Binoy Bhushan Nag And Ors vs State Of Tripura And Ors

24/01/2020

[1] These petitions arise in common background. They have been heard together and would be disposed of by this common judgment. For convenience facts may be noted from Writ Petition(c) No.430/2019.

[2] The petitioner has claimed full pension upon completion of 25 years of service. The petitioner joined the Government service under the Directorate of Handloom, Handicraft and Sericulture on the post of Operative Sericulture on 10.03.1978. The petitioner retired on superannuation from the Government service from the post of Sericulture Development Officer on 31.03.2006. The petitioner had thus completed 28 years of service before retirement. At the relevant time, the pension rules of the State Government prescribed 33 years of service upon completion of which a retired employee would get full pension. The Government of Tripura framed Tripura State Civil Services (Revised Pension) Rules, 2009 (hereinafter to be referred to as the ROP 2009). In these rules several provisions were made for revising the pension entitlements of the retirees of the State Government. Sub-rule 2 of Rule 1 provides that save as otherwise provided the rules would be deemed to have come in to force on and from 01.01.2006. Under Rule-3 the minimum and maximum pension and family pension were revised. Sub-rule-3 of Rule 3 however, provided that the revised rate of pension shall be computed notionally from 01.01.2006 or from the date of superannuation or retirement as the case may be, actual benefits would be admissible from 01.01.2009 or at a later date if the superannuation or retirement was to fall thereafter. Under Rule-4 dearness relief to the pensioners was made admissible at the rates that the State Government may sanction from time to time. Rule-5 which is at the centre of controversy reads as under:

"5. QUALIFYING SERVICE FOR COMPUTATION OF PENSION:

The qualifying years of service in respect of admissibility of full pension is reduced from 33 years to 25 years for employee(s) proceeded/proceeding on superannuation/ retirement on or after 1.1.2009. For the purpose of computation of qualifying service the period of functional service rendered by the Government employee shall only be taken into consideration and the six monthly periods under existing provision of the Rule will remain applicable subject to reduction from 66 to 50. A few cases of computation are illustrated in the Annexure."

Rule-7 covered the cases of pensioners or family pensioners of retirement or superannuation prior to 01.01.2006. In their cases also it was provided that actual financial benefits would be available after 01.01.2009. Under Rule-8 the existing limit of death-cum-retirement gratuity was enhanced from Rs.2 lakhs to Rs.4 Lakhs for employees who superannuate or retire after 1.1.2009. Rule-9 clarified that for those employees who had superannuated or retired on or before 31.12.2008 and have already availed the benefit of commutation of pension their cases will not be re-opened for providing commutation of differential amount.

[3] The case of the petitioners is that the reduction of minimum service for claiming maximum/full pension from 33 years to 25 years as contained in Rule-5 of the ROP 2009, could not have been confined to those employees who superannuated or retired after 01.01.2009. Since ROP 2006 were brought into force w.e.f 1.1.2006 such liberalized formula must be applicable to all employees who superannuate or retire after 1.1.2006. The petitioners point out that all the petitioners have put in more than 25 years of service and had retired on superannuation after 1.1.2006. If therefore, the contention of the petitioners is accepted all the petitioners would be entitled to maximum/full pension on the strength of their service and by applicability of Rule-5 of ROP, 2009.

[4] Learned counsel for the petitioners submitted that under the said Revision of Pay Rules, the State Government had framed a liberalized pension scheme. In particular, Rule-5 made a more beneficial provision in favour of the employees. Applicability of such provision could not have been restricted to those who retired after 1.1.2009. All retirees who were covered by ROP 2009 i.e. those employees who retired after 1.1.2006 formed a homogenous class. The respondents could not have further bifurcated this class into those who retired before 1.1.2009 and those who after 1.1.2009. In this context counsel placed reliance on a Constitution Bench Judgment of the Supreme Court in case of D.S. Nakara and others Vrs. Union of India, reported in (1983)1 SCC 305. He pointed out that recently the Supreme Court in case of All Manipur Pensioners Association by its Secretary Vs. State of Manipur and others; reported in AIR 2019 SC 3338 relying upon the decision in case of D.S. Nakara(supra) under somewhat similar circumstances has allowed the appeal of the employees.

[5] On the other hand, counsel for the Government opposed the petitions contending that the ROP 2009 were given limited retrospective effect of 01.01.2006. Sub-rule 2 of Rule 1 clarifies that such retrospective effect would not apply where contrary intention emerges. The said Rules have made several benefits applicable only prospectively. The cut off line of 01.01.2009 is, therefore, in no way arbitrary or discriminatory.

