Holding

The classification based on retirement date is arbitrary and violative of Article 14, so the appeal is dismissed and the High Court’s direction to fix pension on the revised pay scales is affirmed.

Summary

The case concerned a disparity in pension benefits between Major Generals (and equivalent ranks) who retired before 1 January 1996 and those who retired after, due to the Fifth Central Pay Commission's revision of pay scales. The respondents argued that the cut‑off date created an arbitrary classification violating Article 14 of the Constitution, while the Union of India contended that the pay of pre‑1996 retirees could not be re‑fixed. The Supreme Court examined the classification in light of the D.S. Nakara judgment, holding that retirement date cannot be a valid criterion for differential treatment within the same cadre. It found the statutory pension rules, as amended, to be discriminatory and contrary to the principle of equality. Consequently, the Court dismissed the appeal and upheld the High Court’s order directing that the pension of all Major Generals be fixed on the basis of the revised pay scales, with prospective effect and payment of the difference with interest. The decision reinforced that any classification must satisfy the test of intelligible differentia and have a rational nexus with the intended objective.

Issues considered

Whether the cut‑off date of 1 January 1996 for the Fifth Central Pay Commission creates an arbitrary classification violating Article 14 of the Constitution.
Whether officers of the rank of Major General (and equivalents) who retired before the cut‑off date are entitled to the benefit of the revised pay scales.
Whether the differential pension amounts constitute illegal discrimination between equals in the same cadre.
Whether the High Court’s direction to fix pay and compute pension on the basis of the revised pay scales is maintainable.

Subjects

Article 14Pension disparityDefence ServicesPay revisionClassificationEqualityConstitutional law

Judgment

[2008] 13 S.C.R. 257
f

UNION OF INDIA AND ANR. A
v.
SPS VAINS (RETD.) AND ORS.
(Civil Appeal No.5566 of 2008)

~ SEPTEMBER 9, 2008
B
[ALTAMAS KABIR AND MARKANDEY KAT JU, JJ.]

'1 Constitution of India, 1950:

Article 14 - Disparity in payment of pension to officers
of same rank, who had retired prior to introduction of revised c
pay scale with those who retired thereafter- Held: Is arbitrary
and violative of Art. 14 - Service Law - Cut off date for creating
class of pensioner within same cadre.
The question which arose for consideration in the
~ ~ D
present appeal is whether the officers of the rank of Major
'I
General in the army and of equivalent rank in the two
other wings of the Defence forces, who had retired prior
to 1.1.1996, have been validly excluded from the benefit
of the revision of pay scales in keeping with the
E
recommendations of the Fifth Central Pay Commission
by virtue of Special Army Instruction 2(5) 98.
Dismissing the appeal with certain directions, the
-.. Court
....
'
!
HELD: 1. The problem of disparity is created within F
-l the same class, so that two officers both retiring as Major
Generals, one prior to 1.1.1996 and the other after 1.1.1996,
-\
would get tw,o different amounts of pension. In such
situation, the officers who retired prior to 1.1.1996 would
get the same pension as payable to a Brigadier on account G
of the stepping up of pension in keeping with the
.. Fundamental Rules and the other set of Major Generals
who retired after 1.1.1996 would get a higher amount of
pension since they would be entitled to the benefit of the
257 H
258 SUPRa11E COURT REPORTS [2028! 13 S.CR

A revision of pay scales after 1.1.1996. It would be arbitrary
to allow such a situation to continue since the same offends
the provisions of Article 14 of the Constitution. Article 14 of
the Constitution is wholly violated, inasmuch as, the
Pension Rules being statutory in character, the amended
8 Rules, specifying a cut-off date resulted in differential and
discriminatory treatment of equals in the matter of
commutation of pension. It would thus have a traumatic
effect on those who retired just before that date. The
division which classified pensioners into two classes is
C artificial and arbitrary and not based on any rational
principle. It could also not be the intention of the authorities
to equate the pension payable to officers of two different
ranks by resorting to the step up principle envisaged in
the Fundamental Rules in a manner where the other officers
belonging to the same cadre would be receiving a higher
0
pension. [Para 24-26, 30] [266 C-H 267 A-8,H 268-A]
D.S. Nakara and Ors. v Union of India (1983) 1 SCC
305 - relied on.
R. Viswan and Ors. v Union of India and Ors. (1983) 3
E SCC 401 - referred to.
2. The respondent is directed to notionally fix the
pay of all pensioners in the rank of Major General and its
equivalent rank in the two other Wings of the Defence
F Services at the rate given to similar officers of the same
rank after the revision of pay scales with effect from
1.1.1996, and to compute their pensionary benefits on
such basis with prospective effect from the date of filing
of the writ petition and pay them the difference within
G three months from date with interest at 10% per annum.
[Para 31] [268 8-D]
Case Law Reference
(1983) 1 sec 305 relied on Para ·JS

H
(1983) 3 sec 40·1 referred to Para 21
Ui'-!ION OF !NOIA & ANR. v. SPS VAINS (RETD.) 259
& ORS.

