STATE Vs. AVTAR KRISHEN MENGI

JUDGEMENT

(1.) THESE Letters Patent Appeals are directed against the judgment of learned Single Judge (Mr. Justice M. L Bhat) of this Court dated Sept. 13, 1984 and as both these appeals arise out of the same judgment, same are being disposed of together by this judgment.

(2.) AVTAR Krishen Mengi, respondent here in is a retired government servant and is a pensioner. Shri Brij Mohan Datta, the other respondent also falls in the same category and he, alongwith Shri B L. Sharma, President of the J&K pensioners Association, filed separate writ petitions. In both the writ petitions, they have challenged SRO -586 of 1976 dated 23 -10 -1976 issued by the Government giving certain benefit Article 240 AAA newly incorporated in the J&K Civil Services Regulations (CSR, for short) to the pensioners who retired on or after 31st March, 1979, being discriminatory and unconstitutional.

(3.) UPTO 31st March, 1965, the pension in this State for 25 years qualifying service was payable at 50 percent of the average emoluments of last three years preceding the date of retirement as detailed in Article 240 of the CSR. In 1965, the State of J&K modified the pension rules and it was provided that the Government servants retiring from the government service should have option to receive by way of gratuity an amount equivalent to 15 months salary in case of those government servants who had qualifying service of 30 years and equivalent to 16 months salary in case of those Government employees who were having 32 years or more qualifying service and they were further held to be entitled to receive pension at the rate of 3/8th of the last drawn salary. The Government servants in service at that time were, however, given an option either to opt for the old scheme or for the new scheme. The government further modified and liberalised the pension rules aid consequently issued SRO 556 of 1979 dated 13 -10 -1979 giving benefit of newly introduced rule 240 -AAA of the Regulations to those government servants who retired on or after 31st March, 1979. The benefit of slab system of pension introduced with effect from 31 -3 -1979 provides for determination of pension at 50 per cent for first Rs. 1000/ -of average emoluments, 45 per cent for the next Rs. 500/ -and 40 per cent for the rest of the amount for 30 years qualifying service subject to the maximum of Rs. 1200/ - and in addition 18 months gratuity. The contention of the petitioners (respondents here in) was that unfortunately the provisions of the above said SRO 586 were not made universally applicable to all the pensioner of the State of J&K. and the pensioners had been classified on the basis of their date of retirement which was discriminatory and hostile treatment, as they would have received higher pension than they were drawing at present .They challenged the above said SRO on the grounds that the classification was wholly unreasonable and against the object required to be achieved by the issuance of SRO and incorporation of Article 240 -AAA, that the government servants, who retired whether prior or after 31st March, 1979, formed one class and could not otherwise be classified for the purposes of grant of pension and therefore Article 240 -AAA was hit by Article 14 of the Constitution of India; that a similar provision of the Central Civil Service (Pension) Rules, 1972 (here in after referred to as 1972 Rules) was challenged in the Supreme Court of India by various persons and the Supreme Court having considered the challenges of the rules came to the conclusion in case D. S. Nakara and others Vs. Union of India, AIR 1983 S. C. 130, that the petitioners by them selves constituted a class and there could not be any classification among the pensioners on the basis of their retirement for the purposes of grant of liberalised pension.