Holding

The petitioners' claims do not flow from D.S. Nakara and are untenable; the challenged Government Orders are valid and the writ petitions are dismissed.

Summary

Ex‑servicemen filed writ petitions under Article 32 seeking a "one rank, one pension" rule, equal death‑cum‑retirement gratuity and backward merger of dearness allowance, claiming that the Supreme Court’s decision in D.S. Nakara required the same pension for all retirees irrespective of retirement date. The petitioners challenged two Government Orders (1983) that recomputed pensions of pre‑1 April 1979 retirees under the liberalised pension formula. The Court examined whether the relief claimed flowed from Nakara and whether the petitioners were entitled to identical pension amounts, gratuity, or DA. It held that Nakara only extended the liberalised pension scheme to all retirees but did not mandate identical pension amounts or other benefits, and that the petitioners’ claims were a mis‑reading of Nakara. Consequently, the Government Orders were upheld and all writ petitions were dismissed.

Issues considered

The petitioners' claim of "one rank, one pension" for all ex‑servicemen – does it arise from the Nakara judgment?
Whether the Government Orders of 22 Nov 1983 and 3 Dec 1983 recomputing pensions for pre‑1 April 1979 retirees are ultra vires.
Whether ex‑servicemen are entitled to the same death‑cum‑retirement gratuity as post‑1 April 1979 retirees.
Whether dearness allowance can be merged backwards for retirees who retired before its introduction.

Legislation cited

Central Civil Services (Pension) Ruless. 1972
Constitution of Indias. Article 14, s. Article 32
Service‑Pension Rules

Subjects

one rank one pensionex‑servicemenpension reformliberalised pension schemeArticle 14Article 32gratuitydearness allowancegovernment ordersretirement date discriminationwrit petition

Judgment

A INDIAN EX-SERVICES LEAGUE AND ORS. ETC.
V.
UNION OF INDIA AND ORS. ETC.

JANUARY 29, !991
B '
[B.C. RAY, M.H. KANIA, K. JAGANNATHA SHETIY,
L.M. SHARMA AND J.S. VERMA, JJ:]

Service-Pension Rules: Pension-Petitioners ex-servicemen-
Relief cld,imed in substance of 'one rank, one pension' on the basis of
Nakara's case-Claim proceeds on misreading of Nakara-Rejected. -._,,.,..-
c
Gratuity-Same Death-cum-Retirement Gratuity to the pre- ·~-
1.4.1979 retirees as to the post-1.4.1979 retirees sought-Petitions dis-
missed-Central Civil Services (Pension) Rules, 1972. .,..

Dearness allowance-Merger of D.A. Backwards-Claim untenable.
D
Petitioners who are ex-servicemen have moved these Writ Peti-
tion~ under Article 32 of the constitution as a sequal to the decision of
this Court in D.S. Nakara & Ors. v. Union of India. The relief claimed
by them, in substance, though not said in so many words is to the effect
that the result of the decision in Nakara is that all the retirees who held
E
the same rank irrespective of their date of retirement must get the same
amount of pension and this should be the amount which was calculated
and shown in tli~ appendices to the Memorandum (Ex. P-2) challenged
in Nakara.

F
Similarly one of the prayers made in these Petitions is for grant of
same Death-cum-Retirement Gratuity to the pre-1.4.1979 retirees as to
the Post 1.4.1979 retirees.
-
Another claim made was for merger Of D.A. backwards. Conse-
quent to the decision in Nakara one G.O. No. F. 1(4)82/D (Pension/
Services) dated 22.11.1983 in respect of personnel below the commis-
G
sioned rank and the other G.O. No. 1(4)/82/1/D (Pension/Services)
dated 3.12.1983 in respect of Commissioned Officers were issued
recomputing the revised pension of pre-1.4.1979 retirees of Armed
Forces as on 1.4.1979 according to the liberalised pension scheme dated
28.9.1979 as modified by the decision in Nakara. It is these two G.O's
H which are under challenge in these petitions.
>---
158
EX-SERVICES LEAGUE v. U.0.1. 159

Dismissing all the Writ Petitions, this Court,
A
,,-A HELD: In substance, even though learned counsel tor the peti·
tioners do not say so, the arguments amount to the claim of 'one rank,
one pension' for all retirees of Armed Forces irrespective of their date
of retirement. Unless this claim can be treated as flowing from the relief
granted in Nakara, the relief claimed though differently worded cannot B
be granted. [166H-167A]

