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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 forArmed Forces Personnel-Liberalisation in computation ofpension effective from specified date-Divides pensioners soas to confer benefit on some while denying it to others-Classification arbitrary, devoid of rational nexus to objectof liberalisation and violative of Art. 14 Constitution of India, Art. 14-Doctrine ofseverability-Severance may have effect of enlarging scope oflegislation. Rules and Regulations governing grant of pension-


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

HEADNOTE: By a Memorandum dated May 25, 1979 (Exhibit P-1) theGovernment of India liberalised the formula for computationof pension in respect of employees governed by the CentralCivil Services (Pension) Rules, 1972 and made it applicableto employees retiring on or after March 31, 1979. By anotherMemorandum issued on September 23, 1979 (Exhibit P-2) itextended the same, subject to certain limitations, to theArmed Forces’ personnel retiring on or after April 1, 1979.Petitioners 1 and 2 who had retired in the year 1972 fromthe Central Civil Service and the Armed Forces’ servicerespectively, and petitioner No. 3, a registered societyespousing the cause of pensioners all over the country,challenged the validity of the above two memoranda in so faras the liberalisation in computation of pension had beenmade applicable only to those retiring on or after the datespecified and the benefit of liberalisation had been deniedto all those who had retired earlier. Counsel for petitioners contended that all pensionersentitled to receive pension under the relevant rules form aclass irrespective of the dates of their retirement andthere cannot be a mini-classification within this class;that the differential treatment accorded to those who hadretired prior to the specified date is violative of Art. 14as the choice of specified date is wholly arbitrary and theclassification based on the fortuitous circumstance ofretirement before or subsequent to the specified date isinvalid; and that the scheme of liberalisation incomputation of pension must be uniformly enforced withregard to all pensioners.166 Counsel for respondents contended that a classificationbased on the date of retirement is valid for the purpose ofgranting pensionary benefits; that the specified date is anintegral part of the scheme of liberalisation and theGovernment would never have enforced the scheme devoid ofthe date; that the doctrine of severability cannot beinvoked to sever the specified date from the scheme as itwould have the effect of enlarging the class of pensionerscovered by the scheme and when the legislature has expresslydefined the class to which the legislation applies it wouldbe outside the judicial function to enlarge the class; thatthere is not a single case where the court has included somecategory within the scope of provisions of a law to maintainits constitutionality; that since the scheme ofliberalisation has financial implications, the Court cannotmake it retroactive; that if more persons divided theavailable cake the residue falling to the share of each,especially to the share of those who are not before thecourt would become far less and therefore no relief could begiven to the petitioners that pension is always correlatedto the date of retirement and the court cannot change thedate of retirement and impose fresh commutation benefitwhich may burden the exchequer to the tune of Rs. 233crores; and that the third petitioner has no locus standi inthe case. Allowing the petitions,^ HELD: Article 14 strikes at arbitrariness in Stateaction and ensures fairness and equality of treatment. It is


attracted where equals are treated differently without anyreasonable basis. The principle underlying the guarantee isthat all persons similarly circumstanced shall be treatedalike both in privileges conferred and liabilities imposed.Equal laws would have to be applied to all in the samesituation and there should be no discrimination between oneperson and another if as regards the subject-matter of thelegislation their position is substantially the same.Article 14 forbids class legislation but permits reasonableclassification for the purpose of legislation. Theclassification must be founded on an intelligibledifferentia which distinguishes persons or things that aregrouped together from those that are left out of the groupand that differentia must have a rational nexus to theobject sought to be achieved by the statute in question. Inother words, there ought to be causal connection between thebasis of classification and the object of the statute. Thedoctrine of classification was evolved by the Court for thepurpose of sustaining a legislation or State action designedto help weaker sections of the society. Legislative andexecutive action may accordingly be sustained by the courtif the State satisfies the twin tests of reasonableclassification and the rational principle correlated to theobject sought to be achieved. A discriminatory action isliable to be struck down unless it can be shown by theGovernment that the departure was not arbitrary but wasbased on some valid principle which in itself was notirrational, 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] 2S.C.R, 476; E.P Royappa v. State of Tamil Nadu, [1974] 2S.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] 3S.C.R. 1014, referred to.167 In the instant case, looking to the goals for theattainment of which pension is paid and the welfare Stateproposed to be set up in the light of the DirectivePrinciples of State Policy and Preamble to the Constitutionit indisputable that pensioners for payment of pension froma class. When the State considered it necessary toliberalise the pension scheme in order to augment socialsecurity in old age to government servants it could notgrant the benefits of liberalisation only to those whoretired subsequent to the specified date and deny the sameto those who had retired prior to that date. The divisionwhich classified the pensioners into two classes on thebasis of the specified date was devoid of any rationalprinciple and was both arbitrary and unprincipled beingunrelated to the object sought to be achieved by grant ofliberalised pension and the guarantee of equal treatmentcontained in Art. 14 was violated inasmuch as the pensionrules which were statutory in character meted outdifferential and discriminatory treatment to equals in thematter of computation of pension from the dates specified inthe impugned memoranda. [190 F-H, 194 A-C, 194 F-H] (ii) Prior to the liberalisation of the formula forcomputation of pension average emoluments of the last 36months’ service of the employee provided the measure ofpension. By the liberalised scheme, it is now reduced to


average emoluments of the last 10 months’ service. Pensionwould now be on the higher side on account of two fortuitouscircumstances, namely, that the pay scales permit annualincrements and usually there are promotions in the last oneor two years of the employee’s service. Coupled with it aslab system for computation has been introduced and theceiling of pension has been raised. Pensioners who retiredprior to the specified date would suffer triple jeopardy,viz., lower average emoluments, absence of slab system andlower ceiling. [191 A-D] (iii) Both the impugned memoranda do not spell out theraison d’etre for liberalising the pension formula. In theaffidavit in opposition it is stated that the liberalisationwas decided by the government in view of the persistentdemand of the employees represented in the scheme of JointConsultative Machinery. This would clearly imply that thepre-liberalised scheme did not provide adequate protectionin old age, and that a further liberalisation was necessaryas a measure of economic security. The government also tooknote of the fact that continuous upward movement of the costof living index and diminishing purchasing power of rupeenecessitated upward revision of pension. When the governmentfavourably responded to the demand it thereby ipso factoconceded that there was a larger available national cake,part of which could be utilised for providing highersecurity to retiring employees. With this underlyingintendment of liberalisation, it cannot be asserted that itwas good enough only for those who would retire subsequentto the specified date but not for those who had alreadyretired. [191 F-G, 192 A, 191 H, 192 B] 2. If removal of arbitrariness can be brought about bysevering the mischievous portion, the discriminatory partought 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 byarbitrary introduction of words of limitation. There isnothing168immutable about the choosing of an event as an eligibilitycriteria subsequent to a specified date. If the event iscertain but its occurrence at a point of time is consideredwholly irrelevant and arbitrarily selected having anundesirable effect of dividing a homogeneous class and ofintroducing discrimination the same can be easily severedand set aside. It is therefore just and proper that thewords introducing the arbitrary fortuitous circumstancewhich are vulnerable as denying equality be severed andstruck 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 thespecification that the date mentioned therein will berelevant as being one from which the liberalised pensionscheme becomes operative. Omitting the unconstitutional partit is declared that all pensioners governed by the 1972Rules and Army Pension Regulations shall be entitled to


pension as computed under the liberalised pension schemefrom the specified date, irrespective of the date ofretirement. Arrears of pension prior to the specified dateas 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; andJaila Singh & Anr. v. State of Rajasthan & Ors., [1975]Supp. S.C.R. 428, relied on. Union of India & Anr. v. M/s. Parameswaran Match Worksetc., [1975] 2 S.C.R. 573; and D.C. Gouse & Co. etc. v.State of Kerala & Anr. etc., [1980] 1 S.C.R. 804, explainedand distinguished. Louisville Gas Co. v. Alabama Power Co., 240 U.S. 30[1927], referred to. (ii) The reading down of the impugned memoranda bysevering the objectionable portion would not render theliberalised pension scheme vague, unenforceable orunworkable. The Court is not legislating in reading down thememoranda; when the Court strikes down the basis ofclassification as violative of Art. 14 it merely sets atnaught the unconstitutional portion retaining theconstitutional portion. There is no difficulty inimplementing the scheme omitting the event happening afterthe specified date, retaining the more human formula forcomputation of pension. The pension will have to berecomputed in accordance with the provisions of theliberalised pension scheme as salaries were required to berecomputed in accordance with the recommendation of theThird Pay Commission but becoming operative from thespecified date. The Court is satisfied that the additionalfinancial liability that may be imposed by bringing169in pensioners who retired prior to April 1, 1979 within thefold of the liberalised pension scheme is not too high to beunbearable or such as would have detracted the Governmentfrom covering the old pensioners under the scheme. Theseverance of the nefarious unconstitutional part does notadversely affect future pensioners and their presence inthese 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 isrestructuring the liberalised pension scheme is to ignorethe constitutional mandate. The Court is not conferringbenefits by its approach; it is only removing theillegitimate classification and after its removal the lawtakes its own course. [206 D-E] (iv) It is not correct to say that if theunconstitutional part is struck down the Parliament wouldnot have enacted the measure. The executive, withparliamentary mandate, liberalised the pension scheme. It isimplicit in the scheme that the need to grant a littlehigher rate of pension to the pensioners was consideredeminently just. One could have understood persons in thehigher pay bracket being excluded from the benefit of thescheme because it would have meant that those in the higherpay bracket could fend for themselves. Such is not theexclusion. The exclusion is of a whole class of people whoretired before a certain date. Parliament would not havehesitated to extend the benefit otherwise consideredeminently just and this becomes clearly discernible fromp.35 of the 9th Report of the Committee on Petitions (6thLok Sabha), April 1979. [206 H, 207 A-E] (v) Whenever classification is held to be impermissibleand the measure can be retained by removing theunconstitutional portion of the classification, the