[6] I have referred to the contents of the ROP 2009 at some length so as to appreciate the full context of the said Rules. As is well known, the Governments, Central as sell as the State have been since last several decades appointing Pay Commissions periodically which would undertake an extensive and laborious task of prescribing fresh pay scales of large number of services under the Government. The Pay Commissions would make recommendations based on range of factors such as the duties, responsibilities and the work load being carried out by the employees in various cadres, principally bearing in mind two factors namely, erosion in buying capacity of the currency and the growth of economy of the country. These Commissions are typically set up every 10 years. By the time the recommendations of these Pay Commissions are submitted to the Government, are examined and implemented with modifications, 10 years from the date of effect of the last pay revision would have gone. These recommendations are, therefore, typically implemented with retrospective effect. Revision of pension to the retired employees would be as a consequence to implementation of the fresh Pay Commission recommendations. The State of Tripura thus formulated the Revision of Pension Rules, 2009 incorporating various provisions for liberalizing the existing pension entitlements. For example in Rule-3 the minimum and maximum pension payable to the pensioners and family pensioners was revised. One of the significant provisions made in liberalizing the pension entitlement under the said rules was under Rule-5, as per which, as noted earlier, the qualifying service for admissibility of full pension was reduced from 33 years to 25 years. This was, however, confined for those employees who superannuate or retire after 01.01.2009. The moot question is whether this cut-off date of 01.01.2009 for granting benefit of reduced service for claiming full pension is legal or does it suffer from vice of hostile discrimination.

[7] The discussion to any such question must start with a reference of the land mark judgment of seven Judges Bench of the Supreme Court in case of D.S. Nakara(supra). It was the case in which the Government of India had formulated a revised pension scheme. Such revised pension scheme was made applicable only to those employees who retired on or after a particular date which has been popularly referred to as the cut-off date. Such cut-off date was challenged by some of the retirees. The Supreme Court held that the pensioners as a class formed a homogenous group and cannot be further sub-divided into those retired before and those retired after a cut-off date.

[8] On behalf of the Union of India it was argued that if on account of such reason the revised pension scheme was discriminatory, the same must be struck down as a whole. The Supreme Court, however, held that in such a case it was open for the Court to remove the offending portion of the pension scheme instead of striking down the whole scheme altogether and thereby provide the benefit to the retirees who had retired even prior to the cut-off date artificially introduced in the scheme. Following portions of the judgment may be noted:

Both the impugned memoranda do not spell out the raison d'etre for liberalising the pension formula. In the affidavit in opposition by Shri S.N. Mathur, it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the preliberalised pension scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of economic security. When Government favourably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to erstwhile government servants who would retire. The Government also took note of the fact that continuous upward movement of the cost of living index as a sequel of inflationary inputs and diminishing purchasing power of rupee necessitated upward revision of pension. If this be the underlying intendment of liberalisation of pension scheme, can anyone be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee ? What is the sum total of picture ? Earlier the scheme was not that liberal keeping in view the definition of average emoluments and the absence of slab system and a lower ceiling. Those who rendered the same service earned less pension and are exposed to the vagary of rising prices consequent upon the inflationary inputs. If, therefore, those who are to retire subsequent to the specified date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specified date. The Government was perfectly justified in liberalising the pension scheme. In fact it was overdue. But we find no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specified date.

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. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs. 8,100 p a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the basis of last ten months' average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours' difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore the classification does not stand the test of Article 14.

Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Article 14. The next question is what is the way you?

That takes us to the last important contention of the learned Attorney General. It was urged that the date from which the scheme becomes operative is an integral part of the scheme and the doctrine of severability cannot be invoked. In other words, it was urged that date cannot be severed from the main object of the scheme because the Government would have never offered the scheme unless the date was an integral part of it. Undoubtedly when an upward revision is introduced, a date from which it becomes effective has to be provided. It is the event of retirement subsequent to the specified date which introduces discrimination in one otherwise homogeneous class of pensioners. This arbitrary selection of the happening of event subsequent to specified date denies equality of treatment to persons belonging to the same class, some preferred and some omitted. Is this eligibility qualification severable ?

It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable. We find no difficulty in implementing the scheme omitting the event happening after the specified date retaining the more humane formula for computation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the floor and the ceiling.

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 retrospectivity. 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 Rule 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 the 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 severed 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 severed."

