seshadri vikrala views and vision
Sunday, August 23, 2015
Tuesday, February 17, 2015
Comments on : Black money
Comments on : Black money
BMincludeWHITECOLLARCRIMEdoes not come to light;CBI/ACBhaveto find-raise SOURCE,DIG ELEPHANT TRAP HOLE&WINtraplikeanimalstrapformulae.there shall beWCCdepunder exclusive control and command of PM
BMincludeWHITECOLLARCRIMEdoes not come to light;CBI/ACBhaveto find-raise SOURCE,DIG ELEPHANT TRAP HOLE&WINtraplikeanimalstrapformulae.there shall beWCCdepunder exclusive control and command of PM
Thursday, February 5, 2015
Article: SWATCH
BHARAT/CLEAN INDIA:EXTERNAL AS WELL AS INTERNAL: SESHADRI VIKRALA VIEWS AND
VISION:
[Seshadri Vikrala, B.Sc;
LL.M.; PG.Dip.in Crl.Laws; PG.Dip.in IRPM-Asst.Security Commissioner, RPF/Retired]
SWATCH BHARAT/CLEAN
INDIA - What a wonderful idea inculcated in the minds by our beloved Prime
Minister of India. He has rightly described himself as the Prime-Servant and
putting the matters on move by following everything in time and spirit.
By this caption, we all
understand that we have to just clean the external wasteful dumps, dirty
matters and make India look very beautiful country in the world. We, from the
lowest to the top position, started the Swatch Bharat campaign in true spirit
and action. But, how long this work shall continue, as long as we determine to
do so, or as far as, where there is a will there is a way. But the unanswered question still remain is
that - where to dispose/dump the wastage, are there any recycling bins, dump
yards, nominated officials to supervise and continue its work on daily basis,
take drastic and exemplary action on the defaulters, and so on. Nothing seems
to have come on record?
Now, take the case of
Officials sitting in the position of high command, who are held responsible and
to shoulder decision making Orders , first make clean their mind-set from
corrupt practices, corrupt mind, thoughts and actions, thus avoid their actions
leading to White Collar Criminality at the lower levels.
Honorable Supreme Court
of India is making out its concern over corrupt and indifferent inactions of
the government officials through its Judgments and Orders. In the contra, the
GOI is found to be sticking to its own stand to apply the Order and implement
only to the Petitioners/Respondents in a particular case but not to all the
employees, pensioners who are found to be placed in a similarly situation. Then
what is the fate of each of such individual? In the given situations, they must
think of going to the Courts of Law and get the Orders implemented to them also.
When the GOI/Departments go into this type of decision making duly sidelining
the Honorable Supreme Court’s Orders, where is the Justice? In my view, once
Justice is delayed, Justice is denied; Justice denied is Justice buried once
for all.
For example, take the
case of implementation of VI CPC Orders for pensioners to be made effective
from 01st Jan, 2006 to pre-2006 pensioners, but it seems DoP&T Orders
were issued only to the Respondent/Petitioners and not to all. Where to go for
Justice? Then, again go to Courts of Law for justice. This is the life style written
in our fate by GOI? Who is having “Clean Mind and Thoughts in implementation of
Orders” in this type of Govt. / one and all who are placed in similarly
situation?
The GOI’s decision making and its implementation lies in the
hands of the HODs, the Orders can be made retrospective, but they do not issue
such Orders, just to apply economy through such restraints, but can spend
crores on other issues.
Another glaring example
I want to put herein for reading?
Under the Control and
Command of the Ministry of Railways, the GOI is running “RAILWAY PROTECTION
FORCE” one of the Armed Force, headed by
one Indian Police Service Officer as its Director General, the Head of Security
Directorate at the Railway Board. The Railway Board is established through ‘The
Railway Board Act’. RPF is having its own RPF Act, set of RPF Rules, and is
governed by the Directions and Orders issued by the GOI/Department of Personnel
and Training from time to time. However, on one pretext or the other, it is
noticed that the RPF Directorate, the Railway Board is not inclined to
scrupulously follow and implement GOI Orders, RPF Rules, in its true spirit and
so on.
Take the case of
maintenance of seniority list of Inspectors on all India basis, setting up and
conducting of Departmental Promotion Committees in the RPF by the Railway Board
as contained in RPF Rules, the Orders of
GOI / DoP&T in these matters; since decades nothing seems to be in order
for the reasons beyond imagination, no one is coming forward to bring the facts
on record to correct the errors/mistakes which they have committed in these
matters.
Had the Railway
Board, RPF Directorate followed RPF Rules, DoP&T Orders in true spirit in
regard to maintenance of seniority list of Inspectors at DG, RPF Office on all
India basis and conducted DPCs as contained in RPF Rules, most of the
Inspectors, adhoc-departmental ASCs could have got promoted much earlier and
could have retired as that of their juniors retired in Senior Administration
Scale of Pay/Pension, and would have been benefitted of their just pension at
par with their junior. The same is denied till date.
Only one case is enough
to ventilate the “CLEAN INDIA CAMPAIGN/SWATCH BHARAT “ implementation in
Railway Board, RPF is that: the GOI/DoP&T through its Office Memorandum No.
22011/4/98-Estt.(D) dated 12-10-1998 , issued Orders, in consultation with the
Ministry of Law , that in case the DPC’s are not held in due course as per
Schedule on account of various reasons beyond their control, like Court Cases,
the DPCs if held in later years, the names of retired officials also to be
considered and if fit in the zone of consideration for the vacancy of previous
year/s, their names also to be included in the DPC’s Panel Lists, even by
making out extended Panels. The same is not done and being denied to the
eligible pensioners.
Just read news / go
through recent Judgment Order of the Honorable Supreme Court of India in the
case of BCCI/ concerning to Cricket, officials. No comments need be there to
enlighten its displeasure.
Non implementation of
the above mentioned OM by Railway Board, in my view, perpetuates conflict of
interest in the running of the Office as per the sway of someone in this matter
in the RPF Directorate. In my considered
view, by and large, even a Department/Ministry, like the RPF can also be
treated as an “Institution” by which its “Institutional Integrity and
Discipline”, if outlined, being governmental Agency, comes for debate being a
Force dealing with a public function in shouldering the safety and security of
railway passengers and the railway property. Without making the sufferers to
choose to take steps to knock the doors of the Courts of Law, it shall be the
responsibility of the HOD to see that in larger interest of its employees, they
are better looked after and put the Orders within the frame work of its own
Rules and Directions of GOI, and not to deviate for personal gains...
But, the Railway Board,
had interpreted this Order otherwise, may be to suit to their convenience and
dropped the seniors/retired officials names from the DPC’s Panel Lists of Asst.
Security Commissioners and by filling up previous years vacancies and promoted
juniors in their places, thereby the very system of Fundamental Rights as
guaranteed under Article 309 of the Constitution of India is once for all barred
to senior citizens. The result is that juniors are benefited with more pension
and perks than seniors. Efforts made by some since several years yielded no
result so far. Herein, even the Railway Board Orders issued under RBE No.27 of
2007/IREM –Para 228- issued in lieu of Honorable Supreme Court of India
Judgment Order in SLP(C) No. 4222 of 2006 is found to have been not being
adhered to by the Railway Board, RPF.
If once deviated
from the Rules and the Law, even a single Rule, the very concept of Rule Making
Machinery of GOI shall have no balancing control on anything and shall
eventually relegate its image to dustbin, even the other departments, officials
may not have any alternative to say anything against the decisions of the
HOD/BOSS.
At least now in the wake of
“ SWATCH BHARAT/Clean India ” campaign, your good selves may kindly fill up the
missing dimensions and the absence of transparency and accountability in the
RPF Directorate, Railway Board and be made to implement, and apply DoP&T
Office Memorandum No. 22011/4/98-Estt.(D) dated 12-10-1998 and interpolate retired
officials names according to seniority and issue Deemed Promotion Orders at par
with their junior to enable to get Pension benefit/eligible according to
position in seniority just as that of junior.
Let there be some honest overseer
who can take the burden of responsibility, liability and see that nothing shall
go out hands, out of his power and authority, or against the Law, the Rules,
and see that the subordinate officials work scrupulously without their own interpretations
and lean to take charge of the situations to suit them of their choice and will
by sideling the HOD.
<><><><><>
Home Secretary Anil Goswami sacked - The Hindu
Home Secretary Anil Goswami sacked - The Hindu
India is making out its concern over corrupt and indifferent inactions of the government officials , Ministry of Railways is running RPF, it is noticed thatRailway Board is not scrupulously following , DoP&T OMs,RPF Rules,conducting DPCs in RPFsince decadesNOTfollowed RPF Rules, DoP&T OMNo. 22011/4/98-Estt.(D) dated 12-10-1998 -nowrepeated on14thNov2014’s ,its “Institutional Integrity and Discipline”, comes for debate .
India is making out its concern over corrupt and indifferent inactions of the government officials , Ministry of Railways is running RPF, it is noticed thatRailway Board is not scrupulously following , DoP&T OMs,RPF Rules,conducting DPCs in RPFsince decadesNOTfollowed RPF Rules, DoP&T OMNo. 22011/4/98-Estt.(D) dated 12-10-1998 -nowrepeated on14thNov2014’s ,its “Institutional Integrity and Discipline”, comes for debate .
Saturday, January 17, 2015
Sir,ON 19-11-2014 at Hyderabad a delegation of RAILWAY PROTECTION FORCE PENSIONER’S WELFARE ASSOCIATION SOUTH CENTRAL RAILWAY, SECUNDERABAD lead by Mr. V.Seshadri, ASC/RPF/Retired and its President met the Chairman, VII CPC and presented a Memorandum, a copy of the same is appended herein for kind information with a request to include in your list , etc. please.
With Regards,Vikrala.
No. RPFPWA/SCR/SC/2014 Date: 19-11-2014
To:Honorable Justice Sri. A.K. Mathur,
Chairman,VII Central Pay Commission.
Honored SIR,
Railway Protection Force Pensioner’s Welfare Association, South Central Railway, Secunderabad heartily welcome your good honor and all the other VII CPC officials to Hyderabad. RPFPWA founded in the year 2011 is having around 250 members and serving the pensioner’s problems/grievances and other pending pension matters through RPF and SC Railway administrative officers.Sir, It is submitted that the RPF now has emerged as one of the Super Force in dealing with all the matters appertaining to Indian Railways, our Force Personnel are being taken on deputation to work in various Ministries/Departments. Railway Protection Force (RPF) is one of the Central Armed Police Force charged with protecting the Indian Railways with certain legal powers under various Acts, investigate cases, and prosecute the accused in the Courts of Law. In addition, it is submitted that RPF duties and functions over Indian Railways/or on any other duties outside Railways, are same as that of other CPOs (Central Police organizations/CPMFs (Central Para-Military Forces) in the assigned jurisdiction like that of BSF, CRPF, CISF, ITBT, RAF. The RPF functions under the supervision, control and command of the Ministry of Railways through its Director General, RPF. The duties of the Railway Protection Force include: To do all conducive means for the free movement of the railways; Protection and safeguarding of railway property; Protection and safeguarding of passenger, their belongings and passenger areas. The erstwhile British Raj ‘Company Police’ evolved into present RPF in 1957 passing through "Watch and Ward" phase from 1872-1954, and as "Railway Security Force" from 1954-1956,and expanding with certain legal powers. For maintenance of an effective and disciplined Force, the RPF Rules and Regulations, The RPF Act, 1957 was accordingly modified for carrying out the purposes of the Act, and the RPF Rules 1987.
Sir,It is submitted that while the RPF functions under Ministry of Railways, the other CPOs/CPMFs works under Ministry of Home Affairs. Though RPF is also a Uniformed Force, the VI CPC made out recommendations for RPF separately and for the CPOs / CPMFs separately. The same were implemented by the concerned Ministries from 01-01-1996.However, in later years, the GOI extended the same pay scales of CPOs/CPMFs and the Ministry of Railways implemented the same to the RPF as that of other CPOs/CPMFs from the date of the Orders. Due to this different dates of implementations, the RPF Pensioners who retired prior to 2006, (between 1986-2006) are not getting the Grade Pay as that of RPF Pensioners who retired after 01-01-2006. While some of the pre-2006 retiree Inspectors get Grade Pay of Rs.4600/- and some others get Rs.4200/-, and so on for other ranks also.
Sir,It is submitted that your good honor may kindly consider to recommend the same pay scales/Grade Pay, etc., and other perks similarly as that of other CPOs/CPMFs, so that the RPF Officials/Pensioners shall also be treated at par with that of other Central Govt. Armed Forces of the Union of India, and also get the same benefits right from the date of implementation of the VII CPC, for this act of kindness, we shall ever be grateful and oblige.Most respectfully and humbly submitted for favor of kind consideration.Yours faithfully,
(V.SESHADRI)PRESIDENT
With Regards,Vikrala.
No. RPFPWA/SCR/SC/2014 Date: 19-11-2014
To:Honorable Justice Sri. A.K. Mathur,
Chairman,VII Central Pay Commission.
Honored SIR,
Railway Protection Force Pensioner’s Welfare Association, South Central Railway, Secunderabad heartily welcome your good honor and all the other VII CPC officials to Hyderabad. RPFPWA founded in the year 2011 is having around 250 members and serving the pensioner’s problems/grievances and other pending pension matters through RPF and SC Railway administrative officers.Sir, It is submitted that the RPF now has emerged as one of the Super Force in dealing with all the matters appertaining to Indian Railways, our Force Personnel are being taken on deputation to work in various Ministries/Departments. Railway Protection Force (RPF) is one of the Central Armed Police Force charged with protecting the Indian Railways with certain legal powers under various Acts, investigate cases, and prosecute the accused in the Courts of Law. In addition, it is submitted that RPF duties and functions over Indian Railways/or on any other duties outside Railways, are same as that of other CPOs (Central Police organizations/CPMFs (Central Para-Military Forces) in the assigned jurisdiction like that of BSF, CRPF, CISF, ITBT, RAF. The RPF functions under the supervision, control and command of the Ministry of Railways through its Director General, RPF. The duties of the Railway Protection Force include: To do all conducive means for the free movement of the railways; Protection and safeguarding of railway property; Protection and safeguarding of passenger, their belongings and passenger areas. The erstwhile British Raj ‘Company Police’ evolved into present RPF in 1957 passing through "Watch and Ward" phase from 1872-1954, and as "Railway Security Force" from 1954-1956,and expanding with certain legal powers. For maintenance of an effective and disciplined Force, the RPF Rules and Regulations, The RPF Act, 1957 was accordingly modified for carrying out the purposes of the Act, and the RPF Rules 1987.