resultant effect may be of enlarging the class. In such asituation the court can strike down the words of limitationin an enactment. That is what is called reading down themeasure. There is no principle that severance limits thescope 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 measureof social justice commenced for the first time at some pointof time in history. If at that time it was rejected as beingwithout a precedent, law as an instrument of socialengineering would have long since been dead. [193 G, 193 C-D] (vii) The court is not making the scheme ofliberalisation retroactive by its approach. Retroactivenessis implicit in the theory of wages. When revised pay-scalesare introduced from a certain date, all existing employeesare brought on to the revised scales adopting a theory offitments and increments for past service. The benefit ofrevised scales is not limited to those who enter servicesubsequent to the date fixed for introducing revised scalesbut is extended to all those in service prior to that date.Even in the case of the new retiral benefit of gratuityunder the Payment of Gratuity Act, 1972, past service wastaken into consideration. The scheme of liberalisation isnot a new retiral benefit; it is170an upward revision of an existing benefit. Pension hascorrelation to average emoluments and the length ofqualifying service and any liberalisation would pro tantober etroactive in the narrow sense of the term. Assuming thegovernment had not prescribed the specified date and therebyprovided that those retiring, pre and past the specifieddate, would all be governed by the liberalised pensionscheme it would be both prospective and retroactive. Onlythe pension will have to be recomputed in the light of theformula enacted in the liberalised pension scheme andeffective from the date the revised scheme comes into force.A statute is not properly called retroactive because a partof the requisites for its action is drawn from a timeantecedent to its passing. [195 H, 196 H, 196 G, 196 D, 196 B-D] Craies on Statute Law, Sixth Edition, p. 387 referredto. (viii) There is no question of pensioners dividing thepension fund which, if more persons are admitted to thescheme, would pro rata affect the share. The pension scheme,including the liberalised scheme, is non-contributory incharacter. The payment of pension is a statutory liabilityundertaken by the Government. Whatever becomes due andpayable on account of pension is recognised as an item ofexpenditure and is budgeted for every year. At any givenpoint of time there is no fixed or pre-determined pensionfund which is divided amongst eligible pensioners. [195 C-G] (ix) The date of retirement of each employee remainingas it is, there is no question of fresh commutation ofpension of the pensioners who retired prior to 31st March1979 and have already availed of the benefit of commutation.It is not open to them to get that benefit at this late datebecause commutation has to be availed of within thespecified time limit from the date of actual retirement.[206 C-D] 3. The discernible purpose underlying the pension


scheme must inform the interpretative process and it shouldreceive a liberal construction. [185 G-H] (i) Pension is a right; not a bounty or gratuitouspayment. The payment of pension does not depend upon thediscretion of the Government but is governed by the rulesand a government servant coming within those rules isentitled 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 isearned by rendering long and efficient service and thereforecan be said to be a deferred portion of the compensation forservice rendered. [185 F] (iii) Pension also has a broader significance in thatit is a social-welfare measure rendering socio-economicjustice by providing economic security in old age to thosewho toiled ceaselessly in the hey-day of their life. [185 D-E, 186 B-C] (iv) Pension as a retirement benefit is in consonancewith and in furtherance of the goals of the Constitution.The goals for which pension is171paid themselves give a fillip and push to the policy ofsetting up a welfare state. The preamble to the Constitutionenvisages the establishment of a socialist republic. Thebasic framework of socialism is to provide a decent standardof life to the working people and especially providesecurity from cradle to grave. Article 41 enjoins the Stateto secure public assistance in old age, sickness anddisablement. Every state action whenever taken must bedirected and must be so interpreted as to take society onestep towards the goal of establishing a socialist welfaresociety. While examining the constitutional validity oflegislative/administrative action, the touchstone ofDirective Principles of State Policy in the light of thePreamble provides a reliable yardstick to hold one way orthe 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 interestcan maintain an action for judicial redress for publicinjury arising from breach of public duty or from violationof some provision of the Constitution or the law and seekenforcement of such public duty and observance of suchconstitutional or legal provision. The locus standi ofpetitioner No. 3 which seeks to enforce rights that may beavailable to a large number of old, infirm retirees isunquestionable as it is a non-political, non-profit,voluntary organisation registered under the SocietiesRegistration Act, 1860 and its members consist of publicspirited citizens who have taken up the cause of ventilatinglegitimate 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 of1980. Anil B. Divan, Mrs. Vineeta Sen Gupta and P.H.Parekhfor the Petitioners L.N.Sinha,Attorney General, M.M. Abdul Khader, N.


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 contextWoolesey’s prayer : "had I served my God as reverently as Idid my king, I would not have fallen on these days ofpenury" is chanted by petitioners in this group of petitionsin the Shellian tune : ’I fall on172the thorns of life I bleed.’ Old age, ebbing mental andphysical prowess, atrophy of both muscle and brain powerspermeating these petitions, the petitioners in the fall oflife yearn for equality of treatment which is being metedout to those who are soon going to join and swell their ownranks, Do pensioners entitled to receive superannuation orretiring 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 foreligibility when a revised formula for computation ofpension is ushered in and made effective from a specifieddate ? Would differential treatment to pensioners related tothe date of retirement qua the revised formula forcomputation of pension attract Article 14 of theConstitution and the element of discrimination liable to bedeclared unconstitutional as being violative of Art. 14 ?These and the related questions debated in this group ofpetitions call for an answer in the backdrop of a welfareState and bearing in mind that pension is a socio-economicjustice measure providing relief when advancing agegradually but irrevocably impairs capacity to stand on one’sown feet. Factual matrix has little relevance to the issuesraised and canvassed at the hearing. Petitioners 1 and 2 areretired pensioners of the Central Government, the firstbeing a civil servant and the second being a member of theservice personnel of the Armed Forces. The third petitioneris a society registered under the Societies RegistrationAct, 1860, formed to ventilate the legitimate publicproblems and consistent with its objective it is espousingthe cause of the pensioners all over the country. Its locusstandi is in question but that is a different matter. Thefirst petitioner retired in 1972 and on computation, hispension worked out at Rs. 675/- p.m. and along with thedearness relief granted from time to time, at the relevanttime he was in receipt of monthly pension of Rs. 935/-. Thesecond petitioner retired at or about that time and at therelevant time was in receipt of a pension plus dearnessrelief of Rs. 981/- p.m. Union of India has been revisingand liberalising the pension rules from time to time. Somelandmark changes may be noticed. The First Central Pay Commission (1946-47) recommendedthat the age of retirement in future should be uniformly 58years for all services and the scale of pension should be1/80 of the emoluments for each year of service, subject toa limit of 35/80 with173a ceiling of Rs. 8,000 per year for 35 years of service,which the Government of India while accepting therecommendation raised to Rs. 8,100 per year which would earna monthly pension of Rs. 675 at the maximum. The SecondCentral Pay Commission (1957-58) re-affirmed that the age ofsuperannuation should be 58 years for all classes of public


servants but did not recommend any increase in the non-contributory retirement benefits and recommended that if infuture any improvement is to be made, it was the consideredview of the Commission that these benefits should be on acontributory basis. The Administrative Reforms Commission(’ARC’ for short) set up by the Government of India in 1956took note of the fact that the cost of living has shot upand correspondingly the possibility of savings has gone downand consequently the drop in wages on retirement is inreality much steeper than what the quantum of pension wouldindicate, and accordingly the ARC recommended that thequantum of pension admissible may be raised to 3/6 of theemoluments of the last three years of service as against theexisting 3/8 and the ceiling should be raised from Rs. 675p.m. to Rs. 1000 p.m. Before the Government could take itsdecision on the recommendations of the ARC, the ThirdCentral Pay Commission was set up. One of the terms ofreference of the Third Pay Commission was ’death-cum-retirement benefits of Central Government employees’. TheThird Pay Commission did not examine the question of reliefto pensioners because in its view unless the terms ofreference were suitably amended it would not be within theirjurisdiction to examine this question and on a reference bythem, the Government of India decided not to amend the termsof reference. With regard to the future pensioners the ThirdPay Commission while reiterating that the age ofsuperannuation should continue to be 58 years furtherrecommended that no change in the existing formula forcomputing pension is considered necessary. The onlyimportant recommendation worth noticing is that theCommission recommended that the existing ceiling of maximumpension should be raised from Rs. 675 to Rs. 1,000 p.m. andthe maximum of the gratuity should be raised from Rs. 24,000to Rs. 30,000. On May 25, 1979, Government of India, Ministry ofFinance, issued Office Memorandum No. F-19(3)-EV-79 wherebythe formula for computation of pension was liberalised butmade it applicable to Government servants who were inservice on March 31, 1979 and retire from service on orafter that date (specified date for short). The formulaintroduced a slab system for computation of174pension. This liberalised pension formula was applicable toemployees governed by the 1972 Rules retiring on or afterthe specified date. The pension for the service personnelwhich will include Army, Navy and Air Force staff isgoverned by the relevant regulations. By the Memorandum ofthe Ministry of Defence bearing No. B/40725/AG/PS4-C/1816/AD(Pension)/Services dated September 28, 1979, the liberalisedpension formula introduced for the government servantsgoverned by the 1972 rules was extended to the Armed Forcespersonnel subject to limitations set out in the memorandumwith a condition that the new rules of pension would beeffective from April 1, 1979, and may be applicable to allservice officers who become/became non-effective on or afterthat date. (for short specified date). The chronology of events herein narrated would bring tosurface the contentions raised in these petitions. Theliberalised pension formula shall be applicableprospectively to those who retired on or after March 31,1979 in case of government servants covered by 1972 Rulesand in respect of defence personnel those who became/becomenon-effective on or after April 1, 1979. Consequently thosewho retired prior to the specified date would not beentitled to the benefits of the liberalised pension formula.


