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TMI Blog1994 (3) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal filed on behalf of the Union of India. 3. It may be mentioned that Government of India issued on 25-5-1979 two Office Memorandums Nos. F- 19(3)-E.V./79 and F- 19(4)-E.V./79. In the Office Memorandum No. F-19(3)- E.V./79, the computation of pension was liberalised, but it was made applicable to the government servants who were in service on 31-3-1979 and retired from service on or after that date. It introduced a slab system for computation of pension. That office memorandum was the subject-matter of controversy in the aforesaid case of D.S. Nakaral. This Court held that the criteria, being in service and retiring subsequent to the specified date for being eligible for liberalised pension in the aforesaid office memorandum, was violative of Article 14 of the Constitution, being arbitrary and discriminatory in nature. It was pointed out that the government servants, who retired prior to the specified date, and those who retired thereafter, formed one class. They having been classified in two separate groups for the purpose of the pensionary benefits, the classification was not founded on any intelligible differentia. The said classification had also no rational nexus wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, be paid subject to such adjustment as may be necessary. Paragraph 4 of the said office memorandum says that persons, who retired on or after 30-9-1977 but not later than 30-4- 1979, will have an option to choose either of the two alternatives given in the said office memorandum: (a) to have their pension and DCR Gratuity calculated on their pay excluding the element of Dearness Pay as indicated in para 2 above in accordance with the rules in force on 30-9-1977, and get graded relief on pension to the full extent admissible from time to time; OR (b) to have their pension and DCR Gratuity recalculated after taking into account the element of dearness pay, In such cases, the first four instalments of graded relief sanctioned up to the average index level 272 will not be admissible; these pensioners will be entitled only to the instalments of graded relief sanctioned beyond the average index level 272. 5.The aforesaid office memorandum introduced a scheme to treat a portion of the dearness allowance as pay in respect of government servants, who retired on or after 30-9-1977, With reference to different pay ranges, amount of dearness pay has been fixed; that dearness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within the meaning of Article 12 of the Constitution, frames a scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the dates of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut-off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid. It shall not amount to picking out a date from the fiat , as was said by this Court in the case of D.R. Nim v. Union of India AIR 1967 SC 1301 : (1967) 2 SCR 325 : (1968) 1 LLJ 264 in connection with fixation of seniority. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government. 9.A supplementary affidavit has been filed on behalf of the Union of India,stating that the Third Pay Commission in its report recommended: We recommend that should the price level rise above the 12- monthly average of 272 (1960 = 100) Government should review the position and decide whether the dearness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the total pension or the increase which would have been only marginal. It has been said that under the office memorandum aforesaid, dearness allowance with reference to average price index level at 272 was treated as dearness pay for the purpose of pension for those who retired after 30-9-1977. It has also been pointed out that pensioners, who retired on or after 30-9-1977 with the benefits of dearness pay, became entitled to less dearness relief, as compared to those who retired before 30- 9-1977 or retired after 30-9-1977, but had opted not to get the benefit of the impugned office memorandum. 12. In respect of grievance regarding encashment of earned leave up to maximum encashment of six months' leave, which was made available, it was pointed out that it was a new facility allowed to serving government servants and as such a date had to be fixed for its application. The date of its operation was fixed in consultation with the representatives of the government servants. Respondents, who were not in service on the relevant date, cannot make any grievance of the scheme regarding encashment of earned leave to a maximum period of six months. 13. Regarding the famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive and rational considerations. 15. In the case of Action Committee South Eastern Railway Pensioners v. Union of India 1991 Supp (2) SCC 544: 1992 SCC (L S) 222: (1992) 19 ATC 4 the concept of 'dearness pay' was examined, including the two options which had been framed, beyond average price index level at 272, fixing a cut-off date. It was held that merger of a part of the dearness allowance as dearness pay on average price index level at 272, with reference to different pay ranges, was not arbitrary in any manner and the principle enunciated in the D.S. Nakara case' was not applicable. 16. A Constitution Bench in the case of Krishena Kumar v. Union of India (1990) 4SCC 207 1991SCC(L S)112: (1990)14ATC846 considered the grievance of retired railway employees, saying that before 1957 the only scheme for post- retirement benefits in the Railways was the Provident Fund Scheme. This scheme was replaced in the year 1957 by Pension Scheme. The employees, who entered Railway Service on or after 1-4-1957, were automatically covered by the Pension Scheme instead of Provident Fund Scheme. The employees, who were already in the service on 1-4-1957, were given an option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this decision merely to indicate that another Constitution Bench of this Court also has read Nakaral decision as one of limited application and there is no scope for enlarging the ambit of that decision to cover all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pension be different. 18. In the case of State Government Pensioners Association v. State Of A.P. (1986) 3 SCC 501 :(1986) the order in question provided that retirement gratuity may be one-third of the pay drawn at the time of the retirement for every six-monthly service, subject to maximum of 20 months' pay limited to ₹ 30,000. This order was made effective from 1-4-1978. The petitioners, who were government employees and had retired before 1-4-1978, contended that the gratuity being a part and parcel of the pensionary benefits, they were also entitled to the same retrospectively. On behalf of the State, it was pointed out that the gratuity which had accrued to the petitioners prior to 1-4-1978, was calculated on the the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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