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PETITIONER: D.S. NAKARA & OTHERS

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT17/12/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1983 AIR  130            1983 SCR  (2) 165  1983 SCC  (1) 305        1982 SCALE  (2)1213  CITATOR INFO :  R          1983 SC 937  (34)  R          1984 SC 121  (28)  R          1984 SC1064  (18)  R          1984 SC1247  (1)  RF         1984 SC1361  (19)  RF         1984 SC1560  (2)  F          1985 SC1196  (2,7)  D          1985 SC1367  (39,43)  RF         1986 SC 210  (19,20,22,26)  R          1986 SC 584  (1)  R          1986 SC1907  (1,2)  R          1987 SC 943  (8)  RF         1987 SC2359  (17)  D          1988 SC 501  (3,4,6,7)  RF         1988 SC 740  (13)  D          1988 SC1291  (9)  R          1988 SC1645  (8)  D          1989 SC 665  (7)  F          1989 SC2088  (7)  R          1990 SC 334  (104)  RF         1990 SC 883  (6)  E          1990 SC1760  (9)  RF         1990 SC1923  (3)  D          1990 SC2043  (2,7)  E          1991 SC1182  (6 TO 16,18,19,23)  RF         1991 SC1743  (1,2,4)  R          1992 SC  96  (11)  R          1992 SC 767  (2,4,TO 8,10)

ACT:      Constitution of  India, Art.  14-Central Civil Services (Pension) Rules,  1972 and Regulations governing pension for Armed  Forces  Personnel-Liberalisation  in  computation  of pension effective  from specified date-Divides pensioners so as to  confer benefit  on some  while denying  it to others- Classification arbitrary, devoid of rational nexus to object of liberalisation and violative of Art. 14      Constitution   of    India,   Art.    14-Doctrine    of severability-Severance may have effect of enlarging scope of legislation.      Rules  and  Regulations  governing  grant  of  pension-

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Pension is  a right-Deferred  portion  of  compensation  for service rendered-Also a social-welfare measure.

HEADNOTE:      By a  Memorandum dated  May 25,  1979 (Exhibit P-1) the Government of  India liberalised the formula for computation of pension  in respect  of employees governed by the Central Civil Services  (Pension) Rules, 1972 and made it applicable to employees retiring on or after March 31, 1979. By another Memorandum issued  on September  23, 1979  (Exhibit P-2)  it extended the  same, subject  to certain  limitations, to the Armed Forces’  personnel retiring on or after April 1, 1979. Petitioners 1  and 2  who had  retired in the year 1972 from the Central  Civil Service  and the  Armed  Forces’  service respectively, and  petitioner No.  3, a  registered  society espousing the  cause of  pensioners all  over  the  country, challenged the validity of the above two memoranda in so far as the  liberalisation in  computation of  pension had  been made applicable  only to those retiring on or after the date specified and  the benefit of liberalisation had been denied to all those who had retired earlier.      Counsel for  petitioners contended  that all pensioners entitled to  receive pension under the relevant rules form a class irrespective  of the  dates of  their  retirement  and there cannot  be a  mini-classification within  this  class; that the  differential treatment  accorded to  those who had retired prior  to the specified date is violative of Art. 14 as the  choice of specified date is wholly arbitrary and the classification  based  on  the  fortuitous  circumstance  of retirement before  or subsequent  to the  specified date  is invalid;  and   that  the   scheme  of   liberalisation   in computation of  pension  must  be  uniformly  enforced  with regard to all pensioners. 166      Counsel for respondents contended that a classification based on  the date of retirement is valid for the purpose of granting pensionary  benefits; that the specified date is an integral part  of  the  scheme  of  liberalisation  and  the Government would  never have  enforced the  scheme devoid of the date;  that  the  doctrine  of  severability  cannot  be invoked to  sever the  specified date  from the scheme as it would have  the effect  of enlarging the class of pensioners covered by the scheme and when the legislature has expressly defined the  class to which the legislation applies it would be outside  the judicial function to enlarge the class; that there is not a single case where the court has included some category within the scope of provisions of a law to maintain its   constitutionality;    that   since   the   scheme   of liberalisation has  financial implications, the Court cannot make it  retroactive;  that  if  more  persons  divided  the available cake  the residue  falling to  the share  of each, especially to  the share  of those  who are  not before  the court would become far less and therefore no relief could be given to  the petitioners  that pension is always correlated to the  date of  retirement and  the court cannot change the date of  retirement and  impose  fresh  commutation  benefit which may  burden the  exchequer to  the  tune  of  Rs.  233 crores; and that the third petitioner has no locus standi in the case.      Allowing the petitions, ^      HELD: Article  14 strikes  at  arbitrariness  in  State action and ensures fairness and equality of treatment. It is

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attracted where  equals are  treated differently without any reasonable basis.  The principle underlying the guarantee is that all  persons similarly  circumstanced shall  be treated alike both  in privileges conferred and liabilities imposed. Equal laws  would have  to be  applied to  all in  the  same situation 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. Article 14  forbids class legislation but permits reasonable classification  for   the  purpose   of   legislation.   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 and that  differentia must  have a  rational  nexus  to  the object sought  to be achieved by the statute in question. In other words, there ought to be causal connection between the basis of  classification and  the object of the statute. The doctrine of  classification was evolved by the Court for the purpose of sustaining a legislation or State action designed to help  weaker sections  of the  society.  Legislative  and executive action  may accordingly  be sustained by the court if  the   State  satisfies  the  twin  tests  of  reasonable classification and  the rational principle correlated to the object sought  to be  achieved. A  discriminatory action  is liable to  be struck  down unless  it can  be shown  by  the Government that  the departure  was not  arbitrary  but  was based on  some valid  principle  which  in  itself  was  not irrational, unreasonable or discriminatory.      [176 B,  178 D-E,  179 B-C,  177 C-D, 179 C-D, 176 E-F, 179 H, 180 A-C]      Maneka Gandhi  v. Union  of India, [1978] 2 S.C.R. 621; Ram Krishna  Dalmia v.  Shri Justice  S.R. Tendolkar & Ors., [1959] S.C.R.  279; In  re Special  Courts  Bill,  [1979]  2 S.C.R, 476;  E.P Royappa  v. State  of Tamil  Nadu, [1974] 2 S.C.R. 348;  Ajay Hasia  etc. v.  Khalid Mujib  Sehravardi & Ors., [1981] 2 S.C.R. 79; Air India etc. v. Nargesh Meerza & Ors., [1982]  1 S.C.R.  438 and  Ramana  Dayaram  Shetty  v. International Airport  Authority of  India &  Ors., [1979] 3 S.C.R. 1014, referred to. 167      In the  instant case,  looking to  the  goals  for  the attainment of  which pension  is paid  and the welfare State proposed to  be  set  up  in  the  light  of  the  Directive Principles of  State Policy and Preamble to the Constitution it indisputable  that pensioners for payment of pension from a  class.   When  the   State  considered  it  necessary  to liberalise the  pension scheme  in order  to augment  social security in  old age  to government  servants it  could  not grant the  benefits of  liberalisation  only  to  those  who retired subsequent  to the  specified date and deny the same to those  who had  retired prior  to that date. The division which classified  the pensioners  into two  classes  on  the basis of  the specified  date was  devoid  of  any  rational principle and  was both  arbitrary  and  unprincipled  being unrelated to  the object  sought to  be achieved by grant of liberalised pension  and the  guarantee of  equal  treatment contained in  Art. 14  was violated  inasmuch as the pension rules  which   were  statutory   in  character   meted   out differential and  discriminatory treatment  to equals in the matter of computation of pension from the dates specified in the impugned memoranda. [190 F-H, 194 A-C, 194 F-H]      (ii) Prior  to the  liberalisation of  the formula  for computation of  pension average  emoluments of  the last  36 months’ service  of the  employee provided  the  measure  of pension. By  the liberalised  scheme, it  is now  reduced to

