D.S. NAKARA & OTHERS v. UNION OF INDIA (2)

Citation: [1983] 2 S.C.R. 165

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, V.D. TULZAPURKAR, D.A. DESAI, O. CHINNAPPA REDDY, BAHARUL ISLAM

Case summary

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...

Judgment text

D. S. NAKARA & OTHERS v. UNION OF INDIA I December 17, 1982 {Y. V. CllANDllACHUD, C. J. , V. D. TuLzApulll:AB. D. A. DESAI, 0. CHINNAPPA RBl>DY AND BAHARUL ISLAM, JI. ) ConS/ltution ofIndio, Art. U-Cntral Clril S1rvic. , (P1n1/on) Rules, 1972 olld R1gulatlo1U gororit/ltg p11UI011 for .. trmod Porc11 P1rsonn1i-Llblral/1ation in computallon of p1/Ulon eff1cl/P1 from •P1Ciffed dati-Di. ld. , pensl0111r1 •o .. lo co11f•f b1ntfit 01t some whil1 d1nyi,,g it to oth•r1-Cla11ificatlon arbitrary, devoid ofratio11,/ 111xus to o! J}1. :t ofliberalisation aNI violative ofA. rt. If.. co.. tltMllO• of India, .. trt. 14-Doctrl•• of llV1FObility-S1.. ra11e• 11101 lum •if•ct ofMlar1in1 scope of/q/slallon . R11le1 Qlld Re111Iatlon1 f. J111rning tra11t of p1n1ion-P1nsion is a rifht- De/ur. d prtio• of comPMJOlion for . tlfPice rtnder1d-Al10 a soclal~welfar• ,... ,. ,,. By a Memorandum datod M•y 25, 1979 (ll•bibit P-1) the Government of India liberalisod the formull for corupatalion.

of pension in re•poct or I employ... aovetned by tbe Central Civil Suvicos (Pon1ion) Rule•. 1972 and made it applicable to employees retiring on or after Ma. rch 31, 197~. By anothdr Memorandum issued on September 23, 1979 (B•bibit P-2) it oxtendod the ••mo, subject to certain limitatiOll! , to tbe Arm"d Forces' personnel retiring on or after April t, 1979. Petitioners I and 2 who had retired in tho year 1972 from tho Central Civil Service and the Armed Forces' service respectively, and petitioner No. 3, a rogisterod society ~ousing the ca- of pensioners all over the country, challenaed tho validity of the above two memoranda'in so far as tbo liberalisation in computation of pension bad boon made applicable only to those retiring on or after the date specified and tho bonefit of liberalisation had been denied to all those who bad retired earlier. Counsel for petitioners contended th1t all p~n~ioJ!

rs entitled til re,;aiv~ pension under the relevant rules form a class irrespective of the dates of their retirement and there cannot be a mini-classification within this classi that the differential treatment accorded to those who had retired prior to th~ sp~cifi~d date is violative of Art. 14 as the choice of specified date is wholly arbitrary and tho classification hued on the fortuitous circumstance of retirement before or subaoquent 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 SUPREME COUB. T REPORTS (1983] 2 S. C. M. Counsei for resporidents contended that a classification based oa.

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 or enlarging the class of pensioners covered by the scheme and when the legislature has expressly defined the class to which the legislation appJies it would be outside the judicial function to enlarge the class; that there is not a single case where the court bas included some category within the scope of provbioos of a law to maintain its consti· tutionality; 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 ~s always correlated to the date of of retirement and the court Cannot change the date of retirement and impOse freSh commutation benefit Which may burden the exchequer to thC tune of Rs. 233 crores; and that the third petifioner has no locus standi in the cBse. Allowing the petitiolis, HELD: Article 14 strikes at a-rbitrarinfss 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 atl in the same situation and there should be no discrimination between one person and a. t1other if as regards the subject-•matter of the legislation their position is substan~ially tbe same. Article 14 fo1bids class ~egislatio_n ·but permits reasonable classification for the _purpose of legislation.

The classification must. be founded on an intelligible differentia which_ Qistinguishes persons or things that are grouped together from those that are left out of the group and thai differentia must have a rational nexus to the 9bject, sought to be achieved by the statute in question. Io 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 reasoD;Bble 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. [176B,178 D-E, 179 B-C, 177 C-D, 179 C-D, 176 E-F, 179 H, 180 A·C] Maneka Gandhi v. Union of India, [1978) 2 S. C. R. 621; Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors. , [1959] S. C. R. 279; In re Special Courts Bil/, [1979] 2 S. C. R, 476; E. P. Royappa v. State ofTamil 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 Mterza & Ors. , [1982) 1S. C. R. 438 and Ramana D11yaram Shetty v. International Airport Authority ofIndia & Ors. , [1979] 3 S. C. R. 1014, referred to. D. S.

