JUDGMENT
Susanta Chatterjee, J.
1. The present writ application has been filed by 43 retired employees of the Calcutta Municipal Corporation. Admittedly, they have all retired before 1st April, 1977. It is stated that the Scheme of Pension which was in force in the Corporation of Calcutta upto 1914 and employees who were in service during that period used to enjoy the benefit of pension. Thereafter, the scheme of pension was discontinued. Again in 1968, there was a proposal to re-introduce the scheme of pension for the employees of the Corporation irrespective of the date of retirement. It is alleged that, in fact, in 1968, the Corporation passed a resolution to the above effect. The acceptance of the Scheme of Pension, was however, delayed till 1982. The said scheme at last has been accepted in 1982 with retrospective effect from 1.4.1977. Regulation No. 1 of the said Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations of 1982 provides that the Regulations are to come into force with effect from 1.4.1977. Since the petitioners are alleged to have retired before 1.4.1977, they are not entitled to have the benefit of pension for such fixation of the date on 1.4.77. The said date of 1.4.77 is alleged to have been fixed arbitrarily, whimsically and With the intent to deny pension to the employees who retired prior to 1.4.77. There is alleged discrimination against the petitioners. Accordingly, the petitioners have moved the writ Court for issuance of a writ of Mandamus commanding the respondents to extend the benefit of pension under the Regulations of the Corporation of Calcutta Employees’ (Death-own-Retirement) Benefit Regulations, 1982 to the petitioners by treating the date 1.4.77 appearing in Regulation 1 of Chapter 1 of the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations of 1982 as non-existent and for other consequential reliefs as stated in the writ application.
2. A Rule was issued on 25.7.85. An affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1-3 controverting the allegations made in the writ application. An affidavit-in-reply is filed on behalf of the petitioners. Since the Rule is ready for hearing, the entire matter is taken up for consideration. It is argued on behalf of the petitioners that the Corporation has acted illegally, arbitrarily and whimsically in fixing 1.4.77 as the date for giving effect to the Scheme of Pension to be reintroduced in the Corporation under the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations, 1982. There is discrimination against ex-employees of the Corporation who retired prior to 1.4.77 by creating an artificial compartment in the matter of granting pension. The artificial date is alleged to have no correlation with the object and purpose sought to be achieved by adoption of the pension scheme for the employees’ concerned. The word “employee” having not been defined otherwise in the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations, 1982 the words “employees” would consequently include an ex-employee. The scheme of pension as adoption and reintroduced by the Corporation with effect from 1.4.77 is alleged to have contravened the Articles 14, 16 and 300A of the Constitution of India. The said scheme is also being challenged as not inconformity with the resolution of the Corporation passed in 1968.
3. In the affidavit-in-opposition, it is asserted that the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations, 1982 and the supplementary regulations thereof were framed by the Administrator of the Corporation of Calcutta under Sub-section 1 of Section 85 of the Calcutta Municipal Corporation Act, 1951 in consultation with the Public Service Commission and the Municipal Service Commission by his Order dated 18th October, 1982. The same was forwarded to the State Government for according sanction under Section 534 of the said Act, The State Government’s sanction under Sub-section 1 with modification made under Sub-section 2 of Section 534 of the Calcutta Municipal Act, 1951 was accorded by the order dated 22nd October, 1982. The State Government was, however, requested to reconsider the Regulation for rescinding the supplementary regulations as sanctioned by L. G. & U. D. dated 22nd October, 1982. The State Government’s sanction under Section 534 of the Calcutta Municipal Corporation Act read with Section 22 of the Bengal General Clauses Act amending the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations 1982 and rescinding the supplementary regulations thereto was made by order dated 9/12th September, 1983 and the same was accepted by Administrator of Calcutta Municipal Corporation by his order dated 14th September, 1983. According to the contesting respondents, the question of deprivation of the benefit of pension for the artificial date as alleged in the writ application does not arise. Under Section 75 of the Service Regulation and Employee of the Corporation may be retained in service beyond the age of compulsory retirement if his application for leave submitted before such date of retirement has been reduced and he is accorded leave after he attains the age of superannuation and in such circumstances extension of service on the ground shall be limited to the period of leave refused or six months whichever is less. The benefit under Corporation of Calcutta Employees (Death-cum-Retirement). Benefit Regulations, 1982 has been given to the employees who retired from 1st April 1977 and in the facts and circumstances of the case the present case is alleged to be unwarranted and uncalled for.