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5566 A
of 2008

From the final Judgment and Order dated 26.5.2005 of
the High Court of Punjab and Haryana at Chandigarh in C.W.P.
No. 17233 of 2001
i B
Vikas Singh, A.S.G., S.P. Singh, Nidhesh Gupta, P.N.
Lekhi, Ashok K. Srivastava, Shiva Lakshmi, Udita Singh, B.K.
Prasad, Anil Katiyar, Tarun Gupta, S. Janani, Sameer Bansal,
Lokesh Kumar and M.K. Garg for the appearing parties.

The Judgment of the Court was delivered by C

ALTAMAS KABIR, J. 1. Leave granted.
2. Interlocutory Application No.2 of 2006 filed by Major
General S.C. Suri (Retd.) and 67 others similarly placed as the
respondents is allowed. D
3. Only a very limited issue falls for our .consideration in
this appeal which has been filed by the Union of India through
the Secretary, Ministry of Defence and the Chief of Army Staff
through the Adjudant General Army Headquarters, New Delhi, E
against the judgment and order of the Punjab and Haryana
High Court allowing the writ petition filed by the respondents
herein with the following directions :

"For the foregoing reasons, the writ petition is allowed
and the respondents are directed to fix minimum pay scale F
of the Major General above that of the Brigadier and grant
pay above that of a Brigadier as has been done in the
case of post 1.1.1996 retirees and consequently fix the
pension and family pension accordingly. There shall be no
order as to costs."
G
4. As would be evident from the above, the primary
question which falls for decision in this appeal is whether the
High Court had in the exercise of its jurisdiction correctly directed
that officers of the rank of Major General, who had retired prior
to 151 January, 1996, when revision of.pay scales took effect, be H
260 SUPRt:~·Jit: COURT RE?o:::z1 ..::i [2008] 13 S.C F\

A given the benefit of the provisions of tre revised pay scale.
notwithstanding the fact that in terms of the policy only those
who retired after the said cut-off date would be entitled to such
benefit. The larger issue involved is whether there could be a
disparity in payment of pension to officers of the same rank,
B who had retired prior to the introduction of the revised pay
scales, with those who retired thereafter.

5. The case which has been made out in the High Court
in the writ petition filed by the respondent herein is that prior to
revision of the pay scales from 1.1.1996 the running pay band
C from Lieutenant to Brigadier, irrespective of promotion,
introduced on the basis of the Fourth Pay Commission's
recommendations, was Rs.2300-100-3900-EB-150-4500-EB-
5100. The rank pay that was fixed was Rs.200/-, 600/-, 800/-,
1000/- and 1200/- for the ranks of Captain, Major General,
D Lieutenant Colonel, Colonel and Brigadier, respectively. While
a Major General was given a starting salary of Rs.6700/- on the
basis of the recommendations of the Fourth Pay Commission,
a Brigadier could draw Rs 5, 100/- and additional rank pay of
Rs.1200/- making a total of Rs.6300/-. Consequently, a Major
E General always drew higher pay than a Brigadier and the
pension payable to officers on the basis of the recommendations
of the Fourth Pay Commission was calculated on the basis of
salary drawn during the last 10 months prior to retirement. Even
on such basis, a Major General always drew more pension and
F family pension than a Brigadier. It has to be kept in mind that
the rank of Brigadier is a feeder post for the promotional rank
of Major General.
6. The anomaly arose with the acceptance by the
Government of the recommendations of the Fifth Pay
G Commission which has created a situation whereby Brigadiers
began drawing more pay than Major Generals and were,
therefore, receiving higher pension and family pension than
Major Generals. In view of the recommendations of the Fifth
Pay Commission, a Brigadier was given a pay scale of
~ H~. ~ 535C-450-17600 together with rank pay of Rs.2 400i-
UNION OF INDIA & ANR. v. SPS VAINS (RETD.) 261
-+.- & ORS. [ALTAMAS KABIR, J.]

whereas a Major General was given a pay scale of Rs.18400- A
500-22400. In other words, the maximum pay in the pay scale
of Brigadier is 17 ,600/- and the minimum pay in the pay scale
of Major General is Rs.18,400/-. Inasmuch as, no rank pay was
provided for beyond the rank of Brigadier, the minimum pay
~ provided for a Major General became less than that of a B
Brigadier who may had reached the maximum point in his scale.
Consequently, on retirement, the pension of a Brigadier became
more than that of a Major General, since rank pay is also taken
into consideration for the purpose of calculating pension and
family pension. The pension of a Major General thus became c
Rs.9,200/-, while that of a Brigadier was Rs.9,550/-.

