Tripura High Court
The State Of Tripura vs Sri Jagadish Chandra Dhar on 21 September, 2022
Author: Arindam Lodh
Bench: T. Amarnath Goud, Arindam Lodh
[1]
HIGH COURT OF TRIPURA
AGARTALA
W.A. 231 OF 2020
1. The State of Tripura,
represented by the Principal Secretary,
Education Department, Government of Tripura,
New Secretariat Building, New Capital Complex,
P.O. Kunjaban, Agartala, West Tripura-799010
2. The Secretary,
Finance Department, Government of Tripura,
New Secretariat Building, New Capital Complex,
P.O. Kunjaban, Agartala, West Tripura-799010
3. The Director of Elementary Education,
Siksha Sadan, Office Lane, Agartala, West Tripura
4. The Director of School Education,
Office Lane, Agartala, West Tripura
5. The Accountant General (A & E), Tripura,
O/o the Accountant General, Bholagiri,
Airport Road, Agartala, West Tripura,
P.S. New Capital Complex
---- Appellants.
(Respondents No. 1 to 4 in the writ petition)
Versus
1. Sri Jagadish Chandra Dhar, Son of late Jatindra Kumar Dhar, Vill & PO: Pragati Road, Nayapara, Dharmanagar, North Tripura
2. Sri Niranjan Debnath, Son of Sri Uday Chandra Debnath, resident of Pragati Road, Nayapara, Dharmanagar, North Tripura
3. Sri Sulini Mohan Debnath, Son of late Nakul Chandra Debnath, resident of Birendra Mohan Sarani, Post Office Road, Dharmanagar, North Tripura
4. Sri Sudhangshu Mohan Roy, Son of Radhamohan Roy, resident of Vidyasagar Sarani (B.O.C.) Rajbari, Dharmanagar, North Tripura
---Respondents.
(Petitioner in the writ petition) [2] In W.P(C) 431 of 2019
1. Sri Jagadish Chandra Dhar, Son of late Jatindra Kumar Dhar, Vill & PO: Pragati Road, Nayapara, Dharmanagar, North Tripura
2. Sri Niranjan Debnath, Son of Sri Uday Chandra Debnath, resident of Pragati Road, Nayapara, Dharmanagar, North Tripura
3. Sri Sulini Mohan Debnath, Son of late Nakul Chandra Debnath, resident of Birendra Mohan Sarani, Post Office Road, Dharmanagar, North Tripura
4. Sri Sudhangshu Mohan Roy, Son of Radhamohan Roy, resident of Vidyasagar Sarani (B.O.C.) Rajbari, Dharmanagar, North Tripura
---- Petitioners in the writ petition.
Versus
1. The State of Tripura, represented by the Principal Secretary, Education Department, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
2. The Secretary, Finance Department, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
3. The Director of Elementary Education, Siksha Sadan, Office Lane, Agartala, West Tripura
4. The Director of School Education, Office Lane, Agartala, West Tripura
5. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex .....Appellants.
---(Respondents No. 1-4 in writ petition). [3] W.A. 448 OF 2020
1. The State of Tripura, represented by the Principal Secretary, Department of Industries and Commerce, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
2. The Secretary, Finance Department, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
3. The Director, Handloom, Handicraft and Sericulture, P.N. Complex, Gorkhabasti, Agartala, West Tripura
4. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex
---- Appellant.
(Respondents No. 1 to 4 in the writ petition) Versus Sri Binoy Bhusan Nag, Son of Bidhusan Nag, resident of Pragati Road, Nayapara, Dharmanagar, North Tripura
---Respondent.
(Petitioner in the writ petition) In W.P(C) 430 of 2019 Sri Binoy Bhusan Nag, Son of Bidhusan Nag, resident of Pragati road, Nayapara, Dharmanagar, North Tripura
---- Petitioner in the writ petition.
Versus
1. The State of Tripura, represented by the Principal Secretary, Department of Industries and Commerce, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
2. The Secretary, Finance Department, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010 [4]
3. The Director, Handloom, Handicraft and Sericulture, P.N. Complex, Gorkhabasti, Agartala, West Tripura
4. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex
---Respondents in the writ petition.
W.A. 23 OF 2021
1. The State of Tripura, represented by the Commissioner and Secretary, Department of Home, Government of Tripura, having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
2. The Secretary & Commissioner, Government of Tripura, Department of Finance having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
3. The Director General of Police, Government of Tripura, having his office at Police Headquarter, P.O. Agartala, P.S. West Agartala, Sub-Division- Agartala, West Tripura
---- Appellants.
(Respondents No. 1 to 3 in the writ petition) Versus
1. Sri Subodh Ranjan Ray, Son of late Manomohan Ray, resident of Amtali, Ashram Para, P.O. + P.S. Amtali, District- West Tripura-799130
---Respondent.
(Petitioner in the writ petition)
2. The Accountant General (A&E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, P.O. Kunjaban-799006, West Tripura, P.S. New Capital Complex
---Pro-forma Respondent.
(Respondent no. 4 in the writ petition) [5] In W.P(C) 216 of 2020
1. Sri Subodh Ranjan Ray, Son of late Manomohan Ray, resident of Amtali, Ashram Para, P.O. + P.S. Amtali, District- West Tripura-799130
---- Petitioner.
