Holding

The Supreme Court held that, because the pension scheme is governed by the 1971 Rules and the definition of ‘emoluments’ was not amended, pre‑1986 retirees cannot have their pension recalculated on the revised pay scales; Nakara does not mandate equal quantum of pension for all retirees.

Summary

The State of West Bengal revised the pay scales of its government employees effective 1 January 1986 under the West Bengal Services (Revision of Pay & Allowances) Rules, 1990, and issued a memorandum in 1990 to compute pension for retirees on the basis of the notionally revised scales. Pre‑1986 retirees, represented by the West Bengal Government Pensioners Association, claimed that they were entitled to the same pensionary benefits as post‑1986 retirees, invoking the Supreme Court’s decision in D.S. Nakara v. Union of India. The Finance Secretary rejected the claim, holding that the pension formula (50 % of last drawn pay) was the same for all and that the Fourth Central Pay Commission had provided a separate dearness‑allowance formula for pre‑1986 retirees. The Calcutta High Court, relying on Nakara, directed the State to grant equal pension benefits, a decision the State appealed. The Supreme Court held that pension is governed by the West Bengal Services (Death‑cum‑Retirement) Rules, 1971, which fix pension on the ‘emoluments’ defined as the last pay drawn before retirement; the 1990 Rules revised pay scales but did not amend the definition of emoluments. Consequently, pre‑1986 retirees are not entitled to a recalculated pension on the revised scales, and Nakara does not require parity of pension amounts. The Court allowed the appeal and set aside the High Court order.

Issues considered

Whether the decision in D.S. Nakara v. Union of India obliges the State to compute pension of pre‑1986 retirees on the revised pay scales under the 1990 Rules.
Whether the cut‑off date of 1 January 1986 for the pay‑revision is arbitrary or violative of Article 14.
Whether the pension scheme can be altered without amending the definition of ‘emoluments’ in the 1971 Death‑cum‑Retirement Rules.

Legislation cited

Administrative Tribunals Act, 1985

Subjects

service lawpensionpay revisioncut‑off dateequalityArticle 14D.S. Nakara principleWest Bengal Services Rulesemolumentsadministrative tribunal

Judgment

STATE OF WEST BENGAL AND ANR. A
v.
WEST BENGAL GOVT. PENSIONERS ASSOCIATIONS AND ORS.

JANUARY 7, 2002

[G.B. PATTANAIK AND RUMA PAL, JJ.] B

Service Law:

West Bengal Services (Revision of Pay and Allowances) Rules, 1990: C
West Bengal Services (Revision of Pay and Allowances) Rules, 1998: West
Bengal Services (Death-cum-Retirement) Rules, 1971:

Pension-State of West Bengal-Oovernment Employees-Revision of
pay scales-Pension calculated on the revised scales of pay-Benefit a/-
Prescription of cul off date for-Validity of-Validity ofprescription of cut off D
date depends upon relevancy of consideration underlying choice of such
date.

The pay scales of Government employees of the State of West Bengal
were revised w.e.f. 1st January, 1986 under the West Bengal Services
(Revision of Pay & Allowances) Rules, 1990. Employees who were in service E
on 1.1.86, even though they had retired before the Rules were published, were
covered by it. Their pay was to be revised notionally and a memorandum was
+
issued on 25th April, 1990 giving them pensionary benefits calculated on the
basis of such notionally revised scales of pay. The claim of the respondent-
association for calculation of pension payable to pre-1.1.86 retirees on the F
basis of the revised pay scales was rejected by Secretary of the Finance
Department. The Finance Secretary held that the State Government had
adopted the same formula for computation of pension of all the pensioners
irrespective of the date of retirement, namely, 50% of last pay dl"awn by the
incumbent before retirement. Since those who had retired prior to the date of
revision of pay scales could not avail themselves of the revised pay scale, the G
Fourth Central Pay Comniission evolved a formula to give the pre-1986 retirees
Dearness Allowance on the basis of 608 point Consumer Price Index (CPI).
The revised pay scales were on the basis of 608 point CPI being merged with
on-revised pay. The State Government had issued notification no. 7532-F dated
6th April, 1988 by which it had suitably removed the disparity and H
1
2 SUPREME COURT REPORTS [2002] l S.C.R.

