/0039/1978; E.P. Royappa v. State of T.N. MANU/SC/0380/1973; Ajay Hasia v. Khalid Mujib Sehravardi

MANU/SC/0498/1980; Air India v. Nergesh Meerza MANU/SC/0688/1981; Deokinandan Prasad v. State of Bihar MANU/SC/0658/1971; State of Punjab v. Iqbal Singh MANU/SC/0459/1976; Jaila Singh v. State of Rajasthan MANU/SC/0405/1975; Union of India v. Parameswaran Match Works MANU/SC/0094/1974; D.C. Gouse & Co. v. State of Kerala MANU/SC/0330/1980 Citing Reference:
Maneka Gandhi v. Union of India, MANU/SC/0133/1978Discussed Ram Krishna Dalmia v. Justice S.R. Tendolkar, MANU/SC/0024/1958Discussed Douge v. Board of Education Discussed D.R. Nim v. Union of India, MANU/SC/0359/1967Discussed Louisville Gas Co. v. Alabama Power Co.Discussed Randhir Singh v. Union of India MANU/SC/0234/1982Discussed S.P. Gupta v. Union of India Discussed In Re: Special Courts Bill Discussed E.P. Royappa v. State of T.N.Discussed Ajay Hasia v. Khalid Mujib Sehravardi MANU/SC/0498/1980 Discussed Air India v. Nergesh Meerza MANU/SC/0688/1981 Discussed Deokinandan Prasad v. State of Bihar MANU/SC/0658/1971 Discussed State of Punjab v. Iqbal Singh MANU/SC/0459/1976 Mentioned Jaila Singh v. State of Rajasthan Discussed Union of India v. Parameswaran Match Works Discussed D.C. Gouse & Co. v. State of Kerala Discussed

Case Note: Service - Superannuation or Retiring Pension - Article 14 of Constitution and Central Civil Services (Pension) Rules, 1972 - Present writ petitions have been filed against notification whereby petitioners were refuged for getting retiring pension - Held, there is no pension fund as it is found either in contributory pension schemes administered in foreign countries or as in Insurance-linked pensions - Non-contributory pensions under 1972 rules is a State obligation - In a chart submitted, Union of India has worked out pension to pensioners who have retired prior to specified date and comparative advantage, if they are brought within purview of liberalized pension scheme - Difference upto level of Assistant or even Section Officer is marginal keeping in view that old pensioners are getting temporary increases - It was said that if pensioners who retired prior to relevant date are brought within purview of liberalized pension scheme - Therefore, satisfied that increased liability is not too high to be unbearable or such as would have detracted Government from covering old pensioners under scheme - Being eligible for liberalized pension scheme and thereby dividing a homogeneous class, classification being not based on any discernible rational principle and having been found wholly unrelated to objects sought to be achieved by grant of liberalized pension and eligibility criteria devised being thoroughly arbitrary, view that eligibility for liberalized pension scheme of 'being in service on specified date and retiring subsequent to that date' in impugned memoranda, violates Article 14 of Constitution and is unconstitutional and is struck down - Both memoranda shall be enforced and implemented - New rates of pension are effective from relevant date and will be applicable to all service officers who became/become noneffective on or after that date - Let a writ to that effect be issued - Petitions are disposed of JUDGMENT 1. With a slight variation to suit the context Woolesey's prayer : "had I served my God as

675 at the maximum.' Old age.p. The second petitioner retired at or about that time and at the relevant time was in receipt of a pension plus dearness relief of Rs. formed to ventilate the legitimate public problems and consistent with its objective it is espousing the cause of the pensioners all over the country. Do pensioners entitled to receive superannuation or retiring pension under Central Civil Services (Pension) Rules.m. which the Government of India while accepting the recommendation raised to Rs. The Second Central Pay Commission (1957-58) re-affirmed that the age of superannuation should be 58 years for all classes of public servants but did not recommend any increase in the non-contributory retirement benefits and recommended that if in future any improvement is to be made. 8. The third petitioner is a society registered under the Societies Registration Act. 1972 ('1972 Rules' for short) form a class as a whole? Is the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date? Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attract Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of Article 14? These and the related questions debated in this group of petitions call for an answer in the backdrop of a welfare State and bearing in mind that pension is a socio-economic justice measure providing relief when advancing age gradually but irrevocably impairs capacity to stand on one's own feet. I would not have fallen on these days of penury" is chanted by petitioners in this group of petitions in the Shellian tune : 'I fall on the thorns of life I bleed. Union of India has been revising and liberalising the pension rules from time to time.m. Before the Government . 2. subject to a limit of 35/80 with a ceiling of Rs. The first petitioner retired in 1972 and on computation. it was the considered view of the Commission that these benefits should be on a contributory basis. 1000 p. The Administrative Reforms Commission ('ARC' for short) set up by the Government of India in 1956 took note of the fact that the cost of living has shot up and correspondingly the possibility of savings has gone down and consequently the drop in wages on retirement is in reality much steeper than what the quantum of pension would indicate. Some landmark changes may be noticed.m. 675 p. to Rs. at the relevant time he was in receipt of monthly pension of Rs. the petitioners in the fall of life yearn for equality of treatment which is being meted out to those who are soon going to join and swell their own ranks. Its locus standi is in question but that is a different matter. the first being a civil servant and the second being a member of the service personnel of the Armed Forces. and along with the dearness relief granted from time to time. 935/-. 8. 1860.m. 675/. mental and physical prowess.reverently as I did my king. his pension worked out at Rs. 4. and accordingly the ARC recommended that the quantum of pension admissible may be raised to 3/6 of the emoluments of the last three years of service as against the existing 3/8 and the ceiling should be raised from Rs.100 per year which would earn a monthly pension of Rs.000 per year for 35 years of service. 3. 981/-p. atrophy of both muscle and brain powers permeating these petitions. ebbing. Petitioners 1 and 2 are retired pensioners of the Central Government. The First Central Pay Commission (1946-47) recommended that the age of retirement in future should be uniformly 58 years for all services and the scale of pension should be 1/80 of the emoluments for each year of service. Factual matrix has little relevance to the issues raised and canvassed at the hearing.