---.../' The claim in these petitions is untenable and it proceeds on a
mis-reading of the Nakara decision. The conclusion of the Constitution
Bench in Nakara was that the benefits of liberalisation and extent
~

--
thereof given in accordance with the liberalised scheme have to be given
equally to all retirees irrespective of their date of retirement and those c
benefits cannot be confined to only the persons who retired on or after
the specified date because all retirees constitute one class irrespective of
'-
their date of retirement for the purpose of grant of the benefits of
'r
liberalised pension. To give effect to this conclusion the only relief
granted was to strike down that portion of the memorandum by which D
the benefit of the liberalised pension scheme was conf"med to only
persons retiring on or after the specified date with the result the benefit
was extended to all retirees, irrespective of their date of retirement.
Once this position from the decision in Nakara is borne in mind, the
fallacy in the petitioner's contention becomes obvious and their ~laim
-""' based only on Nakara is rendered untenable. [167D-G] E

According to that decision, pension of all earlier retirees was to be

- recomputed as on the specified date in accordance with the liberalised
formula of computation. For this purpose there was no revision of the
emoluments of the earlier retirees under the scheme. It was clearly
stated that 'if the pensioners form a class, their computation cannot be F
___,. by different formula affording unequal treatment solely on the ground
-- that,some retired earlier and some retired later'. This according to us is
the decision in Nakara and no more. The question for decision is
whether the petitioner's claim flows from that decision and there is
nothing in Nakara to support such claim. There is no scope for enlarg-
ing the ambit of that decision to cover all claims by retirees or a demand G
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 purpo~ of computation of their pension be
different. [168C-D, F, 169B)
:'{
Claim for gratuity can be made only on the date of retitement on H
160 SUPREME COURT REPORTS [ 19911 1 S.CR.

the basis of the salary drawn then and being already paid on that
A footing the transaction was completed and closed. It could then be not
reopened as a result of the enhancement made at a later date for persons
retiring subsequently. [172G-HJ

From 1.1.1973 everyone is being paid D.A. bl addition to the
B pension. The reckonable emoluments which are the basis for computa-
tion of pension are to be taken on the basis of emoluments payable at the
time of retirement and, therefore, there is no ground tu include D.A ...t
a time when it was not paid. [173BJ

D.S. Nakara & Ors. v. Union of India, [1982) 2 SCR 165;
Krishna Kumar and Ors. v. Union of India & Ors., [1990) 4 SCC 207;
c Smt. Poonamal & Ors. v. Union of India & Ors., [1965) 3 SCC 345;
State Government Pensioners' Association and Oth~rs v, State of
Andhra Pradesh, [1986) 3 SCC 501 and Union of India v. Bidhub-
hushan Malik & Ors., [1984) ~ SCC 95, referred to,

D ORIGINAL JURISDICTION: Writ Petition Nos. 13550-55 of
1984. . .
. WITH
Writ petition Nos. 547,5011ncl 4524 of 1985,

E (Under Article 32 of the Constitution of India).

G. Viswanatha Iyer; K.L, Rathee, S, Balakrishnan, S. Prasad
and S.K. Sinha for the Petitioners,

Ashok H. Desai, Solicitor General, Anm Jaitley, Additional
-
f. Solicitor General, Maninder Singh, Ms, An.ii Katyar, C.\r.S, Rao and
Rajan N11r11in for the Respondents.

The Judgment of the Coµi:t was delivered by

VE;RMA, J. Tht;lse writ petitions by ex-servicemen are a sequal
G to the decision in D.S. Nakwa & Others v. Union of India, [1983) 2
S.C.R. 165, in w}lich the reliefs claimed are based iiolely on the deci·
sion in Nakara's case. The real point toi decision,· therefore, is
whether the reliefs claimed in these writ petitions flow as a necessary
QQrnUary to the decision in Nakara. This being the sole basis for the
>-·
reliefs claimed in these writ petitions, the petitioners can succeed only
H if this assumption by them is correct. Writ Petition Nos. 13550-55 of
EX-SERVICES LEAGUE v. U.0.1. [VERMA, ·1.J 161

1984 are by ex-servicemen who retired from a commissioned rank
while Writ Petition Nos. 547-50 of 1985 are by those who retired from A
below the Commissionep rank. Writ Petition No. 4524 of 1985 by an
ex-serviceman has been received by post and is substantially to the
same effect. Petitioner.No. 1 in the first two sets of writ petitions is a
Society representing the ex-servicemen while the other petitioners in
these writ petitions are ex-servicemen of the three wings of the Armed .B
Forces, namely, Army, Navy and Air Force. In order to appreciate the
contentions in these writ petitions, it would be appropriate to first
refer briefly to the decision in D.S. Nakara & Others v. Union of India,
[1983] 2 S.C.R. 165.