Petitioners accordingly contend that this Court mayconsider the raison d’etre for payment of pension. If thePension is paid for past satisfactory service rendered, andto avoid destitution in old age as well as a social welfareor socio-economic justice measure, the differentialtreatment for those retiring prior to a certain date andthose retiring subsequently, the choice of the date beingwholly arbitrary, would be according differential treatmentto pensioners who form a class irrespective of the date ofretirement and, therefore, would be violative of Art. 14. Itwas also contended that classification based on fortuitouscircumstance of retirement before or subsequent to a date,fixing of which is not shown to be related to any rationalprinciple, would be equally violative of Art. 14. Primary contention is that the pensioners of theCentral Government form a class for purpose of pensionarybenefits and there could not be mini-classification withinthe class designated as pensioners. The expression’pensioner’ is generally understood in contra-distinction tothe one in service. Government servants in service, in otherwords, those who have not retired, are entitled to175salary and other allowances. Those who retire and aredesignated as ’pensioners’ are entitled to receive pensionunder the relevant rules. Therefore, this would clearlyindicate that those who render service and retire onsuperannuation or any other mode of retirement and are inreceipt of pension are comprehended in the expression’pensioners’. Is this class of pensioners further divisible for thepurpose of ’entitlement’ and ’payment’ of pension into thosewho retired by certain date and those who retired after thatdate ? If date of retirement can be accepted as a validcriterion for classification, on retirement each individualgovernment servant would form a class by himself because thedate of retirement of each is correlated to his birth dateand on attaining a certain age he had to retire. It is onlyafter the recommendations of the Third Central PayCommission were accepted by the Government of India that theretirement dates have been specified to be 12 in numberbeing last day of each month in which the birth date of theindividual government servant happens to fall. In otherwords, all government servants who retire correlated tobirth date on attaining the age of superannuation in a givenmonth shall not retire on that date but shall retire on thelast day of the month. Now, if date of retirement is a validcriterion for classification, those who retire at the end ofevery month shall form a class by themselves. This is toomicroscopic a classification to be upheld for any validpurpose. Is it permissible or is it violative of Art. 14 ? The scope, content and meaning of Article 14 of theConstitution has been the subject-matter of intensiveexamination by this Court in a catena of decisions. Itwould, therefore, be merely adding to the length of thisjudgment to recapitulate all those decisions and it isbetter to avoid that exercise save and except referring tothe latest decision on the subject in Maneka Gandhi v. Unionof India(1) from which the following observation may beextracted: "...... 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


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. 14forbids class legislation, it does not forbid reasonableclassification for the purpose of legislation. In order,however, to pass the test of permissible classification, twoconditions must be fulfilled, viz., (i) that theclassification must be founded on an intelligibledifferentia which distinguishes persons or things that aregrouped together from those that are left out of the group;and (ii) that differentia must have a rational relation tothe objects sought to be achieved by the statute inquestion. (see Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar & Others.(1) The classification may be founded ondifferential basis according to objects sought to beachieved but what is implicit in it is that there ought tobe a nexus i.e., causal connection between the basis ofclassification and object of the statute underconsideration. It is equally well settled by the decisionsof this Court that Art. 14 condemns discrimination not onlyby a substantive law but also by a law of procedure. After an exhaustive review of almost all decisionsbearing on the question of Art. 14, this Court speakingthrough Chandrachud, C.J. in Re. Special Courts Bill (2)restated the settled propositions which emerged from thejudgments of this Court undoubtedly insofar as they wererelevant to the decision on the points arising forconsideration in that matter. Four of them are apt andrelevant for the present purpose and may be extracted. Theyare: "3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable177 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


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 isthat it eschews arbitrariness in any form. Article 14 has,therefore, not178to be held identical with the doctrine of classification. Aswas noticed in Maneka Gandhi’s case in the earliest stagesof evolution of the Constitutional law, Art. 14 came to beidentified with the doctrine of classification because theview taken was that Art. 14 forbids discrimination and therewill be no discrimination where the classification makingthe differentia fulfils the aforementioned two conditions.However, in EP. Royappa v. State of Tamil Nadu(1), it washeld that the basic principle which informs both Arts. 14and 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 ConstitutionBench in Ajay Hasia etc. v. Khalid Mujib Sehravardi & othersetc. (3) held


179that it must, therefore, now be taken to be well settledthat what Art.14 strikes at is arbitrariness because anyaction that is arbitrary must necessarily involve negationof equality. The Court made it explicit that where an act isarbitrary it is implicit in it that it is unequal bothaccording to political logic and constitutional law and is,therefore, violative of Art. 14. After a review of largenumber of decisions bearing on the subject, in Air Indiaetc. etc. v. Nargesh Meerza & Ors. etc etc. (1) the Courtformulated propositions emerging from analysis andexamination of earlier decisions. One such proposition heldwell established is that Art. 14 is certainly attractedwhere equals are treated differently without any reasonablebasis. Thus the fundamental principle is that Art. 14 forbidsclass legislation but permits reasonable classification forthe purpose of legislation which classification must satisfythe twin tests of classification being founded on anintelligible differntia which distinguishes persons orthings that are grouped together from those that are leftout of the group and that differentia must have a rationalnexus to the object sought to be achieved by the statute inquestion. As a corrolary to this well established proposition,the next question is, on whom the burden lies toaffirmatively establish the rational principle on which theclassification is founded correlated to the object sought tobe achieved ? The thrust of Art. 14 is that the citizen isentitled to equality before law and equal protection oflaws. In the very nature of things the society beingcomposed of unequals a welfare state will have to strive byboth executive and legislative action to help the lessfortunate in the society to ameliorate their condition sothat the social and economic inequality in the society maybe bridged. This would necessitate a legislation applicableto a group of citizens otherwise unequal and amelioration ofwhose lot is the object of state affirmative action. In theabsence of doctrine of classification such legislation islikely to flounder on the bed rock of equality enshrined inArt. 14. The court realistically appraising the socialstratification and economic inequality and keeping in viewthe guidelines on which the State action must move asconstitutionally laid down in part IV of the Constitution,evolved the doctrine of classification. The doctrine wasevolved to sustain a legislation or State action designed tohelp weaker sections of the society or some180such segments of the society in need of succor. Legislativeand executive action may accordingly be sustained if itsatisfies the twin tests of reasonable classification andthe rational principle correlated to the object sought to beachieved. The State, therefore, would have to affirmativelysatisfy the Court that the twin tests have been satisfied.It can only be satisfied if the State establishes not onlythe rational principle on which classification is foundedbut correlate it to the objects sought to be achieved. Thisapproach is noticed in Ramana Dayaram Shetty v. TheInternational Airport Authority of India & Ors.(1) when atpage 1034, the Court observed that a discriminatory actionof the Government is liable to be struck down, unless it canbe shown by the Government that the departure was notarbitrary, but was based on some valid principle which initself was not irrational, unreasonable or discriminatory. The basic contention as hereinbefore noticed is that


the pensioners for the purpose of receiving pension form aclass and there is no criterion on which classification ofpensioners retiring prior to specified date and retiringsubsequent to that date can provide a rational principlecorrelated to object, viz., object underlying payment ofpensions. In reply to this contention set out in para 19 ofthe petition, Mr. S.N. Mathur, Director, Ministry of Financein part 17 of his affidavit-in-opposition on behalf of therespondents 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 actionis sought to be sustained on the doctrine of classificationand the criterion on which the classification is sought tobe sustained is the date of retirement of the Governmentservant which entitled him to pension. Thus according to therespondents, pensioners who retire from Central Governmentservice and are governed by the relevant pension rules alldo not form a class but pensioners who retire prior to acertain date and those who retire subsequent to a certaindate form distinct and separate classes. It may be madeclear that the date of retirement of each individual181pensioner is not suggested as a criterion for classificationas that would lead to an absurd result, because in thatevent every pensioner relevant to his date of retirementwill form a class unto himself. What is suggested is thatwhen a pension scheme undergoes a revision and is enforcedeffective form a certain date, the date so specified becomesa sort of a Rubicon and those who retire prior to that dateform one class and those who retire on a subsequent dateform a distinct and separate class and no one can cross theRubicon. And the learned Attorney General contended thatthis differentiation is grounded on a rational principle andit has a direct correlation to the object sought to beachieved by liberalised pension formula. The approach of the respondents raises a vital and nonetoo easy of answer, question as to why pension is paid. Andwhy was it required to be liberalised ? Is the employer,which expression will include even the State, bound to paypension ? Is there any obligation on the employer to providefor the erstwhile employee even after the contract ofemployment has come to an end and the employee has ceased torender 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 thwartedby such artificial division of retirement pre and post acertain date ? We need seek answer to these and incidentalquestions so as to render just justice between parties tothis petition. The antiquated notion of pension being a bounty agratituous payment depending upon the sweet will or grace ofthe employer not claimable as a right and, therefore, noright to pension can be enforced through Court has beenswept under the carpet by the decision of the ConstitutionBench in Deoki Nandan Prasad v. State of Bihar & Ors. (1)wherein this Court authoritatively ruled that pension is aright and the payment of it does not depend upon thediscretion of the Government but is governed by the rulesand a Government servant coming within those rules is