the choice of the date being wholly arbitrary. Government of India. The liberalised pension formula shall be applicable prospectively to those who retired on or after March 31.000 to Rs. Primary contention is that the pensioners of the Central Government form a class for purpose of pensionary benefits and there could not be mini-classification within the class designated as . 7. (for short specified date). would be equally violative of Article 14. 24. 1. the differential treatment for those retiring prior to a certain date and those retiring subsequently. The only important recommendation worth noticing is that the Com mission recommended that the existing ceiling of maximum pension should be raised from Rs. the Third Central Pay Commission was set up.000. The pension for the service personnel which will include Army. On May 25. fixing of which is not shown to be related to any rational principle. issued Office Memorandum No.000 p. The formula introduced a slab system for computation of pension. It was also contended that classification based on fortuitous circumstance of retirement before or subsequent to a date. Navy and Air Force staff is governed by the relevant regulations. The Third Pay Commission did not examine the question of relief to pensioners because in its view unless the terms of reference were suitably amended it would not be within their jurisdiction to examine this question and on a reference by them.could take its decision on the recommendations of the ARC. 1979. 1979 in case of government servants covered by 1972 Rules and in respect of defence personnel those who became/become non-effective on or after April 1. The chronology of events herein narrated would bring to surface the contentions raised in these petitions. and the maximum of the gratuity should be raised from Rs. 1979. This liberalised pension formula was applicable to employees governed by the 1972 Rules retiring on or after the specified date. and may be applicable to all service officers who become/became non-effective on or after that date. would be violative of Article 14. 8. 6. Ministry of Finance. 5. If the Pension is paid for past satisfactory service rendered. and to avoid destitution in old age as well as a social welfare or socio-economic justice measure.m. By the Memorandum of the Ministry of Defence bearing No. B/40725/AG/PS4-C/1816/AD (Pension)/Services dated September 28. 30. F-19(3)-EV-79 whereby the formula for computation of pension was liberalised but made it applicable to Government servants who were in service on March 31. 1979. With regard to the future pensioners the Third Pay Commission while reiterating that the age of superannuation should continue to be 58 years further recommended that no change in the existing formula for computing pension is considered necessary. would be according differential treatment to pensioners who form a class irrespective of the date of retirement and. 1979 and retire from service on or after that date (specified date for short). there fore. One of the terms of reference of the Third Pay Commission was 'death-cumretirement benefits of Central Government employees'. Consequently those who retired prior to the specified date would not be entitled to the benefits of the liberalised pension formula. the Government of India decided not to amend the terms of reference. Petitioners accordingly contend that this Court may consider the raison d'etre for payment of pension. the liberalised pension formula introduced for the government servants governed by the 1972 rules was extended to the Armed Forces personnel subject to limitations set out in the memorandum with a condition that the new rules of pension would be effective from April 1. 675 to Rs. 1979.

In order. it does not forbid reasonable classification for the purpose of legislation. are entitled to salary and other allowances. Is this class of pensioners further divisible for the purpose of 'entitlement' and 'payment' of pension into those who retired by certain date and those who retired after that date? If date of retirement can be accepted as a valid criterion for classification. Now. The scope. (see Shri Ram Krishna Dalmia v. if date of retirement is a valid criterion for classification.. Those who retire and are designated as 'pensioners' are entitled to receive pension under the relevant rules.. The principle of reasonableness. to pass the test of permissible classification. Union of India MANU/SC/0133/1978 : [1978]2SCR621 from which the following observation may be extracted: . is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence. all government servants who retire correlated to birth date on attaining the age of superannuation in a given month shall not retire on that date but shall retire on the last day of the month. those who have not retired. It is only after the recommendations of the Third Central Pay Commission were accepted by the Government of India that the retirement dates have been specified to be 12 in number being last day of each month in which the birth date of the individual government servant happens to fall. those who retire at the end of every month shall form a class by themselves. viz. however. two conditions must be fulfilled. Tendolkar and Ors. Shri Justice S. The expression 'pensioner' is generally understood in contra-distinction to the one in service. It would. 9. therefore. And. this would clearly indicate that those who render service and retire en superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners'.. pedantic or lexicographic approach. therefore. Therefore..what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. MANU/SC/0024/1958 : . Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question. in other words. Is it permissible or is it violative of Article 14? 10. to do so would be to violate its activist magnitude. be merely adding to the length of this judgment to recapitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v.. No attempt should be made to truncate its all-embracing scope and meaning for. The decisions clearly lay down that though Article 14 forbids class legislation. content and meaning of Article 14 of the Constitution has been the subjectmatter of intensive examination by this Court in a catena of decisions. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group. In other words. Government servants in service. It is indeed the pillar on which rests securely the foundation of our democratic republic. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. on retirement each individual government servant would form a class by himself because the date of retirement of each is correlated to his birth date and on attaining a certain age he had to retire. This is too microscopic a classification to be upheld for any valid purpose..R. 11. which legally as well as philosophically.pensioners. it must not be subjected to a narrow.

.[1959]1SCR279 The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i. They are: 3. Article 14 has. namely. However. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things.J. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law. in EP. Equal laws would have to be applied to all in the same situation. Special Courts Bill MANU/SC/0039/1978 : [1979]2SCR476 restated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter. in Re. C.. two conditions must be fulfilled. Classification is justified if it is not palpably arbitrary. therefore. Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. causal connection between the basis of classification and object of the statute under consideration. artificial or evasive. 12. Therefore. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. The law can make and set apart the classes according of the needs and exigencies of the society and as suggested by experience. The classification must not be arbitrary but must be rational. and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.e. 4. In order to pass the test. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. that is to say. (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. this Court speaking through Chandrachud. 13. not to be held identical with the doctrine of classification. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. 7. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. After an exhaustive review of almost all decisions bearing on the question of Article 14. it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Four of them are apt and relevant for the present purpose and may be extracted. It can recognise even degree of evil. It is equally well settled by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. 6. but the classification should never be arbitrary.

equality and arbitrariness are sworn enemies. If this Court gives in here it gives up the ghost. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is. in Air India etc. Justice Iyer has in his inimitable style dissected Article 14 as under: The article has a pervasive processual potency and versatile quality. 16. be you ever so high. v. one belongs to the rule of law in a republic while the other. the Constitution Bench in Ajay Hasia etc. Khalid Mujib Sehravardi and Ors etc. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differntia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. therefore. therefore." MANU/SC/0133/1978 : [1978]2SCR621 . etc. 17. As a corrolary to this well established proposition. it is also violative of Article 16. MANU/SC/0688/1981 : (1981)IILLJ314SC the Court formulated propositions emerging from analysis and examination of earlier decisions. The Court made it explicit that where an act is arbitrary it is implicit in it that it is un equal both according to political logic and constitutional law and is. v. to the whim and caprice of an absolute monarch. the law is above you. this Court further observed as under: From a positivistic point of view. Affirming and explaining this view. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law. equality is antithetic to arbitrariness. now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In fact. After a review of large number of decisions bearing on the subject. violative of Article 14. Only knight-errants of 'executive excesses'-if we may use current cliche-can fall in love with the Dame of despotism. 14. therefore. MANU/SC/0498/1980 : (1981)ILLJ103SC held that it must. State of Tamil Nadu MANU/SC/0380/1973 : (1974)ILLJ172SC . Nargesh Meerza and Ors. the next question is.Royappa v. 15. it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination. legislative or administrative. equalitarian in its soul and allergic to discriminatory diktats. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the . Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. and if it affects any matter relating to public employment. violative of Article 14.