A discrimination among all classes of pensioners irrespective of their date of
retirement.

The application filed by the respondent-Association for quashing the
Finance Secretary's order and directions to the State Government to give equal
pension and pensionary benefits to all pensioners irrespective of their date of
B retirement was rejected by the West Bengal Administrative Tribunal.
Thereafter, the Respondent-Associ~tion filed a writ petition before the High
Court which held that in view of the decision in *D.S. Nakara 's case, the
Members of the Association were entitled to the pensionary benefits as were
t
paid to post-1986 retirees. The question in this appeal is whether the decision
C of this Court in *D.S. Nakara's case obliges the appellant to pay pension
calculated on the revised scales of pay under the R.O.P.A. Rules, 1990, to all
the erstwhile emj>loyees of the State Government irrespective of their date of
retirement.

The appellant-State submitted that the pre-1986 retirees were not
D entitled to re-calculation of pension on the basis of the revised pay scale. It
l
was contended that there was no revision of pay of employees who had retired
prior to 1.1.1986 notionally or otherwise; in keeping with the Nakara
principle the formula for calculation for pre-1.1.86 and for post 1.1.1986
retirees, namely, 50% of the last pay drawn was the same. Additionally, all
E retirees were getting Dearness Allowance commensurate with the consumer
price index. On behalf of the appellant-State, it was also contended that after
the West Bengal Services (Revision of Pay and Allowances) Rules, 1998 came
into force all pensioners whether pre or post -1986 were entitled to revision •
of their pension based upon a notional fixation of pay as on 1.1.1986 by
adopting the same formula as for the serving employees but with effect from
F 1.1.1996. Therefore, the dispute in the appeal is confined to the formula
applied to the period 1.1.86 to 31.12.1995 when the R.O.P.A. Rules, 1990 were
in operation.

Allowing the appeal and setting aside the impugned order of the High
G Court, the Court

HELD: I. The respondents' case is based upon a failure to distinguish
between the pension scheme on the one hand and the revised pay scales on
the other. Pension Schemes are based on the West Bengal Services (Death-
cum-Retirement) Rules, 1971, which were framed under Articles 309. These
H Rules provide that a Government servant's claim to pension is regulated by
STATE OF WEST BENGAL 1•. WEST BENGAL GOVT. PENSIONERS ASSOC. J
the rules in force at the time the G'Jvernment servant resigns or is discharged A
from service on retirement or otherwise. Therefore, unless there is a change
in the emoluments as defined in the 1971 Rules, pension will continue to be
pegged to the pay drawn by the employee immediately before his retirement.
This has not been done as far as the pre-1986 retirees are concerned by the
1990 R.O.P.A. Rules. (9-C-D; F)
B
2. The R.O.P.A. Rules, 1990 were based upon the recommendation of
the Third State Pay Commission which revised the pay scales and other
benefits of the employees and also recommended that the Pay Commission's
report should be made effective from 1.1.1986 because that was the date from
which the Central Government employees and the employees of a large C
majority of other states had got the benefit of revised emoluments. Consequent
upon the revision of the pay scales with effect from 1.1.1986 the pensionary
benefits in respect of those State Government employees whose pay had been
fixed under the R.O.P.A. Rules, 1990 were also recalculated. In respect of
those employees who had retired after 1.1.1986, their pensionary benefits were
revised notionally on the basis of the revised pay, also fixed notionally, in D
terms of the R.O.P.A. Rules, 1990 by Memorandum No. 4056-F dated 25th
April, 1990. However, the definition of the word 'emoluments' in the 1971
Rules was not amended. As such pension continued to be calculated on the
basis of emoluments as defined in the 1971 Rules, namely, the last pay drawn
immediately prior to retirement. The pay of the pre-1986 pensioners was not E
revised. The Third Pay Commission had given a reason for choosing 1.1.1986,
as the cut off date. Merely because a ·cut off date is fixed, it would not make
the exercise invalid although persons in the service immediately before the
cut off date would be deprived of the benefit of the revised scales of pay. It
would depend upon the relevancy of the consideration underlying the choice
of such date. The reason stated by the Third Pay Commission cannot be said F
to be arbitrary or irrelevant. (9-F; 10-F-G)