On May 25, 1979, Government of India, Ministry of Finance,
issued Office Memorandum No. F-19(3)-EV-79 whereby the formula C
for computation of pension was liberaiised but made applicable only to
civil servants who were in service on March 31, 1979 and retired from
service on or after that date. The liberalised pension formula intro-
duced a slab system, raised the ceiling and provided for a better aver-
age of emoluments for computation of pension and the liberalised D
scheme was made applicable to employees governed by the Central
Civil Services (Pension) Rules, 1972, retiring on or after the specified
date. The pension for the Armed Forces personnel is governed by the
relevant regulations. By the Memorandum of the Ministry of Defence
bearing No. B/40725/AG/PS4-C/1816/AD (Pension)/Services dated
September 28, 1979, the liberalised pension formula introduced for the E
civil servants governed by the 1972 Rules was extended to the Armed
Forces personnel subject to the limitations set out in the Memorandum
with a condition that the new rules of pension would be effective from
April 1, 1979 and would be applicable to all service officers who
become/became non-effective on or after that date. These memoranda
were Ex. P-1 and Ex. P-2 in Nakara. Consequently, the liberalised F
pension formula was made applicable prospectlveiy only to those who
retired on or after March 31, 1979 in case of c[vil servants covered 1972
Rules and in respect of Armed Forces personnel who became non-
effective on or after April 1, 1979. The result was that those who
retired prior to the specified date were not entitled to the benefits of
liberalised pension formula in view of the cut-off date of retirement G
specified in the Memoranda. This led to the filing of the writ petition
by D.S.' Nakara and others on behalf of retired civil servants and
personnei"of the Armed Forces wherein it was contended thatdifferen~
ti al treatment to the pensioners related to the date of retirement by the
revised formula for computation of pension was discriminatory and
violative of Article 14 of'the Constitution. The question for decision in H
162 SUPREME COURT REPORTS [ 1991) 1 S.C.R.

Nakara was whether the date of retirement is a relevant consideration
A for eligibility when a liberalised pension formula for computation of )..__
pension is introduced and made effective from a specified date result-
ing in denial of the benefits of the liberalised pension formula to
pensioners who had retired prior to the specified date.

B A Constitution Bench of this Court in Nakara after elaborately
·discussing the concept of pension, summed up the position thus:
,...--
"Pension to civil employees of the Government and
the defence personnel as administered in India appeal to be

c
a compensation for service rendered in the past ...... .

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 "T'
economic security in the fall of life when physical and
D 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 gave 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 / ' -
E 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
F practical raison d'etre for pension is the inability to provide ~
for oneself due to old.age. One may live and avoid unemp- _
loyment but not senility and penury if there is nothing to
fall back upon.

The discernible .purpose thus underlying pension
G scheme. or a statute introducing the pension scheme must
inform interpretative process and accordingly it should
receive ·a liberal construction and the courts may not so
interpre't such statute as to rerider them inane (see Ameri-
>--
can Jurisprudence 2d. 881)."

.k After summing up the concept ofpe~s_iQp. as above, the Constitu-
EX-SERVICES LEAGUE v. .U.O.I. [VERMA, J.] 163

tion Bench set out the challenge of the petitioners in that case and
indicated that the challenge was merely to that part of the scheme by
which its benefits were confined to_ those who retired from service after
a certain date. Even though, undoubtedly the benefit of the scheme is
available only from the specified date irrespective of the date of retire-
ment of the concerned Government servants, it was pointed out that
all pensioners irrespective of the date of their retirement constitute B
one class for grant of the .benefits of the liberalised pension scheme
--...,., and no further classification within them is permissible for this purpose
with reference to t_heir date of retirement. This was stated thus:

"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 c
class to be divided by arbitrarily fixing an eligibility criteria
unrelated to purpose of revision, and would such classifica-
tion be founded on some rational principle? The classifica-
tion has to be based, as is well settled, on some rational
principle and the rational principle must have nexus to the D
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 E
the liberalisatiou was considered necessary for augmenting
social security in old age to government servants then those
who retired earlier cannot be wrost off than those who
• _retired later. There(ore, this division which classified pen-
sioners into two classes is not based on any ra-tional princi-
ple and if the rational principle is the one of dividing F
pensioners with a view to giving something more to persons
otherwise equally placed, it would be discriminatory .