entitled to claim pension. It was further held that thegrant of pension does not depend upon any one’s discretion.It is only for the purpose of182quantifying the amount having regard to service and otherallied matters that it may be necessary for the authority topass an order to that effect but the right to receivepension flows to the officer not because of any such orderbut by virtue of the rules. This view was reaffirmed inState of Punjab & Anr. v. Iqbal Singh (1). There are various kinds of pensions and there areequally various methods of funding pension programmes. Thepresent enquiry is limited to non-contributorysuperannuation or retirement pension paid by Government toits erstwhile employee and the purpose and object underlyingit. Initially this class of pension appears to have beenintroduced as a reward for loyal service. Probably the alienrulers who recruited employees in lower echelons of servicefrom the colony and exported higher level employees from theseat of Empire, wanted to ensure in the case of formercontinued loyalty till death to the alien rulers and in thecase of latter, an assured decent living standard in old ageensuring economic security at the cost of the colony. In the course of transformation of society from feudalto welfare and as socialistic thinking acquiredrespectability, State obligation to provide security in oldage, an escape from undeserved want was recognised and as afirst step pension was treated not only as a reward for pastservice but with a view to helping the employee to avoiddestitution in old age. The quid pro quo, was that when theemployee was physically and mentally alert he rendered untomaster the best, expecting him to look after him in the fallof life. A retirement system therefore exists solely for thepurpose of providing benefits. In most of the plans ofretirement benefits, everyone who qualifies for normalretirement receives the same amount. (see Retirement Systemsfor Public Employees by Bleakney, page 33.) As the present case is concerned with superannuationpension, a brief history of its initial introduction inearly stages and continued existence till today may beilluminating. Superannuation is the most descriptive word ofall but has become obsolescent because it seems ponderous.Its genesis can be traced to the first Act of Parliament (inU.K.) to be concerned with the provision of pensionsgenerally in public offices. It was passed in 1810. The183Act which substantively devoted itself exclusively to theproblem of superannuation pension was superannuation Act of1834. These are landmarks in pension history because theyattempted for the first time to establish a comprehensiveand uniform scheme for all whom we may now call civilservants. Even before the 19th century, the problem ofproviding for public servants who are unable, through oldage or incapacity, to continue working, has been recognised,but methods of dealing with the problem varied from societyto society and even occasionally from department todepartment. A political society which has a goal of setting up of awelfare State, would introduce and has in fact introduced asa welfare measure wherein the retiral benefit is grounded on’considerations of State obligation to its citizens whohaving rendered service during the useful span of life mustnot be left to penury in their old age, but the evolvingconcept of social security is a later day development’. Andthis journey was over a rough terrain. To note only one


stage in 1856 a Royal Commission was set up to considerwhether any changes were necessary in the system establishedby the 1834 Act. The Report of the Commission is known as"Northcote-Trevelyan Report". The Report was pungent in itscriticism when it says that: "in civil services comparableto lightness of work and the certainty of provision in caseof retirement owing to bodily incapacity, furnish stronginducements to the parents and friends of sickly youths toendeavour to obtain for them employment in the service ofthe Government, and the extent to which the public areconsequently burdened; first with the salaries of officerswho are obliged to absent themselves from their duties onaccount of ill health, and afterwards with their pensionswhen they retire on the same plea, would hardly be creditedby those who have not had opportunities of observing theoperation of the system" (see Gerald Rhodes, Public SectorPensions, pp. 18-19). This approach is utterly unfair because in modern timespublic services are manned by those who enter at acomparatively very young age, with selection throughnational competitive examination and ordinarily the besttalent gets the opportunity. Let us therefore examine what are the goals thatpension scheme seeks to subserve ? A pension schemeconsistent with available resources must provide that thepensioner would be able to live: (i) free from want, withdecency, independence and self-respect,184and (ii) at a standard equivalent at the pre-retirementlevel. This approach may merit the criticism that if adeveloping country like India cannot provide an employeewhile rendering service a living wage, how can one beassured of it in retirement ? This can be aptly illustratedby a small illustration. A man with a broken arm asked hisdoctor whether he will be able to play the piano after thecast is removed. When assured that he will, the patientreplied, ’that is funny, I could not before’. It appearsthat determining the minimum amount required for livingdecently is difficult, selecting the percentage representingthe proper ratio between earnings and the retirement incomeis harder. But it is imperative to note that as self-sufficiency declines the need for his attendance orinstitutional care grows. Many are literally surviving nowthan in the past. We owe it to them and ourselves that theylive, not merely exist. The philosophy prevailing in a givensociety at various stages of its development profoundlyinfluences its social objectives. These objectives are inturn a determinant of a social policy. The law is one of thechief instruments whereby the social policies areimplemented and ’pension is paid according to rules whichcan be said to provide social security law by which it ismeant those legal mechanisms primarily concerned to ensurethe provision for the individual of a cash income adequate,when taken along with the benefits in kind provided by othersocial services (such as free medical aid) to ensure for hima culturally acceptable minimum standard of living when thenormal means of doing so failed’. (see Social Security lawby Prof. Harry Calvert, p. 1). Viewed in the light of the present day notions pensionis a term applied to periodic money payments to a person whoretires at a certain age considered age of disability;payments usually continue for the rest of the natural lifeof the recipient. The reasons underlying the grant ofpension vary from country to country and from scheme toscheme. But broadly stated they are (i) as compensation to


former members of the armed forces or their dependents forold age, disability, or death (usually from service causes),(ii) as old age retirement or disability benefits forcivilian employees, and (iii) as social security paymentsfor the aged, disabled, or deceased citizens made inaccordance with the rules governing social serviceprogrammes of the country. Pensions under the first head areof great antiquity. Under the second head they have been inforce in one form or another in some countries for over acentury but those coming under the third head are relativelyof recent origin, though they are of the greatest185magnitude. There are other views about pensions such ascharity, paternalism, deferred pay, rewards for servicerendered, or as a means or promoting general welfare (seeEncyclopaedia Britannica, Vol. 17 p.575.) But these viewshave become otiose. Pension to civil employees of the Government and thedefence personnel as administered in India appear to be acompensation for service rendered in the past. However, asheld in Douge v. Board of Education(1) a pension is closelyakin to wages in that it consists of payment provided by anemployer, is paid in consideration of past service andserves the purpose of helping the recipient meet theexpenses of living. This appears to be the nearest to ourapproach to pension with the added qualification that itshould ordinarily ensure freedom from undeserved want. Summing-up it can be said with confidence that pensionis not only compensation for loyal service rendered in thepast, but pension also has a broader significance, in thatit is a measure of socio-economic justice which inhereseconomic security in the fall of life when physical andmental prowess is ebbing corresponding to aging process andtherefore, one is required to fall back on savings. One suchsaving in kind is when you gave your best in the hey-day oflife to your employer, in days of invalidity, economicsecurity by way of periodical payment is assured. The termhas been judicially defined as a stated allowance or stipendmade in consideration of past service or a surrender ofrights or emoluments to one retired from service. Thus thepension payable to a Government employee is earned byrendering long and efficient service and therefore can besaid to be a deferred portion of the compensation or forservice rendered. In one sentence one can say that the mostpractical raison d’etre for pension is the inability toprovide for oneself due to old age. One may live and avoidunemployment but not senility and penury if there is nothingto fall back upon. The discernible purpose thus underlying pension schemeor a statute introducing the pension scheme must informinterpretative process and accordingly it should receive aliberal construction and the courts may not so interpretsuch statute as to render them inane (see AmericanJurisprudence 2d. 881).186 From the discussion three things emerge : (i) thatpension is neither a bounty nor a matter of grace dependingupon the sweet will of the employer and that it creates avested right subject to 1972 rules which are statutory incharacter because they are enacted in exercise of powersconferred by the proviso to Art. 309 and clause (5) of Art.148 of the Constitution ; (ii) that the pension is not anex-gratia payment but it is a payment for the past servicerendered ; and (iii) it is a social welfare measurerendering socio-economic justice to those who in the hey-day


of their life ceaselessly toiled for the employer on anassurance that in their old age they would not be left inlurch. It must also be noticed that the quantum of pensionis a certain percentage correlated to the average emolumentsdrawn during last three years of service reduced to tenmonths under liberalised pension scheme. Its payment isdependent upon an additional condition of impeccablebehaviour even subsequent to requirement, that is, since thecessation of the contract of service and that it can bereduced or withdrawn as a disciplinary measure. Having succinctly focussed our attention on theconspectus of elements and incidents of pension the mainquestion may now be tackled. But, the approach of courtwhile considering such measure is of paramount importance.Since the advent of the Constitution, the state action mustbe directed towards attaining the goals set out in Part IVof the Constitution which, when achieved, would permit us toclaim that we have set up a welfare State. Article 38 (1)enjoins the State to strive to promote welfare of the peopleby securing and protecting as effective as it may a socialorder in which justice social, economic and political shallinform all institutions of the national life. In particularthe State shall strive to minimise the inequalities inincome and endeavour to eliminate inequalities in status,facilities and opportunities. Art. 39 (d) enjoins a duty tosee that there is equal pay for equal work for both men andwomen and this directive should be understood andinterpreted in the light of the judgment of this Court inRandhir Singh v. Union of India & Ors.(1) Revealing thescope and content of this facet of equality, ChinnappaReddy, 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 allrelevant considerations are the same, persons holdingidentical posts may not be treated differently in the matterof their pay merely because they belong to differentdepartments. If that can’t be done when they are in service,can that be done during their retirement? Expanding thisprinciple, one can confidently say that if pensioners form aclass, their computation cannot be by different formulaaffording unequal treatment solely on the ground that someretired earlier and some retired later. Art. 39 (e) requiresthe State to secure that the health and strength of workers,men and women, and children of tender age are not abused andthat citizens are not forced by economic necessity to enteravocations unsuited to their age or strength. Art. 41obligates the State within the limits of its economiccapacity and development, to make effective provision forsecuring the right to work, to education and to provideassistance in cases of unemployment, old age, sickness anddisablement, and in other cases of undeserved want. Art. 43(3) requires the State to endeavour to secure amongst otherthings full enjoyment of leisure and social and culturalopportunities. Recall at this stage the Preamble, the flood light