therefore. MANU/SC/0048/1979 : (1979)IILLJ217SC when at page 1034.N. The basic contention as hereinbefore noticed is that the pensioners for the purpose of receiving pension form a class and there is no criterion on which classification of pensioners retiring prior to specified date and retiring subsequent to that date can provide a rational principle correlated to object. unless it can be shown by the Government that the departure was not arbitrary. S. object underlying payment of pensions. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate if to the objects sought to be achieved. because in that event every pensionsr relevant to his date of retirement will form a class unto himself. It may be made clear that the date of retirement of each individual pensioner is not suggested as a criterion for classification as that would lead to an absurd result. but was based on some valid principle which in itself was not irrational. 18. And the learned Attorney General contended that this differentiation is grounded on a rational principle and it has a direct correlation to the object sought to be achieved by liberalised . In reply to this contention set out in para 19 of the petition. the Court observed that a discriminatory action of the Government is liable to be struck down. evolved the doctrine of classification. Mathur.. the date so specified becomes a sort of a rubicon and those who retire prior to that date form one class and those who retire on a subsequent date form a distinct and separate class and no one can cross the rubicon. What is suggested is that when a pension scheme undergoes a revision and is enforced effective form a certain date. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. Mr. These averments would show at a glance that the State action is sought to be sustained on the doctrine of classification and the criterion on which the classification is sought to be sustained is the date of retirement of the Government servant which entitled him to pension. Thus according to the respondents.social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. pensioners who retire from Central Government service and are governed by the relevant pension rules all do not form a class but pensioners who retire prior to a certain date and those who retire subsequent to a certain date form distinct and separate classes. Classification of pensioners on the basis of their date of retirement is a valid classification for the purpose of pensionary benefits. The State. viz. Director. unreasonable or discriminatory. Ministry of Finance in part 17 of his affidavit-in-opposition on behalf of the respondents has averred as under: The contentions in part 18 and 19 that all pensioners form one class is not correct and the petitioners have not shown how they form one class. This approach is noticed in Ramana Dayaram Shetty v. The court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution. would have to affirmatively satisfy the Court that the twin tests have been satisfied. The International Airport Authority of India and Ors.

This view was reaffirmed in State of Punjab and Anr. is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. page 33. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and. State of Bihar and Ors. The present enquiry is limited to non-contributory superannuation or retirement pension paid by Government to its erstwhile employee and the purpose and object underlying it. a brief history of its initial . And why was it required to be liberalised? Is the employer. The approach of the respondents raises a vital and none too easy of answer. which expression will include even the State. What is a pension? What are the goals of pension? What public interest or purpose. expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits. question as to why pension is paid. therefore. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. (see Retirement Systems for Public Employees by Bleakney.) 24. it seeks to serve? If it does seek to serve some public purpose. State obligation to provide security in old age. wanted to ensure in the case of former continued loyalty till death to the alien rulers and in the case of latter. There are various kinds of pensions and there are equally various methods of funding pension programmes. Probably the alien rulers who recruited employees in lower echelons of service from the colony and exported higher level employees from the seat of Empire. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. an assured decent living standard in old age ensuring economic security at the cost of the colony. As the present case is concerned with superannuation pension. The quid pro quo. an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? 20. 21.C. 22.R. 19.pension formula. It was further held that the grant of pension does not depend upon any one's discretion. Iqbal Singh MANU/SC/0459/1976 : (1976)IILLJ377SC . v. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. was that when the employee was physically and mentally alert he rendered unto master the best. S. 23. Initially this class of pension appears to have been introduced as a reward for loyal service. [1971] Su. everyone who qualifies for normal retirement receives the same amount. if any. no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v.

the problem of providing for public servants who are unable. and afterwards with their pensions when they retire on the same plea. the patient replied. The Act which substantively devoted itself exclusively to the problem of superannuation pension was superannuation Act of 1834. first with the salaries of officers who are obliged to absent themselves from their duties on account of ill health.) to be concerned with the provision of pensions generally in public offices. This approach is utterly unfair because in modern times public services are manned by those who enter at a comparatively very young age. Public Sector Pensions. 'that is funny. Superannuation is the most descriptive word of all but has become obsolescent because it seems ponderous. would hardly be credited by those who have not had opportunities of observing the operation of the system. A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. A political society which has a goal of setting up of a welfare State.introduction in early stages and continued existence till today may be illuminating. furnish strong inducements to the parents and friends of sickly youths to endeavour to obtain for them employment in the service of the Government. We owe it to them and ourselves that they live not merely exist. and (ii) at a standard equivalent at the pre-retirement level.K. But it is imperative to note that as self-sufficiency declines the need for his attendance or institutional care grows. The philosophy prevailing . To note only one stage in 1856 a Royal Commission was set up to consider whether any changes were necessary in the system established by the 1834 Act. but methods of dealing with the problem varied from society to society and even occasionally from department to department. and the extent to which the public are consequently burdened. This approach may merit the criticism that if a developing country like India cannot provide an employee while rendering service a living wage. It was passed in 1810. When assured that he will. And this journey was over a rough terrain. 18-19). 27. selecting the percentage representing the proper ratio between earnings and the retirement income is harder. has been recognised. but the evolving concept of social security is a later day development'. The Report of the Commission is known as "Northcote-Trevelyan Report". with decency. It appears that determining the minimum amount required for living decently is difficult. through old age or incapacity. Let us therefore examine what are the also that pension scheme seeks to subserve? A pension scheme consistent with available resources must provide that the pensioner would be able to live : (i) free from want. Its genesis can be traced to the first Act of Parliament (in U." (see Gerald Rhodes. with selection through national competitive examination and ordinarily the best talent gets the opportunity. I could not before'. 26. independence and self-respect. pp. The Report was pungent in its criticism when it says that: "in civil services comparable to lightness of work and the certainty of provision in case of retirement owing to bodily incapacity. These are landmarks in pension history because they attempted for the first time to establish a comprehensive and uniform scheme for all whom we may now call civil servants. would introduce and has in fact introduced as a welfare measure wherein the retiral benefit is grounded on 'considerations of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age. to continue working. 25. Even before the 19th century. Many are literally surviving now than in the past. how can one be assumed of it in retirement? This can be aptly illustrated by a small illustration.

One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. Ed. Under the second head they have been in force in one form or another in some countries for over a century but those coming under the third head are relatively of recent origin. in days of invalidity. disabled. The law is one of the chief instruments whereby the social policies are implemented and 'pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual of a cash income adequate. as held in Douge v. Vol. . But broadly stated they are (i) as compensation to former members of the armed forces or their dependents for old age. 30. (see Social Security law by Prof. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. economic security by way of periodical payment is assured. 29. p. payments usually continue for the rest of the natural life of the recipient. or as a means or promoting general welfare (see Encyclopaedia Britannica. is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. However. Harry Calvert. though they are of the greatest magnitude. rewards for service rendered. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. but pension also has a broader significance. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability. One such saving in kind is when you gave your best in the hey-day of life to your employer. in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore. and (iii) as social security payments for the aged. (ii) as old age retirement or disability benefits for civilian employees. or deceased citizens made in accordance with the rules governing social service programmes of the country. 57 a pension is closely akin to wages in that it consists of payment provided by an employer. 575. Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past. Board of Education 302 US 83 L. or death (usually from service causes). Pension to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. There are other views about pensions such as charity. one is required to fall back on savings. paternalism. These objectives are in turn a determinant of a social policy. 1). This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want. Pensions under the first head are of great antiquity. The reasons underlying the grant of pension vary from country to country and from scheme to scheme. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. 28.) But these views have become otiose. when taken along with the benefits in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed'. deferred pay. disability. 17 p.in a given society at various stages of its development profoundly influences its social objectives.

