SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5566     OF 2008 @ SPECIAL LEAVE PETITION (CIVIL) NO. 12357 of 2006

Union of India and another ...Appellants  

Vs.

SPS Vains (Retd.) and others ...Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. Interlocutory Application No.2 of 2006 filed

by Major General S.C. Suri (Retd.) and 67

others similarly placed as the respondents

is allowed.

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3. Only  a  very  limited  issue  falls  for  our

consideration in this appeal which has been

filed  by  the  Union  of  India  through  the

Secretary, Ministry of Defence and the Chief

of Army Staff through the Adjudant General

Army  Headquarters,  New  Delhi,  against  the

judgment and order of the Punjab and Haryana

High Court  allowing the writ petition filed

by the respondents herein with the following

directions :

“For the foregoing reasons, the writ petition  is  allowed  and  the respondents  are  directed  to  fix minimum  pay  scale  of  the  Major General above that of the Brigadier and  grant  pay  above  that  of  a Brigadier  as  has  been  done  in  the case  of  post  1.1.1996  retirees  and consequently  fix  the  pension  and family  pension  accordingly.  There shall be no order as to costs.”

4. As  would  be  evident  from  the  above,  the

primary question which falls for decision in

this appeal is whether the High Court had in

the exercise of its jurisdiction correctly

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directed that officers of the rank of Major

General,  who  had  retired  prior  to  1st

January, 1996, when revision of pay scales

took  effect,  be  given  the  benefit  of  the

provisions  of  the  revised  pay  scale,

notwithstanding the fact that in terms of

the policy only those  who retired after the

said cut-off date would be entitled to such

benefit.  The  larger  issue  involved  is

whether  there  could  be  a  disparity  in

payment of pension to officers of the same

rank,  who  had  retired  prior  to  the

introduction of the revised pay scales, with

those who retired thereafter.  

5. The case which has been made out in the High

Court  in  the  writ  petition  filed  by  the

respondent herein is that prior to revision

of the pay scales from 1.1.1996 the running

pay  band  from  Lieutenant  to  Brigadier,

irrespective of promotion, introduced on the

basis  of  the  Fourth  Pay  Commission’s

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recommendations,  was  Rs.2300-100-3900-EB-

150-4500-EB-5100.   The  rank  pay  that  was

fixed was Rs.200/-, 600/-, 800/-, 1000/- and

1200/-  for  the  ranks  of  Captain,  Major

General,  Lieutenant  Colonel,  Colonel  and

Brigadier,  respectively.  While  a  Major

General  was  given  a  starting  salary  of

Rs.6700/-  on  the  basis  of  the

recommendations  of  the  Fourth  Pay

Commission,  a  Brigadier  could  draw

Rs.5,100/-  and  additional  rank  pay  of

Rs.1200/-  making  a  total  of  Rs.6300/-.

Consequently,  a  Major  General  always  drew

higher pay than a Brigadier and the pension

payable  to  officers  on  the  basis  of  the

recommendations of the Fourth Pay Commission

was calculated on the basis of salary drawn

during  the  last  10  months  prior  to

retirement.  Even  on  such  basis,  a  Major

General always drew more pension and family

pension than a Brigadier. It has to be kept

in  mind  that  the  rank  of  Brigadier  is  a

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feeder  post  for  the  promotional  rank  of

Major General.  

6. The anomaly arose with the acceptance by the

Government  of  the  recommendations  of  the

Fifth  Pay  Commission  which  has  created  a

situation  whereby  Brigadiers  began  drawing

more  pay  than  Major  Generals  and  were,

therefore,  receiving  higher  pension  and

family pension than Major Generals.  In view

of  the  recommendations  of  the  Fifth  Pay

Commission,  a  Brigadier  was  given  a  pay

scale  of  Rs.15350-450-17600  together  with

rank  pay  of  Rs.2,400/-  whereas  a  Major

General was given a pay scale of Rs.18400-

500-22400.  In other words, the maximum pay

in the pay scale of Brigadier is 17,600/-

and  the  minimum  pay  in  the  pay  scale  of

Major General is Rs.18,400/-. Inasmuch as,

no rank pay was provided for beyond the rank

of Brigadier, the minimum pay provided for a

Major  General  became  less  than  that  of  a

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Brigadier who may had reached the maximum

point  in  his  scale.  Consequently,  on

retirement,  the  pension  of  a  Brigadier

became more than that of a Major General,

since  rank  pay  is  also  taken  into

consideration for the purpose of calculating

pension  and family pension. The pension of

a  Major  General  thus  became  Rs.9,200/-,

while that of a Brigadier was  Rs.9,550/-.

