J.R.Chopra, J. - (1.) THIS writ petition has been filed by an Ex Employee of the Rajasthan High Court who has superannuated on 14.11.69 on completion of the age of fifty five years. At the time of superannuation, he was holding the post of Asstt. Registrar and his pay on that date was Rs. 575/ - basic plus Rs. 120/ - D.A., total Rs. 695/ - In view of the terms of Rule 256 of the Rajasthan Service Rules, 1951 which govern the Computation of the pension, the petitioner was granted pension by computing the average emoluments of years preceding the date of retirement and by excluding the D.A. According to Rule 256 at the relevant time, the pension was 30/80 of average emoluments with the maximum of Rs. 8100/ -. on 18.2.71, Rule 256 -A was inserted in the Rules by a notification issued by the State Govt. which came into force from 1.4.70. By the notification, the computation of the pension was liberalised and it was ordered that the computation of pension will be on the basis of the last drawn emoluments instead -of three years average emoluments. This change in the rules was made effective from 1.4.70. Consequently, the benefit of the revised pension was denied to the pensioners who had retired before 1.4.70. The formula of computing the pension i.e. 30/80 of the average emoluments and the maximum of Rs. 8100/ - was kept intact. Section 250 -B defines the term emoluments with a non -obstante clause which was inserted with effect from 1.6.69 and was made effective from 1.9.68. Later, by inserting Rule 250 -C (3), the definition of emoluments for the purpose of computing pension was revised to include dearness pay in addition to pay as defined in Rule 7(24) of the Raj. Service Rules. This benefit however was restricted to only those who retired on or after 31.3.70. It is alleged that the computation of pension formula was liberalised and the pension was revised upward first by issuing Govt. instructions dated 10.1.73 and thereafter by inserting Rule 2 -250 -C vide notification dated 13.6.78, according to which the Govt. Servant who was officiating on another higher appointment while retaining lien on a substantive post, the officiating pay drawn before retirement was to form the basis for computation of existing retiral benefits in case of such Govt. Servants. This upward revision or change in the pension computation formula although published on 10.1.73 but was made effective from 1.4.73 and was made applicable to those who retired after 10.1.73 Rule 250 -C(3) was inserted vide notification dated 2.12.74 whereby the last pay drawn on officiating basis was made the basis for calculation of the pension in case of those Govt. servants who retired on or after 31.10.74. The formula of computation of pension on the basis of 30/80 of the service period was revised to 33/80 with effect from 31.10.74. The benefit of Section 156(c) of the Raj. service Rules which Was originally made applicable to only those Govt. employees retiring on or after 31.10.74 was extended by a notification dated 2.9.85 to all pensioners with effect from 1.4.79. In the meanwhile the judgment in the case of D.S. Nakara v. : (1983)ILLJ460SC was rendered by their lordships of the Supreme Court and this gave cause of action to claim higher pension and the benefits of upward revisions of the pension and, therefore, he made representations to the Director of Pension but he was told that he has retired prior to 1.4.70 and, therefore, these benefits cannot be extended to him. The benefits which have been extended to him on 31.3.79 under the order of the Govt. dated 2.9.85 and the benefits of the upward revised pension do not fully serve the purpose because his emolument have not been calculated according to the revisions made in the Rules. His last pay should be calculated on the basis of all these changes which have been made in the years 1970, 1973. and 1978 and thereafter his last pay drawn should be fixed and the benefits should be extended to him with effect from 31.3.79. He is entitled to the arrears from the date these upward trends have been made effective as regards the upward revision of pension by inserting Rule 256 -A, a change brought about in Rule 250 -B of the Raj. Service Rules and insertion of Rule 250 -C(3) and Sub -rule (2) in Rule 250 -C. The denial of these benefits is violative of articles 14 and 16 of the Constitution of India and, therefore, the petitioner has prayed for issuance of the writ and has claimed that he should be extended the aforesaid benefits and it be declared that in Rule 250 -A of the R.S.R. the restrictive provision to extend the benefit only to the employees who retired on or after 1.4.70 is ultra -vires and the State Government be directed to revise the petitioner's pension in terms of the formula contained in Rule 256 -A. An appropriate writ, order or direction be issued to the respondents to revise the petitioner's pension in terms of the subsequent liberalised scheme of the pension with effect from the date such regularisation was made available to the other employees. He has also claimed that in order to grant him relief, Rules 250 -C and 256 -B may be declared invalid and ultra -vires to the extent it restricts his benefit only to the employees retiring on or after 1.4.70 and 31.10.74 respectively.
