Union Of India And Anr vs Sps Vains (Retd.) And Ors

the exercise of its jurisdiction correctly 3

directed that officers of the rank of Major

General, who had retired prior to 1st

January, 1996, when revision of pay scales

took effect, be given the benefit of the

provisions of the revised pay scale,

notwithstanding the fact that in terms of

the policy only those who retired after the

said cut-off date would be entitled to such

benefit. The larger issue involved is

whether there could be a disparity in

payment of pension to officers of the same

rank, who had retired prior to the

introduction of the revised pay scales, with

those who retired thereafter.

5. The case which has been made out in the High

Court in the writ petition filed by the

respondent herein is that prior to revision

of the pay scales from 1.1.1996 the running

pay band from Lieutenant to Brigadier,

irrespective of promotion, introduced on the

basis of the Fourth Pay Commission's 4

recommendations, was Rs.2300-100-3900-EB-

150-4500-EB-5100. The rank pay that was

fixed was Rs.200/-, 600/-, 800/-, 1000/- and

1200/- for the ranks of Captain, Major

General, Lieutenant Colonel, Colonel and

Brigadier, respectively. While a Major

General was given a starting salary of

Rs.6700/- on the basis of the

recommendations of the Fourth Pay

Commission, a Brigadier could draw

Rs.5,100/- and additional rank pay of

Rs.1200/- making a total of Rs.6300/-.

Consequently, a Major General always drew

higher pay than a Brigadier and the pension

payable to officers on the basis of the

recommendations of the Fourth Pay Commission

was calculated on the basis of salary drawn

during the last 10 months prior to

retirement. Even on such basis, a Major

General always drew more pension and family

pension than a Brigadier. It has to be kept

in mind that the rank of Brigadier is a 5

feeder post for the promotional rank of

Major General.

6. The anomaly arose with the acceptance by the

Government of the recommendations of the

Fifth Pay Commission which has created a

situation whereby Brigadiers began drawing

more pay than Major Generals and were,

therefore, receiving higher pension and

family pension than Major Generals. In view

of the recommendations of the Fifth Pay

Commission, a Brigadier was given a pay

scale of Rs.15350-450-17600 together with

rank pay of Rs.2,400/- whereas a Major

General was given a pay scale of Rs.18400-

500-22400. In other words, the maximum pay

in the pay scale of Brigadier is 17,600/-

and the minimum pay in the pay scale of

Major General is Rs.18,400/-. Inasmuch as,

no rank pay was provided for beyond the rank

of Brigadier, the minimum pay provided for a

Major General became less than that of a 6

Brigadier who may had reached the maximum

point in his scale. Consequently, on

retirement, the pension of a Brigadier

became more than that of a Major General,

since rank pay is also taken into

consideration for the purpose of calculating

pension and family pension. The pension of

a Major General thus became Rs.9,200/-,

while that of a Brigadier was Rs.9,550/-.

7. It is this anomaly, when pointed out, which

prompted the Government to step up the

pension of Major Generals who had retired

prior to 1.1.1996, from Rs.9,200/- to

Rs.9,550/- giving them the same pension as

was given to Brigadiers. Before the High

Court it was urged on behalf of the writ

petitioners, who at the time of their

retirement had held the rank of Major

General or Air Vice Marshal, that while the

writ petitioners and others similarly placed

officers who had retired prior to 1.1.1996 7

were given the same pension as that of a

Brigadier, those officers of similar rank

who had retired after 1.1.1996 were given

pension according to clause 12(c) of Special

Army Instructions 2/S/1998, as a result

whereof they were getting much higher

pension and family pension than the writ

petitioners, despite being of the same rank.