7. It is this anomaly, when pointed out, which

prompted  the  Government  to  step  up  the

pension of Major Generals who had retired

prior  to  1.1.1996,  from  Rs.9,200/-  to

Rs.9,550/- giving them the same pension as

was  given  to  Brigadiers.  Before  the  High

Court it was urged on behalf of the writ

petitioners,  who  at  the  time  of  their

retirement  had  held  the  rank  of  Major

General or Air Vice Marshal, that while the

writ petitioners and others similarly placed

officers who had retired prior to 1.1.1996

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were given the same pension as that of a

Brigadier,  those  officers  of  similar  rank

who had retired after 1.1.1996 were given

pension according to clause 12(c) of Special

Army  Instructions  2/S/1998,  as  a  result

whereof  they  were  getting  much  higher

pension and family  pension than the writ

petitioners, despite being of the same rank.

It was pointed out that by virtue of the

aforesaid  Special  Instruction  the  initial

pay of an officer promoted to the rank of

Major General would be fixed at the stage

next above the pay notionally arrived at by

increasing his pay, including rank pay of

Brigadier, by one increment in the revised

scale at the relevant stage.  It is this

classification within a class which led to

the filing of the writ petition before the

High Court.  Before the High Court it was

urged  further  that  such  differentiation

between officers holding the same rank on

the date of retirement was wholly erroneous

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and violative of the provisions of Article

14 of the Constitution.

8. Rejecting the submissions made on behalf of

Government  that  there  could  be  no  fresh

fixation of pay once an officer had retired

and the only refixation possible would be

that of pension, the High Court allowed the

writ petition and disposed of the same with

the directions indicated hereinabove.  

9. The said decision of the High Court has been

questioned in this appeal by the Union of

India and the Chief of Army Staff.

10. Before us, the Union of India has taken a

stand that the High Court misinterpreted the

policy  relating  to  fixation  of  pay  of

officers  of  the  Defence  Services  and  had

also misunderstood the scope of the policy

with  regard  to  those  officers  who  had

retired  prior  to  the  revision  of  the  pay

scales and that their pay scales had already

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been  revised  at  the  time  of  their

superannuation from service.  In their case,

therefore, the question of revision of pay

scale could not arise and they could only

claim that their pension, including family

pension, should not be lower than that of a

Brigadier  which  is  a  feeder  post  for  the

post of Major General having higher and more

onerous responsibilities.

11. In  this  regard  reference  was  made  to  a

communication  dated  7.6.1999  addressed  to

the Chiefs of the three wings of the Defence

Services  on  behalf  of  the  Ministry  of

Defence,  Government  of  India,  in  which  a

differentiation  appears  to  have  been  made

between officers who had retired prior   to

1.1.1996  and  those  who  retired  thereafter

since a reference was made to two of the

Ministry’s  letters  dated  3.2.1998  dealing

with  post  1.1.1996  and  the  other  dated

24.11.1997 dealing with pre 1.1.1996 cases.

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12. Reference  was  also  made  to  Special  Army

Instruction dated 19.12.1997 indicating that

in pursuance of the recommendations of the

Fifth  Central  Pay  Commission  and  the

Government decision thereupon, the existing

pay scales admissible to Army Officers would

be revised with effect from January, 1996.

The said Instruction also indicated that the

said provisions would apply to all officers

who were on the effective strength of the

Army  as  on  1.1.1996  and  those  who  joined

thereafter, and also to trainee officers who

were undergoing Pay Commission training on

1.1.1996  and  trainee  officers  who  joined

after the said date. Reference was also made

from  the  said  Instruction  to  paragraph  9

thereof dealing with the stepping up of pay

of Major Generals on promotion from the rank

of Brigadier prior to 1.1.1996.  In the said

paragraph it has been specifically indicated

that  pay  of  all  officers  promoted  to  the

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rank  of  Major  General  prior  to  1.1.1996

would be stepped up to become equal to the

pay fixed for Brigadiers in the revised pay

scale  as  on  1.1.1996,  subject  to  certain

conditions.  

13. Yet  another  communication  to  the  three

Chiefs  of  the  Defence  Services  dated

3.2.1998 issued by the Ministry of Defence,

Government  of  India  relating  to  the

implementation of the Government’s decision

on the recommendations of the Fifth Central

Pay Commission regarding pensionary benefits

for  officers  and  personnel  below  officers

rank belonging to the armed forces, retiring

on or after 1.1.1996, which would, however,

have  no  application  to  those  who  had

superannuated prior to 1.1.1996.  

14. Learned  Additional  Solicitor  General

submitted  that  the  Ministry  of  Defence,

Government of India, had taken a considered

decision in fixing  1.1.1996 as a cut-off

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date since the pay scales were revised with

effect  from  the  said  date,  and  the  pay

scales of officers who had retired prior to

the said date had already been fixed  and

there was no question of refixation of their

pay scales  and all they were entitled to

was  pension  which  was  not  less  than  that

received by Brigadiers who had been given

the benefit of the revision of pay scales

and,  were,  therefore,  drawing  a  higher

salary resulting in higher pension.