Article 39(e) requires the State to secure that the health and strength of workers. 33. the under-privileged also are clamouring for the rights and fare seeking the intervention of the Court with touching faith and confidence in the Court. Since the advent of the Constitution. (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered . Union of India and Ors. 881). Article 38(1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice social. MANU/SC/0234/1982 : (1982)ILLJ344SC . since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure. and (iii) it is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. one can confidently say that if pensioners form a class. Chinnappa Reddy. the state action must be directed towards attaining the goals set out in Part IV of the Constitution which.31. when achieved. facilities and opportunities. Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Revealing the scope and content of this facet of equality. thanks to the rising social and political consciousness and the expectations aroused as a consequence and the forward looking posture of this Court. From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in of exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution. The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a literal construction and the courts may not so interpret such statute as to render them inane (see American Jurisprudence 2d. speaking for the Court observed as under: Now. men and women. the approach of court while considering such measure is of paramount importance. their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. can that be done during their retirement? Expanding this principle. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status. Having succinctly focussed our attention on the conspectus of elements and incidents of pension the main question may now be tackled. J. this Court observed that where all relevant considerations are the same. economic and political shall inform all institutions of the national life. and . persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. that is. Proceeding further. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement. would permit us to claim that we have set up a welfare State. But. The Judges of the Court have a duty to redeem their Constitutional oath and do justice no less to the pavement dweller than to the guest of the Five Star Hotel. 32. If that can't be done when they are in service.

Expression 'socialist' was intention ally introduced in the Preamble by the Constitution (Forty-Second Amendment) Act. to education and to provide assistance in cases of unemployment. But there socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with . the flood light illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. 1976. 34.. proposed to amend the Constitution to spell out expressly the high ideals of socialism. socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste.. But it is not necessary at this stage to go into all its ramifications.. Article 41 obligates the State within the limits of its economic capacity and development. socialism aims at providing all opportunities for pursuing the educational activity. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. colour. Recall at this stage the Preamble. therefore. The old age overtakes each one. be he a monarch or a Mahatma.. Article 43(3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities. death being the fulfilment of life providing freedom from bondage. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. In the objects and reasons for amendment amongst other things. What does a Socialist Republic imply? Socialism is a much misunderstood word. The clarion call may be extracted: The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution.. ushering in of socioeconomic revolution was promised. which would end poverty and ignorance and disease and inequality of opportunity... During the formative years. For want of wherewithal or financial equipment the opportunity to be fully educated shall not be denied. and in other cases of undeserved want.to make the directive principles more comprehensive. but the pursuit must be by those who have the necessary intelligence Quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill-equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage.children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. D. old age. This amongst others on economic side envisaged economic equality and equitable distribution of income. a worker or a pariah. sex or religion and with full opportunity to reach the top not thwarted by any considerations of status. social or other wise. Then comes the old age in the life of everyone. Values determine contemporary socialism pure and simple. therefore. a socialist State provides for free education from primary to Ph. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave.. Ordinarily. It is. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. has been engaging the active attention of Government and the public for some time. sickness and disablement. After the education is completed. to make effective provision for securing the right to work.

We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social. freedom from fear and the enjoyable leisure. economic and political. therefore. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. medical aid. The scheme is wholly acceptable to the petitioners. sickness and disablement. Bhagwati. J. This is what Article 41 aims when it enjoins the State to secure public assistance in old age. they challenge that the scheme must be uniformly enforced with regard to all pensioners for the purpose of computation of pension irrespective of the date when the Government servant retired subject to the only condition that he was governed by the 1972 Rules. observed as under: This is not mere semantics. Union of India and Ors. appears to be well established that while interpreting or examining the constitutional validity of legislative/administrative action. as to take the society one step towards the goal. 37. MANU/SC/0075/1980 : [1981]1SCR206 . In the fall of life the State shall ensure to the citizens a reasonably decent standard of life. To some extent this approach will find support in the judgment in Minerva Mills Ltd. in his minority judgment after extracting a portion of the speech of the then Prime Minister Jawahar Lal Nehru. the direction in which the State action-must move. From a wholly feudal exploited slave society to a vibrant. 35. and Ors. not only a fortunate few but the teeming millions of India. It. freedom from want. No doubt.J. throbbing socialist welfare society is a long march but during this journey to the fulfilment of goal every State action whenever taken must be directed. Having set out clearly the society which we propose to set up. the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy . therefore. the end is specified in part IV. nay they are ardent supporters of it. Speaking for the majority. The petitioners challenge only that part of the scheme by which its benefits are admissible to those who retired from service after a certain date. aid must be so interpreted. nay further they seek the benefit of it. observed that the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and everyone. would be able to participate in the fruits. We. relieving the boredom and the humility of dependence in old age. of freedom and development and exercise the fundamental right. Chandrachud. The challenge is not to the validity of the pension liberalisation scheme. In other words. C. It was such a socialist State which the Preamble directs the centers of power Legislative Executive and Judiciary-to strive to set up. v. the welfare State which we propose to build up.their mental and physical prowess. put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. At a later stage it was observed that the fundamental rights are not an end in themselves but are the means to an end. while participating in a discussion on the Constitution (First Amendment) Bill. With this background let us now turn to the challenge posed in these petitions. the benefit of the scheme will be available from the specified date. the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other. 36. irrespective of the fact when the concerned Government servant actually retired from service.

why was the pension scheme liberalised? What necessitated liberalisation of the pension scheme? 40. in the fall of life. nor was it questioned. if such be the welfare State which we propose to set up.especially of security in old age at least to those who have rendered useful service during their active years. that pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. What then is the purpose in prescribing the specified date vertically dividing the pensioners between those who retired prior to the specified date and those who retire subsequent to that date? That poses the further question. viewed from any angle pensioners for payment of pension form a class. Unquestionably pension is linked to length of service and the last pay drawn but the last pay does not imply the pay on the last day of retirement but average emoluments as defined in the scheme. if one has not reached the maximum. If such be the goals of pension.N. should some be left out for the sole reason that while in the formative years of the nascent State they contributed their mite but when the fruits of their labour led to the flowering of economic development and higher gross national produce bringing in larger revenue and therefore larger cake is available. 38. Any one in government service would appreciate at a glance that with an average of 10 months it would be on the higher side on account of the two fortuitous circumstances that the pay-scales. it is indisputable. When Government favourably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of . namely. In the affidavit in opposition by Shri S. This is liberalisation. a slab system for computation is introduced and the ceiling is raised. By the liberalised scheme it is now reduced to average emoluments of 10 months preceding the date. Both the impugned memoranda do not spell out the raison d'etre for liberalising the pension formula. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available. This would clearly imply that the preliberalised pension scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of economic security. Earlier average emoluments of 36 months' service provided the measure of pension because the pension was related to the average emoluments during 36 months just preceding retirement. if such be the goals of socialism and conceding that any welfare measure may consistent with economic capacity of the State be progressively augmented with wider width and a longer canvass yet when the economic means permit the augmentation. if the pensioners who retired prior to the specified date and had to earn pension on the average emoluments of 36 month's salary just preceding the date of retirement.. With a view to giving a higher average the scheme was liberalised to provide for average emoluments with reference to last 10 month's service. permit annual increments and there are promotions in the last one or two years. Thus they suffer triple jeopardy. Mathur. Coupled with it. they would be denied any share of it? Indisputably. 39. lower average emoluments. naturally the average would be lower and they will be doubly hit because the slab system as now introduced was not available and the ceiling was at a lower level. Now. absence of slab system and lower ceiling. viz.

