165 A

D.S. NAKARA & OTHERS

v.

UNION OF INDIA

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 of Indio, 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 of ratio11,/ 111xus to o!J}1.:t of liberalisation aNI violative of A.rt. If..

co .. tltMllO• of India, ..trt. 14-Doctrl•• of llV1FObility-S1 .. ra11e• 11101

lum •if•ct of Mlar1in1 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

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 liberalisa­

tion in computation of pension must be uniformly enforced with regard to all

pensioners.

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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 of Tamil Nadu, [1974]

2 S.C.R. 348; Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors., [1981) 2 S.C.R.

79;

Air

India etc. v. Nargesh Mterza & Ors., [1982) 1S.C.R.438 and Ramana

D11yaram Shetty v. International Airport Authority of India & Ors., [1979] 3 S.C.R.

1014, referred to.

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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

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 1 is!1 P.!il 1io: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 f

th b b

't · d · em o

e same y ar 1 rary intro uct1on of words or limitation Th · h.

· ere 1s not 1na

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168 SUPREME COURT REPORTS I 1983) 2 S.C.R.

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 non­

effective 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 of India, [1967] 2 S.C.R. 325; and Jai/a Singh & Anr.

v. Stai. of Rajasthan & Ors., [1975] Supp. S.C.R. 428, relied on.

Union of India & Anr. v. M/s. Parameswaran Match Works etc., [1975]

2 S.C.R. 573; and D.C. Gou1< & Co. etc. v. State of Kera/a & Anr. etc'., (1980] 1

,_

S.C.R. 804, explained and distinguished. ,,.

Louin/II• Ga1 Co. v. Alabama Power Co., 240 U.S. 30 (1927],

referred to.

(ii) The reading down of tho impugned memoranda by sevorin1 the

objectionable portion would not render the liberalised pension scheme vague,

unenforceable or unworkable. The Court is not legislating in readina: down the

memoranda; when the Court strikes down the basis of classification as violative

of Art. 14 it merely sets at naught the unconstitutional portion retaining the

constitution&l portion. There is no dlfficulty in implementing the scheme omitting

the event happening after the specified date, retaining the more human formula for

computation

of pension. The

pension will have to be recomputed in accordance

with the provisions of the liberalised pension scheme as salaries were required

to be recomputed in accordance with the recommendation of the Third Pay

Commission but becoming operative from the specified date. The Court is

satisfied that the additional financial liability that may be imposed by bringing

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D.S. NAKARA V. UNION

in pensioners who retired prior to April l, 1979 within the fold or the liberaliaad

pension scheme is not too high to be unbearable or such as would have detracted

the Government from covering the old pensioners under the scheme. The

severance of the nefarious unconstituti6nal part does not a'flversely affect future

pensiqners and their presence in these petitions is irrelevant.

[204 G·H, 197 E·F, 206 B, 196 G, 208 G, 199 Bl

(iii) To say that by its approach the Court is restructuring the liberaliaod I

pension scheme is to ignore the constitutional mandate. The Court· is not

conferring benefits by its approach; it is only removing the illegitimate classifica•

tion and after its removal the law takes its own course. [206 0-E]

(iv) It is not correct to say that if the unconstitutional part is struck

down the Parliament would not have enacted the measure. The executive, with

parliamentary mandate, liberalised the pension scheme. It is implicit in the

scheme that the need to grant a little higher rate

of pension to the

pensioners

was considered eminently just. One could have understood persons in the

higher pay bracket being excluded from the benefit of the scheme because it

w.ould have meant that those in the higher pay bracket could fend for tbemselver.

Such is not ·the, ~xclusion. The exclusion is of a whole class of people who

retired before a certain date. Parliament would not have hesitated to ex.tend

c

the benefit otherwise considered erriinenily just and this becomes clearly D

discernible from p,35 of the 9th Report of the Committee on Petitions (6th Lok

Sabha), April 1979. [206 H, 207 A·E]

(v) Whenever classification is held to be impermissible and the measure

can be retained by removing the unconstitutional portion of the classification,

the resultant effec:t may be of enlarging the cla'Ss. In such a situation the court

can strike down the words of limitation in an enactment. That is what is called

reading down the measure. There

is no principle tbat severance limits tbc scope

of legislation but can never enlarge it.

[205 B-C]

Jaila Singh & Ors. v. State of Rajasthan & Ors., [1975] Supp. S.C.R.

428 and Randhlr Singh v. Union of India & Ors.. [1982) l S.C.C. 618,

relied on.

(vi) The absence

of precedent does not deter the court. Every new

norm

of

socio~economic justice, every new measure of socia1 justice commenced

for the first iime at some point of time in history. If

at that time it

was-, rejected

88 being without a precedent, law as an instrument of social engineering would

have long since been dead. [193 G, 193 C-D] ·

(vii) The court is not making the scheme of lib~ralisation retroactive

by its approach. Retroactiveness

is

in'lplicit in the theory of wages. When revised

pay.scales are introduced. from a certain date, all existing employees are brought

on to the revised scales adopting a theory of fitments and increments ~or past

service. The benefit of revised scales is not limited to those who enter service

subsequent to the date fixed for introducing revised 'scales but is ex1en4ed _tO

all those in service prior to that date. Even in the case of the new retiral benefit

of gratuity under the the Payment of Gratuity Act, 1972, past service was taken

into consideration. The sch~me of liberalisation is not a ne\V r~tir1l benefit; ir~

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an upward revision of an existing benefit. Pension has corrtlatioo to average

emoluments and the length of qualifying service and any JiberaHsation:would pro

tanto ber etroactive in the narrow sense of the term. AssumiDg the government

bad not prescribed the specified date and thereby provided that those retiring, pre

and past the specified date, would all be governed by the liberalised pension

scheme it would be both prospective and retroactiVe. Only the pension will have

to be recomputed in the light of the formula enacted in the liberalised pension

scheme and effective from the date the revised scheme comes into force. A statute

is not prOperly called retroactive because a part of the requisites for its action is

drawn from a time antecedent

to its passing.

[195 H, 196 H, 196 G, 196 D, 196

B·DJ

Craits on .Statute Law, Sixth Edition, p. 387 referred to.

(viii) There

is no question of pensioners dividing the pension fund which,

if more persons are admitted to the scheme, would pro rata affect the share. The

pension

scheme, including the liberalised scheme, is non-contributory in

character. The payment of pension is a statutory liability undertaken by the

Government. Whatever becomes due and payable

on account of pension is

recognised as

an

item of expenditure and is budgeted for every year. At any

given point

of time there is no fixed or pre-determined pension fund which is

divided amongst eligible pensioners. [195

C·G]

(ix) The date of retiremei:tt of each employee remaining as it is. there is

no question

of fresh commutation of pension of the

pens.i0ners who retired

prior

to 31st March 1979 and have already availed of the btncfit of commutation.

It is not open to them .to

get that benefit at this late date because commutation

has

to be availed of within the specified time

li01it from the date or actual

retirement. [206 C-D]

3. The discernible purpose underlying the pension scheme must inform

the interpretative process and

it should receive a liberal construction. [185

O~H]

(i) Pension is a right; not a bounty or gratuitous payment. The

payment

or pension does not depend upon the discretion of the Government but

is governed

by the rules and a government servant coming within those rules is

entitled to claim pension. [186 A·B)

Deoki Nandan Prasad v. State of Bihar & Ors., (1971] Supp. S.C.R.

634 and State of Punjab & Anr. v. Iqbal Singh, (1976] 3 S.C.R. 360,

referred to.

(ii) The pension payable to a government employee is earned by

rendering long and efficient service and therefore can be said to be a deferred

portion

of the compensation for service rendered. [185 F]

(iii)

Pension also has a broader significance in that it is -a social·welfare

measure rendering socio.economic justice

by providing economic security in old

age to those who toiled ceaselessly in the bey-day of their

life. [185 D·B, 186 B·CJ

(iv) Pension as a retirement benefit is in consonance with and in

furtherance of the goals of the <;onsti\utjon, Tbe goals for which pension is

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D.S. NAKARA v. UNION (besai, J.) 171

paid themselves give a fillip and push to the policy of setting up a welfare state.