It was pointed out that by virtue of the

aforesaid Special Instruction the initial

pay of an officer promoted to the rank of

Major General would be fixed at the stage

next above the pay notionally arrived at by

increasing his pay, including rank pay of

Brigadier, by one increment in the revised

scale at the relevant stage. It is this

classification within a class which led to

the filing of the writ petition before the

High Court. Before the High Court it was

urged further that such differentiation

between officers holding the same rank on

the date of retirement was wholly erroneous 8

and violative of the provisions of Article

14 of the Constitution.

8. Rejecting the submissions made on behalf of

Government that there could be no fresh

fixation of pay once an officer had retired

and the only refixation possible would be

that of pension, the High Court allowed the

writ petition and disposed of the same with

the directions indicated hereinabove.

9. The said decision of the High Court has been

questioned in this appeal by the Union of

India and the Chief of Army Staff.

10. Before us, the Union of India has taken a

stand that the High Court misinterpreted the

policy relating to fixation of pay of

officers of the Defence Services and had

also misunderstood the scope of the policy

with regard to those officers who had

retired prior to the revision of the pay

scales and that their pay scales had already 9

been revised at the time of their

superannuation from service. In their case,

therefore, the question of revision of pay

scale could not arise and they could only

claim that their pension, including family

pension, should not be lower than that of a

Brigadier which is a feeder post for the

post of Major General having higher and more

onerous responsibilities.

11. In this regard reference was made to a

communication dated 7.6.1999 addressed to

the Chiefs of the three wings of the Defence

Services on behalf of the Ministry of

Defence, Government of India, in which a

differentiation appears to have been made

between officers who had retired prior to

1.1.1996 and those who retired thereafter

since a reference was made to two of the

Ministry's letters dated 3.2.1998 dealing

with post 1.1.1996 and the other dated

24.11.1997 dealing with pre 1.1.1996 cases. 10

12. Reference was also made to Special Army

Instruction dated 19.12.1997 indicating that

in pursuance of the recommendations of the

Fifth Central Pay Commission and the

Government decision thereupon, the existing

pay scales admissible to Army Officers would

be revised with effect from January, 1996.

The said Instruction also indicated that the

said provisions would apply to all officers

who were on the effective strength of the

Army as on 1.1.1996 and those who joined

thereafter, and also to trainee officers who

were undergoing Pay Commission training on

1.1.1996 and trainee officers who joined

after the said date. Reference was also made

from the said Instruction to paragraph 9

thereof dealing with the stepping up of pay

of Major Generals on promotion from the rank

of Brigadier prior to 1.1.1996. In the said

paragraph it has been specifically indicated

that pay of all officers promoted to the 11

rank of Major General prior to 1.1.1996

would be stepped up to become equal to the

pay fixed for Brigadiers in the revised pay

scale as on 1.1.1996, subject to certain

conditions.

13. Yet another communication to the three

Chiefs of the Defence Services dated

3.2.1998 issued by the Ministry of Defence,

Government of India relating to the

implementation of the Government's decision

on the recommendations of the Fifth Central

Pay Commission regarding pensionary benefits

for officers and personnel below officers

rank belonging to the armed forces, retiring

on or after 1.1.1996, which would, however,

have no application to those who had

superannuated prior to 1.1.1996.

14. Learned Additional Solicitor General

submitted that the Ministry of Defence,

Government of India, had taken a considered

decision in fixing 1.1.1996 as a cut-off 12

date since the pay scales were revised with

effect from the said date, and the pay

scales of officers who had retired prior to

the said date had already been fixed and

there was no question of refixation of their

pay scales and all they were entitled to

was pension which was not less than that

received by Brigadiers who had been given

the benefit of the revision of pay scales

and, were, therefore, drawing a higher

salary resulting in higher pension.

15. The learned Additional Solicitor General

urged that the High Court had erred in

directing that the pay of Major Generals

who had retired prior to 1.1.1996 be refixed

according to the revised pay scales so as to

give them the benefit of higher pension than

officers of the rank of Brigadier.