NAKARA \I, UNION 167 In the instarit case, Jooking to the goals for the attainment of wh ih pension is paid and the welfare State proposed to b: set up in the light of t(I: _, Directive Principles of State Policy and Preamble to the :constitution it isc indisputable that pensioners for payment of pension from a class. Wilen the State considered it necessary to liberalise the pension scheme in order to augcn~nt social security in old age to governnient servants it could not grant the b~oefits of liberalisation orily fo those who r:tire1S1J. ,oeq_1 !! lt ta t1. ~ i;J~~iFi! i date and deny the same to those who had retired prior to that date. The division which i classified the pensioners into two classes on the basis of the specified date was devoid of any rational principle ao. J w1> bJttl arbitr,iry a'. li 1. 11,rin. ;ipl~d beiag unrelated to the object sought to be achi. ,ved by grant of lib :i-i 1is! 1 P.! il1io:i and the guarantee of equal treatment contained in Art.

14 was violated in1smuch as the pension rules which were statutory in character meted out differential and discriminatory treatment to equals in the m1tter of co n,·1t1tioJ Jof p. :nsio11 from the dates specified in the impugned m"n>ran1i. [! JO F-H, 194 A·C, 194 F-H) (ii) Prior to the liberalisation of the formula for computation of pension averagt 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 JO months' service. Pension would now be on the higher side on account of two fortuitous circumstances, namely, 1hat lbe pay scales permit annual incremerits and usually there are promotions in the last one or two years of the employee's service. Coupled with it a slab system for complltation 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, abseace of slab system and lower ceiling. [191 A·D] (lii) 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 pefsistent 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 p! D. iiOJ. When the government favourably responded to the demand it thereby ipso facto concedf:d 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 ooly for thOIC who would retire subsequent to the specified date but not for those who had already retired. [191 F-G, 192 A, 191 H, 192 Bl . 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 th~ instant. case, the petitio~ers ~o not challenge, but seek the benefit of the hbcrahsed pension scheme. Their grievance is of the denial to th the same by arb1'trary intro· duct1on· of words or limitation Th · emh. o · ere 1s not 1na immutable about the choosing of an eveb. t as air-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 dividina: a homogeneous class and of introducing discrimination the same can be easily severed and set aside. It i1 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 tho Government servants who were in service on the 31st March, 1979 and retiring from sel"fice on or after that date. 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 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 pensioner! 'I governed by the 1972 Rules and Army Pension Regulations sball 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-DJ D. R. Nim v. Union ofIndia, [1967] 2 S. C. R. 325; and Jai/a Singh & Anr. v. Stai. ofRajasthan & Ors. , [1975] Supp. S. C. R. 428, relied on. Union ofIndia & Anr. v. M/s. Parameswaran Match Works etc. , [1975] 2 S. C. R. 573; and D. C. Gou1 . s. NAKARA v. UNION (Desai, j) i99 cannot . be burdened with arrears commencing from the date of retirement <>f rach pensioner. But effective from the specified date future pension ~f 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 c. f 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. " J. - . , We repeatedly posed a que•tion : what are those relevant and valid considerations and waited for the answer in vah1. 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 tak~ 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 tlirn to some precedents. In D. R. Nim v. Union of India(') the appellant questioned his seniority wiiich 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 be~ind 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 (I) (1967] 2S. C. R. 325. :WO SUPllEN! F COURT REPORTS 119831 2 s. r. ~. Gradation List of the Tndian Police Service because it was a date which had reference to the finalisatioQ of the. Gradation List for the I ! \S. 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 thjs date the Gradation List for all the earlier persons recrufred to the service bad been finalised and issued in a somf1what stable stage. But why should this date be applied to the Indian Police Service has not been adeqnately 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. Guba, Deputy Secretary to the Government of India, ' .. Ministry of Home Affairs, dated December 9, 1966 that "the Government of fodia have recently decided in consult1tion with the Ministry of Law that the Ministry of Home Affairs letter No. 2/32/5 l·AIS, dated the 25th August, 1955 will not be applicabk 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 Servic1: Commission". It further appears that "in the case of Shri C. S. Prasad also, an JPS 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 JPS on the 22nd October 1955, i e. after the promulgation of IPS (Regulation of Seniority) . Rules, 1954, and afo:r 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 provisoito 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 D;S. NAKARA v. UNION (Desai, J.