-- . . . . . . . . . . . . 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 G
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 Art. 14 is wholly violated inas-
much as the_pension rules being statutory in character, since
the specified date, the rules accord differential and discri- H
164 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

minr.t.tory treatment to equals in the matter of commutation
A of pension. A 48 hours difference in matter of retirement ;....._
would have a traumatic effect. Division is thus both
arbitrary and unprfncipTed. Therefore, the classification
does not stand the test of Art. 14."
(emphasis supplied)
B
The judgment then proceeded to show that there was no diffi-
culty .or inequity in granting the benefits of the liberalised pension --.,.-----
scheme to all retirees irrespective of the date of their retirement by
indicating as under: -

. . . . . . . . . . . Assuming the Government had not
c prescribed the specified date and thereby provided that
those retiring pre and post the specified date would all be
governed by the liberalised pension scheme, undoubtedly,
it would be both prospective and retroactive. Only the
pension will have to be recomputed in the light of the
D formula enacted in the liberalised pension scheme and effec-
tive from the·date of revised scheme comes into force. And
beware th;it .it is nf!f' ~w scheme, it is only a revision of
existing scheme. It 't a new retiral benefit. It is an
upward revision of ;isting benefit. If it was wholly new
conc~pt, a new retil:, Jenefit, one could have appreciated
E an argument that those who had already retired could not
except it. . ....... "

"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
F omitting the event happening after the specified date retain- '----
ing the more humane formula for computation of pension. It_
would apply to all existing pensioners and ft!:_ture 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 aftd the
G ·amount worked out within the floor and the ceiling. ""
.,
But we. make it abundantly clear that arrears are'nOt
required to be made (sic) because to that extent the scheme
is prospective. All pensioners whenever they retire would be
covered by ihe liberalised pension scheme, becaU.se the
H scheme is a scheme for payment of pension to ·a pensioner
EX~SERVICES.LEAGUE v. U.0.1. [VERMA, J.] 165

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 sub-
sequent to that date. In case of pensioners prior to the
specified date, their pension would be computed afresh and
would. be payable infuture commencing from the specified B
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 pen-
sioners because the emoluments are not revised. . ....... "
~; (emphasis supplied)

-
l

It was then pointed out that there is absolutely no difficulty in c
removing arbitrary and discriminatory portion of the scheme which is
only the portion confining its applicability to retirees subsequent to the
specified date since it could be easily severed. It was held that it would
be just and proper to retain the specified date for implementation of
the liberalised pension scheme while applying it equally to all pensio- D
ners irrespective of their date of retirement requiring the pension of
each to be recomputed as on the specified date and the future pay-
ments to be made in accordance with fresh computation under the
liberalised pension scheme as enacted in the impugned memoranda.
Thus all retirees irrespective of their date of retirement were treated as
constituting one Class entitled to the benefits of the liberalised pension E
to be recomputed as on the specified date according to the liberalised
formula requiring payment to be made prospectively from the
specified date of the revised amount. In other words, the benefit of the
liberalised pension formula was given equally to all retirees irrespec-

-- tive of the date of their retirement and for this purpose, recomputation
was required to be made as on the specified date on the basis of the F
emoluments payable on the actual date of retirement of each retiree.
The ultimate relief granted in Nakara is as under:

" . . . . . . . Omitting the unconstitutional part it is
declared that all pensioners governed by the 1972 Rules and
Army Pension Regulations shall be entitled to pension as G
computed under the liberalised pension scheme from the
specified date, irrespective of the date of retirement.
Arrears of pension prior to the specified date as per fresh
computation is not admissible. Let a writ to that effect be
issued ......... "
(emp!lasis supplied) H
166 SUPREME COURT REPORTS [ 1991] I S.C.R.