The preamble to the Constitution envisages tbe establishment

of a

soci8.USt

republic. The basic framework of socialism is to provide a decent standard

of life to the working people and especially provide security from cradle to

grave. Article 41 enjoins the State to secure public asSistance in oi<;t age, sickoess

and disablement. Every state action whenever taken must be directed and must

be so inierpreted as to take society one step towards the goal of establishing a

socialist welfare society. While examining the constitutional validity

of

legislative/administrative action, the touchstone of Directive Principles of

State

Policy in the light of the Preamble provides a reliable yardstick to hold one way

or the other. (190 E, 187 F, 189 A·B, 189 HJ

Randhir Singh v. Union of India & Ors., [1982] 1 S.C.C. 618 and

Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] l S.C.R. 20!;,

referred to.

4. Any member of the public having sufficient interest can maint'-in

an action for judicial' redress tor public injury arising from breach of public duiy

or from violation of some provision of the Constitution or the law and seCk

enforcement of such public duty and observance of such constitutional or Ie!&l

provision. The locus st~ndi of petitioner No. 3 whicb seeks to enforce righis

that may be.available to a large number of old, infirm retirees is unquestionable

as

it is a non·political,

non·profit, voJuntary organisation registered under the

Societies Registration Act, 1860 and jts members consist of public spirited

citizens who have taken up .the cause

of ventilating legtimate public

problems.

[208 H, 209 A·C]

S.P. Gupta v. Union of India, [1,981] Supp. S.C.C. 87, referred lb.

ORIGINAL JURISDICTION : Writ Petition Nos. 5939-41 of 1980.

Anil B. Divan, Mrs. Vineeta Sen Gupta and P.H. Parekh for the

·Petitioners

L.N. Sinha, Attorney General, M.M. Abdul Khader, N. Nettar

and Miss A. Subhashini for Union of India.

G.L. Sanghi and Randhir Jain for the interveners.

S.R. Srivastava for the Intervener.

K.K. Gupta for the Intervener.

The Judgment

of the Court was delivered by DESAI, J. With a slight variation to suit the context Woolesey's

prayer : "had I served my God as reverently as I did my_ king, I

would not have fallen on these days

of

penury" is chanted by

petitioners in this group of petitions in the Shellian tune : 'l fall on

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SUPREME COURT REPORTS [I 983] 2 s.c.R.

!be. thorns of life I bleed.' Old age, ebbing mental and physical

,prowess, atrophy

of both muscle and brain powers permeating these

petitions, the petitioners in the fall

of life

yearn for equality of

treatment which is being meted out to those who are soon going to

join and

swell their own ranks,

Do pensioners entitled to receive superannuation or retiring

pension under Central

Civil Services

(Pension) Rules, 1972 ('1972

Rules' for short) form a class

as a whole? Is the date of

retire­

ment a relevant consideration for eligibility when a revised formula

t<ir computation of pension is ushered in and made effective from a

~peeified dat~? Would differential treatment to pensioners related

to the date of retirement qua the revised formula for computation

Of pension attract Article 14 of the Constitution and the element of

;4'i~rimination liable {to be declared unconstitutional as being

.) .. ··'·

,Jriglative of Art. 14? These and the related questions debated in this

gl,'9up of petitions call for an answer in the 'backdrop of a welfare

State and bearing iu mind that pension is a socio-economic justice

j-: •''

t11ebure providing relief when advancing age gradually but

lr~evocably impairs capacity to stand on one's own feet.

Factual matrix has little relevance to the issues raised and

canvassed at the hearing. Petitioners I and 2 are retired pensioners

of the Central Government, the first being a civil servant 11nd the

second being a member of the service personnel

of the Armed Forces. The third petitioner is a society registered under the Societies

Registration Act, 1860, formed to ventilate the legitimate public

problems and consistent with its objective it

is espousing the cause of the pensioners all over the country. Its locus stantfi is in question

but that

is a different matter. The first petitioner retired in 1972

and on computation, his pension worked out at Rs.

675/· p.m. and

along with ihe dearness relief granted from time to time, at the

relevant time

he was in receipt of monthly pension of Rs. 935/-. The

second petitioner retired at or about that time and at the relevent

time

was in receipt of a pension plus dearness relief of Rs.

981/­

p.m. Union of India has been revising and liberalising the pension

rules from time to time. Some landmark changes may be noticed.

The First Central Pay Commission (1946-47) recommended

,that .the age of retirement in future sho~ld be uniformly 58 years

. Jor all. Sef\•ices and the scale o.f pens1~n shoul~ .be 1/80 of '.he

·emoluments for each year of service, sub1ect to a hm1t of 35/80 with

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D.S. NA KARA v. UNION (besai, /.) 113

. a ceiling of Rs. 8,000 per year for 35 years of service, which the

Government

of India while accepting the recommendation raised to

Rs.

8,

100 per yeai;. which would earn a monthly pension of Rs. 675

at the maximum.• The Second Central Pay Commission (1957-58)

re-affirmed that the age of superannuation should be 58 years for

all classes

of public servants but did not recommend. any increase

in the non-contributory retirement benefits and recommended that

if

in future any improvement is to be made, it was the considered

view of the Commission that these benefits should be on a

contri­

butory basis. The Administrative Reforms Commission ('ARC' for

short) set up by the Governme11t of India in 1956 took note of the

fact that the cost

of living has shot up and correspondingly the

possibility

of savings has gone down and consequently the drop

in

wages on retirement is in reality much steeper than

. what the

quantum

of pension would indicate, and accordingly the ARC

recommended that the quantum

of pension admissible may be

raised to 3

/6 of

!he emoluments of the last three years of service as

against the existing

3/8 and the ceiling should be raised from

Rs.

675 p.m. to Rs.

1000 p.m. Before the Government could take

its decisi!)n on the recommendations of the ARC, the Third Central

Pay Commission

was set up.

One of the terms of reference of the

Third Pay Commission

was 'death-cum-retirement benefits of

Central Government employees'. The Third Pay Commission did not examine the question of relief to pensioners because in its view

·unless the terms of reference were suitably amended it would not be

within their jurisdiction to examine this question and on a reference

by them, the Government

of India decided not to amend the terms

of reference.

With·regard to the future pensioners the Third Pay

Commission

while reiterating that the age of snperannuation should

continue to

be 58 years further recommended that no change in the

existing formula for computing pension

is considered necessary. The

only important recommendation worth noticing is that the Com­

mission recommended that the existing ceiling

of maximum pension

should be raised

from Rs. 675 to Rs. 1,000 p.m. and the maximum

of the gratuity should be raised from Rs. 24,000 to Rs. 30,000.

On May 25, 1979, Government of India, Ministry of Financ.e,

issued Office Memorandum No. F-19(3)-EV-79 whereby the formula

for computation of pension

was liberalised but made it applicable

to Government servants who

were in service on March

31, 1979

and retire from service on or after that date (specified date for

short). The formula introduced a slab system for computation

of

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SUPREMB COURT REPORTS II 983) i S.C.R

pension. This liberalised pension formula was applicable to

employees governed

by the 1972 Rules retiring on or afcer the

specified date. The pension for the service personnel which

will

include Army, Navy and Air Force staff is

gover~ed by the relevant

regulations.

By the Memorandum of the Ministry of Defence

bearing No.

B/40725/AG/PS4·C/1816/AD (Pension)/Services dated

September 28, 1979, the liberalised pension formula introduced for

the government servants governed

by the 1972 rules was extended

to the Armed Forces personnel subject to limitations set out

in the

memorandum with a condition that the

new rules of pension would

be effective from April

I, 1979, and may be applicable to all service

officers who become/ became non-e1fective on or after that date.

(for short specified date).

The chronology

of events herein narrated would bring to

surface the contentions raised in these petitions. The liberalised

pension formula shall

be applicable prospectively to those who

retired on or after March 31,

1979 in case of government servants

covered

by 1972 Rules and in respect

of defence personnel those

who became/become non-effective on or after April I, 1979.

Consequently those who retired prior to the specified date would

not

be entitled to the benefits of the liberalised pension formula.

Petitioners accordingly contend

·that this Court may consider

the

raison d'etre for payment of pension. If the Pension is paid for

past satisfactory service rendered, and to avoid destitution in old

age as

well as a social welfare or socio-economic justice measure,

the differential treatment for those retiring prior to a certain date

and those retiring subsequently, the choice

of the date being wholly

arbitrary, would

be according differential treatment to pensioners

who form a class irrespective

of the date of retirement and,

there­

fore, would be violative of Art. 14. It was also contended that

classification based on fortuitous circumstance of retirement before

or subsequent to a date, fixing of which is not ·shown to be related

to any rational principle, would

be equally violative of Art. 14.