) 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 1,>e 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. '· 1 Similarly in Jai/a Singh & Anr. v. State of Rajasthan & Ors. ( ), ,.. .

, 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· Rltjasthan 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 allotme_nt 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 Parame. of imposition of the building tax is discriminatory with reference to Art. 14 of the Constitution, approved the ratio in the case of Mjs.. Parameswaran Match Works etc. supra. Even while reaching this conclusion the Court observed that it is not shown bow 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 tbe building tax with effect fro~Marcb 2, 1961 under the Kerala Building Tax Act, 1961 but the Act was finally struck down as unconstitutional by this Court 11s 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 stag es through which the Bill passed before being en3cted as Act, this Court held that the choice of date April I, 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 el igibillty 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 11) [1980) I S. C. R, 804. 204 SUPRBMB COURT RBpORTS (1983) 2 S. C. R. to be achieved.

And apart from the first test that the division must be referable to some rational principle, if the choice of the date or classification is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that that was the choice of the Legi$lature. 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 hom9ge· neous 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 i11 view the underlying intention and the object, the impugned measure seeks to subserve? Bven 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, pen11ioo is calculated at the rate of J/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 3lst March, 1979 the amount of pension shall be determined in accordance wtth the following slabs. " If from the impugned memoranda the eveol of being in service and retiring subsequent to specified date is severed, all pensioners wol\ld 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, ,, 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. ,,,_,_ fi. s. NAJtAil. A li. UNION (Desai, J. ) 205 We may hoW deal with the last submission of the iearned Attorney General on the point. Said the learned Attorney-General that principle of severability cannot be applied to augment the tlass and io 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 Jai/a 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 ealarged and the eake 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 bas 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 (I 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 str. uck down.

The date; is retained w1tbo•t 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 I, 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 correl11te\I to the date of 206 StlPRilltfil COURT REPORTS [19831 2 s. c. ll. retirement, the Court cannot change the date of retirement, and impose fresh commutation beMfit. W,e 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 s'cheme·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 bas 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 i:o ignore the constitutional mandate. Similarly, the court is not conferring benefits by this approach, the court only removes the ill. egitimate 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 hij! her rate of pension to the pensioners was considered eminently D. S. NAICAllA v. UNION (Desai, J. ) 201 just. One could have understood persons in the higher pay bracket being excluded from the benefits of the scheme because it would. have meant that those in higher pay bracket could fend for themselves. Such is not the exclusion. The exclusion is of a whole class of people who retire before a certain date. Parliament would not have hesitated to extend the benefit otherwise considered eminently just, and this becomes clearly discernible from page 35 8 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 t_he 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, \Ve 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 opera· tion of the scheme and the burden will have to be computed as - imposed by the liberalised scheme. Further Government bas been granting since nearly a decade temporary increases from time to time to pensioners. Therefore, the difference will be marginal.. 208 SUPRi! MB COUllT RBPoRTS r1983I 2s. c. ll.

Further, let it not be forgotten that the old pensioners are on the way out and their ininibet is fast decreasing. While examining ihe financial implication; this Court is only concerned with the additional liability that may be imposed by bringing in pdt! Slonsrs who. retired prior to April 1, 1979 within the fold of liberalised pension scheme but effective subseque:nt 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, . c 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 sp. ecified date and the comparative advantage, if they are brought within the purview of the liberalised pension scheme. The difference upto the level of Asssitant 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.

) I crores but that assumes that every pensioner has survived till date and will continue to survive. Therefore, we are sati:;fied 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-1lrofit 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 D. S. NAKARA V. UNION (Desai, J. ) 209 labyrinths of legal judicial process, costly and protracted, and. therefore, approached petitioner No.

3 which espoused their cause Objects for which the third petitioner-Society was formed were not questhmed. The majority decision of this Court in S. P. Gupta v. Union of India(') 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. I 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 0 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 liberali.

•ed 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 io 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-1 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 nnder : In other words, in Exhibit P~l. the words: "that in respect of the Government servants who were in service on the 31st March, 1979 11n<! retiring from service on or after that date" (1) [1981) Supp.. S. C. C. 87 at 218. . __,,_ 210 SUPREME COURT RllPORTS (1983) 2 S. C. R and in Exhibit P-2, the words : "the new rates of pension are effective from !

st 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 unco:1stitutional 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. •·