7. It is this anomaly, when pointed out, which prompted the
Government to step up the pension of Major Generals who had
retired prior to 1.1.1996, from Rs.9,200/- to Rs.9,550/- giving
>f them the same pension as was given to Brigadiers. Before the D
High Court it was urged on behalf of the writ petitioners, who at
the time of their retirement had held the rank of Major General
or Air Vice Marshal, that while the writ petitioners and others
similarly placed officers who had retired prior to 1.1.1996 were
given the same pension as that of a Brigadier, those officers of E
similar rank who had retired after 1.1.1996 were given pension
according to clause 12(c) of Special Army Jnstructions2/S/1998,
as a result whereof they were getting much higher pension and
family pension than the writ petitioners, despite being of the.
.... same rank. It was pointed out that by virtue of the aforesaid F
Special Instruction the initial pay of an officer promoted to the
rank of Major General would be fixed at the stage next above
the pay notionally arrived at by increasing his pay, including
rank pay of Brigadier, by one increment in the revised scale at
the relevant stage. It is this classification within a class which
G
led to the filing of the writ petition before the High Court. Before
the High Court it was urged further that such differentiation
)o..
between officers holding the same rank on the date of retirement
was wholly erroneous and violative of the provisions of Article
14 of the Constitution.
H
262 SUPREME COURT REPORTS [2008] 13S.C.R.
.+

A 8. Rejecting the submissions made on behalf of
Government that there could be no fresh fixation of pay once an
officer had retired and the only refixation possible would be that
of pension, the High Court allowed the writ petition and disposed
of the same with the directions indicated hereinabove.
B 9. The said decision of the High Court has been
.
questioned in this appeal by the Union of India and the Chief of
Army Staff.

10. Before us, the Union of India has taken a stand that the
c High Court misinterpreted the policy relating to fixation of pay of
officers of the Defence Services and had also misunderstood
the scope of the policy with regard to those officers who had
retired prior to the revision of the pay scales and that their pay
scales had already been revised at the time of their superannuation
from service. In their case, therefore, the question of revision of
D
pay scale could not arise and they could only claim that their
pension, including family pension, should not be lower than that
of a Brigadier which is a feeder post for the post of Major General
having higher and more onerous responsibilities.

E 11. In this regard reference was made to a communication
dated 7.6.1999 addressed to the Chiefs of the three wings of
the Defence Services on behalf of the Ministry of Defence,
Government of India, in which a differentiation appears to have
been made between officers who had retired prior to 1.1.1996
F and those who retired thereafter since a reference was made
to two of the Ministry's letters dated 3.2.1998 dealing with post
1.1.1996 and the other dated 24.11.1997 dealing with pre
1.1.1996 cases.
12. Reference was also made to Special Army Instruction
G dated 19.12.1997 indicating that in pursuance of the
recommendations of the Fifth Central Pay Commission and
the Government decision thereupon, the existing pay scales
admissible to Army Officers would be revised with effect from
...
January, 1996. The said Instruction also indicated that the said
H provisions would apply to all officers who were on the effective
UNION OF INDIA & ANR. v. SPS VAINS (RETD.) 263
..
_ & ORS. [ALTAMAS KABIR, J.]