Primary contention is that the pensioners of the Central

Government form a class for purpose

of pensionary benefits and

there could not

be mini-classification within the class designated as

pensioners. The expression 'pensioner' is generally understood in

contra-distinction to the one in service. Government servants in

service, in other words, those who have not retired, are entitled to

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D.S. NAKARA v. UNION (Desai, J.) 175

salary and other allowances. Those who retire and are designated

as 'pensioners' are entitled to receive pension under the relevant

rules. Therefore, this would clearly indicate that those who render

service and retire on superannuation

or any other mode of

retire­

ment and are in receipt of pension are comprehended in the

expression 'pensioners'.

fa this class of pensioners further divisible for the purpose of

'entitlement' and 'payment' of pension into those who retired by

certain date and those who retired after that date

? If date of

retirement can

be accepted as a valid criterion for classification, on

retirement

each. individual government servant would form a class

by

·himself because the date of retirement of each is correlated to

his birth date and on attaining a certain age

he had to retire: It is

only

after the recommendations of the Third Central Pay Commis·

sion were accepted by the Government of India that the retirement

dates have been specified to be

12 in number being last day of

~acb

month in which the birth date of the individual government servant

happens to fall. In other words, all government servants who retire

correlated to birth date on attaining the age

of superannuation in

a given month shall not retire on that date but shall retire on the

last day

of the month. Now, if date of retirement is a valid

criterion for classification, those who retire

at the end of every

month shall form a class

by them.selves. This is too microscopic

a classification to be upheld for any valid purpose. Is it permissible

or is it violative of Art. I 4 ?

The scope, content and meaning

of Article I 4 of the

Constitution has been the subject-matter

of intensive examination by

this Court in a Catena

of decisions. It would, therefore, be merely

adding to the length

of this judgment to recapitulate all those

decisions

and it is better to avoid that exercise save and except

referring to the latest decision on the subject in Maneka Gandhi v.

Union of India(') from which the following observation may be

extracted :

" ....... : what is the content and reach of the great

equalising principle enunciated

in this article? There can

be no doubt that it is a founding faith of the Constitution.

It is indeed the pillar on which rests securely the

founda­

tion of our democratic republic. id, therefore! it mus

(I) [197~] 2 S.C.\l. ~:/\.

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SUPRBWB COURT. REPORTS (1983) 2 S.C.ll..

not be subjected to a narrow, pedantic or lexicographic

approach. No attempt should

be made to truncate its

all-embracing scope and meaning for, to do so would

be

to violate its activist magnitude. Equality is a dynamic

concept with many aspects and dimensions and it

cannot be imprisoned within traditional

and doctrinaire

limits

......... Article 14 strikes at arbitrariness in

State

action and ensures fairness and equality of treatment. The

principle

of reasonableness, which

· legally as well as

philosophically,

is an essential element of equality or

non-arbitrariness pervades Article

14 like a brooding

omnipresence."

The decisions clearly lay down that though Art. 14 forbids

class legislation, it does not forbid reasonable classification for

the purpose

of legislation. In order, however, to pass the test of

permissible classification, two conditions must be fulfilled, viz.,

(i) that the classification must be founded on an intelligible

diffe­

rentia which distinguishes persons or things that are grouped

together from those that are left out

of the group ; and (ii) that

that differentia must have a rational relation to the objects sought

to

be achieved by the statute in question. (see Shri Ram Krishna

Dalmia

v. Shri Justice S.R. Tendolkar &

Others.(') The classifica­

tion may be founded on differential basis according to objects

sought to

be achieved but what is implicit in it is that there ought

to be a nexus i.e., causal connection between the basis

of

classifica­

tion and object of the statute under consideration. It is equally

well settled by the decisions of this Court that Art. 14 condemns

discrimination not only

by a substantive law

but also by a Jaw of

procedure.

After an exhaustive review

of almost all decisions bearing on

the question

of Art. 14, this Court speaking through Chandrachud,

C.J.

in Re.

Special Courts Bill (') restated the settled propositions

which emerged from the judgments

of this Court undoubtedly

insofar

as they were relevant to the decision on the points arising

for consideration

in that matter .. Four of them are apt and relevant

for the

present purpose and may be extracted. They are :

"3. The constitutional command to the State to afford

equal protection

of its

l~ws sets a goal not attainable

(I) fl 959] S.C.R. 279 at p. 296.

(2) [1979] 2 S.C.R. 476 at p. 534.

"··

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D.S. NAKAIU v. UNION (Desai, J.) 177

by the invention and application of a precise formula.

Therefore, classification need not be constituted

by an

exact

or scientific exclusion or inclusion of persons or

things. The Courts should not insist on delusive

exactness or apply doctrinaire tests for determining

the validity of classification in any given case. Classi­

fication is justified if it is not palpably arbitrary.

4. The principle underlying the guarantee of Article 14

is not that the same rules of law should be applicable

to. all persons within the Indian territory or that the

same remedies should be made available to them

irrespective of differences of circumstances. It only

means that all persons similarly circumstanced shall

be

treated alike both in privileges conferred and liabilities

imposed. Equal laws would have to be applied to all

in the same situation, and there should

be no

discri·

mination between one person and another if as regards

the subject matter of the legislation their position

is ·substantially the same.

6. The 11iw can make and set apart the classes according

to the needs and exigencies

of the society and

a'.s

sµgg.ested by experience. It can recognise even degree

of evil, but the classification should never be arbitrary,

artificial

or evasive.

7. The

classification must not be arbitrary but must be

rational, that is to say, it must not only be based on

some qualities or characteristics which are to be found

in all the persons grouped together and not in others

;who are left out but those qualities or characteristics

must have

a reasonable relation to the object of the

legislation.

In order to pass the test, two conditions

must be fulfilled, namely,

(1) that the classification

must

be founded on an intelligible differentia which

distinguishes those that are grouped together from

others and

(2) that dift'erentia must have a rationai

relation to the object sought to be achieved

by the

Act."

The other facet of Art. 14 which must be remembered is that

it eschews arbitrariness in any form. Article

14 has,

therefore, not

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178 SUPREME COURT REPORTS [ 19~3 J 2 s.c.R.

to be held identical with the doctrine of classification. As was

noticed in Maneka Gandhi's case in the earliest stages of evolution

of the Constitutional law, Art. 14 came to be identified with the

doctrine

of classification because the view taken was that Art. 14

forbids discrimination and there will be no discrimination where

the classification making the differentia fulfils the aforementioned

two

ccnditicns. However, in E P. Royappa v. State of Tamil

Nodu('), it was held that the basic principle which informs both

Aris.

14 and 16 is equality and inhibition against discrimination. !fhis Court further observed as under :

"From a positivistic point of view, equality is antithetic

to arbitrariness. In fact, equality and arbitrariness are

sworn enemies; one belongs to the rule of law

in a republic

while the other, to the

whim and caprice of

an absolute

monarch. Where an act

is arbitrary it is implicit in it that

it is unequal both according to political logic and

constitu­

tional law and is, therefore, violative of Art. 14, and if it

affects any matter relating to public employment, it

is also

violative' of Art.

I 6. Articles I 4 and 16 strike at arbitrari­

ness in State action and ensure fairness and equality of

· treatment.

Justice Iyer has in bis inimitable style dissected Art.

14 as

under: "The article has a pervasive processual potency and

versatile quality, equalitarian

in its soul and allergic to

·discriminatory diktats. Equality

is the antithesis of

arbitrari­

ness and ex cathedra ipse dixit is the ally of-demagogic

authoritarianism. Only knight-errants of 'executive

excesses'

-if we may use current cliche-can fall in love

with the Dame

of despotism, legislative or administrative. If

this

Court· gives in here it gives up the ghost. And so it

that I insist on the dynamics

of limitations on fundamental

freedoms as implying the rule of law ;

be you ever so high,

the law

is above

you."(

2

1

Affirming and explaining this view, the Constitution Bench

in

Ajay Hasia etc. v. Khalid Mujib Sehravardi

& Others etc. (

3

) held

H m [197412 s.c.R. 348.

r21 [197812 s.C.R. 621 at 728

(3) [1981) 2 S.C.R. 79.

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D.S. NAKARA v. UNION (Desai, J.) 179

that it must, therefore, DO!\' be taken to be well settled that what

Art.