Versus
1. The State of Tripura, represented by the Commissioner and Secretary, Department of Home, Government of Tripura, having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
2. The Secretary & Commissioner, Government of Tripura, Department of Finance having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
3. The Director General of Police, Government of Tripura, having his office at Police Headquarter, P.O. Agartala, P.S. West Agartala, Sub-Division- Agartala, West Tripura
4. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex
---Respondents in the writ petition.
W.A. 26 OF 2021
1. The State of Tripura, represented by the Commissioner and Secretary, Department of Home, Government of Tripura, having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
2. The Secretary & Commissioner, Government of Tripura, Department of Finance having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, [6] District- West Tripura
3. The Director General of Police, Government of Tripura, having his office at Police Headquarter, P.O. Agartala, P.S. West Agartala, Sub-Division- Agartala, West Tripura
---- Appellants.
(Respondents No. 1 to 3 in the writ petition) Versus
1. Sri Hira Lal Paul, Son of late Harendra Kumar Paul, resident of C.R. Road, Agartala, P.O. Agartala, P.S. East Agartala, District- West Tripura Pin-799001
---Respondent.
(Petitioner in the writ petition)
2. The Accountant General (A&E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, P.O. Kunjaban-799006, West Tripura, P.S. New Capital Complex
---Pro-forma Respondent.
(Respondent no. 4 in the writ petition) In W.P(C) 217 of 2020
1. Sri Hira Lal Paul, Son of late Harendra Kumar Paul, resident of C.R. Road, Agartala, P.O. Agartala, P.S. East Agartala, District- West Tripura Pin-799001
---- Petitioner.
Versus
1. The State of Tripura, represented by the Commissioner and Secretary, Department of Home, Government of Tripura, having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
2. The Secretary & Commissioner, Government of Tripura, Department of Finance [7] having his office at New Secretariat Complex, Gorkhabasti, Agartala, P.O. Kunjaban, P.S. New Capital Complex, Sub-Division- Sadar, District- West Tripura
3. The Director General of Police, Government of Tripura, having his office at Police Headquarter, P.O. Agartala, P.S. West Agartala, Sub-Division- Agartala, West Tripura
4. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex
---Respondents in the writ petition.
W.A. 190 OF 2021
1. The State of Tripura, represented by the Principal Secretary, Department of Industries and Commerce, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
2. The Secretary, Finance Department, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
3. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex
4. The D.M. and Collector, North Tripura
---- Appellants.
(Respondents No. 1 to 4 in the writ petition) Versus Sri Pijush Kanti Bhattacharjee, Son of late Promod Ranjan Bhattacharjee, resident of D.N.V Road, Dharmanagar,
---Respondent.
(Petitioner in the writ petition) [8] In W.P(C) 432 of 2019 Sri Pijush Kanti Bhattacharjee, Son of late Promod Ranjan Bhattacharjee, resident of D.N.V Road, Dharmanagar,
---- Petitioner in Writ Petition.
Versus
1. The State of Tripura, represented by the Principal Secretary, Department of Industries and Commerce, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
2. The Secretary, Finance Department, Government of Tripura, New Secretariat Building, New Capital Complex, P.O. Kunjaban, Agartala, West Tripura-799010
3. The Accountant General (A & E), Tripura, O/o the Accountant General, Bholagiri, Airport Road, Agartala, West Tripura, P.S. New Capital Complex
4. The D.M. and Collector, North Tripura
---Respondents in writ petition.
W.A. 196 OF 2021
1. The State of Tripura, represented by the Secretary, Department of Health & Family Welfare, Government of Tripura, New Secretariat Complex, P.S. New Capital Complex, Kunjaban, Agartala, Pin-799010
2. The Director of Health Services, Government of Tripura, Pandit Nehru Complex, Gurkhabasti, P.O. Kunjaban, P.S. West Agartala, West Tripura Pin-799006
3. The SDMO, Dharmanagar, North Tripura District
---- Appellants.
Versus
1. Sri Kanakjyoti Deb Kanungo, Son of late Kaushik Ranjan Deb Kanungo, resident of Dharmanagar, Hospital Road, [9] P.O. & P.S. Dharmanagar, District- North Tripura Pin-799250
---Respondent.
2. The Accountant General (A & E), Tripura, Office of the Accountant General, Kunjaban, Agartala, P.S. East Agartala, West Tripura District
---Proforma-Respondent.
In W.P(C) 675 of 2020
1. Sri Kanakjyoti Deb Kanungo, Son of late Kaushik Ranjan Deb Kanungo, resident of Dharmanagar, Hospital Road, P.O. & P.S. Dharmanagar, District- North Tripura Pin-799250
---- Petitioner.
Versus
1. The State of Tripura, represented by the Secretary, Department of Health & Family Welfare, Government of Tripura, New Secretariat Complex, P.S. New Capital Complex, Kunjaban, Agartala, Pin-799010
2. The Director of Health Services, Government of Tripura, Pandit Nehru Complex, Gurkhabasti, P.O. Kunjaban, P.S. West Agartala, West Tripura Pin-799006
3. The SDMO, Dharmanagar, North Tripura District
4. The Accountant General (A & E), Tripura, Office of the Accountant General, Kunjaban, Agartala, P.S. East Agartala, West Tripura District
---Respondents.
For Appellant(s) : Mr. D. Bhattacharya, G.A.