Krishena Kumar v. Union of India and Ors., (1990) 4 SCC 207 and
Union of India v. P.N. Menon & Ors., (1994) 4 SCC 68, relied on.
G
3. Since the scales of pay had been revised from 1.1.1986, the re-
computation of pension for such employees as had been granted, the revised
scales of necessity was limited to the same cut off date. All that the impugned
Memorandum No. 4056-F dated 25th April, 1990 did was to re-compute the
benefits in favour of post-1.1.1986 retirees according to the existing formula
as provided by Memorandum No. 7530-F and No. 7531-F both dated 6th July, H
4 SUPREME COURT REPORTS [2002] 1 S.C.R.

A 1988. The same formula continues to be applied to the pre-1986 retirees. The
difference between pre-1986 pensioners and the post-1986 pensioners is only
on account of the revision of pay scales and not on account of failure of State
Government to equitably apply the liberalised pension scheme formula. The
quantum of the emoluments formed no part of the formula for grant of pension
B during 1986 to 1995. Consequently in the present case for the period, namely,
pre-1.1.1986 to 31.12.1985 when the definition of 'emoluments' was not
amended and pension continued to be calculated on the basis of the unrevised
emoluments of the pre-1986 pensioners, no parity in the amount of pension
can be granted. [10-H; 11-A-B; 12-E)

C *D.S. Nakara v. Union of India, [1983] I SCC 305, explained.

Commander Head Quarter, Calcutta and Ors. v. Capt. Biplabendra
Chanda, [1997) 1 SCC 208; Union of India & Ors. v. Dr. Vijaypurapu
Subbayama, [2000) 7 SCC 662; V.N. Kasturi v. Managing Director, State Bank
ofIndia, Bombay and Anr., [1988) 8 SCC 30; Indian fa-Services League and
D Ors. v. Union ofIndia, [1991] 2 SCC 104 and K.L. Rathee v. Union ofIndia &
Ors., [1997] 6 SCC 7, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 378of1999.

From the Judgment and Order dated 13.5.98 of the Calcutta High Court
E in W.P.S.T. No. 112 of 1997.

Bhaskar P. Gupta,.Rana Mukherjee and J. Kar, Ms. Sumita Mukherjee for
the Appellants.

F S.B. Sanyal, R.K. Gupta, S.K. Gupta, A.N. Bardiyar, Ms. Manita Verma,
D. Bharuka, Mrs. Indra Sawhney, Mrs. Anil Katiyar, Mr. S. Wasim A. Qadri
and Ms. Sushma Suri for the Respondents.

The Judgment of the Court was delivered by

G RUMA PAL, J. The issue to be decided in this appeal is whether the
decision of this Court in D.S. Nakara v. Union of India' obliges the appellant
to pay pension calculated on the revised scales of pay under the West Bengal
Services (Revision of Pay and Allowances) Rules, 1990, to all the erstwhile
employees of the State Government irrespective of their date of retirement.

H '(1983] 1 sec Jos.
STATE OF WEST BENGAL 1·. WEST BENGAL GOVT. PENSIONERS ASSOC. [RUMA PAL, J.] 5

The West Bengal Services (Revision of Pay & Allowances) Rules, 1990 A
(referred to hereafter as the 1990 'ROPA Rules'), inter-alia, revised the pay
scales of State Government employees w.e.f. !st January 1986. It covered
those employees who were in service on 1.1.86 even though such employees
may have retired before the 1990 ROPA Rules were in fact published. As far
as these retired employees ~ere concerned, their pay could only be revised
notionally and a memorandum was issued on 25th April 1990 giving them B
pensionary benefits calculated on the basis of such notionally revised scales
of pay.