14 strikes at is arbitrariness because any action that is arbitrary

must necessarily involve negation

of equality. The Court made it

explicit that where an act

is arbitrary it is implicit in it that it is un

•

equal both according to political logic and constitutional law and is,

therefore, violative

of Art. 14. After a review of large number

of

decisions bearing on the subject, in Air India etc. etc. v .. Nargesll

Meerza

d OrJ.

etc. etc.(') the Court formulated propositions emer­

ging from analysis and examination of earlier decisions. One

such proposition held well established is that Art. 14 is certainly

attracted where equals are treated differently without any reasonable

basis.

Thus the fundamental principle

is that Art.

14 forbids class

legislation but permits reasonable classification for the purpose

of

legislation which classification must satisfy the twin tests of

classifi­

cation being founded on an intelligible differntia which distinghishes

persons or things that are grouped together from those that are left

out

of the group and that differentia must have a rational nexus to

the object sought to

be achieved by the statute in question.

As a corrolary to this well established proposition, the next

question is, on whom the burden

lies to affirmatively establish the

rational principle on which the classification

is founded correlated to

the object sought to

be achieved ? The thrust of Art. 14 is that the

citizen

is entitled to equality before law and equal protection of laws.

In the very nature

of things the society being composed of unequals

a welfare state

will have to strive by both executive and legislative

action to help

t.he less fortunate in the society to ameliorate their

condition so.that the social

and econ~mic inequality in the society

may

be bridged.

Thi• would necessitate a legislation applicable to

a group

of citizens otherwise unequal and amelioration or whose lot is the object of state affirmat,ive action. In the absence or doctrine or

classification such legisll)tion is likely to flounder on the bed roclc of

equality enshrined in Art. 14. The court realisticallly appraising

the social &!ratification and economic inequality and lceeping in view

the guidelines on which the State action must move as constitutio­

nally laid down in part IV of the Constitution, evolved tho doctrine

of classification, The doctrine was evolved to sustain a legislation or

State action designed to help wealcer sections of the society or some

(1) [191211 S C.R. 438.

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180 SUPREME COURT REPORTS [ 1983) 2 s.c.R.

such segments of the society in need of succour. Legislative and

executive action may accordingly

be sustained

if it satisfies the twin

tests

of reasonable classification and the rational principle correlated

to the object sought to

be achieved. The State, therefore, would

have to affirmatively satisfy the Court that the

twin tests have been

satisfied.

It can

only_ be satisfied if the State establishes not only the

rational principle on whic\l classification is founded but correlate it

to the objects sought to be achieved. This approach

is noticed in Rainana Dayaram Shelly v. The International Airport Authority of

India & Ors. (1) when at page 1034, the Court observed that a dis­

criminatory action of the Government is liable to be struck down,

unless it can

be shown by the Government that the departure was

not arbitrary, but was based on some valid principle which in itself

was not irrational, unreasonable or discriminatory.

The basic ,contention as hereinbefore noticed is that the

pensioners

for

the· purpose or receiving pension form a class and

there

is no criterion on which classification of pensioners ;retiring prior to[specified date and retiring subsequent to that date can provide a

rational principle correlated to object,

viz., object underlying

payment

of pensions. In reply to this contention set out in para 19

of the petition, Mr.

S.N. Mathur, Dfrector, Ministry of Finance

in part

17 of his affidavit-in-opposition on beealf of the

respon­

dents has averred as under :

"The contentions in part 18 and 19 that all pensio·

ners form one class is not correct and the p~titioners have

not shown how they form one class. Classification

of

pensioners on the basis of their date of retirement is a

valid classification for the purpose

of pensionary

benefits."

These averments would show at a glance that the State action is

sought to

be sustained on

the doctrine of classification and the

criterion

on which the classification is sought to be sustained is the

date

of retirement of the Government servant which entitled him

to pension. Thus according

kl the respondents, pensioners who

retire from Central Governmen.t service and arc governed by the

relevant pension rules

all do not form a class but pensioners who

retire prior to a certain date and those

who retire subsequent

to a certain date form distinct and separate classes.

It may

be made clear that the date

of retirement of each individual

(I) [1979] 3 S.C.R. 1014 at p. 1034,

·•-.

D.S. NAltARA v. UNION (Desai, J.) 181

pensioner is not suggested as a criterion for classification as that

would lead to an absurd result, because in that event every pensioner

relevant to bis date

of retirement will form a class unto himself.

What

is suggested is that when a pension scheme undergoes a

revision' and

is enforced

. effective form a certain date, the

date

so specified becomes a sort of a rubicon and those who retire

prior

t9 that date form one class ·and those who retire on

a subsequent date form a

di.stinct and

-separate class and no

one can cross the rubicon. And the learned Attorney General

contended that this differentiation

is grounded on a rational

princi·

ple and it has a direct correlation to the object sou-ght to be

achieved by liberalised pension formula.

The approach

of the respondents raises a vital and

n~ne too

easy

of answer, question as to why

pension is p1id. A11 W't'f was it

required to

be liberalised? Is the employer, which

expression will

include even the State, bound to pay · pension ? Is there any

obligation on the employer to provide for the erstwhile employee

even after the contract

of employment has come to an end and the

employee has ceased to render service

?

What is a pension

? What are the goals of pension ? What

pnblic interest or purpose, if any, it seeks to serve ? If it does

seek to serve some public purpose,

is it thwarted by such

artifici,µ

division of retirement pre and post a certain date ? We need seek

answer to these and incidental questions

so as to render just justice

between parties to this petition.

The antequated notion

of pension being a bounty a gratituous

payment

depending upon the sweet will or grace of the employer

not claimable as a right and, therefore, no right to pension can be

enforced through Court has been swept under the carpet by the

decision of the Constitution Bench in

Deoki Nandan Prasad v. State

of Bihar &

Ors. (

1

)

wherein

. this Court authoritatively ruled that

pension

is a right and the payment of it does not depend upon the

discretion of the

Government but is governed by the rules and a

Government servant

coming within those rules is entitled to claim

pension. It

was further held that the grant of

penllion does not

depend upon any one's discretion.

It is only for the purpose of

(I) (1971] Supp. S.C.R. 634.

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182

SUPREME COURT REPORTS . (1983) 2 S.C.R

quantifying the amount having regard to service and other allied

matters that

it may be necessary for the authority to pass an order

to that effect but the right to receive pension

flows to the officer

not because

of any such order but by virtue of the rules. This

view was reaffirmed in

State of Punjab & Anr. v. Iqbal Singh (

1

).

There are various kinds of pensions and there are equally

various methods

of funding

. pension programmes. The prssent

enquiry

is limited to non-contributory superannuation or retirement

pension paid

by Government to its erstwhile employee and the

purpose and object underlying it. Initially this class

of pension

appears to have been introduced as a reward for loyal service.

Probably the alien rulers who recruited employees in lower echelons

of service from the colony and exported higher level employees

from the seat

of Empire, wanted to ensure in the case of former

continued loyally till death to the alien rulers and in the case

of

latter, an assured decent

l!ving standard in old age ensuring econo­

mic security at the cost of the colony.

In the course

of transformation of society from feudal to

welfare and as socialistic thinking acquired respectability,

State

obligation to provide security in old age, an escape from undeserved

want was recognised and as a first step pension was treated not

ooly as a reward for past service but with a view to helping the

employee to avoid destitution in old age. The

quid pro quo, was

that when the emp.loyee

was· physically and mentally alert he

rendered unto master the best, expecting him to look after him in

the fall

of life. A retirement system therefore exists solely for the

purpose

of providing benefits. Io

most of the plans of retirement

benefits, everyone who qualifies for normal retirement receives

the same amount. (Etc Retirement Systems for Public Employees

by Bleakney, page 33.)

E~.: ·;!

As tbe present case is concerned with superannuation pension,

a brief history

of its initial introduction in early stages

and conti­

nued existence till today mayi, be illuminating. Superannuation is

the most descriptive word

of all but bas become obsolescent

because it

seems ponderous. Its genesis can be traced to the first

Act

of Parliament

fin U.K.) to be~ concerned with the provision of

pensions generally in public offices. It was passed in 1810. The

--

(I) [1976) 3 S.C.R. 360.

;

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D.S. NAKARA v. UNION (Desai, J.) 183

Act which substantively devoted itself exlcusively to the problen of

superannuation pension was superannuation Act of 1834. These are

landmarks

in pension history because they attempted for the first

time to establish a comprehensive and uniform scheme for

all who;n

we may now call civil servants. Even before the I 9th century, the

problem

of providing for public servants who are unable,

through.

old age or incapacity, to continue working, has been recognised,

but methods

of dealing with the problem varied from society to

aociety and even occasionally from department to department.

