Para 45:”Let Us Clear One Misconception. The Pension Scheme Including The Liberalised Scheme Available To The Government Employees, Is Non-Contributory In Character. It Was Not Pointed Out That There Is Something Like A Pension Fund. It Is Recognised As An Expenditure, And It Is Voted And Budgeted Every Year. At Any Given Point Of Time There Is No Fixed Or Pre-Determined Pension Fund, Which Is Divided Amongst Eligible Pensioners. There Is No Artificially Created Fund Or Reservoir From Which Pensioners Draw Pension Within The Limits Of The Fund, And The Share Of Each Being Co-Extensive With The Available Fund. The Payment Of Pension Is A Statutory Liability Undertaken By The Government And Whatever Becomes Due And Payable Is Budgeted For. One Could Have Appreciated This Line Of Reasoning Where There Is A Contributory Scheme And A Pension Fund From Which Alone Pension Is Disbursed. That Being Not The Case, There Is No Question Of Pensioners Dividing The Pension Fund, Which, If More Persons Are Admitted To The Scheme, Would Pro-Rata Affect The Share. Therefore, There Is No Question Of Dividing The Pension Fund. Pension Is Liability Incurred And Has To Be Provided For In The Budget. Therefore, The Argument Of Division Of A Cake, Larger The Number Of Sharers, Smaller The Share, And Absence Of Residue, And Therefore By, Augmentation Of Beneficiaries, Pro rata Share Is Likely To Be Affected And Their Absence Making Relief Impermissible, “Is An Argument Born Of Desperation”, “And Is Without Merits”, “And Must Be Rejected As Untenable”.
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Para 45:”Let
Us Clear One Misconception. The Pension Scheme
Including The Liberalised
Scheme Available To The Government Employees, Is Non-Contributory In Character. It Was Not
Pointed Out That
There Is Something Like A
Pension Fund. It Is Recognised As
An Expenditure, And It Is Voted
And Budgeted Every
Year. At Any Given Point Of Time There Is No
Fixed Or Pre-Determined Pension
Fund, Which Is Divided
Amongst Eligible Pensioners. There Is No Artificially Created
Fund Or Reservoir From
Which Pensioners Draw Pension
Within The Limits
Of The Fund,
And The Share Of
Each Being Co-Extensive
With The Available Fund. The Payment Of Pension Is A Statutory Liability
Undertaken By The
Government And Whatever Becomes
Due And Payable
Is Budgeted For. One
Could Have Appreciated
This Line Of
Reasoning Where There Is A Contributory Scheme And
A Pension Fund
From Which Alone Pension
Is Disbursed. That Being Not
The Case, There Is No Question
Of Pensioners Dividing
The Pension Fund,
Which, If More Persons
Are Admitted To The
Scheme, Would Pro-Rata Affect
The Share. Therefore, There Is No
Question Of Dividing
The Pension Fund. Pension
Is Liability Incurred And
Has To Be
Provided For In
The Budget. Therefore, The Argument Of
Division Of A Cake, Larger The Number
Of Sharers, Smaller The Share, And
Absence Of Residue, And Therefore
By, Augmentation Of Beneficiaries, Pro rata Share
Is Likely To Be
Affected And Their Absence
Making Relief Impermissible, “Is An Argument
Born Of Desperation”,
“And Is Without Merits”, “And Must
Be Rejected As
Untenable”.
Para 46:”By Our Approach
Are We Making
The Scheme Retroactive? The Answer Is Emphatically In The Negative.Take
A Government Servant, Who
Retired On April 1, 1979.He Would Be Governed By
The Liberalised Pension Scheme. By That Time He Had
Put In
Qualifying Service Of 35 Years. His Length Of Service Is A
Relevant Factor For Computation Of Pension. Has The
Government Made It Retroactive, 35
Years Backwards, Compared To The Case Of
Government Servant Who Retired
On March, 30, 1979? Concept
Of Qualifying Service
Takes Note Of
Length Of Service. Is It Retroactive
For 35 Years, For One And Not Retroactive For A Person
Who Retired Two
Days Earlier. It Must
Be Remembered That Pension Is
Relatable To Qualifying Service.
It Has Correlation To
Average Emoluments And The
Length Of Service.