[9] In case of Subrata Sen and others Vrs. Union of India and others; reported in AIR 2001 SC 3634 facts were that the petitioners were employees of Indian Oil Corporation Limited (Assam Oil Division). They had retired prior to 01.12.1994. Assam Oil Division was formed by transfer of the undertaking of Assam Oil Co. Limited, subsidiary of Burmah Oil Company. The petitioners were transferred from Assam Oil Co. Limited to Indian Oil Corporation. As per the Assam Oil Company Staff Pension Fund Scheme, they were getting pension on the basis of following formula:

"A sum equal to 40 per cent of the average annual basic salary for the last five years of service immediately preceding the date of retirement."

Government of India issued a notification dated 10.03.1995 providing for revision of pension formula in respect of Indian Oil Corporation employees who were covered by the said staff pension scheme which provided as under:

"Pension for the officers retiring from December, 1994, onwards may be computed on the basis of 40% of the average of the last 10 months' salary including averages dearness allowance drawn by the officer over the last 10 months of his service. If and when pay revision take place retrospectively, the amount of pension may be adjusted accordingly. No dearness allowance will be paid on pension."

[10] The petitioners challenged the said cut-off date in the liberalized pension formula before the Supreme Court under Article 32 of the Constitution of India arguing that the sub-classification of retirees between those who retired prior to December, 1994 and those who retired after December, 1994 is impermissible. Reliance was placed on the decision of the Supreme Court in case of D.S. Nakara(supra). The Supreme Court in this Context held and observed as under:

"18. Further, in All India Reserve Bank Retired Officers Association v. Union of India, [1992] Supp. 1 SCC 661, Ahmadi J., (as he then was) speaking for the Court in the aforesaid decision highlighted the observations in Nakara case found at p.333 para 46 to the following effect (SCC p. 674 para 7):

"... the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benefit. It is an upward revision of an existing benefit. If it was a wholly new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not expect it."

The Court further observed:

".....It must be realised that in the case of an employee governed by the CPF (Contributory Provident Fund) Scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara case drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF Scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in Krishena case."

Same is the position in the present case. As observed in the aforesaid case, in case of an employee governed under the Pension Scheme, relations with the employer merely undergo a change, but are not snapped altogether. There is no new scheme of payment pension, but it is only a revision of the existing pension scheme. Under the new Pension Scheme, pension is required to be paid on the basis of 40 per cent of the average of the last 10 months' salary including average dearness allowance drawn by the officer over the last 10 months of his service instead of earlier 40 per cent of the average annual basic salary for the last five years of service immediately preceding the date of retirement."

[11] In case of All Manipur Pensioners Association (supra) facts were that the State of Manipur had adopted Central Civil Services (Pension Rule), 1972. As per Rule, 49 of the said Rules in case of employees retiring after 30 years of service, the amount of pension payable would be calculated at 50% of the average emoluments subject to a maximum limit. The Government of Manipur issued an office memorandum dated 21.04.1999 revising the quantum of such pension. While doing so, it was provided that those Government employees who retired on or after 01.01.1996 will be entitled to the revised pension at higher percentage and those retired before 01.01.1996 shall be entitled to pension at a lower percentage. The association of employees challenged the introduction of a said cut-off date of 01.01.1996 in the liberalized pension formula before the High Court. Having failed, they filed SLP before the Supreme Court. The Supreme Court held that all Government servants retiring in accordance with the provisions of the pension rules are entitled to pensionary benefits. Placing reliance on the decision of the Supreme Court in D.S. Nakara(supra) it was held that the cut-off date of 01.01.1996 for giving the benefit of such liberalized formula was impermissible.

31/01/2020.

[12] In case of V. Kasturi Vrs. Managing Director, State Bank of India, Bombay and Another; reported in (1998) 8 SCC 30 the Supreme Court held that where in pension rules an amendment enhances the pension or provides for a new formula of computation of pension, even the earlier retirees who at the time of retirement were eligible for pension would be eligible for benefit of such amendment from the date it came into effect. However, where amendment extended the benefit of the pension scheme to a new class of pensioners, the earlier retirees who at the time of retirement were not eligible for pension cannot get the benefit of the amendment. It was a case in which the employee had joined the service State Bank of India as an officer in the year 1963. In the year 1979 bank had framed a pension scheme. The employee resigned from service on 31.07.1984 after completing 20 years 9 months of pensionable service. His resignation though was treated as a voluntary retirement, he was not entitled to get pension as the eligibility requirement under the pension rules was that the employee should have put in a minimum 25 years of pensionable service. Subsequently upon various representations from bank employees the said eligibility condition for receiving pension was relaxed to 20 years of pensionable service w.e.f. 20th September, 1986. The employee who had such requisite length of service had challenged to said cut-off date of 20.09.1986 and claimed that he should also received the benefit of the amendments made in the pension rules. Making a distinction between a liberalization in the existing pension scheme and introducing amendment which would bring within its fold fresh set of employees under the pension scheme, the case of the employee was rejected.