A political society which

has a goal of setting up of a welfare

State, would introduce ·and has in fact introduced as a welfare

measure wherein the retiral benefit

is grounded on 'considerations of · State obligation to its citizens who having rendered service during ·

the useful span of life must not be left to penury in their old age, .

but the evolving concept of social security is a later day develo?·

ment'. And this journey was over a rough terrain. To n~te only one

stage

in 1856 a Royal Commission was set up to consider whether

any changes were necessary in the system established

by the 1834

Act. The Report of the Commission is known as

"Northcote-Tre~

velyan Report". The Report was pungent in its criticism when it

says that : "ht civil services comparable to lightness of work and the

certainty

of provision in case of retirement owing

to bodily incapa­

city, furnish strong inducements to the parents and friends of sickly

youths to endeavour to obtain for them employment

in. the service of

the Government, and the extent to which the public

are coilseqnently

burdened; first with the salaries of officers who are obliged .. to absent

themselves from their duties on account of ill health, and afterwards

with their pensions when they retire on the same plea, would hardly

be credited by those who have not had opportunities of

ob~erving

the operation of the system.'" (see Gerald Rhodes, Public Sector

Pensions, pp. I 8-19).

This approach

is utterly unfair because

lit modern times public

services are manned

by those who enter at a

clmparatively very

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young age, with seleetion through national competitive examination G

and ordinarily the best talent gets the opportunity.

Let

us therefore examine what are

. the goals that Pension

scheme.seeks to subserve? A pension scheme consistent with avail-·

able resources must provide that the pensioner would be able to

iive:

(i) free from want, with decency, independence and self.respect,

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184 SUPREME COURT REPORTS [1983) 2 S.C.R.

and (ii) at a standard equivalent· at the pre-retirement level. This

approach may merit the criticism that if a developing country like

India cannot provide

an

employee while rendering service a living

wage, how can one be assured of it in retirement 1 This can be aptly

illustrated by a small illustration. A man with a broken arm asked

his doctor whether he

will be

able to· play the piano after the cast

is removed. When assurcdjthat he will, the patient replied, 'that is

funny, I could not before'. It appears that determining the mini­

mum amount required for living decently is difficult, selecting the

peoceotage representing the proper ratio between earnings and the

retirement income

is harder. But it is imperative to

Mte that as

self-sufficiency declines the need for bis attendance or institutional

care grows. Many are literally surviving now than

in the past. We

owe it to them and ourselves that they live, not merely exist.. The philosophy prevailing in a given society at various stages of its

development profoundly influences its social objectives. These

objectives are in turn a determinant of a social policy. The law is

one of the chief instruments whereby the social policies are imple­

mented and 'pension is paid according to rules which can be said

to provide social security law by which it is meant those legal

mechanisms primarily concerned to ensure the provision for the

individual of a cash income adequate, when taken along with the

benefits

in kind provided by other social services (such as free medical

aid) to ensure for

him a culturally

acceptable minimum standard of

Jiving when the normal means of doing so failed'. (see Social Security

law by Prof. Harry· Calvert, p. 1).

Viewed in the light of the present day notions pension is a

term applied to periodic money payments to a person who retires

at a certain age considered age of disability ; payments usually

continue for the rest

of the natural life of

lhe recipient. The

reasons underlying the grant

or pension vary

from country to

country and from scheme to scheme. But broadly stated they

are

(i) 'as compensation to former members of the armed forces

or their dependents for

old age, disability, or death (usually

from service causes),

(ii) as old age retirement or

!lisability

benefits for civilian employees, and (iii) as social security payments

for the aged, disabled, or deceased citizens made

in accordance

with the rules governing social service program

mes of the country.

Pensions under the first head are of great antiquity. Under

the second head they have been

in force in one form or another in

some countries for over a century but those coming under the third

bead are relatively

or recent origin, tboug h they are of the greatest

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D.S. NAKA:U V· UNION (Desai, J.) 185

magnitude. There are other views about pensions such as charity,

paternalism, deferred pay, rewards for service rendered, or as a

means or promoting general welfare

(see Encyclopaedia Britannica,

Vol.

17 p.575.) But these views have become otiose.

I 1 Pension to civil employees of the Government and the defence

personnel as administered in India appear to be a compensation for

service rendered in the past. However, as held

in Douge v. Board of

Education{') a pension is closely akin to wages in that it consists of

payment provided by an employer, is paid in consideration of past

service and serves the purpose

of helping the recipient meet the

expenses

of living. This appears to be the nearest to our approach

to pension with the added qualification that it should ordinarily

ensure freedom from undeserved want.

Summing-up it can

be said with confidence that pension is

not only compensation for loyal service

rendercn in the past, but

pension also bas a broader significance, in that it is a measure of

socio-economic justice which inheres economic security in the fall

of life when physical and mental prowess is ebbing corresj}~11ding to

aging procees and therefore, one

is required to fall back on savings. One such saving in kind is when you gave your best in the hey-day

of life to your employer,

in days of invalidity, economic security by

way of

periodical payment is assured. The term has been judicially'

defined as a stated allowance or stipend made

in

consideratiJn of

past service or a surrender of rights or emoluments to one retired

from service. Thus the pension payable to a GJvernment employee

is earned by rendering long and efficient service and therefore can be

said to be a deferred portion or the compensation or

for service

rendered.

In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due

to old age. One may Jive and avoid unemployment but not seni·

lity and penury if there is nothing to fall back upon.

The discernible purpose thus underlying pension scheme

or a statute introducing the pension scheme must inform interpre­

tative P.rocess and accordingly it should receive a liberal construc­

tion and the courts may not so interpret such statute as to render

them inane

(see American Jurisprudence 2d. 881).

(!)

302 US 74 83 L. Ed. 57.

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186 SUPREME COUR1 REPORTS [1983] 2 s.c.R.

From the discussion three things emerge : (i) that pension is

neither a bounty nor a matter of grace depending upon the sweet

will

of the employer and that it creates a vested right subject to 1972

rules which are statutory in character because they are enacted in nuciie of poviers conferred by the proviso to Art. 309 and clause

(5) of Art. 148 of the Constitution; (ii) that the pension is not an

•~· Erntia payment but it is a payment for the past service rendered;

and

(iii) it is a social welfare measure rendering socio-economic

justice to those who

in the bey-day of their life ceaselessly toiled for

the employer on an assurance that in their old age they would not

be left in lurch. It must also be noticed that the

, quantum of pension

is a certain percentage correlated to the average emoluments drawn

during last three years

of service reduced to ten months under

libera­

lised pension scheme. Its payment is dependent upon an additional

condition

of impeccable behaviour even subsequent to retirement,

that is, since the cessation

of the contract of service and that it can

be reduced or withdrawn as a disciplinary measure.

Having succinctly

focussed our attention on the conspectus of

elements and incidents of pension the main question may now be

tackled. But, the approach

of court while considering such measure

is

of paramount importance.

Since the advent of the Constittition,

the state action must be directed towards attaining the goals set

out

in Part IV of the Constitution which, when achieved, would permit

us to claim that

we have set up a

welfare State. Article 38 (I)

enjoins the State to strive to promote welfare 'lf the people by

securing and protecting as effective as it may a social order in which

justice social, economic and political shall inform all institutions

of

the national life. In particular the

State shall strive to minimise the

inequalities

in income and endeavour to eliminate inequalities in

status,

facilities and opportunities, Art. 39 (d) enjoins a duty to see

that there

is equal pay for equal work

for both men and women and

this directive should be understood and interpreted in the light of

the judgment of this Court in Randhir Singh v. Union' of India cl

Ors.(

1

)

Revealing the scope and content of this facet

of equality,

Chinnappa Reddy,

J. speaking for the Court observed as under :

"Now, thanks to the rising social and political con·

sciousness and the expectations aroused as a consequence

and the forward looking posture

of this Court, the

under·

(!) [1982] l s.c.c. 618

-

D.S. NAICARA '· UNION (Desai, J.)

privileged iilso are clamouring for the rights and !are

seeking the intervention of the Court with touching faith

and confidence

in the Court. The Judges of the Court

have a duty to redeem their Constitutional oath and do

justice no less to the pavement dweller than to

the guest

of the Five

Star Hotel."

187

Proceeding further, this Court observed that where all relevant

considerations are the same, persons holding identical posts may

not be treated differently in the matter of their pay merely becauac

they belong to different departments. If that can't be done when

they are in service, can that be done during their retirement?