4. The Learned Counsel appearing for the petitioner has mainly relied upon the case (D.S. Nakara and Ors. v. Union of India). It was pointed out that with the expanding horizons of socio-economic justice, the Socialist Republic Welfare State which the country endeavours to set up and the fact that the old men who retired without emoluments were comparatively low are exposed to vagaries of continuous rise in prices, the falling value of the rupee consequent upon inflationary inputs by introducing arbitrary eligibility criteria, “being in service and retiring subsequent to the specified date” for being eligible for the Liberalised Pension Scheme and, thereby dividing a homogeneous class, the classification being not based on in any discernible rational principles and being wholly, unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devided being thoroughly, arbitrary, the eligibility for Liberalised Pension Scheme of “being in service on the specified date and retiring subsequent to that date” in the memorandum, violates Article 14 and is unconstitutional and is liable to be struck down. It was further pointed but that as the arbitrary and discriminatory portion in the memoranda can be easily severed, both the memoranda shall be enforced and implemented after severance of the unconstitutional part.
5. The attention of this Court was drawn to the relevant portion of the decision . The said portion runs as: follows :
“3.–The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be consulted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
4.–The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
6.–The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even a degree of evil, but the classification should never be arbitrary, artificial or evasive.
7.–The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia intuit have a rational relation to the object sought to be achieved by the Act.”
6. It is argued with all force that in the present case, the impugned scheme has made an arbitrary discrimination in not giving benefit to the persons who have retired prior to 1st April, 1977. Such a discrimination is prohibited in law and this nature of discrimination is not permissible and it is widely and comprehensively been discussed and decided in (Supra). The challenge is not regarding the validity of the Pension Liberalisation Scheme. The Scheme is wholly acceptable to the petitioners, nay their ardent supporters of it, nay further seek the benefit of it. The petitioners challenged only that part of the scheme by which these benefits are admissible to those who retired from service after certain dates. In other words, they assert that the scheme must be uniform to enforce with regard to all pensioners for the purpose of computation of pension irrespective of the date when the employee retired. No doubt, the benefit of the Scheme will be available from the specified date irrespective of the fact when the concerned employee actually retired from service.
7. The learned Counsel for the petitioner has also argued relying upon (Minerva Mills v. Union of India). The conception of “discrimination” and “unreasonable classification” have been discussed in details. He has also drawn the attention of this Court to the decision reported in 1982 SC Page 879 and (February Issue). Although he has argued that in the present case there is no challenge to the Pension Benefit Scheme but, the benefits restricted to persons who retired after 1st April 1977 should be served and the writ application should be allowed granting reliefs in the manner as prayed for. He has canvassed with emphasis that the Corporation has acted illegally, arbitrarily and whimsically in fixing 1.4.77 as the date for giving effect to the Scheme of Pension and there is utter discrimination against ex-employee of the Corporation who retired prior to 1.4.87. The artificial date has no correlation with the objects and purposes sought to be achieved by adoption of the Pension Scheme for its employees. Such a discrimination contravenes the provisions of Articles 14, 16 and 300A of the Constitution of India. It is argued on behalf of the respondents that the Corporation of Calcutta Employees’ (Death-cum-Retirement) (Benefit Regulations, 1982 and the Supplementary Regulation thereof was framed by the Administrator of the Corporation of Calcutta under Sub-section 1 of Section 85 of the Calcutta Municipal Act, 1951, in consultation with the Public Service Commission and the Municipal Service Commission by order dated 18th October, 1982 the same was forwarded to the State Government for according sanction under Section 534 of the said Act. The State Government sanctioned under Sub-section 1 with modification made under subsection 2 of Section 534 of the Calcutta Municipal Act 1951 was accorded by Order No. 81/C-9/E2P-1/81 dated 22nd October, 1982. The State Government was further requested to reconsider the regulation for rescinding the supplementary regulations as sanctioned by L. G. & U. D. Department’s Order No. 81/C-9/P25-1/81 dated October 1982. The State Government sanctioned under Section 534 of the Calcutta Municipal Act, 1951 read with Section 22 of the Bengal General Clauses Act, 1899 amending the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations 1982 and rescinding the supplementary regulations thereof as sanctioned by L. G. & U. D. Department’s Order No. 81/C-9/P25-1/81 dated 22nd October, 1982 was made by L. G. & U. D. Department’s Order No. 108/C-9/P2P-1/81 dated 9/12th September, 1983 and that was accepted by the Administrator of the Corporation of Calcutta by his Order dated 14th September, 1983. It is submitted that a deadline has to be drawn to implement the scheme or regulation of pension giving retrospective effect. The question of discrimination and classification and the intelligible theory as sought to be raised does not and cannot arise at all. Much emphasis has been laid upon the word “employee”. Section 75 of the Service Regulation has been referred. To appreciate the nature and scope thereof, the same is quoted :
“75–An employee of the Corporation may be retained in service beyond such date of retirement has been reduced and is granted leave after he attains the age of superannuation and extension of service on this ground shall be limited to the period of leave refused or six months whichever is less”.