Consequent upon the decision in Nakara a G.O. No. F.1(4)/82/D
'A
(Pension/Services) dated 22.11.1983 in respect of personnel of the
I
_,.: .. _
Armed Forces below the Commissioned rank and G.O. No. 1(4)/82/1/D
(Pension/Services) dated 3.12.1983 in respect of Commissioned
Officers have been issued by the Government of India recomputing
the revised pension of pre-1.4.1979 retirees of the Armed Forces as on
B 1.4.1979 according to the liberalised pension scheme. This re-com-
putation has been made according to the liberalised pension scheme
contained in the Memorandum No. B/40725/AG/PS4-C/1816/AD
(Pension)/Services dated 28.9.1979, as it stood partially modified by
the decision in Nakara to implement the decision in Nakara giving the
same benefit of the liberalised pension scheme to all retirees irrespec-
c tive of their date of retirement. It is these two G.Os. which are
challenged in the present writ petitions. We may now state the conten-
tions raised in these writ petitions.
-
The Armed Forces personnel retiring from Commissi~ned ranks "'r.··
were represented by Shri G. Viswanatba Iyer, while the Armed Forces
D personnel retiring from ranks below the Commissioned rank were rep-
res.ented by Shri K.L. Rathee. The arguments of both of them are
substantially the same. According to learned counsel for the petitio-
ners, the resu~t of the decision in Nakara is that all retirees who held
the same rank irrespective of their date of retirement must get the
same amount of pension and this should be the amount which was
E calculated and shown in the appendices to the Memorandum (Ex. P-2)
challenged in Nakara. Admi~tedly, the appendices to that Memoran-
dum specified the computation of pension for different ranks of
retirees on or after 1.4.1979 made on the basis of the reckonable
emoluments on 1.4.1979. It is also admitted that the reckonable
emoluments for corresponding ranks on earlier dates were not the
F same to provide identical basis for recomputation of pension according
to the liberalised pension scheme of pre-1.4.1979 retirees. In subs-
tance, even though learned cm,msel for the petitioners do not say so,
the arguments amount to the claim of 'one rank, one pension' for all
retirees of the Armed Forces irrespective of their date of retirement. It
is also admitted that prior to this liberalised pension scheme, the
G pension amount of the earlier retirees from the same rank was not the
same irrespective .of their date of retirement or in other words, the
principle of 'one ljank, one pension'·did not apply earlier. It was stated
at the Bar that ,fheh demand of 'one rank, one pension' is pending
consideration of the Government of India as a separate issue. It is,
therefore, clear that unless the petitioner's claim in substance of 'one
H rank, one pension' can be treated as flowing from the relief granted in
EX-SERVICES LEAGUE v. U.0.1. [VERMA, J.] 167

I
Nakara, the reliefs claimed in these petitions though differently
A
~ worded cannot be granted. It is for this reason that learned counset
avoided describing the reliefs claimed herein as claim of 'one rank, one
pension', even though they were unable to tell us how, if at all, the
reliefs claimed in these petitions can be construed differently.

The learned Solicitor . General in reply contended that the B
impugned G.Os. in the present case were issued in implementation of
- -..,.-
/ the decision in Nakara and the challenge to them on the basis of
Nakara decision, is· untenable. The learned Solicitor General con-
tended that the petitioner's claim herein arises out of a mis-reading of
Nakara and the general observations therein have to be read in the
context in which they were made. The Learned Solicitor General sub-
mitted in all fairness that in spite of this stand of the Government of c
India if any error in recomputation of the revised pension is pointed
out, the Government of India would promptly correct the error, if any,
since that is only a matter of calculation.

Having heard both sides at length and after giving out anxioµs D
consideration to the matter, we have reached the conclusion that the
claim of the petitioners in the present writ petitions is untenable and it
proceeds on a mis-reading of the Nakara decision.

The conclusion of the Constitution Bench in Nakara was that the
benefits of liberalisation and the extent thereof given in accordance E
with the liberalised pension scheme have to be given equally to all
retirees irrespective of their date of retirement and those benefits can
not be confined only to the persons who retired on or after the
specified date because for the purpose of grant of the benefits of

- liberalisation in pension, all retirees constitute one class irrespective of ·
their date of retirement. In order to give effect to this conclusion the F
only relief granted was to strike down that portion of the memoranda
by which the benefit of the liberalised pension scheme was confined
only to persons retiring on or after the specified date with the result
that the benefit was extended to all retirees, irrespective of their date
of retirement. Once this position emerging from the decision in
Nakara is borne in. mind, the fallacy in the petitioner's contention in G
these writ Qetitions becomes obvious and their claim based only on
Nakara is untenable. ·