Expanding this principle, one can confidently say that

if pensioners

form a

class, their computation cannot be by

different formula

affording unequal treatment solely on the ground that some retired

earlier and some retired later. Art.

39 (e) requires the

State to secure

that the health and strength

of workers, men and women, and

children

of tender age are not abused and that citizens are not

forced

by economic necessity to enter avocations unsuited to their age

or strength. Art. 41 obligates the

State within the limits of its econo·

mic capacity and developµient, to make effective provision for

securing the right to work, to education and to provide assistance

in cas., of unemployment, old age, sickness and disablement, and

in other cases of undeserved want. Art. 43 (3) requires the State to

endeavour to secure amongst other things full enjoyment of leisure

and social and cultural opportunities.

Recall at this stage the Preamble, the flood light illuminating

the path to

be

pursued by the State to set up a Sovereign Socialist

Secular Democratic Republic. Expression 'socialist' was intention­

ally introduced in the Preamble by the Constitution (Forty-Second

Amendment) Act, 1976. In the objects and reasons for amendment

amongst other things, ushering in of socio-economic revolution was

promised. The clarion call may be extracted :

"The question of amending the Constitution for

removins the difficulties which have arisen in achieving the

objective

of socio-economic revolution, which would end

poverty and ignorance and disease . and inequality

of

opportunity,

ha8 been engaging the active attention of

Government and the public for some time .........

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188 SUPlll!MB COURT REPORT8 (1983j 2 S.C.R.

It is, therefore, proposed to amend · the Constitution

to spell out expressly the high ideals of socialism ........ .

to make the directive principles more comprehensive ...... "

What does a Socialist Republic imply? Socialism is a much mis­

understood word. Values determine contemporary socialism pure and

simple. But it is not necessary

at this stage to go into all its

rami­

fications. The principal aim of a socialist State is to eliminate

inequality

in income and status and standards of life. The basic

framework

of socialism is to provide a decent standard of life to the

working people and especially provide security from cradle to grave.

This amongst

ot.hers on economic side envisaged economic equality

and equitable distribution of income. This is a blend of Marxism

and Gandhism leaning heavily towards Gandhian socialism. During

the formative years, socialism aims

at providing all opportunities

for pursuing the educational activity. For want

of wherewithal or

financial equipment the opportunity to be fully educated shall not

be denied. Ordinarily, therefore, a socialist State provides for free

education from primary to

Ph. D. but the pursuit must be by those

who have the necessary intelligence quotient and not as in our society

w~ere a brainy young man coming from a poor family will not be

able to prosecute the education for want of wherewithal while the

ill-equipped son

or daughter of a well-to-do father will enter the

portals

of higher education and contribute to national wastage.

Afler the education is completed, socialism aims

at equality in pursuit

of excellence in the chosen avocation without let or hindrance of

caste, colour, sex or religion and with full opportunity to reach the

top not thwarted

by any considerations of status, social

onither­

wise. But even here the less equipped person shall be assured a

decent minimum standard of life and exploitation

in any form shall

be eschewed. There

will be equitable distribution of national cake

and the worst off shall

be treated in such a manner as to push them

up the ladder. Then comes the old age in the life

of everyone, be

be a monarch

or a Mahatma, a worker or a pariah. The old age

overtakes each one, death being the fulfilment

of life providing

freedom from bondage. But there socialism aims at providing an

economic security

to those who have rendered unto society what

they

were capable of doing when they were fully equipped with their

mental and physical prowess.

In the fall of life the

State shall ensure

to the citizens a reasonably decent standard of life, medical aid,

freedom from want, freedom from fear and the enjoyable leisure,

D.S. NAKARA v. UNION (Desai, J.) 189

relieving the boredom and the humility of dependence in old age.

This is what Art.

41 aims when it enjoins the

State to se:ure public

assistance in old age, sickness and disablement. It

was such a

socia­

list State which the Preamble directs the centres of power Legislative

Executive and

Judiciary-to strive to set up. From a wholly feudal

exploited slave society to a vibrant, throbbing socialist

.velfare

sciciety is a long march but during this journey to the fulfilment

of ~oal every State action whenever taken must b~ directed, and

must

be so interpreted, as to take the society one step towards the

goal.

To some extent this approach

will find support in the judgment

in Minerva Mills Ltd. & Ors. v. Union of India & Ors.(

1

). Speaking

for the majority, Chandrachud, C.J. observed as under :

"This is not mere semantics. The edifice of our

Constitution

is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a

Socialist State which carried with it the obligation to secure

to our people justice-so9ial, economic and political. We,

therefore, put PartllIV into our Constitution containing

directive principles of State policy which specify the socia­

listic goal to be achieved."

At a later stage it was observed that the fundamental rig!its

are not an end in themselves but are the means to an end, the end

is specified in part IV. Bhagwati,

J. in his minority judgment after

extracting a portion of the

sp~ech of the then Prime Minister

Jawahar Lal Nehru, while participating

in a discussion on the

Constitution (First Amendment)

Bill, observed that the Directive

. Principles arc intended to bring about a socio-economic revolution

and to create a

ucw socio-economic

jorder where there will be social

and economic justice for all and everyone, not only a fortunate few

but the teeming millions of India, would be· able to participate in the

fruits

of freedom and development and exercise the fundamental

rights. It, therefore, appears to

be well established that while

inter­

preting or examining the [constitutional validity of legislative/admi­

nistrative action, the touchstone

of Directive

Principles of State

Policy in the light of the Preamble will lprovide a reliable yardstick

to hold one

way or the other.

'

fll (1981] l S.C.R. 206.

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190 IUPRBME COURT REPOJ.TS. (1983) 2 s.c.a.

With this background let .us now turn to the challenge posed

in these petitions. The challenge is not to the validity

of the

pension liberalisation scheme. The scheme

is wholly acceptable to

the petitioners, nay they are ardent supporters of it, nay further

they seek the benefit

of it. The petitioners challenge only that

part

of the scheme by which its benefits are admissible to those who

retired from service after a

cert11io date; In other words, they

challenge that the scheme must be uniformly enforced with regard

to all pensioners for the purpose

of computation of

pen1ion

irrespective of the date when the Government servant retired

subject to the only condition that he was governed

by the 1972

Rules. No doubt, the benefit of the scheme will be available from

the specified date,

itrespective of the fact when the concerned

Government servant actually retired from service.

Having set out clearly the society which

we propose to set

up,

the direction in which the State action must move, the welfare State

which

we propose to build up, the constitutional goal of setting up

a socialist State and the assurance in the Directive Principles

of

State Policy especially of security in old age at least to those

who have rendered useful service during their active years, it

is

indisputable, nor was it questioned, that pension as a retirement

benefit

is in consonance with and furtherance of the .goals of the

Constitution. The goals for which pension

is paid themselves give

a fillip and push to the policy

of setting up a welfare State because

by pension the socialist goal

of security of cradle to grave is assured

at least when it is mostly needed and least available, namely, in the

fall

of life.

Ifsuch be the goals of pension, if such be the welfare State

which

we propose to set up,

if such be the goals of socialism and

conceding that any welfare measure may consistent with . economic

capacity

of the

State be progressively augmented with wider width

and a longer canvass yet when the economic means permit the

augmentation, should som'C be left out for the sole reason that while

in the formative years of the nascent State they contributed their

mite but

when the fruits of their labour led to the flowering of

economic development and higher gross national produce bringing

in larger revenue and therefore larger cake

is available, they would

he denied any share of it ? Indisputably, viewed

from any angle

pensioners

for payment of pension form a class. Unquestionably

pension

is linked to length of service and the last pay drawn but

the last pay docs not imply the pay on the last day

of retirement

;

•

D.S. NUARA v. UNION (Desai, J.) 191

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 now reduced to average emoluments

of

IO 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 'bas not reached the maximum, permit annual increments

and there are promotions in the last one or two years. With a

view to giving

· a higher average the scheme was liberalised to

provide for average emoluments with reference to last 10 months'

service. Coupled with it, a slab system for computation is

. introduced and the ceiling

is raised. This is liberalisation. Now,

if the pensioners who retired prior to the specified date and had to

earn pension on the average emoluments

of 36 months' salary just

preceding

,the date of retirement, naturally the average would be

lower and they will be doubly hit because the slab system as now

introduced

was not available and the ceiling was at a lower level.

Thus they suffer triple jeopardy, viz., lower average emoluments,

absence of slab system and lower ceiling.

What then

is the purpose in prescribing the specified date

vertically dividing the pensioners between those

who retired prior

to the specified date and those

who retire subsequent to that date

?

