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2016 Supreme(Del) 481
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT & DEEPA SHARMA, JJ.
EX-SERVICEMEN WELFARE UNION AND ANR. - Petitioners
Versus
UNION OF INDIA & ORS. - Respondent
W.P.(C) 1335/2012
Decided On : 29.01.2016
Mr. Karan Singh Bhati with Mr. Dilip Kumar, Advocates.
Ms. Barkha Babbar with Ms. Dipanjali Tyagi, Advocates.
A date-based classification can be discriminatory and violative of Article 14 of the Constitution if it is not founded on an intelligible differentia having a rational relation to the object sought to be achieved.
Headnote:
SPECIAL FRONTIER FORCE (SFF) - PENSION AND PENSIONARY BENEFITS - CUT-OFF DATE - DISCRIMINATION - CLASSIFICATION - RATIONALITY - ARTICLE 14 - CONSTITUTION OF INDIA - LIBERALIZATION OF PENSION SCHEME - RETROSPECTIVE EFFECT - PARITY WITH INDIAN ARMY PERSONNEL - COMMUTED VALUE OF PENSION - RESTORATION - WRIT PETITION - DIRECTIONS.
Fact of the Case:
SFF personnel, who served the nation at the border along with Indian Army personnel, sought pension and pensionary benefits at par with Indian Army personnel. The Central Government granted complete parity with Indian Army personnel retiring after 01.01.2009, but imposed a cut-off date, denying the same benefits to pre-01.01.2009 retirees. The petitioners challenged this cut-off date as discriminatory and violative of Article 14 of the Constitution.
Finding of the Court:
The Court held that the impugned order introducing the cut-off date was discriminatory and violative of Article 14 of the Constitution. It observed that the SFF personnel had performed the same duties and stood to benefit in terms of rank parity with Army personnel since 1985. The Court found no justification for the differentiation based on the cut-off date, as it was not related to the object sought to be achieved, i.e., monthly payment of pension. The Court also noted that the petitioners had already received a one-time lump sum payout under the earlier scheme and that directing the Union to make full payments to them at the prevailing rates would burden it.
Issues: 1. Whether the cut-off date imposed by the Central Government for the grant of pension and pensionary benefits to SFF personnel was discriminatory and violative of Article 14 of the Constitution? 2. Whether the petitioners were entitled to parity with Indian Army personnel in terms of pension and pensionary benefits, despite retiring before the cut-off date?
Ratio Decidendi: 1. A date-based classification can be discriminatory and violative of Article 14 of the Constitution if it is not founded on an intelligible differentia having a rational relation to the object sought to be achieved. 2. If an existing pension scheme is liberalized or improved, all those to whom the scheme applied (regardless of their date of superannuation) would be entitled to the benefit. 3. The mere fact that the introduction of a new scheme may result in increased financial burden is not a valid ground for imposing a cut-off date and denying benefits to those who retired earlier.
Final Decision: The Court allowed the writ petition and directed the respondents to issue a Circular restoring the commuted value (45% of the commuted equivalent of pension of an Indian Army personnel) to all pre-01.01.2009 retirees, upon the completion of 15 years from the date of their superannuation. The restoration was to be made effective from the date of the scheme, i.e., 01.01.2009, and given to all those entitled to it, within 4 months from the date of the judgment. The SFF personnel were entitled to the arrears, however, from 01.12.2011, i.e., proximate to the date of the rejection of the petitioners’ representation, leading to the filing of the writ petition.
S. RAVINDRA BHAT, J.
1. In this petition, the grievance urged is that of cut-off date (of 01.01.2009) envisioned by the order of the Cabinet Secretariat, Central Government dated 16.10.2009 granting pension and pensionary benefits to Special Frontier Force “SFF” personnel “at par with the Indian Army Group ‘Y’ PBORs”. They further seek consequential directions that pre 01.01.2009 veterans/retirees of the SFF should be granted service pension in accordance with the said order of 16.10.2009, disregarding the cut-off date. In short, the petitioners’ claim that by imposing the cut-off date for the reimbursement of pensionary and other retirement benefits, the Central Government has discriminated against the pre 01.01.2009 retirees.
2. SFF was created in the wake of the Chinese aggression in 1962 and was initially comprised only of Tibetans. Later Nepali Gurkhas too were recruited in the SFF - from 1965. The SFF was not treated as part of the Indian Army. In August 1971, for the first time, the Central Government provided terminal benefits to members of the Force introducing gratuity @ one month’s salary for each completed year of service to those serving for a minimum of two years, by Memorandum dated 26.08.1971. By a subsequent policy - embodied in the Cabinet Secretariat letter dated 20.11.1985, the Central Government enhanced the terminal benefits to 45% of the commuted value of service pension admissible to Indian Army personnel, to members of the SFF who completed at least 20 years service.
The relevant extract of the said order reads as follows: -
“……the President is pleased to sanction in addition to the retirement benefits indicated in this Secretariat letter dated 26th August, 1971, a lumpsum payment to the leaders/trainees of SFF, who retire rendering 20 years’ or more of service equivalent to the commuted value of 45% of service pension admissible to the Army personnel. The amount of service pension will be as specified in Annexure-II to Ministry of Defence letter No.B/38069/AG/PS4 (a)/222/C/D (Pen/Services) dated 22nd January, 1985, and Annexure IV to Ministry of Defence letter No.B/33070/AG/PS4(a)/513/C/D (pen/service) dated 22nd February 1985 and as may be revised from time to time in respect of personnel shown against serial No.3 to 9 and serial No.1 and 2 detailed below respectively. For this purpose, the SFF personnel will be treated as equivalent to the Army rank indicated in column 3 of the table below:
Sl.No.
SFF Rank
Army Rank
1
Rapon
Hon. Captain
2
Rupon
Hon. Lt.
3
Pol. Leader
Sub. Major (Group-D)
4
Asstt. Po. Leader/Coy. Leader
Subedar (Group-D)
5
Dy. Leader
Nb. Subedar (Group-D
6
Asstt. Leader Class.I
Havildar (Group-D)
7
Asstt. Leader Class-II
Naik (Group-D)
8
Asstt. Leader Class-III
L/Naik (Group-D)
9
Trainees
Sepoy (Group-D)
10
Tibetan Female Nursing Assistant
Male Nursing Assistants (Group ‘C’)
An Illustration, how to work out the lumpsum payment on pension commutation formula is enclosed for guidance.
The expenditure involved in payment of the lumpsum amount as per para I above, will be debited to the Major Head “266 – Pension and other retirement benefits commuted value of pension “whereas the expenditure on payment of service gratuity in terms of this Secretariat letter dated 26th August, 1971, will be classified to the same Major Head, i.e., “266 – Pension and other retirement benefits – Gratuities.”
3. These orders will take effect from 6th of May, 1985.”
3. By another order - dated 23.05.1996 - the Central Government acting through the Cabinet Secretariat enhanced the lump sum pensionary benefits by including dearness allowance and interim relief components for the purpose of calculation of the commuted value admissible at that time (i.e. at the time of discharge of the SFF personnel). Furthermore, the said