The notification was challenged by the respondent-association, the
members of which are all pre-1986 retirees. They filed a writ petition before C
the Calcutta High Court claiming that they too were entitled to the same
benefits as the post 1986 retirees ..The petition was disposed of by a learned
Single Judge by directing the Secretary of the Finance Department to consider
the claim of the association in the light of the judgment in D.S. Nakara after
giving the association a chance of being heard and by passing a speaking
order. D
In compliance with the directive of the High Court, the Secretary, Finance
Department heard the members of the association. By an order dated 26th
April, 1993, the Finance Secretary held that D.S. Nakara 's decision only
directed parity in the principle of calculation of pension and not parity in the
actual quantum of pension payable. It was held that the State Government E
had adopted the same formula for computation of pension of all the pensioners
irrespective of the date of retirement, namely, 50% of last pay drawn by the
incumbent before the retirement. Since those who had retired prior to the date
of revision of the pay scales could not avail themselves of the revised pay
scales, the Fourth Central Pay Commission evolved a formula to give the pre- F
1986 retirees Dearness Allowance on the basis of the 608 point consumer
price index (CPI). The order noted that the revised pay scales were also on
the basis of 608 point CPI being merged with un-revised pay . According to
the Finance Secretary, the State Government had issued a notification 7532-
F dated 6th April 1988 by which the State Government, had suitably removed
the disparity and discrimination among all classes of pensioners irrespective G
of their date of retirement. The claim of the association for calculation of
pension payable to pre-1.1.86 retirees on the basis of the revised pay scales
was accordingly rejected.
Impugning the decision of the Finance Secretary the respondent-
association filed a second writ application before the High Court in which it H
6 SUPREME COURT REPORTS [2002] 1 S.C.R

A was, inter-alia, claimed that the Finance Secretary's order should be quashed
and the State-respondents should be directed to give equal pension and
pensionary benefits to all pensioners irrespective of their date of retirement.

By reason of promulgation of the Administrative Tribunals Act 1985,
the second writ petition was transferred to the West Bengal Administrative
B Tribunal. The Tribunal rejected the application of the association. The
Tribunal's order was challenged by the respondent association before the
Division Bench of the High Court by a third application under Article 226 of
the Constitution. This writ application was decided in favour of the association
by an order dated 13th May 1998. It was held by the High Court that in
C keeping with the decision in D.S. Nakara's case, the members of the association
were entitled to the pensionary benefits as were paid to post-1986 retirees.
The decision of the High Court has now been impugned before us by the
State Government.

According to the appellant, the pre-1986 retirees were not entitled to re-
D calculation of pension on the basis of the revised pay scales. It was stated
that there was no revision of the pay of employees who had retired prior to
1.1.86 notionally or otherwise. It was submitted that in keeping with the
Nakara principle the formula for calculation for pre-1.1.86 and for post 1.1.86
retirees, namely, 50% of the last pay drawn was the same. Additionally, all
E retirees were getting Dearness Allowance commensurate with the consumer
price index. It was also contended that after the West Bengal Services (Revision
of Pay and Allowances) Rules, 1998 came into force all pensioners whether
pre or post-1986 were entitled to revision of their pension basP-d upon a
notional fixation of pay as on 1.1.86 by adopting the same formula as for the
serving employees but with effect from 1.1.96. In other words, the pre-1.1.86
F pensioners stood at par with post 1.1.86 pensioners but with effect from
1.1.96. Therefore, the dispute in the appeal before us is confined to the
formula applied to the period 1.1.86 to 31.12.95 when the ROPA rules, 1990
were in operation.

G Learned counsel appearing on behalf of the respondent-association
admitted that the dispute was limited to the period when the ROPA Rules,
1990 were in operation as the reliefs which had been claimed by the association
before the Calcutta High Court had in fact been granted by the Fourth State
Pay Commission but for a subsequent period. It was however argued that
there was no rationale for distinguishing between the pensioners who had
H retired prior to 1.1.86 and the post 1.1.86 retirees as far as quantum of pension
,~