Any Liberalisation Pro Tanto
Retroactive In The
Narrow Sense Of
The Term .Otherwise, It Is
Always Prospective. A Statute Is Not Properly Called
A Retroactive Statute, Because A Part Of The
Requisites For Its
Action Is Drawn
From A Time, Antecedent From Its
Passing.(See Craies On Statute
Law).Assuming The Government
Had Not Prescribed
The Specified Date And Thereby Provided
That Those Retiring
Pre And Post The Specified Date,
Would All Be Governed By The Liberalised Pension
Scheme, Undoubtedly It Would Be
Both Prospective And
Retroactive. Only The Pension Will Have To Be Recomputed
In The Light Of The
Formula Enacted In The Liberalised Pension Scheme And Effective From
The Date, The Revised Scheme
Comes Into Force. And Beware That It Is Not A New Scheme , It Is Revision Of
Existing Scheme. It Is Not A New Retiral
Benefit. It Is Upward Revision
Of An
Existing Benefit. If It Was A New
Concept, A New Retiral Benefit, One
Could Have Appreciated
An Argument, That Those Who
Have Already Retired
Could Not Expect It .It Could
Have Been Urged
That It Is An Incentive To Attract
The Fresh Recruits. Pension Is A
Reward For Past
Service. It Is Undoubtedly A Condition
Of Service . But, Not An Incentive To
Attract New Entrants,
Because, If It Was To
Be Available To
New Entrants Only, It Would Be Prospective
At Such Distance Of
Thirty Five Years, Since
Its Introduction. But, It Covers
All Those In
Service Who Entered
Thirty Five Years
Back. Pension Is Not An Incentive But A Reward
For Past Service. And The Revision
Of An Existing Benefit
Stands On A
Different Footing, Than A New
Retiral Benefit. And Even In Case
Of New Retiral
Benefit, Of Gratuity Under The
Payment Of Gratuity Act, 1972, Past Service
Was Taken Into
Consideration. Recall At This
Stage The Method Adopted When
Pay Scales Are
Revised. Revised Pay Scales
Are Introduced From A
Certain Date. All Existing Employees
Are Brought On To The Revised
Scales, By Adopting A Theory
Of Fitments And
Increments For Past Service. In Other Words, Benefit Of
Revised Scales Is Not
Limited To Those, Who
Enter Service, Subsequent To
The Date Fixed
For Introducing Revised Scales, But
The Benefit Is Extended
To All Those In
Service Prior To
That Date. This Is Just And
Fair. Now, If Pension As
We View It Is—
“Some
Kind Of Retirement
Wages For Past Service”, Can It Be
Denied To Those
Who Retired Earlier, Revised Retirement
Benefits Being Available
To Future Retirees
Only. Therefore, There Is
No Substance, In The
Contention That The Court
By Its Approach, Would Be
Making The Scheme
Retroactive, Because It Is
Implicit In Theory
Of Wages”.
Para
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
Can Not Be
Invoked. In Other Words, It
Was Urged That
The Date Can Not
Be Severed From
The Main Object
Of The Scheme. 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?”
Para
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 The Existing
Pensioners And Future Pensioners. In The
Case Of The Existing Pensioners, The Pension
Would Have To
Be Recomputed By
Applying The Rule
Of Average Emoluments
Set Out In Rule
34 And Introducing
The Slab System And
The Amount Worked Out
Within The Floor
And Ceiling”.
Para 49:”But, We
Make It Abundantly
Clear That Arrears
Are Not Required
To Be Paid, 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
The 1972 Rules. The Date Of Retirement Is Irrelevant. But, The Revised Scheme
Would Be Operative, From The Date
Mentioned In The Scheme
And 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 The 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 The 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
some One Reaches
The Maximum, The Old Lower
Ceiling Will Not
Deny Him What
Is Otherwise Justly
Due On Computation. The Words, “Who Were
In Service On March
31, 1979 And Retiring From
Service On Or After That
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”.
Para:50: “There Is Nothing
Immutable About The Choosing of An Event
As An Eligibility
Criteria Subsequent to A
Specified Date. If The Event Is
Certain, But Its Occurrence
At A Point Of Time is
Considered Wholly Irrelevant
And Arbitrarily Selected Having No
Rationale For Selecting
It And Having
An Undesirable Effect
Of Dividing A
Homogeneous Class And Of
Introducing Discrimination,
The Same
Can Be Easily
Severed And Set Aside. While Examining
A Case, Under Article
14, The Approach Is
Not:
“Either Take
It Or Leave It”;
“The
Approach Is Removal
Of Arbitrariness And If That Can Be
Brought About, “By Severing
The Mischievous Portion”, The
Court ought To Remove
The Discriminatory Part, Retaining The
Beneficial Portion. The Pensioners
Do Not Challenge The
Liberalised Pension Scheme. They Seek The
Benefit Of It. Their Grievance
Is Of The Denial To
Them Of The
Same, By Arbitrary Introduction
Of Words Of
Limitation And We
Find No Difficulty
In Severing And
Quashing The Same. This Approach Can
Be Legitimised On
The Ground That
Every Government Servant
Retires. State Grants Upward
Revision Of Pension
From A Date. Event
Has Occurred And
Revision Has Been
Earned. Date Is Merely
To Avoid Payment
Of Arrears Which May
Impose A Heavy
Burden. If The Date Is Wholly Removed, Revised Pension
Will Have To Be
Paid From The
Date Of Retirement
Of Each Pensioner. That Is
Impermissible. The State Can
Not Be Burdened
With Arrears Commencing From The
Date Of Retirement
Of Each Pensioner. But, Effective From
The Specified Date, Future
Pension Of Earlier
Retired Government Servants
Can Be Computed And
Paid On The
Analogy Of Fitments In Revised
Pay Scales Becoming
Prospectively Operative. That
Removes The Nefarious
Unconstitutional Part And
Retains The Beneficial
Portion. It Does Not Adversely
Affect Future Pensioners
And Their Presence
In These 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 The Affidavit Of Shri
Mathur Is The Following
Statement In Paragraph 5:
“The Date Of
Effect Of The
Impugned Orders Has
Been Selected On The
Basis Of Relevant
And Valid Considerations”.
Para51: “We Repeatedly
Posed A Question”, As
To :
“What Are Those
Relevant And Valid
Considerations And Waited
For The Answer In Vain”.
We Say So, Because, In The
Written Submissions Filed
On Behalf Of
Union Of India, We Find Not
A Single Valid Or
Relevant Considerations,
Much Less Any
Consideration Relevant To
Selection Of Eligibility
Criteria. The Tenor Is:
“We
Select The Date” And
“It Is Unquestionable”
“Either Take
It Or Leave
It As A Whole”.
The Only Submission
Was That –
“The Date Is Not Servable” And
Some Submissions In
Support Of It”.