Delhi High Court
S.A.Khan & Anr. vs Union Of India & Ors. on 7 May, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : April 09, 2015
Judgment Delivered on : May 07, 2015
+ W.P.(C) 8012/2013
S.A.KHAN & ANR. .....Petitioners
Represented by: Mr.Ankur Chhibber, Advocate
versus
UNION OF INDIA & ORS. .....Respondents
Represented by: Mr.Vikram Jetly, Advocate with
Mr.Piyush Bhardwaj, Advocate for
UOI
Mr.Rajiv Kapur, Advocate with
Ms.Anjali Bhandari, Advocate for
R-5 and R-6
W.P.(C) 8056/2013
RAJENDRA BABU PATHAK .....Petitioner
Represented by: Mr.Ankur Chhibber, Advocate
versus
UNION OF INDIA & ORS. .....Respondents
Represented by: Mr.Sanjeev Narula, Advocate with
Mr.Ajay Kalra, Advocate for UOI
Mr.Rajiv Kapur, Advocate with
Ms.Anjali Bhandari, Advocate for
R-5
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. We are disposing of the above-captioned writ petitions by a
common decision for the reason the petitioners challenge the letter dated
October 03, 2008 issued by the Government of India, Ministry of
Personnel, P.G. & Pension, to the extent it stipulates (and as per the
petitioners under the garb of a clarification) and links grant of full
pension to completion of 33 years of qualifying service and draws a
distinction between those who retired before and after January 01, 2006.
The result is that those who superannuate after January 01, 2006 and have
rendered a minimum of 20 years service would be entitled to full pension
and those who superannuated before said date would be liable to have the
pension pro-rata decreased for each year less service rendered, taking 33
years as full pensionable service period. The petitioners also pray for a
writ of mandamus to be issued to the respondents directing them to
maintain parity between those pensioners who retired pre and post-
January 01, 2006 and also with regard to family pension, meaning
thereby that every pensioner who has rendered 20 years service and
beyond would be entitled to full pension.
2. In W.P.(C) No.8056/2013, prayer has also been made to quash the
letter dated October 01, 2012 under which the pension of the petitioner
was re-fixed to his disadvantage with a direction that his pension be re-
fixed as per para 4.2 of the Office Memorandum dated September 01,
2008. Similarly, in W.P.(C) No.8012/2013, the petitioners have prayed
that letters whereby their pension was reduced be quashed and their
pension be re-fixed as per para 4.2 of the Office Memorandum dated
September 01, 2008. The petitioners have also prayed that the amounts
recovered from their pension be directed to be refunded with interest.
3. Thus, the issue which arises for consideration is whether the
decision to classify the pensioners in two classes : pre January 01, 2006
pensioners and post said date pensioners is a reasonable classification,
while according full pension to post January 01, 2006 pensioners who
have rendered 20 years‟ service but pro-rata reducing the same for the pre
January 01, 2006 pensioners, which stands the scrutiny of Article 14 of
the Constitution of India; since the Article while permitting classification
warrants a rational nexus to be established keeping in view the object and
thereby resulting in two classes forming. It is trite that equality has to be
amongst the members of the same class and not amongst members of
different classes. Thus, it is the reasonableness of the classification
which is in issue.
4. Briefly stated, the facts germane for adjudication of the present
petitions are that petitioner, Rajendra Babu Pathak of W.P.(C)
No.8056/2013 was recruited in the Central Reserved Police Force (CRPF)
to the post of Deputy Superintendent of Police in the year 1967 and after
serving in the force for a period of 21 years, 6 months and 6 days, sought
voluntary retirement and was granted the same on August 01, 1988. He
had earlier worked as a lecturer in the Education Department for a period
of 8 years. At the time of retirement, he was drawing a basic pay of
`4800 + 150 + D.A. For the purpose of pension, the total qualifying
service of the petitioner was taken to be 29 years and 8 days. Pursuant to
subsequent revisions, on account of the VIth Central Pay Commission
recommendations, the pension was fixed at `20,256/-. He made a
representation that his pension be enhanced which was denied on the
reasoning that he had not completed 33 years qualifying service for full
pension.