the law as an instrument of social engineering would have long since been dead and no tears would have been shed. It was also said that severance always cuts down the scope of legislation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an attempt is made to include them in the scheme it is not cutting down the class or the scope but enlarge the ambit of the scheme which is impermissible even under the doctrine of severability. 42. Contended the learned Attorney-General that the Court does not take upon itself the function of legislation for persons. things or situations omitted by the legislature. it would be outside the judicial function to enlarge the class and to do so is not to interpret but to legislate which is the forbidden field. To be pragmatic is not to be unconstitutional. The learned Attorney-General contended that the scheme is one whole and that the date is an integral part of the scheme and the Government would have never enforced the scheme devoid of the date and the date is not severable from the scheme as a whole. The last submission. Alternatively it was also contended that where a larger class comprising two smaller classes is covered by a legislation of which one part is constitutional. If at that time it is rejected as being without a precedent. those who are to retire subsequent to the specified date would feel the pangs in their old age. every new measure of social justice commenced for the first time at some point of history. let us proceed to examine whether there was any rationale behind the eligibility qualification. The Government was perfectly justified in liberalising the pension scheme.which could be utilised for providing higher security to erstwhile government servants who would retire. Those who rendered the same service earned less pension and are exposed to the vagary of rising prices consequent upon the inflationary inputs. social security in old age commended itself . the absence of precedent need not deter us for a moment. the Court examines whether the legislation must be invalidated as a whole or only in respect of the unconstitutional part. Therefore. In fact it was overdue. If therefore. 41. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specified date. In this context it was lastly submitted that there is not a single case in India or elsewhere where the Court has included some category within the scope of provisions of a law to maintain its constitutionality. If this be the underlying intendment of liberalisation of pension scheme. Every new norm of socio economic justice. It was said that when the legislature has expressly defined the class with clarity and precision to which the legislation applies. by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. of lack of adequate security. In fact. But we find no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specified date. The Government also took note of the fact that continuous upward movement of the cost of living index as a sequel of inflationary inputs and diminishing purchasing power of rupee necessitated upward revision of pension. In its onward march law as an institution ushers in socio-economic justice. can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not surfer the pangs of rising prices and falling purchasing power of the rupee? What is the sum total of picture? Earlier the scheme was not that liberal keeping in view the definition of average emoluments and the absence of slab system and a lower ceiling.

one retired just a day prior and another a day just succeeding the specified date. 44.100 pa. it would be discriminatory. We are all the more happy for the chance of scribbling on a dean slate. 12. on some rational principle and the rational principle must have nexus to the objects sought to be achieved. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs. If the State considered it necessary to liberalise the pension scheme.a. the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. as it does to us that the pensioners for the purpose of pension benefits form a class. Therefore absence of a precedent on this point need not deter us at all. Both were in the same pay bracket. 43. We have set out the objects underlying the payment of pension. Division is thus both arbitrary and unprincipled. and would such classification be founded on some rational principle? The classification has to be based. stratified and atrophied. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst off than those who retire later. An overdose of precedents is the bans of oar system which is slowly getting stagnant. if there be any. The artificial division stares into face and is unrelated to any principle and whatever principle. A 48 hours difference in matter of retirement would have a traumatic effect. since the specified date. would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision. Therefore. as is well settled. the average emolument was the same and both had put in equal number of years of service. we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. The rules of natural justice owed their origin to ethical and moral code.in earlier stages as a moral concept but in course of time it acquired legal connotation. And average emolument to be worked out on 36 month's salary while the other will have a ceiling of Rs. Therefore the classification does not stand the test of Article 14. Over-emphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. 8. To illustrate. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme.000 p. has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. . This arbitrary action violated the guarantee of Article 14. and average emolument will be computed on the basis of last ten months average. If it appears to be undisputable. this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed. Is there any doubt that they have become the integral and inseparable parts of rule of law of which any civilised society is proud? Can anyone be bold enough to assert that ethics and morality are outside the field of legal formulations? Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. take two persons.

the argument of divisions of a cake. relevant factor for computation of pension. Pension is a liability incurred and has to be provided for in the budget. 46. undoubtedly. 47. Is it retroactive for 35 years for one and not retroactive for a person who retired two days earlier? It must be remembered that pension is relatable to qualifying service. Otherwise it is always prospective. the residue falling to the share of each especially to those who are likely to be benefited by the scheme will be comparatively smaller and as they are not before the Court. Assuming the Government had not prescribed the specified date and thereby provided that those retiring pre and post the specified date would all be governed by the liberalised pension scheme. Therefore. A statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing. Therefore. By that time he had put in qualifying service of 35 years. if more persons are admitted to the scheme. 387). pro rata share is likely to be affected and their absence making relief impermissible. no relief can be given to the pensioners. The pension scheme including the liberalised scheme available to the Government employees is non-contributory in character.The next question is what is the way out? 45. 1979. It has correlation to the average emoluments and the length of service. larger the number of sharers. His length of service is a. He would be governed by the liberalised pension scheme. That being not the case. is an argument born of desperation. Any liberalisation would pro tanto be retroactive in the narrow sense of the term. and (ii) this Court cannot grant any relief to the pensioners who retired prior to a specified date because if more persons divide the available cake. The payment of pension is a statutory liability undertaken by the Government and whatever becomes due and payable is budgeted for. Has the Government made it retroactive. It was not pointed out that there is something like a pension fund. smaller the share and absence of residue and therefore by augmentation of beneficiaries. (see Craies on Statute Law. are we making the scheme retroactive? The answer is emphatically in the negative. There is no artificially created fund or reservoir from which pensioners draw pension within the limits of the fund. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date the revised scheme comes into force. the share of each being extensive with the available fund. (i) the Court cannot make a scheme having financial implications retroactive. Let us clear one misconception. sixth edition. and is without merits and must be rejected as untenable. 35 years backward compared to the case of a Government servant who retired on 30th March. The two sub-limbs of the submissions were that. and pension quantum is correlated to qualifying service. there is no question of pensioners dividing the pension fund which. it would be both prospective and retroactive. p. By our approach. One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. there is no question of dividing the pension fund. The learned Attorney-General contended that the scheme is to be taken as a whole or rejected as a whole and the date from which it came into force is an integral and inseparable part of the scheme. It is recognised as an item of expenditure and it is budgeted and voted every year. At any given point of time there is no fixed or predetermined pension fund which is divided amongst eligible pensioners. . would pro rata affect the share. 1979? Concept of qualifying service takes note of length of service. Take a government servant who retired on April 1.