illuminating the path to be pursued by the State to set up aSovereign Socialist Secular Democratic Republic. Expression’socialist’ was intentionally introduced in the Preamble bythe Constitution (Forty-Second Amendment) Act, 1976. In theobjects and reasons for amendment amongst other things,ushering in of socio-economic revolution was promised. Theclarion 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 muchmisunderstood word. Values determine contemporary socialismpure and simple. But it is not necessary at this stage to gointo all its ramifications. The principal aim of a socialistState is to eliminate inequality in income and status andstandards of life. The basic framework of socialism is toprovide a decent standard of life to the working people andespecially provide security from cradle to grave. Thisamongst others on economic side envisaged economic equalityand equitable distribution of income. This is a blend ofMarxism and Gandhism leaning heavily towards Gandhiansocialism. During the formative years, socialism aims atproviding all opportunities for pursuing the educationalactivity. For want of wherewithal or financial equipment theopportunity to be fully educated shall not be denied.Ordinarily, therefore, a socialist State provides for freeeducation from primary to Ph. D. but the pursuit must be bythose who have the necessary intelligence quotient and notas in our society where a brainy young man coming from apoor family will not be able to prosecute the education forwant of wherewithal while the ill-equipped son or daughterof a well-to-do father will enter the portals of highereducation and contribute to national wastage. After theeducation is completed, socialism aims at equality inpursuit of excellence in the chosen avocation without let orhindrance of caste, colour, sex or religion and with fullopportunity to reach the top not thwarted by anyconsiderations of status, social or otherwise. But even herethe less equipped person shall be assured a decent minimumstandard of life and exploitation in any form shall beeschewed. There will be equitable distribution of nationalcake and the worst off shall be treated in such a manner asto push them up the ladder. Then comes the old age in thelife of everyone, be he a monarch or a Mahatma, a worker ora pariah. The old age overtakes each one, death being thefulfilment of life providing freedom from bondage. But theresocialism aims at providing an economic security to thosewho have rendered unto society what they were capable ofdoing when they were fully equipped with their mental andphysical prowess. In the fall of life the State shall ensureto the citizens a reasonably decent standard of life,medical aid, freedom from want, freedom from fear and theenjoyable leisure,189relieving the boredom and the humility of dependence in oldage. This is what Art. 41 aims when it enjoins the State to


secure public assistance in old age, sickness anddisablement. It was such a socialist State which thePreamble directs the centres of power Legislative Executiveand Judiciary-to strive to set up. From a wholly feudalexploited slave society to a vibrant, throbbing socialistwelfare society is a long march but during this journey tothe fulfilment of goal every State action whenever takenmust be directed, and must be so interpreted, as to take thesociety one step towards the goal. To some extent this approach will find support in thejudgment 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 rightsare not an end in themselves but are the means to an end,the end is specified in part IV. Bhagwati, J. in hisminority judgment after extracting a portion of the speechof the then Prime Minister Jawahar Lal Nehru, whileparticipating in a discussion on the Constitution (FirstAmendment) Bill, observed that the Directive Principles areintended to bring about a socio-economic revolution and tocreate a new socio-economic order where there will be socialand economic justice for all and everyone, not only afortunate few but the teeming millions of India, would beable to participate in the fruits of freedom and developmentand exercise the fundamental rights. It, therefore, appearsto be well established that while interpreting or examiningthe constitutional validity of legislative/administrativeaction, the touchstone of Directive Principles of StatePolicy in the light of the Preamble will provide a reliableyardstick to hold one way or the other.190 With this background let us now turn to the challengeposed in these petitions. The challenge is not to thevalidity of the pension liberalisation scheme. The scheme iswholly acceptable to the petitioners, nay they are ardentsupporters of it, nay further they seek the benefit of it.The petitioners challenge only that part of the scheme bywhich its benefits are admissible to those who retired fromservice after a certain date. In other words, they challengethat the scheme must be uniformly enforced with regard toall pensioners for the purpose of computation of pensionirrespective of the date when the Government servant retiredsubject to the only condition that he was governed by the1972 Rules. No doubt, the benefit of the scheme will beavailable from the specified date, irrespective of the factwhen the concerned Government servant actually retired fromservice. Having set out clearly the society which we propose toset up, the direction in which the State action must move,the welfare State which we propose to build up, theconstitutional goal of setting up a socialist State and theassurance in the Directive Principles of State Policyespecially of security in old age at least to those who haverendered useful service during their active years, it isindisputable, nor was it questioned, that pension as a


retirement benefit is in consonance with and furtherance ofthe goals of the Constitution. The goals for which pensionis paid themselves give a fillip and push to the policy ofsetting up a welfare State because by pension the socialistgoal of security of cradle to grave is assured at least whenit is mostly needed and least available, namely, in the fallof life. If such be the goals of pension, if such be the welfareState which we propose to set up, if such be the goals ofsocialism and conceding that any welfare measure mayconsistent with economic capacity of the State beprogressively augmented with wider width and a longercanvass yet when the economic means permit the augmentation,should some be left out for the sole reason that while inthe formative years of the nascent State they contributedtheir mite but when the fruits of their labour led to theflowering of economic development and higher gross nationalproduce bringing in larger revenue and therefore larger cakeis available, they would be denied any share of it ?Indisputably, viewed from any angle pensioners for paymentof pension form a class. Unquestionably pension is linked tolength of service and the last pay drawn but the last paydoes not imply the pay on the last day of retirement191but average emoluments as defined in the scheme. Earlieraverage emoluments of 36 months’ service provided themeasure of pension because the pension was related to theaverage emoluments during 36 months just precedingretirement. By the liberalised scheme it is now reduced toaverage emoluments of 10 months preceding the date. Any onein government service would appreciate at a glance that withan average of 10 months it would be on the higher side onaccount of the two fortuitous circumstances that the pay-scales, if one has not reached the maximum, permit annualincrements and there are promotions in the last one or twoyears. With a view to giving a higher average the scheme wasliberalised to provide for average emoluments with referenceto last 10 months’ service. Coupled with it, a slab systemfor computation is introduced and the ceiling is raised.This is liberalisation. Now, if the pensioners who retiredprior to the specified date and had to earn pension on theaverage emoluments of 36 months’ salary just preceding thedate of retirement, naturally the average would be lower andthey will be doubly hit because the slab system as nowintroduced was not available and the ceiling was at a lowerlevel. Thus they suffer triple jeopardy, viz., lower averageemoluments, absence of slab system and lower ceiling. What then is the purpose in prescribing the specifieddate vertically dividing the pensioners between those whoretired prior to the specified date and those who retiresubsequent to that date? That poses the further question,why was the pension scheme liberalised ? What necessitatedliberalisation of the pension scheme ? Both the impugned memoranda do not spell out the raisond’etre for liberalising the pension formula. In theaffidavit in opposition by Shri S.N. Mathur, it has beenstated that the liberalisation of pension of retiringGovernment servants was decided by the Government in view ofthe persistent demand of the Central Government employeesrepresented in the scheme of Joint Consultative Machinery.This would clearly imply that the preliberalised pensionscheme did not provide adequate protection in old age andthat a further liberalisation was necessary as a measure ofeconomic security. When Government favourably responded tothe demand it thereby ipso facto conceded that there was a


larger available national cake part of which could beutilised for providing higher security to erstwhilegovernment servants who would retire. The Government alsotook note of the192fact that continuous upward movement of the cost of livingindex as a sequel of inflationary inputs and diminishingpurchasing power of rupee necessitated upward revision ofpension. If this be the underlying intendment ofliberalisation of pension scheme, can any one be bold enoughto assert that it was good enough only for those who wouldretire subsequent to the specified date but those who hadalready retired did not suffer the pangs of rising pricesand falling purchasing power of the rupee ? What is the sumtotal of picture ? Earlier the scheme was not that liberalkeeping in view the definition of average emoluments and theabsence of slab system and a lower ceiling. Those whorendered the same service earned less pension and areexposed to the vagary of rising prices consequent upon theinflationary inputs. If therefore, those who are to retiresubsequent to the specified date would feel the pangs intheir old age, of lack of adequate security, by what stretchof imagination the same can be denied to those who retiredearlier with lower emoluments and yet are exposed to thevagaries of the rising prices and the falling purchasingpower of the rupee. And the greater misfortune is that theyare becoming older and older compared to those who would beretiring subsequent to the specified date. The Governmentwas perfectly justified in liberalising the pension scheme.In fact it was overdue. But we find no justification forarbitrarily selecting the criteria for eligibility for thebenefits of the scheme dividing the pensioners all of whomwould be retirees but falling on one or the other side ofthe specified date. Therefore, let us proceed to examine whether there wasany rationale behind the eligibility qualification. Thelearned Attorney-General contended that the scheme is onewhole and that the date is an integral part of the schemeand the Government would have never enforced the schemedevoid of the date and the date is not severable from thescheme as a whole. Contended the learned Attorney-Generalthat the Court does not take upon itself the function oflegislation for persons, things or situations omitted by thelegislature. It was said that when the legislature hasexpressly defined the class with clarity and precision towhich the legislation applies, it would be outside thejudicial function to enlarge the class and to do so is notto interpret but to legislate which is the forbidden field.Alternatively it was also contended that where a largerclass comprising two smaller classes is covered by alegislation of which one part is constitutional, the Courtexamines whether193the legislation must be invalidated as a whole or only inrespect of the unconstitutional part. It was also said thatseverance always cuts down the scope of legislation but cannever enlarge it and in the present case the scheme as itstands would not cover pensioners such as the petitionersand if by severance an attempt is made to include them inthe scheme it is not cutting down the class or the scope butenlarge the ambit of the scheme which is impermissible evenunder the doctrine of severability. In this context it waslastly submitted that there is not a single case in India orelsewhere where the Court has included some category withinthe scope of provisions of a law to maintain its