strength of the Army as on 1.1.1996 and those who joined A
thereafter, and also to trainee officers who were undergoing
Pay Commission training on 1.1.1996 and trainee officers who
joined after the said date. Reference was also made from the
said Instruction to paragraph 9 thereof dealing with the stepping
up of pay of Major Generals on promotion from the rank of B
Brigadier prior to 1.1.1996. In the said paragraph it has been
specifically indicated that pay of all officers promoted to the
rank of Major General prior to 1.1.1996 would be stepped up
to become equal to the pay fixed for Brigadiers in the revised
pay scale as on 1.1.1996, subject to certain conditions. c
13. Yet another communication to the three Chiefs of the
Defence Services dated 3.2.1998 issued by the Ministry of
Defence, Government of India relating to the implementation of
the Government's decision on the recommendations of the Fifth
Central Pay Commission regarding pensionary benefits for D
.. officers and personnel below officers rank belonging to the
armed forces, retiring on or after 1.1.1996, which would,
however, have no application to those who had superannuated
prior to 1.1.1996.
14. Learned Additional Solicitor General submitted that E
the Ministry of Defence, Government of India, had taken a
considered decision in fixing 1.1.1996 as a cut-off date since
the pay scales were revised with effect from the said date, and
the pay scales of officers who had retired prior to the said date
... had already been fixed and there was no question of refixation F
of their pay scales and all they were entitled to was pension
which was not less than that received by Brigadiers who had
been given the benefit of the revision of pay scales and, were,
therefore, drawing a higher salary resulting in higher pension.
G
15. The learned Additional Solicitor General urged that
the High Court had erred in directing that the pay of Major
Generals who had retired prior to 1.1.1996 be refixed according
to the revised pay scales so as to give them the benefit of
higher pension than officers of the rank of Brigadier.
H
264 SUPREME COURT REPORTS [2008) 13 S.C.R.
••
A 16. The case of the respondents however, was that in
view of the Constitution Bench decision of this Court in D.S.
Nakara and others vs. Union of India (1983) 1 SCC 305, the
fixation of a cut-off date as a result of which equals were treated
as unequals, was wholly arbitrary and had been rightly interfered
B with by the High Court. One of the questions posed in the
aforesaid decision was whether a class of pensioners could be
divided for the purpose of entitlement and payment of pension
into those who retired by a certain date and those who retired
thereafter. The question was answered by the Constitution
c Bench holding that such division being both arbitrary and
unprincipled the classification did not stand the test of Article
14.
17. Several other decisions were also relied upon by the
respondents, which, in fact, followed D.S. Nakara's case (supra)
D and there is, therefore, no need to deal with them separately.
18. It was also the respondents' case that though there
was no dispute that Major Generals were entitled to higher
pensionary benefits than that enjoyed by Brigadiers, the
appellant erroneously insisted that the cut-off date had to be
E fixed in view of the limited financial resources available to cover
the additional expenses to be incurred on account of revision
of pay scales.

19. On behalf of the respondents reliance was also placed
F on two letters addressed by the Chairman, Chief of Staff
Committee, dated 8.2.2006 and 21.2.2006, along with the
recommendation made by the Air Chief Marshal on 17.2.2006,
stating that it was necessary to correct the injustice and
discrimination which had been aimed at denying those officers
c.; who had retired prior to 1.1.1996, the benefits of the pension
enjoyed by officers who retired after the said date.
20. Mr. Nitesh Gupta, learned Senior Counsel who
appeared for the respondents. submitted that the judgment of
the High Court did not call for any interference as the same had
H been rendered on the touchstone of Article ·14 of the Constitution
UNION OF INDIA & ANR. v. SPS VAINS (RETD.) 265
& ORS. [ALTAMAS KABIR, J.]

and in consonance with the principle of administrative fair play. A
He submitted that officers of the rank of Major General, who
had retired prior to 1.1.1996 should not be made the target of
the bureaucratic error committed by the Government in refixing
the scale of pay of Brigadiers after 1.1.1996 in such a manner
so that by adding the rank pay to their basic pay, their pay at the B
time of retirement was higher than that of a Major General which
was a superior rank, thereby creating an anomaly in the pension
entitlement of officers of the two aforesaid ranks.

21. Mr. P.N. Lekhi, learned senior counsel who appeared
for the added respondents, while adopting Mr. Gupta's C
submissions referred to the decision of this Court in R.Viswan
and others vs. Union of India and others, (1983) 3 sec 401, on
the question of morale and submitted that the arbitrary decision
to discriminate between the two sets of officers belonging to
the same rank in the matter of payment of pension was bound D
to adversely effect the morale of senior officers of the rank of
Major General which was in fact the feeder post to the rank of
Lieutenant General from amongst whom the Chief of Army Staff
is ultimately chosen.
22. From the submissions made the dispute appears to E
be confined only to the question whether officers of the rank of
Major General in the army and of equivalent rank in the two
other wings of the Defence forces, who had retired prior to
1.1.1996, have been validly excluded from the benefit of the
revision of pay scales in keeping with the recommendations of F
the Fifth Central Pay Commission by virtue of Special Army
Instruction 2(8)98.
23. On behalf of the appellant, Union of India, it has been
sought to be contended that since the pay scale of those officers G
who had retired prior to 1.1.96 had already been fixed at the
time of their retirement, the question of refixation of their pay
scales on account of the revision could not be accepted as they
would only be entitled to the benefits of higher pension on account
of such revision. The learned Additional Solicitor General, Mr. H
266 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Vikas Singh, had contended that since an anomaly had been
created in the pension payable to officers of the rank of Major
Generals, who on account of the revision of pay scales were
receiving less pension than Brigadiers who were lower in rank,
the Government had stepped up the pension of Major Generals
B who had retired prior to 1.1.1996, so that they did not receive
pension less than what was given to officers of the rank of
Brigadier.