[13] In case of Krishena Kumar Vrs. Union of India and others; reported in (1990) 4 SCC 207 the petitioners were retired railway employees who were covered by the Railway Contributory Provident Fund scheme. Prior to 1957 the railways had only one scheme of provident fund as retirement benefit. In the year 1957 the pension scheme was introduced. Those who entered the railway service after 01.04.1957 would be automatically covered by the pension scheme. Those who were in service as on 01.04.1957 would have an option either to be retained in the provident fund scheme or to switch over to the pension scheme. Series of notifications were issued giving such options to the employees. In the initial stage the employees perceived that the benefits under the provident fund scheme and pension scheme were comparable. However, subsequently it was felt that the pension scheme was far more beneficial. Since the railways did not issue fresh notifications giving fresh opportunity to switch over to pension scheme the aggrieved employees had approached the Court. In such background the Supreme Court held that those who did not opt for the pension scheme had ample opportunity to choose between the two namely, the pension scheme and the provident fund scheme. On multiple occasions time was given to the employees to switch over to the pension scheme which also included those who were already retired. It was further observed that the notification limiting the requirement that instead of all CPF beneficiaries only those who were in service on a specified date and still in service on the date of issue of notification would be deemed to have come over to the pension scheme cannot be struck down by applying the ratio of the decision in case of D.S. Nakara(supra).

[14] In case of Indian Ex-Services League and others Vrs. Union of India; reported in (1991) 2 SCC 104 the Supreme Court rejected the case of the army personal seeking implementation of the principle of "one rank one pension" for all retired members of armed forces irrespective of the date of retirement. It was held that in such a situation the principles laid down in case of D.S. Nakara(supra) would not apply.

[15] In case of All India Reserve Bank Retired Officers Association and others Vrs. Union of India and Another; reported in 1992 Supp (1) SCC 664 a cut-off date chosen by the RBI for introduction of the pension scheme for the first time was held not arbitrary. It was the case in which the RBI employees were previously governed only by the provident fund scheme. The pension scheme was introduced in the year 1990 which provided that all employees who joined the service after 01.11.1990 would be automatically governed by the pension scheme. Those who were in employment as on 01.11.1990 would have an option to continue to be governed by the provident fund scheme or to switch over the pension scheme. An option was also given to those employees who had retired between 1.1.1986 and the date of coming in to force of pension regulation to come over to pension scheme provided they were willing to surrender the employer's contribution under the CPF scheme. Those who had retired from service prior to 1.1.1986 had, therefore, made a grievance about not being given a similar option. Heavy reliance was placed on the decision of Supreme Court in case of D. S. Nakara(supra). The Supreme Court held that a distinction has to be drawn between continuance of an existing scheme in its liberalized form and introduction of a wholly new scheme. In case of the former all pensioners would have a right to pension on uniform basis and any division which classified them into two groups by introducing a cut-off date would ordinarily violate the principle of equality. However, in the later case where a new scheme in respect whereof the retired employees had no vested right is being introduced, the employer can restrict the same to certain class of retirees having regard to the fact situation in which the scheme came to be introduced, the extent of additional financial burden that will arise, the capacity of the employee to pay the same, the feasibility of extending the scheme to all retirees regardless of the dates of a retirement and the availability of records of every retiree etc. In case of an employee governed by the CPF scheme his relations with the employer would come to an end on his retirement and receipt of the CPF amount but in a case of employee governed under the pension scheme his relations with the employer merely undergoes a change but does not snap altogether. Following observations of the judgment may be re-produced:

"10. Nakara's judgment has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalised all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalisation and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalisation on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalise an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara case this Court drew a distinction between continuance of an existing scheme in its liberalised form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cutoff date would ordinarily violate the principle of equality in treatment unless there is strong rationale discernible for so doing and the same can be supported on the ground that it will subserve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realised that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara case drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in Krishena case"