(2.) A writ petition was originally filed on 25.2.89 but later an amended writ petition was filed. Reply has been filed to the original writ petition as also to the amended writ petition and it has been claimed by the State Govt. that the petitioner is not entitled to subsequent liberalised Scheme of the pension with effect from that date when such liberalised schemes were made available to the other employees retiring from a particular date. The writ petition is barred by limitation. The pension was granted on the basis of the Rules at the time when he retired. He cannot take benefit of the subsequent changes in the law. His pension has been calculated on the basis of the emoluments last drawn by him immediately before retirement in terms of Rule 250 of the Raj. Service Rules as was in force at the time of his retirement because only the Rules that are in force at the relevant time, can be taken into consideration and not the subsequent changes, on the basis of the decision of their lordships of the Supreme Court rendered in D.S.Nakara (supra), it was claimed that a revised scheme of pension came into force from the date it has been made effective. No, previous arrears can be claimed as the petitioner has retired much before the cut out date i.e. 1.4.70,31.10.74 and 1.4.79. He is not entitled to any benefit of the liberalisation of the schemes. The benefit which has been extended to all Govt. servants in view of the Govt. Circular dated 2.9.85 Annex. R/1 w.e.f. 1.4.79 has been extended to the petitioner also and, therefore, he cannot claim any other relief. We have heard Mr. R.Balia learned Counsel appearing for the petitioner and Mr. R.P.Dave, Addl. Govt. Advocate. The basic authority on the subject is the case of D.S.Nakara (supra) wherein their lordships have held that pension in neither a bounty nor a matter of grace depending upon the sweet will of the employer, not an ex gratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering social economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. Pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The most practical raison d'etre for pension is the inability to provide for oneself due to loud age. It creates a vested right and is governed by the statutory rules such as the Central Civil Services (Pension) Rules which are enacted in exercise of power conferred by Arts. 309 and 148 of the Constitution. It has been further laid down by their lordships that all the pensioners have equal right to receive the benefits of liberalised pension scheme. The pensioners form a class a whole and cannot be micro -classified by an arbitrary, unprincipled and unreasonable eligibility criterion for the purpose of grant of revised pension. The criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after that date while depriving the benefits to those retiring prior to that date was held to be violative of Article 14 such unconstitutional part can be severed from the otherwise constitutional provision by reading down the provision i.e. omitting the offending criterion will not make the scheme having financial implications retrospective in operation. The specified date is to be retained only for the purpose of recomputation of the pension of those retired earlier to it. No arrears can be claimed by such pensioners but from the date, the liberalised scheme is put into force and is made applicable to particular persons, the benefit should be made available to all other pensioners who have retired ahead of them from that cut out date. No arrears can be claimed by the pensioners from the date of the retirement but they are entitled to those benefits from that cut off date and in this respect, their lordships observed that the expression 'pensioner' is generally understood in contradistinction to the one in service. Those who render service and retire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners'. They for the purpose of pension benefits form a homogeneous class, which cannot be divided by arbitrarily fixing an eligibility criterion unrelated to the purpose of revision of pension. If such a cut -off or cut -out date is fixed then Article 14 of the Constitution is wholly violated in as much as the pension rules being statutory in character, the amended rules, since the specified date, accord differential and discriminatory treatment to equals in the matter of commutation of pension. It would have a traumatic effect on those who retired just before that date. This division which classified pensioners into two classes is artificial and arbitrary and is not based on any rational principle and whatever principle, if there be any, has not only no nexus to the objects sought to be achieved by liberalising the pension rules, but is counter productive and runs counter to the whole gamut of the pension scheme. Their lordships have gone to the extent to observe that there is not a single acceptable or persuasive reason for this division. It was further observed by their lordships that the classification does not stand the test of Article 14 of the Constitution. In para nine, their lordships observed that date of retirement cannot form a valid criterion for classification for if that be the criterion those who retire at the end of every month shall form a class by themselves. This is too microscopic a classification to be upheld for any valid purpose. 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 and undesirable effect of dividing a homogeneous class and of introducing the discrimination, the same can be easily severed and set aside. These observations have been made by their lordships in para fifty of the judgment. The words 'Who were in service on March 31, 1979 and retiring from service on or after that date were held to be the words of limitation introducing the mischief and are vulnerable as denying equality and, therefore, they have been held as violative of Article 14 of the Constitution and were struck down. The cut out date was kept intact But the benefit was extended by their lordships not only to those persons who retired on or after March 31, 1979 but also to those who had retired earlier to it because pensioners form one homogeneous group or class by themselves. Which cannot be micro -classified. Thus, the specified date was retained only for the purpose of recomputation of pension of those retired earlier to it, arrears were denied but its application to the persons who retired on or after a particular date was held to be arbitrary, unreasonable and, therefore, violative of Article 14 of the Constitution. This decision applied on all fours to the facts of the present case.
(3.) MR . R.P.Dave, appearing for the respondents has drawn our attention to a decision of their lordships of the Supreme Court rendered in Krishena Kumar v. : (1991)ILLJ191SC where in it was held that railway pensioners and the railway contributory provident fund holders have been held two classes which are distinct from each other. This authority has no application. In this authority, D.S.Nakara's case (supra) has been considered and their lordships considered this fact that the pensioners form one homogeneous group and for that extent, D.S.Nakara's case is not distinguishable.;