24. The said decision of the Central Government does not
address the problem of a disparity having created within the
C same class so that two officers both retiring as Major Generals,
one prior to 1.1.1996 and the other after 1.1.1996, would get
two different amounts of pension. While the officers who retired
prior to 1.1.1996 would now get the same pensifln as payable
to a Brigadier on account of the stepping up of pension in
D keeping with the Fundamental Rules, the other set of Major
Generals who retired after 1.1.1996 will get a higher amount of
pension since they would be entitled to the benefit of the revision
of pay scales after 1.1.1996.
25. In our view, it would be arbitrary to allow such a situation
E to continue since the same also offends the provisions of Article
14 of the Constitution.

26. The question regarding creation of different classes
within the same cadre on the basis of the doctrine of intelligible
F differentia having nexus with the object to be achieved, has
fallen for consideration at various intervals for the High Courts
as well as this Court, over the years. The said question was
taken up by a Constitution Bench in the case of D.S. Nakara
(supra)where in no uncertain terms throughout the judgm.ent it
G has been repeatedly observed that the date of retirement of an
employee cannot form a valid criterion for classification, for if
that is the criterion those who retired by the end of the month will
form a class by themselves. In the context of that case, which
is similar to that of the instant case, it was held that Article 14
of the Constitution had been wholly violated, inasmuch as, the
H
UNION OF \NOIA & ANR v SPS VAINS (RETD.) 267
& ORS. [ALTAMAS KABIR, J.]

Pension Rules being statutory in character, the amended Rules, A
specifying a cut-off date resulted in differential and
discriminatory treatment of equals in the matter of commutation
of pension. It was further observed that it would have a traumatic
effect on those who retired just before that date. The division
which classified pensioners into two classes was held to be B
artificial and arbitrary and not based on any rational principle
and whatever principle, if there was any, had not only no nexus
to the objects sought to be achieved by amending the Pension
Rules, but was counter productive and ran counter to the very
object of the pension scheme. It was ultimately held that the c
classification did not satisfy the test of Article 14 of the
Constitution.
' 27. The Constitution Bench has discussed in detail the
objects of granting pension and we need not, therefore, dilate
any further on the said subject, but the decision in the aforesaid D
case has been consistently referred to in various subsequent
judgments of this Court, to which we need not refer.
28. In fact, all the relevant judgments delivered on the
subject prior to the decision of the Constitution Bench have
been considered and dealt with in detail in the aforesaid case. E
29. The directions ultimately given by the Constitution
Bench in the said case in order to resolve the dispute which
had arisen, is of relevance to resolve the dispute in this case
also. F
30. However, before we give such directions we must
also observe that the submissions advanced on behalf of the
Union of India cannot be accepted in view of the decision in
D.S. Nakara's case (supra). The object sought to be achieved
was not to create a class within a class, but to ensure that the G
benefits of pension were made available to all persons of the
same class equally. To hold otherwise would cause violence to
the provisions of Article 14 of the Constitution. It could not also
have been the intention of the authorities to equate the pension
payable to officers of two different ranks by resorting to the step H
268 SUPREME COURT REPORTS [2008] 13 S.C.R.
..\..

A up principle envisaged in the Fundamental Rules in a manner
where the other officers belonging to the same cadre would be
receiving a higher pension.
31. We, accordingly, dismiss the appeal and modify the
order of the High Court by directing that the pay of all pensioners
B in the rank of Major General and its equivalent rank in the two
other Wings of the Defence Services be notionally fixed at the
rate given to similar officers of the same rank after the revision
of pay scales with effect from 1.1.1996, and, thereafter, to
compute their pensionary benefits on such basis with
C prospective effect from the date of filing of the writ petition and
to pay them the difference within three months from date with
interest at 10% per annum. The respondents will not be entitled
to payment on account of increased pension from prior to the
date of filing of the writ petition.
D
32. The appeal is accordingly dismissed.

33. There will be no order as to costs.
D.G. Appeal dismissed.