constitutionality. The last submission, the absence of precedent need notdeter us for a moment. Every new norm of socio economicjustice, every new measure of social justice commenced forthe first time at some point of history. If at that time itis rejected as being without a precedent, the law as aninstrument of social engineering would have long since beendead and no tears would have been shed. To be pragmatic isnot to be unconstitutional. In its onward march law as aninstitution ushers in socio-economic justice. In fact,social security in old age commended itself in earlierstages as a moral concept but in course of time it acquiredlegal contention. The rules of natural justice owed theirorigin to ethical and moral code. Is there any doubt thatthey have become the integral and inseparable parts of ruleof law of which any civilised society is proud ? Can anyonebe bold enough to assert that ethics and morality areoutside the field of legal formulations ? Socio-economicjustice stems from the concept of social morality coupledwith abhorrence for economic exploitation. And the advancingsociety converts in course of time moral or ethical codeinto enforceable legal formulations. Over-emphasis onprecedent furnishes an insurmountable road-block to theonward march towards promised millennium. An overdose ofprecedents is the bane of our system which is slowly gettingstagnant, stratified and atrophied. Therefore absence of aprecedent on this point need not deter us at all. We are allthe more happy for the chance of scribbling on a cleanslate. If it appears to be undisputable, as it does to us thatthe pensioners for the purpose of pension benefits form aclass, would its upward revision permit a homogeneous classto be divided by arbitrarily fixing an eligibility criteriaunrelated to purpose of revision, and would suchclassification be founded on some rational194principle ? The classification has to be based, as is wellsettled, on some rational principle and the rationalprinciple must have nexus to the objects sought to beachieved. We have set out the objects underlying the paymentof pension. If the State considered it necessary toliberalise the pension scheme, we find no rational principlebehind it for granting these benefits only to those whoretired subsequent to that date simultaneously denying thesame to those who retired prior to that date. If theliberalisation was considered necessary for augmentingsocial security in old age to government servants then thosewho retired earlier cannot be worst off than those whoretire later. Therefore, this division which classifiedpensioners into two classes is not based on any rationalprinciple and if the rational principle is the one ofdividing pensioners with a view to giving something more topersons otherwise equally placed, it would bediscriminatory. To illustrate, take two persons, one retiredjust a day prior and another a day just succeeding thespecified date. Both were in the same pay bracket, theaverage emolument was the same and both had put in equalnumber of years of service. How does a fortuitouscircumstance of retiring a day earlier or a day later willpermit totally unequal treatment in the matter of pension ?One retiring a day earlier will have to be subject toceiling of Rs. 8,100 p a. and average emolument to be workedout on 36 months’ salary while the other will have a ceilingof Rs. 12,000 p.a. and average emolument will be computed onthe basis of last ten months average. The artificial


division stares into face and is unrelated to any principleand whatever principle, if there be any, has absolutely nonexus to the objects sought to be achieved by liberalisingthe pension scheme. In fact this arbitrary division has notonly no nexus to the liberalised pension scheme but it iscounter productive and runs counter to the whole gamut ofpension scheme. The equal treatment guaranteed in Art. 14 iswholly violated inasmuch as the pension rules beingstatutory in character, since the specified date, the rulesaccord differential and discriminatory treatment to equalsin the matter of commutation of pension. A 48 hoursdifference in matter of retirement would have a traumaticeffect. Division is thus both arbitrary and unprincipled.Therefore the classification does not stand the test of Art.14. Further the classification is wholly arbitrary becausewe do not find a single acceptable or persuasive reason forthis division. This arbitrary action violated the guaranteeof Art. 14. The next question is what is the way you ?195 The learned Attorney-General contended that the schemeis to be taken as a whole or rejected as a whole and thedate from which it came into force is an integral andinseparable part of the scheme. The two sub-limbs of thesubmissions were that, (i) the Court cannot make a schemehaving financial implications retroactive, and (ii) thisCourt cannot grant any relief to the pensioners who retiredprior to a specified date because if more persons divide theavailable cake, the residue falling to the share of eachespecially to those who are likely to be benefited by thescheme will be comparatively smaller and as they are notbefore the Court, no relief can be given to the pensioners. Let us clear one misconception. The pension schemeincluding the liberalised scheme available to the Governmentemployees is non-contributory in character. It was notpointed out that there is something like a pension fund. Itis recognised as an item of expenditure and it is budgetedand voted every year. At any given point of time there is nofixed or predetermined pension fund which is divided amongsteligible pensioners. There is no artificially created fundor reservoir from which pensioners draw pension within thelimits of the fund, the share of each being extensive withthe available fund. The payment of pension is a statutoryliability undertaken by the Government and whatever becomesdue and payable is budgeted for. One could have appreciatedthis line of reasoning where there is a contributory schemeand a pension fund from which alone pension is disbursed.That being not the case, there is no question of pensionersdividing the pension fund which, if more persons areadmitted to the scheme, would pro rata affect the share.Therefore, there is no question of dividing the pensionfund. Pension is a liability incurred and has to be providedfor in the budget. Therefore, the argument of divisions of acake, larger the number of sharers, smaller the share andabsence of residue and therefore by augmentation ofbeneficiaries, pro rata share is likely to be affected andtheir absence making relief impermissible, is an argumentborn of desperation, and is without merits and must berejected as untenable. By our approach, are we making the scheme retroactive ?The answer is emphatically in the negative. Take agovernment servant who retired on April 1, 1979. He would begoverned by the liberalised pension scheme. By that time hehad put in qualifying service of 35 years. His length ofservice is a


196relevant factor for computation of pension. Has theGovernment made it retroactive, 35 years backward comparedto the case of a Government servant who retired on 30thMarch, 1979 ? Concept of qualifying service takes note oflength of service, and pension quantum is correlated toqualifying service. Is it retroactive for 35 years for oneand not retroactive for a person who retired two daysearlier ? It must be remembered that pension is relatable toqualifying service. It has correlation to the averageemoluments and the length of service. Any liberalisationwould pro tanto be retroactive in the narrow sense of theterm. Otherwise it is always prospective. A statute is notproperly called a retroactive statute because a part of therequisites for its action is drawn from a time antecedent toits passing. (see Craies on Statute Law, sixth edition, p.387). Assuming the Government had not prescribed thespecified date and thereby provided that those retiring preand post the specified date would all be governed by theliberalised pension scheme, undoubtedly, it would be bothprospective and retroactive. Only the pension will have tobe recomputed in the light of the formula enacted in theliberalised pension scheme and effective from the date therevised scheme comes into force. And beware that it is not anew scheme, it is only a revision of existing scheme. It isnot a new retiral benefit. It is an upward revision of anexisting benefit. If it was a wholly new concept, a newretiral benefit, one could have appreciated an argument thatthose who had already retired could not expect it. It couldhave been urged that it is an incentive to attract the freshrecruits. Pension is a reward for past service. It isundoubtedly a condition of service but not an incentive toattract new entrants because if it was to be available tonew entrants only, it would be prospective at such distanceof thirty-five years since its introduction. But it coversall those in service who entered thirty-five years back.Pension is thus not an incentive but a reward for pastservice. And a revision of an existing benefit stands on adifferent footing than a new retiral benefit. And even incase of new retiral benefit of gratuity under the Payment ofGratuity Act, 1972 past service was taken intoconsideration. Recall at this stage the method adopted whenpay-scales are revised. Revised pay-scales are introducedfrom a certain date. All existing employees are brought onto the revised scales by adopting a theory of fitments andincrements for past service. In other words, benefit ofrevised scale is not limited to those who enter servicesubsequent to the date fixed for introducing revised scalesbut the benefit is extended to all those in service prior tothat date. This is just and fair. Now197if pension as we view it, is some kind of retirement wagesfor past service, can it be denied to those who retiredearlier, revised retirement benefits being available tofuture retirees only ? Therefore, there is no substance inthe contention that the court by its approach would bemaking the scheme retroactive, because it is implicit intheory of wages. That takes us to the last important contention of thelearned Attorney General. It was urged that the date fromwhich the scheme becomes operative is an integral part ofthe scheme and the doctrine of severability cannot beinvoked. In other words, it was urged that date cannot besevered from the main object of the scheme because theGovernment would have never offered the scheme unless the