Mr. D. Sharma, Addl. GA
For Respondent(s) : Mr. P. Roy Barman, Sr. Advocate
Mr. S. Bhattacharjee, Advocate
Mr. B. Majumder, Asstt. SG
Date of hearing & delivery
of Judgment and order : 21.09.2022
Whether fit for reporting : Yes
[10]
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order (ORAL)
(Arindam Lodh, J.)
The above intra-Court appeals have been preferred by the State of Tripura challenging the legality and validity of the judgment dated 24 th and 31st January, 2020 passed by the learned Single Judge (A. Kureshi, C.J, as he then was) in connection with the case nos. WP(C) 430/2019 (Sri Binoy Bhushan Nag Vs. State of Tripura and 3 Ors), WP(C) 675/2020 (Sri Kanakjyoti Deb Kanungo Vs. State of Tripura and 3 Ors), WP(C) 432/2019 (Sri Pijush Kanti Bhattacharjee Vs. State of Tripura and 3 Ors), WP(C) 217/2020 (Sri Hira Lal Paul Vs. State of Tripura and 3 Ors), WP(C) 431/2019 (Sri Jagadish Chandra Dhar and 3 Ors. Vs. State of Tripura and 4 Ors.), WP(C) 216/2020 (Sri Subodh Ranjan Ray Vs. State of Tripura and 3 Ors.), whereby and whereunder the cut-off date of 01/01/2009 contained in Rule 5 of the Pension Rules, 2009 for applicability of reduced length of qualifying service for receiving full pension was held unconstitutional and allowed the writ petitions holding that all the petitioners who retired after 01/01/2006 would receive the benefit flowing from Rule 5 of Pension Rules, 2009 irrespective to the fact that they retired prior to 01/01/2009.
2. Since common questions of law and facts are involved in these writ appeals, all have been heard and disposed of by this common judgment. [11] For convenience, WA No. 448 of 2020 arising out of WP(C) No. 430 of 2019 is taken as a lead case. The parties to the lis are referred to hereunder according to their original status in the writ petitions.
3. In the writ petition, the petitioners claimed for following reliefs:
"i) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the Respondents for providing full pension to the Petitioner on completion of 25 years service by reading down/striking the following words "on or after 01.01.2009" from the Rule 5 of Tripura State Civil Services (Revised Pension) Rules, 2009.
ii) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby reading down/striking the following words "on or after 01.01.2009" from the Rule 5 of Tripura State Civil Services (Revised Pension) Rules, 2009.
iii) Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the Respondent to recalculate and re-determine the pensionary benefits of the Petitioner giving the benefit of full pension on the basis of 25 years of service and pay the arrear amount.
iv) Make the rules absolute.
v) Call for records.
vi) Pass any further order/orders as this Hon'ble High Court considered fit and proper."[12]
4. The facts leading to the present appeal, in a nutshell may be narrated as under:
"The petitioner joined the Government service under the Directorate of Handloom, Handicraft and Sericulture on the post of Operative Sericulture on 10.03.1978. The petitioner retired on superannuation from the Government service from the post of Sericulture Development Officer on 31.03.2006. The petitioner had thus completed 28 years of service before retirement. At the relevant time, the pension rules of the State Government prescribed 33 years of service upon completion of which a retired employee would get full pension. The Government of Tripura framed Tripura State Civil Services (Revised Pension) Rules, 2009 (hereinafter to be referred to as the ROP 2009). In these rules several provisions were made for revising the pension entitlements of the retirees of the State Government."
5. From the challenge made in the writ petition it appears that the controversy centres round Rule 5 of Pension Rules, 2009, which reads as under:
"5. QUALIFYING SERVICE FOR COMPUTATION OF PENSION:
The qualifying years of service in respect of admissibility of full pension is reduced from 33 years to 25 years for employee(s) proceeded/proceeding on superannuation/ retirement on or after 1.1.2009. For the purpose of computation of qualifying service the period of functional service rendered by the Government employee shall only be taken into consideration and the six monthly periods under existing provision of the Rule will remain applicable subject to reduction from 66 to
50. A few cases of computation are illustrated in the Annexure."[13]
6. Points, which arose for determination and decision before the learned Single Judge, are as follows:
"i) Whether Rule 5 of TSCS (Revised Pension) Rules, 2009 can bifurcate different classes of the employees for the purpose of pension.
ii) Whether state authority can introduce a particular cut-off date for extending benefit of pension to the employees within the realm of its jurisdiction."
7. Conclusion and decision of the learned Single Judge:
"In the result, all petitions are disposed of with following directions and declarations:
(1) The cut-off date of 01.01.2009 contained in Rule 5 of the ROP 2009 for applicability of reduced length of qualifying service for receiving full pension is held unconstitutional.
(2) Consequently, all the petitioners who have retired after 01.01.2006 would receive the benefit flowing from Rule 5 of ROP 2009 irrespective to the fact that they retired prior to 1.1.2009.
(3) The respondents shall verify the service details of the petitioners; re-fix their pension in terms of Rule 5 of the ROP 2009. Such pension fixation and its periodic revision would be done on notional basis from the date of the retirement till the date of filing of the petitions after which all the petitioners would be entitled to actual difference in pension prospectively.
Entire exercise shall be completed within a period of four months from today."