Sir,It is submitted that while the RPF functions under Ministry of Railways, the other CPOs/CPMFs works under Ministry of Home Affairs. Though RPF is also a Uniformed Force, the VI CPC made out recommendations for RPF separately and for the CPOs / CPMFs separately. The same were implemented by the concerned Ministries from 01-01-1996.However, in later years, the GOI extended the same pay scales of CPOs/CPMFs and the Ministry of Railways implemented the same to the RPF as that of other CPOs/CPMFs from the date of the Orders. Due to this different dates of implementations, the RPF Pensioners who retired prior to 2006, (between 1986-2006) are not getting the Grade Pay as that of RPF Pensioners who retired after 01-01-2006. While some of the pre-2006 retiree Inspectors get Grade Pay of Rs.4600/- and some others get Rs.4200/-, and so on for other ranks also.
Sir,It is submitted that your good honor may kindly consider to recommend the same pay scales/Grade Pay, etc., and other perks similarly as that of other CPOs/CPMFs, so that the RPF Officials/Pensioners shall also be treated at par with that of other Central Govt. Armed Forces of the Union of India, and also get the same benefits right from the date of implementation of the VII CPC, for this act of kindness, we shall ever be grateful and oblige.Most respectfully and humbly submitted for favor of kind consideration.Yours faithfully,
(V.SESHADRI)PRESIDENT
Tuesday, January 13, 2015
Conducting of DPCs/RPF in 2008/2009-dropping the name of V.Seshadri, ASC/RPF retired-though FIT in the DPC’s Select Panel Lists- but dropped in the ‘Notification’ issued through Railway Board-ignoring DoP&T OM. No. 22011/4/98-Estt.(D) dated 12-10-1998 Orders of GOI
To Date:
12-01-2015
Director General, RPF,
Railway Protection Force,
Ministry of Railways,
Railway Board, RAIL BHAVAN,
NEW DELHI-110003.
Sir,
Sub: Conducting of DPCs/RPF in
2008/2009-dropping the name of V.Seshadri, ASC/RPF retired-though FIT in the
DPC’s Select Panel Lists- but dropped in the ‘Notification’ issued through
Railway Board-ignoring DoP&T OM. No. 22011/4/98-Estt.(D) dated 12-10-1998 Orders of GOI-Pray for
deemed promotion and pension benefit protection at par with Juniors-Reg.
Ref:1).My Representations,more than 100/emails,etc,since around 8 years-in specific Ltrs.Dated
21-08-2014;25/26-8-2014;29-9-2014…
2).Railway Board Ltr. Dated 16-09-2014:
In reply to a):DOPPW/E/2013/01025;b)PRSEC/E/2012/05218;c)MORLY/E/2012/03392….
3).AIRRF (All India Retired Railwaymen’s
Federation) Ltrs. Dated 04-01-2012;22-12-2014 and 10-01-2015.
4). Railway Board Notification No.
RBE-27/2007-IREM Para-228 issued in lieu of Honble Supreme Court of India
Judgment Order SLP(C) 23021/2005-Civil Appeal No.4222/2006.
<><><><><>
In reference to the above on the
subject matter kindly peruse the earlier representations sent , and now
attached herein , also sending through E-mail- total-41 attachments.
Had the Railway Board, RPF Directorate
followed RPF Rules in true spirit and scrupulously in regard to maintenance of
seniority list of Inspectors at DG,RPF Office on all India basis and conducted
DPCs as contained in RPF Rules, I could have got my ASC promotion much earlier
to 2002.
In this regard, I submit that as per
UPSC/DPC’s Select Panel List , my name stands at serial No. 04 against the
vacancy of 2005/2006, but the same was dropped only on the ground that I
retired in 2006. In view of GOI/Dept.of Personnel
and Training – DoP&T Office Memorandum No. 22011/4/98-Estt.(D) dated
12-10-1998,I earnestly request your good selves to implement,apply the same to
me and interpolate my according to my seniority and issue Deemed Promotion
Orders at par with my junior to enable to me get Pension benefit/eligible
according to my position just as that of my junior.
Thanking you Sir,
Yours
faithfully,
Encl:as
above(41). V.SESHADRI, ASC/RETIRED.
INDEX:
SCOVA Meeting on 03-02-2015 at New
Delhi:AGENDA Point for discussion-
Sub: Dropping the names of RETIRED
ASCs from DPC’s Panel Lists and promoting juniors in their places-Pension
benefits deprived- Case of V.Seshadri, Retired ASC/RPF-
No action on his representations and
on the letters of AIRRF-Regd.
Srl.No.
|
Ltr.
With Date—Sent By/From
|
Addressed
TO:Officials.
|
Pa
|
Remarks,
other points.
|
||||||
1.
|
From:President,AIRRF-Sri.Y.N.Sastry-
date:10-01-2015:
|
Member
Staff,Rly.Bd.& to others.
|
Page
Nos.
1-2
|
To
discuss at Rly.Bd., and in SCOVA Meeting at NDLS
|
||||||
2.
|
-----DO------
|
Secretary,
DoP&PW & others.
|
1(a)-2(a)
|
------D0-----
|
||||||
3.
|
--do—dated
04-01-2012with ENCL:
V.Seshadri,ASC
ltr dtd 12-12-2011
|
Honble
MR; DG,RPF,Rly.Bd& Others
|
3-5
|
No
action /No Reply.
|
||||||
4.
|
DoP&T
–Oiice Memorandum
Dated
12-10-1998
|
All
Ministries/Depts.
|
6
|
In
DPCs to include Retirees names also….
If
DPCs held in later yrs.
|
||||||
5.
|
V.Seshadri,ASC
ltr dtd 21-08-2014
|
Secy,GOI/Minitry
of Railways;Honble.MR;
DG,RPF
&others.
|
7-16
|
ASC/ADHOC
Regularization & Pension Protection….
|
||||||
6.
|
E-Mails
dated 25-8-2014 &
26-8-2014.
|
To-
DG,RPF;DoPPW&Others.
|
17-
18
|
Reg.Seniority
of Inspectors;DPCs;penion ,etc.
|
||||||
7.
|
V.Seshadri,ASC
ltr dated 29-09-2014
|
To-
DG,RPF;DoPPW&Others.
|
19-
23
|
Reg.Seniority
of Inspectors;DPCs;penion ,etc.
|
||||||
8.
|
V.Seshadri,ASC
ltr dated 17-10-2013
|
To-
DG,RPF;DoPPW&Others.
|
24-
28
|
Reg.Seniority
of Inspectors;DPCs;penion ,etc.
|
||||||
9.
|
V.Seshadri,ASC
ltr dated 15-12-2014
|
To-
DG,RPF;DoPPW&Others.
|
29-
31
|
Reg.Seniority
of Inspectors;DPCs;penion ,etc.
|
||||||
10.
|
DoP&T
–Office Memorandum
Dated 08-02-2002
|
All
Ministries/Depts.
|
32-
|
DPCs-
No SUPPRESSIONS in Promotions,…
|
||||||
11.
|
DoP&T
–Office Memorandum
Dated 15-09-2005
|
All
Ministries/Depts.
|
33-
|
DPCs-
No Suppression in Promotions,…
|
||||||
12.
|
Railway
Board Letter
Dated:19/22-09-2008
|
RTI
Reply
|
34-
|
regd.
DoP&T –Office Memorandum
Dated
12-10-1998 – retired officers names to include in DPCs; ASCs adhoc
/DPCs-promotions,etc.
|
||||||
13.
|
Railway
Board Orders: 27/2007 :
No.E(NG)/2005/PM-1/34C.C.
Dated
23-02-2007: in REF to:
Supreme
Court No.SLP (C) No.23021/2005 –UOI Vs.Shri.Tarsem Lal &Others.
|
PARA-228
of IREM-
Indian
Railways Estt. Manual-ON Admn.ERRORS-
to
effect Proforma/deemed Promotion and regd. payment of arrears, etc.
|
35-
37
|
On
Admn. Errors if not Promoted –to effect Deemed promotion and also to give
the
benefit in the matter
fixing
Pension…
|
||||||
14.
|
Fundamental
Rights to Employees:
Constitution
of India- Article:309:
Supreme
Court Judgments/Ordes,etc…
|
On
Adhoc promotions;.more than one year;
DPCs/ Regularization;
|
38-
39
|
Principles
of Continuous Officiation…
|
||||||
|
|
|
|
|
||||||
|
|
|
|
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|
|
|
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Friday, December 5, 2014
Supreme Court of India
D.S.
Nakara & Others vs Union Of India on 17 December, 1982
Equivalent
citations: 1983 AIR 130, 1983 SCR (2) 165
Author: D Desai
Bench:
Chandrachud, Y.V. ((Cj), Tulzapurkar, V.D., Desai, D.A., Reddy, O. Chinnappa
(J), Islam, Baharul (J)
PETITIONER:
D.S. NAKARA & OTHERS
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT17/12/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
CHANDRACHUD, Y.V. ((CJ)
TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J)
ISLAM, BAHARUL (J)
CITATION:
1983 AIR
130 1983 SCR
(2) 165
1983 SCC
(1) 305 1982 SCALE
(2)1213
CITATOR INFO :
R 1983 SC 937
(34)
R 1984 SC 121
(28)
R 1984 SC1064
(18)
R 1984 SC1247
(1)
RF 1984 SC1361
(19)
RF 1984 SC1560
(2)
F 1985 SC1196
(2,7)
D 1985 SC1367
(39,43)
RF 1986 SC 210
(19,20,22,26)
R 1986 SC 584
(1)
R 1986 SC1907
(1,2)
R 1987 SC 943
(8)
RF 1987 SC2359
(17)
D 1988 SC 501
(3,4,6,7)
RF 1988 SC 740
(13)
D 1988 SC1291
(9)
R 1988 SC1645
(8)
D 1989 SC 665
(7)
F 1989 SC2088
(7)
R 1990 SC 334
(104)
RF 1990 SC 883
(6)
E 1990 SC1760
(9)
RF 1990 SC1923
(3)
D 1990 SC2043
(2,7)
E 1991 SC1182
(6 TO 16,18,19,23)
RF 1991 SC1743
(1,2,4)
R 1992 SC
96 (11)
R 1992 SC 767
(2,4,TO 8,10)
ACT:
Constitution of India, Art. 14-Central Civil Services
(Pension) Rules, 1972 and Regulations governing pension for
Armed Forces
Personnel-Liberalisation
in computation of
pension effective from specified date-Divides pensioners so
as to confer benefit on some while
denying it to others-
Classification arbitrary, devoid of
rational nexus to object
of liberalisation and violative of
Art. 14
Constitution of
India, Art.
14-Doctrine of
severability-Severance may have
effect of enlarging scope of
legislation.
Rules and Regulations governing grant of pension-
Pension is a right-Deferred portion
of compensation for
service rendered-Also a
social-welfare measure.
HEADNOTE:
By a Memorandum dated May 25,
1979 (Exhibit P-1) the
Government of India liberalised the formula for computation
of pension in respect of
employees governed by the Central
Civil Services (Pension) Rules, 1972 and made it applicable
to employees retiring on or after
March 31, 1979. By another
Memorandum issued on September
23, 1979 (Exhibit P-2) it
extended the same, subject
to certain limitations, to
the
Armed Forces' personnel retiring on or after April 1, 1979.
Petitioners 1 and 2
who had retired in the year 1972
from
the Central Civil Service
and the Armed Forces'
service
respectively, and petitioner No. 3, a
registered society
espousing the cause of
pensioners all over the
country,
challenged the validity of the above
two memoranda in so far
as the liberalisation in
computation of pension had been
made applicable only to those retiring on or after the date
specified and the benefit of liberalisation had been denied
to all those who had retired
earlier.
Counsel for petitioners contended that all pensioners
entitled to receive pension under the relevant rules form
a
class irrespective of the
dates of their retirement
and
there cannot be a
mini-classification within this class;
that the differential treatment accorded to
those who had
retired prior to the specified date is violative of Art. 14
as the choice of specified date is wholly arbitrary and the
classification based
on the fortuitous circumstance of
retirement before or subsequent
to the specified date is
invalid; and that the
scheme of liberalisation in
computation of pension
must be
uniformly enforced with
regard to all pensioners.
166
Counsel for respondents contended that a classification
based on the date of retirement is valid for the
purpose of
granting pensionary benefits; that the specified date is an
integral part of the scheme of liberalisation and
the
Government would never have
enforced the scheme devoid of
the date; that
the doctrine of severability cannot
be
invoked to sever the
specified date from the scheme as
it
would have the effect of
enlarging the class of pensioners
covered by the scheme and when the
legislature has expressly
defined the class to which the legislation applies it
would
be outside the judicial function to enlarge the class;
that
there is not a single case where the
court has included some
category within the scope of
provisions of a law to maintain
its
constitutionality; that since
the scheme of
liberalisation has financial implications, the Court cannot
make it retroactive; that if
more persons divided the
available cake the residue
falling to the share of each,
especially to the share
of those who are not before
the
court would become far less and
therefore no relief could be
given to the petitioners that pension is always correlated
to the date of retirement and the court cannot change the
date of retirement and impose fresh commutation benefit
which may burden the
exchequer to the tune of Rs. 233
crores; and that the third
petitioner has no locus standi in
the case.
Allowing the petitions,
^
HELD: Article 14 strikes at
arbitrariness in State
action and ensures fairness and
equality of treatment. It is
attracted where equals are
treated differently without any
reasonable basis. The principle underlying the guarantee is
that all persons similarly circumstanced shall be treated
alike both in privileges conferred and liabilities
imposed.
Equal laws would have to
be applied to all in
the same
situation and there should be no discrimination between one
person and another if as
regards the subject-matter of the
legislation their position
is substantially the
same.