All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. revised retirement benefits being available to future retirees only? Therefore. it was urged that that date cannot be severed from the main object of the scheme because the Government would have never offered the scheme unless the date was an integral part of it Undoubtedly when an upward revision is introduced. because it is implicit in theory of wages. It would apply to all existing pensioners and future pensioners. All pensioners whenever they retired would be covered by the liberalised pension scheme. is some kind of retirement wages for past service. Pension is thus not an incentive but a reward for past service. the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule34 and introducing the slab system and the amount worked out within the floor and the ceiling. remove the event correlated to date and examine whether the scheme is workable. And even in case of new retiral benefit of gratuity under the Payment of Gratuity Act. benefit of revised scale is not limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. 1972 past service was taken into consideration. In other words. Is this eligibility qualification severable? 49. That takes us to the last important contention of the learned Attorney General. because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. It is undoubtedly a condition of service but not an incentive to attract new entrants because if it was to be available to new entrants only. In case of pensioners who . one could have appreciated an argument that those who had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh recruits. We find no difficulty in implementing the scheme omitting the event happening after the specified date retaining the more humane formula for computation of pension. It is the event of retirement subsequent to the specified date which introduces discrimination in one otherwise homogeneous class of pensioners. In other words. 48. This is just and fair. can it be denied to those who retired earlier. It was urged that the date from which the scheme becomes operative is an integral part of the scheme and the doctrine of severability cannot be invoked. it is only a revision of existing scheme. But it covers all those in service who entered thirty-five years back. It is an upward revision of an existing benefit. It was very seriously contended. Revised pay-scales are introduced from a certain date. In the case of existing pensioners. And a revision of an existing benefit stands on a different footing than a new retiral benefit. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. a new retiral benefit. Recall at this stage the method adopted when pay-scales are revised. It is not a new retiral benefit. it would be prospective at such distance of thirty-five years since its introduction. Pension is a reward for past service. If it was a wholly new concept. The date of retirement is irrelevant. Now if pension as we view it.And beware that it is not a new scheme. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. there is no substance in the contention that the court by its app roach would be making the scheme retroactive. a date from which it becomes effective has to be provided. some preferred and some omitted. 50. This arbitrary selection of the happening of event subsequent to specified date denies equality of treatment to persons belonging to the same class.

The words "who were in service on 31st March. 51. In our opinion. 'in service on the specified date and retiring after that date'. we find not a single valid or relevant consideration much less any . But before we do so. We repeatedly posed a question : what are those relevant and valid considerations and waited for the answer in vain. namely.retired prior to the specified date. the computation of average emoluments under amended Rule 34 may raise the average emoluments. Date is merely to avoid payment of arrears which may impose a heavy burden. That is impermissible. The last revision of emoluments was as per the recommendation of the Third Pay commission (Raghubar Dayal Commission). it would make a marginal difference in the case of past pensioners because the emoluments are not revised. State grants upward revision of pension undoubtedly from a date. If the emoluments remain the same. the approach is not: 'either take it or leave it'. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable effect of dividing homogeneous class and of introducing the discrimination. the same can be easily severed and set aside. The pensioners do not challenge the liberalised pension scheme. we must look into the reasons assigned for eligibility criteria. their pension would be computed afresh and would be payable in future commencing from the specified date. The only reason we could find in affidavit of Shri Mathur is the following statement in paragraph 5: The date of effect of the impugned orders has been selected on the basis of relevant and valid considerations. Therefore. If the date is wholly removed. It does not adversely affect future pensioners and their presence in the petitions becomes irrelevant. the period for averaging being reduced from last 36 months to last 10 months. Their grievance is of the denial to them of the same by arbitrary introduction of words of limitation and we find no difficulty in severing and quashing the same. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. revised pensions will have to be paid from the actual date of retirement of each pensioner. there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed. While examining the case under Article 14. We say so because in the written submissions filed on behalf of the Union of India. They seek the benefit of it. And that would take care of the grievance of retrospectivity. But effective from the specified date future pension of earlier retired Government servants can be computed and paid on the analogy of fitments in revised pay-scales becoming prospectively operative. 1979 and retiring from service on or after the date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. The State cannot be burdened with arrears commencing from the date of retirement of each pensioner. 52. No arrears would be payable. There is nothing immutable about the choosing of an event as an eligibility criteria subsequent to a specified date. That removes the nefarious unconstitutional part and retains the beneficial portion. the approach is removal of arbitrariness and if that can be brought about by severing the mischievous portion the court ought to remove the discriminatory part retaining the beneficial portion. Event has occurred revision has been earned. This approach can be legitimised on the ground that every Government servant retires.

K. Prasad also. i. Ministry of Home Affairs. 1951. strongly urges that selection of May 19. After taking into consideration affidavit in opposition. after the promulgation of IPS (Regulation of Seniority) Rules. who were appointed to IAS/IPS prior to the promulgation of IAS/IPS (Regulation of Seniority) rules. Union of India MANU/SC/0359/1967 : (1968)ILLJ264SC the appellant questioned his seniority which was to be determined in accordance with the provisions contained in Indian Police Service (Regulation of Seniority) Rules. Guha. as a crucial date for classifying people is arbitrary and irrational.8. The tenor is "we select the date and it is unquestionable. 2/32/51-AIS.e. to begin with had nothing to do with the finalisation of the Gradation List of the Indian Police Service because it was a date which had reference to the finalisation of the Gradation List for the IAS. 1966 that "the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Affairs letter No. The above statement of the case of the Government further shows that the date.S. and after the issue of letter dated 25. We agree with him in this respect. this Court held as under: It would be noticed that the date. It appears to us that under the second provisos to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. 1951. Having examined the matter on principle. Nim v. a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly. But why should this date be applied to the Indian Police Service has not been adequately explained. This date was apparently chosen for the IAS because on this date the Gradation List for all the earlier persons recruited to the service had been finalised and issued in a somewhat stable stage. the learned Counsel for the appellant. 1954. His grievance was that there was no rationale behind selecting this date. BRL Iyengar. the Government of India directed that officers promoted to the Indian Police Service should be allowed the benefit of their continuous officiation with effect only from 19th May. 1951 was an artificial and arbitrary date having nothing to do with the application of the first and the second provisos to Rule 3(3). Mr.R. These rules required first to ascertain the year of allotment of the person concerned for the determination of his seniority. either take it or leave it as a whole". let us turn to some precedents. 1954. May 19." But. In doing so. The only submission was that the date is not severable and some submissions in support of it. 1955 will not be applicable to those SCS/SPS officers. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit reproduced above. and the date of the issue of the above letter if their earlier continuous officiation was approved by the Ministry of Home Affairs and Union Public Service Commission". The Central Government cannot pick out a date from a hat-and that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central . dated the 25th August. Deputy Secretary to the Government of India. It further appears that "in the case of Shri C. In D.1955. his case does not fall even under this category". an IPS Officer of Bihar. 53. D.consideration relevant to selection of eligibility criteria. 1954. May 19 1951. The appellant challenged the order because the period of officiation from June 1947 to May 1951 was excluded for the purpose of fixation of his seniority. dated December 9. it is stated that "as Shri Nim was appointed to IPS on the 22nd October 1955. It further appears from the affidavit of Mr.