[14]
8. We have heard Mr. D. Bhattacharya, learned G.A and Mr. D. Sarma, learned Addl. G.A appearing for the State-respondents(appellants herein), Mr. B. Majumder, learned Asstt. S.G appearing for the respondent no.5, the Accountant General (A & E), Tripura. Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharya, learned counsel appearing for the writ petitioners (respondents herein).
9. It is the case of the petitioners that the reduction of minimum service for claiming maximum/full pension from 33 years to 25 years as contained in Rule-5 of the Pension Rules, 2009, could not have been confined to those employees who superannuated or retired after 01.01.2009. Since Pension Rules 2006 were brought into force w.e.f 1.1.2006 such liberalized formula must be applicable to all employees who superannuate or retire after 1.1.2006. The petitioners point out that all the petitioners have put in more than 25 years of service and had retired on superannuation after 1.1.2006. If therefore, the contention of the petitioners is accepted all the petitioners would be entitled to maximum/full pension on the strength of their service and by applicability or Rule-5 of Pension Rules, 2009.
10. Mr. Bhattacharya, learned G.A appearing for the State- respondents contended that the writ petitioners retired from service prior to 01/01/2009, and accordingly, they would be governed by Rule 5 of Tripura State Civil Services(Revised Pension) Rules, 2009 (for short, TSCS (Revised [15] Pension) Rules, 2009) and full pension would not be admissible. According to learned G.A, the cut-off date as determined by the State authority cannot be held to be arbitrary one and it is absolutely within the domain of the State policy makers to legislate any rule governing the pension of its employees. According to learned G.A, the learned Single Judge exercised his jurisdiction not vested upon him by law and erred in interfering with the policy decision of the State Legislature. Learned G.A has strenuously argued to set aside the judgment passed by the learned Single Judge.
11. On the other hand, Mr. P. Roy Barman, learned senior counsel defended the findings and reasonings given by learned Single Judge in his judgment, while extending the above reliefs to the writ petitioners. Learned senior counsel appearing for the writ petitioners has pressed into service the judgment of the constitution bench of the Supreme Court in D.S. Nakara & Ors. Vrs. Union of India, reported in (1983)1 SCC 305 and All Manipur Pensioners Association, represented by its Secretary Vs. State of Manipur & Ors., reported in AIR 2019 SC 3338. Reliance being place upon the above decisions, learned senior counsel submitted that fixation of a cut-off date which divides the same and single class of pensioners and deprives one set of employees from the benefit of revised pension offends equality clause as enshrined under Article 14 of the Constitution of India. [16]
12. We have given our thoughtful considerations to the submissions advanced by the learned counsels appearing for the parties. We have also perused the findings and reasonings given by the learned Single Judge while allowing the writ petitions. The moot question before the learned Single Judge was whether the cut-off date of 01/01/2009 for granting benefit of reduced service for claiming full pension is legal or does it suffer from the vice of hostile discrimination.
13. Learned Single Judge at the very outset had taken note of the judgment of the Constitution Bench in the case of D.S. Nakara (supra). It was a case in which the Government of India had formulated a Revised Pension Scheme. Such Revised Pension Scheme was made applicable only to those employees who retired on or after a particular date which has been popularly referred to as the cut-off date. Such cut-off date was challenged by some of the retired employees. The Supreme Court held that the pensioners as a class formed a homogenous group and cannot be further sub-divided into those retired before and those retired after a cut-off date. It was further noted by learned Single Judge that the argument advanced on behalf of Union of India was that if on account of such reason the Revised Pension Scheme was discriminatory, the same must be struck down as a whole. The Supreme Court, however, held that in such a case it was open for the Court to remove the offending portion of the pension scheme instead of striking down the whole scheme altogether and thereby provided the benefit to the retired [17] employees who had retired even prior to the cut-off date artificially introduced in the scheme. Learned Single Judge abstracted following observations and decision of the Supreme Court:
"39. 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 fact 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 anyone 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.[18]
42. 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 principle ? 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 Article 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 Article 14.
43. 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 Article 14. The next question is what is the way you?[19]
47. 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 ?
48. 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.
49. 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 would 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 [20] 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."
14. In Subrata Sen & Ors. Vrs. Union of India & Ors., reported in AIR 2001 SC 3634, the employees of Indian Oil Corporation Limited (Assam Oil Division) challenged the cut-off date.
Government of India issued a notification dated 10.03.1995 providing for revision of pension formula in respect of Indian Oil Corporation employees who were covered by the said staff pension scheme which provided as under:
"Pension for the officers retiring from December, 1994, onwards may be computed on the basis of 40% of the average of the last 10 months' salary including averages dearness allowance drawn by the officer over the last 10 months of his service. If and when pay revision take place retrospectively, the amount of pension may be adjusted accordingly. No dearness allowance will be paid on pension."
15. It was argued on behalf of the employees that the sub- classification of the retirees between those who retired prior to December, 1994 and those who retired after December, 1994 is impermissible being arbitrary. Reliance was placed on the decision of the Supreme Court in the [21] case of D.S. Nakara (supra). The Supreme Court in that context observed and held as under:
"18. Further, in All India Reserve Bank Retired Officers Association v. Union of India, [1992] Supp. 1 SCC 661, Ahmadi J., (as he then was) speaking for the Court in the aforesaid decision highlighted the observations in Nakara case found at p.333 para 46 to the following effect (SCC p. 674 para 7):
"... 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."