The liberalised pension scheme in the context of whkh the deci-
sion was rendered in Nakara provided for computation of pension
according to a more liberal formula under which "average emolu- H
168 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

ments" were determined ~ith reference to the last ten months' salary
A instead of 36 months' salary provided earlier yielding a higher average,
coupled with a slab system and raising the ceiling limit for pension.
This Court held that where the mode of computation of pension is
liberalised from a specified date, its benefit must be given not merely
to retirees. subsequent to that date but also to earlier existing retirees
B irrespective of their date of retirement even though the earlier retirees
would not be entitled to any arrears prior to the specified date on the
basis of the revised computation made according to the liberalised
formula. For the P\lrpose of such a scheme all existing retirees
irrespective of the date of their retirement, were held to constitute one
class, any further division within that class being impermissible.
According to that decision, the pension of all earlier retirees was to be
C recomputed as on the specified date in accordance with the liberalised
formula: of computation on the basis of the average emoluments of
each retiree payable on his date of retirement. For this purpose there
was no revision of the emoluments of the earlier retirees under the
scheme. It was clearly stated that 'if the pensioners form a class, their
D computation cannot be by different formula affording unequal treat-
ment solely on the ground that some retired earlier and some retired
later'. This according to us is the decision in Nakara and no more.

Ordinarily, it would suffice to mention the gist of Nakara deci-
sion without extensively quoting therefrom. However, we have done ~
E so for the reason that the impassioned plea of Shri G. Viswanatha Iyer,
learned counsel appearing for the Army Officers which was reiterated
with an added emotive appeal by Shri K.L. Rathee, appearing for the
remaining ranks of Armed Forces seems to suggest that denial of
petitioner's claim amounts to mis-reading the Nakara decision and
refusal of the logical relief flowing therefrom. It is only to dispel this
F incorrect impression we have quoted from Nakara at some length. We
have merely to decide whether the petitioner's claim flows from the -
decision in Nakara and we are unable to find anything in Nakara to
support such claitn.. ·

Nakara decision came-up for consideration bef6re another Con-
·o stitution Bench recently in Krishena Kumar and Others v. Union of
India and Others, '[1990] 4 S.C.C. 207. The petitioners in that case
.were-retired Raihvay:empfoyees who were covered by or opted for the-- }--
~aHway Contributory Provident Fund Schem~. It wa~.J:i~ld that P.F.
retirees andpension retirees constitute different classes and it was -
never held in Nakara that pension retirees and P.F. retirees formed a
1:1 homogeneous class, even though . pension retirees alone did constitute
EX-SERVICES LEAGUE v. U.0.1. [VERMA, J.) 169

a homogeneous class within which any further classification for the
A
purpose of a liberalised pension scheme was impermissible. It was
pointed out that in Nakara, it was never required to be decided that all
the retirees for all purposes formed one class and no further classifica-
tion was permissible. We have referred to this decision merely to
indicate that another Constitution Bench of this Court also has read
Nakara decision as one of limited application and there is no scope for B
·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 computa--
'y' tion of their pension be different.
\

At attempt was made by learned counsel for the petitioners to c
confine this meaning of Nakara only to.civilian retirees. It was con-
tended that the position in the case of ex-servicemen was different. It
was urged that for the ex-servicemen, the relevant Memorandum
(Ex. P-2) dated 28.9.1979 which contained appendices showing the
calculation of pension for each rank had to be equally applied to pre- D
1.4.1979 retirees since the only portion struck down in the Memoran-
dum was the offending cut-off date confining the grant of the benefits
of the liberalised pension scheme to those retiring after the specified
date. In our opinion, no such distinction in the case of ex-servicemen
can be made. A perusal of the Memorandum dated 28.9.1979 shows
that it was the consequent action to liberalisation of the pension E
formula for civil servants extending the same benefit to the Armed
Forces with no further addition. Appendices 'A', 'B' and 'C' to this
Memorandum merely indicated the computation of the pension made
for each rank according to the revised liberalised pension formula, the
rates being calculated on the basis of emoluments payable for those
ranks on 1.4.1979 since the Memorandum was confined in application F
only to service officers retiring on or after 1.4.1979. In. that
Memorandum, therefore, no occasion arose for computaton of revised
pension for pre-1.4.1979 retirees. It is only as' 'a result of the Nakara
decision holding that the same liberalised pension formula for compu-
tation would apply to all pre-1.4.1979 retirees also that the question of
re-computation of the pension of the earlier retirees on the basis of the G
liberalised formula arose and this is what has been done in the G.Os.
dated 22.11.1983 and 3.12.1983 challenged in these writ petitiohs. It is
a mis-reading of the Memorandum dated 28.9.1979 to contend that the
appendices to that Memorandum became automatically applicable
even to pre-1.4.1979 retirees as a result of the Nakara decision. That
amounts to reading something in that decision which would be con- H
trary to its ratio.
170 SUPREME CjOURT REPORTS [ 1991] 1 S.C.R.