Article 14 forbids class legislation but permits
reasonable
classification for
the purpose of legislation.
The
classification must
be founded on
an intelligible
differentia which distinguishes persons or things that are
grouped together from those
that are left out of the group
and that differentia must have a
rational nexus to
the
object sought to be achieved by the statute in question. In
other words, there ought to be
causal connection between the
basis of classification and the object of the statute. The
doctrine of classification was evolved by the Court for
the
purpose of sustaining a legislation
or State action designed
to help weaker sections of the society.
Legislative and
executive action may accordingly be sustained by the court
if
the State
satisfies the twin tests of
reasonable
classification and the rational principle correlated to the
object sought to be
achieved. A discriminatory
action is
liable to be struck
down unless it can be shown
by the
Government that the departure was
not arbitrary but was
based on some valid
principle which in
itself was not
irrational, unreasonable or
discriminatory.
[176 B, 178 D-E, 179 B-C,
177 C-D, 179 C-D, 176 E-F,
179 H, 180 A-C]
[1959] S.C.R. 279; In re
Special Courts Bill,
[1979] 2
S.C.R, 476; E.P
Royappa v. State of Tamil
Nadu, [1974] 2
S.C.R. 348; Ajay Hasia
etc. v. Khalid Mujib Sehravardi &
Ors., [1981] 2 S.C.R. 79; Air India
etc. v. Nargesh Meerza &
Ors., [1982] 1 S.C.R. 438
and Ramana Dayaram Shetty v.
S.C.R. 1014, referred to.
167
In the instant case, looking to the goals
for the
attainment of which pension
is paid and the welfare State
proposed to be
set up
in the light
of the Directive
Principles of State Policy and Preamble to the Constitution
it indisputable that pensioners for payment of pension from
a
class. When the State considered
it necessary to
liberalise the pension scheme in
order to augment social
security in old age
to government servants it could
not
grant the benefits of liberalisation only
to those who
retired subsequent to the
specified date and deny the same
to those who had
retired prior to that date. The
division
which classified the pensioners into two
classes on the
basis of the specified
date was devoid of
any rational
principle and was both
arbitrary and unprincipled being
unrelated to the object
sought to be achieved by grant of
liberalised pension and the
guarantee of equal treatment
contained in Art. 14
was violated inasmuch as the
pension
rules which
were statutory in
character meted out
differential and discriminatory treatment to equals in the
matter of computation of pension
from the dates specified in
the impugned memoranda. [190 F-H,
194 A-C, 194 F-H]
(ii) Prior to the liberalisation of the formula
for
computation of pension average
emoluments of the last 36
months' service of the
employee provided the measure
of
pension. By the liberalised scheme, it
is now reduced to
average emoluments of the
last 10 months' service. Pension
would now be on the higher side on
account of two fortuitous
circumstances, namely, that the
pay scales permit annual
increments and usually there are promotions in the last one
or two years of the employee's service. Coupled with it a
slab system for computation has been introduced and the
ceiling of pension has
been raised. Pensioners who retired
prior to the specified
date would suffer triple jeopardy,
viz., lower average emoluments, absence of slab system and
lower ceiling.
[191 A-D]
(iii) Both the impugned memoranda
do not spell out the
raison d'etre for liberalising the pension formula. In the
affidavit in opposition it is stated
that the liberalisation
was decided by the
government in view of the
persistent
demand of the employees
represented in the scheme of Joint
Consultative Machinery. This would clearly imply
that the
pre-liberalised scheme did not
provide adequate protection
in old age, and that a further liberalisation was necessary
as a
measure of economic security. The government also took
note of the fact that continuous
upward movement of the cost
of living index and
diminishing purchasing power of
rupee
necessitated upward revision of
pension. When the government
favourably responded to the
demand it thereby ipso facto
conceded that there was
a larger available national cake,
part
of which could be utilised
for providing higher
security to
retiring employees. With
this underlying
intendment of liberalisation, it cannot be asserted that it
was good enough only
for those who would retire subsequent
to the specified date but not for those
who had already
retired. [191 F-G, 192 A, 191 H, 192
B]
2. If removal of arbitrariness
can be brought about by
severing the mischievous portion, the discriminatory part
ought to
be removed retaining the beneficial
portion.
[198 F]
In the instant case, the
petitioners do not challenge,
but seek the benefit
of the liberalised pension
scheme.
Their grievance is of the
denial to them of the
same by
arbitrary introduction of words
of limitation. There
is
nothing
168
immutable about the choosing
of an event as an eligibility
criteria subsequent to a
specified date. If the event is
certain but its occurrence at a point of time is
considered
wholly irrelevant and arbitrarily selected having
an
undesirable effect of dividing
a homogeneous class and of
introducing discrimination the same
can be easily severed
and set aside. It is therefore just and
proper that the
words introducing
the arbitrary fortuitous circumstance
which are vulnerable as
denying equality be severed
and
struck down. In Exhibit P-1 the words:
"That in
respect of the Government servants who
were in service on the 31st
March, 1979 and retiring
from service on or after that date.
and in Exhibit P-2, the words:
"the new
rates of pension are effective
from Ist
April 1979 and will
be applicable to all service
officers who became/become
noneffective on or
after
that date"
are
unconstitutional and are
struck down
with the
specification that
the date mentioned therein will
be
relevant as being one from
which the liberalised pension
scheme becomes operative. Omitting
the unconstitutional part
it is declared that
all pensioners governed by the 1972
Rules and Army Pension
Regulations shall be entitled
to
pension as computed under the liberalised pension
scheme
from
the specified date,
irrespective of the
date of
retirement. Arrears of pension
prior to the specified date
as per fresh computation is not admissible. [190A-C, 198 G,
198 E-F, 205 F-H, 209 F-H, 210 A-D]
Supp. S.C.R. 428, relied on.
etc., [1975] 2 S.C.R. 573;
and D.C. Gouse & Co.
etc. v.
State of Kerala & Anr. etc., [1980] 1 S.C.R. 804,
explained
and distinguished.
Louisville Gas Co. v. Alabama Power
Co., 240 U.S. 30
[1927], referred to.
(ii) The reading down of the
impugned memoranda by
severing the objectionable portion would
not render the
liberalised pension scheme vague, unenforceable or
unworkable. The Court is not
legislating in reading down the
memoranda; when
the Court strikes down the
basis of
classification as violative of
Art. 14 it merely sets at
naught the unconstitutional portion
retaining the
constitutional portion.
There is no difficulty in
implementing the scheme omitting the event happening after
the specified date, retaining the more human formula for
computation of pension.
The pension will have to be
recomputed in
accordance with the
provisions of the
liberalised pension scheme as salaries
were required to be
recomputed in accordance with the recommendation of
the
Third Pay
Commission but becoming operative from
the
specified date. The Court
is satisfied that the additional
financial liability that may be
imposed by bringing
169
in pensioners who retired prior to April 1, 1979 within the
fold of the liberalised pension
scheme is not too high to be
unbearable or such as would
have detracted the Government
from covering the old pensioners under
the scheme. The
severance of the nefarious
unconstitutional part does not
adversely affect future pensioners and their presence in
these petitions is irrelevant.
[204 G-H, 197 E-F, 206 B, 196 G, 208 G,
199 B]
(iii) To say that by
its approach the
Court is
restructuring the liberalised pension scheme is to ignore
the constitutional mandate. The
Court is not
conferring
benefits by
its approach; it is only
removing the
illegitimate classification and after its
removal the law
takes its own course. [206 D-E]
(iv) It is not
correct to say that if the
unconstitutional part is struck
down the Parliament would
not
have enacted
the measure. The
executive, with
parliamentary mandate, liberalised
the pension scheme. It is
implicit in the scheme
that the need to grant
a little
higher rate of pension
to the pensioners was
considered
eminently just. One could
have understood persons in the
higher pay bracket being
excluded from the benefit of the
scheme because it would have meant that those in the higher
pay bracket could fend
for themselves. Such is not the
exclusion. The exclusion is
of a whole class of people who
retired before a certain
date. Parliament would not have
hesitated to extend the
benefit otherwise considered
eminently just and this
becomes clearly discernible from
p.35 of the 9th Report of the Committee on Petitions (6th
Lok Sabha), April 1979. [206 H, 207
A-E]
(v) Whenever classification is held to be impermissible
and
the measure can be
retained by removing
the
unconstitutional portion
of the classification, the
resultant effect may be
of enlarging the class. In such a
situation the court can strike down the words of limitation
in an enactment. That is what is called reading down the
measure. There is no
principle that severance limits the
scope of legislation but can never
enlarge it. [205 B-C]
Jaila Singh & Ors. v State of
Rajasthan & Ors., [1975]
[1982] 1 S.C.C. 618, relied on.
(vi) The absence of precedent does not deter the court.
Every new norm of socio-economic justice, every new
measure
of social justice commenced for the
first time at some point
of time in history. If at that time
it was rejected as being
without a precedent, law
as an instrument
of social
engineering would have long since been dead. [193 G, 193 C-
D]
(vii) The court is not making
the scheme of
liberalisation retroactive by its approach. Retroactiveness
is implicit in the theory of wages. When revised
pay-scales
are introduced from a certain
date, all existing employees
are brought on to
the revised scales adopting
a theory of
fitments and increments for past service.
The benefit of
revised scales is not limited
to those who enter service
subsequent to the date fixed for introducing revised scales
but is extended to all those in service prior to that date.
Even in the case of the new retiral benefit
of gratuity
under the Payment of
Gratuity Act, 1972, past service
was
taken into consideration. The scheme of liberalisation is
not a new retiral benefit; it is
170
an upward revision of an existing
benefit. Pension has
correlation to average
emoluments and the
length of
qualifying service and any
liberalisation would pro tanto
ber etroactive in the narrow sense
of the term. Assuming the
government had not prescribed the
specified date and thereby
provided that those retiring, pre and past the specified
date, would all be
governed by the liberalised pension
scheme it would be
both prospective and retroactive.
Only
the pension will have to
be recomputed in the light of the
formula enacted in the
liberalised pension scheme
and
effective from the date the revised
scheme comes into force.
A statute is not properly called retroactive because a
part
of the requisites for its action is drawn from a time
antecedent to its passing.
[195 H, 196 H, 196 G, 196 D, 196 B-D]
Craies on Statute Law, Sixth Edition, p. 387 referred
to.
(viii) There is no question of
pensioners dividing the
pension fund which, if
more persons are admitted to
the
scheme, would pro rata affect the
share. The pension scheme,
including the liberalised scheme, is non-contributory in
character. The payment of
pension is a statutory liability
undertaken by the
Government. Whatever becomes
due and
payable on account of pension
is recognised as an item of
expenditure and is budgeted
for every year. At any given
point of time there
is no fixed or pre-determined
pension
fund which is divided amongst
eligible pensioners. [195 C-G]
(ix) The date of retirement of
each employee remaining
as it is, there
is no question of fresh
commutation of
pension of the pensioners who retired
prior to 31st March
1979 and have already availed of the
benefit of commutation.
It is not open to them to get that
benefit at this late date
because commutation has to be availed
of within the
specified time limit from
the date of actual retirement.
[206 C-D]
3. The discernible
purpose underlying the
pension
scheme must inform the interpretative process and it
should
receive a liberal construction. [185
G-H]
(i) Pension is a right; not
a bounty or gratuitous
payment. The payment of
pension does not depend upon the
discretion of the Government but is
governed by the rules
and a government
servant coming within
those rules is
entitled to claim pension. [186 A-B]
Deoki Nandan Prasad v.State of
Bihar & Ors.,[1971]
Supp. S.C.R. 634 and
State of Punjab & Anr.v
Iqbal Singh,
[1976] 3 S.C.R. 360, referred to.
(ii) The pension payable to a
government employee is
earned by rendering long and
efficient service and therefore
can be said to be a deferred portion
of the compensation for
service rendered. [185 F]
(iii) Pension also has a broader significance in that
it is a
social-welfare measure rendering
socio-economic
justice by providing economic security in old age to those
who toiled ceaselessly in the
hey-day of their life. [185 D-
E, 186 B-C]
(iv) Pension as a retirement benefit is in consonance
with and in furtherance of the
goals of the Constitution.
The goals for which pension is
171
paid themselves give a
fillip and push to the policy
of
setting up a welfare state. The
preamble to the Constitution
envisages the establishment of a socialist republic. The
basic framework of socialism is to
provide a decent standard
of
life to the
working people and
especially provide
security from cradle to grave. Article 41 enjoins the State
to
secure public assistance in old
age, sickness and
disablement. Every state
action whenever taken
must be
directed and must be
so interpreted as to take society one
step towards the goal of
establishing a socialist welfare
society. While examining
the constitutional validity
of
legislative/administrative action,
the touchstone of
Directive Principles of State Policy
in the light of the
Preamble provides a reliable
yardstick to hold one way or
the other. [190 E,187 F,189 A-B,189
H]
[1981] I S.C.R. 206, referred to.
4. Any member of the public
having sufficient interest
can maintain an action
for judicial redress for public
injury arising from breach of public duty or from violation
of some provision of the
Constitution or the law and seek
enforcement of such public
duty and observance of such
constitutional or legal
provision. The locus
standi of
petitioner No. 3 which
seeks to enforce rights that may be
available to a large
number of old, infirm retirees is
unquestionable as it is a non-political,
non-profit,
voluntary organisation registered
under the Societies
Registration Act, 1860 and
its members consist of public
spirited citizens who have taken up
the cause of ventilating
legitimate public problems. [208 H,
209 A-C]
S.P.Gupta v. Union of India, [1981]
Supp. S.C.C.87,
referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition Nos. 5939-41
of 1980.
Anil B. Divan, Mrs. Vineeta Sen Gupta and
P.H.Parekh for the Petitioners L.N.Sinha,Attorney General, M.M. Abdul Khader,
N. Nettar and Miss A. Subhashini for Union of India.
G.L. Sanghi and Randhir Jain for the interveners.
S.R.Srivastava for the Intervener.
K.K. Gupta for the Intervener.