5. The writ petitioners of W.P.(C) No.8012/2013, were recruited in
CRPF in the year 1967 and superannuated in the year 1996 and 1995
respectively. Their pensions were fixed with reference to qualifying
service of petitioner No.1 taken to be 29 years, 5 months and 22 days and
that of petitioner No.2 as 28 years, 5 months and 23 days. The pensions
were revised when the recommendations of the VIth Central Pay
Commissions were implemented, but were decreased pro-rata for such
period of service which fell short of 33 years. As regards these
petitioners post January 01, 2006 their pensions were fixed at `23,050/-
being full pension but was reduced to `20,605/- without notice to them
and the reason given by the respondents was that while fixing their
pension the same had to be pro-rata decreased for the period they served
less than 33 years.
6. As per learned counsel for the petitioners the issue at hand was
squarely covered by the decision of the Supreme Court reported as 1990
(4) SCC 270 D.S. Nakara v. Union of India, wherein it was held that
denial of liberalized pension to those persons who had retired before the
cut-off date prescribed was against the constitutional guarantee.
Reliance was also placed on the decision reported as 2008 (9) SCC 125
Union of India v SPS Vains, wherein it was held as under:
"28. 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 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.
29. 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. 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. 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 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."
7. To put rest his argument the learned counsel for the petitioner has
drawn our attention to a decision dated April 29, 2013 of a Division
Bench of this Court in W.P.(C) No.1535/2012 Union of India & Anr. vs
Central Govt. SAG & Ors., authored by one of us i.e. Pradeep Nandrajog,
J., wherein the issue for consideration was the applicability of paragraph
9 of the Office Memorandum dated January 28, 2013 from September 24,
2012 onwards, thereby denying the arrears of pension to be paid to
pensioners with effect from January 01, 2006.
8. While disposing of the said writ petition the Division Bench
expressed its complete agreement with a decision dated December 21,
2012 passed by a Division Bench of the Punjab & Haryana High Court in
WP (C) No. 19641/2009 R.K.Aggarwal & Ors. Vs State of Haryana &
Ors. Learned counsel relied upon paragraphs 21 to 26 of the said
judgment, wherein the Division Bench had reasoned as under:
"21. On the recommendations made by VI CPC, which stood
validly accepted by the Cabinet, it was argued before the
Tribunal that principle for determining the pension has been
completely altered under the garb of clarification. It was
argued that on the basis of the aforesaid resolution/modified
parity revised pension of the pre-2006 pensioners shall not be
less than 50% of the minimum of the pay band + grade pay,
corresponding to the pre-revised pay scale from which the
pensioner had retired.
22. The Tribunal has accepted this contention and because
of this reason, it is held that subsequent OMs dated 03.10.2008
and 14.10.2008 purportedly issued to clarify para 4.2 of OM
dated 01.09.2008 were contrary to the plain meaning of the
said para and whereby the criteria and principle for
determination of the pension had been completely changed that
too when these two subsequent OMs dated 03.10.2008 and
14.10.2008 were issued by the lower authorities having no
power to issue such clarification.
23 After considering the arguments of learned counsels for
all the parties, we are of the opinion that it is not even
necessary to go into the various nuances and nitty grittys,
which are insisted by learned counsels for the petitioners
based on D.S. Nakara line of cases and N. Subbarayudu and
others and S.R. Dhingra and others (supra), wherein ratio of
D.S. Nakara is explained. We proceed on the basis that
fixation of cut off date by the government was in order and to
this extent we agree with the reasoning given by the Tribunal
where similar arguments, as advanced by the petitioners
before us, were rejected. The issue can be resolved on the
interpretation of OM dated 29.08.2008 itself. It is not in
dispute that vide resolution dated 29.08.2008,
recommendations of the 6th Central Pay Commission were
accepted by the government and the pension was also to be
fixed on the basis of formula contained therein. We have
already reproduced the recommendations of the 6th Central
Pay Commission, as contained in para 5.1.47, which was
accepted by the government vide Item No. 12 of resolution
dated 29.08.2008 with certain modifications. Based on this
resolution, OM dated 01.09.2008 was issued. We have also
reproduced para 4.2 thereof. This states in unequivocal terms
that "revised pension in no case shall be lower than 50% of
the minimum of pay in the pay band plus grade pay
corresponding to the pre-revised pay scale------". The clear
purport and meaning of the aforesaid provision is that those
who retired before 01.01.2006 as well were ensured that their
revised pension after enforcing recommendations of the 6th
Central Pay Commission, shall not be less than 50% of the
minimum of the pay band plus grade pay corresponding to the
pre-revised pay scale from which the pensioners had retired.
