All Manipur Pensioners' Association And Anr. v. State Of Manipur And Ors.

1. Heard Mr. A. Nilmani Singh, learned senior counsel assisted by Mr. A. Bimol Singh, learned counsel appearing for the writ petitioners as well as Mr. R.S. Reisang, learned G.A. appearing for the respondents 1 and 2 and Mr. C. Kamal Singh, learned CGSC for respondent No. 3.

2. The brief facts of the petitioner-association's case are that the Association called "the All Manipur Pensioners' Association" is a society registered under the Societies Registration Act having the Regd. No. 1315/73. The petitioner association is a non-political, non-profit making and voluntary organisation, espousing the cause of old infirm pensioners. The petitioner-association filed the present writ petition for the benefit of those members who retired before 1.1.1996 (for short pre-1996 pensioners). The Central Civil Services (Pension) Rules, 1972 had been adopted and enforced by the State of Manipur with effect from 1.1.1977 vide notification No. 1/3/71/H-F dated 3.3.1977 under the title of "Manipur Civil Services (Pension) Rules, 1977". Again, the Governor of Manipur in exercise of his powers conferred by proviso to Article 309 of the Constitution of India makes the Rules called "The Manipur Civil Services (Pension) (Amendment) Rules, 1991" vide notification No. 5/8/87/PIC (iii) Imphal the 24th January, 1991. Under the said notification dated 24.1.1991, wherever the word/words "Union", "President", "Government", "Ministry", "Head of Department" and "Union Public Service Commission" has/have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the "State of Manipur", "Governor of Manipur", "Department of the Government of Manipur", and "Head of Department declared as such by the Governor of Manipur" and "Manipur Public Service Commission" respectively except the words "Central Government" referred to in Sub-rule 13 of Rule 54 which shall continue to mean the Central Government.

3. It is pertinent to mention that the Governor of Manipur in the exercise of his powers conferred by proviso to Article 309 of the Constitution of India was pleased to make the Rules called "The Manipur Civil Services (Pension) (Amendment) Rules, 1980" under the notification No. 1/3/ 71/H -1 Imphal the 15th July, 1980. Para 2 of the said notification for the Amendment to Rule 3 reads as follows:

2. Amendment to Rule 3:

The following shall be substituted for rule 3 of the Manipur Civil Services (Pension) Rules, 1977.

The Central Civil Services (Pension) Rules, 1972 as amended from time to time (including the decisions taken by the Government of India) are hereby adopted with the condition that wherever the word/words. "Union", "President", "Government", "Ministry" and "Head of Deptt." has/have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the "State of Manipur," Governor of Manipur", "Govt. of Manipur", "Department of the Government of Manipur" and "Head of Department declared as such by the Governor of Manipur", respectively.

4. From the bare perusal of the para 2 quoted above, it is crystal clear that while adopting the Central Civil Services (Pension) Rules, 1977, decisions taken by the Govt. of India from time to time had also been adopted by the Government of Manipur. Again, the Governor of Manipur in exercise of powers conferred by the proviso to Article 309 of the Constitution of India makes the Rules called "The Manipur Civil Services (Pension) (Amendment) Rules, 1986 vide notification No. 1/3/ 71/H-F, Imphal, the 22nd July, 1986. Para 2 of the said notification reads as follows:

2. Amendment to Rule 3:

The following shall be substituted for Rule 3 of the Manipur Civil Services (Pension) Rules, 1977.

The Central Civil Services (Pension) Rules, 1977 as amended upto date (including Government of India's decisions in regard to matters relating to pension and retirement benefits) are hereby adopted with the condition that wherever the word/words "Union", "President", "Government", "Ministry", "Head of Department" and "Union Public Service Commission" has/have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the "State of Manipur", "Governor of Manipur", "Government of Manipur", "Department of the Government of Manipur", "Head of Department declared as such by the Governor of Manipur" and "Manipur Public Services Commission" respectively except the words "Central Government" referred to in sub-rule (13B) of rule 54 which will continue to mean the Central Government.