The Judgment of the Court was delivered by
DESAI,J.With a slight variation to suit the context Woolesey's prayer :
"had I served my God as reverently as I did my king, I would not have
fallen on these days of penury" is chanted by petitioners in this group of
petitions in the Shellian tune : 'I fall on 172the thorns of life I bleed.' Old
age, ebbing mental and physical prowess, atrophy of both muscle and brain
powers permeating these petitions, the petitioners in the fall of life yearn
for equality of treatment which is being meted out to those who are soon going
to join and swell their own ranks, Do pensioners entitled to receive
superannuation or retiring pension under Central Civil Services (Pension)
Rules, 1972 ('1972 Rules' for short) form a class as a whole ? Is the date of
retirement a relevant consideration for eligibility when a revised formula for
computation of pension is ushered in and made effective from a specified date ?
Would differential treatment to pensioners related to the date of retirement
qua the revised formula for computation of pension attract Article 14 of the
Constitution and the element of discrimination liable to be declared
unconstitutional as being violative of Art. 14 ? These and the related
questions debated in this group of petitions call for an answer in the backdrop
of a welfare State and bearing in mind that pension is a socio-economic justice
measure providing relief when advancing age gradually but irrevocably impairs
capacity to stand on one's own feet.
Factual matrix has little relevance to the issues
raised and canvassed at the hearing. Petitioners 1 and 2 are retired pensioners
of the Central Government, the first being a civil servant and the second being
a member of the service personnel of the Armed Forces. The third petitioner is
a society registered under the Societies Registration Act, 1860, formed to
ventilate the legitimate public problems and consistent with its objective it
is espousing the cause of the pensioners all over the country. Its locus standi
is in question but that is a different matter. The first petitioner retired in
1972 and on computation, his pension worked out at Rs. 675/- p.m. and along
with the dearness relief granted from time to time, at the relevant time he was
in receipt of monthly pension of Rs. 935/-. The second petitioner retired at or
about that time and at the relevant time was in receipt of a pension plus
dearness relief of Rs. 981/- p.m. Union of India has been revising and
liberalising the pension rules from time to time. Some landmark changes may be
noticed.
The First Central Pay Commission (1946-47)
recommended that the age of retirement in future should be uniformly 58 years
for all services and the scale of pension should be 1/80 of the emoluments for
each year of service, subject to a limit of 35/80 with 173a ceiling of Rs. 8,000 per year for 35 years of service, which the
Government of India while accepting the recommendation raised to Rs. 8,100 per
year which would earn a monthly pension of Rs. 675 at the maximum. The Second
Central Pay Commission (1957-58) re-affirmed that the age of superannuation
should be 58 years for all classes of public servants but did not recommend any
increase in the non- contributory retirement benefits and recommended that if
in future any improvement is to be made, it was the considered view of the
Commission that these benefits should be on a contributory basis. The
Administrative Reforms Commission ('ARC' for short) set up by the Government of
India in 1956 took note of the fact that the cost of living has shot up and
correspondingly the possibility of savings has gone down and consequently the
drop in wages on retirement is in reality much steeper than what the quantum of
pension would indicate, and accordingly the ARC recommended that the quantum of
pension admissible may be raised to 3/6 of the emoluments of the last three
years of service as against the existing 3/8 and the ceiling should be raised
from Rs. 675 p.m. to Rs. 1000 p.m. Before the Government could take its decision
on the recommendations of the ARC, the Third Central Pay Commission was set up.
One of the terms of reference of the Third Pay Commission was 'death-cum-
retirement benefits of Central Government employees'. The Third Pay Commission
did not examine the question of relief to pensioners because in its view unless
the terms of reference were suitably amended it would not be within their
jurisdiction to examine this question and on a reference by them, the
Government of India decided not to amend the terms of reference. With regard to
the future pensioners the Third Pay Commission while reiterating that the age
of superannuation should continue to be 58 years further recommended that no
change in the existing formula for computing pension is considered necessary.
The only important recommendation worth noticing is that the Commission
recommended that the existing ceiling of maximum pension should be raised from
Rs. 675 to Rs. 1,000 p.m. and the maximum of the gratuity should be raised from
Rs. 24,000 to Rs. 30,000.
On May 25, 1979, Government of India, Ministry of
Finance, issued Office Memorandum No. F-19(3)-EV-79 whereby the formula for
computation of pension was liberalised but made it applicable to Government
servants who were in service on March 31, 1979 and retire from service on or
after that date (specified date for short). The formula introduced a slab
system for computation of 174pension. This liberalised pension
formula was applicable to employees governed by the 1972 Rules retiring on or
after the specified date. The pension for the service personnel which will
include Army, Navy and Air Force staff is governed by the relevant regulations.
By the Memorandum of the Ministry of Defence bearing No.
B/40725/AG/PS4-C/1816/AD (Pension)/Services dated September 28, 1979, the
liberalised pension formula introduced for the government servants governed by
the 1972 rules was extended to the Armed Forces personnel subject to
limitations set out in the memorandum with a condition that the new rules of
pension would be effective from April 1, 1979, and may be applicable to all
service officers who become/became non-effective on or after that date. (for
short specified date).
The chronology of events herein narrated would
bring to surface the contentions raised in these petitions. The liberalised
pension formula shall be applicable prospectively to those who retired on or
after March 31, 1979 in case of government servants covered by 1972 Rules and
in respect of defence personnel those who became/become non-effective on or
after April 1, 1979. Consequently those who retired prior to the specified date
would not be entitled to the benefits of the liberalised pension formula.
Petitioners accordingly contend that this Court may
consider the raison d'etre for payment of pension. If the Pension is paid for
past satisfactory service rendered, and to avoid destitution in old age as well
as a social welfare or socio-economic justice measure, the differential
treatment for those retiring prior to a certain date and those retiring
subsequently, the choice of the date being wholly arbitrary, would be according
differential treatment to pensioners who form a class irrespective of the date
of retirement and, therefore, would be violative of Art. 14. It was also
contended that classification based on fortuitous circumstance of retirement
before or subsequent to a date, fixing of which is not shown to be related to
any rational principle, would be equally violative of Art. 14.
Primary contention is that the pensioners of the
Central Government form a class for purpose of pensionary benefits and there
could not be mini-classification within the class designated as pensioners. The
expression 'pensioner' is generally understood in contra-distinction to the one
in service. Government servants in service, in other words, those who have not
retired, are entitled to 175salary and other allowances.
Those who retire and are designated as 'pensioners' are entitled to receive
pension under the relevant rules. Therefore, this would clearly indicate that
those who render service and retire on superannuation or any other mode of
retirement and are in receipt of pension are comprehended in the expression
'pensioners'.
Is this class of pensioners further divisible for
the purpose of 'entitlement' and 'payment' of pension into those who retired by
certain date and those who retired after that date ? If date of retirement can
be accepted as a valid criterion for classification, on retirement each
individual government servant would form a class by himself because the date of
retirement of each is correlated to his birth date and on attaining a certain
age he had to retire. It is only after the recommendations of the Third Central
Pay Commission were accepted by the Government of India that the retirement dates
have been specified to be 12 in number being last day of each month in which
the birth date of the individual government servant happens to fall. In other
words, all government servants who retire correlated to birth date on attaining
the age of superannuation in a given month shall not retire on that date but
shall retire on the last day of the month. Now, if date of retirement is a
valid criterion for classification, those who retire at the end of every month
shall form a class by themselves. This is too microscopic a classification to
be upheld for any valid purpose. Is it permissible or is it violative of Art.
14 ?
The scope, content and meaning of Article 14 of the
Constitution has been the subject-matter of intensive examination by this Court
in a catena of decisions. It would, therefore, be merely adding to the length
of this judgment to recapitulate all those decisions and it is better to avoid
that exercise save and except referring to the latest decision on the subject
in Maneka
Gandhi v. Union of India(1) from which the following observation may be extracted:
"......
what is the content and reach of the great equalising principle enunciated in
this article ? There can be no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which rests securely the foundation of
our democratic republic. And, therefore, it must 176 not be subjected to a narrow,
pedantic or lexicographic approach. No attempt should be made to truncate its
all-embracing scope and meaning for, to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many aspects and dimensions and
it cannot be imprisoned within traditional and doctrinaire limits..... Article
14 strikes at arbitrariness in State action and ensures fairness and equality
of treatment. The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence."
The decisions clearly lay down that though Art. 14
forbids class legislation, it does not forbid reasonable classification for the
purpose of legislation. In order, however, to pass the test of permissible
classification, two conditions must be fulfilled, viz., (i) that the
classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from those that are
left out of the group; and (ii) that differentia must have a rational relation
to the objects sought to be achieved by the statute in question. (see Shri Ram Krishna Dalmia v. Shri
Justice S.R. Tendolkar & Others.(1) The classification may be founded on
differential basis according to objects sought to be achieved but what is
implicit in it is that there ought to be a nexus i.e., causal connection
between the basis of classification and object of the statute under consideration.
It is equally well settled by the decisions of this Court that Art. 14 condemns
discrimination not only by a substantive law but also by a law of procedure.
After an exhaustive review of almost all decisions
bearing on the question of Art. 14, this Court speaking through Chandrachud,
C.J. in Re. Special Courts Bill (2) restated the settled propositions which
emerged from the judgments of this Court undoubtedly insofar as they were
relevant to the decision on the points arising for consideration in that
matter. Four of them are apt and relevant for the present purpose and may be
extracted. They are:
"3.
The constitutional command to the State to afford equal protection of its laws
sets a goal not attainable 177 by the invention and application
of a precise formula. Therefore, classification need not be constituted by an
exact or scientific exclusion or inclusion of persons or things. The Courts
should not insist on delusive exactness or apply doctrinaire tests for
determining the validity of classification in any given case. Classification is
justified if it is not palpably arbitrary.
4. The
principle underlying the guarantee of Article 14 is not that the same rules of
law should be applicable to all persons within the Indian territory or that the
same remedies should be made available to them irrespective of differences of
circumstances. It only means that all persons similarly circumstanced shall be
treated alike both in privileges conferred and liabilities imposed. Equal laws
would have to be applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the subject matter
of the legislation their position is substantially the same.
6. The
law can make and set apart the classes according to the needs and exigencies of
the society and as suggested by experience. It can recognise even degree of
evil, but the classification should never be arbitrary, artificial or evasive.
7. The
classification must not be arbitrary but must be rational, that is to say, it
must not only be based on some qualities or characteristics which are to be
found in all the persons grouped together and not in others who are left out
but those qualities or characteristics must have a reasonable relation to the
object of the legislation. In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped together
from others and (2) that differentia must have a rational relation to the
object sought to be achieved by the Act."
The other facet of Art. 14 which must be remembered
is that it eschews arbitrariness in any form. Article 14 has, therefore, not 178to be held identical with the doctrine of classification. As was noticed
in Maneka Gandhi's case in the earliest stages of evolution of the
Constitutional law, Art. 14 came to be identified with the doctrine of
classification because the view taken was that Art. 14 forbids discrimination
and there will be no discrimination where the classification making the
differentia fulfils the aforementioned two conditions. However, in EP. Royappa v. State of Tamil
Nadu(1), it
was held that the basic principle which informs both Arts. 14 and 16 is
equality and inhibition against discrimination. This Court further observed as
under:
"From
a positivistic point of view, equality is antithetic to arbitrariness. In fact,
equality and arbitrariness are sworn enemies; one belongs to the rule of law in
a republic while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is, therefore, violative
of Art. 14, and if it affects any matter relating to public employment, it is
also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment.
Justice
Iyer has in his inimitable style dissected Art.
14 as under:
"The
article has a pervasive processual potency and versatile quality, equalitarian
in its soul and allergic to discriminatory diktats. Equality is the antithesis
of arbitrariness and ex cathedra ipse dixit is the ally of demagogic
authoritarianism. Only knight-
errants of 'executive excesses'-if we may use
current cliche-can fall in love with the Dame of despotism, legislative or
administrative. If this Court gives in here it gives up the ghost. And so it
that I insist on the dynamics of limitations on fundamental freedoms as
implying the rule of law; be you ever so high, the law is above you."(2)
Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc.
v. Khalid Mujib Sehravardi & others etc. (3) held 179that it must, therefore, now be taken to be well settled that what
Art.14 strikes at is arbitrariness because any action that is arbitrary must
necessarily involve negation of equality. The Court made it explicit that where
an act is arbitrary it is implicit in it that it is unequal both according to
political logic and constitutional law and is, therefore, violative of Art. 14.
After a review of large number of decisions bearing on the subject, in Air
India etc. etc. v. Nargesh Meerza & Ors. etc etc. (1) the Court formulated
propositions emerging from analysis and examination of earlier decisions. One
such proposition held well established is that Art. 14 is certainly attracted
where equals are treated differently without any reasonable basis.
Thus the fundamental principle is that Art. 14
forbids class legislation but permits reasonable classification for the purpose
of legislation which classification must satisfy the twin tests of
classification being founded on an intelligible differntia which distinguishes
persons or things that are grouped together from those that are left out of the
group and that differentia must have a rational nexus to the object sought to
be achieved by the statute in question.
As a corrolary to this well established proposition,
the next question is, on whom the burden lies to affirmatively establish the
rational principle on which the classification is founded correlated to the
object sought to be achieved ? The thrust of Art. 14 is that the citizen is
entitled to equality before law and equal protection of laws. In the very
nature of things the society being composed of unequals a welfare state will
have to strive by both executive and legislative action to help the less
fortunate in the society to ameliorate their condition so that the social and
economic inequality in the society may be bridged. This would necessitate a
legislation applicable to a group of citizens otherwise unequal and
amelioration of whose lot is the object of state affirmative action. In the
absence of doctrine of classification such legislation is likely to flounder on
the bed rock of equality enshrined in Art. 14. The court realistically
appraising the social stratification and economic inequality and keeping in
view the guidelines on which the State action must move as constitutionally
laid down in part IV of the Constitution, evolved the doctrine of
classification. The doctrine was evolved to sustain a legislation or State
action designed to help weaker sections of the society or some 180such segments of the society in need of succor. Legislative and
executive action may accordingly be sustained if it satisfies the twin tests of
reasonable classification and the rational principle correlated to the object
sought to be achieved. The State, therefore, would have to affirmatively
satisfy the Court that the twin tests have been satisfied. It can only be
satisfied if the State establishes not only the rational principle on which
classification is founded but correlate it to the objects sought to be
achieved. This approach is noticed in Ramana Dayaram Shetty v. The
International Airport Authority of India & Ors.(1) when at page 1034, the Court
observed that a discriminatory action of the Government is liable to be struck
down, unless it can be shown by the Government that the departure was not
arbitrary, but was based on some valid principle which in itself was not
irrational, unreasonable or discriminatory.