[16] This clear distinction between a situation, as in the case of D. S. Nakara(supra) where an existing pension scheme is liberalized and which liberalized formula is made effective from a chosen cut-off date and where either a new pension scheme is introduced for the first time or an existing pension scheme is expanded so as to include a new set of employees within the fold of the pension scheme is clearly brought out in series of judgments of the Supreme Court. In the former situation the cut-off date is held to be violative of Article 14 of the Constitution of India, in the later as long as there is proper justification cited for choosing the cut-off date the Courts have upheld the same. In the former case, the basic principle applied is that if a pension scheme is revised making it more retiree friendly, the same must be applied to all retirees who form a homogenous class and further sub-classification would not be permissible. If reduced purchasing power of rupee can hurt a retiree, surely it would hurt those who have retired much earlier with greater force. In the later class of cases, the Courts have made a clear distinction that if the pension scheme is being introduced for the first time by the employer, those who have already retired before the pension scheme is framed, cannot claim parity with the existing employees who are covered under the new pension scheme.

[17] Having thus noted two clear streams of decisions of Supreme Court depending on facts and circumstances of the case, we would now have to decide in which category the present petitions fit. Going back to the facts of case on hand, undisputedly the petitioners are pension retirees. At the time of their respective retirements the pension scheme was very much in force. They are not only governed by the pension scheme, but are also receiving such pension post their retirements. They would also be obviously receiving periodic revisions in such pensions either upon framing of fresh revision of pay rules or upon declaration of periodic dearness relief on the basic pension. We must therefore, assess the validity of the cut-off date of 01.01.2009 contained in Rule 5 of ROP 2009 which reduced the qualifying service from 33 years to 25 years for admissibility of full pension on such basis. By all means this is a liberalized formula. From the existing requirement of a minimum 33 years of qualifying service for receiving full pension, such requirement was reduced to 25 years of such service. This rule and the amendment that is introduced in the existing pension formula, did not include any new class of employees or retirees who would be brought within the fold of the pension scheme. In clear terms thus this is not a case where either a whole new pension scheme was introduced by the employer or an existing pension scheme was expanded in such a manner that it would bring within its fold employees or retirees who were previously not covered under the pension scheme. Being a liberalized pension formula, the case of the petitioners would fall in the line of decisions starting with D.S. Nakara(supra), Subrata Sen(supra) and All Manipur Pensioners Association (supra). This requirement therefore, that only those employees who superannuate or retire on or after 1.1.2009 will get the benefit of full pension upon completion of 25 years of qualifying service, must therefore, be held to be unconstitutional. Subject to fulfillment of such requirement, the petitioners must receive higher pension in terms of Rule 5 even though they have retired before 1.1.2009. We may recall, the ROP 2009 were introduced with effect from 01.01.2006 and except contrary provisions are made, applied from such date. All the petitioners had retired after 1.1.2006 and were thus covered by other provisions of ROP 2009.

[18] A question of gross delay of filing the present group of petitions must be addressed before granting final relief. Undisputed facts are that though the ROP 2009 were promulgated on 1.1.2009, the petitioners did little to ventilate their grievances before an appropriate forum till filing of the present petitions. Learned counsel for the petitioners however, submitted that representations were made in the year 2015 and 2018 which were not decided by the respondents. By settled law making of series of representations would not save limitation or cannot be cited as a reason for approaching the Court after gross delay and latches. In any case, the first representation on record is of the year 2015 which itself was six years after the promulgation of the impugned rule. However, the petitioners are seeking higher pension which accrues on month to month basis and is thus a continuing cause. Only on the ground of delay and latches therefore, these petitions cannot be thrown out without any relief to the petitioners. They must however, forego the past benefits flowing from this decision.

[19] In the result, all petitions are disposed of with following directions and declarations:

(1) The cut-off date of 01.01.2009 contained in Rule 5 of the ROP 2009 for applicability of reduced length of qualifying service for receiving full pension is held unconstitutional.

(2) Consequently, all the petitioners who have retired after 01.01.2006 would receive the benefit flowing from Rule 5 of ROP 2009 irrespective to the fact that they retired prior to 1.1.2009.

(3) The respondents shall verify the service details of the petitioners, re-fix their pension in terms of Rule 5 of the ROP 2009. Such pension fixation and its periodic revision would be done on notional basis from the date of the retirement till the date of filing of the petitions after which all the petitioners would be entitled to actual difference in pension prospectively. Entire exercise shall be completed within a period of four months from today.

[20] Petitions are disposed of. Pending application(s), if any, also stands disposed of.