15. The  learned  Additional  Solicitor  General

urged  that  the  High  Court  had  erred  in

directing  that the pay of Major Generals

who had retired prior to 1.1.1996 be refixed

according to the revised pay scales so as to

give them the benefit of higher pension than

officers of the rank of Brigadier.

16. The  case  of  the  respondents  however,  was

that  in  view  of  the  Constitution  Bench

decision of this Court in D.S. Nakara and

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others vs. Union of India  (1983) 1 SCC 305,

the fixation of a cut-off date as a result

of which equals were treated as unequals,

was wholly arbitrary and had been rightly

interfered with by the High Court. One of

the  questions  posed  in  the  aforesaid

decision was whether a class of pensioners

could  be  divided  for  the  purpose  of

entitlement  and  payment  of  pension  into

those  who retired by a certain date and

those who retired thereafter. The question

was  answered  by  the  Constitution  Bench

holding  that  such  division  being  both

arbitrary  and  unprincipled  the

classification  did  not  stand  the  test  of

Article 14.  

17. Several  other  decisions  were  also  relied

upon  by  the  respondents,  which,  in  fact,

followed  D.S.  Nakara’s  case  (supra)  and

there is, therefore, no need to deal with

them separately.  

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18. It  was  also  the  respondents’  case  that

though  there  was  no  dispute  that  Major

Generals were entitled to higher pensionary

benefits  than  that  enjoyed  by  Brigadiers,

the appellant erroneously insisted that the

cut-off date had to be fixed in view of the

limited  financial  resources  available  to

cover the additional expenses to be incurred

on account of revision of pay scales.   

19. On behalf of the respondents reliance was

also placed on two letters addressed by the

Chairman,  Chief  of  Staff  Committee,  dated

8.2.2006  and  21.2.2006,  along  with  the

recommendation made by the Air Chief Marshal

on 17.2.2006, stating that it was necessary

to correct the injustice and discrimination

which  had  been  aimed  at  denying  those

officers who had retired prior to 1.1.1996,

the  benefits  of  the  pension  enjoyed  by

officers who retired after the said date.  

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20. Mr.  Nidhesh  Gupta,  learned  Senior  Counsel

who appeared for the respondents, submitted

that the judgment of the High Court did not

call for any interference as the same had

been rendered on the touchstone of Article

14  of  the  Constitution  and  in  consonance

with  the  principle  of  administrative  fair

play. He submitted that officers of the rank

of Major General, who had retired prior to

1.1.1996 should not be made the target of

the  bureaucratic  error  committed  by  the

Government in refixing the scale of pay of

Brigadiers after 1.1.1996 in such a manner

so that by adding the rank pay  to their

basic  pay,  their  pay  at  the  time  of

retirement was higher than that of a Major

General which was a superior rank, thereby

creating  an  anomaly   in  the  pension

entitlement of officers of the two aforesaid

ranks.

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21. Mr. P.N. Lekhi, learned senior counsel who

appeared  for  the  added  respondents,  while

adopting Mr. Gupta’s submissions referred to

the  decision of this Court in R.Viswan and

others vs. Union of India and others, (1983)

3 SCC 401, on the question of morale and

submitted  that  the  arbitrary  decision  to

discriminate  between  the  two  sets  of

officers belonging to the same rank in the

matter of payment of pension  was bound to

adversely  effect  the  morale  of  senior

officers of the rank of Major General which

was in fact the feeder post to the rank of

Lieutenant  General  from  amongst  whom  the

Chief of Army Staff is ultimately chosen.

22. From  the  submissions  made  the  dispute

appears to be confined only to the question

whether  officers  of  the  rank  of  Major

General in the army  and of equivalent rank

in  the  two  other  wings  of  the  Defence

forces, who had retired prior to 1.1.1996,

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have been validly excluded from the benefit

of  the  revision  of  pay  scales  in  keeping

with  the  recommendations  of  the  Fifth

Central Pay Commission by virtue of Special

Army Instruction 2(S)98.

23. On behalf of the appellant, Union of India,

it  has  been  sought  to  be  contended  that

since  the pay scale  of  those  officers

who  had retired prior to 1.1.96 had already

been fixed at the time of their retirement,

the  question  of  refixation  of  their  pay

scales on account of the revision could not

be accepted as they would only be entitled

to the benefits of higher pension on account

of  such  revision.  The  learned  Additional

Solicitor  General,  Mr.  Vikas  Singh,  had

contended  that  since  an  anomaly  had  been

created in the pension payable to officers

of  the  rank  of  Major  Generals,  who  on

account of the revision of pay scales were

receiving less pension than Brigadiers who

were  lower  in  rank,  the  Government  had

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stepped up the pension of Major Generals who

had retired prior to 1.1.1996, so that they

did not receive pension less than what  was

given to officers of the rank of Brigadier.

