IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 33852 of 2001(E)
1. P.M.ITTYAIRAH
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
For Petitioner :SRI.P.K.RAVISANKAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :15/01/2009
O R D E R
S. Siri Jagan, J.
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O.P. Nos. 33852/2001, 13916, 15732 &
30901/2002 and 2300/2003.
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Dated this, the 15th January, 2009.
J U D G M E N T
The petitioners in all these original petitions are military
personnel discharged from service, who are receiving military pension
on the disability element also taking into account disability suffered
by them attributable to military service. They are aggrieved by the
action of the respondents in the matter of fixing a cut off date for the
purpose of application of a liberalised pension scheme in the matter of
assessment of disability, based on the date of discharge of the military
personnel.
2. Prior to the recommendation of the Vth Central Pay
Commission, military personnel drawing disability pension were
subjected to periodic examination by Re-survey Medical Boards every
five years and pension was liable to be reviewed on the basis of the
percentage of disability assessed by the Re-survey Medical Boards.
The Vth Central Pay Commission recommended that the disability
once assessed may be treated as final, unless the individual himself
requests for a review. The Government of India accepted this
recommendation and by Ext. P5 dated 7-2-2001 (in O.P.No.
33852/2001) on behalf of the President of India, the Director
(Pensions) of the Ministry of Defence of Government of India, sanction
was accorded for modification of the Rules and Regulations as stated
therein. In the same, in respect of re-assessment of disability, it was
stated thus in paragraph 7 thereof.
“7. Re-assessment of Disability: There will be no
periodical reviews by the Resurvey Medical Boards for re-
assessment of disabilities. In cases of disabilities adjudicated as
being of a permanent nature, the decision once arrived at will be
final and for life unless the individual himself requests for a
review. In cases of disabilities which are not of a permanent
nature, there will be only one review of the percentage by aO.P.. No. 33852/01 etc. -: 2 :-
Reassessment Medical Board, to be carried out later, within a
specified time frame. The percentage of disability assessed
recommended by the Reassessment Medical Board will be final
and for life unless the individual himself ask for a review. The
review will be carried out by Review Medical Board constituted
by DGFMS. The percentage of disability assessed by the
Review Medical Board will be final.”However, in paragraph 10 thereof, a cut off date was fixed as
1.1.1996 for application of the liberalised scheme of re-assessment
of disability thus:
“10. The provision contained in this letter will be
applicable to service personnel who were in service on or after
1 Jan 96. The cases which have been finalised prior to issue of
this letter will not be re-opened? As regards Pre 1 Jan 96
disability pensioners, the assessment made by the
Reassessment Medical Board held on or after the date of issue
of this letter will be considered as final and for life unless the
individual himself asks for a review. This review will be carried
out by Review Medical Board constituted by DGAFMS. The
percentage of disability assessed by the Review Medical Board
will be final.”This cut off date is sought to be challenged by the petitioners on the
ground of arbitrariness, discrimination and violation of the
fundamental rights of the petitioners guaranteed under Articles 14
and 16 of the Constitution of India. According to the petitioners
such classification of pensioners on the basis of date of discharge is
liable to be set aside on the ground that the said classification is not
based on any intelligible differentia and does not have a rational
nexus with the object sought to be achieved by the liberalised
scheme. In support of their contentions, the petitioners rely on the
decision of the Constitution Bench of the Supreme Court in D.S.
Nakara v. Union of India, (1983) 1 SCC 305.
3. Although counter affidavit/statement has been filed in some
O.P.. No. 33852/01 etc. -: 3 :-
of the cases, no serious attempt has been made by respondents to
justify the classification on the basis of an intelligible differentia or
object sought to be achieved. However, the Central Government
counsel appearing for the respondents sought to justify the cut off
date relying on the decision of the Supreme Court in State of
Punjab and others v. Amarnath Goyal and others, (2005) 6 SCC
754.
4. I have considered the rival contentions in detail.
5. I find that the facts of these cases are similar to those in
Nakara’s case (supra). In that case, the Government of India
introduced a liberalised pension formula for retired Government
servants and defence personnel, but stipulated that the same shall
be applicable only to Government servants, who were in service on
March 31, 1979 and retire from service on or after that date and
defence personnel who became/become non-effective on or after
April 1, 1970. In paragraph 9 of that decision, the Supreme Court
posed the question for decision thus:
“9. Is 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 Commission were accepted by the Government
of India that the retirement dates have been specified to be 12 in
number being last day of each 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 themselves. This is too microscopic a
classification to be upheld for any valid purpose. Is it permissibleO.P.. No. 33852/01 etc. -: 4 :-
or is it violative of Article 14?”
6. After referring to previous decisions of the Supreme Court
on the scope of Article 14, the Court stated thus in paragraph 15.