In the appeal by the Union of India. whose total clearance was not estimated to be in excess of 75 million matches. 1967 was issued. v. With reference to selection of the date this Court observed as under: The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. Similarly in Jaila Singh and Anr. When it is seen that a line or a point there must be and there is no . By a notification dated July 21. This notification was amended on September 4. whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when Rajasthan Tenancy Act came into force. this Court held that the concessional rate of duty was intended for small bona fide units who were in the field when the notification dated September 4. In a writ petition filed by the respondent. 1967. The Court held that the Central Government cannot pick out a date from a hat and that is what it seems to have done in saying that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. the benefit of concessional rate of duty prescribed under notification dated July 21. As framed the notification extended the benefit to manufacturers with higher capacity to avail of the concessional rate of duty by filing a declaration as visualised in the proviso to the notification by restricting their clearance to 75 million matches. The ratio of the decision would squarely apply to the facts of this case. 54. the eligibility criteria for being eligible for liberalised pension scheme have been picked out from where it is difficult to gather and no rationale is discernible nor one was attempted at the hearing.Government within the second proviso. 1967 with a view to giving bona fide small manufacturers. S. As against this the learned Attorney-General invited our attention to Union of India and Anr. this Court struck down as discriminatory the division of pre-1955 and post-1955 tenants for the purpose of allotment of land made by the Rules under the Rajasthan Colonisation Act. State of Rajasthan and Ors. Parameswaran Match Works etc MANU/SC/0094/1974 : 1978(2)ELT436(SC) . benefit of a concessional rate of duty was made available if a manufacturer of matches made a declaration that the total clearance of matches from a factory would not exceed 75 million during a financial year. This division for the purpose of allotment of land with reference to certain date was considered both arbitrary and discriminatory on the ground that it was wholly unrelated to the objects sought to be achieved. but this was rejected. In case before us. 1967. 55. a day after the date on which amended notification was issued and filed a declaration that the estimated manufacture for the financial year would not exceed 75 million matches. 55. The court further observed that it is difficult to appreciate how it would make any difference from the point of view of allotment of land. 1967.C. the High Court held that the classification was unreasonable inasmuch as the fixation of the date for making a declaration had no nexus with the object of the Act.R. The respondent in the case applied for a licence for manufacturing matches on September 5. that is. 428. The concessional rate of duty was not intended to benefit the large units which had split up into smaller units to earn the concession. 1954 observing that the various provisions indicate that the pre-1955 and post-1955 tenants stand on the same footing and therefore do not form different classes and hence the division was held to be based on wholly irrelevant consideration. v. MANU/SC/0405/1975 :[1975] Su.

etc MANU/SC/0330/1980 : [1980]1SCR804 this Court while repelling the contention that the choice of April 1. 1961 under the Kerala Building Tax Act. And apart from the first test that the division must be referable to some rational principle. the date can be" struck down. the choice of the date cannot be wholly divorced from the objects sought to be achieved by the impugned action. In reaching this conclusion the Court relied on Louisville Gas Co. In fact it is made clear in the decision itself that even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical. 58. The Court held that the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated. This was the weighty consideration which prompted the court to uphold the date. The learned Attorney General next referred to D. State of Kerala and Anr. if the choice is shown to be thoroughly arbitrary and introduces discrimination violative of Article 14. v. the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark. or an eligibility criteria which divides a class. this Court held that the choice of date April 1. This decision is not an authority for the proposition that whenever a date is chosen. Therefore. Alabama Power Co. if.mathematical or logical way of fixing it precisely. The decision proceeds on the facts of the case. v. While delivering the budget speech. 1968. Gouse and Co. it cannot be upheld on the specious plea that that was the choice of the Legislature. 1970. 1973 as the date of imposition of the building tax is discriminatory with reference to Article 14 of the Constitution. the division or classification made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. by adopting the device of fragmentation. eligibility criteria is unrelated to the object sought to be achieved and has the pernicious tendency of dividing an otherwise homogeneous class. supra. the intention to introduce a fresh Bill for the levy of tax was made clear. the purpose of choice unrelated to the objects sought to be achieved must be accepted as valid. etc. Even while reaching this conclusion the Court observed that it is not shown how it could be said that the date (April 1. After recalling the various stages through which the Bill passed before being enacted as Act. What appealed to the Court was that earlier an attempt was made to impose the building tax with effect from March 2. 56. The Bill was published in June 73 in which it was made clear that the Act would be brought into force from April 1. But the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of beneficiaries of the legislative/executive action becomes selective. at the time of introduction of the 1970-71 budget. 57. 240 US 30 [1927].C. if the choice of the date or classification is wholly unrelated to the objects sought to be achieved. 1961 but the Act was finally struck down as unconstitutional by this Court as per its decision dated August 13. Parameswarm Match Works etc. the choice of the legislature may be accepted. approved the ratio in the case of M/s. Now if the choice of date is arbitrary. the larger units could become the ultimate beneficiaries of the bounty. What facts influenced the Court's decision in that case for upholding the choice of the date are worth-recalling. 1973) for the levy of the tax was wide of the reasonable mark. In other words. the question is whether the liberalised pension scheme must wholly fail or that the pernicious part . 1973 was not wide of the reasonable mark.

We are not sure whether there is any principle which inhibits the Court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. the class of beneficiaries was enlarged and the cake in the form of available land was a fixed quantum and its distribution amongst the larger class would protanto reduce the quantum to each beneficiary included in the class. by striking down words of limitation. To refer to the Jaila Singh's case (supra). The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date. We may now deal with the last submission of the learned Attorney General on the point. 1979 the amount of pension shall be determined in accordance with the following slabs.can be severed. the resultant effect may be of enlarging the class. 66. 67. In such a situation. the principle of 'severance' for taking out the unconstitutional provision from an otherwise constitutional measure has been well recognised. we merely set at naught the unconstitutional portion retaining the constitutional portion 68. cautioning itself that this Court does not legislate but merely interprets keeping in view the underlying intention and the object. when for the benefit of allotment of land the artificial division between pre-1955 and post-1955 tenant was struck down by this Court.per month. let us read the impugned memoranda deleting the unconstitutional part. That is what is called reading down the measure. never enlarges it'. Similarly when this Court in Randhir Singh's case (supra) held that the principle of 'equal pay for equal work' may be properly applied to cases of unequal pay based on no classification or irrational classification it enlarged the class of beneficiaries. is this Court legislating? Of course 'not' When we delete basis of classification as violative of Article 14. pleased to decide that with effect from 31st March. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification. If from the impugned memoranda the event of being in service and retiring subsequent to specified date is severed. Therefore. the impugned measure seeks to subserve? Even though it is not possible to oversimplify the issue. unenforceable or unworkable. pension is calculated at the rate of 1/80th of average emoluments for each completed year of service and is subject to a maximum of 33/80 of average emoluments and is further restricted to a monetary limit of Rs. In reading down the memoranda.000/. The President is. Said the learned Attorney-General that principle of severability cannot be applied to augment the class and to adopt his words 'severance always cuts down the scope. 1979 but retiring from service in or after that date' can be legally and validly severed and must be . but providing 'that in respect of Government servants who were in service on the 31st March. all pensioners would be governed by the liberalised pension scheme. Omitting it. now. It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague. It would be just and proper that the provision in the memoranda while retaining the date for its implementation. 1. the memoranda will read like this: At present. the Court can strike down the words of limitation in an enactment. We know of no principle that 'severance' limits the scope of legislation and can never enlarge it.