The Memorandum dated.28.9.1979 which was Ex. P-2 in Nakara
A and on which the petitioners' claim rests is as under:

''IMMEDIATE

No. B/40725/AC/"f>S4(c)/1816/A/D/(Pension/Services)
B
Government Of India/Bharat Sarkar, Ministry of
Defence/Raksha Mantralaya, New Delhi, the 28th Septem-
ber, 1979, ·

Tu
c The Chief of the Army Staff. ,...
The Chief of the Naval Staff.
The Chief of the Air Staff.

Subject: Liberalisation ef the Pension Formula-Introduc-
D tion of Slab System in respect of Army Officers
(Other than Officers of the Military Nursing_
Services) and Corresponding Officers of the Navy
and Air Force.

Sir,
.. i - _
E
I am directed to state that Government have issued
orders vide Ministry of Finance (Department of Expendi-
ture) O.M. No. F. 19(3),EV/79, dated the 25th May, 1979
for determining pension of the Central Government Civil
servants on slab system given below:
F ~

(a) Upto first Rs.1000 of
Amount of monthly pension
___,
50% of average emoluments
average emoluments
reckonable for pension

G (b) Next Rs.500 of 45% of average
average emoluments emoluments
(c) Balance of average
emoluments
40% of average
emoluments >-
Consequent upon the introduction of the slab system for
H detern#nin_g pension as above, the President is pleased to
EX-SERVICES LEAGUE v. U.0.1~ [VERMA, J.] 171

modify the rates of pension of Army Officers (excluding the A
i officers of the Military Nursing Services) and correspond-
-~
ing officers of the Navy and Air Force as given in Al 3/9/76
and corresponding Naval and Air Force Instructions, and
Ministry of Defence letter No. F.1(8)/70/D (Pension/
Services), dated the 17th July, 1975 in the case of rate of
pension in respect of Chiefs of Staff, on the same basis and B
the revised rates of pension are as shown in Appendices
./
'A', 'B' and 'C' respectively, attached to this letter .
-"'!"'·
2. The new rates of pension are effective from 1st April, '

..
1979 and will be applicable to all ser•.,ice officers who
became/become non-effective on or after that date.
.c
3. The Pension Regulations for the· three Services will
be amended in due course.

4. This issues with the concurrence of the Ministry of 1

Finance (Defence) vide their u.o. No. 2682/Pen of 1979.
D
Yours faithfully,
Sd/-
(Shiv Raj Nafir)
Under Secretary to the Govt. of India"
E
(emphasis supplied)

- The significant words in this Memorandum after referring to the
Memorandum dated 25.5.1979 for determining pension of the civil
servants according to the liberalised pension formula on the slab
--? _ system based on 'average emoluments reckonable for pension' are as F
under:
'r "Consequent upon the introduction of the slab system for
determining pension as above, the President is pleased to •
modify the rates of pension of Army Officers ....... and
corresponding officers of the Navy and Air Force .... on
G
the same basis ....... "

The above words leave no doubt that by this Memor~ndum the
personnel of Armed Forces were extended the same benefit of libera- ·
lised pension formula for computation of their pension as was given to.
the civil servants 'on the same basis'. The words which follow there- · H
after indicate that appendices 'A', 'B' ·and 'C' attached to the
172 · SUPREME COURT REPORTS [ 1991] 1 S.C.R.

Memorandum specified the revised rates of pension calculated on the
A
liberalised basis for each rank on the basis of reckonable emoluments
payable as on 1.4.1979 since the memorandum when issued confined
the benefits of the liberalised scheme only to post-1.4.1979 retirees.
There is no scope for· reading these appendices torn out of the con-
text of the Memorandum in its original form to which· they were
B appended. So read, it is obvious that the calculations given in the
appendices 'A', 'B' and 'C' to this Memorandum contain the computa-
tion according to the liberalised formula for each rank of the three
wings of the Armed Forces for post-1.4.1979 retirees only. It follows
that a result of the Nakara decision when the benefit of the liberalised
pension scheme was made applicable even to pre-1.4.1979 retirees of
the Armed Forces, computation according to the liberalised formula
c for pre-1.4.1979 retirees had to be made in the same manner as it was
done for post-1.4.1979 retirees and shown in appendices 'A', 'B' and
'C' to this Memorandum. This was done by the impugned G.Os. dated
22.11.1983 and 3.12.1983.