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average emoluments  of the  last 10 months’ service. Pension would now be on the higher side on account of two fortuitous circumstances, namely,  that the  pay scales  permit  annual increments and  usually there are promotions in the last one or two  years of  the employee’s  service. Coupled with it a slab system  for computation  has been  introduced  and  the ceiling of  pension has  been raised. Pensioners who retired prior to  the specified  date would  suffer triple jeopardy, viz., lower  average emoluments,  absence of slab system and lower ceiling.                                                    [191 A-D]      (iii) Both  the impugned memoranda do not spell out the raison d’etre  for liberalising  the pension formula. In the affidavit in opposition it is stated that the liberalisation was decided  by the  government in  view of  the  persistent demand of  the employees  represented in the scheme of Joint Consultative Machinery.  This would  clearly imply  that the pre-liberalised scheme  did not  provide adequate protection in old  age, and that a further liberalisation was necessary as a  measure of economic security. The government also took note of the fact that continuous upward movement of the cost of living  index and  diminishing purchasing  power of rupee necessitated upward revision of pension. When the government favourably responded  to the  demand it  thereby ipso  facto conceded that  there was  a larger  available national cake, part  of  which  could  be  utilised  for  providing  higher security  to   retiring  employees.   With  this  underlying intendment of  liberalisation, it cannot be asserted that it was good  enough only  for those who would retire subsequent to the  specified date  but not  for those  who had  already retired. [191 F-G, 192 A, 191 H, 192 B]      2. If  removal of arbitrariness can be brought about by severing the  mischievous portion,  the discriminatory  part ought  to  be  removed  retaining  the  beneficial  portion. [198 F]      In the  instant case, the petitioners do not challenge, but seek  the benefit  of the  liberalised  pension  scheme. Their grievance  is of  the denial  to them  of the  same by arbitrary introduction  of words  of  limitation.  There  is nothing 168 immutable about  the choosing  of an event as an eligibility criteria subsequent  to a  specified date.  If the  event is certain but  its occurrence at a point of time is considered wholly  irrelevant   and  arbitrarily   selected  having  an undesirable effect  of dividing  a homogeneous  class and of introducing discrimination  the same  can be  easily severed and set  aside. It  is therefore  just and  proper that  the words  introducing  the  arbitrary  fortuitous  circumstance which are  vulnerable as  denying equality  be  severed  and struck down. In Exhibit P-1 the words:           "That in  respect of  the Government  servants who      were in  service on  the 31st  March, 1979 and retiring      from service on or after that date. and in Exhibit P-2, the words:           "the new  rates of  pension are effective from Ist      April 1979  and  will  be  applicable  to  all  service      officers who  became/become noneffective  on  or  after      that date" are  unconstitutional   and  are   struck  down   with   the specification  that  the  date  mentioned  therein  will  be relevant as  being one  from which  the liberalised  pension scheme becomes operative. Omitting the unconstitutional part it is  declared that  all pensioners  governed by  the  1972 Rules and  Army Pension  Regulations shall  be  entitled  to

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pension as  computed under  the liberalised  pension  scheme from  the  specified  date,  irrespective  of  the  date  of retirement. Arrears  of pension  prior to the specified date as per  fresh computation is not admissible. [190A-C, 198 G, 198 E-F, 205 F-H, 209 F-H, 210 A-D]      D.R. Nim  v. UNion  of India,  [1967] 2 S.C.R. 325; and Jaila Singh  & Anr.  v. State  of Rajasthan  & Ors.,  [1975] Supp. S.C.R. 428, relied on.      Union of  India & Anr. v. M/s. Parameswaran Match Works etc., [1975]  2 S.C.R.  573; and  D.C. Gouse  & Co.  etc. v. State of  Kerala & Anr. etc., [1980] 1 S.C.R. 804, explained and distinguished.      Louisville Gas  Co. v.  Alabama Power  Co., 240 U.S. 30 [1927], referred to.      (ii) The  reading down  of the  impugned  memoranda  by severing the  objectionable portion  would  not  render  the liberalised   pension   scheme   vague,   unenforceable   or unworkable. The Court is not legislating in reading down the memoranda;  when   the  Court  strikes  down  the  basis  of classification as  violative of  Art. 14  it merely  sets at naught   the    unconstitutional   portion   retaining   the constitutional  portion.   There   is   no   difficulty   in implementing the  scheme omitting  the event happening after the specified  date, retaining  the more  human formula  for computation  of   pension.  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.  The Court  is satisfied that the additional financial liability that may be imposed by bringing 169 in pensioners  who retired prior to April 1, 1979 within the fold of the liberalised pension scheme is not too high to be unbearable or  such as  would have  detracted the Government from covering  the old  pensioners  under  the  scheme.  The severance of  the nefarious  unconstitutional part  does not adversely affect  future pensioners  and their  presence  in these petitions is irrelevant.               [204 G-H, 197 E-F, 206 B, 196 G, 208 G, 199 B]      (iii)  To  say  that  by  its  approach  the  Court  is restructuring the  liberalised pension  scheme is  to ignore the constitutional  mandate. The  Court  is  not  conferring benefits  by   its  approach;   it  is   only  removing  the illegitimate classification  and after  its removal  the law takes its own course. [206 D-E]      (iv)  It   is  not   correct  to   say  that   if   the unconstitutional part  is struck  down the  Parliament would not  have   enacted  the   measure.  The   executive,   with parliamentary mandate, liberalised the pension scheme. It is implicit in  the scheme  that the  need to  grant  a  little higher rate  of pension  to the  pensioners  was  considered eminently just.  One could  have understood  persons in  the higher pay  bracket being  excluded from  the benefit of the scheme because  it would have meant that those in the higher pay bracket  could fend  for themselves.  Such  is  not  the exclusion. The  exclusion is  of a whole class of people who retired before  a certain  date. Parliament  would not  have hesitated  to   extend  the   benefit  otherwise  considered eminently just  and this  becomes clearly  discernible  from p.35 of  the 9th  Report of  the Committee on Petitions (6th Lok Sabha), April 1979. [206 H, 207 A-E]      (v) Whenever classification is held to be impermissible and  the   measure  can   be  retained   by   removing   the unconstitutional  portion   of   the   classification,   the

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resultant effect  may be  of enlarging  the class. In such a situation the  court can strike down the words of limitation in an  enactment. That  is what  is called  reading down the measure. There  is no  principle that  severance limits  the scope of legislation but can never enlarge it. [205 B-C]      Jaila Singh  & Ors. v State of Rajasthan & Ors., [1975] Supp. S.C.R.  428 and Randhir Singh v. Union of India & Ors. [1982] 1 S.C.C. 618, relied on.      (vi) The absence of precedent does not deter the court. Every new  norm of socio-economic justice, every new measure of social justice commenced for the first time at some point of time in history. If at that time it was rejected as being without  a   precedent,  law  as  an  instrument  of  social engineering would  have long since been dead. [193 G, 193 C- D]      (vii)  The   court  is   not  making   the  scheme   of liberalisation retroactive  by its approach. Retroactiveness is implicit  in the theory of wages. When revised pay-scales are introduced  from a  certain date, all existing employees are brought  on to  the revised  scales adopting a theory of fitments and  increments for  past service.  The benefit  of revised scales  is not  limited to  those who  enter service subsequent to  the date fixed for introducing revised scales but is  extended to all those in service prior to that date. Even in  the case  of the  new retiral  benefit of  gratuity under the  Payment of  Gratuity Act,  1972, past service was taken into  consideration. The  scheme of  liberalisation is not a new retiral benefit; it is 170 an upward  revision of  an  existing  benefit.  Pension  has correlation  to   average  emoluments   and  the  length  of qualifying service  and any  liberalisation would  pro tanto ber etroactive in the narrow sense of the term. Assuming the government had not prescribed the specified date and thereby provided that  those retiring,  pre and  past the  specified date, would  all be  governed  by  the  liberalised  pension scheme it  would be  both prospective  and retroactive. 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. A statute  is not properly called retroactive because a part of the  requisites for  its action  is  drawn  from  a  time antecedent to its passing.                        [195 H, 196 H, 196 G, 196 D, 196 B-D]      Craies on  Statute Law,  Sixth Edition, p. 387 referred to.      (viii) There  is no question of pensioners dividing the pension fund  which, if  more persons  are admitted  to  the scheme, would pro rata affect the share. The pension scheme, including the  liberalised scheme,  is  non-contributory  in character. The  payment of  pension is a statutory liability undertaken by  the  Government.  Whatever  becomes  due  and payable on  account of  pension is  recognised as an item of expenditure and  is budgeted  for every  year. At  any given point of  time there  is no  fixed or pre-determined pension fund which is divided amongst eligible pensioners. [195 C-G]      (ix) The  date of retirement of each employee remaining as it  is, there  is no  question of  fresh  commutation  of pension of  the pensioners  who retired  prior to 31st March 1979 and have already availed of the benefit of commutation. It is not open to them to get that benefit at this late date because  commutation   has  to  be  availed  of  within  the specified time  limit from  the date  of actual  retirement. [206 C-D]      3.  The  discernible  purpose  underlying  the  pension

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scheme must  inform the interpretative process and it should receive a liberal construction. [185 G-H]      (i) Pension  is a  right; not  a bounty  or  gratuitous payment. The  payment of  pension 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. [186 A-B]      Deoki Nandan  Prasad v.State  of  Bihar  &  Ors.,[1971] Supp. S.C.R.  634 and  State of  Punjab & Anr.v Iqbal Singh, [1976] 3 S.C.R. 360, referred to.      (ii) 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 for service rendered. [185 F]      (iii) Pension  also has  a broader significance in that it is  a  social-welfare  measure  rendering  socio-economic justice by  providing economic  security in old age to those who toiled ceaselessly in the hey-day of their life. [185 D- E, 186 B-C]      (iv) Pension  as a  retirement benefit is in consonance with and  in furtherance  of the  goals of the Constitution. The goals for which pension is 171 paid themselves  give a  fillip and  push to  the policy  of setting up a welfare state. The preamble to the Constitution envisages the  establishment of  a socialist  republic.  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. Article 41 enjoins the State to  secure  public  assistance  in  old  age,  sickness  and disablement. Every  state  action  whenever  taken  must  be directed and  must be  so interpreted as to take society one step towards  the goal  of establishing  a socialist welfare society. While  examining  the  constitutional  validity  of legislative/administrative   action,   the   touchstone   of Directive Principles  of State  Policy in  the light  of the Preamble provides  a reliable  yardstick to  hold one way or the other. [190 E,187 F,189 A-B,189 H]      Randhir Singh v. Union of India & Ors., [1982] I S.C.C. 618 and  Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] I S.C.R. 206, referred to.      4. 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.  The  locus  standi  of petitioner No.  3 which  seeks to enforce rights that may be available to  a large  number of  old,  infirm  retirees  is unquestionable  as   it  is   a  non-political,  non-profit, voluntary  organisation   registered  under   the  Societies Registration Act,  1860 and  its members  consist of  public spirited citizens who have taken up the cause of ventilating legitimate public problems. [208 H, 209 A-C]      S.P.Gupta v.  Union of  India, [1981]  Supp.  S.C.C.87, referred to.