That poses the further question, why was the pension scheme

liberalised ? What necessitated liberalisation of the pension scheme ?

Both the impugned memoranda do not spell out the raison

d'etre for liberalising the pension formula. In the affidavit in

opposition

by

Shri S.N. Mathur, it has ~been stated that the

liberalisation of pension of retiring Government servants was

decided

by the Government in view of the persistent demand of the

Central Government employees represented in the scheme

of Joint Consultative Machinery. This would clearly imply that

the preliberalised pension scheme did not provide adequate

protection

in old age and that a further leberalisation 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

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SUPREME COURT REPORTS. 1198312s.c.a,

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 any

one be bold enough to assert that it

was good enough only for

those who would retire subsequent to the specified date but those

who had already retired did not suffer the pangs

of rising prices

and falling purchasing power

of the

rupee ? What is the sum total

of picture ? Earlier the scheme wa" 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

spl!cified date would feel the pangs

in their old age,

of lack of adequate security, by what stretch of

imagination tbe same can be

denied to those who retired earlier

with lower emoluments and yet are exposed to the vagaries of the

rising pr.ices 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 liberalis­

ing 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

Ile retirees but falling on one or ihe other side of the

specified date.

Therefore, let

us proceed to examine whether there was any

rationale behind the eligibility· qualification. The learned

Attorney­

General contended that the scheme is one whole and that the date

is an integral part of the scheme and the Government would have

never enforced the scheme devoid

of the date and the date. is not

severable from the scheme as a whole. Contended the learned

Attorney-General that the Court does not take upon itself the

G function of legislation for person<, 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

th<: judicial function to enlarge the

class and to

do so is not to interpret but to legislate which is the , . B forbidden field. Alternatively it was also contended that where a

larger class comprising two smaller classes

is covered by a

legisla­

tion of which one part is constitutional, the Court examines whether

D.S. NAKARA •• UNION (Desai, J.) 193

the legislation must be invalidated as a whole or only in respect of

the unconstituiionil part. It was also said that severance always

cuts down the scope of legislation but can never enlarge it and in

the present case the scheme as it stands would not cover pensioners

such as the petitioners and

if by severance an attempt is made to

include them in the scheme it

is not cutting down

the class or the

scope but enlarge the ambit

of the scheme which is impermissible

even under the doctrine

of severability. In this context it was lastly

submitted that there

is not a single case in India

or elsewhere where

the Court has included some category within the sc:ipe of provisions

of a law to maintain its constitutionality.

The last submission, the absence

of precedent need not deter

us for a moment. Every new norm of socio economic justice. every

new measure

of social justice commenced for the first time at

some·

point of history. If at that time it is rejected as being without a

precedent, the law as an instrument

of social engineering would

have long since been dead and no tears would have been shed.

To

be pragmatic is not to be unconstitutional. In its onward march.

law as an institntion 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

con"otation.

The rules of natural justice owed their origin to ethical and moral

code. Is there any doubt that they have become the integral and

inseparable parts

of rule of law of which any civilised society is

proud? Can anyone be bold enough to assert that ethics and

morality are outside the

field of legal formulations? Socio-ecooomic

justice stems from the concept

of social morality coupled. with

abhorrence for economic exploitation. And the advancing society

converts in course

of time moral or ethical code into enforceable

legal formulations. Over-emphasis on precedent furnishes an

insurmountable road-block to the onward march towards promised

millennium. An overdose

of precedents is the bane of our

<ystem

which is slowly getting stagnant, stratified and arr.)pbie,sf. Therefore

absence of a precedent on this point need not deter us at all. We

are all the more happy for the cbance of scribbling on a c.lean slate.

If it appears to be undisputable, as it does to us that the

pensioners for the purpose

of pension benefits form a class, would

its upward revision permit a homogeneous class to

·be divided by

arbitrarily fixing an eligibility criteria unrelated to purpose of revi­

sion, and would sue!! classifi9ation be fogq<fod on some rational

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194 SUPREME COURT REPORTS {1983] 2 s.c.ll.

principle ? The classification has to be based, as is well settled, on

some rational principle and the rational p~inciple 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

th9se 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

otherwi!e 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 stare• into face and is

unrelated to any principle and whatever principle, if there be any,

has absolutely no nexus to the

obje,cts sought to be achieved by

liberalising the pension scheme. In

fact this arbitrary division has not

IJ' only no nexus to the liberalised pension scheme but it is counter

. . .

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productive and runs counter to the whole gamut of pension scheme.

The equal treatment guaranteed

in Art. 14 is wholly violated

inas­

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 commutation

of pension. A 48

hours difference in matter of retirement would have a traumatic

effect. Division

is thus both arbitrary and unprincipled. Therefore

the classification does not stand the test

of Art. 14.

'

Further the classification is wholly arbitrary because we do not

find a single acceptable or persuasive reason for this division. This

arbitrary action violated the guarantee of Art. 14. The next question

is what

is the way out?

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D.S. NAKARA v. UNION (Desai, J.) 195

The learned Attorney-General contended that th~ scheme is to

be taken as a whole or rejected as a whole and the date from which it

came into force

is an integral and inseparable part of the scheme.

The

two sub-limbs of the submissions were that, (i) the Court cannot

make a scheme having financial implications retroactive, and

(ii) this Court cannot grant any relief to the pensioners who retired

prior to a specified date because

if more persons divide the available

cake, the residue falling to the share

of each especially to those who

are likely to

be benefited by the scheme will be comparatively smaller

and

as they are not before the Court, no re lief can be given to the

pensioners.

Let

us clear one misconception. The pension scheme including

the liberalised scheme available to the Government employees

is

non-contributory in character. It was not pointed out that there is

somethii:tg like a pension fund. It is recognised as an item of

expenditure and it is budgeted and voted every year. At any given

point

of time there is no fixed or predetermined pension fund which

is divided amongst

·eligible pedsioners. There is no artificially

created fund· or reservoir from which pensioners draw pension

within the limits of the fund, the share of each being extensive with

the available fund. The payment of pension

is a statutory liability

undertaken

by the Government and whatever becomes due and

payable

is budgeted for.

One could have appreciated this line of

reasoning where there is a contributory scheme and a pension fund

from which alone pension

is dish ursed. That being not the case, ·there is no question of pensioners dividing the pension fund which,

if more perons are admitted to the scheme, would

pfo rata affect

the share. Therefore, there

is no question of dividing the pension

fund. Pension

is a

liability incurred and has to be provided for in

the budget. Therefore, the ·argument of divisions of a cake, larger

the number

of

sharers, smaller the share and absence of residue and

therefore

by augmentation of beneficiaries, pro rata share is

likely ·

to be affected and their abseece making relief impermissible, is an

argument born

of desperation,

a11cl is without merits and must be

rejected as untenable,

By our approach, are we making the scheme retroactive ?

The answer is emphatically in the negative. Take a govern­

ment servant who retired on April I, 1979. He would be governed

by the liberalised pension scheme, By that time he had put

in qualifying service of 35 ye~r~, His length of service is a

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196 SUPRBMB COURT llBPORTS [ 1983 I 2 s.c.a.

A relevant factor for computation of pension. Has the Government

made it ·retroactive, 35 year;; backward compared to the case of

a Government servant who retired on 30th March, 1979? Concept

of qualifying service takes note of· length of service, and pension

quantum

is correlated to qualifying service. Is it retroactive for

35

years for one and not retroactive for a person who retired two

B days earlier ? It must be rnmembered that pension is relatable

to qualifying service.

It has correlation to the

11verage emoluments

and the length

of service. Any liberalisation would pro tanto be

retroactive in the narrow sense

of the term. Otherwise it is always

prospective. A statute is not properly called a retroactive statute

because a part

of tbe requisites for its action is drawn from a time

C antecedent to its

pa;sing. (<ee Craies on Statute Law, sixth edition,

p. 387)./Assuming the Go.vernment 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

wou!Ci be both prospective and retroactive.

D , Only the pension will have to be recomputed in the light of the

formula enacted in the liberali!:ed 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

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benefit, one could have appreciated an argument that those who

had already retired could not expect it.

t' It could have been

urged that

it is an incentive to attract the fresh recruits.

Pension

is a reward for past service. It is undoubtedly a condition of service

but not an incentive to attract new entrants because if it

was to be

available

to' new entrants only, it would be prospective at such

distance

of thirty-five years since its introduction. But it covers all

those

in service who entered thirty-five years back.