STATE OF WEST BENGAL v. WEST BENGAL GOVT.PENSIONERS ASSOC. (RUMA PAL,J.] 7

.,, was concerned for the period 1986 to 1995. It is said that the quantum of A
pension forms part of the formula for computation of pension and that Nakara's
·j
case clearly forbade any distinction between pensioners inter-se.
Both sides have contended that the decision in Nakara supported their
respective contentions. Neither disputes that Nakara blazed a trail in service
law which brought substantial relief to pensioners who were otherwise isolated B
from the retrial benefits which were being conferred on persons who had
retired after them. The dispute is as to the extent of the relief. It is, therefore,
necessary to briefly recapitulate the facts of Nakara 's case.
The subject matter of decision in that case was an Office Memorandum
dated 25.5.1979 by which the Ministry of Finance, Government of India C
propounded a liberalised formula for computation of pension and made it
applicable to Government servants who were in service on 31.3.1979 and
retired from service on or after that date. Pre-1979 retirees were being paid
pension on the basis of average emoluments of 36 months' salary which
preceded the date of retirement. The liberalised formula provided for (i) average
emoluments with reference to the last I 0 months of service; (ii) a higher D
minimum ceiling on the pension payable and (iii) introduced a slab system for
computation of pension. After an exhaustive review of decisions relating to
Article 14 of the Constitution, the Court held that pension was not only
compensation for loyal service rendered in the past but was a measure of
socio economic justice, and that there was no reason given for choosing E
1.4.1979 as a cut-off date for applying the formula. In coming to the conclusion
that the cut off date was invalid and must be struck down and that the
liberalised formula must be made available to all pensioners, the Court noted
that it was not a case of contributable scheme or a pension fund from which
alone the pension was to be disbursed neither was it a new retiral benefit but
it was an "upward revision of an existing benefit". The argument of the F
Government regarding the non-avaiiability of funds was found unacceptable
since, it was said, that application of the same pension formula to all pensioners
would only make a marginal difference in the case of past pensioners because
the emoluments were not revised and all that the old pensioners would get
by reason of computation on the liberalised formula would be a slightly higher G
pension.
By several pronouncements of this Court the principles laid down in
Nakara have been defined and their limits restated.
Krishena Kumar v. Union of India and Ors. 2 was a decision of the
'[I990J 4 sec 201. H
8 SUPREME COURT REPORTS [2002] l S.C.R

A Constitution Bench in which it was held that the notification setting a cut off
date for exercising an option to either be covered by the Provident Fund
scheme or the pension scheme could not be struck down by applying the
ratio ofNakara. The reasons for distinguishing Nakara were broadly two fold,
namely, that the fixation of the cut off date was based on a rational principle
and that the persons covered by the Provident Fund Scheme and those
B covered by the Pension Scheme did not form a homogeneous class so that
the basis for applying Article 14 between the two groups was not there. This
decision highlighted the fact that a cut off date for granting service benefits
may not necessarily tantamount to a violation of Article 14 and will be upheld
by the Courts if there is some reasonable explanation in support of that date.
c Similarly in Union of India v. P.N. Menon and Ors. 3 , an Office
Memorandum introduced a scheme to treat a portion of the dearness allowance
as pay in respect of government servants, who retired on or after 30.9.1977.
This was challenged as being discriminatory via-a-vis those who had retired
prior to 30.9. 77. The challenge was negatived because:
D
"fixing 30.9.1997 as the cut-off-date, which date was fixed when the
price index level was 272, cannot be held to be arbitrary. The decision
to merge a part of the dearness allowance with pay, when the price
index level was at 272, appears to have been taken on the basis of the
recommendation of the Third Pay Commission. As such it cannot be
E held that the cut-off date has been selected in an arbitrary manner.
Not only in matters of revising the pensionary benefits, but even in
respect of revision of scales of pay, a cut-off date on some rational
or reasonable basis, has to be fixed for extending the benefits."