5. It will be very clear from all the amendments to the Manipur Civil Services (Pension) Rules, 1977 made by the Governor of Manipur in exercise of powers conferred by the proviso to Article 309 of the Constitution of India that the Central Civil Services (Pension) Rules, 1972 as amended upto date including the Govt. of India's decisions in regard to the matters relating to pensionary/retirement benefits are also adopted. The Governor of Manipur again, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India makes the Rules called "The Manipur Civil Services (Pension) (Amendment) Rules, 1991 vide notification No. 5/8/87-PIC(III) dated 24th January, 1991 (Annexure-A7 to the writ petition). Para-3 of the Amendment to Rule 3 of the said notification reads as follows:

3. Amendment to Rule 3:

The following shall be substituted for Rule 3 of the Manipur Civil Services (Pension) Rules, 1977.

The Central Civil Services (Pension) Rules, 1972 as amended upto date (including Government of India's decisions in regard to matters relating to pension and retirement benefits) are hereby adopted with the condition that wherever the word/words "Union", "President" "Government", "Ministry", "Head of Department" and "Union Public Service Commission" have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the "State of Manipur", "Government of Manipur", "Governor of Manipur", and "Manipur Public Service Commission" respectively except the words "Central Government" referred to in Sub-rule (13) of Rule 54 which will continue to mean the Central Government.

6. The Governor of Manipur continue to amend the Manipur Civil Services (Pension) Rules, 1977 making another Rules called "The Manipur Civil Services (Pension) (Amendment) Rules, 1993 vide notification No. 5/8/87-PIC (IV) Imphal, the 23rd August, 1993. Para 2 Amendment to Rule 3 of the said notification dated 23.8.1993 reads as follows:

2. Amendment to Rule 3:

The following shall be substituted for Rule 3 of the Manipur Civil Services (Pension) Rules, 1977.

'The Central Civil Services (Pension) Rules, 1972 as amended upto date (including Govt. of India's decisions in regard to matters relating to pension and retirement benefits) are hereby adopted with the conditions that wherever the word/words "Union", "President", "Government", "Ministry", "Head of Department", and "Union Public Service Commission" has/have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the "State of Manipur", "Governor of Manipur", "Government of Manipur", "Department of the Govt. of Manipur," "Head of Deptt. declared as such by the Governor of Manipur" and "Manipur Public Service Commission" respectively except the words "Central Govt." referred to in Sub-rule (13) of Rule 54 which will continue to mean the Central Government.

7. It is now well settled that in a social welfare state, pension is a socio-economic justice measure providing relief when advancing age gradually but irrevocably impairs capacity to stand on one's own feet. If the pension is paid for past satisfactory service rendered, and to avoid destitution in old age as well as social welfare or socio-economic justice measure, differential treatment for those retiring prior to certain date and those retiring subsequently, the choice of date being wholly arbitrary, would be according to differential treatment to pensioners who form a class irrespective of the date of retirement and, therefore, would be violative of Article 14. The Constitution Bench of the Apex Court as early as 1971 in Deokinandan Prasad v. State of Bihar and Ors., held that pension is not a bounty payable on the sweet will and pleasure of the government and that on the other hand, right to pension is a valuable right vesting in a government servant. The Apex Court in para 33 of AIR in Deokinandan Prasad (supra) held that "this court in the State of Madhya Pradesh v. Ranjirao Shinde, 1968 SCR 489 = AIR 1968 SC 1052 had to consider the question whether (a) "Cash grant" is "property" within the meaning of that expression in Article 19(1)(f) and Article 31(1) of the Constitution of India. This court held that it was property, observing "it is obvious that a right to a sum of money is property". The Apex Court in Smt. Poonamal etc. v. Union of India and Ors. by following the ratio laid down in D.S. Nakara (supra) held that denial of equality to the pensioner on the basis of a particular date is violative of Article 14. Para 7 of Smt. Poonamal (supra) is quoted hereunder:

7. It is not necessary to examine the concept of pension. As already held by this Court in numerous judgment that pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. Deokinandan Prasad v. State of Bihar, State of Punjab v. Iqbal Singh and D.S. Nakara v. Union of India . Where the Govt. servant rendered service to compensate which a family pension scheme is devised the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakara's judgment. At the hearing of this group of matters we pointed out that since the family pension scheme has become non-contributory effective from 22nd September, 1977 any attempt at denying its benefit to widows and dependents of Govt. servants who had not taken advantage of the 1964 liberalisation scheme by making or agreeing to make necessary contribution would be denial of equality to person similarly situated and hence violative of Article 14. If widows and dependents of deceased Govt. servants since after 22nd September, 1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the Govt. servants having not agreed to make the contribution could not be differently treated because that would be introducing an invidious classifications among those who would be entitled to similar treatment. When this glaring dissimilar treatment emerged in the course of hearing in the Court, Mr. B Dutta learned counsel appearing for the Union of India requested for a short adjournment to take further instructions.

8. In the case in hand after the decision of the Apex Court in Smt. Poonamal etc. etc. (supra). Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare issued a notification F. No. 45/10/98-P&PW(A), New Delhi dated 17.12.1986 (Annexure-Al to the writ petition) for providing same method for calculating the amount of pension and other benefits for all the pensioners irrespective of their date of retirement of all the pensioners. The relevant extract of the said notification of the Govt. of India reads as follows:

A.O.M. No. 45/86/97.P&PW(A)Pt.I dated 27th October, 1997

2. The first Sentence of paragraph 5 of the Office Memorandum relating to 'pension' may be substituted by the following:

Pension shall continue to be calculated at 50% of the average emoluments in all cases and shall be subject to a minimum of Rs. 1,275 per month and a maximum of upto 50% of the highest pay applicable in the Central Govt., which is Rs. 30,000/- per month since 1st January, 1996, but the full pension in no case shall be less than 50% of the minimum of the revised scale of pay introduced with effect from 1st January, 1996 for the post last held by the employee at the time of his retirement. However, such pension will be suitably reduced pro-rata, where the pensioner has less than the maximum required service for fall pension as per the rule. (Rule 49 of CCS(Pension) Rules 1972) applicable to the pensioner as on the date of his/her superannuation/retirement and in no case it will be less than Rs. 1,275/- p.m.

9. The Government of Manipur issued another notification in respect of the employees who died or retired before 1.1.1996 (i.e., the pre-1996 pensioners for whom the present writ petition is filed) being No. 9/86/ 99-PIC(B) Imphal, the 21st April, 1999 (Annexure-A3 to the writ petition). The manners of calculation of the pension are mentioned in para 4.1 of the said memorandum dated 21.4.1999 (Annexure-A3 to the writ petition) which reads as follows:

4.1 The pension/family pension of existing pre-1996 pensioners/family pensioners will be consolidated with effect from 1.1.96 by adding together: -

(i) The existing pension/family pension:

(ii) Dearness Relief up to CPI1510, i.e. @ 148%, 111% and 96% of basic pension as admissible vide this department's O.M. No. 30/1/91-PIC dated 6.6.1996.

(iii) Interim Relief-I

(iv) Interim Relief-II

(v) Fitment weightage @40% of the existing pension/family pension.

The amount so arrived at will be regarded as consolidated pension/family pension with effect from 1.1.1996. The upper ceiling on pension/family pension has been increased from Rs. 4,500/- and Rs. 1,250/- to 50% and 30% respectively of the highest pay in the Government. Since the consolidated pension will be inclusive of commuted portion of pension, if any, the commuted portion will be deducted from the said amount while making monthly disbursements.

10. The only case of the petitioner association in the present writ petition is that by ignoring the well settled principle of law laid down by the Apex Court, the Govt. of Manipur has issued two Office Memoranda for the purpose of granting the revised pension to those Manipur Govt. employees who retired on or after 1.1.1996 at a higher percentage and to those employees who retired before 1.1.1996 at a lower percentage. In this regard, the learned counsel for the petitioners submits that the Govt. of Manipur, Finance Department (PIC), issued an Office Memorandum being No. 9/86/99-PIC(A) dated 21.4.1999 (Annexure-A3 to the writ petition) for regulating pension and computation pension for the government servants who retired/died in harness on or after 1.1.1996 wherein the modes of calculation of the pension for the employees who retired/died in harness on or after 1.1.1996 are mentioned in para-4 which reads as follows:

4. Pension shall continue to be calculated at 50% of average emoluments in all cases and shall be subject to a minimum of Rs. 1,275/- p.m. and maximum upto 50% of the highest pay in the Govt. which is Rs. 30,0001- p.m. since 1.1.1996. Accordingly, the provisions of clause (a) and clause (b) of Sub-rule (2) of Rule 49 of the Pension Rules shall stand modified. The other provisions contained in rule 49 shall continue to apply.

(emphasis supplied)

11. In order to show with comparison and contrast of the provisions made in the two above Office Memoranda having the same date, i.e., dated 21.4.1999 (Annexures-A2 and A3 to the writ petition), the petitioners' association had shown an example in para 10 of the writ petition which reads as follows:

10. That on a comparison and contrast of the provisions made in the above mentioned two Office Memoranda issued by the Manipur Govt., the following anomaly (by way of an illustration) has cropped up due to the differential and discriminatory treatment to equals in the matter of commutation of pension, thereby occasioning a traumatic effect even on those who retired just before the specified date:

(1) In the case of Jt. Secretary in Manipur Secretariat:

The pay-scale of the post has been revised from Rs. 3,700 - 5,000 p.m. to Rs. 14,000 - 18,000 p.m. with effect from the specified date. One who retired before 1.1.1996 is to get Rs. 4,715 p.m. as shown below, when computed at the stage of his old pay scale when computed at the rate prescribed in the above mentioned O.M. for pre-1996 pensioners: -

12. The state respondents, i.e. the respondent No. 1, the State of Manipur, the respondent No. 2, the Commissioner/Secretary(Finance), Govt. of Manipur filed the affidavit in opposition sworn by one Shri V.H. Varte, Under Secretary (Finance/PIC), Govt. of Manipur. In the affidavit-in-opposition, the respondent No. 1 and the respondent No. 2 have specifically pleaded that the Office Memoranda dated 17.12.86 issued by the Govt. of India, i.e. the decision of the Govt. of India (Annexure-Al to the writ petition) have not been adopted by the Govt. of Manipur. But the Manipur Civil Services (Pension) (Amendments) Rules, 1980, Amendment Rules, 1986, Amendment Rules, 1991 Amendment Rules 1993 and the notification dated 3.3.1977 for legislation of the Manipur Civil Services (Pension) Rules. 1977 by adoption, show very clearly that the Civil Services (Pension) Rules, 1972 as amended from time to time "including the decisions taken by the Govt. of India" had been adopted by the Govt. of Manipur. Therefore, the said plea of the state respondents in their counter affidavit that the said decision of the Govt. of India is not adopted is not factually correct. We may here recall that the Apex' Court as well as this court took a very serious view against the petitioner or respondent(s) seeking favourable orders basing on incorrect facts from the court. We may profitably refer to the decisions of the Apex Court in Rita Markandey v. Surjit Singh Arora and also in Chandra Shashi v. Anil Kumar Verma, . In the Chandra Shashi (supra), the Apex Court held that "the false and fabricated documents filed in the court with an oblique motive of deceiving and defrauding the court shall interfere with the decision of justice and amount to contempt of court." The ratio laid down by the Apex Court in the said two cases are that the filing of false affidavit shall amount to contempt of court. Accordingly, this court took a serious view against Shri V.H. Verte, Under Secretary (Finance/PIC) Govt. Manipur who sworn the said affidavit on behalf of the respondents 1 and 2 stating incorrect facts mentioned above.

13. The respondent No. 3, the Accountant General, Manipur, also filed the affidavit-in-opposition. In his affidavit-in-opposition, the only plea taken by him is that the example of calculation mentioned in para-10 of the writ petition which has been quoted above are incorrect but he did not show the correct ways of calculation. Such being the situation the mere denial is not a denial at all according to the accepted principle of law and procedures for drafting the plaint or written statement.