However, notwithstanding the same and without any
provocation, the junior functionaries in the Department of
Pension nurtured a doubt "though there was none" and note
was prepared on that basis, which led to issuance of OMs
dated 03.10.2008 and 14.10.2008. The effect of these two OMs
was to make revision in the pension of pre-2006 retirees by
giving them less than 50% of the sum of minimum of the pay in
the pay band. To demonstrate this, Mr. H.L. Tikku, learned
senior counsel appearing in some of these cases drew our
attention to the following chart:-
Min of Pay in Grade Revised Pension
Pre- the Pay Pay Basic 50% of
revised Band Pay (2+3)
(2+3)
scale (` ) (` )
1 2 3 4 5
S-24 37400 8700 46100 23050
(14300)
S-25 39690 8700 48390 24195
(15100)
S-26 39690 8900 48590 24295
(16400)
S-27 39690 8900 48590 24295
(16400)
S-28 37400 10000 47400 23700
(14300)
S-29 44700 10000 54700 27350
(18400)
The first 4 columns of the above table have been extracted from
the pay fixation annexed with MOF OM of 30th August, 2008
(referred to in para 4.5 (iii) above). Revised pension of S 29
works out to `27,350 which has been reduced to `23,700 as per
DOP OM of 03.10.2008 (para 4.8 (B) below).
24. As per the impugned OM dated 14.10.2008 in the case of
S-24 officers the corresponding pay in the Pay Band against
`14,300/- is shown as `37,400/-. In addition, Grade Pay of
`8700/- was given totaling `46,100/-. Similarly, revisions
concerning all the other pay scales were accepted by the
aforementioned OM dated 14th October, 2008. The illegality
which has been perpetrated in the present matter is apparent
from the fact that whereas an officer who was in the pre-revised
scale S-24 and receiving a pay of `14,300/- would now receive
`37,400/- plus grade pay of `8700/- and his full pension would
accordingly be fixed at `23,050/- (i.e. 50% of 37,400/- pay plus
grade pay `8700/-) pursuant to the implementation of VI CPC
recommendations after 01.01.2006, whereas a person retiring
before 01.01.2006, who was drawing a pay of `18,400/- or even
`22,400/- (maximum of scale) in the pre-revised S-29 scale will
now be getting pension as only 23,700/- (i.e. 50% of pay of
`37,400/- plus grade pay of `10,000/-).
25. This has arisen because of resolution dated 29.08.2008
and has resulted because of deletion of certain words in para
4.2 of the OM dated 01.09.2008 or 03.10.2008. This aspect is
beautifully demonstrated by the Tribunal in its Full Bench
judgement in the following manner with which we are entirely
agree:
"25. In order to decide the matter in controversy, at this stage,
it will be useful to extract the relevant portions of para 5.1.47
of the VI CPC recommendation, as accepted by the Resolution
dated 29.08.2008, para 4.2 of the OM dated1.9.2008 and
subsequent changes made in the garb of clarification dated
3.10.2008, which thus read:
Resolution Para 4.2 of OM DOP
NO.38/37/8- OM & PW OM
P&PW (A) DOP&PW No.38/37/8-
dated OM P&PW (A)
29.08.2008 No.38/37/8- dated
- Para P&PW (A) 3.10.2008
5.1.47 (page dated
154-155) 1.09.2008
(page 38 of
OA)
The fixation as per The fixation as per The Pension
above will be subject above will be subject Calculated at 50% of
to the provision 'that to the provision 'that the [sum of the]
the revised pension, the revised pension, minimum of the pay
in no case, shall be in no case, shall be in the pay band [and
lower than 50% of the lower than 50% of the grade pay
sum of the minimum the(sum of the) thereon
of the pay in the pay minimum of the pay corresponding to the
band and the grade in the pay band plus pre-revised pay
pay thereon (and) the grade pay scale] plus grade pay
corresponding to the (thereon) would be calculated
prerevised pay scale corresponding to the (i) at the minimum of
form which the prerevised pay scale the pay in the pay
from which the band (irrespective of
pensioner had retired. pensioner had the pre-revised scale
retired. of pay plus) the
grade pay
corresponding to the
prerevised pay scale.