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition Nos. 5939-41 of 1980.      Anil B.  Divan, Mrs.  Vineeta Sen  Gupta and P.H.Parekh for the Petitioners      L.N.Sinha,Attorney  General,   M.M.  Abdul  Khader,  N.

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Nettar and Miss A. Subhashini for Union of India.      G.L. Sanghi and Randhir Jain for the interveners.      S.R.Srivastava for the Intervener.      K.K. Gupta for the Intervener.      The Judgment of the Court was delivered by      DESAI,J.With a  slight variation  to suit  the  context Woolesey’s prayer  : "had I served my God as reverently as I did my  king, 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 172 the thorns  of life  I bleed.’  Old age,  ebbing mental  and physical prowess,  atrophy of  both muscle  and brain powers permeating these  petitions, 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,      Do pensioners  entitled to  receive  superannuation  or retiring pension  under  Central  Civil  Services  (Pension) Rules, 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  Art. 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.      Factual matrix  has  little  relevance  to  the  issues raised and canvassed at the hearing. Petitioners 1 and 2 are retired pensioners  of the  Central  Government,  the  first being a  civil servant  and the second being a member of the service personnel  of the Armed Forces. The third petitioner is a  society registered  under the  Societies  Registration Act,  1860,   formed  to  ventilate  the  legitimate  public problems and  consistent with  its objective it is espousing the cause  of the pensioners all over the country. Its locus standi is  in question  but that  is a different matter. The first petitioner  retired in  1972 and  on computation,  his pension worked  out at  Rs. 675/-  p.m. and  along with  the dearness relief  granted from  time to time, at the relevant time he  was in receipt of monthly pension of Rs. 935/-. 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. 981/-  p.m. Union  of India has been revising and liberalising  the pension  rules from time to time. Some landmark changes may be noticed.      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, subject to a limit of 35/80 with 173 a ceiling  of Rs.  8,000 per  year for  35 years of service, which  the   Government  of   India  while   accepting   the recommendation raised to Rs. 8,100 per year which would earn a monthly  pension of  Rs. 675  at the  maximum. The  Second Central Pay Commission (1957-58) re-affirmed that the age of superannuation should  be 58 years for all classes of public

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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, it was the considered view of  the Commission  that these  benefits should be on a contributory basis.  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, 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. 675 p.m. to  Rs. 1000  p.m. Before the Government could take its decision on  the  recommendations  of  the  ARC,  the  Third Central Pay  Commission was  set up.  One of  the  terms  of reference  of  the  Third  Pay  Commission  was  ’death-cum- retirement benefits  of Central  Government employees’.  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, the Government of India decided not to amend the terms of reference. 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.  The   only important  recommendation   worth  noticing   is  that   the Commission recommended  that the existing ceiling of maximum pension should  be raised from Rs. 675 to Rs. 1,000 p.m. and the maximum of the gratuity should be raised from Rs. 24,000 to Rs. 30,000.      On May  25, 1979,  Government  of  India,  Ministry  of Finance, issued  Office Memorandum No. 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 and  retire from  service on  or after that  date (specified  date for  short).  The  formula introduced a slab system for computation of 174 pension. This  liberalised pension formula was applicable to employees governed  by the  1972 Rules  retiring on or after the specified  date. The  pension for  the service personnel which will  include  Army,  Navy  and  Air  Force  staff  is governed by  the relevant  regulations. By the Memorandum of the Ministry of Defence bearing No. B/40725/AG/PS4-C/1816/AD (Pension)/Services dated September 28, 1979, 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,  1979, and may be applicable to all service officers who become/became non-effective on or after that date. (for short specified date).      The chronology of events herein narrated would bring to surface the  contentions  raised  in  these  petitions.  The liberalised   pension    formula   shall    be    applicable prospectively to  those who  retired on  or after  March 31, 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, 1979. Consequently those who retired  prior  to  the  specified  date  would  not  be entitled to the benefits of the liberalised pension formula.

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    Petitioners accordingly  contend that  this  Court  may consider the  raison d’etre  for payment  of pension. 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,   the   differential treatment for  those retiring  prior to  a certain  date and those retiring  subsequently, the  choice of  the date being wholly arbitrary,  would be according differential treatment to pensioners  who form  a class irrespective of the date of retirement and, therefore, would be violative of Art. 14. It was also  contended that  classification based on fortuitous circumstance of  retirement before  or subsequent to a date, fixing of  which is  not shown to be related to any rational principle, would be equally violative of Art. 14.      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   pensioners.   The   expression ’pensioner’ is generally understood in contra-distinction to the one in service. Government servants in service, in other words, those who have not retired, are entitled to 175 salary and  other  allowances.  Those  who  retire  and  are designated as  ’pensioners’ are  entitled to receive pension under the  relevant rules.  Therefore,  this  would  clearly indicate  that  those  who  render  service  and  retire  on superannuation or  any other  mode of  retirement and are in receipt  of  pension  are  comprehended  in  the  expression ’pensioners’.      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, 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. 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.  In  other words, 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. Now, if date of retirement is a valid criterion for classification, those who retire at the end of every month  shall form  a class  by themselves. This is too microscopic a  classification to  be upheld  for  any  valid purpose. Is it permissible or is it violative of Art. 14 ?      The scope,  content and  meaning of  Article 14  of the Constitution  has   been  the  subject-matter  of  intensive examination by  this Court  in a  catena  of  decisions.  It would, therefore,  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. Union of India(1)  from which  the following  observation  may  be extracted:           "...... 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. It  is indeed  the pillar  on which rests      securely the  foundation of  our  democratic  republic.      And, therefore, it must

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176      not be subjected to a narrow, pedantic or lexicographic      approach. No  attempt should  be made  to truncate  its      all-embracing scope  and meaning for, to do so would be      to  violate  its  activist  magnitude.  Equality  is  a      dynamic concept with many aspects and dimensions and it      cannot be imprisoned within traditional and doctrinaire      limits..... Article  14  strikes  at  arbitrariness  in      State action  and  ensures  fairness  and  equality  of      treatment.  The   principle  of  reasonableness,  which      legally as  well as  philosophically, is  an  essential      element  of   equality  or  non-arbitrariness  pervades      Article 14 like a brooding omnipresence."      The decisions  clearly lay  down that  though  Art.  14 forbids class  legislation, it  does not  forbid  reasonable classification for  the purpose  of legislation.  In  order, however, to pass the test of permissible classification, two conditions  must   be  fulfilled,   viz.,   (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; and (ii)  that differentia  must have a rational relation to the  objects  sought  to  be  achieved  by  the  statute  in question. (see  Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar &  Others.(1) 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.e.,  causal connection  between the  basis  of classification   and    object   of    the   statute   under consideration. It  is equally  well settled by the decisions of this  Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure.      After an  exhaustive review  of  almost  all  decisions bearing on  the question  of Art.  14, this  Court  speaking through Chandrachud,  C.J. in  Re. Special  Courts Bill  (2) 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.  Four of  them  are  apt  and relevant for  the present purpose and may be extracted. They are:      "3.   The constitutional command to the State to afford           equal protection  of its  laws  sets  a  goal  not           attainable 177           by the  invention and  application  of  a  precise           formula. Therefore,  classification  need  not  be           constituted by an exact or scientific exclusion or           inclusion of  persons or things. The Courts should           not  insist   on  delusive   exactness  or   apply           doctrinaire tests  for determining the validity of           classification in  any given  case. Classification           is justified if it is not palpably arbitrary.      4.   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. It  only  means  that  all  persons           similarly circumstanced  shall  be  treated  alike           both  in   privileges  conferred  and  liabilities           imposed. Equal  laws would  have to  be applied to           all in  the same situation, and there should be no           discrimination between  one person  and another if           as regards  the subject  matter of the legislation