The basic contention as hereinbefore noticed is
that the pensioners for the purpose of receiving pension form a class and there
is no criterion on which classification of pensioners retiring prior to
specified date and retiring subsequent to that date can provide a rational
principle correlated to object, viz., object underlying payment of pensions. In
reply to this contention set out in para 19 of the petition, Mr. S.N. Mathur,
Director, Ministry of Finance in part 17 of his affidavit-in-opposition on
behalf of the respondents has averred as under:
"The
contentions in part 18 and 19 that all pensioners form one class is not correct
and the petitioners have not shown how they form one class. Classification of
pensioners on the basis of their date of retirement is a valid classification
for the purpose of pensionary benefits."
These averments would show at a glance that the
State action is sought to be sustained on the doctrine of classification and
the criterion on which the classification is sought to be sustained is the date
of retirement of the Government servant which entitled him to pension. Thus
according to the respondents, pensioners who retire from Central Government
service and are governed by the relevant pension rules all do not form a class
but pensioners who retire prior to a certain date and those who retire
subsequent to a certain date form distinct and separate classes. It may be made
clear that the date of retirement of each individual 181pensioner is not suggested as a criterion for classification as that
would lead to an absurd result, because in that event every pensioner relevant
to his date of retirement will form a class unto himself. What is suggested is
that when a pension scheme undergoes a revision and is enforced effective form
a certain date, the date so specified becomes a sort of a Rubicon and those who
retire prior to that date form one class and those who retire on a subsequent
date form a distinct and separate class and no one can cross the Rubicon. And
the learned Attorney General contended that this differentiation is grounded on
a rational principle and it has a direct correlation to the object sought to be
achieved by liberalised pension formula.
The approach of the respondents raises a vital and
none too easy of answer, question as to why pension is paid. And why was it
required to be liberalised ? Is the employer, which expression will include
even the State, bound to pay pension ? Is there any obligation on the employer
to provide for the erstwhile employee even after the contract of employment has
come to an end and the employee has ceased to render service ?
What is a pension ? What are the goals of pension ?
What public interest or purpose, if any, it seeks to serve ? If it does seek to
serve some public purpose, is it thwarted by such artificial division of
retirement pre and post a certain date ? We need seek answer to these and
incidental questions so as to render just justice between parties to this
petition.
The antiquated notion of pension being a bounty a
gratituous payment depending upon the sweet will or grace of the employer not
claimable as a right and, therefore, no right to pension can be enforced
through Court has been swept under the carpet by the decision of the
Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Ors. (1)
wherein this Court authoritatively ruled that pension is a right and the
payment of it does not depend upon the discretion of the Government but is
governed by the rules and a Government servant coming within those rules is
entitled to claim pension. It was further held that the grant of pension does
not depend upon any one's discretion. It is only for the purpose of 182quantifying the amount having regard to service and other allied matters
that it may be necessary for the authority to pass an order to that effect but
the right to receive pension flows to the officer not because of any such order
but by virtue of the rules. This view was reaffirmed in State of Punjab & Anr. v.
Iqbal Singh (1).
There are various kinds of pensions and there are
equally various methods of funding pension programmes. The present enquiry is
limited to non-contributory superannuation or retirement pension paid by
Government to its erstwhile employee and the purpose and object underlying it.
Initially this class of pension appears to have been introduced as a reward for
loyal service. Probably the alien rulers who recruited employees in lower
echelons of service from the colony and exported higher level employees from
the seat of Empire, wanted to ensure in the case of former continued loyalty
till death to the alien rulers and in the case of latter, an assured decent
living standard in old age ensuring economic security at the cost of the
colony.
In the course of transformation of society from
feudal to welfare and as socialistic thinking acquired respectability, State
obligation to provide security in old age, an escape from undeserved want was
recognised and as a first step pension was treated not only as a reward for
past service but with a view to helping the employee to avoid destitution in
old age. The quid pro quo, was that when the employee was physically and
mentally alert he rendered unto master the best, expecting him to look after
him in the fall of life. A retirement system therefore exists solely for the
purpose of providing benefits. In most of the plans of retirement benefits,
everyone who qualifies for normal retirement receives the same amount. (see
Retirement Systems for Public Employees by Bleakney, page 33.) As the present
case is concerned with superannuation pension, a brief history of its initial
introduction in early stages and continued existence till today may be
illuminating. Superannuation is the most descriptive word of all but has become
obsolescent because it seems ponderous. Its genesis can be traced to the first
Act of Parliament (in U.K.) to be concerned with the provision of pensions
generally in public offices. It was passed in 1810. The 183Act which substantively devoted itself exclusively to the problem of
superannuation pension was superannuation Act of 1834. These are landmarks in
pension history because they attempted for the first time to establish a
comprehensive and uniform scheme for all whom we may now call civil servants.
Even before the 19th century, the problem of providing for public servants who
are unable, through old age or incapacity, to continue working, has been
recognised, but methods of dealing with the problem varied from society to
society and even occasionally from department to department.
A political society which has a goal of setting up
of a welfare State, would introduce and has in fact introduced as a welfare
measure wherein the retiral benefit is grounded on 'considerations of State
obligation to its citizens who having rendered service during the useful span
of life must not be left to penury in their old age, but the evolving concept
of social security is a later day development'. And this journey was over a
rough terrain. To note only one stage in 1856 a Royal Commission was set up to
consider whether any changes were necessary in the system established by the
1834 Act. The Report of the Commission is known as "Northcote-Trevelyan
Report". The Report was pungent in its criticism when it says that:
"in civil services comparable to lightness of work and the certainty of
provision in case of retirement owing to bodily incapacity, furnish strong
inducements to the parents and friends of sickly youths to endeavour to obtain
for them employment in the service of the Government, and the extent to which
the public are consequently burdened; first with the salaries of officers who
are obliged to absent themselves from their duties on account of ill health,
and afterwards with their pensions when they retire on the same plea, would
hardly be credited by those who have not had opportunities of observing the
operation of the system" (see Gerald Rhodes, Public Sector Pensions, pp.
18-19).
This approach is utterly unfair because in modern
times public services are manned by those who enter at a comparatively very
young age, with selection through national competitive examination and
ordinarily the best talent gets the opportunity.
Let us therefore examine what are the goals that
pension scheme seeks to subserve ? A pension scheme consistent with available
resources must provide that the pensioner would be able to live: (i) free from
want, with decency, independence and self-respect, 184and (ii) at a standard equivalent at the pre-retirement level. This
approach may merit the criticism that if a developing country like India cannot
provide an employee while rendering service a living wage, how can one be
assured of it in retirement ? This can be aptly illustrated by a small
illustration. A man with a broken arm asked his doctor whether he will be able
to play the piano after the cast is removed. When assured that he will, the
patient replied, 'that is funny, I could not before'. It appears that
determining the minimum amount required for living decently is difficult,
selecting the percentage representing the proper ratio between earnings and the
retirement income is harder. But it is imperative to note that as self-
sufficiency declines the need for his attendance or institutional care grows.
Many are literally surviving now than in the past. We owe it to them and
ourselves that they live, not merely exist. The philosophy prevailing in a
given society at various stages of its development profoundly influences its
social objectives. These objectives are in turn a determinant of a social
policy. The law is one of the chief instruments whereby the social policies are
implemented and 'pension is paid according to rules which can be said to
provide social security law by which it is meant those legal mechanisms
primarily concerned to ensure the provision for the individual of a cash income
adequate, when taken along with the benefits in kind provided by other social
services (such as free medical aid) to ensure for him a culturally acceptable
minimum standard of living when the normal means of doing so failed'. (see
Social Security law by Prof. Harry Calvert, p. 1).
Viewed in the light of the present day notions
pension is a term applied to periodic money payments to a person who retires at
a certain age considered age of disability; payments usually continue for the
rest of the natural life of the recipient. The reasons underlying the grant of
pension vary from country to country and from scheme to scheme. But broadly
stated they are (i) as compensation to former members of the armed forces or
their dependents for old age, disability, or death (usually from service
causes),
(ii) as old age retirement or disability benefits
for civilian employees, and (iii) as social security payments for the aged,
disabled, or deceased citizens made in accordance with the rules governing
social service programmes of the country. Pensions under the first head are of
great antiquity. Under the second head they have been in force in one form or
another in some countries for over a century but those coming under the third
head are relatively of recent origin, though they are of the greatest 185magnitude. There are other views about pensions such as charity,
paternalism, deferred pay, rewards for service rendered, or as a means or
promoting general welfare (see Encyclopaedia Britannica, Vol. 17 p.575.) But
these views have become otiose.
Pension to civil employees of the Government and
the defence personnel as administered in India appear to be a compensation for
service rendered in the past. However, as held in Douge v. Board of
Education(1) a pension is closely akin to wages in that it consists of payment
provided by an employer, is paid in consideration of past service and serves
the purpose of helping the recipient meet the expenses of living. This appears
to be the nearest to our approach to pension with the added qualification that
it should ordinarily ensure freedom from undeserved want.
Summing-up it can be said with confidence that
pension is not only compensation for loyal service rendered in the past, but
pension also has a broader significance, in that it is a measure of
socio-economic justice which inheres economic security in the fall of life when
physical and mental prowess is ebbing corresponding to aging process and
therefore, one is required to fall back on savings. One such saving in kind is
when you gave your best in the hey-day of life to your employer, in days of
invalidity, economic security by way of periodical payment is assured. The term
has been judicially defined as a stated allowance or stipend made in
consideration of past service or a surrender of rights or emoluments to one
retired from service. Thus the pension payable to a Government employee is earned
by rendering long and efficient service and therefore can be said to be a
deferred portion of the compensation or for service rendered. In one sentence
one can say that the most practical raison d'etre for pension is the inability
to provide for oneself due to old age. One may live and avoid unemployment but
not senility and penury if there is nothing to fall back upon.
The discernible purpose thus underlying pension
scheme or a statute introducing the pension scheme must inform interpretative
process and accordingly it should receive a liberal construction and the courts
may not so interpret such statute as to render them inane (see American
Jurisprudence 2d. 881).
186
From the discussion three things emerge : (i) that
pension is neither a bounty nor a matter of grace depending upon the sweet will
of the employer and that it creates a vested right subject to 1972 rules which
are statutory in character because they are enacted in exercise of powers
conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the
Constitution ; (ii) that the pension is not an ex-gratia payment but it is a
payment for the past service rendered ; and (iii) it is a social welfare
measure rendering socio-economic justice to those who in the hey-day of their
life ceaselessly toiled for the employer on an assurance that in their old age
they would not be left in lurch. It must also be noticed that the quantum of
pension is a certain percentage correlated to the average emoluments drawn
during last three years of service reduced to ten months under liberalised
pension scheme. Its payment is dependent upon an additional condition of
impeccable behaviour even subsequent to requirement, that is, since the
cessation of the contract of service and that it can be reduced or withdrawn as
a disciplinary measure.
Having succinctly focussed our attention on the
conspectus of elements and incidents of pension the main question may now be
tackled. But, the approach of court while considering such measure is of
paramount importance. Since the advent of the Constitution, the state action
must be directed towards attaining the goals set out in Part IV of the
Constitution which, when achieved, would permit us to claim that we have set up
a welfare State. Article 38 (1) enjoins the State to strive to promote welfare
of the people by securing and protecting as effective as it may a social order
in which justice social, economic and political shall inform all institutions
of the national life. In particular the State shall strive to minimise the
inequalities in income and endeavour to eliminate inequalities in status,
facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is
equal pay for equal work for both men and women and this directive should be
understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India
& Ors.(1)
Revealing the scope and content of this facet of equality, Chinnappa Reddy, J.
speaking for the Court observed as under :
"Now,
thanks to the rising social and political consciousness and the expectations
aroused as a consequence and the forward looking posture of this Court, the
under-
187
privileged also are clamouring for the rights and
are seeking the intervention of the Court with touching faith and confidence in
the Court. The Judges of the Court have a duty to redeem their Constitutional
oath and do justice no less to the pavement dweller than to the guest of the
Five Star Hotel."
Proceeding further, this Court observed that where
all relevant considerations are the same, persons holding identical posts may
not be treated differently in the matter of their pay merely because they
belong to different departments. If that can't be done when they are in service,
can that be done during their retirement? Expanding this principle, one can
confidently say that if pensioners form a class, their computation cannot be by
different formula affording unequal treatment solely on the ground that some
retired earlier and some retired later. Art. 39 (e) requires the State to
secure that the health and strength of workers, men and women, and children of
tender age are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength. Art. 41
obligates the State within the limits of its economic capacity and development,
to make effective provision for securing the right to work, to education and to
provide assistance in cases of unemployment, old age, sickness and disablement,
and in other cases of undeserved want. Art. 43 (3) requires the State to
endeavour to secure amongst other things full enjoyment of leisure and social
and cultural opportunities.
Recall at this stage the Preamble, the flood light
illuminating the path to be pursued by the State to set up a Sovereign
Socialist Secular Democratic Republic. Expression 'socialist' was intentionally
introduced in the Preamble by the Constitution (Forty-Second Amendment) Act,
1976. In the objects and reasons for amendment amongst other things, ushering
in of socio-economic revolution was promised. The clarion call may be extracted
:
"The
question of amending the Constitution for removing the difficulties which have
arisen in achieving the objective of socio-economic revolution, which would end
poverty and ignorance and disease and inequality of opportunity, has been
engaging the active attention of Government and the public for some
time.........
188
It is, therefore, proposed to amend the
Constitution to spell out expressly the high ideals of socialism........to make
the directive principles more comprehensive......"
What does a Socialist Republic imply? Socialism is
a much misunderstood word. Values determine contemporary socialism pure and
simple. But it is not necessary at this stage to go into all its ramifications.