For example, if a
pensioner had retired
in the pre-revised
scale of pay of
`18400-22400, the
corresponding pay
band being `37400-
67000 and the
corresponding grade
pay being `10000
p.m., his minimum
guaranteed pension
would be 50% of
`37400+`10000
(i.e.`23700)
Strike out are Strike out are
deletions and bold deletions and bold
letter addition letters addition.
26. As can be seen from the relevant portion of the resolution
dated 29.8.2008 based upon the recommendations made by the
VI CPC in paragraph 5.1.47, it is clear that the revised pension
of the pre-2006 retirees should not be less than 50% of the sum
of the minimum of the pay in the Pay Band and the grade pay
thereon corresponding to the pre-revised pay scale held by the
pensioner at the time of retirement. However, as per the OM
dated 3.10.2008 revised pension at 50% of the sum of the
minimum of the pay in the pay band and the grade pay thereon,
corresponding to pre-revised scale from which the pensioner
had retired has been given a go-by by deleting the words 'sum
of the' 'and grade pay thereon corresponding to the pre-revised
pay scale' and adding 'irrespective of the pre-revised scale of
pay plus' implying that the revised pension is to be fixed at 50%
of the minimum of the pay, which has substantially changed the
modified parity/formula adopted by the Central Government
pursuant to the recommendations made by the VI CPC and has
thus caused great prejudice to the applicants. According to us,
such a course was not available to the functionary of the
Government in the garb of clarification thereby altering the
recommendations given by the VI CPC, as accepted by the
Central Government. According to us, deletion of the words
'sum of the' 'and grade pay thereon corresponding to the pre-
revised scale' 'and addition of the words 'irrespective of the
pre-revised scale of pay plus', as introduced by the respondents
in the garb of clarification vide OM dated 3.10.2008 amounts
to carrying out amendment to the resolution dated 29.08.2008
based upon para 4.1.47 of the recommendations of the VI CPC
as also the OM dated 1.9.2008 issued by the Central
Government pursuant to the aforesaid resolution, which has
been accepted by the Cabinet. Thus, such a course was not
permissible for the functionary of the Government in the garb
of clarification, that too, at their own level without referring the
matter to the Cabinet."
26. It is for the aforesaid reasons, we remark that there is no
need to go into the legal nuances. Simple solution is to give
effect to the resolution dated 29.08.2008 whereby
recommendations of the 6 th Central Pay Commission were
accepted with certain modifications. We find force in the
submission of learned counsel for the petitioners that
subsequent OMs dated 03.10.2008 and 14.10.2008 were not in
consonance with that resolution. Once we find that this
resolution ensures that "the fixation of pension will be subject
to the provision that the revised pension, in no case, shall be
lower than 50% of the sum of the minimum of the pay in the pay
band and the grade pay thereon corresponding to the pre-
revised pay scale from which the pensioner had retired", this
would clearly mean that the pay of the retiree i.e. who retired
before 01.01.2006 is to be brought corresponding to the revised
pay scale as per 6th Central Pay Commission and then it has to
be ensured that pension fixed is such that it is not lower than
50% of the minimum of the pay in the band and the grade pay
thereon. As a result, all these petitions succeed and mandamus
is issued to the respondents to refix the pension of the
petitioners accordingly within a period of two months and pay
the arrears of pension within two months. In case, the arrears
are not paid within a period of two months, it will also carry
interest @ 9% w.e.f. 01.03.2013. There shall, however, be no
order as to cost."