But in this context the learned Attorney submitted the following quotation which appears to have been extracted from a decision of American Court. If we are satisfied that it would not or that the matter is in such doubt that we are unable to say what Congress would have done omitting the unconstitutional features then the statute must fail. the Committee concluded as under: . In this context the last submission of the learned Attorney General was that as the pension is always correlated to the date of retirement. March 31. The apprehension is wholly unfounded. No arrears for the period prior to 31st March. The date is retained without qualification as the effective date for implementation of scheme. 59. 1979 and have already availed of the benefit of commutation. citation of which was not available. the pension of each may be recomputed as on April 1. Such is not the exclusion. To say that by our approach we are restructuring the liberalised pension scheme. The two features which make the liberalised pension scheme more attractive is the redefining of average emoluments in Rule 34.e. 1979 and future payments be made in accordance with fresh computation under the liberalized pension scheme as enacted in the impugned memoranda. It is implicit in liberalising the scheme that the deed to grant little higher rate of pension to the pensioners was considered eminently just. and introduction of slab system simultaneously raising the ceiling. There is no question of fresh commutation of pension of the pensioners who retired prior to 31st March. We are doing nothing of this kind. 1979. The exclusion is of a whole class of people who retire before a certain date. The quotation may be extracted from the written submission. the court is not conferring benefits by this approach. The date of retirement of each employee remains as it is. the court only removes the illegitimate classification and after its removal the law takes its own course. and this becomes clearly discernible from page 35 of 9th Report of Committee on Petitions (Sixth Lok Sabha) April. Similarly. 1979 in accordance with revised computation need be paid. We entertain no such apprehension. it being made abundantly clear that in respect of all pensioners governed by 1972 Rules. Parliament would not have hesitated to extend the benefit otherwise considered eminently just. the pension will have to be recomputed with effect from the date from which the liberalised pension scheme came into force i. 60. and impose fresh commutation benefit. 1976. The Executive with parliamentary mandate liberalised the pension scheme. The average emoluments have to be worked out keeping in view the emoluments drawn by him before retirement but in accordance with the principles of the liberalised pension scheme.struck down. While examining their representation for better pensionary benefit. Within these parameters. is to ignore the constitutional mandate. the Court cannot change the date of retirement. It is not open to them to get that benefit at this late date because commutation has to be availed of within specified time limit from the date of actual retirement. One could have understood persons in the higher pay bracket being excluded from the benefits of the scheme because it would have meant that those in higher pay bracket could fend for themselves. It reads as under: It remains to enquire whether this plea that Congress would have enacted the legislation and the Act being limited to employees engaged in commerce within the district of Columbia and the Territory. May be some marginal retirees may earn the benefit. That is inevitable.

1973 pensioners. Therefore. It is an item of expenditure voted year to pear depending upon the number of pensioners and the estimated expenditure. Our approach may have a parliamentary flavour to sensitive noses. 233 crores would be required for fresh commutation. it cannot and need not be reopened.. 1979 within the fold of liberalised pension scheme but effective subsequent to the specified date.D. we are satisfied that the increased liability consequent upon this judgment is not too high to be unbearable or such as would have detracted the Government from covering the old pensioners under the . Assistant etc. this Court is only concerned with the additional liability that may be imposed by bringing in pensioners who retired prior to April 1.C.1.. That it is a dwindling number is indisputable. There is no pension fund as it is found either in contributory pension schemes administered in foreign countries or as in Insurance-linked pensions. U. The apparent fallacy in the submission is that if the benefit of commutation is already availed of. Therefore. The difference upto the level of Assistant or even Section Officer is marginal keeping in view that the old pensioners are getting temporary increases. if they are brought within the purview of the liberalised pension scheme. to protect the actual value of their meager pensions to enable the pensioners to live in their declining years with dignity and in reasonable comfort.The Committee are of the view that Government owe a moral responsibility to provide adequate relief to its retired employees including pre 1. the Union of India has worked out the pension to the pensioners who have retired prior to the specified date and the comparative advantage. we are not inclined to share the apprehension voiced by the learned Attorney that if we strike down the unconstitutional part. the average yearly increase is worked out to be Rs. Now when the liberalised pension scheme was introduced. Therefore. there will be some difference because the ceiling is raised and that would introduce the difference. The figures submitted are thus neither frightening nor the liability is supposed to be staggering which would deflect us from going to the logical end of constitutional mandate. In view of the present economic conditions in India and constant rise in the cost of living due to inflation. However in this connection. the parliament would not have enacted the measure. In a chart submitted to us. L. Further. 1979 are brought within the purview of the liberalised pension scheme. let it not be forgotten that the old pensioners are on the way out and their number is fast decreasing. And again the large bulk comprises pensioners from lower echelons of service such as Peons. 31 crores but that assumes that every pensioner has survived till date and will continue to survive. it is all the more important even from purely humanitarian considerations if not from the stand point of fairness and justice. Non-contributory pensions under 1972 rules is a State obligation. Further Government has been granting since nearly a decade temporary increases from time to time to pensioners. While examining the financial implication.C. 61. Rs. the difference will be marginal. It is however necessary to refer to one figure relied upon by respondents. The financial implication in such matters has some relevance. And availability of other benefits is hardly a relevant factor because pension is admissible to all retirees. Even according to the most liberal estimate. we would justifiably assume that the Government servants would retire from the next day of the coming into operation of the scheme and the burden will have to be computed as imposed by the liberalised scheme. It was said that if pensioners who retired prior to 31st March. whose actual value of pensions has been eroded by the phenomenal rise in the prices of essential commodities.D. we want to steer clear of a misconception. Amongst the higher officers.

Exhibits P-1 and P-2. It is a non-political non-profit and voluntary organisation. 1979 and retiring from service on or after that date and in Exhibit P-2. Gupta v. 62. S.C. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. 87 rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. costly and protracted. violates Article 14 and is unconstitutional and is struck down. in Exhibit P-1. But it is a point of academic important because locus standi of petitioners Nos. 1 and 2 was never questioned. therefore. 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. 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. 3 is a Society registered under the Societies Registration Act of 1860. With the expanding horizons of socio-economic justice. That is the end of the journey. approached petitioner No. Petitioner No.P. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retirees. Union of India MANU/SC/0080/1981 :[1981] Su. its locus standi is unquestionable. the falling value of the rupee consequent upon inflationary inputs. Both the memoranda shall be enforced and implemented as read down as under : In other words. 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 . we are satisfied that by introducing an arbitrary eligibility criteria : 'being in service and retiring. Therefore. and. 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.scheme. 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 eligibility criteria devised being thoroughly arbitrary. being eligible for the liberalised pension scheme and thereby dividing a homogeneous class.C. the words: the new rates of pension are effective from 1st April 1979 and will be applicable to all service officers who became/become non-effective on or after that date. subsequent to the specified date' for. Locus standi of third petitioner was questioned. individually unable to undertake the journey through labyrinths of legal judicial process. 63. 3 which espoused their cause Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S. This Society received a large number of representations from old pensioners. the words: that in respect of the Government servants who were in service on the 31st March.

irrespective of the date of retirement. Let a writ to that effect be issued. Ltd. Arrears of pension prior to the specified date as per fresh computation is not admissible. Go to top . © Manupatra Information Solutions Pvt. there will be no order as to costs. But in the circumstances of the case.scheme from the specified date.

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