16. The case of the respondents however, was

that in view of the Constitution Bench

decision of this Court in D.S. Nakara and 13

others vs. Union of India (1983) 1 SCC 305,

the fixation of a cut-off date as a result

of which equals were treated as unequals,

was wholly arbitrary and had been rightly

interfered with by the High Court. One of

the questions posed in the aforesaid

decision was whether a class of pensioners

could be divided for the purpose of

entitlement and payment of pension into

those who retired by a certain date and

those who retired thereafter. The question

was answered by the Constitution Bench

holding that such division being both

arbitrary and unprincipled the

classification did not stand the test of

Article 14.

17. Several other decisions were also relied

upon by the respondents, which, in fact,

followed D.S. Nakara's case (supra) and

there is, therefore, no need to deal with

them separately.

14

18. It was also the respondents' case that

though there was no dispute that Major

Generals were entitled to higher pensionary

benefits than that enjoyed by Brigadiers,

the appellant erroneously insisted that the

cut-off date had to be fixed in view of the

limited financial resources available to

cover the additional expenses to be incurred

on account of revision of pay scales.

19. On behalf of the respondents reliance was

also placed on two letters addressed by the

Chairman, Chief of Staff Committee, dated

8.2.2006 and 21.2.2006, along with the

recommendation made by the Air Chief Marshal

on 17.2.2006, stating that it was necessary

to correct the injustice and discrimination

which had been aimed at denying those

officers who had retired prior to 1.1.1996,

the benefits of the pension enjoyed by

officers who retired after the said date. 15

20. Mr. Nidhesh Gupta, learned Senior Counsel

who appeared for the respondents, submitted

that the judgment of the High Court did not

call for any interference as the same had

been rendered on the touchstone of Article

14 of the Constitution and in consonance

with the principle of administrative fair

play. He submitted that officers of the rank

of Major General, who had retired prior to

1.1.1996 should not be made the target of

the bureaucratic error committed by the

Government in refixing the scale of pay of

Brigadiers after 1.1.1996 in such a manner

so that by adding the rank pay to their

basic pay, their pay at the time of

retirement was higher than that of a Major

General which was a superior rank, thereby

creating an anomaly in the pension

entitlement of officers of the two aforesaid

ranks.

16

21. Mr. P.N. Lekhi, learned senior counsel who

appeared for the added respondents, while

adopting Mr. Gupta's submissions referred to

the decision of this Court in R.Viswan and

others vs. Union of India and others, (1983)

3 SCC 401, on the question of morale and

submitted that the arbitrary decision to

discriminate between the two sets of

officers belonging to the same rank in the

matter of payment of pension was bound to

adversely effect the morale of senior

officers of the rank of Major General which

was in fact the feeder post to the rank of

Lieutenant General from amongst whom the

Chief of Army Staff is ultimately chosen.

22. From the submissions made the dispute

appears to be confined only to the question

whether officers of the rank of Major

General in the army and of equivalent rank

in the two other wings of the Defence

forces, who had retired prior to 1.1.1996, 17

have been validly excluded from the benefit

of the revision of pay scales in keeping

with the recommendations of the Fifth

Central Pay Commission by virtue of Special

Army Instruction 2(S)98.

23. On behalf of the appellant, Union of India,

it has been sought to be contended that

since the pay scale of those officers

who had retired prior to 1.1.96 had already

been fixed at the time of their retirement,

the question of refixation of their pay

scales on account of the revision could not

be accepted as they would only be entitled

to the benefits of higher pension on account

of such revision. The learned Additional

Solicitor General, Mr. Vikas Singh, had

contended that since an anomaly had been

created in the pension payable to officers

of the rank of Major Generals, who on

account of the revision of pay scales were

receiving less pension than Brigadiers who

were lower in rank, the Government had 18

stepped up the pension of Major Generals who

had retired prior to 1.1.1996, so that they

did not receive pension less than what was

given to officers of the rank of Brigadier.