date was an integral part of it. Undoubtedly when an upwardrevision is introduced, a date from which it becomeseffective has to be provided. It is the event of retirementsubsequent to the specified date which introducesdiscrimination in one otherwise homogeneous class ofpensioners. This arbitrary selection of the happening ofevent subsequent to specified date denies equality oftreatment to persons belonging to the same class, somepreferred and some omitted. Is this eligibilityqualification severable ? It was very seriously contended, remove the eventcorrelated to date and examine whether the scheme isworkable. We find no difficulty in implementing the schemeomitting the event happening after the specified dateretaining the more humane formula for computation ofpension. It would apply to all existing pensioners andfuture pensioners. In the case of existing pensioners, thepension will have to be recomputed by applying the rule ofaverage emoluments as set out in Rule 34 and introducing theslab system and the amount worked out within the floor andthe ceiling. But we make it abundantly clear that arrears are notrequired to be made because to that extent the scheme isprospective. All pensioners whenever they retired would becovered by the liberalised pension scheme, because thescheme is a scheme for payment of pension to a pensionergoverned by 1972 Rules. The date of retirement isirrelevant. But the revised scheme would be operative fromthe date mentioned in the scheme and would bring under itsumbrella all existing pensioners and those who retiredsubsequent to that date. In case of pensioners who retiredprior to the specified date, their pension would be computedafresh and198would be payable in future commencing from the specifieddate. No arrears would be payable. And that would take careof the grievance of retrospectivity. In our opinion, itwould make a marginal difference in the case of pastpensioners because the emoluments are not revised. The lastrevision of emoluments was as per the recommendation of theThird Pay commission (Raghubar Dayal Commission). If theemoluments remain the same, the computation of averageemoluments under amended Rule 34 may raise the averageemoluments, the period for averaging being reduced from last36 months to last 10 months. The slab will provide slightlyhigher pension and if someone reaches the maximum the oldlower ceiling will not deny him what is otherwise justly dueon computation. The words "who were in service on 31stMarch, 1979 and retiring from service on or after the date"excluding the date for commencement of revision are words oflimitation introducing the mischief and are vulnerable asdenying equality and introducing an arbitrary fortuitouscircumstance can be severed without impairing the formula.Therefore, there is absolutely no difficulty in removing thearbitrary and discriminatory portion of the scheme and itcan be easily severed. There is nothing immutable about the choosing of anevent as an eligibility criteria subsequent to a specifieddate. If the event is certain but its occurrence at a pointof time is considered wholly irrelevant and arbitrarilyselected having no rationale for selecting it and having anundesirable effect of dividing homogeneous class and ofintroducing the discrimination, the same can be easilysevered and set aside. While examining the case under Art.14, the approach is not: ’either take it or leave it’, the


approach is removal of arbitrariness and if that can bebrought about by severing the mischievous portion the courtought to remove the discriminatory part retaining thebeneficial portion. The pensioners do not challenge theliberalised pension scheme. They seek the benefit of it.Their grievance is of the denial to them of the same byarbitrary introduction of words of limitation and we find nodifficulty in severing and quashing the same. This approachcan be legitimised on the ground that every Governmentservant retires. State grants upward revision of pensionundoubtedly from a date. Event has occurred revision hasbeen earned. Date is merely to avoid payment of arrearswhich may impose a heavy burden. If the date is whollyremoved, revised pensions will have to be paid from theactual date of retirement of each pensioner. That isimpermissible. The State199cannot be burdened with arrears commencing from the date ofretirement of each pensioner. But effective from thespecified date future pension of earlier retired Governmentservants can be computed and paid on the analogy of fitmentsin revised pay-scales becoming prospectively operative. Thatremoves the nefarious unconstitutional part and retains thebeneficial portion. It does not adversely affect futurepensioners and their presence in the petitions becomesirrelevant. But before we do so, we must look into thereasons assigned for eligibility criteria, namely, ’inservice on the specified date and retiring after that date’.The only reason we could find in affidavit of Shri Mathur isthe 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 relevantand valid considerations and waited for the answer in vain.We say so because in the written submissions filed on behalfof the Union of India, we find not a single valid orrelevant consideration much less any consideration relevantto selection of eligibility criteria. The tenor is "weselect the date and it is unquestionable; either take it orleave it as a whole". The only submission was that the dateis not severable and some submissions in support of it. Having examined the matter on principle, let us turn tosome precedents. In D.R. Nim v. Union of India(1) theappellant questioned his seniority which was to bedetermined in accordance with the provisions contained inIndian Police Service (Regulation of Seniority) Rules, 1954.These rules required first to ascertain the year ofallotment of the person concerned for the determination ofhis seniority. In doing so, the Government of India directedthat officers promoted to the Indian Police Service shouldbe allowed the benefit of their continuous officiation witheffect only from 19th May, 1951. The appellant challengedthe order because the period of officiation from June 1947to May 1951 was excluded for the purpose of fixation of hisseniority. His grievance was that there was no rationalebehind selecting this date. After taking into considerationaffidavit 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 the200 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


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 Government201 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 pickout a date from a hat and that is what it seems to have donein saying that a period prior to that date would not bedeemed to be approved by the Central Government within thesecond proviso. In case before us, the eligibility criteriafor being eligible for liberalised pension scheme have beenpicked out from where it is difficult to gather and norationale is discernible nor one was attempted at thehearing. The ratio of the decision would squarely apply tothe facts of this case. Similarly in Jaila Singh & Anr. v. State of Rajasthan &Ors.(1), this Court struck down as discriminatory thedivision of pre-1955 and post-1955 tenants for the purposeof allotment of land made by the Rules under the RajasthanColonisation Act, 1954 observing that the various provisionsindicate that the pre-1955 and post-1955 tenants stand on


the same footing and therefore do not form different classesand hence the division was held to be based on whollyirrelevant consideration. The court further observed that itis difficult to appreciate how it would make any differencefrom the point of view of allotment of land, whether atenant has been in occupation for 16 years or 18 or 20 yearsand why differentiation should be made with reference to thedate when Rajasthan Tenancy Act came into force. Thisdivision for the purpose of allotment of land with referenceto certain date was considered both arbitrary anddiscriminatory on the ground that it was wholly unrelated tothe objects sought to be achieved. As against this the learned Attorney-General invitedour attention to Union of India & Anr. v. M/s ParameswaranMatch Works etc.(2) By a notification dated July 21, 1967,benefit of a concessional rate of duty was made available ifa manufacturer of matches made a declaration that the totalclearance of matches from a factory would not exceed 75million during a financial year. As framed the notificationextended the benefit to manufacturers with higher capacityto avail of the concessional202rate of duty by filing a declaration as visualised in theproviso to the notification by restricting their clearanceto 75 million matches. This notification was amended onSeptember 4, 1967 with a view to giving bona fide smallmanufacturers, whose total clearance was not estimated to bein excess of 75 million matches, the benefit of concessionalrate of duty prescribed under notification dated July 21,1967. The respondent in the case applied for a licence formanufacturing matches on September 5, 1967, that is, a dayafter the date on which amended notification was issued andfiled a declaration that the estimated manufacture for thefinancial year would not exceed 75 million matches, but thiswas rejected. In a writ petition filed by the respondent,the High Court held that the classification was unreasonableinasmuch as the fixation of the date for making adeclaration had no nexus with the object of the Act. In theappeal by the Union of India, this Court held that theconcessional rate of duty was intended for small bona fideunits who were in the field when the notification datedSeptember 4, 1967 was issued. The concessional rate of dutywas not intended to benefit the large units which had splitup into smaller units to earn the concession. With referenceto 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 onLouisville Gas Co. v. Alabama Power Co. (1) This decision isnot an authority for the proposition that whenever a date ischosen, or an eligibility criteria which divides a class,the purpose of choice unrelated to the objects sought to beachieved must be accepted as valid. In fact it is made clearin the decision itself that even if no particular reason isforthcoming for the choice unless it is shown to becapricious or whimsical, the choice of the legislature maybe accepted. Therefore, the choice of the date203


cannot be wholly divorced from the objects sought to beachieved by the impugned action. In other words, if thechoice is shown to be thoroughly arbitrary and introducesdiscrimination violative of Art. 14, the date can be struckdown. What facts influenced the Court’s decision in thatcase for upholding the choice of the date are worth-recalling. The Court held that the object of granting theconcessional rate of duty was to protect the smaller unitsin the industry from the competition by the larger ones andthat object would have been frustrated, if, by adopting thedevice of fragmentation, the larger units could become theultimate beneficiaries of the bounty. This was the weightyconsideration 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) ThisCourt while repelling the contention that the choice ofApril 1, 1973 as the date of imposition of the building taxis discriminatory with reference to Art. 14 of theConstitution, approved the ratio in the case of M/s.Parameswaran Match Works etc. supra. Even while reachingthis conclusion the Court observed that it is not shown howit could be said that the date (April 1, 1973) for the levyof the tax was wide of the reasonable mark. What appealed tothe Court was that earlier an attempt was made to impose thebuilding tax with effect from March 2, 1961 under the KeralaBuilding Tax Act, 1961 but the Act was finally struck downas unconstitutional by this Court as per its decision datedAugust 13, 1968. While delivering the budget speech, at thetime of introduction of the 1970-71 budget, the intention tointroduce a fresh Bill for the levy of tax was made clear.The Bill was published in June 73 in which it was made clearthat the Act would be brought into force from April 1, 1970.After recalling the various stages through which the Billpassed before being enacted as Act, this Court held that thechoice of date April 1, 1973 was not wide of the reasonablemark. The decision proceeds on the facts of the case. Butthe principle that when a certain date or eligibilitycriteria is selected with reference to legislative orexecutive measure which has the pernicious tendency ofdividing an otherwise homogeneous class and the choice ofbeneficiaries of the legislative/executive action becomesselective, the division or classification made by choice ofdate or eligibility criteria must have some relation to theobjects sought204to be achieved. And apart from the first test that thedivision must be referable to some rational principle, ifthe choice of the date or classification is wholly unrelatedto the objects sought to be achieved, it cannot be upheld onthe specious plea that was the choice of the Legislature. Now if the choice of date is arbitrary, eligibilitycriteria is unrelated to the object sought to be achievedand has the pernicious tendency of dividing an otherwisehomogeneous class, the question is whether the liberalisedpension scheme must wholly fail or that the pernicious partcan be severed, cautioning itself that this Court does notlegislate but merely interprets keeping in view theunderlying intention and the object, the impugned measureseeks to subserve ? Even though it is not possible tooversimplify the issue, let us read the impugned memorandadeleting the unconstitutional part. Omitting it, thememoranda 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