D · The petitioners' claim that all pre-1.4.1979 retirees of the Armed
Forces are entitled to the same amo~t of pension as shown in
appendices 'A', 'B' and 'C' for each ranW is clearly untenable and does
1
not flow from the Nakara decision. • ·

We may now deal with the remaining contentions. In Writ Peti-
tion No. 4524 of 1985, one of the reliefs claimed is for family pension.
E
It has been pointed out by the learned Solicitor General that provision
has been made for the same by the Government of India (Ministry of
Defence) in Memorandum No. F.6(2)/85/1689/B/D (Pension/Ser-
vices) dated 8.8.1985 which has been issued in compliance of this
Court's decision in Smt. Poonamal and Others v. Union of India and
--
Others, (1985] 3 S.C.C. 345). That grievance no longer survives. Other
F
reliefs claimed in this writ petition by an ex-serviceman. are the same as
in other writ petitions.

One of the prayers made in these writ petitions is for grant of
same Death-cum-Retirement Gratuity to the pre-1.4.-1979 retirees as
to the post-1.4.1979 retirees. A similar claim was rejected by this
G Court in State Government Pensioners' Association and Others v. State
of Andhra Pradesh, (1986] 3 S.C.C. 501' Q_n the ground that the claim
for gratuity can be made only on the date of retirement on the basis of )--
the sala_ry drawn on the date of retirement and being already paid on
that footing the transaction was completed and closed. It could then
not be reopened as a result of the enhancement made at a later date for
H
p~rsons retiring subseq~ently. This concept of gratuity being different
EX-SERVICES LEAGUE v. U.0.I. !VERMA, J.] 173

from pension has also been reiterated by the Constitution Bench in
Krishena Kumar's case. With respect, we ar.e in full agreement with A
this view. This claim of the petitioners also, therefore, fails.

Another claim made is for merger of D.A. backwards also. From
1. 1. 1973 everyone is being paid D .A. in addition to the pension. The
reckonable emoluments which are the basis for computatiop of pen- B
sion are to be taken on the basis of emoluments payable at the time of
retirement and, therefore, there is no ground to include D .A. at a time
when it was not paid. This claim also is untenable.
Learned counsel for the petitioners referred to certain decisions
which it is unnecessary to consider at length since they were cited only
for reading the Nakara decision in the manner suggested by petitio- c
ners. The decision of this Court Union of India v. Bidhubhushan Malik
and Others, [1984) 3 S.C.C. 95 by which special leave petition was
dismissed against the decision of the Allahabad High Court reported
..,. in AIR 1983 Allahabad 209 is also of little assistance in the present
case. This Court while dismissing the special leave petition upheld the
Allahabad High Court's view that the liberalised pension became D
operative under the High Court Judges (Conditions of Service)
(Amendment) Act, 1976, from 1.10.1974 and applied to all retired
High Court Judges irrespective of the date of their retirement and
there is no question of payment of arrears of pension for the period
preceding 1.10.1974. We are unable to appreciate the relevance of this
case to support the petitioners' claim in these writ petitions. E

-
The learned Solicitor General has stated that the impugned
G. Os. dated 22 .11. 1983 (Annexure I) and dated 3. 12. 1983 ( Annexure
II) issued by the Government of India (Ministry of Defence) in the
present case are based on re-computation of pension of pre-1.4.1976
retirees of Armed ·Forces according to the liberalised pension scheme F
consequent upon the decision in Nakara. He also added that if any
error in computation is pointed out in respect of any particular person
or rank or otherwise, the same would be promptly corrected. On the
above view taken by us, the prayer made in these writ petitions for
quashing these orders has to be· rejected. For the same reason, its
corollary that the same amount of pension be paid to all pre-1.4.1979 G
retirees of Armed Forces as to post-1.4.1979 retirees must also be
rejected.
Consequently, these writ petitions fail and are dismissed. No
costs.
R.N.J. Petitions dismissed