F Illustrative of another aspect of the Nakara principle, is the decision in
Commander Head Quarter, Calcutta and Ors. v. Capt. Biplabendra Chanda'.
which said that the requirement of equality prescribed by Nakara did not
extend to a new retiral benefit but was limited only to an upward revision of
an existing benefit. It was held therefore that a person who was not entitled
to receive pension on the date of his retirement could not claim a grant of
G pension because of a subsequent change in the criteria of eligibility for such
grant. [See also Union of India and Ors. v. Dr. Vijaypurapu Subbayama, •
[2000] 7 SCC 662 and V.N. Kasturi v. Managing Director, State Bank of India,
Bombay and Anr., [ 1988] 8 SCC 30.
'[1994] 4 SCR 68.
H '[1997] I sec 20s.
.. STATE OF WEST BENGAL 1•. WEST BENGAL GOVT. PENSIONERS ASSOC. (RUMA PAL, J.] 9

Conversely when there is no new scheme of payment for pension but A
only revision of the existing pension scheme, for example calculation of
pension on the basis of 40 per cent of the average last I 0 months salary
instead of 40 per cent of the average annual basis salary for the last 5 years
of service, it would be a benefit grantable to all pensioners irrespective of the
date of their retirement in accordance with Nakara principle'.
B
The respondents' case is based upon a failure to distinguish between
the pension scheme on the one hand and the revised pay scales on the other.
Pension Schemes are based on the West Bengal Services (Death-cum-
Retirement) Rules 1971 (hereinafter referred to as the '1971 Rules') which were
framed under Article 309. These Rules apply to all State Government employees C
barring a few exceptions which are not relevant for our purposes. These Rules
provide that a Government servant's claim to pension is regulated by the rules
in force at the time the Government servant resigns or is discharged from
service on retirement or otherwise. Rule 67 deals with the amount of pension
which is fixed on the emoluments which in terms of the definition of the word
under Section 7 (l)(d) means the 'pay' as defined in Rule 5 (28) of the West D
Bengal Service Rules, Part I which the officer was receiving immediately
before his retirement. Sub-clause (I) of Rule 5 (28) of the West Bengal Service
Rules, Part I has defined pay as:

"Pay means the amount monthly drawn by a Government servant as
pay other than special pay or pay granted in view of personal E
qualification which has been sanctioned for a post held by him
.. substantially or in an officiating capacity or to which he is entitled by
reason of his position in a cadre."

Therefore unless there is a change in the emoluments as defined in the F
1971 Rules, the pension will continue to be pegged to the pay drawn by the
employee immediately before his retirement. This has not been done as far as
the pre-1986 retirees are concerned by the 1990 ROPA Rules.

The ROPA Rules, 1990 were based upon the recommendation of the
Third State Pay Commission. The Third State Pay Commission, was constituted
• by the State Government by Finance Department resolution No. 805-F dated
30th January 1987, inter-alia, to examine the structure of pay and conditions
of service of the specified categories of State Government employees keeping
in view the recommendations of the Fourth Central Pay Commission and the
'Subrata Sen and Ors. v. Union of Indaand Ors.. (2001) 8 SCC 100.
~
10 SUPREME COURT REPORTS [2002) l S.C.R.

A decision of the Government oflndia. The Third State Pay Commission revised r
I

the pay scales and other benefits of those employees in terms of the reference
,...
and also recommended that the Pay Commission's report on pay, allowances
and conditions of service should be made effective from 1.1.86 because that ,t
was the date from which the Central Government employees and the employees
of a large majority of other States had got the benefit of revised emoluments.
B Keeping in view the financial resources of the State, the Third Pay Commission
also recommended that there should be notional effectiveness from 1.1.86 and
the arrears due on the basis thereof should be paid to the employees only
for the period from 1.1.88 onwards. It was further recommended that pensioners
retiring after 1.1.86 should be allowed the benefit of pay fixation in the revised
c scales and allowance of computation of their pension which may be revised
where necessary.

The State Government accepted the recommendations of the Third Pay
Commission and in exercise of the powers conferred under Article 309 published
the ROPA Rules on 12th January 1990. Consequent upon the revision of the
D pay scales with effect from 1.1.86 the pensionary benefits in respect of those
State Government employees whose pay had been fixed under the ROPA
Rules, 1990 were also re-calculated. In respect of those employees who had
retired after 1.1.86, their pensionary benefits were revised notionally on the
basis of the revised pay, also fixed notionaliy, in terms of the ROPA Rules,
E 1990 by Memorandum No. 4056-F dated 25th April, 1990.