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         their position is substantially the same.      6.   The  law  can  make  and  set  apart  the  classes           according to  the  needs  and  exigencies  of  the           society and  as suggested  by experience.  It  can           recognise   even   degree   of   evil,   but   the           classification   should    never   be   arbitrary,           artificial or evasive.      7.   The classification  must not be arbitrary but must           be rational,  that is  to say, 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.  In  order  to  pass  the  test,  two           conditions must be fulfilled, namely, (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."      The other  facet of Art. 14 which must be remembered is that it  eschews arbitrariness  in any form. Article 14 has, therefore, not 178 to be held identical with the doctrine of classification. As was noticed  in Maneka  Gandhi’s case in the earliest stages of evolution  of the  Constitutional law, Art. 14 came to be identified with  the doctrine  of classification because the view taken was that Art. 14 forbids discrimination and there will be  no discrimination  where the  classification making the differentia  fulfils the  aforementioned two conditions. However, in  EP. Royappa  v. State  of Tamil Nadu(1), it was held that  the basic  principle which  informs both Arts. 14 and 16  is equality  and inhibition  against discrimination. This Court further observed as under:           "From a  positivistic point  of view,  equality is      antithetic to  arbitrariness.  In  fact,  equality  and      arbitrariness are  sworn enemies;  one belongs  to  the      rule of  law in a republic while the other, to the whim      and caprice  of an  absolute monarch.  Where an  act is      arbitrary it  is implicit in it that it is unequal both      according to political logic and constitutional law and      is, therefore,  violative of Art. 14, and if it affects      any matter  relating to  public employment,  it is also      violative of  Art. 16.  Articles 14  and 16  strike  at      arbitrariness in  State action  and ensure fairness and      equality of treatment.      Justice Iyer has in his inimitable style dissected Art. 14 as under:           "The article  has a  pervasive processual  potency      and versatile  quality, equalitarian  in its  soul  and      allergic to  discriminatory diktats.  Equality  is  the      antithesis of  arbitrariness and ex cathedra ipse dixit      is the ally of demagogic authoritarianism. Only knight-      errants of  ’executive excesses’-if  we may use current      cliche-can fall  in love  with the  Dame of  despotism,      legislative or  administrative. If  this Court gives in      here it  gives up the ghost. And so it that I insist on      the dynamics  of limitations on fundamental freedoms as      implying the  rule of law; be you ever so high, the law      is above you."(2)      Affirming and  explaining this  view, the  Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi & others etc. (3) held

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179 that it  must, therefore,  now be  taken to  be well settled that what  Art.14 strikes  at is  arbitrariness because  any action that  is arbitrary  must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it  is implicit  in it  that it  is  unequal  both according to  political logic and constitutional law and is, therefore, violative  of Art.  14. After  a review  of large number of  decisions bearing  on the  subject, in  Air India etc. etc.  v. Nargesh  Meerza &  Ors. etc etc. (1) the Court formulated   propositions   emerging   from   analysis   and examination of  earlier decisions. One such proposition held well established  is that  Art. 14  is  certainly  attracted where equals  are treated differently without any reasonable basis.      Thus the  fundamental principle is that Art. 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.      As a  corrolary to  this well  established proposition, the  next   question  is,   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 Art. 14 is that the citizen is entitled to  equality before  law and  equal  protection  of laws. 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  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. In the absence of  doctrine of  classification such  legislation is likely to  flounder on the bed rock of equality enshrined in Art. 14.  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, evolved the  doctrine of  classification. The  doctrine  was evolved to sustain a legislation or State action designed to help weaker sections of the society or some 180 such segments  of the society in need of succor. 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. The  State, therefore, would have to affirmatively satisfy the  Court that  the twin tests have been satisfied. It can  only be  satisfied if the State establishes not only the rational  principle on  which classification  is founded but correlate  it to the objects sought to be achieved. This approach  is   noticed  in  Ramana  Dayaram  Shetty  v.  The International Airport  Authority of  India & Ors.(1) when at page 1034,  the Court  observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown  by the  Government  that  the  departure  was  not arbitrary, but  was based  on some  valid principle which in itself was not irrational, unreasonable or discriminatory.      The basic  contention as  hereinbefore noticed  is that

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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, viz.,  object underlying  payment  of pensions. In  reply to this contention set out in para 19 of the petition, Mr. S.N. Mathur, Director, 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.      Classification of pensioners on the basis of their date      of retirement is a valid classification for the purpose      of pensionary benefits." 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, 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.  It may  be  made clear that the date of retirement of each individual 181 pensioner is not suggested as a criterion for classification as that  would lead  to an  absurd result,  because in  that event every  pensioner relevant  to his  date of  retirement will form  a class  unto himself.  What is suggested is that when a  pension scheme  undergoes a revision and is enforced effective form a certain date, 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. 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 pension formula.      The approach of the respondents raises a vital and none too easy  of answer, question as to why pension is paid. And why was  it required  to be  liberalised ?  Is the employer, which expression  will include  even the State, 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 ?      What is  a pension  ? What  are the  goals of pension ? What public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, 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.      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,  therefore, 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.  State of Bihar & Ors. (1) 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

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entitled to  claim pension.  It was  further held  that  the grant of  pension does not depend upon any one’s discretion. It is only for the purpose of 182 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.  This view  was reaffirmed  in State of Punjab & Anr. v. Iqbal Singh (1).      There are  various kinds  of  pensions  and  there  are equally various  methods of  funding pension programmes. 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. Initially  this class  of pension  appears to  have been introduced as a reward for loyal service. 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, wanted  to ensure  in the  case  of  former continued loyalty  till death to the alien rulers and in the case of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony.      In the  course of transformation of society from feudal to   welfare    and   as   socialistic   thinking   acquired respectability, State  obligation to provide security in old age, 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. The quid pro quo, was that when the employee was  physically and mentally alert he rendered unto master the best, 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,  everyone  who  qualifies  for  normal retirement receives the same amount. (see Retirement Systems for Public Employees by Bleakney, page 33.)      As the  present case  is concerned  with superannuation pension, a  brief history  of its  initial  introduction  in early stages  and continued  existence  till  today  may  be illuminating. Superannuation is the most descriptive word of all but  has become  obsolescent because it seems ponderous. Its genesis can be traced to the first Act of Parliament (in U.K.)  to  be  concerned  with  the  provision  of  pensions generally in public offices. It was passed in 1810. The 183 Act which  substantively devoted  itself exclusively  to the problem of  superannuation pension was superannuation Act of 1834. 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. Even  before the  19th  century,  the  problem  of providing for  public servants  who are  unable, through old age or incapacity, to continue working, has been recognised, but methods  of dealing with the problem varied from society to  society   and  even   occasionally  from  department  to department.      A political society which has a goal of setting up of a welfare State, 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, but the evolving concept of  social security is a later day development’. And this journey  was over  a rough  terrain. To  note only  one

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stage in  1856 a  Royal Commission  was set  up to  consider whether any changes were necessary in the system established by the  1834 Act.  The Report  of the Commission is known as "Northcote-Trevelyan Report".  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,  furnish  strong inducements to  the parents  and friends of sickly youths to endeavour to  obtain for  them employment  in the service of the Government,  and the  extent to  which  the  public  are consequently burdened;  first with  the salaries of officers who are  obliged to  absent themselves  from their duties on account of  ill health,  and afterwards  with their pensions when they  retire on the same plea, would hardly be credited by those  who have  not had  opportunities of  observing the operation of  the system"  (see Gerald Rhodes, Public Sector Pensions, pp. 18-19).      This approach is utterly unfair because in modern times public  services   are  manned  by  those  who  enter  at  a comparatively  very   young  age,   with  selection  through national competitive  examination and  ordinarily  the  best talent gets the opportunity.      Let us  therefore  examine  what  are  the  goals  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, with decency, independence and self-respect, 184 and (ii)  at a  standard equivalent  at  the  pre-retirement level. This  approach may  merit the  criticism  that  if  a developing country  like India  cannot provide  an  employee while rendering  service a  living  wage,  how  can  one  be assured of  it in retirement ? This can be aptly illustrated by a  small illustration.  A man with a broken arm asked his doctor whether  he will  be able to play the piano after the cast is  removed. When  assured that  he will,  the  patient replied, ’that  is funny,  I could  not before’.  It appears that determining  the minimum  amount  required  for  living decently is difficult, selecting the percentage representing the proper  ratio between earnings and the retirement income is harder.  But it  is imperative  to  note  that  as  self- sufficiency  declines   the  need   for  his  attendance  or institutional care  grows. Many  are literally surviving now than in  the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at  various stages  of  its  development  profoundly influences its  social objectives.  These objectives  are in turn a determinant of a social policy. 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, 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’. (see Social Security law by Prof. Harry Calvert, p. 1).      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; payments usually  continue for  the rest of the natural life of the  recipient.  The  reasons  underlying  the  grant  of pension vary  from country  to country  and from  scheme  to scheme. But  broadly stated  they are (i) as compensation to