24. The said decision of the Central Government

does not address the problem of a disparity

having   created  within  the  same  class  so

that  two  officers  both  retiring  as  Major

Generals,  one  prior  to  1.1.1996  and  the

other  after  1.1.1996,  would  get  two

different  amounts  of  pension.   While  the

officers who retired prior to 1.1.1996 would

now get the same pension as payable to a

Brigadier on account of the stepping up of

pension  in  keeping  with  the  Fundamental

Rules, the other set of Major Generals who

retired  after  1.1.1996  will  get  a  higher

amount  of  pension  since  they  would  be

entitled to the benefit of the revision of

pay scales after 1.1.1996.

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25. In our view, it would be arbitrary to allow

such a situation to continue since the same

also offends the provisions of Article 14 of

the Constitution.

26. The question regarding creation of different

classes within the same cadre on the basis

of the doctrine of intelligible differentia

having nexus with the object to be achieved,

has  fallen  for  consideration  at  various

intervals  for  the  High  Courts  as  well  as

this  Court,  over  the  years.  The  said

question  was  taken  up  by  a  Constitution

Bench  in  the  case  of  D.S.  Nakara  (supra)

where in no uncertain terms throughout the

judgment  it  has  been  repeatedly  observed

that the date of retirement of an employee

cannot  form  a  valid  criterion  for

classification, for if  that  is  the

criterion  those who retired by the end of

the month will form a class by themselves.

In  the  context  of  that  case,  which  is

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similar to that of the instant case, it was

held that Article 14 of the Constitution had

been  wholly  violated,  inasmuch  as,  the

Pension Rules being  statutory in character,

the amended Rules, specifying a cut-off date

resulted in differential and discriminatory

treatment  of  equals  in  the  matter  of

commutation  of  pension.   It  was  further

observed  that  it  would  have  a  traumatic

effect on those who retired just before that

date.  The  division  which  classified

pensioners into two classes was held to be

artificial and arbitrary and not based on

any  rational  principle  and  whatever

principle, if there was any, had not only no

nexus to the objects sought to be achieved

by  amending  the  Pension  Rules,  but  was

counter productive and ran counter to the

very object of the pension scheme. It was

ultimately held that the classification did

not satisfy the test of Article 14 of the

Constitution.

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27. The  Constitution  Bench  has  discussed  in

detail the objects of granting pension and

we need not, therefore, dilate any further

on the said subject, but the decision  in

the  aforesaid  case  has  been  consistently

referred to in various subsequent judgments

of this Court, to which we need not refer.

28. In  fact,  all  the  relevant  judgments

delivered  on  the  subject  prior  to  the

decision of the Constitution Bench have been

considered and dealt with in detail in the

aforesaid case.

29. The  directions  ultimately  given  by  the

Constitution Bench in the said case in order

to resolve the dispute which had arisen, is

of relevance to resolve the dispute in this

case also.

30. However, before we give such directions we

must  also  observe  that  the  submissions

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advanced  on  behalf  of  the  Union  of  India

cannot be accepted in view of the decision

in D.S. Nakara’s case (supra). The object

sought to be achieved was not to create a

class within a class, but to ensure that the

benefits of pension were made available to

all persons of the same class equally.  To

hold  otherwise  would cause violence to the

provisions  of  Article  14  of  the

Constitution.  It could not also have been

the intention of the authorities to equate

the  pension  payable  to  officers  of  two

different ranks by resorting to the step up

principle envisaged in the Fundamental Rules

in  a  manner  where   the  other  officers

belonging  to  the  same  cadre  would  be

receiving a higher pension.   

31. We,  accordingly,  dismiss  the  appeal  and

modify  the  order  of  the  High  Court  by

directing that the pay of all pensioners in

the rank of Major General and its equivalent

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rank in the two other Wings of the Defence

Services  be  notionally  fixed  at  the  rate

given to similar officers of the same rank

after the revision of pay scales with effect

from 1.1.1996, and, thereafter, to compute

their pensionary benefits on such basis with

prospective effect from the date of filing

of the writ petition and to pay them the

difference  within  three  months  from  date

with  interest  at  10%  per  annum.  The

respondents will not be entitled to payment

on account of increased pension from prior

to the date of filing of the writ petition.

32. The appeal is accordingly dismissed.

33. There will be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J.

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(MARKANDEY KATJU) New Delhi Dated: 9.9.2008

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