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 serviceand retiring subsequent to specified date is severed, allpensioners would be governed by the liberalised pensionscheme. The pension will have to be recomputed in accordancewith the provisions of the liberalised pension scheme assalaries were required to be recomputed in accordance withthe recommendation of the Third Pay Commission but becomingoperative from the specified date. It does therefore appearthat the reading down of impugned memoranda by severing theobjectionable portion would not render the liberalisedpension scheme vague, unenforceable or unworkable. In reading down the memoranda, is this Courtlegislating ? Of course ’not’. When we delete basis ofclassification as violative of Art. 14, we merely set atnaught the unconstitutional portion retaining theconstitutional portion.205 We may now deal with the last submission of the learnedAttorney General on the point. Said the learned Attorney-General that principle of severability cannot be applied toaugment the class and to adopt his words ’severance alwayscuts down the scope, never enlarges it’. We are not surewhether there is any principle which inhibits the Court fromstriking down an unconstitutional part of a legislativeaction which may have the tendency to enlarge the width andcoverage of the measure. Whenever classification is held tobe impermissible and the measure can be retained by removingthe unconstitutional portion of classification, by strikingdown words of limitation, the resultant effect may be ofenlarging the class. In such a situation, the Court canstrike down the words of limitation in an enactment. That iswhat is called reading down the measure. We know of noprinciple that ’severance’ limits the scope of legislationand can never enlarge it. To refer to the Jaila Singh’s case(supra), when for the benefit of allotment of land theartificial division between pre-1955 and post-1955 tenantwas struck down by this Court, the class of beneficiarieswas enlarged and the cake in the form of available land wasa fixed quantum and its distribution amongst the largerclass would protanto reduce the quantum to each beneficiaryincluded in the class. Similarly when this Court in RandhirSingh’s case (supra) held that the principle of ’equal payfor equal work’ may be properly applied to cases of unequalpay based on no classification or irrational classificationit enlarged the class of beneficiaries. Therefore, theprinciple of ’severance’ for taking out the unconstitutionalprovision from an otherwise constitutional measure has beenwell recognised. It would be just and proper that theprovision in the memoranda while retaining the date for itsimplementation, but providing ’that in respect of Governmentservants who were in service on the 31st March, 1979 butretiring from service in or after that date’ can be legallyand validly severed and must be struck down. The date isretained without qualification as the effective date forimplementation of scheme, it being made abundantly clearthat in respect of all pensioners governed by 1972 Rules,the pension of each may be recomputed as on April 1, 1979and future payments be made in accordance with freshcomputation under the liberalised pension scheme as enactedin the impugned memoranda. No arrears for the period prior


to 31st March, 1979 in accordance with revised computationneed be paid. In this context the last submission of the learnedAttorney General was that as the pension is alwayscorrelated to the date of206retirement, the Court cannot change the date of retirement,and impose fresh commutation benefit. We are doing nothingof this kind. The apprehension is wholly unfounded. The dateof retirement of each employee remains as it is. The averageemoluments have to be worked out keeping in view theemoluments drawn by him before retirement but in accordancewith the principles of the liberalised pension scheme. Thetwo features which make the liberalised pension scheme moreattractive is the redefining of average emoluments in Rule34, and introduction of slab system simultaneously raisingthe ceiling. Within these parameters, the pension will haveto be recomputed with effect from the date from which theliberalised pension scheme came into force i.e. March 31,1979. There is no question of fresh commutation of pensionof the pensioners who retired prior to 31st March, 1979 andhave already availed of the benefit of commutation. It isnot open to them to get that benefit at this late datebecause commutation has to be availed of within specifiedtime limit from the date of actual retirement. May be somemarginal retirees may earn the benefit. That is inevitable.To say that by our approach we are restructuring theliberalised pension scheme, is to ignore the constitutionalmandate. Similarly, the court is not conferring benefits bythis approach, the court only removes the illegitimateclassification and after its removal the law takes its owncourse. But in this context the learned Attorney submitted thefollowing quotation which appears to have been extractedfrom a decision of American Court, citation of which was notavailable. The quotation may be extracted from the writtensubmission. 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 withparliamentary mandate liberalised the pension scheme. It isimplicit in liberalising the scheme that the deed to grantlittle higher rate of pension to the pensioners wasconsidered eminently207just. One could have understood persons in the higher paybracket being excluded from the benefits of the schemebecause it would have meant that those in higher pay bracketcould fend for themselves. Such is not the exclusion. Theexclusion is of a whole class of people who retire before acertain date. Parliament would not have hesitated to extendthe benefit otherwise considered eminently just, and thisbecomes clearly discernible from page 35 of 9th Report ofCommittee on Petitions (Sixth Lok Sabha) April, 1976. Whileexamining their representation for better pensionarybenefit, 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


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 apprehensionvoiced by the learned Attorney that if we strike down theunconstitutional part, the parliament would not have enactedthe measure. Our approach may have a parliamentary flavourto sensitive noses. The financial implication in such matters has somerelevance. However in this connection, we want to steerclear of a misconception. There is no pension fund as it isfound either in contributory pension schemes administered inforeign countries or as in Insurance-linked pensions. Non-contributory pensions under 1972 rules is a Stateobligation. It is an item of expenditure voted year to peardepending upon the number of pensioners and the estimatedexpenditure. Now when the liberalised pension scheme wasintroduced, we would justifiably assume that the Governmentservants would retire from the next day of the coming intooperation of the scheme and the burden will have to becomputed as imposed by the liberalised scheme. FurtherGovernment has been granting since nearly a decade temporaryincreases from time to time to pensioners. Therefore, thedifference will be marginal.208Further, let it not be forgotten that the old pensioners areon the way out and their number is fast decreasing. Whileexamining the financial implication, this Court is onlyconcerned with the additional liability that may be imposedby bringing in pensioners who retired prior to April 1, 1979within the fold of liberalised pension scheme but effectivesubsequent to the specified date. That it is a dwindlingnumber is indisputable. And again the large bulk comprisespensioners 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 thepensioners who have retired prior to the specified date andthe comparative advantage, if they are brought within thepurview of the liberalised pension scheme. The differenceupto the level of Assistant or even Section Officer ismarginal keeping in view that the old pensioners are gettingtemporary increases. Amongst the higher officers, there willbe some difference because the ceiling is raised and thatwould introduce the difference. It is however necessary torefer to one figure relied upon by respondents. It was saidthat if pensioners who retired prior to 31st March, 1979 arebrought within the purview of the liberalised pensionscheme, Rs. 233 crores would be required for freshcommutation. The apparent fallacy in the submission is thatif the benefit of commutation is already availed of, itcannot and need not be reopened. And availability of otherbenefits is hardly a relevant factor because pension isadmissible to all retirees. The figures submitted are thusneither frightening nor the liability is supposed to bestaggering which would deflect us from going to the logicalend of constitutional mandate. Even according to the mostliberal estimate, the average yearly increase is worked outto be Rs. 51 crores but that assumes that every pensioner


has survived till date and will continue to survive.Therefore, we are satisfied that the increased liabilityconsequent upon this judgment is not too high to beunbearable or such as would have detracted the Governmentfrom covering the old pensioners under the scheme. Locus standi of third petitioner was questioned.Petitioner No. 3 is a Society registered under the SocietiesRegistration Act of 1860. It is a non-political non-profitand voluntary organisation. Its members consist of publicspirited citizens who have taken up the cause of ventilatinglegitimate public problems. This Society received a largenumber of representations from old pensioners, individuallyunable to undertake the journey through209labyrinths of legal judicial process, costly and protracted,and. therefore, approached petitioner No. 3 which espousedtheir cause Objects for which the third petitioner-Societywas formed were not questioned. The majority decision ofthis Court in S.P. Gupta v. Union of India(1) rules that anymember of the public having sufficient interest can maintainan action for judicial redress for public injury arisingfrom breach of public duty or from violation of someprovision of the Constitution or the law and seekenforcement of such public duty and observance of suchconstitutional or legal provision. Third petitioner seeks toenforce rights that may be available to a large number ofold infirm retirees. Therefore, its locus standi isunquestionable. But it is a point of academic importantbecause locus standi of petitioners Nos. 1 and 2 was neverquestioned. That is the end of the journey. With the expandinghorizons of socio-economic justice, the socialist Republicand welfare State which we endeavour to set up and largelyinfluenced by the fact that the old men who retired whenemoluments were comparatively low and are exposed tovagaries of continuously rising prices, the falling value ofthe rupee consequent upon inflationary inputs, we aresatisfied that by introducing an arbitrary eligibilitycriteria: ’being in service and retiring subsequent to thespecified date’ for being eligible for the liberalisedpension scheme and thereby dividing a homogeneous class, theclassification being not based on any discernible rationalprinciple and having been found wholly unrelated to theobjects sought to be achieved by grant of liberalisedpension and the eligibility criteria devised beingthoroughly arbitrary, we are of the view that theeligibility for liberalised pension scheme of being inservice on the specified date and retiring subsequent tothat 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 readdown 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"210and 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 thisspecification that the date mentioned therein will berelevant as being one from which the liberalised pensionscheme becomes operative to all pensioners governed by 1972


Rules irrespective of the date of retirement. Omitting theunconstitutional part it is declared that all pensionersgoverned by the 1972 Rules and Army Pension Regulationsshall be entitled to pension as computed under theliberalised pension scheme from the specified date,irrespective of the date of retirement. Arrears of pensionprior to the specified date as per fresh computation is notadmissible. Let a writ to that effect be issued. But in thecircumstances of the case, there will be no order as tocosts.H.L.C. Petition allowed.211

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