The principal aim of a socialist State is to eliminate inequality in income and
status and standards of life. The basic framework of socialism is to provide a
decent standard of life to the working people and especially provide security
from cradle to grave. This amongst others on economic side envisaged economic
equality and equitable distribution of income. This is a blend of Marxism and
Gandhism leaning heavily towards Gandhian socialism. During the formative
years, socialism aims at providing all opportunities for pursuing the
educational activity. For want of wherewithal or financial equipment the
opportunity to be fully educated shall not be denied. Ordinarily, therefore, a
socialist State provides for free education from primary to Ph. D. but the
pursuit must be by those who have the necessary intelligence quotient and not
as in our society where a brainy young man coming from a poor family will not
be able to prosecute the education for want of wherewithal while the
ill-equipped son or daughter of a well-to-do father will enter the portals of
higher education and contribute to national wastage. After the education is
completed, socialism aims at equality in pursuit of excellence in the chosen
avocation without let or hindrance of caste, colour, sex or religion and with
full opportunity to reach the top not thwarted by any considerations of status,
social or otherwise. But even here the less equipped person shall be assured a
decent minimum standard of life and exploitation in any form shall be eschewed.
There will be equitable distribution of national cake and the worst off shall
be treated in such a manner as to push them up the ladder. Then comes the old
age in the life of everyone, be he a monarch or a Mahatma, a worker or a
pariah. The old age overtakes each one, death being the fulfilment of life
providing freedom from bondage. But there socialism aims at providing an
economic security to those who have rendered unto society what they were
capable of doing when they were fully equipped with their mental and physical
prowess. In the fall of life the State shall ensure to the citizens a
reasonably decent standard of life, medical aid, freedom from want, freedom
from fear and the enjoyable leisure, 189relieving the boredom and the
humility of dependence in old age. This is what Art. 41 aims when it enjoins
the State to secure public assistance in old age, sickness and disablement. It
was such a socialist State which the Preamble directs the centres of power
Legislative Executive and Judiciary-to strive to set up. From a wholly feudal
exploited slave society to a vibrant, throbbing socialist welfare society is a
long march but during this journey to the fulfilment of goal every State action
whenever taken must be directed, and must be so interpreted, as to take the
society one step towards the goal.
To some extent this approach will find support in
the judgment in Minerva
Mills Ltd. & Ors. v. Union of India & Ors.(1). Speaking for the majority,
Chandrachud, C.J. observed as under :
"This
is not mere semantics. The edifice of our Constitution is built upon the
concepts crystallised in the Preamble. We resolved to constitute ourselves into
a Socialist State which carried with it the obligation to secure to our people
justice-social, economic and political. We, therefore, put Part IV into our
Constitution containing directive principles of State policy which specify the
socialistic goal to be achieved."
At a later stage it was observed that the
fundamental rights are not an end in themselves but are the means to an end,
the end is specified in part IV. Bhagwati, J. in his minority judgment after
extracting a portion of the speech of the then Prime Minister Jawahar Lal
Nehru, while participating in a discussion on the Constitution (First
Amendment) Bill, observed that the Directive Principles are intended to bring
about a socio-economic revolution and to create a new socio-economic order
where there will be social and economic justice for all and everyone, not only
a fortunate few but the teeming millions of India, would be able to participate
in the fruits of freedom and development and exercise the fundamental rights.
It, therefore, appears to be well established that while interpreting or
examining the constitutional validity of legislative/administrative action, the
touchstone of Directive Principles of State Policy in the light of the Preamble
will provide a reliable yardstick to hold one way or the other.
190
With this background let us now turn to the
challenge posed in these petitions. The challenge is not to the validity of the
pension liberalisation scheme. The scheme is wholly acceptable to the
petitioners, nay they are ardent supporters of it, nay further they seek the
benefit of it. The petitioners challenge only that part of the scheme by which
its benefits are admissible to those who retired from service after a certain
date. In other words, they challenge that the scheme must be uniformly enforced
with regard to all pensioners for the purpose of computation of pension
irrespective of the date when the Government servant retired subject to the
only condition that he was governed by the 1972 Rules. No doubt, the benefit of
the scheme will be available from the specified date, irrespective of the fact
when the concerned Government servant actually retired from service.
Having set out clearly the society which we propose
to set up, the direction in which the State action must move, the welfare State
which we propose to build up, the constitutional goal of setting up a socialist
State and the assurance in the Directive Principles of State Policy especially
of security in old age at least to those who have rendered useful service
during their active years, it is indisputable, nor was it questioned, that
pension as a retirement benefit is in consonance with and furtherance of the
goals of the Constitution. The goals for which pension is paid themselves give
a fillip and push to the policy of setting up a welfare State because by
pension the socialist goal of security of cradle to grave is assured at least
when it is mostly needed and least available, namely, in the fall of life.
If such be the goals of pension, if such be the
welfare State which we propose to set up, if such be the goals of socialism and
conceding that any welfare measure may consistent with economic capacity of the
State be progressively augmented with wider width and a longer canvass yet when
the economic means permit the augmentation, should some be left out for the
sole reason that while in the formative years of the nascent State they
contributed their mite but when the fruits of their labour led to the flowering
of economic development and higher gross national produce bringing in larger
revenue and therefore larger cake is available, they would be denied any share
of it ? Indisputably, viewed from any angle pensioners for payment of pension
form a class. Unquestionably pension is linked to length of service and the
last pay drawn but the last pay does not imply the pay on the last day of
retirement 191but average emoluments as defined
in the scheme. Earlier average emoluments of 36 months' service provided the
measure of pension because the pension was related to the average emoluments
during 36 months just preceding retirement. By the liberalised scheme it is now
reduced to average emoluments of 10 months preceding the date. Any one in
government service would appreciate at a glance that with an average of 10
months it would be on the higher side on account of the two fortuitous
circumstances that the pay- scales, if one has not reached the maximum, permit
annual increments and there are promotions in the last one or two years. With a
view to giving a higher average the scheme was liberalised to provide for
average emoluments with reference to last 10 months' service. Coupled with it,
a slab system for computation is introduced and the ceiling is raised. This is
liberalisation. Now, if the pensioners who retired prior to the specified date
and had to earn pension on the average emoluments of 36 months' salary just
preceding the date of retirement, naturally the average would be lower and they
will be doubly hit because the slab system as now introduced was not available
and the ceiling was at a lower level. Thus they suffer triple jeopardy, viz.,
lower average emoluments, absence of slab system and lower ceiling.
What then is the purpose in prescribing the
specified date vertically dividing the pensioners between those who retired
prior to the specified date and those who retire subsequent to that date? That
poses the further question, why was the pension scheme liberalised ? What
necessitated liberalisation of the pension scheme ?
Both the impugned memoranda do not spell out the
raison d'etre for liberalising the pension formula. In the affidavit in
opposition by Shri S.N. Mathur, it has been stated that the liberalisation of
pension of retiring Government servants was decided by the Government in view
of the persistent demand of the Central Government employees represented in the
scheme of Joint Consultative Machinery. This would clearly imply that the
preliberalised pension scheme did not provide adequate protection in old age
and that a further liberalisation was necessary as a measure of economic
security. When Government favourably responded to the demand it thereby ipso
facto conceded that there was a larger available national cake part of which
could be utilised for providing higher security to erstwhile government
servants who would retire. The Government also took note of the 192fact that continuous upward movement of the cost of living index as a
sequel of inflationary inputs and diminishing purchasing power of rupee
necessitated upward revision of pension. If this be the underlying intendment
of liberalisation of pension scheme, can any one be bold enough to assert that
it was good enough only for those who would retire subsequent to the specified
date but those who had already retired did not suffer the pangs of rising
prices and falling purchasing power of the rupee ? What is the sum total of
picture ? Earlier the scheme was not that liberal keeping in view the
definition of average emoluments and the absence of slab system and a lower
ceiling. Those who rendered the same service earned less pension and are
exposed to the vagary of rising prices consequent upon the inflationary inputs.
If therefore, those who are to retire subsequent to the specified date would
feel the pangs in their old age, of lack of adequate security, by what stretch
of imagination the same can be denied to those who retired earlier with lower
emoluments and yet are exposed to the vagaries of the rising prices and the
falling purchasing power of the rupee. And the greater misfortune is that they
are becoming older and older compared to those who would be retiring subsequent
to the specified date. The Government was perfectly justified in liberalising
the pension scheme. In fact it was overdue. But we find no justification for
arbitrarily selecting the criteria for eligibility for the benefits of the
scheme dividing the pensioners all of whom would be retirees but falling on one
or the other side of the specified date.
Therefore, let us proceed to examine whether there
was any rationale behind the eligibility qualification. The learned
Attorney-General contended that the scheme is one whole and that the date is an
integral part of the scheme and the Government would have never enforced the
scheme devoid of the date and the date is not severable from the scheme as a
whole. Contended the learned Attorney-General that the Court does not take upon
itself the function of legislation for persons, things or situations omitted by
the legislature. It was said that when the legislature has expressly defined
the class with clarity and precision to which the legislation applies, it would
be outside the judicial function to enlarge the class and to do so is not to
interpret but to legislate which is the forbidden field. Alternatively it was
also contended that where a larger class comprising two smaller classes is
covered by a legislation of which one part is constitutional, the Court
examines whether 193the legislation must be
invalidated as a whole or only in respect of the unconstitutional part. It was
also said that severance always cuts down the scope of legislation but can
never enlarge it and in the present case the scheme as it stands would not
cover pensioners such as the petitioners and if by severance an attempt is made
to include them in the scheme it is not cutting down the class or the scope but
enlarge the ambit of the scheme which is impermissible even under the doctrine
of severability. In this context it was lastly submitted that there is not a
single case in India or elsewhere where the Court has included some category
within the scope of provisions of a law to maintain its constitutionality.
The last submission, the absence of precedent need
not deter us for a moment. Every new norm of socio economic justice, every new
measure of social justice commenced for the first time at some point of
history. If at that time it is rejected as being without a precedent, the law
as an instrument of social engineering would have long since been dead and no
tears would have been shed. To be pragmatic is not to be unconstitutional. In
its onward march law as an institution ushers in socio-economic justice. In
fact, social security in old age commended itself in earlier stages as a moral
concept but in course of time it acquired legal contention. The rules of
natural justice owed their origin to ethical and moral code. Is there any doubt
that they have become the integral and inseparable parts of rule of law of
which any civilised society is proud ? Can anyone be bold enough to assert that
ethics and morality are outside the field of legal formulations ?
Socio-economic justice stems from the concept of social morality coupled with
abhorrence for economic exploitation. And the advancing society converts in
course of time moral or ethical code into enforceable legal formulations. Over-emphasis
on precedent furnishes an insurmountable road-block to the onward march towards
promised millennium. An overdose of precedents is the bane of our system which
is slowly getting stagnant, stratified and atrophied. Therefore absence of a
precedent on this point need not deter us at all. We are all the more happy for
the chance of scribbling on a clean slate.
If it appears to be undisputable, as it does to us
that the pensioners for the purpose of pension benefits form a class, would its
upward revision permit a homogeneous class to be divided by arbitrarily fixing
an eligibility criteria unrelated to purpose of revision, and would such
classification be founded on some rational 194principle ? The classification
has to be based, as is well settled, on some rational principle and the
rational principle must have nexus to the objects sought to be achieved. We
have set out the objects underlying the payment of pension. If the State
considered it necessary to liberalise the pension scheme, we find no rational
principle behind it for granting these benefits only to those who retired
subsequent to that date simultaneously denying the same to those who retired
prior to that date. If the liberalisation was considered necessary for
augmenting social security in old age to government servants then those who
retired earlier cannot be worst off than those who retire later. Therefore,
this division which classified pensioners into two classes is not based on any
rational principle and if the rational principle is the one of dividing
pensioners with a view to giving something more to persons otherwise equally
placed, it would be discriminatory. To illustrate, take two persons, one
retired just a day prior and another a day just succeeding the specified date.
Both were in the same pay bracket, the average emolument was the same and both
had put in equal number of years of service. How does a fortuitous circumstance
of retiring a day earlier or a day later will permit totally unequal treatment
in the matter of pension ? One retiring a day earlier will have to be subject
to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36
months' salary while the other will have a ceiling of Rs. 12,000 p.a. and
average emolument will be computed on the basis of last ten months average. The
artificial division stares into face and is unrelated to any principle and
whatever principle, if there be any, has absolutely no nexus to the objects
sought to be achieved by liberalising the pension scheme. In fact this arbitrary
division has not only no nexus to the liberalised pension scheme but it is
counter productive and runs counter to the whole gamut of pension scheme. The
equal treatment guaranteed in Art. 14 is wholly violated inasmuch as the
pension rules being statutory in character, since the specified date, the rules
accord differential and discriminatory treatment to equals in the matter of
commutation of pension. A 48 hours difference in matter of retirement would
have a traumatic effect. Division is thus both arbitrary and unprincipled.
Therefore the classification does not stand the test of Art.
14. Further the classification is wholly arbitrary
because we do not find a single acceptable or persuasive reason for this
division. This arbitrary action violated the guarantee of Art. 14. The next
question is what is the way you ?
195
The learned Attorney-General contended that the
scheme is to be taken as a whole or rejected as a whole and the date from which
it came into force is an integral and inseparable part of the scheme. The two
sub-limbs of the submissions were that, (i) the Court cannot make a scheme
having financial implications retroactive, and (ii) this Court cannot grant any
relief to the pensioners who retired prior to a specified date because if more
persons divide the available cake, the residue falling to the share of each
especially to those who are likely to be benefited by the scheme will be
comparatively smaller and as they are not before the Court, no relief can be
given to the pensioners.
Let us clear one misconception. The pension scheme
including the liberalised scheme available to the Government employees is
non-contributory in character. It was not pointed out that there is something
like a pension fund. It is recognised as an item of expenditure and it is
budgeted and voted every year. At any given point of time there is no fixed or
predetermined pension fund which is divided amongst eligible pensioners. There
is no artificially created fund or reservoir from which pensioners draw pension
within the limits of the fund, the share of each being extensive with the
available fund. The payment of pension is a statutory liability undertaken by
the Government and whatever becomes due and payable is budgeted for. One could
have appreciated this line of reasoning where there is a contributory scheme
and a pension fund from which alone pension is disbursed. That being not the
case, there is no question of pensioners dividing the pension fund which, if
more persons are admitted to the scheme, would pro rata affect the share.