The Court further observed:
".....It must be realised that in the case of an employee governed by the CPF (Contributory Provident Fund) Scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara case drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF Scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in Krishena case."
19. Same is the position in the present case. As observed in the aforesaid case, in case of an employee governed under the Pension Scheme, relations with the employer merely undergo a change, but are not snapped altogether. There is no new scheme of payment pension, but it is only a revision of the existing pension scheme. Under the new Pension Scheme, [22] pension is required to be paid on the basis of 40 per cent of the average of the last 10 months' salary including average dearness allowance drawn by the officer over the last 10 months of his service instead of earlier 40 per cent of the average annual basic salary for the last five years of service immediately preceding the date of retirement."
16. From the facts of the case of All Manipur Pensioners Association (supra) it comes to fore that the State of Manipur had adopted Central Civil Services (Pension Rule), 1972. As per Rule 49 of the said Rules in case of employees retiring after 30 years of service, the amount of pension payable would be calculated at 50% of the average emoluments subject to a maximum limit. The Government of Manipur issued an office memorandum dated 21.04.1999 revising the quantum of such pension. While doing so, it was provided that those Government employees who retired on or after 01.01.1996 would be entitled to the revised pension at higher percentage and those retired before 01.01.1996 shall be entitled to pension at a lower percentage. The association of employees challenged the introduction of the said cut-off date of 01.01.1996 in the liberalized pension formula before the High Court. On dismissal of the writ petitions, the petitioners preferred SLP before the Supreme Court. The Supreme Court held that all Government servants retiring in accordance with the provisions of the pension rules are entitled to pensionary benefits. Placing reliance on the decision of the Supreme Court in D.S. Nakara (supra) it was held that the cut-off date of 01.01.1996 for giving the benefit of such liberalized formula was impermissible.
[23]
17. Thereafter learned Single Judge observed as under:
"[13] In case of Krishena Kumar Vrs. Union of India and others; reported in (1990) 4 SCC 207 the petitioners were retired railway employees who were covered by the Railway Contributory Provident Fund scheme. Prior to 1957 the railways had only one scheme of provident fund as retirement benefit. In the year 1957 the pension scheme was introduced. Those who entered the railway service after 01.04.1957 would be automatically covered by the pension scheme. Those who were in service as on 01.04.1957 would have an option either to be retained in the provident fund scheme or to switch over to the pension scheme. Series of notifications were issued giving such options to the employees. In the initial stage the employees perceived that the benefits under the provident fund scheme and pension scheme were comparable. However, subsequently it was felt that the pension scheme was far more beneficial. Since the railways did not issue fresh notifications giving fresh opportunity to switch over to pension scheme the aggrieved employees had approached the Court. In such background the Supreme Court held that those who did not opt for the pension scheme had ample opportunity to choose between the two namely, the pension scheme and the provident fund scheme. On multiple occasions time was given to the employees to switch over to the pension scheme which also included those who were already retired. It was further observed that the notification limiting the requirement that instead of all CPF beneficiaries only those who were in service on a specified date and still in service on the date of issue of notification would be deemed to have come over to the pension scheme cannot be struck down by applying the ratio of the decision in case of D.S. Nakara(supra).
[14] In case of Indian Ex-Services League and others Vrs. Union of India; reported in (1991) 2 SCC 104 the Supreme Court rejected the case of the army personal seeking implementation of the principle of "one rank one pension" for all retired members of armed forces irrespective of the date of retirement. It was held that in such a situation the principles laid down in case of D.S. Nakara(supra) would not apply.
[15] In case of All India Reserve Bank Retired Officers Association and others Vrs. Union of India and Another; reported in 1992 Supp (1) SCC 664 a cut-off date chosen by the RBI for introduction of the pension scheme for the first time was held not arbitrary. It was the case in which the RBI employees were [24] previously governed only by the provident fund scheme. The pension scheme was introduced in the year 1990 which provided that all employees who joined the service after 01.11.1990 would be automatically governed by the pension scheme. Those who were in employment as on 01.11.1990 would have an option to continue to be governed by the provident fund scheme or to switch over the pension scheme. An option was also given to those employees who had retired between 1.1.1986 and the date of coming in to force of pension regulation to come over to pension scheme provided they were willing to surrender the employer's contribution under the CPF scheme. Those who had retired from service prior to 1.1.1986 had, therefore, made a grievance about not being given a similar option. Heavy reliance was placed on the decision of Supreme Court in case of D. S. Nakara(supra). The Supreme Court held that a distinction has to be drawn between continuance of an existing scheme in its liberalized form and introduction of a wholly new scheme. In case of the former all pensioners would have a right to pension on uniform basis and any division which classified them into two groups by introducing a cut-off date would ordinarily violate the principle of equality. However, in the later case where a new scheme in respect whereof the retired employees had no vested right is being introduced, the employer can restrict the same to certain class of retirees having regard to the fact situation in which the scheme came to be introduced, the extent of additional financial burden that will arise, the capacity of the employee to pay the same, the feasibility of extending the scheme to all retirees regardless of the dates of a retirement and the availability of records of every retiree etc. In case of an employee governed by the CPF scheme his relations with the employer would come to an end on his retirement and receipt of the CPF amount but in a case of employee governed under the pension scheme his relations with the employer merely undergoes a change but does not snap altogether. Following observations of the judgment may be re-produced:
"10. Nakara's judgment has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalised all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalisation and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalisation on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalise an existing pension [25] scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara case this Court drew a distinction between continuance of an existing scheme in its liberalised form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cutoff date would ordinarily violate the principle of equality in treatment unless there is strong rationale discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact- situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realised that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara case drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and [26] those belonging to the CPF scheme has been rightly emphasised by this Court in Krishena case"
[16] This clear distinction between a situation, as in the case of D. S. Nakara(supra) where an existing pension scheme is liberalized and which liberalized formula is made effective from a chosen cut-off date and where either a new pension scheme is introduced for the first time or an existing pension scheme is expanded so as to include a new set of employees within the fold of the pension scheme is clearly brought out in series of judgments of the Supreme Court. In the former situation the cut-off date is held to be violative of Article 14 of the Constitution of India, in the later as long as there is proper justification cited for choosing the cut-off date the Courts have upheld the same. In the former case, the basic principle applied is that if a pension scheme is revised making it more retiree friendly, the same must be applied to all retirees who form a homogenous class and further sub-classification would not be permissible. If reduced purchasing power of rupee can hurt a retiree, surely it would hurt those who have retired much earlier with greater force. In the later class of cases, the Courts have made a clear distinction that if the pension scheme is being introduced for the first time by the employer, those who have already retired before the pension scheme is framed, cannot claim parity with the existing employees who are covered under the new pension scheme.
