Para 37: “If Such Be The Goals Of
Pension, If Such Be The “Welfare
State”, Which We Propose
To Set Up, If Such Be The Goals
Of Socialism And Conceding That Any
“Welfare Measure”, May, Consistent
Economic Capacity Of The State, Be Progressively Augmented With Wider Width, And A Larger Canvas, Yet When
The Economic Means
Permit The Augmentation, Should Some Be
Left Out, For The Sole Reason, That While In The Formative Years
Of The Nascent State, They Contributed Their Mite, But When The Fruits Of Their
Labour Led To The Flowering Of The
Economic Development And Higher
Gross National Produce, Bringing In Larger Revenue And Therefore, Larger Cake Is
Available, They Would Be Denied
Any Share Of It? Indisputably, Viewed
From Any Angle, Pensioners For
Payment Of Pension
Form A Class.
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Unquestionably, Pension
Is Linked To Length
Of Service, And
The Last Pay Drawn, But The
Last Pay Does
Not Imply, Pay On The Last Day
Of Retirement, But, Average Emoluments
As Defined In The Scheme.
Earlier, Average Emoluments Of 36
Months’ Service Provided
The Measure Of Pension, Because,
The Pension Was Related To The
Average Emoluments, During 36 Months
Just Preceding Retirement. By The
Liberalised Scheme, It Is
Reduced To Average Emoluments Of 10 Months
Preceding The Date. Any One In Government Service,
Would Appreciate At A Glance, That With An
Average Of 10
Months, It Would Be On The Higher
Side, On Account Of The Two Fortuitous
Circumstances, That The Pay
Scales, If One Has Not
Reached The Maximum,
Permit Annual Increments, And There Are
Promotions In The
Last One Or Two Years. With A View
To Giving A
Higher Average, The Scheme Was Liberalized To Provide
For Average Emoluments, With Reference
To, Last 10 Months’ Service. Coupled With It, A Slab System For
Computation Is Introduced And The Ceiling Raised. This Is Liberalisation. Now, If
The Pensioners, Who Retired
Prior To The Specified
Date, And Had To Earn Pension On The Average Emoluments Of 36 Months’ Salary, Just Preceding
The Date Of Retirement,
Naturally The Average Would Be Lower
And They Will Be
Doubly Hit, Because The Slab
System As Now
Introduced Was Not Available And
The Ceiling Was At
A Lower Level. Thus, They Suffer
Triple Jeopardy, Viz., Lower
Average Emoluments, Absence Of
Slab System And Lower
Ceiling.
Para 38: “What Then Is The Purpose
In Prescribing The Specified Date, Vertically Dividing
The Pensioners, Between Those Who Retired Prior
To The Specified Date And Those Who Retire Subsequent Date? That Poses The Further Question, Why
Was The
Pension Scheme Liberalized? What Necessitated Liberalisation Of The Pension
Scheme?
Para 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 Taken, 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
Pre-Liberalised Pension Scheme,
Did Not Provide
For Adequate Protection
In Old Age, And 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 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 Cost
Of Living Index, As
A Sequel TO Inflationary
Inputs And Diminishing
Purchasing Power Of
Rupee Necessitated Upward
Revision Of Pension.If This Be
The Underlying Intendment
Of Liberlisation Of
Pension Scheme, Can Any
One Be Bold Enough To
Assert It Was
Good Enough Only
For Those, Who 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 The Picture? Earlier The Scheme
Was Not That Liberal,
Keeping In View
The Definition Of Average
Emoluments, And The Absence Of The
Slab System, And A Lower
Ceiling. Those, Who Rendered The
Same Service, Earned Less Pension, And Are Exposed
To The Vagaries
Of Rising Prices, Consequent Upon
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 Over-Due.
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”.
Para 40:”Therefore, Let Us
Proceed To Examine, Whether There Was Any
Rationale Behind The
Eligibility Qualification. The Learned
Attorney- General Contended That
The Scheme Is One Whole
And The Date Is An
Integral Part Of The
Scheme And The Government Would Not Have Enforced The
Scheme, Devoid Of The Date, And The Date Is Not Severable
From The Scheme As A Whole.
Contended The Learned Attorney-General That The Court Does
Not Take Upon Itself
The Function Of
Legislation, For Persons, Things
Or Situations Omitted
By The Legislature. It Was Said
That When The Legislature,
Has Expressly Defined
The Class With Clarity And Precision, To Which The
Legislation Applies, It
Would Be
Outside The Judicial
Function To Enlarge
The Class And To Do So Is Not
To Interpret, But To Legislate, Which Is
The Forbidden Field.