“15. Thus the fundamental principle is that Article 14
forbids class legislation but permits reasonable classification for
the purpose of legislation which classification must satisfy the
twin tests of classification being founded on an intelligible
differentia which distinguishes 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.”7. Thereafter the court considered the question as to 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 and held thus in paragraph 16:
“16 …… 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 which classification is founded but correlate it to
the objects sought to be achieved. This approach is noticed in
Ramana Dayaram Shetty v. International Airport Authority of
India when at SCR page 1034(SCC p. 506), the Court observed
that a discriminatory 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.”8. After examining the concept of pension and its goals, the
Supreme Court arrived at the following conclusions at paragraphs
27,28 and 29:
27. 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 the
recipient. The reasons underlying the grant of pension vary
from country to country and from scheme to scheme. ButO.P.. No. 33852/01 etc. -: 5 :-
broadly stated they are (i) as compensation to former members
of the Armed Forces or their dependent 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. 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 head are relatively of
recent origin, though they are of the greatest magnitude. There
are other views about pensions such as charity, paternalism,
deferred pay, rewards for service rendered, or as a means of
promoting general welfare (see Encyclopaedia Britannica, Vol.
17, p. 575). But these views have become otiose.28. Pensions 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.29. Summing up it can be said with confidence that
pension is not only compensation for loyal service rendered in
the past, but pension also has 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 corresponding to aging process and, therefore, one is
required to fall back on savings. One such saving in kind is
when you give 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 consideration of past
service or a surrender of rights or emoluments to one retired
from service. Thus 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 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 live and
avoid unemployment but not senility and penury if there is
nothing to fall back upon.”(Underlining supplied)
O.P.. No. 33852/01 etc. -: 6 :-
9. Ultimately on the validity of the classification on the basis
of the date of retirement the Supreme Court held thus in paragraph
42:
“42. 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 revision, and would such classification be
founded on some rational principle? The classification has to
be based, as is well settled, on some rational principle and the
rational principle 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 those 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 otherwise equally placed, it would be
discriminatory……..”
10. Before applying the ratio of the above decision to the
facts of these cases, it is worthwhile to note that while considering
the issue, as is clear from paragraph 27 of that decision, the
Supreme Court considered the scope of pension as compensation to
former members of the Armed Forces or their dependents for old
age, disability or death (usually from service causes) also, meaning
thereby that the said decision applies to disability pension to
military personnel discharged from service on account of disability
attributable to military service, as in these cases.
11. I shall now examine whether the classification attempted
by Ext.P5 satisfies, the twin tests of intelligible differentia and
O.P.. No. 33852/01 etc. -: 7 :-
rational nexus to the object sought to be achieved. Paragraph
164.10 of the Report Vth Commission has been quoted in the original
petition thus:
“4. In the meanwhile, the 5th Central Pay Commission
submitted its report before the Central Government
recommending, inter alia certain changes in the manner and the
quantum of disability pension payable to Ex-Servicemen. In
paragraph 164.10 of its report the Commission made the
following recommendations.
“164.10 The armed forces have also represented that the
existing system of reassessment of disability after specific periods
of time leads to considerable delays, thereby causing unnecessary
hardship to the disabled pensioner. They have suggested that
disability as stated in the Release Medical Board should be
treated as final unless the individual request for a review. We
have considered this aspect and agree that the existing system is
prone to delays and since the personnel has been boarded out on
the basis of the disability constant compensation is justified. We
have already suggested rationalisation of the existing system of
percentage of disability and in our opinion the scope for change
in the degree of disability would be minimised. We have also
suggested that for disability capable for improvement, provision
to retain personnel should be made. Considering all these, we
agree with the proposal that the disability once assessed may be
treated as final unless the individual himself requests for a
review.”
Therefore the object of dispensing with the re-assessment of the
disability is to avoid the delay and hardship to the disabled
pensioners. What then is the intelligible differentia in classifying the
disability pensioners on the basis of date of discharge, with
reference to the object sought to be achieved? The respondents
now seek to justify the fixation of the cut off date on the ground of
financial constraint, relying on the decision in Amar Nath Goyals
case (supra). But there is absolutely no pleading to that effect in
their counter affidavit/statement. No materials are placed before
me as to the financial implications on extending the benefit to
O.P.. No. 33852/01 etc. -: 8 :-
military personnel discharged from service prior to 1.1.1996 also.
The number of discharged military personnel prior to 1.1.1996
eligible for this benefit may not be that much. In any event only five
original petitions have been filed in this Court. As such I am
satisfied that the respondents have not succeeded in justifying the
classification on the basis of financial constraints. As such the
respondents have not discharged their burden to justify the
classification on any intelligible differentia with reference to the
object sought to be achieved. In this connection, I also find that the
ratio of the decision in D.S. Nakara’s case was again applied by the
Supreme Court in the recent decision of Union of India and
another v. SPS Vains (Retd.) and others, (2008) 9 SCC 125,
which is also a case relating to military pension, as per the Vth Pay
Commission although on a different issue. In that case, a dispute
arose on 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 have been validly
excluded for the benefit of revision of pay scales in keeping with the
recommendation of the fifth Central Pay Commission by virtue of a
Special Army Instruction. Dealing with that issue, the Supreme
Court held thus in paragraphs 26 to 30:
“26. 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.