Therefore, there is no question of dividing the pension fund. Pension is a
liability incurred and has to be provided for in the budget. Therefore, the
argument of divisions of a cake, larger the number of sharers, smaller the
share and absence of residue and therefore by augmentation of beneficiaries,
pro rata share is likely to be affected and their absence making relief
impermissible, is an argument born of desperation, and is without merits and
must be rejected as untenable.
By our approach, are we making the scheme
retroactive ? The answer is emphatically in the negative. Take a government
servant who retired on April 1, 1979. He would be governed by the liberalised
pension scheme. By that time he had put in qualifying service of 35 years. His
length of service is a 196relevant factor for computation
of pension. Has the Government made it retroactive, 35 years backward compared
to the case of a Government servant who retired on 30th March, 1979 ? Concept
of qualifying service takes note of length of service, and pension quantum is
correlated to qualifying service. Is it retroactive for 35 years for one and
not retroactive for a person who retired two days earlier ? It must be
remembered that pension is relatable to qualifying service. It has correlation
to the average emoluments and the length of service. Any liberalisation would
pro tanto be retroactive in the narrow sense of the term. Otherwise it is
always prospective. A statute is not properly called a retroactive statute
because a part of the requisites for its action is drawn from a time antecedent
to its passing. (see Craies on Statute Law, sixth edition, p.
387). Assuming the Government had not prescribed
the specified date and thereby provided that those retiring pre and post the
specified date would all be governed by the liberalised pension scheme,
undoubtedly, it would be both prospective and retroactive. Only the pension
will have to be recomputed in the light of the formula enacted in the
liberalised pension scheme and effective from the date the revised scheme comes
into force. And beware that it is not a new scheme, it is only a revision of
existing scheme. It is not a new retiral benefit. It is an upward revision of
an existing benefit. If it was a wholly new concept, a new retiral benefit, one
could have appreciated an argument that those who had already retired could not
expect it. It could have been urged that it is an incentive to attract the
fresh recruits. Pension is a reward for past service. It is undoubtedly a condition
of service but not an incentive to attract new entrants because if it was to be
available to new entrants only, it would be prospective at such distance of
thirty-five years since its introduction. But it covers all those in service
who entered thirty-five years back. Pension is thus not an incentive but a
reward for past service. And a revision of an existing benefit stands on a
different footing than a new retiral benefit. And even in case of new retiral
benefit of gratuity under the Payment of Gratuity Act, 1972 past service was
taken into consideration. Recall at this stage the method adopted when
pay-scales are revised. Revised pay-scales are introduced from a certain date.
All existing employees are brought on to the revised scales by adopting a theory
of fitments and increments for past service. In other words, benefit of revised
scale is not limited to those who enter service subsequent to the date fixed
for introducing revised scales but the benefit is extended to all those in
service prior to that date. This is just and fair. Now 197if pension as we view it, is some kind of retirement wages for past
service, can it be denied to those who retired earlier, revised retirement
benefits being available to future retirees only ? Therefore, there is no
substance in the contention that the court by its approach would be making the
scheme retroactive, because it is implicit in theory of wages.
That takes us to the last important contention of
the learned Attorney General. It was urged that the date from which the scheme
becomes operative is an integral part of the scheme and the doctrine of
severability cannot be invoked. In other words, it was urged that date cannot
be severed from the main object of the scheme because the Government would have
never offered the scheme unless the date was an integral part of it.
Undoubtedly when an upward revision is introduced, a date from which it becomes
effective has to be provided. It is the event of retirement subsequent to the
specified date which introduces discrimination in one otherwise homogeneous
class of pensioners. This arbitrary selection of the happening of event
subsequent to specified date denies equality of treatment to persons belonging
to the same class, some preferred and some omitted. Is this eligibility
qualification severable ?
It was very seriously contended, remove the event
correlated to date and examine whether the scheme is workable. We find no
difficulty in implementing the scheme omitting the event happening after the
specified date retaining the more humane formula for computation of pension. It
would apply to all existing pensioners and future pensioners. In the case of
existing pensioners, the pension will have to be recomputed by applying the
rule of average emoluments as set out in Rule 34 and introducing the slab
system and the amount worked out within the floor and the ceiling.
But we make it abundantly clear that arrears are
not required to be made because to that extent the scheme is prospective. All
pensioners whenever they retired would be covered by the liberalised pension
scheme, because the scheme is a scheme for payment of pension to a pensioner
governed by 1972 Rules. The date of retirement is irrelevant. But the revised
scheme would be operative from the date mentioned in the scheme and would bring
under its umbrella all existing pensioners and those who retired subsequent to
that date. In case of pensioners who retired prior to the specified date, their
pension would be computed afresh and 198would be payable in future
commencing from the specified date. No arrears would be payable. And that would
take care of the grievance of retrospectivity. In our opinion, it would make a
marginal difference in the case of past pensioners because the emoluments are
not revised. The last revision of emoluments was as per the recommendation of
the Third Pay commission (Raghubar Dayal Commission). If the emoluments remain
the same, the computation of average emoluments under amended Rule 34 may raise
the average emoluments, the period for averaging being reduced from last 36
months to last 10 months. The slab will provide slightly higher pension and if
someone reaches the maximum the old lower ceiling will not deny him what is
otherwise justly due on computation. The words "who were in service on
31st March, 1979 and retiring from service on or after the date" excluding
the date for commencement of revision are words of limitation introducing the
mischief and are vulnerable as denying equality and introducing an arbitrary
fortuitous circumstance can be severed without impairing the formula.
Therefore, there is absolutely no difficulty in removing the arbitrary and
discriminatory portion of the scheme and it can be easily severed.
There is nothing immutable about the choosing of an
event as an eligibility criteria subsequent to a specified date. If the event
is certain but its occurrence at a point of time is considered wholly
irrelevant and arbitrarily selected having no rationale for selecting it and
having an undesirable effect of dividing homogeneous class and of introducing
the discrimination, the same can be easily severed and set aside. While
examining the case under Art. 14, the approach is not: 'either take it or leave
it', the approach is removal of arbitrariness and if that can be brought about
by severing the mischievous portion the court ought to remove the
discriminatory part retaining the beneficial portion. The pensioners do not
challenge the liberalised pension scheme. They seek the benefit of it. Their
grievance is of the denial to them of the same by arbitrary introduction of
words of limitation and we find no difficulty in severing and quashing the
same. This approach can be legitimised on the ground that every Government
servant retires. State grants upward revision of pension undoubtedly from a
date. Event has occurred revision has been earned. Date is merely to avoid
payment of arrears which may impose a heavy burden. If the date is wholly
removed, revised pensions will have to be paid from the actual date of
retirement of each pensioner. That is impermissible. The State 199cannot be burdened with arrears commencing from the date of retirement
of each pensioner. But effective from the specified date future pension of
earlier retired Government servants can be computed and paid on the analogy of
fitments in revised pay-scales becoming prospectively operative. That removes
the nefarious unconstitutional part and retains the beneficial portion. It does
not adversely affect future pensioners and their presence in the petitions
becomes irrelevant. But before we do so, we must look into the reasons assigned
for eligibility criteria, namely, 'in service on the specified date and
retiring after that date'. The only reason we could find in affidavit of Shri Mathur
is the following statement in paragraph 5 :
"The
date of effect of the impugned orders has been selected on the basis of
relevant and valid considerations."
We repeatedly posed a question: what are those
relevant and valid considerations and waited for the answer in vain. We say so
because in the written submissions filed on behalf of the Union of India, we
find not a single valid or relevant consideration much less any consideration
relevant to selection of eligibility criteria. The tenor is "we select the
date and it is unquestionable; either take it or leave it as a whole". The
only submission was that the date is not severable and some submissions in
support of it.
Having examined the matter on principle, let us
turn to some precedents. In D.R.
Nim v. Union of India(1) the
appellant questioned his seniority which was to be determined in accordance
with the provisions contained in Indian Police Service (Regulation of
Seniority) Rules, 1954. These rules required first to ascertain the year of
allotment of the person concerned for the determination of his seniority. In
doing so, the Government of India directed that officers promoted to the Indian
Police Service should be allowed the benefit of their continuous officiation
with effect only from 19th May, 1951. The appellant challenged the order
because the period of officiation from June 1947 to May 1951 was excluded for
the purpose of fixation of his seniority. His grievance was that there was no
rationale behind selecting this date. After taking into consideration affidavit
in opposition, this Court held as under :
"It
would be noticed that the date, May 19, 1951, to begin with had nothing to do
with the finalisation of the 200 Gradation List of the Indian
Police Service because it was a date which had reference to the finalisation of
the Gradation List for the IAS. Further this date does not seem to have much
relevance to the question of avoiding the anomalous position mentioned in para
9 of the affidavit reproduced above. This date was apparently chosen for the
IAS because on this date the Gradation List for all the earlier persons
recruited to the service had been finalised and issued in a somewhat stable
stage. But why should this date be applied to the Indian Police Service has not
been adequately explained. Mr. BRL Iyengar, the learned counsel for the
appellant, strongly urges that selection of May 19, 1951, as a crucial date for
classifying people is arbitrary and irrational. We agree with him in this
respect. It further appears from the affidavit of Mr. D.K. Guha, Deputy
Secretary to the Government of India, Ministry of Home Affairs, dated December
9, 1966 that "the Government of India have recently decided in
consultation with the Ministry of Law that the Ministry of Home Affairs letter
No. 2/32/51-AIS, dated the 25th August, 1955 will not be applicable to those
SCS/SPS officers, who were appointed to IAS/IPS prior to the promulgation of
IAS/IPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the
above letter if their earlier continuous officiation was approved by the
Ministry of Home Affairs and Union Public Service Commission". It further
appears that "in the case of Shri C.S. Prasad also, an IPS Officer of
Bihar, a decision has been taken to give the benefit of full continuous
officiation in senior posts and to revise his year of allotment
accordingly." But, it is stated that "as Shri Nim was appointed to
IPS on the 22nd October 1955, i.e. after the promulgation of IPS (Regulation of
Seniority) Rules, 1954, and after the issue of letter dated 25.8.1955, his case
does not fall even under this category". The above statement of the case of
the Government further shows that the date, May 19, 1951 was an artificial and
arbitrary date having nothing to do with the application of the first and the
second provisos to Rule 3 (3). It appears to us that under the second proviso
to Rule 3 (3) the period of officiation of a particular officer has to be
considered and approved or disapproved by the Central Government in
consultation with the Commission considering all the relevant facts. The
Central Government 201 cannot pick out a date from a
hat-and that is what it seems to have done in this case-and say that a period
prior to that date would not be deemed to be approved by the Central Government
within the second proviso."
The Court held that the Central Government cannot
pick out a date from a hat and that is what it seems to have done in saying
that a period prior to that date would not be deemed to be approved by the
Central Government within the second proviso. In case before us, the
eligibility criteria for being eligible for liberalised pension scheme have
been picked out from where it is difficult to gather and no rationale is
discernible nor one was attempted at the hearing. The ratio of the decision
would squarely apply to the facts of this case.
Similarly in Jaila Singh & Anr. v. State
of Rajasthan & Ors.(1), this Court struck down as discriminatory the division of pre-1955
and post-1955 tenants for the purpose of allotment of land made by the Rules
under the Rajasthan Colonisation Act, 1954 observing that the various
provisions indicate that the pre-1955 and post-1955 tenants stand on the same
footing and therefore do not form different classes and hence the division was
held to be based on wholly irrelevant consideration. The court further observed
that it is difficult to appreciate how it would make any difference from the
point of view of allotment of land, whether a tenant has been in occupation for
16 years or 18 or 20 years and why differentiation should be made with
reference to the date when Rajasthan Tenancy Act came into force. This division
for the purpose of allotment of land with reference to certain date was
considered both arbitrary and discriminatory on the ground that it was wholly
unrelated to the objects sought to be achieved.
As against this the learned Attorney-General
invited our attention to Union of
India & Anr. v. M/s Parameswaran Match Works etc.(2) By a notification dated
July 21, 1967, benefit of a concessional rate of duty was made available if a
manufacturer of matches made a declaration that the total clearance of matches
from a factory would not exceed 75 million during a financial year. As framed
the notification extended the benefit to manufacturers with higher capacity to
avail of the concessional 202rate of duty by filing a
declaration as visualised in the proviso to the notification by restricting
their clearance to 75 million matches. This notification was amended on
September 4, 1967 with a view to giving bona fide small manufacturers, whose
total clearance was not estimated to be in excess of 75 million matches, the
benefit of concessional rate of duty prescribed under notification dated July
21, 1967. The respondent in the case applied for a licence for manufacturing
matches on September 5, 1967, that is, a day after the date on which amended
notification was issued and filed a declaration that the estimated manufacture
for the financial year would not exceed 75 million matches, but this was
rejected. In a writ petition filed by the respondent, the High Court held that
the classification was unreasonable inasmuch as the fixation of the date for
making a declaration had no nexus with the object of the Act. In the appeal by
the Union of India, this Court held that the concessional rate of duty was
intended for small bona fide units who were in the field when the notification
dated September 4, 1967 was issued. The concessional rate of duty was not
intended to benefit the large units which had split up into smaller units to
earn the concession. With reference to selection of the date this Court
observed as under :
"The
choice of a date as a basis for classification cannot always be dubbed as
arbitrary even if no particular reason is forthcoming for the choice unless it
is shown to be capricious or whimsical in the circumstances. When it is seen
that a line or a point there must be and there is no mathematical or logical
way of fixing it precisely, the decision of the legislature or its delegate
must be accepted unless we can say that it is very wide of the reasonable
mark."