14. The questions such as: What is a Pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pro and post on a certain date has been discussed by the Constitution Bench of the Apex Court in D.S. Nakara and Ors. v. Union of India, . The Constitution Bench of the Apex Court had discussed the right to pension of the Govt. employee in Deokinandan Prasad v. State of Bihar and Ors .(supra). Para-30 of AIR in Deokinandan Prasad (supra) is quoted hereunder:

30. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pensions under the circumstances mentioned therein.

15. If the pension is paid for past satisfactory service rendered, and to avoid destitution in old age as well as social welfare or socio-economic justice measure, differential treatment for those retiring prior to certain date and those retiring subsequently, the choice of date being wholly arbitrary, would De according to differential treatment to pensioners who from a class irrespective of the date of retirement and, therefore, would be violative of Article 14. The Apex Court in D.S. Nakara and Others (supra), further, held that the reasons underlying the grant of pension vary from country to country and from scheme to scheme. But broadly stated they are: (i) as compensation to former members of the arm forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability 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 programmes of the country. 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 development. Further, the Apex Court (Constitution Bench) in D.S. Nakara and Others (supra) held that classification in revised pension formula between pensioners on the basis of date of retirement as specified in the memorandum is arbitrary and violative of Article 14. Para 49 of AIR in D.S. Nakara and Others (supra) is quoted hereunder:

49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectively. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended rules 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words "who were in service on 31st March, 1979 and retiring from service on or after that date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be served 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 served.

The Apex Court in Smt. Poonamal etc. etc. v. Union of India and Ors., (supra) held that the Family Pension Scheme, 1964 has become non-contributory effective from 22.9.1977. If widows and dependents of deceased government servants since after 22.9.1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the government servants having not agreed to make the contribution, could not be differently treated, because that would be introducing an invidious classification among those who would be entitled to similar treatment (emphasis supplied). The Apex Court in V.M. Gadre (Dead) by L.R. and Ors. v. M.G. Diwan and Ors., held that while exercising jurisdiction under Article 32 read with Article 142, it would not be permissible for the court to substitute all the existing service conditions by a totally new set of service conditions. That would tantamount to re-writing the service conditions and consequently the retiral benefits as well for all those who had retired long back and are in receipt of pension under the extant rules. As such, the ratio laid down by the Apex Court in V.M. Gadre (supra) is that the court cannot substitute existing pension plan with a totally new plan. Again, the Apex Court in State Bank of India v. L. Kannaih and Ors., held that fixation of cut-off date for applicability of pension scheme is violative of Article 14 inasmuch as prescribing cut-off date of such induction as on 1.1.1965 shall exclude the employees who have already been completed minimum qualifying services for pension. Para 6 of SCC in State Bank of India case (supar) is quoted hereunder:

6. Para 5 of the circular stipulated that the age-limit (viz., not being over 35 years) for admission to Pension Fund shall continue. Thus, the pensioned ex-service personnel were admitted to pensionary benefits with effect from 1.1.1965 subject to the restriction of the age-limit of 35 years (which was later on enhanced to 38 years) on that date. As the date of confirmation of the respondents was much earlier to 1.1.1965, the crucial date for admission to the Pension Fund would be 1.1.1965. On that date, the confirmed employee of the Bank should not have exceeded 35 years of age. That is the combined effect of Staff Circular No. 18 dated 8.4.1974 read with the Pension Fund appears to be that the employee would be able to render minimum service of 20 years as contemplated by Rule 22 of the Pension Fund Rules. However, there does not appear to be any rationale or discernible basis for fixing the cut-off date as 1.1.1965, notwithstanding their earlier confirmation in bank service. True, a new benefit has been conferred on the ex-servicemen and, therefore, a cut-off date could be fixed for extending this new benefit, without offending ratio of the decision in D.S. Nakara v. Union of India but, there could be no arbitrariness or irrationality in fixing such date. Minimum qualifying service being the essential consideration, even according to the Bank, there is no reason why the ex-servicemen like the respondents, who from the date of their confirmation had put in more than twenty years of service, even taking the retirement age as 58, should be excluded. No reason is forthcoming in the counter-affidavit filed by the Bank for choosing the said date. When it is decided to extend the pensionary benefits to ex-servicemen drawing pension, the denial of the benefit to some of the serving employees should be based on rational and intelligible criterion. In substance, that is the view taken by the High Court and we see no reason to differ with that view.