27. In our view, it would be arbitrary to allow such a
O.P.. No. 33852/01 etc. -: 9 :-
situation to continue since the same also offends the provisions of
Article 14 of the Constitution.
28. 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 D.S. Nakara [(1983) 1 SCC 305] 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 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 the objects sought to be achieved by amending
the Pension Rules, but was counterproductive 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.
29. The Constitution Bench (in D.S. Nakara) 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.
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. 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 advanced on behalf of the Union of
India cannot be accepted in view of the decision in D.S. Nakara
case. 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 would not also have been the intention of the
authorities to equate the pension payable to officers of twoO.P.. No. 33852/01 etc. -: 10 :-
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.”
12. The reason for invaliding military personnel out of service
is that he is unable to discharge his duties as a military personnel
because of the disability suffered by him, attributable to military
service. The condition is that the percentage of disability shall not
be less than 20%. Therefore, he is discharged on finding that he has
suffered a disability which disables him to discharge his duties as a
military personnel because the percentage of disability is 20% or
more. If on examination of re-survey medical board it is found that
his disability has been reduced below 20% would the military
reinstate in his service? Obliviously no. If the original disability is
reduced but above 20%, would that change the status of the
pensioner? The answer to that is also no. Then what is the
difference between those persons discharged on or after 1.1.1996
and those discharged prior to 1.1.1996? I do not see any. What is
the difference between a reassessment of disability made on
31.12.1995 and one made on 1.1.1996. If a re-assessment made on
1.1.1996 can be final, why not a re-assessment made on 31.12.1995
also? Had paragraph 10 of Ext.P5 said merely that re-assessment
made prior to 1.1.1996 would be final, then also the purpose would
be served and the object would be achieved. Therefore I am
satisfied that the ratio of the decisions of the Supreme Court in
Nakara’s case and SPS Vains’ case (supra) squarely applies to the
facts of this case. Accordingly, I declare that the cut off date of
1.1.1996 fixed in paragraph 10 of Ext.P5 (in O.P. 33852/01 which is
the one under challenge in all the original petitions, is arbitrary,
discriminatory and unconstitutional. The same is therefore hereby
struck down. The eligibility for disability pension of all petitioners’
O.P.. No. 33852/01 etc. -: 11 :-
shall be finalised on the basis of the disability already fixed prior to
1.1.1996 and the same shall not be re-opened on the basis of any re-
assessment. All the petitioners shall be paid disability pension with
arrears accordingly. Orders in this regard shall be passed and
arrears disbursed within two months from the date of receipt of a
copy of this judgment.
13. In O.P. No. 33852/2001, at the time of discharge,
disability was assessed as 30% and disability element of pension was
also paid. But the same was discontinued with effect from 9.9.1998.
In the counter affidavit it is stated that disability was assessed at
30% for life and pension on the disability element was restored
from 16.4.2003. The petitioner submits that arrears for the period
from February 2000 to 15.4.2003 has been denied to the petitioner.
In view of my above decision, arrears for the above period also shall
be paid to the petitioner within 2 months from the date of receipt of
a copy of this judgment.
14. In O.P. No. 13916/2002, the petitioner was discharged on
16.12.1977, assessing disability of 50%. He appeared before the Re-
survey Medical Board on 15.7.1996 who also recommended 50%
disability. But by Ext.P3 dated 8.2.1997, the petitioner was
informed that disability element of pension was reduced to Rs.90/-
per month. Till then he was drawing Rs. 375/- per month as
disability element. In reply to Ext.P4, the petitioner was informed
that vide PPO No. D/RA/7945/96 percentage of disability was
accepted at 20% and disability element was sanctioned as Rs.90/- by
the sanctioning authority. Petitioner submits that no such order has
been served on him. Such an uncommunicated order cannot be
binding on the petitioner. In any event, in view of my decision in
these original petitions the disability assessed prior to 1.1.1996
itself would be final. Accordingly, the petitioner would be eligible
O.P.. No. 33852/01 etc. -: 12 :-
for disability element of pension without any reduction proposed in
Ext.P3. Arrears shall be paid to the petitioner within 2 months from
the date of receipt of a copy of this judgment.
The original petitions are allowed as above.
Sd/- S. Siri Jagan, Judge.
Tds/
O.P.. No. 33852/01 etc. -: 13 :-
S. Siri Jagan, J.
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O.P. Nos. 33852/2001, 13916, 15732 &
30901/2002 and 2300/2003.
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J U D G M E N T
January, 2009.