What is noticeable is that the definition of the word 'emoluments' in the
1971 Rules was not amended. As such pension continued to be calculated on
the basis of emoluments as defined in the 1971 Rules namely the last pay
drawn immediately prior to retirement. The pay of the pre 1986 pensioners was
F not revised. The Third Pay Commission had given a reason for choosing
1.1.86, as the cut off date. As held in Krishena Kumar v. Union of India
(supra) and Union of India v. P.N. Menon, (supra) merely because a cut off
date is fixed would not make the exercise invalid all though persons in the
service immediately before the cut off date would be deprived of the benefit
of the revised scales of pay. It would depend upon the relevancy of the
G consideration underlying the choice of such date. The reason stated by the
•
Third Pay Commission cannot be said to be arbitrary or irrelevant.

Because the scales of pay had been revised from 1.1.86, the re-
computation of pension for such employees as had been granted the revised
H scales of necessity was limited to the same cut off date. All that the impugned
STATE OF WEST BENGAL 1•. WEST BENGAL GOVT. PENSIONERS ASSOC. [RUMA PAL, J.] 11
Memorandum No. 4056-F dated 25th April 1990 did was to re-compute the A
benefits in favour of post 1.1.86 retirees according to the existing formula as
provided by the Memorandum No. 7530-F and No. 7531-F both dated 6th July
1988. The same formula continues to be applied to the pre 1986 retirees. The
difference between pre- I 986 pensioners and the post-1986 pensioners is only
on account of the revision of pay scales and not account of failure of State
Government to equitably apply the liberalised pension scheme formula. The B
quantum of the emoluments formed no part of the formula for grant of pension
during 1986to 1995 .
,
.
Nakara 's decision did not direct the payment of an equal amount of
pension to all pensioners. This is clear from the following passage where the C
Court discusses the financial impact of the formula on the resources of the
Government:

"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 D
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 some reaches the E
maximum the old lower ceiling will not deny him what is otherwise
justly due on computation."

This was affirmed in the Indian Ex-Services League and Ors. v. Union
of India'. In that case, the petitioner claimed that the pre-April 1979 retirees
of the Armed Forces were entitled to the same amount of pension for each F
rank. The prayers were substantially the same as those made by the
resprndent-association before us. The claim for the same amount of pension
to be paid to all pre-April 1979 retirees of the Armed Forces as to the post-
April 1979 retirees was rejected holding, inter-a/ia:

"Nakara decision is one of limited application and there is no scope G
for 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 computation
6[19911 2 sec 104.
12 SUPREME COURT REPORTS [2002] l S.C.R

A of their pension be different."

Again in K.L. Rathee v. Union ofIndia & Ors. 7 the case of the petitioner
was that following Nakara case he had to be given the same amount of
pension as other employees of his rank irrespective of the date of retirement.
The Court noted that Nakara did not strike down the definition of 'emoluments'
B and held that:

"Nakara case does not lay down that the same amount of pension
must be paid to all persons retiring from government service irrespective
of the date of retirement.. ...... Even if pension is calculated on the basis
of the same formula the basis of calculation has to be the average of
c the last ten months' emoluments. This principle of adopting last ten
months' emoluments as the basis for calculating of pension must be
uniformly applied to all persons drawing pension from the Central
Government. This was all that was laid down in Nakara case. It,
however, did not lay down that the quantum of emoluments drawn
D <luring the last ten months of service of each government employee
must be taken to be the same for this purpose. The emoluments have
to be calculated according to the government rules in force at the
time of retirement of the employees. "
(Emphasis supplied)

E Consequently in the present case for the period in question, namely, pre
-1.1.86 to 31.12.95 when the definition of 'emoluments' was not amended and
pension continued to be calculated on the basis of the unrevised emoluments
of the pre 1986 pensioners, no parity in the amount of pension can be granted.

We, accordingly, allow this appeal and set aside the decision of the
F High Court but without any order as to costs.

T.N.A. Appeal allowed.

'(1997] 6 sec 1.