8. It is also argued that if there is any anomaly in the said scheme the entire scheme may be struck down. There should not be piecemeal severance. Nothing should be added to the legislation and nothing to be substracted to the legislation. In support of his argument, the attention of this Court has been drawn to and AIR 1984 SC Page 597 and an attempt was made to distinguished the decision of the case of D.S. Nakara AIR 1983 page 130 (Supra).
9. Having heard the Learned Lawyers of the respective parties at length and upon consideration of the materials on record and the submissions of the respective learned Lawyers, it appears that the only point of determination is as to whether the retrospective effect given to the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefit Regulations should be with effect from 1.4.77 or without any deadline at all. Amongst all the case laws as referred by both the learned lawyers it appears that the decision (Supra) is more appropriate and the ratio of the said decision is applicable to the instant case. A similar argument as made out in the present case was also canvassed in the case of D.S. Nakara v. Union of India, that the Scheme has to be taken as a whole or rejected as a whole and the date from which it came into force is an integral and inseparable part of the Scheme. The two sublimbs of the submissions were that, (i) The Court cannot make a Scheme having financial implications retroactive, and (ii) Court cannot grant any relief to the pensioners who retired prior to a specified date because if more persons divide the available cake, the residue falling to the share of each especially to those who are likely to be benefitted by the Scheme will be comparatively smaller and as they are not before the Court, no relief can be given to the pensioners. The Supreme Court has answered the problem unequivocally. The relevant portion is quoted hereinbelow :
45–Let us clear one misconception. The pension scheme including the liberalised scheme available to the Government employees is non-contributory in character. It was not pointed out that there is something like a pension fund. It is recognised as an item of expenditure and it is budgeted and voted every year. At any given point of time there is no fixed or predetermined pension fund which is divided amongst eligible pensioners. There is no artificially created fund or reservoir from which pensioners draw pension within the limits of the fund, the share of each being extensive with the available fund. The payment of pension is a statutory liability undertaken by the Government and whatever becomes due and payable is budgeted for. One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share. Therefore, there is no question of dividing the pension fund. Pension is a liability incurred and has to be provided for in the budget. Therefore, the argument of division of a cake, larger the number of shares, smaller the shares and absence of residue and therefore by augmentation of beneficiaries, pro rata share is likely to be affected and their absence making relief impermissible, is an argument born of desperation, and is without merits and must be rejected as untenable”.
10. There is nothing cognet to fix a specific date. It is not appreciated as to why all pensioners whenever they retired would not be covered by the Liberalised Pension Scheme. In my view, the date of retirement is irrelevant. The revised scheme may be operative from the date of acceptance but must bring under its purview all existing pensioners and those who are to retired subsequent to that date, irrespective of the date of retirement. I find further that such fixation of an artificial date is arbitrary and ultra vires. Such a restriction is obviously unreasonable. There is no material on record to satisfy the Court that there is any justification to fix the date as on 1.4.77 for giving benefit to a section of the pensioners and to deny the equally placed persons who retired prior to 1.4.77. This is obviously a typical example by violation of the Article 14 of the Constitution of India. It is futile to argue that the date is not severable from the Scheme. Law is now looked upon as an instrument of social control. It helps the promotion of progressiveness of Mankind. The narrow outlook loses all its virtue to the call of panoramic vision of the larger horizon. The old conception of pension has undergone a revolutionary change. It is no longer treated as an ex gratia payment dependant upon the grace and discretion of the employer. A person has given his whole life and blood during his employment. He is entitled to live during the period of his retirement and there must be a social security by providing the pension. The right to receive pension has been recognised in the proper perspective in the State of Punjab v. Ekbal Singh . In E.P. Royappa v. State of Tamil Nadu, it has been held that the basic principle which forms both Articles 14 and 16 is equality and inhibition against discrimination. The relevant passage is quoted:–“from a positivistic point of view, equality is antithetic to arbitrariness. In fact, the equality end arbitrariness are sworn enemies, one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an Act is arbitrary it is implicit upto that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public implement, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.”
11. After scrutinising the scheme in its entirety it appears that the classification which has sought to provide benefits to the persons who retired after 1.4.77 denying them to the persons who retired prior to the said date, is arbitrary, artificial and evasive. There is no rational basis for the same. This classification does not fulfil the test mainly (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Scheme.
12. Accordingly, the writ petition is allowed. The date 1.4.77 appearing in Regulation I of Chapter I of the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefits Regulations of 1982 is struck down and it is declared that the employees of the Corporation of Calcutta even retiring prior to 1.4.77 are entitled to get the benefits of Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefits Regulations 1982.
13. Let a writ Mandamus issue commanding the respondents to extend the benefit the pension under the Regulations of the Corporation of Calcutta Employees’ (Death-cum-Retirement) Benefits Regulations to the petitioners and/or all the retired employees ignoring the date 1.4.77 appearing in Regulation I of Chapter I of the said Scheme as nonest. There will be no order as to costs.