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former members  of the  armed forces or their dependents for old age, disability, or death (usually from service causes), (ii) as  old  age  retirement  or  disability  benefits  for civilian employees,  and (iii)  as social  security payments for  the  aged,  disabled,  or  deceased  citizens  made  in accordance  with   the  rules   governing   social   service programmes of the country. Pensions under the first head are of great  antiquity. 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, though they are of the greatest 185 magnitude. There  are other  views about  pensions  such  as charity, paternalism,  deferred  pay,  rewards  for  service rendered, or  as a  means or  promoting general welfare (see Encyclopaedia Britannica,  Vol. 17  p.575.) But  these views have become otiose.      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. However, as held in  Douge v. Board of Education(1) a pension is closely akin to  wages in that it consists of payment provided by an employer, is  paid in  consideration  of  past  service  and serves  the  purpose  of  helping  the  recipient  meet  the expenses of  living. This  appears to  be the nearest to our approach to  pension with  the added  qualification that  it should ordinarily ensure freedom from undeserved want.      Summing-up it  can be said with confidence that pension is not  only compensation  for loyal service rendered in the past, but  pension also  has a broader significance, 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, one is required to fall back on savings. One such saving in  kind is when you gave your best in the hey-day of life to  your employer,  in  days  of  invalidity,  economic security by  way of  periodical payment is assured. 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. 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.  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. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.      The discernible  purpose thus underlying pension scheme or a  statute introducing  the pension  scheme  must  inform interpretative process  and accordingly  it should receive a liberal construction  and the  courts may  not so  interpret such  statute   as  to   render  them  inane  (see  American Jurisprudence 2d. 881). 186      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  exercise of  powers conferred by  the proviso to Art. 309 and clause (5) of Art. 148 of  the Constitution  ; (ii)  that the pension is not an ex-gratia payment  but it  is a payment for the past service rendered  ;  and  (iii)  it  is  a  social  welfare  measure rendering socio-economic justice to those who in the hey-day

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of their  life ceaselessly  toiled for  the employer  on  an assurance that  in their  old age  they would not be left in lurch. 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.  Its  payment  is dependent  upon   an  additional   condition  of  impeccable behaviour even subsequent to requirement, that is, since the cessation of  the contract  of service  and that  it can  be reduced or withdrawn as a disciplinary measure.      Having  succinctly   focussed  our   attention  on  the conspectus of  elements and  incidents of  pension the  main question may  now be  tackled. But,  the approach  of  court while considering  such measure  is of paramount importance. Since the  advent of the Constitution, the state action must be directed  towards attaining  the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that  we have  set up  a welfare State. 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, economic and political shall inform all  institutions of the national life. In particular the State  shall strive  to  minimise  the  inequalities  in income and  endeavour to  eliminate inequalities  in status, facilities and  opportunities. Art. 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. Union  of India  & Ors.(1)  Revealing  the scope and  content of  this  facet  of  equality,  Chinnappa Reddy, J. speaking for the Court observed as under :           "Now, thanks  to the  rising social  and political      consciousness  and   the  expectations   aroused  as  a      consequence and  the forward  looking posture  of  this      Court, the under- 187      privileged also  are clamouring  for the rights and are      seeking the  intervention of  the Court  with  touching      faith and  confidence in  the Court.  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." Proceeding further,  this  Court  observed  that  where  all relevant  considerations   are  the  same,  persons  holding identical posts may not be treated differently in the matter of  their  pay  merely  because  they  belong  to  different departments. If that can’t be done when they are in service, can that  be done  during their  retirement? Expanding  this principle, one can confidently say that if pensioners form a class, their  computation cannot  be  by  different  formula affording unequal  treatment solely  on the ground that some retired earlier and some retired later. Art. 39 (e) requires the State to secure that the health and strength of workers, men and women, and 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.  Art.  41 obligates the  State  within  the  limits  of  its  economic capacity and  development, to  make effective  provision for securing the  right to  work, to  education and  to  provide assistance in  cases of  unemployment, old age, sickness and disablement, and  in other cases of undeserved want. Art. 43 (3) requires  the State to endeavour to secure amongst other things full  enjoyment of  leisure and  social and  cultural opportunities.      Recall at  this stage  the Preamble,  the  flood  light

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illuminating the path to be pursued by the State to set up a Sovereign Socialist  Secular Democratic Republic. Expression ’socialist’ was  intentionally introduced in the Preamble by the Constitution  (Forty-Second Amendment) Act, 1976. In the objects and  reasons for  amendment  amongst  other  things, ushering in  of socio-economic  revolution was promised. 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,      which would  end poverty  and ignorance and disease and      inequality of opportunity, has been engaging the active      attention  of   Government  and  the  public  for  some      time......... 188           It  is,   therefore,   proposed   to   amend   the      Constitution to  spell out expressly the high ideals of      socialism........to make  the directive principles more      comprehensive......" What does  a Socialist  Republic imply?  Socialism is a much misunderstood word.  Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramifications. The principal aim of a socialist State is  to eliminate  inequality in  income and status and standards of  life. 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.  This amongst others  on economic side envisaged economic equality and equitable  distribution of  income. This  is a  blend of Marxism  and   Gandhism  leaning  heavily  towards  Gandhian socialism. During  the formative  years, socialism  aims  at providing all  opportunities for  pursuing  the  educational activity. For want of wherewithal or financial equipment the opportunity to  be  fully  educated  shall  not  be  denied. Ordinarily, therefore,  a socialist  State provides for free education from  primary to Ph. D. 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.  After  the education  is  completed,  socialism  aims  at  equality  in pursuit of excellence in the chosen avocation without let or hindrance of  caste, colour,  sex or  religion and with full opportunity  to   reach  the   top  not   thwarted  by   any considerations of status, social or otherwise. But even here the less  equipped person  shall be assured a decent minimum standard of  life and  exploitation in  any  form  shall  be eschewed. 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.  Then comes the old age in the life of  everyone, be he a monarch or a Mahatma, a worker or a pariah.  The old  age overtakes  each one, death being the fulfilment of life providing freedom from bondage. 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 their mental and physical prowess. In the fall of life the State shall ensure to the  citizens  a  reasonably  decent  standard  of  life, medical aid,  freedom from  want, freedom  from fear and the enjoyable leisure, 189 relieving the  boredom and the humility of dependence in old age. This  is what Art. 41 aims when it enjoins the State to

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secure  public   assistance  in   old  age,   sickness   and disablement.  It  was  such  a  socialist  State  which  the Preamble directs  the centres of power Legislative Executive and Judiciary-to  strive to  set up.  From a  wholly  feudal exploited slave  society to  a vibrant,  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, and must be so interpreted, as to take the society one step towards the goal.      To some  extent this  approach will find support in the judgment in  Minerva Mills  Ltd. &  Ors. v. Union of India & Ors.(1).  Speaking   for  the  majority,  Chandrachud,  C.J. observed as under :           "This is  not mere  semantics. The  edifice of our      Constitution is built upon the concepts crystallised in      the Preamble.  We resolved to constitute ourselves into      a Socialist  State which carried with it the obligation      to secure  to our  people justice-social,  economic and      political.  We,   therefore,  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, the end  is specified  in  part  IV.  Bhagwati,  J.  in  his minority judgment  after extracting  a portion of the speech of  the   then  Prime  Minister  Jawahar  Lal  Nehru,  while participating in  a discussion  on the  Constitution  (First Amendment) Bill,  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,  not  only  a fortunate few  but the  teeming millions  of India, would be able to participate in the fruits of freedom and development and exercise  the fundamental rights. It, therefore, appears to be  well established that while interpreting or examining the constitutional  validity  of  legislative/administrative action, 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. 190      With this  background let  us now turn to the challenge posed in  these petitions.  The  challenge  is  not  to  the validity of the pension liberalisation scheme. The scheme is wholly acceptable  to the  petitioners, nay  they are ardent supporters of  it, nay  further they seek the benefit of it. 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. In other words, 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.  No doubt,  the benefit  of the  scheme will  be available from  the specified date, irrespective of the fact when the  concerned Government servant actually retired from service.      Having set  out clearly the society which we propose to set up,  the direction  in which the State action must move, the  welfare  State  which  we  propose  to  build  up,  the constitutional goal  of setting up a socialist State and the assurance  in  the  Directive  Principles  of  State  Policy especially of security in old age at least to those who have rendered useful  service during  their active  years, it  is indisputable, nor  was it  questioned,  that  pension  as  a

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retirement benefit  is in consonance with and furtherance of the goals  of the  Constitution. 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, namely, in the fall of life.      If such be the goals of pension, if such be the welfare State which  we propose  to set  up, 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, 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,  they would  be  denied  any  share  of  it  ? Indisputably, 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 191 but average  emoluments as  defined in  the scheme.  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. By  the liberalised  scheme it is now reduced to average emoluments  of 10 months preceding the date. 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, if  one has  not reached  the maximum, permit annual increments and  there are  promotions in the last one or two years. With a view to giving a higher average the scheme was liberalised to provide for average emoluments with reference to last  10 months’  service. Coupled with it, a slab system for computation  is introduced  and the  ceiling is  raised. This is  liberalisation. Now,  if the pensioners who retired prior to  the specified  date and had to earn pension on the average emoluments  of 36  months’ salary just preceding the date of retirement, 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. Thus they suffer triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling.      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, why was  the pension  scheme liberalised ? What necessitated liberalisation of the pension scheme ?      Both the impugned memoranda do not spell out the raison d’etre  for   liberalising  the   pension  formula.  In  the affidavit in  opposition by  Shri S.N.  Mathur, 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. 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.  When Government  favourably responded to the demand  it thereby  ipso facto conceded that there was a