24. The said decision of the Central Government

does not address the problem of a disparity

having created within the same class so

that two officers both retiring as Major

Generals, one prior to 1.1.1996 and the

other after 1.1.1996, would get two

different amounts of pension. While the

officers who retired prior to 1.1.1996 would

now get the same pension as payable to a

Brigadier on account of the stepping up of

pension in keeping with the Fundamental

Rules, the other set of Major Generals who

retired after 1.1.1996 will get a higher

amount of pension since they would be

entitled to the benefit of the revision of

pay scales after 1.1.1996.

19

25. In our view, it would be arbitrary to allow

such a situation to continue since the same

also offends the provisions of Article 14 of

the Constitution.

26. The question regarding creation of different

classes within the same cadre on the basis

of the doctrine of intelligible differentia

having nexus with the object to be achieved,

has fallen for consideration at various

intervals for the High Courts as well as

this Court, over the years. The said

question was taken up by a Constitution

Bench in the case of D.S. Nakara (supra)

where in no uncertain terms throughout the

judgment it has been repeatedly observed

that the date of retirement of an employee

cannot form a valid criterion for

classification, for if that is the

criterion those who retired by the end of

the month will form a class by themselves.

In the context of that case, which is 20

similar to that of the instant case, it was

held that Article 14 of the Constitution had

been wholly violated, inasmuch as, the

Pension Rules being statutory in character,

the amended Rules, specifying a cut-off date

resulted in differential and discriminatory

treatment of equals in the matter of

commutation of pension. It was further

observed that it would have a traumatic

effect on those who retired just before that

date. The division which classified

pensioners into two classes was held to be

artificial and arbitrary and not based on

any rational principle and whatever

principle, if there was any, had not only no

nexus to the objects sought to be achieved

by amending the Pension Rules, but was

counter productive and ran counter to the

very object of the pension scheme. It was

ultimately held that the classification did

not satisfy the test of Article 14 of the

Constitution.

21

27. The Constitution Bench has discussed in

detail the objects of granting pension and

we need not, therefore, dilate any further

on the said subject, but the decision in

the aforesaid case has been consistently

referred to in various subsequent judgments

of this Court, to which we need not refer.

28. In fact, all the relevant judgments

delivered on the subject prior to the

decision of the Constitution Bench have been

considered and dealt with in detail in the

aforesaid case.

29. The directions ultimately given by the

Constitution Bench in the said case in order

to resolve the dispute which had arisen, is

of relevance to resolve the dispute in this

case also.

30. However, before we give such directions we

must also observe that the submissions 22

advanced on behalf of the Union of India

cannot be accepted in view of the decision

in D.S. Nakara's case (supra). The object

sought to be achieved was not to create a

class within a class, but to ensure that the

benefits of pension were made available to

all persons of the same class equally. To

hold otherwise would cause violence to the

provisions of Article 14 of the

Constitution. It could not also have been

the intention of the authorities to equate

the pension payable to officers of two

different ranks by resorting to the step up

principle envisaged in the Fundamental Rules

in a manner where the other officers

belonging to the same cadre would be

receiving a higher pension.

31. We, accordingly, dismiss the appeal and

modify the order of the High Court by

directing that the pay of all pensioners in

the rank of Major General and its equivalent 23

rank in the two other Wings of the Defence

Services be notionally fixed at the rate

given to similar officers of the same rank

after the revision of pay scales with effect

from 1.1.1996, and, thereafter, to compute

their pensionary benefits on such basis with

prospective effect from the date of filing

of the writ petition and to pay them the

difference within three months from date

with interest at 10% per annum. The

respondents will not be entitled to payment

on account of increased pension from prior

to the date of filing of the writ petition.

32. The appeal is accordingly dismissed.

33. There will be no order as to costs.

................................................J. (ALTAMAS KABIR)

................................................J. 24

(MARKANDEY KATJU) New Delhi Dated: 9.9.2008