Pension

is thus not an incentive but a reward for past service. And

a revision

of an exis.ting benefit stands on a different footing

than a

new retiral benefit. And even in case of

dew retiral benefit

of gratuity under the Payment of Gratuity Act, 1972 past

service

was taken into consideration. Recall at this

sragc the

method adopted when pay·soales are revi~ed. Revised pay-scales

ar.e introduced from a ceritain date. All existing .employees

are brought on

to the revised scales by adopting

a theory of fitments

and increments for past service. In other words, benefit

of revised

scale

is not limited to those who enter service subsequent

to the

da.te fixed for introducing revised scales but the benefit is extended

to all those in service prior to that <!ate. This is just and fair. Now

--

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•

/

D.S. NAKARA v. UNION (Desai, J.) 197

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

app­

roach would be making the scheme retroactive, because it is implicit

in theory of wages.

That takes us to the last important contention

of the learned

Attorney General.

It was urged that the date from which the

scheme becomes operative

is an integral part of the scheme and the

doctrine or severability cannot

be invoked. In other words, it was

urged that that date cannot be severed from the main object of the

B.

scheme because the Government would have never offered the C

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

Q

denies equality of treatment to persons belonging to the same class,

some preferred and some omitted. Is this eligibility qualification

severable ?

/ It was very seriously contended, remove the event correlated

to date and examine whether the scheme

is workable. We find no

difficulty in implementing the scheme omitting the event happening

after the specified date retaining the more humane formula for

computation

of pension. It would apply to all existing pensioners

and future pensioners.

In the

case or existing pensioners, the pension

will have to be recomputed by applying the rule of average emolu­

ments as set out in Rule 34 and· introducing the slab· .system and

the amount worked out within the floor and the ceiling. ./

But we make it abundantly clear that arrears are not required

to

be made because to that extent the scheme is prospective. All

pensioners whenever they retired would be covered by the liberalised

pension scheme, because the scheme

is a scheme for payment of

pension to a pensioner governed by 1972 Rules. The date of

retirement is irrelevant. But the revised scheme wou Id be

opera­

tive 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

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would be payable in future commencing from the specified date.

No arrears woold be payable. And that would take care of the

grievance

of retrospeetivity. In our opinion, it would make a ·marginal difference in the case of past pensioners because the emolu-

ments are not revised.fihe last revision of emoluments was as per

the recommendation

of the Third

Pay commission (Raghubar Dayal

Commission).

If the

emolument:; remain the same, the computation

of average emoluments under amended Rule 34 may raise the ave­

rage emoluments, the period for averaging being reduced from last

36 months to last 10 months. The slab will provide slightly higher

pension and

if someone reaches the maximum the old lower ceiling

will not deny him what is

oth1:rwise 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 commence­

ment of revision are words of limitation introducing the mischief

and are vulnerable

as

dJmying equality and introducing an arbitrary

fortuitous circumstance can b" severed without impairing the

formula. Therefore, there

is

absolutely no difficulty in removing·

the arbitrary and discriminatory portion of the scheme and it can be

easily severed.

There

is nothing immutable about the choosing of an event

as an eligibility criteria

subsequellt 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 undesjrable effect of dividing homogeneous class

and

of introducing the discrimina.tion, the same can be easily severed

and set aside. While examining

the case under Art. 14, the approach

is not : 'either take it or leave it', the approach is removal of arbit­

rariness and if that can be brought about by severing the mischie­

vous 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

introduc­

tion of words of limitation and we find no difficulty in severing and

quashing the same. This approach can be legitimised on the ground

that every Government servant retires. State grants upward

revision

of pension undoubtedly from a date. Event has occurred

revision bas been earned. Date

is merely to avoid payment of

arrears which may impose a

h1:avy burden. If the date is wholly

removed, revised pensions

will have to be paid from the actual date

of retirement of each pensioner. ' That is impermissible. The

State .

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i>.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 com­

puted 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."

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 ques­

tioned 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] 2 S.C.R. 325.

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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 consul­

t1tion 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

officia­

tion 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 consi­

dering all the relevant facts. The Central Government

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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.

'·

Similarly in Jai/a Singh & Anr. v. State of Rajasthan & Ors.(

1

),

this Court struck down as discriminatory the division of pre-1955 and

post-1955 tenants for the purpose

of allotment of land made by the

Rules under

the· 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.<waran Match

Works etc.(')· By a notification dated July 21, 1967, ·benefit of a

conces sional rate of duty was made available if a manu­

facturer of matches made a declaration that the total clearance

of matches from a factory would not exceed 75 million during a

financial year.

As framed the notification extended the benefit to

manufacturers with higher capacity' to avail

of the concessional 11) [1975] Supp. S.C.R. 428.

(2) [1975] 2 S.C.R. 573.

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SUPREME COURT REPORTS 11983) ~ s.c.it.

rate of duty by filing a declaration as visualised in the proviso to

the notification

by restricting their clearance to 75 million matches.

This notification

was

amendf!d on September 4, 1967 with a view

to giving bona fide small manufacturers, whose total clearance

was not estimated to be in excess of 7 5 million matches, the

benefit

of concessional rate of duty prescribed under notification

dated July

21,'1967. The respondent in the case applied for a

licence for manufacturing matches

on September 5, 1967, that is, a

day after the date on

which amended notification was issued and

filed a declaration that the estimated manufacture for the financial

year would not

exceed 75 million matches, but this was rejected.

In a writ

petition filed by th" respondent, the High Court held that

the classification

was unreasl)oable inasmuch as the fixation of the

date for making a declaration had no nexus with the object

of

the Act. In the appeal by tbe

Union of India, this Court held that

the concessional rate ·of duty was intended for small bona fide units

who were in the field whf!n the notification dated September 4,

1967 was issued. The conc1:ssiooal rate of duty was not intended

to benefit the large units whi<:h had split up into smaller units to earn

the concession. With

refere:oce to selection of the date this Court

observed as under :

"The choice of a date as a basis for classification cannot

always

be dubbed as arbitrary even if no particular reason

is forthcoming for

tli e choice unless it is shown to . be

capricious or whimsical in the circumstances. When it is

seen that a line or a point there must be and there is no

·mathematical or logi,~al way of fixing it precisely, the

decision

of the legislature or its delegate must be accepted

unless

we can say that it is very wide of the reasonable

mark."

In reaching this coJJclusion the Court relied on Louisville

Gas

Co. v . .Alabama Power Co. (

1

)

This decision is not an

autho­

rity for the proposition that whenever a date is chosen, or an

eligibility criteria which divides a class, the purpose

of choice

unrelated

to the objects sought to be achieved must be accepted

as valid. Io fact it

is made clear in the decision itself that even

if no particular reason

is forthcoming for the choice unless

it

is shown to be capricious or whimsical, the choice Qf the

legislature may

be accepted. Therefore, the choice of the date

(!) 240 US 30 al 32 [1927]

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b.S. NAKARA v. UNION (Desai, J.)

cannot be wholly divorced from the objects sought to be achieved

by the impugned action. In other words, if the choice is shown

to

be thoroughly arbitrary and introduces discrimination violative

of Art. 14, the

·date can be struck down. What facts

influenced the Court's decision

in that case for upholding ·the choice of the date are worth-recalling. The Court held that

the object

of granting the concessional rate of duty was to protect tile smaller units in the industry from the competition by the larger

ones. and that object would have been frustrated, if, by adopting

the device

of fragmentation, the larger units could become the

ultimate beneficiaries

of the bounty. This was the weighty

consi­

deration which prompted the court to uphold the date.

the learned Attorney General next referred to D.C. Gouse

and Co. etc. v. State of Kera/a & Anr, etc. (') This Court while

repelling the contention that the choice

of April 1, 1973 as the date

of imposition of the building tax is discriminatory with reference

to Art.

14 of the Constitution, approved the ratio in the case of

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.

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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 3 lst 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.

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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

uncons­

titutional 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

bene­

ficiaries 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

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 qualifica­

tion 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

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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

emolu­

ments 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 retire­

ment. 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

-H 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

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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

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 misconcep­

tion. 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 ..

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208 SUPRi!MB COUllT RBPoRTS r 1983 I 2 s.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 constitu­

tional 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 organisa­

tion.

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

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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 i

mpor­

tant 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

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.

.__,,_

A

B

c

0

G

210 SUPREME COURT RllPORTS (1983) 2 S.C.R

A and in Exhibit P-2, the words :

B

D

"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.

•·