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larger available  national  cake  part  of  which  could  be utilised  for   providing  higher   security  to   erstwhile government servants  who would  retire. The  Government also took note of the 192 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.  If   this  be   the   underlying   intendment   of liberalisation of pension scheme, 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  suffer 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.  Those  who rendered the  same  service  earned  less  pension  and  are exposed to  the vagary  of rising prices consequent upon the inflationary inputs.  If therefore,  those who are to retire subsequent to  the specified  date would  feel the  pangs in their old age, of lack of adequate security, 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. And the greater misfortune is that they are becoming  older and older compared to those who would be retiring subsequent  to the  specified date.  The Government was perfectly  justified in liberalising the pension scheme. In fact  it was  overdue. 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.      Therefore, let  us proceed to examine whether there was any rationale  behind  the  eligibility  qualification.  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.  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  was said  that  when  the  legislature  has expressly defined  the class  with clarity  and precision to which the  legislation applies,  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. 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, the Court examines whether 193 the legislation  must be  invalidated as  a whole or only in respect of  the unconstitutional part. 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. 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

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constitutionality.      The last  submission, the absence of precedent need not deter us  for a  moment. Every  new norm  of socio  economic justice, every  new measure  of social justice commenced for the first  time at some point of history. If at that time it is rejected  as being  without a  precedent, the  law as  an instrument of  social engineering would have long since been dead and  no tears  would have been shed. To be pragmatic is not to  be unconstitutional.  In its  onward march law as an institution  ushers  in  socio-economic  justice.  In  fact, social security  in old  age  commended  itself  in  earlier stages as  a moral concept but in course of time it acquired legal contention.  The rules  of natural  justice owed their origin to  ethical and  moral code.  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. And the advancing society converts  in course  of time  moral or  ethical code into  enforceable   legal  formulations.   Over-emphasis  on precedent furnishes  an  insurmountable  road-block  to  the onward march  towards promised  millennium. An  overdose  of precedents is the bane of our system which is slowly getting stagnant, stratified  and atrophied.  Therefore absence of a precedent on this point need not deter us at all. We are all the more  happy for  the chance  of scribbling  on  a  clean slate.      If it appears to be undisputable, as it does to us that the pensioners  for the  purpose of  pension benefits form a class, would  its upward revision permit a homogeneous class to be  divided by arbitrarily fixing an eligibility criteria unrelated  to   purpose  of   revision,   and   would   such classification be founded on some rational 194 principle ?  The classification  has to be based, as is well settled,  on   some  rational  principle  and  the  rational principle must  have nexus  to  the  objects  sought  to  be achieved. We have set out the objects underlying the payment of  pension.   If  the  State  considered  it  necessary  to liberalise the pension scheme, we find no rational principle behind 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.  If  the liberalisation  was   considered  necessary  for  augmenting social security in old age to government servants then those who retired  earlier cannot  be worst  off  than  those  who retire later.  Therefore,  this  division  which  classified pensioners into  two classes  is not  based on  any rational principle and  if the  rational  principle  is  the  one  of dividing pensioners  with a view to giving something more to persons   otherwise    equally   placed,    it   would    be discriminatory. To illustrate, take two persons, one retired just a  day prior  and another  a day  just  succeeding  the specified date.  Both were  in the  same  pay  bracket,  the average emolument  was the  same and  both had  put in equal number  of   years  of   service.  How   does  a  fortuitous circumstance of  retiring a  day earlier or a day later will permit totally  unequal treatment in the matter of pension ? One retiring  a day  earlier will  have  to  be  subject  to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36 months’ salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the  basis  of  last  ten  months  average.  The  artificial

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division stares  into face and is unrelated to any principle and whatever  principle, if  there be any, has absolutely no nexus to  the objects  sought to be achieved by liberalising the pension  scheme. In fact this arbitrary division has not only no  nexus to  the liberalised  pension scheme but it is counter productive  and runs  counter to  the whole gamut of pension scheme. The equal treatment guaranteed in Art. 14 is wholly  violated   inasmuch  as   the  pension  rules  being statutory in  character, since the specified date, the rules accord differential  and discriminatory  treatment to equals in  the  matter  of  commutation  of  pension.  A  48  hours difference in  matter of  retirement would  have a traumatic effect. Division  is thus  both arbitrary  and unprincipled. Therefore the classification does not stand the test of Art. 14.      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 Art. 14. The next question is what is the way you ? 195      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. The  two sub-limbs  of the submissions were  that, (i)  the Court  cannot make a scheme having financial  implications retroactive,  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 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, no relief can be given to the pensioners.      Let us  clear one  misconception.  The  pension  scheme including the liberalised scheme available to the Government employees is  non-contributory  in  character.  It  was  not pointed out  that there is something like a pension fund. 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.  There is  no artificially created fund or reservoir  from which  pensioners draw pension within the limits of  the fund,  the share of each being extensive with the available  fund. The  payment of  pension is a statutory liability undertaken  by the Government and whatever becomes due and  payable is budgeted for. One could have appreciated this line  of reasoning where there is a contributory scheme and a  pension fund  from which  alone pension is disbursed. That being  not the case, there is no question of pensioners dividing  the  pension  fund  which,  if  more  persons  are admitted to  the scheme,  would pro  rata affect  the share. Therefore, there  is no  question of  dividing  the  pension fund. Pension is a liability incurred and has to be provided for in the budget. Therefore, the argument of divisions of a cake, larger  the number  of sharers,  smaller the share and absence  of   residue  and   therefore  by  augmentation  of beneficiaries, pro  rata share  is likely to be affected and their absence  making relief  impermissible, is  an argument born of  desperation, and  is without  merits  and  must  be rejected as untenable.      By our approach, are we making the scheme retroactive ? The  answer   is  emphatically   in  the  negative.  Take  a government servant who retired on April 1, 1979. He would be governed by  the liberalised pension scheme. By that time he had put  in qualifying  service of  35 years.  His length of service is a

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196 relevant  factor   for  computation   of  pension.  Has  the Government made  it retroactive,  35 years backward compared to the  case of  a Government  servant who  retired on  30th March, 1979  ? Concept  of qualifying  service takes note of length of  service, and  pension quantum  is  correlated  to qualifying service.  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.  It  has  correlation  to  the  average emoluments and  the length  of service.  Any  liberalisation would pro  tanto be  retroactive in  the narrow sense of the term. Otherwise  it is  always prospective. 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.  (see Craies  on Statute Law, sixth edition, p. 387).  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, undoubtedly,  it would  be both prospective and  retroactive. 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. And beware that it is not a new scheme,  it is only a revision of existing scheme. It is not a  new retiral  benefit. It  is an upward revision of an existing benefit.  If it  was a  wholly new  concept, a  new retiral benefit, one could have appreciated an argument that those who  had already retired could not expect it. It could have been urged that it is an incentive to attract the fresh recruits. Pension  is a  reward  for  past  service.  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, it would be prospective at such distance of thirty-five  years since  its introduction. But it covers all those  in service  who entered  thirty-five years  back. Pension is  thus not  an incentive  but a  reward  for  past service. And  a revision  of an existing benefit stands on a different footing  than a  new retiral  benefit. And even in case of new retiral benefit of gratuity under the Payment of Gratuity   Act,   1972   past   service   was   taken   into consideration. Recall  at this stage the method adopted when pay-scales are  revised. Revised  pay-scales are  introduced from a  certain date.  All existing employees are brought on to the  revised scales  by adopting a theory of fitments and increments for  past service.  In other  words,  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. This is just and fair. Now 197 if pension  as we  view it, is some kind of retirement wages for past  service, can  it be  denied to  those who  retired earlier, revised  retirement  benefits  being  available  to future retirees  only ?  Therefore, there is no substance in the contention  that the  court by  its  approach  would  be making the  scheme retroactive,  because it  is implicit  in theory of wages.      That takes  us to  the last important contention of the learned Attorney  General. 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. In  other words,  it was  urged that date cannot be severed from  the main  object of  the  scheme  because  the Government would  have never  offered the  scheme unless the

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date was  an integral part of it. Undoubtedly when an upward revision  is  introduced,  a  date  from  which  it  becomes effective has  to be provided. It is the event of retirement subsequent  to   the   specified   date   which   introduces discrimination  in   one  otherwise   homogeneous  class  of pensioners. This  arbitrary selection  of the  happening  of event  subsequent  to  specified  date  denies  equality  of treatment to  persons belonging  to  the  same  class,  some preferred   and    some   omitted.   Is   this   eligibility qualification severable ?      It was  very  seriously  contended,  remove  the  event correlated  to  date  and  examine  whether  the  scheme  is workable. 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  would apply  to  all  existing  pensioners  and future pensioners.  In the  case of existing pensioners, the pension will  have to  be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system  and the  amount worked out within the floor and the ceiling.      But we  make it  abundantly clear  that arrears are not required to  be made  because to  that extent  the scheme is prospective. All  pensioners whenever  they retired would be covered by  the  liberalised  pension  scheme,  because  the scheme is  a scheme  for payment  of pension  to a pensioner governed  by   1972  Rules.   The  date   of  retirement  is irrelevant. 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.  In case of pensioners who retired prior to the specified date, their pension would be computed afresh and 198 would be  payable in  future commencing  from the  specified date. No  arrears would be payable. And that would take care of the  grievance of  retrospectivity. In  our  opinion,  it would make  a  marginal  difference  in  the  case  of  past pensioners because  the emoluments are not revised. The last revision of  emoluments was as per the recommendation of the Third Pay  commission (Raghubar  Dayal Commission).  If  the emoluments remain  the  same,  the  computation  of  average emoluments under  amended Rule  34  may  raise  the  average emoluments, the period for averaging being reduced from last 36 months  to last 10 months. 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.  The words  "who were  in  service  on  31st March, 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. Therefore, there is absolutely no difficulty in removing the arbitrary and  discriminatory portion  of the  scheme and it can be easily severed.      There is  nothing immutable  about the  choosing of  an event as  an eligibility  criteria subsequent to a specified date. 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.  While examining the case under Art. 14, the  approach is  not: ’either take it or leave it’, the