In reaching this conclusion the Court relied on
Louisville Gas Co. v. Alabama Power Co. (1) This decision is not an authority
for the proposition that whenever a date is chosen, or an eligibility criteria
which divides a class, the purpose of choice unrelated to the objects sought to
be achieved must be accepted as valid. In fact it is made clear in the decision
itself that even if no particular reason is forthcoming for the choice unless it
is shown to be capricious or whimsical, the choice of the legislature may be
accepted. Therefore, the choice of the date 203cannot be wholly divorced from
the objects sought to be achieved by the impugned action. In other words, if
the choice is shown to be thoroughly arbitrary and introduces discrimination
violative of Art. 14, the date can be struck down. What facts influenced the
Court's decision in that case for upholding the choice of the date are worth-
recalling. The Court held that the object of granting the concessional rate of
duty was to protect the smaller units in the industry from the competition by
the larger ones and that object would have been frustrated, if, by adopting the
device of fragmentation, the larger units could become the ultimate
beneficiaries of the bounty. This was the weighty consideration which prompted
the court to uphold the date.
The learned Attorney General next referred to D.C.
Gouse and Co. etc. v. State of Kerala & Anr. etc. (1) This Court while
repelling the contention that the choice of April 1, 1973 as the date of
imposition of the building tax is discriminatory with reference to Art. 14 of
the Constitution, approved the ratio in the case of M/s. Parameswaran Match
Works etc. supra. Even while reaching this conclusion the Court observed that
it is not shown how it could be said that the date (April 1, 1973) for the levy
of the tax was wide of the reasonable mark. What appealed to the Court was that
earlier an attempt was made to impose the building tax with effect from March
2, 1961 under the Kerala Building Tax Act, 1961 but the Act was finally struck
down as unconstitutional by this Court as per its decision dated August 13,
1968. While delivering the budget speech, at the time of introduction of the
1970-71 budget, the intention to introduce a fresh Bill for the levy of tax was
made clear. The Bill was published in June 73 in which it was made clear that
the Act would be brought into force from April 1, 1970. After recalling the
various stages through which the Bill passed before being enacted as Act, this
Court held that the choice of date April 1, 1973 was not wide of the reasonable
mark. The decision proceeds on the facts of the case. But the principle that
when a certain date or eligibility criteria is selected with reference to
legislative or executive measure which has the pernicious tendency of dividing
an otherwise homogeneous class and the choice of beneficiaries of the
legislative/executive action becomes selective, the division or classification
made by choice of date or eligibility criteria must have some relation to the
objects sought 204to be achieved. And apart from
the first test that the division must be referable to some rational principle,
if the choice of the date or classification is wholly unrelated to the objects
sought to be achieved, it cannot be upheld on the specious plea that was the
choice of the Legislature.
Now if the choice of date is arbitrary, eligibility
criteria is unrelated to the object sought to be achieved and has the
pernicious tendency of dividing an otherwise homogeneous class, the question is
whether the liberalised pension scheme must wholly fail or that the pernicious
part can be severed, cautioning itself that this Court does not legislate but
merely interprets keeping in view the underlying intention and the object, the
impugned measure seeks to subserve ? Even though it is not possible to
oversimplify the issue, let us read the impugned memoranda deleting the
unconstitutional part. Omitting it, the memoranda will read like this :
"At
present, pension is calculated at the rate of 1/80th of average emoluments for
each completed year of service and is subject to a maximum of 33/80 of average
emoluments and is further restricted to a monetary limit of Rs. 1,000/- per
month. The President is, now, pleased to decide that with effect from 31st
March, 1979 the amount of pension shall be determined in accordance with the
following slabs."
If from the impugned memoranda the event of being
in service and retiring subsequent to specified date is severed, all pensioners
would be governed by the liberalised pension scheme. The pension will have to
be recomputed in accordance with the provisions of the liberalised pension
scheme as salaries were required to be recomputed in accordance with the
recommendation of the Third Pay Commission but becoming operative from the
specified date. It does therefore appear that the reading down of impugned
memoranda by severing the objectionable portion would not render the
liberalised pension scheme vague, unenforceable or unworkable.
In reading down the memoranda, is this Court
legislating ? Of course 'not'. When we delete basis of classification as
violative of Art. 14, we merely set at naught the unconstitutional portion
retaining the constitutional portion.
205
We may now deal with the last submission of the
learned Attorney General on the point. Said the learned Attorney- General that
principle of severability cannot be applied to augment the class and to adopt
his words 'severance always cuts down the scope, never enlarges it'. We are not
sure whether there is any principle which inhibits the Court from striking down
an unconstitutional part of a legislative action which may have the tendency to
enlarge the width and coverage of the measure. Whenever classification is held
to be impermissible and the measure can be retained by removing the
unconstitutional portion of classification, by striking down words of
limitation, the resultant effect may be of enlarging the class. In such a
situation, the Court can strike down the words of limitation in an enactment.
That is what is called reading down the measure. We know of no principle that
'severance' limits the scope of legislation and can never enlarge it. To refer
to the Jaila Singh's case (supra), when for the benefit of allotment of land
the artificial division between pre-1955 and post-1955 tenant was struck down
by this Court, the class of beneficiaries was enlarged and the cake in the form
of available land was a fixed quantum and its distribution amongst the larger
class would protanto reduce the quantum to each beneficiary included in the
class. Similarly when this Court in Randhir Singh's case (supra) held that the
principle of 'equal pay for equal work' may be properly applied to cases of
unequal pay based on no classification or irrational classification it enlarged
the class of beneficiaries. Therefore, the principle of 'severance' for taking
out the unconstitutional provision from an otherwise constitutional measure has
been well recognised. It would be just and proper that the provision in the
memoranda while retaining the date for its implementation, but providing 'that
in respect of Government servants who were in service on the 31st March, 1979
but retiring from service in or after that date' can be legally and validly
severed and must be struck down. The date is retained without qualification as
the effective date for implementation of scheme, it being made abundantly clear
that in respect of all pensioners governed by 1972 Rules, the pension of each
may be recomputed as on April 1, 1979 and future payments be made in accordance
with fresh computation under the liberalised pension scheme as enacted in the
impugned memoranda. No arrears for the period prior to 31st March, 1979 in
accordance with revised computation need be paid.
In this context the last submission of the learned
Attorney General was that as the pension is always correlated to the date of 206retirement, the Court cannot change the date of retirement, and impose
fresh commutation benefit. We are doing nothing of this kind. The apprehension
is wholly unfounded. The date of retirement of each employee remains as it is.
The average emoluments have to be worked out keeping in view the emoluments
drawn by him before retirement but in accordance with the principles of the
liberalised pension scheme. The two features which make the liberalised pension
scheme more attractive is the redefining of average emoluments in Rule 34, and
introduction of slab system simultaneously raising the ceiling. Within these
parameters, the pension will have to be recomputed with effect from the date
from which the liberalised pension scheme came into force i.e. March 31, 1979.
There is no question of fresh commutation of pension of the pensioners who
retired prior to 31st March, 1979 and have already availed of the benefit of
commutation. It is not open to them to get that benefit at this late date
because commutation has to be availed of within specified time limit from the
date of actual retirement. May be some marginal retirees may earn the benefit.
That is inevitable. To say that by our approach we are restructuring the
liberalised pension scheme, is to ignore the constitutional mandate. Similarly,
the court is not conferring benefits by this approach, the court only removes
the illegitimate classification and after its removal the law takes its own
course.
But in this context the learned Attorney submitted
the following quotation which appears to have been extracted from a decision of
American Court, citation of which was not available. The quotation may be
extracted from the written submission. It reads as under:
"It
remains to enquire whether this plea that Congress would have enacted the
legislation and the Act being limited to employees engaged in commerce within
the district of Columbia and the Territory. If we are satisfied that it would
not or that the matter is in such doubt that we are unable to say what Congress
would have done omitting the unconstitutional features then the statute must
fail."
We entertain no such apprehension. The Executive
with parliamentary mandate liberalised the pension scheme. It is implicit in
liberalising the scheme that the deed to grant little higher rate of pension to
the pensioners was considered eminently 207just. One could have understood
persons in the higher pay bracket being excluded from the benefits of the
scheme because it would have meant that those in higher pay bracket could fend
for themselves. Such is not the exclusion. The exclusion is of a whole class of
people who retire before a certain date. Parliament would not have hesitated to
extend the benefit otherwise considered eminently just, and this becomes
clearly discernible from page 35 of 9th Report of Committee on Petitions (Sixth
Lok Sabha) April, 1976. While examining their representation for better
pensionary benefit, the Committee concluded as under:
"The
Committee are of the view that Government owe a moral responsibility to provide
adequate relief to its retired employees including pre 1.1.1973 pensioners,
whose actual value of pensions has been eroded by the phenomenal rise in the
prices of essential commodities. In view of the present economic conditions in
India and constant rise in the cost of living due to inflation, it is all the
more important even from purely humanitarian considerations if not from the
stand point of fairness and justice, to protect the actual value of their
meagre pensions to enable the pensioners to live in their declining years with
dignity and in reasonable comfort."
Therefore, we are not inclined to share the
apprehension voiced by the learned Attorney that if we strike down the
unconstitutional part, the parliament would not have enacted the measure. Our
approach may have a parliamentary flavour to sensitive noses.
The financial implication in such matters has some
relevance. However in this connection, we want to steer clear of a
misconception. There is no pension fund as it is found either in contributory
pension schemes administered in foreign countries or as in Insurance-linked
pensions. Non- contributory pensions under 1972 rules is a State obligation. It
is an item of expenditure voted year to pear depending upon the number of
pensioners and the estimated expenditure. Now when the liberalised pension
scheme was introduced, we would justifiably assume that the Government servants
would retire from the next day of the coming into operation of the scheme and
the burden will have to be computed as imposed by the liberalised scheme.
Further Government has been granting since nearly a decade temporary increases
from time to time to pensioners. Therefore, the difference will be marginal.
208
Further, let it not be forgotten that the old
pensioners are on the way out and their number is fast decreasing. While
examining the financial implication, this Court is only concerned with the
additional liability that may be imposed by bringing in pensioners who retired
prior to April 1, 1979 within the fold of liberalised pension scheme but
effective subsequent to the specified date. That it is a dwindling number is
indisputable. And again the large bulk comprises pensioners from lower echelons
of service such as Peons, L.D.C., U.D.C., Assistant etc. In a chart submitted
to us, the Union of India has worked out the pension to the pensioners who have
retired prior to the specified date and the comparative advantage, if they are
brought within the purview of the liberalised pension scheme. The difference
upto the level of Assistant or even Section Officer is marginal keeping in view
that the old pensioners are getting temporary increases. Amongst the higher
officers, there will be some difference because the ceiling is raised and that
would introduce the difference. It is however necessary to refer to one figure
relied upon by respondents. It was said that if pensioners who retired prior to
31st March, 1979 are brought within the purview of the liberalised pension
scheme, Rs. 233 crores would be required for fresh commutation. The apparent
fallacy in the submission is that if the benefit of commutation is already
availed of, it cannot and need not be reopened. And availability of other
benefits is hardly a relevant factor because pension is admissible to all
retirees. The figures submitted are thus neither frightening nor the liability is
supposed to be staggering which would deflect us from going to the logical end
of constitutional mandate. Even according to the most liberal estimate, the
average yearly increase is worked out to be Rs. 51 crores but that assumes that
every pensioner has survived till date and will continue to survive. Therefore,
we are satisfied that the increased liability consequent upon this judgment is
not too high to be unbearable or such as would have detracted the Government
from covering the old pensioners under the scheme.
Locus standi of third petitioner was questioned.
Petitioner No. 3 is a Society registered under the Societies Registration Act
of 1860. It is a non-political non-profit and voluntary organisation. Its
members consist of public spirited citizens who have taken up the cause of
ventilating legitimate public problems. This Society received a large number of
representations from old pensioners, individually unable to undertake the
journey through 209labyrinths of legal judicial
process, costly and protracted, and. therefore, approached petitioner No. 3
which espoused their cause Objects for which the third petitioner-Society was
formed were not questioned. The majority decision of this Court in S.P. Gupta
v. Union of India(1) rules that any member of the public having sufficient
interest can maintain an action for judicial redress for public injury arising
from breach of public duty or from violation of some provision of the
Constitution or the law and seek enforcement of such public duty and observance
of such constitutional or legal provision. Third petitioner seeks to enforce
rights that may be available to a large number of old infirm retirees.
Therefore, its locus standi is unquestionable. But it is a point of academic
important because locus standi of petitioners Nos. 1 and 2 was never
questioned.
That is the end of the journey. With the expanding
horizons of socio-economic justice, the socialist Republic and welfare State
which we endeavour to set up and largely influenced by the fact that the old
men who retired when emoluments were comparatively low and are exposed to
vagaries of continuously rising prices, the falling value of the rupee
consequent upon inflationary inputs, we are satisfied that by introducing an
arbitrary eligibility criteria: 'being in service and retiring subsequent to
the specified date' for being eligible for the liberalised pension scheme and
thereby dividing a homogeneous class, the classification being not based on any
discernible rational principle and having been found wholly unrelated to the
objects sought to be achieved by grant of liberalised pension and the
eligibility criteria devised being thoroughly arbitrary, we are of the view
that the eligibility for liberalised pension scheme of being in service on the
specified date and retiring subsequent to that date' in impugned memoranda,
Exhibits P-I and P-2, violates Art. 14 and is unconstitutional and is struck
down. Both the memoranda shall be enforced and implemented as read down as
under: In other words, in Exhibit P-1, the words:
"that
in respect of the Government servants who were in service on the 31st March,
1979 and retiring from service on or after that date"
210
and in Exhibit P-2, the words:
"the
new rates of pension are effective from 1st April 1979 and will be applicable
to all service officers who became/become non-effective on or after that
date."
are unconstitutional and are struck down with this
specification that the date mentioned therein will be relevant as being one
from which the liberalised pension scheme becomes operative to all pensioners
governed by 1972 Rules irrespective of the date of retirement. Omitting the
unconstitutional part it is declared that all pensioners governed by the 1972
Rules and Army Pension Regulations shall be entitled to pension as computed
under the liberalised pension scheme from the specified date, irrespective of
the date of retirement. Arrears of pension prior to the specified date as per
fresh computation is not admissible. Let a writ to that effect be issued. But
in the circumstances of the case, there will be no order as to costs.
H.L.C.
Petition allowed.
211
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