9. In the above judgment while noting the judgment of the Division
Bench of the Punjab and Haryana High Court in paragraph 22 of the said
judgment it has been clearly held that „The Tribunal has accepted this
contention and because of this reason, it is held that subsequent OM
dated October 03, 2008, October 14, 2008 purportedly issued to clarify
para 4.2 of OM dated September 01, 2008 were contrary to the plain
meaning of the said para and whereby the criteria and principle for
determination of the pension had been completely changed that to when
these two subsequent OMs were issued by lower authorities having no
power to issue such clarification'. The Division Bench of Punjab and
Haryana High Court in the above judgment has already held that the OMs
dated October 03, 2008 and October 14, 2008 are contrary to OM dated
September 01, 2008 and were issued by a lower authority who could not
have altered the original OM being September 01, 2008. Thus the normal
corollary would be that the procedure laid down under para 4.2 of the OM
dated September 01, 2008 shall remain in respect of pre-2006 retirees and
the clarifications issued by OMs dated October 03, 2008, October 14,
2008 and January 28, 2013 whereby the words „the pension of the
pensioners who retired prior to 2006 will be reduced pro-rata wherein
the pensioner who has less than the maximum required service for full
pension as per Rule 49 of CCS (Pension) Rules 1972' needs to be
quashed.
10. The learned counsel for the petitioner also drew our attention to a
judgment dated December 07, 2011 passed by the Armed Forces Tribunal
in OA No.106/2009 Wing Commander (Retd.) V.S.Tomar vs Union of
India & Ors. whereby the Armed Forces Tribunal had quashed the similar
words introduced by the respondents vide letter dated November 11, 2008
in respect of the Armed Forces which had been issued by the Ministry of
Defence. In the said judgments the Armed Forces Tribunal relying upon
the judgment of D.S.Nakara and S.P.S.Vains have declared Para 5 of the
Notification dated November 11, 2008 to be discriminatory and violative
of Article 14 of the Constitution and has struck down the same.
11. The learned Counsel for the petitioner also brought to our notice a
judgment dated November 20, 2014 passed by a Full Bench of the
Central Administrative Tribunal, Principal Bench All India S-30
Pensioners Association Versus Union of India & Ors. wherein it has been
held that „there can be no disparity in the payment of pension to officers
of the same rank who had retired prior to introduction of the revised pay
scales with those who retired thereafter.‟
12. The sum and substance of all the above judgments and the
arguments raised by the petitioners is that the respondents cannot have
different yardsticks for similarly situated persons and cannot apply
different formulas for fixation of their pensions by dividing into a
homogeneous class of persons. The same has already been held to be
arbitrary and discriminatory by the Supreme Court in D.S.Nakara‟s case
(supra) and S.P.S.Vains‟s case (supra). Moreover, the judgment dated
December 21, 2012 passed by the Punjab and Haryana High Court in
WP(C) No. 19641/2009 R.K.Aggarwal & Ors. Versus Haryana State &
Ors. has already held that OMs dated October 03, 2008, October 14, 2008
were issued by a lower authority who could not have altered the original
OM being dated September 01, 2008. Thus the normal corollary would be
that the procedure laid down under para 4.2 of the OM dated September
01, 2008 shall remain in respect to pre-2006 retirees and the clarifications
issued by OMs dated October 03, 2008, October 14, 2008 and January 28,
2013 whereby the words „the pension of the pensioners who retired prior
to 2006 will be reduced pro-rata wherein the pensioner who has less
than the maximum required service for full pension as per Rule 49 of
CCS (Pension) Rules 1972' needs to be quashed.
13. Learned counsel for the respondents relied upon the decision
reported as (2005) 6 SCC 754 State of Punjab & Ors. vs. Amar Nath
Goyal & Ors. wherein the cut-off date April 01, 1995 for pensioners was
upheld as also the decision reported as (1992) 1 SCC 644 All India
Reserve Bank Retired Officers' Association vs. UOI & Ors. where the
cut-off dated January 01, 1986 for pensioners in the banking sector was
upheld. Learned counsel for the respondents criticized the decision of the
Bench of the Armed Forces Tribunal rendered on December 07, 2011 in
OA No.106/2009 Wing Commander (Retd.) V.S.Tomar vs. UOI & Ors.
relied upon by the petitioners on the ground that the said decision showed
a mechanical exercise to come to the conclusion that the date January 01,
2006 for pensioners was arbitrary in the context of post said date,
pensioners not being subjected to pro-rata cut in pension and pre said date
pensioners being subjected to a pro-rata cut in pension.