Alternatively, It Was Also
Contended That Where
A Larger Class, Comprising Two
Smaller Classes Is Covered
By A Legislation, Of Which One Part
Is Constitutional, The Court
Examines Whether, The Legislation Must
Be Invalidated, As A Whole
Or Only, In Respect
Of The Unconstitutional Part. It Was Also Said That,
Severance Always Cuts
Down The Scope Of
Legislation, But Can Never
Enlarge It And In The
Present Case, The Scheme
As It Stands
Would Not Cover
Pensioners, Such As The Petitioners, And If By Severance, An
Attempt Is Made To
Include, Them In The Scheme, It
Is Not Cutting Down The
Class Or The Scope, But,
Would Enlarge The Ambit
Of The Scheme, Which Is Impermissible, Even Under
The Doctrine Of Severability. In This
Context, It Was Lastly Submitted,
That There Is Not
A Single Case,
In India Or Elsewhere, Where The Court
Has Included Some
Category Within The
Scope Of The Provisions
Of A Law, To Maintain The
Constitutionality.
Para 41:”The Last
Submission, The Absence Of
Precedent, Need Not
Deter Us For
A Moment. Every New
Norm Of Socio-Economic Justice,
Every New Measure
Of Social Justice, Commenced For The First
Time, At Some Point
Of History. If At That Time, It Is
Rejected As Being
Without A Precedent, The Law, As An Instrument
Of Social Engineering
Would Have Long Since
Been Dead And
No Tears Would Have
Been Shed. To Be
Pragmatic Is Not
To Be Unconstitutional. In Its
Onward March, Law, As
An Institution Ushers In
Socio-Economic Justice. In Fact,
Social Security In
Old Age, Commended Itself, In
Earlier Stages, As A Moral Concept, But, In Course
Of Time, It Acquired Legal
Connotation. The Rules Of Natural
Justice, Owed Their Origin
To Ethical And
Moral Code. Is There Any
Doubt, That They Have
Become, The Integral And Inseparable
Part Of Rule Of Law, Which Any
Civilised Society Proud? Can
Anyone Be Bold
Enough To Assert,
That Ethics And Morality Are Outside
The Field Of
Legal Formulations? Socio-Economic Justice, Stems From
The Concept Of Social
Morality Coupled With
Abhorrence For Economic
Exploitation. And The Advancing
Society Converts In
Course Of Time, Moral
Or Ethical Code Into
Enforceable Legal Formulations. Over-Emphasis On Precedent,
Furnishes An Insurmountable Road-Block
To The Onward
March Towards To
The Promised Millennium. An Over-Dose
Of Precedent Is
The Bane Of
Our System, Which Is
Slowly Getting Stagnant, Stratified And Atrophied.
Therefore, Absence Of A
Precedent On This
Point Need Not
Deter Us At
All. We Are All
The More Happy,
For The Chance Of Scribbling
On A Clean
Slate”.
Para 42: “If It
Appears To Be
Indisputable”, 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 The
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, 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 The 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 Can Not
Be Worst Of 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 The Pensioners, With A
View To Giving
Something More, To Persons, Otherwise Equally
Paced, It Would Be Discriminatory. To Illustrate, Take Two
Persons, One Retired Just A
Day Prior, 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 A
Ceiling Of Rs.8100/- P.A. And Average Emoluments
To Be Worked
Out, On 36 Months’ Salary, While The Other Will
Have A Ceiling
Of Rs.12,000/- P.A. And
Average Emoluments 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
Sought To 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 The Pension
Scheme. The Equal Treatment
Guaranteed, In Article
14 Is Wholly Violated, In As Much
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 Computation Of
Pension. A 48 Hours’
Difference In Retirement
Would Have A
Traumatic Effect. Division Is
Thus, “Both Arbitrary”
And “Unprincipled”. Therefore, The
Classification Does Not
Stand The Test
Of Article 14.”
Para 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
Out?”
Para 44: “The Learned
Attorney General Contended
That The Scheme Is To
Be Taken As
A Whole Or Rejected
As Whole And The Date From Which It Came
Into Force Is An Integral
And Inseparable Part
Of The Scheme”. The
Two Sub-Limbs Of The
Submissions Were That—
1.”The Court Can Not
Make A Scheme,
Having Financial Implications, Retro-Active”,
And---------
2.”This Court
Can Not Grant
Any Relief To The
Pensioners, Who Retired Prior To
A Specified Date”, “Because, If More Persons
Divide The Available
Cake”, “The Residue
Falling To The
Share Of Each, Especially,
To Those
Who Are Likely
To Benefitted By
The Scheme Will Be
Comparatively Smaller, And As They
Are Not Before
The Court, No Relief
Can Be Given
To The Pensioners.”
TO BE CONTINUED.