[17] Having thus noted two clear streams of decisions of Supreme Court depending on facts and circumstances of the case, we would now have to decide in which category the present petitions fit. Going back to the facts of case on hand, undisputedly the petitioners are pension retirees. At the time of their respective retirements the pension scheme was very much in force. They are not only governed by the pension scheme, but are also receiving such pension post their retirements. They would also be obviously receiving periodic revisions in such pensions either upon framing of fresh revision of pay rules or upon declaration of periodic dearness relief on the basic pension. We must therefore, assess the validity of the cut-off date of 01.01.2009 contained in Rule 5 of ROP 2009 which reduced the qualifying service from 33 years to 25 years for admissibility of full pension on such basis. By all means this is a liberalized formula. From the existing requirement of a minimum 33 years of qualifying service for receiving full pension, such requirement was reduced to 25 years of such service. This rule and the amendment that is introduced in the existing pension formula, [27] did not include any new class of employees or retirees who would be brought within the fold of the pension scheme. In clear terms thus this is not a case where either a whole new pension scheme was introduced by the employer or an existing pension scheme was expanded in such a manner that it would bring within its fold employees or retirees who were previously not covered under the pension scheme. Being a liberalized pension formula, the case of the petitioners would fall in the line of decisions starting with D.S. Nakara(supra), Subrata Sen(supra) and All Manipur Pensioners Association (supra). This requirement therefore, that only those employees who superannuate or retire on or after 1.1.2009 will get the benefit of full pension upon completion of 25 years of qualifying service, must therefore, be held to be unconstitutional. Subject to fulfillment of such requirement, the petitioners must receive higher pension in terms of Rule 5 even though they have retired before 1.1.2009. We may recall, the ROP 2009 were introduced with effect from 01.01.2006 and except contrary provisions are made, applied from such date. All the petitioners had retired after 1.1.2006 and were thus covered by other provisions of ROP 2009. [18] A question of gross delay of filing the present group of petitions must be addressed before granting final relief. Undisputed facts are that though the ROP 2009 were promulgated on 1.1.2009, the petitioners did little to ventilate their grievances before an appropriate forum till filing of the present petitions. Learned counsel for the petitioners however, submitted that representations were made in the year 2015 and 2018 which were not decided by the respondents. By settled law making of series of representations would not save limitation or cannot be cited as a reason for approaching the Court after gross delay and latches. In any case, the first representation on record is of the year 2015 which itself was six years after the promulgation of the impugned rule. However, the petitioners are seeking higher pension which accrues on month to month basis and is thus a continuing cause. Only on the ground of delay and latches therefore, these petitions cannot be thrown out without any relief to the petitioners. They must however, forego the past benefits flowing from this decision."
18. Having given our conscious thought to the aforesaid reasonings of the learned Single Judge, we find no cogent ground to interfere with the decision of the learned Single Judge that in the case in hand the cut-off date [28] as employed in the Rule 5 of TSCS (Revised Pension) Rules, 2009 is unconstitutional.
19. We have made a query to the learned G.A appearing for the State of Tripura as to what is the object the rule makers wanted to achieve by making a sub-classification within the same homogenous group of retired employees and excluded the benefits who retired between the intervening period of 01.01.2006 and 31.12.2008.
20. Revision of pay scales and pensionary benefits, etc. are undertaken by the Government considering the increased price index keeping in mind the socio-economic scenario of the State/Country. In other words, process of pay revision is undertaken as a measure of providing social security or to do socio-economic justice to the pensioners.
21. The expression 'pensioner' is generally understood in contradistinction to the one in service. Those who rendered service and retired on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners'. They for the purpose of pension benefits formed a homogeneous class, which cannot be divided by arbitrarily fixing an eligibility criterion unrelated to the purpose of revision of pension [Ref: D.S. Nakara(supra)]. 21.1. Pension is neither a bounty not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering socio- [29] 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. Pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The most practical raison d'etre for pension is the inability to provide for oneself due to old age. It creates a vested right and is governed by the statutory rules [Ref: D.S. Nakara(supra)]. 21.2. In case of D.S. Nakara (supra), the Hon'ble Supreme Court held that if date of retirement is a valid criterion for classification, those who retired 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.