16. It is also pertinent to mention that Apex Court in D.S. Nakara (supra) in para 50 held that even if the pensioners do not challenge the impugned liberalised pension scheme, they can seek the relief for benefit of equal treatment in writ petition if their grievance is of denial to them by the arbitrary introductions of the word of limitation in the impugned liberalized pension scheme and granting revised pension from a date merely to avoid equal amount of pension to all the pensioners.

17. The Apex Court in Subrata Sen and Ors. v. Union of India held that imposition off cut of date for applicability of revised pension scheme by denying revised pension scheme to the pensioners who retired prior to the cut off date is not valid. Paras 6, 14 and 20 of Subrata Sen (supra) are quoted hereunder:

6. On the question as to when retired employees are entitled to the benefit of revised pension scheme, this Court after considering earlier decisions in V. Kasturi v. Managing Director, State Bank of India specified two categories as under: (SCC pp. 51-52, Paras 22 and 23) Category I

22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara case would Cover this category of cases.

Category II

23. However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of the relevant pension rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force, the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme.

14. In our view the aforesaid para does not in any way support the contention of the respondents. On the contrary, on parity of reasoning, we would also reiterate that let us be clear about this misconception. Firstly, the Pension Scheme including the liberalised scheme available to the employees is non-contributory in character. Payment of pension does not depend upon Pension Fund. It is the liability undertaken by the Company under the Rules and whenever becomes due and payable, is to be paid. As observed in Nakara case pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer, nor an ex-gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch. May be that in the present case, the trust for Pension Fund is created for income-tax purposes or for smooth payment of pension, but that would not affect the liability of the employer to pay monthly pension calculated as per the Rules on retirement from service and this retirement benefit is not based on availability of Pension Fund. There is no question of pensioners dividing the Pension Fund or affecting the pro rata share on addition of new members to the Scheme. As per Rule 1 quoted above, an employee would become a member of the Fund as soon as he enters into a specified category of service of the Company. Under Rule 8, trustees may withhold or discontinue a pension or annuity or any part thereof payable to a member or his dependents, and that pension amount is non-assignable. Further, the payment of pension was the liability of the employer as per the Rules and that liability is required to be discharged by the Union of India in lieu of its taking over of the Company. The rights of the employees (including retired) are protected under Section II of the Burmah Oil Company (Acquisition of Shares of Oil India Ltd. and of the Undertakings in India of Assam Oil Co. Ltd. and the Burmah Oil Co. (India Trading) Ltd.) Act, 1981.

20. In view of the aforesaid legal position, this petition is required to be partly allowed and the respondents are directed to give pensionary benefits to the petitioners on the basis of notification dated 10.3.1995 by deleting the words "retiring from December 1994 onwards from the said notification. The writ petition stands disposed of accordingly. There shall be no order as to costs.

18. For the reasons mentioned above, this court is of the firm view that the method of calculating the revised pension in para 4.1 of the Office Memorandum dated 21.4.1999 in respect of pre-1996 pensioners different from the method of calculating the revised pension for the government employees who retired/die in harness on or after 1.1.1996 mentioned in para 4 of the Office Memorandum dated 21.4.1999 only on the basis of cut of date, i.e. 1.1.1996 is held arbitrary and violative of Article 14 of the Constitution of India. Accordingly, this writ petition is allowed directing the respondents to treat the pre-1996 pensioners equally with their equals, i.e. pensioners/government servants who retired/die in harness on or after 1.1.1996 in granting the pension under the revised pension scheme. It is also, further, directed that the respondents should complete the necessary steps for treating the pre-1996 pensioners equally with their equals, i.e. the post-1996 pensioners (the Govt. servants who retired/died in harness on or after 1.1.1996) as early as possible preferably within a period of 5(five) months from the date of receipt of this judgment and order. No order as to costs.