14. On the factual aspect, to the reader of our opinion in which up till
now we have noted the arguments advanced by learned counsel for the
petitioners it would emerge that the office memorandum dated September
01, 2008 on the subject of implementation of the Government‟s decision
on the recommendations of the VIth Central Pay Commission concerning
revision of pension of pre-January 01, 2006 pensioners drew no
distinction between pre and post January 01, 2006 pensioners and simply
require full pension to be paid to all pensioners irrespective of the concept
of pro-rata reduction in the pension stipulating 33 years‟ service as the
minimum service to earn full pension and as a result any service less than
33 years requiring pro-rata reduction in the pension. The said office
memorandum was issued on behalf of the Government of India and as per
the business allocation rules was signed by the Director (PP) in the
Ministry of Personnel, Public Grievances and Pension. Under the garb of
a clarification, on October 03, 2008 the distinction was drawn between
pre and post January 01, 2006 pensioners. As regards post January 01,
2006 their pension was not to be lowered and could not be less than 50%
of the sum of the minimum of the pay in the pay band and the grade pay
if they had served for 20 years, but as regards pre-January 01, 2006 their
pension was to be lowered by a pro-rata reduction if service was rendered
less than 33 years.
15. On said aspect of the matter, the decision dated April 29, 2013 of
the Division Bench of this Court in W.P.(C) No.1535/2012 Union of
India & Anr. vs Central Govt. SAG & Ors. has already taken a view
favourable to the petitioners, and indeed as noted in paragraph 7 above
the learned counsel for the petitioners had heavily relied upon the
decision.
16. Our task is simple. To cull out the correct ratio of law declared by
the Supreme Court as also a Division Bench of this Court and that of the
Armed Forces Tribunal from the decisions cited by learned counsel for
both parties.
17. The first decision on the point is the decision of the Supreme Court
reported as (1983) 1 SCC 305 D.S.Nakara Vs. UOI. A liberalized
pension formula was notified by the Government of India but made
applicable to only those pensioners who had retired on or after March 31,
1979. Whereas the Government argued that all pensioners do not form a
homogeneous class and thus the Government was justified, keeping in
view its finances, to grant the benefit to those who had retired on or after
March 31, 1979, the petitioners argued to the contrary urging that unless a
causal connection between the basis of the classification and the object
thereof was demonstratably shown, discrimination would be writ large.
18. The Government having failed to show a causal connection
between the basis of the classification and the object, the Supreme Court
held that the cut-off date was arbitrary and extended the benefit of the
liberalized scheme to all pensioners.
19. In the decision reported as (1992) 1 SCC 644 All India Reserved
Bank Retired Association Vs. UOI, the relevant facts were that the
Government of India took a uniform decision that all those who joined
Government service post January 01, 1986 would have to become a
member of the pension scheme without any option to be a member of the
Contributory Provident Fund Scheme. The reason being the
recommendations of the IVth Central Pay Commission to said effect.
Whereas option was given to the existing employees to chose to opt for
the pension scheme and opt out of the Contributory Provident Fund
Scheme, pre and post January 01, 1986 retirees became two classes.
Those who had retired after January 01, 1986 and members of the
Contributory Provident Fund Scheme could return the amount received
by them and receive pension instead but those who had retired pre-
January 01, 1986 could not exercise said option. By the time the Ministry
of Finance gave concurrence to the bank employees the year 1990 had
come into being and as a result when the recommendations of the pay
commission were notified for the employees of bank, the relevant office
memorandums gave the benefit to those who had retired on or after
January 01, 1986 and denied the same to the ones who had retired on or
before December 31, 1985.
20. Finding a rational nexus, being the decision of the IVth Central Pay
Commission and the date of its applicability i.e. January 01, 1986,
keeping in view the finances of the Government, the Supreme Court
upheld the date as the basis of a rational classification.