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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.  The pensioners  do  not  challenge  the liberalised pension  scheme. They  seek the  benefit of  it. 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. This approach can be  legitimised on  the  ground  that  every  Government servant retires.  State grants  upward revision  of  pension undoubtedly from  a date.  Event has  occurred revision  has been earned.  Date is  merely to  avoid payment  of  arrears which may  impose a  heavy burden.  If the  date  is  wholly removed, revised  pensions will  have to  be paid  from  the actual  date  of  retirement  of  each  pensioner.  That  is impermissible. The State 199 cannot be  burdened with arrears commencing from the date of retirement  of   each  pensioner.  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. That removes the  nefarious unconstitutional part and retains the beneficial portion.  It does  not  adversely  affect  future pensioners and  their  presence  in  the  petitions  becomes irrelevant. But  before we  do so,  we must  look  into  the reasons  assigned  for  eligibility  criteria,  namely,  ’in service on the specified date and retiring after that 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."      We repeatedly posed a question: what are those relevant and valid  considerations and waited for the answer in vain. We say so because in the written submissions filed on behalf of the  Union of  India, we  find  not  a  single  valid  or relevant consideration  much less any consideration relevant to selection  of eligibility  criteria.  The  tenor  is  "we select the  date and it is unquestionable; either take it or leave it  as a whole". The only submission was that the date is not severable and some submissions in support of it.      Having examined the matter on principle, let us turn to some precedents.  In D.R.  Nim  v.  Union  of  India(1)  the appellant  questioned   his  seniority   which  was   to  be determined in  accordance with  the provisions  contained in Indian Police Service (Regulation of Seniority) Rules, 1954. These  rules   required  first  to  ascertain  the  year  of allotment of  the person  concerned for the determination of his seniority. In doing so, 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.  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. His  grievance was  that there  was no  rationale behind selecting  this date. After taking into consideration affidavit in opposition, this Court held as under :           "It would  be noticed that the date, May 19, 1951,      to begin  with had  nothing to do with the finalisation      of the 200      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. Further this date does

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    not seem  to have  much relevance  to the  question  of      avoiding the  anomalous position mentioned in para 9 of      the  affidavit   reproduced  above.   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.  But why  should this  date be applied to      the Indian  Police  Service  has  not  been  adequately      explained. Mr. BRL Iyengar, the learned counsel for the      appellant, strongly  urges that  selection of  May  19,      1951, as  a crucial  date  for  classifying  people  is      arbitrary and  irrational. We  agree with  him in  this      respect. It  further appears  from the affidavit of Mr.      D.K. Guha, Deputy Secretary to the Government of India,      Ministry of  Home Affairs,  dated December 9, 1966 that      "the Government  of  India  have  recently  decided  in      consultation with the Ministry of Law that the Ministry      of Home  Affairs letter No. 2/32/51-AIS, dated the 25th      August, 1955  will not  be applicable  to those SCS/SPS      officers, who  were appointed  to IAS/IPS  prior to the      promulgation  of   IAS/IPS  (Regulation  of  Seniority)      Rules, 1954,  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". It further appears that "in      the case  of Shri  C.S. Prasad  also, an IPS Officer of      Bihar, 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, it is      stated that  "as Shri  Nim was  appointed to IPS on the      22nd October  1955, i.e.  after the promulgation of IPS      (Regulation of  Seniority) Rules,  1954, and  after the      issue of letter dated 25.8.1955, his case does not fall      even under  this category".  The above statement of the      case of the Government further shows that the date, May      19, 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).  It appears to us that      under the  second proviso  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.  The  Central      Government 201      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 Government within the second proviso."      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.  In case before us, 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. The  ratio of  the decision would squarely apply to the facts of this case.      Similarly in Jaila Singh & Anr. v. State of Rajasthan & Ors.(1),  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, 1954 observing that the various provisions indicate that  the pre-1955  and post-1955  tenants stand on

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the same footing and therefore do not form different classes and hence  the division  was held  to  be  based  on  wholly irrelevant consideration. 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,  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 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.      As against  this the  learned Attorney-General  invited our attention  to Union  of India & Anr. v. M/s Parameswaran Match Works  etc.(2) By  a notification dated July 21, 1967, 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. As framed the notification extended the  benefit to  manufacturers with higher capacity to avail of the concessional 202 rate of  duty by  filing a  declaration as visualised in the proviso to  the notification  by restricting their clearance to 75  million matches.  This notification  was  amended  on September 4,  1967 with  a view  to giving  bona fide  small manufacturers, whose total clearance was not estimated to be in excess of 75 million matches, the benefit of concessional rate of  duty prescribed  under notification  dated July 21, 1967. The  respondent in  the case applied for a licence for manufacturing matches  on September  5, 1967, that is, 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, but this was rejected.  In a  writ petition  filed by the respondent, 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. In the appeal by  the Union  of India,  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,  1967 was issued. The concessional rate of duty was not  intended to benefit the large units which had split up into smaller units to earn the concession. 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. When it is seen that a line or a      point there  must be  and there  is no  mathematical or      logical way of fixing it precisely, the decision of the      legislature or  its delegate must be accepted unless we      can say that it is very wide of the reasonable mark."      In  reaching   this  conclusion  the  Court  relied  on Louisville Gas Co. v. Alabama Power Co. (1) This decision is not an authority for the proposition that whenever a date is chosen, or  an eligibility  criteria which  divides a class, the purpose  of choice unrelated to the objects sought to be achieved must be accepted as valid. 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, the  choice of the legislature may be accepted. Therefore, the choice of the date 203

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cannot be  wholly divorced  from the  objects sought  to  be achieved by  the impugned  action. In  other words,  if  the choice is  shown to  be thoroughly  arbitrary and introduces discrimination violative  of Art. 14, the date can be struck down. What  facts influenced  the Court’s  decision in  that case for  upholding  the  choice  of  the  date  are  worth- recalling. 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, if, by adopting the device of  fragmentation, the  larger units could become the ultimate beneficiaries  of the  bounty. This was the weighty consideration which prompted the court to uphold the date.      The learned  Attorney General  next  referred  to  D.C. Gouse and  Co. etc.  v. State of Kerala & Anr. etc. (1) This Court while  repelling the  contention that  the  choice  of April 1,  1973 as the date of imposition of the building tax is  discriminatory   with  reference   to  Art.  14  of  the Constitution,  approved  the  ratio  in  the  case  of  M/s. Parameswaran Match  Works etc.  supra. Even  while  reaching this conclusion  the Court observed that it is not shown how it could  be said that the date (April 1, 1973) for the levy of the tax was wide of the reasonable mark. What appealed to the Court was that earlier an attempt was made to impose the building tax with effect from March 2, 1961 under the Kerala Building Tax  Act, 1961  but the Act was finally struck down as unconstitutional  by this Court as per its decision dated August 13,  1968. While delivering the budget speech, at the time of introduction of the 1970-71 budget, the intention to introduce a  fresh Bill  for the levy of tax was made clear. The Bill was published in June 73 in which it was made clear that the Act would be brought into force from April 1, 1970. After recalling  the various  stages through  which the Bill passed before being enacted as Act, this Court held that the choice of  date April 1, 1973 was not wide of the reasonable mark. The  decision proceeds  on the  facts of the case. 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, the  division or classification made by choice of date or  eligibility criteria must have some relation to the objects sought 204 to be  achieved. And  apart from  the first  test  that  the division must  be referable  to some  rational principle, if the choice of the date or classification is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature.      Now if  the choice  of date  is arbitrary,  eligibility criteria is  unrelated to  the object  sought to be achieved and has  the pernicious  tendency of  dividing an  otherwise homogeneous class,  the question  is whether the liberalised pension scheme  must wholly fail or that the pernicious part can be  severed, cautioning  itself that this Court does not legislate  but   merely  interprets   keeping  in  view  the underlying intention  and the  object, the  impugned measure seeks to  subserve ?  Even though  it  is  not  possible  to oversimplify the  issue, let  us read the impugned memoranda deleting  the   unconstitutional  part.   Omitting  it,  the memoranda will read like this :           "At present,  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