22. Learned G.A while defending the classification has heavily relied upon the decision of the Hon'ble Supreme Court in case of State of Tripura & Ors Vs. Smt. Anjana Bhattacharjee & Ors (Civil Appeal No.5114 of 2022 decided on August 24, 2022) wherein Rule 3(3) of Pension Rules, 2009 has been held to be intra-vires to Constitution. For convenience, Rule 3(3) may be reproduced here-under:
"3(3) The revised rate of pension within the above limits of minimum and maximum pension shall be computed notionally from 1st January, 2006 or, as the case may be, from the date of superannuation/retirement whichever is later. But financial benefit according to this computation will be admissible from 1st January, 2009 or from the date of superannuation/retirement whichever is later."
22.1. Vires of the above rule was challenged initially in the writ petition filed before this Court. The petitioners prayed for (i) Arrears of [30] salary for the period from 01.01.2006 to 28.02.2007; (ii) Arrears of pension for the period from 01.03.2007 to 31.12.2008 on the basis of revised pay scale.
22.2. In the writ petition it was the case of the petitioners that there was no reasonable nexus to deny the actual benefit of pension for the period from 01.01.2006 to 31.12.2008 and such a policy being arbitrary and violative of Article 14 of the Constitution of India should be struck down.
22.3. To resist the above plea of the writ petitioner, the State projected its case that due to financial constraints, it was not feasible to bear the heavy burden of additional revised pension and therefore, the State formulated a policy decision to the effect that the revised pension shall be paid from 01.01.2006 to 31.12.2008 notionally and actual financial benefit would be provided from 01.01.2009 only.
22.4. The Supreme Court in Anjana Bhattacharjee(supra) observed that State had filed a detailed affidavit justifying the above policy decision providing/granting revision of pay from 01.01.2009 only and to grant the benefit of revised pension notionally from 01.01.2006 or from the date of retirement till 31.12.2008.
22.5. This High Court held that the ground of financial crunch taken by the State was not found satisfactory and accordingly struck down Rule [31] 3(3) of Pension Rules, 2009 and directed the State to provide financial benefit from 01.01.2006.
22.6. The Hon'ble Supreme Court while upholding the Constitutional validity of Rule 3(3) of Pension Rules, 2009 held that when specific statistics were provided before the High Court justifying its policy decision and the financial crunch/financial constraint was pleaded, there was no reason for the High Court to doubt the same. Thus, the Hon'ble Supreme Court relied upon the case of State of Punjab & Ors. Vs. Amar Nath Goyal & Ors., reported in (2005) 6 SCC 754 and State of Bihar & Ors. Vs. Bihar Pensioners Samaj, reported in (2006) 5 SCC 65.
23. Learned Government Advocates having placed reliance upon the judgment of the Supreme Court in Smt. Anjana Bhattacharjee (supra) urged that Rule 5 of Pension Rules, 2009 is pari-materia to Rule 3(3) of Pension Rules, 2009.
24. We are unable to accept this submission of learned Government Advocates for the following reasons:
(i) Rule 3(3) of Pension Rules, 2009 had been extended uniformly without any discrimination to all the employees who retired on or after 01.01.2006 fixing their pension notionally till 31.12.2008 and actual financial benefit had been provided from 01.01.2009;
(ii) In the case supra the State had raised and specifically averred in its counter affidavit that due to financial crunch/financial [32] constraint the State was not in a position to meet the expenditure required to provide the actual financial benefit w.e.f 01.01.2006. Therefore, the State had sufficiently addressed the reason for not providing the benefit of revised rate of pension notionally from 01.01.2006 to 31.12.2008. In this situation, there should not be any quarrel to dispute the rationale and reasonableness in providing actual financial benefit to the pensioners w.e.f 01.01.2009 and fixing revised pension notionally w.e.f 01.01.2006 till 31.12.2008. The reason shown by the State in Anjana Bhattacharjee's Case (supra) itself is the manifestation of the objects the government sought to be achieved.
Moreover, this formula adopted by the rule-makers has been applied uniformly irrespective of the dates of retirement of the pensioners;
(iii) The State Government while introducing Rule 3(3) of the Pension Rules, 2009 maintained the established principle of equality made the provision applicable to all the pensioners considering that the pensioners belonged to or form a one/single class and there is no sub-classification between this one set of employees;
(iv) But, under Rule 5 of Pension Rules, 2009, the State had divided and classified the pensioners into two groups for the purpose of providing the benefit of Pension Rules, 2009 who actually formed one class as a whole; and
(v) The State in its counter affidavit has nowhere stated under what circumstances they divided the similarly situated pensioners and what [33] the State wanted to achieve by creating two classes for the purpose of payment of revision in pension viz, those who retired within the intervening period from 01.01.2006 to 31.12.2008 and those who retired after 01.01.2009; furthermore, in the instant case, the State could not come out with a case that there were financial constraints.
The present case in hand is not a case where providing of pensionary benefits is wholly a new concept and the State has switched over from a specified scheme to the pension scheme under Pension Rules, 2009.