21. In the decision reported as (2005) 6 SCC 754 State of Punjab &
Ors. Vs. Amar Nath Goyal & Ors., the cut-off date was April 01, 1995
and the Supreme Court upheld the cut-off date keeping in view that the
financial year commences on April 01 each year and the benefit conferred
was an increment in the quantum of retirement gratuity and/or death
gratuity consequent upon the merger of a portion of Dearness Allowance
into the basic pay. It is apparent that the existence of a rational nexus
between the criteria and the object of the policy being determinable
resulted in the cut-off date being upheld.
22. In the decision reported as (2008) 9 SCC 125 UOI & Anr. vs.S.P.S.
Vains & Ors. the disparity was the result of the cut-off date being
prescribed as January 01, 1996 for retirees in the Army resulting in
officers holding the rank of Brigadier receiving higher pension being
drawn in comparison with officers holding the higher rank of Major
General. Those holding rank of Major General but having retired on or
before December 31, 1995 started receiving lesser pension than
Brigadiers who retired on or after January 01, 1996. No nexus being
shown between the criteria i.e. the cut-off date with the object of the
policy sought to be achieved, relying upon the law declared in
D.S.Nakara‟s case (supra) the cut-off date was held to be arbitrary and
as a consequence the classification of the pensioners in the two categories
was held to be discriminatory.
23. As regards the decision of the Armed Forces Tribunal dated
December 07, 2011 in OA No.106/2009 Wing Commander
(Retd.)V.S.Tomar vs UOI & Ors. the reasoning of the Tribunal, as urged
by learned counsel for the respondents is mechanical. The Tribunal held
that from the decisions of the Supreme Court in D.S.Nakara's case
(supra), S.P.S.Vains‟s case (supra), Amar Nath Goyal's case (supra) and
All India Reserve Bank Retired Officers Association‟s case (supra) it
appeared to the Tribunal that in the year 1983 (D.S.Nakara‟s case) the
view taken by the Supreme Court was that in matters of pension a cut-off
date as the basis of classification was not valid, but as of the years 1992
(All India Reserve Bank Retired Officers Association‟s case) and the year
2005 (Amar Nath Goyal‟s case) cut-off dates were valid but the latest
view in the year 2008 (S.P.S.Vains case) showed that the view was that a
cut-off date was invalid. But that should not trouble us for the reason we
have independently analyze the ratio of law flowing in the various
decisions of the Supreme Court and suffice it to state that wherever the
Supreme Court found a rational nexus between the criteria with the object
of the policy sought to be achieved the classification with reference to a
date was upheld and wherever such rational nexus was not shown the
same was held to be arbitrary.
24. Reverting to the facts of the instant case we find that the
respondents have failed to show any nexus between the criteria with the
object of the policy. To give benefit of full pension to those who have
rendered 20 years service but have retired on or after January 01, 2006
but subject the pensioners who have retired on or before December 31,
2005 to a pro-rata cut in pension unless backed by a reasonableness of the
criteria with the object sought to be achieved would render the cut-off
date as an arbitrary criteria and thus liable to be quashed.
25. To summarize, the petitioners must succeed on two points. Firstly
that the policy decision of the Government in the Office Memorandum
dated September 01, 2008 to fix pension for all category of pensioners
did not classify post and pre January 01, 2006 retirees and all were
entitled to pension as per a common formula. Under the garb of
clarification the Office Memorandum of October 03, 2008 followed by
the Office Memorandum dated October 14, 2008 and repeated in the
Office Memorandum dated January 28, 2013 the cut-off date was inserted
by an officer of the Government having no authority to cut down the
beneficial policy decision notified on September 01, 2008. Secondly for
the reason the cut-off date is arbitrary and fouls Article 14 of the
Constitution of India.
26. The writ petitions are allowed. The Office Memorandums
introducing the cut-off date and mandating that pre January 01, 2006
pensioners would have their pension fix by pro-rata reducing the same by
such numbers of years they have rendered less service than 33 years are
quashed. It is declared that the writ petitioners would be entitled to full
pension post January 01, 2006 without any pro-rata cut therein. Pension
deducted from the petitioners (after it was correctly fixed and paid but
later on reduced and hence deductions made) shall be refunded as also the
arrears paid within six weeks from today failing which the amount
payable would bear simple interest @ 9% per annum reckoned six weeks
hereinafter.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
MAY 07, 2015/mamta