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    emoluments and  is further  restricted  to  a  monetary      limit of  Rs. 1,000/- per month. The President is, now,      pleased to  decide that  with effect  from 31st  March,      1979 the  amount of  pension  shall  be  determined  in      accordance with the following slabs." If from the impugned memoranda the event of being in service and retiring  subsequent to  specified date  is severed, all pensioners would  be governed  by  the  liberalised  pension scheme. 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. It does therefore appear that the  reading down of impugned memoranda by severing the objectionable  portion  would  not  render  the  liberalised pension scheme vague, unenforceable or unworkable.      In  reading   down  the   memoranda,  is   this   Court legislating ?  Of course  ’not’. When  we  delete  basis  of classification as  violative of  Art. 14,  we merely  set at naught   the    unconstitutional   portion   retaining   the constitutional portion. 205      We may now deal with the last submission of the learned Attorney General  on the  point. 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,  never enlarges  it’. 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. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional  portion of classification, by striking down words  of limitation,  the resultant  effect may  be of enlarging the  class. In  such a  situation, the  Court  can strike down the words of limitation in an enactment. That is what is  called reading  down the  measure. We  know  of  no principle that  ’severance’ limits  the scope of legislation and can never enlarge it. To refer to the Jaila Singh’s case (supra), when  for the  benefit of  allotment  of  land  the artificial division  between pre-1955  and post-1955  tenant was struck  down by  this Court,  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. 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.  Therefore,  the principle of ’severance’ for taking out the unconstitutional provision from  an otherwise constitutional measure has been well recognised.  It would  be  just  and  proper  that  the provision in  the memoranda while retaining the date for its implementation, but providing ’that in respect of Government servants who  were in  service on  the 31st  March, 1979 but retiring from  service in or after that date’ can be legally and validly  severed and  must be  struck down.  The date is retained without  qualification as  the effective  date  for implementation of  scheme, it  being made  abundantly  clear that in  respect of  all pensioners  governed by 1972 Rules, the pension  of each  may be  recomputed as on April 1, 1979 and  future  payments  be  made  in  accordance  with  fresh computation under  the liberalised pension scheme as enacted in the  impugned memoranda.  No arrears for the period prior

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to 31st  March, 1979  in accordance with revised computation need be paid.      In this  context the  last submission  of  the  learned Attorney  General   was  that   as  the  pension  is  always correlated to the date of 206 retirement, the  Court cannot change the date of retirement, and impose  fresh commutation  benefit. We are doing nothing of this kind. The apprehension is wholly unfounded. The date of retirement of each employee remains as it is. 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. The two features  which make the liberalised pension scheme more attractive is  the redefining  of average emoluments in Rule 34, and  introduction of  slab system simultaneously raising the ceiling.  Within these parameters, the pension will have to be  recomputed with  effect from  the date from which the liberalised pension  scheme came  into force  i.e. March 31, 1979. There  is no  question of fresh commutation of pension of the  pensioners who retired prior to 31st March, 1979 and have already  availed of  the benefit  of commutation. 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. May be some marginal retirees  may earn the benefit. That is inevitable. To say  that  by  our  approach  we  are  restructuring  the liberalised pension  scheme, is to ignore the constitutional mandate. Similarly,  the court is not conferring benefits by this approach,  the  court  only  removes  the  illegitimate classification and  after its  removal the law takes its own course.      But in  this context the learned Attorney submitted the following quotation  which appears  to have  been  extracted from a decision of American Court, citation of which was not available. The  quotation may  be extracted from the written submission. 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. 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." We  entertain  no  such  apprehension.  The  Executive  with parliamentary mandate  liberalised the pension scheme. It is implicit in  liberalising the  scheme that the deed to grant little  higher   rate  of  pension  to  the  pensioners  was considered eminently 207 just. 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.  Such is  not the exclusion. The exclusion is  of a whole class of people who retire before a certain date.  Parliament would not have hesitated to extend the benefit  otherwise considered  eminently just,  and this becomes clearly  discernible from  page 35  of 9th Report of Committee on  Petitions (Sixth Lok Sabha) April, 1976. While examining  their   representation  for   better   pensionary benefit, the Committee concluded as under:           "The Committee are of the view that Government owe      a moral  responsibility to  provide adequate  relief to      its   retired    employees   including   pre   1.1.1973

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    pensioners, whose  actual value  of pensions  has  been      eroded  by   the  phenomenal  rise  in  the  prices  of      essential commodities.  In view of the present economic      conditions in  India and  constant rise  in the cost of      living due  to inflation,  it is all the more important      even from  purely humanitarian  considerations  if  not      from the  stand  point  of  fairness  and  justice,  to      protect the  actual value  of their  meagre pensions to      enable the  pensioners to live in their declining years      with dignity and in reasonable comfort." Therefore, we  are not  inclined to  share the  apprehension voiced by  the learned  Attorney that  if we strike down the unconstitutional part, the parliament would not have enacted the measure.  Our approach  may have a parliamentary flavour to sensitive noses.      The financial  implication in  such  matters  has  some relevance. However  in this  connection, we  want  to  steer clear of  a misconception. 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. It  is an item of expenditure voted year to pear depending upon  the number  of pensioners  and the estimated expenditure. Now  when the  liberalised pension  scheme  was introduced, 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.  Further Government has been granting since nearly a decade temporary increases from  time to  time to  pensioners. Therefore, the difference will be marginal. 208 Further, let it not be forgotten that the old pensioners are on the  way out  and their  number is fast decreasing. While examining the  financial implication,  this  Court  is  only concerned with  the additional liability that may be imposed by bringing in pensioners who retired prior to April 1, 1979 within the  fold of liberalised pension scheme but effective subsequent to  the specified  date. That  it is  a dwindling number is  indisputable. And  again the large bulk comprises pensioners from  lower echelons  of service  such as  Peons, L.D.C., U.D.C.,  Assistant etc.  In a chart submitted to us, the Union  of India  has  worked  out  the  pension  to  the pensioners who  have retired prior to the specified date and the comparative  advantage, if  they are  brought within the purview of  the liberalised  pension scheme.  The difference upto the  level of  Assistant or  even  Section  Officer  is marginal keeping in view that the old pensioners are getting temporary increases. Amongst the higher officers, there will be some  difference because  the ceiling  is raised and that would introduce  the difference.  It is however necessary to refer to  one figure relied upon by respondents. It was said that if pensioners who retired prior to 31st March, 1979 are brought  within  the  purview  of  the  liberalised  pension scheme,  Rs.   233  crores   would  be  required  for  fresh commutation. The  apparent fallacy in the submission is that if the  benefit of  commutation is  already availed  of,  it cannot and  need not  be reopened. And availability of other benefits is  hardly a  relevant factor  because  pension  is admissible to  all retirees.  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.  Even according  to the most liberal estimate,  the average yearly increase is worked out to be  Rs. 51  crores but  that assumes that every pensioner

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has  survived  till  date  and  will  continue  to  survive. Therefore, 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 scheme.      Locus  standi   of  third  petitioner  was  questioned. Petitioner No. 3 is a Society registered under the Societies Registration Act  of 1860.  It is a non-political non-profit and voluntary  organisation. Its  members consist  of public spirited citizens who have taken up the cause of ventilating legitimate public  problems. This  Society received  a large number of  representations from old pensioners, individually unable to undertake the journey through 209 labyrinths of legal judicial process, costly and protracted, and. therefore,  approached petitioner  No. 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.P. Gupta v. Union of India(1) 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. Third petitioner seeks to enforce rights  that may  be available  to a large number of old  infirm   retirees.  Therefore,   its  locus  standi  is unquestionable. But  it is  a point  of  academic  important because locus  standi of  petitioners Nos. 1 and 2 was never questioned.      That is  the end  of the  journey. With  the  expanding horizons of  socio-economic justice,  the socialist Republic and welfare  State which  we endeavour to set up and largely influenced by  the fact  that the  old men  who retired when emoluments  were   comparatively  low  and  are  exposed  to vagaries of continuously rising prices, the falling value of the  rupee  consequent  upon  inflationary  inputs,  we  are satisfied  that  by  introducing  an  arbitrary  eligibility criteria: ’being  in service  and retiring subsequent to the specified date’  for  being  eligible  for  the  liberalised pension scheme and thereby dividing a homogeneous class, the classification being  not based  on any discernible rational principle and  having been  found wholly  unrelated  to  the objects sought  to  be  achieved  by  grant  of  liberalised pension  and   the  eligibility   criteria   devised   being thoroughly  arbitrary,   we  are   of  the   view  that  the eligibility for  liberalised  pension  scheme  of  being  in service on  the specified  date and  retiring subsequent  to that date’  in impugned  memoranda, Exhibits  P-I  and  P-2, violates Art. 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Exhibit P-1, the words:           "that in  respect of  the Government  servants who      were in  service on  the 31st  March, 1979 and retiring      from service on or after that date" 210 and in Exhibit P-2, 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." 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

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Rules irrespective  of the  date of retirement. Omitting the unconstitutional part  it is  declared that  all  pensioners governed by  the 1972  Rules and  Army  Pension  Regulations shall  be   entitled  to   pension  as  computed  under  the liberalised  pension   scheme  from   the  specified   date, irrespective of  the date  of retirement. Arrears of pension prior to  the specified date as per fresh computation is not admissible. Let  a writ to that effect be issued. But in the circumstances of  the case,  there will  be no  order as  to costs. H.L.C.                                     Petition allowed. 211