25. At this juncture, the entire scheme of Pension Rules, 2009 may be considered. Sub-rule 2 of Rule 1 stipulates that save as otherwise provided the rules would be deemed to have come into force on or from 01/01.2006. Under Rule 3 the minimum and maximum pension and family pension were revised. Sub-rule 3 of Rule 3, however, provided that the revised rate of pension shall be computed notionally from 01.01.2006 or from the date of superannuation or retirement as the case may be, actual benefits would be admissible from 01.01.2009 or at a later date if the superannuation or retirement was to fall thereafter. In Rule 4 Dearness Allowance to the pensioners was made admissible at the rates that the State Government may sanction from time to time. Rule 7 of Pension Rules, 2009 is very interesting and has attracted us most. It deals with the cases of the pensioners or family pensioners who superannuated/retired prior to 01.01.2006. In their cases also the revised pensionary benefit was provided notionally w.e.f 01.01.2006 and [34] actual financial benefit was made admissible from 01.01.2009. Under Rule 8, the ceiling limit of death-cum-retirement gratuity was enhanced from Rs.2.00 lakh to Rs.4.00 lakh for employees who superannuated or retired after 01.01.2009.
26. An in-depth conspectus of above provisions crystalises that the State while undertaking the exercise of revision of pension benefits to the retirees adopted a liberalized formula. We are in agreement with the learned Single Judge that the present case is not a case where either a whole new pension scheme was introduced by the employer or an existing was expanded in such manner that it would bring within its fold employees or retirees who were previously not covered under the pension scheme and then, such liberalized formula would fall in the line of decisions starting with D.S. Nakara (supra), Subrata Sen (supra) and All Manipur Pensioners Association (supra).
27. We find no obvious reason for exclusion of employees from the benefit of Pension Rules, 2009 who retired between the intervening period on and from 01.01.2006 to 31.12.2008 when the benefit was extended to the employees who even retired prior to 01.01.2006 notionally for the said period and actual financial benefit from 01.01.2009.
28. In furtherance thereof, we do not find any difference in the nature of hardship the employees would suffer due to increased cost of living. No reason is explained by the respondents as to why the employees who [35] retired between the intervening period from 01.01.2006 to 31.12.2008 had been excluded from the benefit provided under Sub-rule 3 of Rule 3 of the Pension Rules, 2009. A bare perusal of Rule 7 makes it aptly clear that even the employees who retired prior to 01.01.2006 had been provided with the benefit of Pension Rules, 2009. It is specifically stated under Rule 7 that the pension of the existing pensioners/family pensioners superannuated/retired prior to 01.01.2006 will be revised and consolidated under certain formulae, notionally with effect from 01.01.2006 and actual financial benefit from 01.01.2009.
If the object of the rule makers is to increase pension amount so that the pensioners would be able to meet the financial constraints due to increased cost of living, then, we do not find any reasonable nexus to pick and choose the pensioners who retired between the intervening period from 01.01.2006 and 31.12.2008 for the purpose of excluding them from the same and identical benefit which has been provided to the employees who retired prior to 01.01.2006 and after 01.01.2009.
In our considered view, the State-respondents has failed to make out a case of intelligible differentia between the pensioners retiring from 01.01.2006 to 31.12.2008 and the pensioners retiring prior to 01.01.2006 and from 01.01.2009.
29. In All Manipur Pensioners Association case, the Hon'ble Supreme Court has examined various facets of valid classification. It is held [36] that a valid classification is truly a valid discrimination. It is true that Article 16 of the Constitution of India permits a valid classification. However, a valid classification must be based on a just objective. The result to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective and secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. The test for a valid classification may be summarized as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. Therefore, whenever a cut-off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification or valid discrimination therefore must necessarily be satisfied.
(emphasis supplied)
30. For re-iteration we hold that all the pensioners form a single class and therefore, such a classification for the purpose of grant of revised pension is unreasonable, arbitrary, discriminatory and violative of Article 14 of the Constitution of India. As held in the case of All Manipur Pensioners Association(supra) the State cannot arbitrarily identify and isolate some persons from the same homogeneous class of persons. We may gainfully [37] extract and highlight illustration that appears at Para 42 of the case of D.S. Nakara (supra), which is as under:
"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.8100 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 10 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 liberalizing the pension scheme."
31. Needless to say, that the object and purpose for revising pension, as we said earlier is due to the increase in the cost of living which would affect all the pensioners irrespective of whether they have retired between the period from 01.01.2006 to 31.12.2008. Hence, we are constrained to hold that such classification of the pensioners and the fixation of cut-off date of 01.01.2009 for applicability of reduced length qualifying service for receiving full pension makes the equals into unequals and therefore, such a classification which has no reasonable nexus with the objects and purpose of revision of pension is unreasonable, discriminatory and arbitrary and such classification was rightly struck down by the learned Single Judge as unconstitutional.
[38]
32. As a sequel, we find no ground to interfere with the judgment and order passed by the learned Single Judge and accordingly we upheld and confirm the reliefs declared in the impugned judgment and directions given to the State-respondents. The judgment of the learned Single Judge must be implemented within 3 (three) months from the day the judgment is furnished to the respondents
33. In the result, the appeal stands dismissed. Pending application(s) if any, also stands disposed of.
34. However, in the facts and circumstances, the parties are directed to bear their own costs.
JUDGE JUDGE Snigdha