R.A. Jahagirdar, J.
1. Eight persons, who are the widows of the servants of the Government of Maharashtra who retired from service before 1-1-1964, addressed a letter to the learned Chief Justice of this Court complaining of what they regarded as the discrimination perpetrated by the Government of Maharashtra against them in the light of the liberalised Family Pension Scheme which has been brought into force on 1st of January, 1964. The said letter is dated 11th of October, 1983, which means it has been addressed to the learned Chief Justice nearly twenty years after the liberalised Family Pension Scheme came into force. This letter was obviously prompted by the judgment of the Supreme Court, to which we will take reference shortly. The learned Chief Justice directed that the said letter be treated as a writ petition under Article 226 of the Constitution and accordingly it is numbered as Writ Petition No. 3749 of 1983. The eight signatories to the letter are, therefore, the petitioners in the said writ petition. Subsequently, Mr. S.G. Deshmukh and Mr. V.K. Potdar have filed their appearance on behalf of the petitioners and they have been heard by us in support of the claim made in the petition. Thereafter, five persons similarly situated and the Maharashtra Pensioners Association having its office at Pune, through its President, have also filed a petition under Article 226 of the Constitution making the same grievance which has been already by the petitioners in Writ Petition No. 3749 of 1983. The latter petition is Writ Petition No. 4215 of 1983. Both these petitions are heard together.
2. The main grievance of the petitioner is that the benefits of the liberalised Family Pension Scheme, which has been brought into force by the Government of Maharashtra with effect from 1st of January, 1964, have been denied to them for no valid reasons. According to them, the Government of Maharashtra has chosen an arbitrary test on the basis of which the benefits of the liberalised Family Pension Scheme have been withheld from the petitioners though the petitioners are situated in a position similar to those who will get the benefit to the petitioners also as they are being made available to members of the families of other Government servants who have retired after 1st of January, 1964. The petitioners have based their challenge to the execution action of the Government on a decision of the Supreme Court in D.S. Nakara and others v. Union of India : (1983)ILLJ104SC . We will have naturally occasion to refer to the said judgment and to see whether the challenge made by the petitioners on the basis of the said judgment is well conceived or ill conceived.
3. Some sort of Family Pension Scheme is said to have been in existence under the Government of Bombay since 1950, but no material has been place before us to show what exactly was the scheme before it was liberalised to some extent with effect from 1st May, 1960. By a resolution dated 22nd of January, 1964, the Government of Maharashtra amended the Family Pension Scheme a it then stood to confer some additional benefits with effect from 1st May, 1960. The main feature of this amendment which came into force with effect from 1960 (called the amended scheme of 1960 for brevity's sake) was that a minimum pension of Rs. 25 per month was payable under the scheme. It was also provided that the minimum pension shall not exceed the full amount of pension sanctioned to the deceased Government servant at the time of his retirement or in case he died while in service. The pension that would have been admissible to him if he had retired on superannuation pension on the date following the date of his death. There were only ancillary provisions also incorporated in the amended scheme of 1960. It was also provided that a family pension not exceeding the amount specified as above could be granted to the family of a Government servant in the event of his death after he has completed twenty years of qualifying service. Admittedly this scheme of 1960 was much less beneficial than the one which was brought into force with effect from January 1964. By a resolution dated 8th May, 1964, the Family Pension Scheme was liberalised and this liberalised scheme came into force with effect from 1st of January 1964. This scheme in fact has been called a new scheme by the Government Resolution itself and is undoubtedly more liberal than the scheme which had preceded it. In the first place, the new scheme applied to those persons who were in service on or who came into service of the Government after 1st January, 1964. The amount of pension payable under this scheme of 1964 is higher than the one that was payable under the preceding scheme. The period over which the pension can be paid under this scheme is also much more liberal than the one that was mentioned in the earlier scheme. The qualifying period of service of a Government servant in order that the benefit of the new scheme should be available to his family members is much less than the qualifying period of service prescribed under the previous scheme. It is not necessary to notice in details the difference between the scheme of 1960 and the new scheme of 1964. It is sufficient to mention that there is no dispute that the new scheme is a great advance over the earlier scheme of 1960.
4. The petitioners are the members of the families of the Government servants none of whom was in Government service on 1st of January, 1964. Some of them belonged to the Government servant who had not only retired prior to 1st of January 1964 but had also expired before 1st of January, 1964, some belonged to the families of those Government servants who had retired prior to 1st of January, 1964 but who were alive after 1st of January, 1964. But all of them belonged to the families of the Government servants who has retired from Government service prior to 1st of January, 1964. Admittedly, therefore, the benefits of the new scheme of 1964 are not available to any of the petitioners. It is this denial of the benefits under the new scheme that is the subject matter of challenge in this petition by the petitioners.
5. Both Mr. Deshmukh and Mr. Potdar who appeared for the petitioners have concentrated their challenge to what they regard as the discrimination between the members of the families of two classes of Government servants only on the basis of Articles 14 of the Constitution as interpreted by the Supreme Court in D.S. Nakara's case mentioned above. It would, therefore, be profitable to briefly notice what the facts were in D.S. Nakara's case and what the Supreme Court has laid down in that case.
6. In D.S. Nakara's case, the Government of India had issued an office memorandum on 25th May, 1975 whereby the formula for computation of pension was liberalised, but the liberalised formula was made applicable only to these Governments servants who were in service on 31st of March, 1979 and who were to retire from service on or after that date. The said date was mentioned as the specified date. The formula had several other built in features to which we may not make any detained reference. The liberalised formula, therefore, was not applicable to these Government servants who had retired prior to 31st March, 1979 though the said retirement Government servants might have rendered service for the same period for which the persons retiring after 1st March, 1979 might render services to the Government. The date of 31st March, 1979 was the date which separated the pensioners who had retired prior to that date and who retired on or after that date. Examining the concept of pension the Supreme Court pointed out that those who render service and retire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners'. In other words, whether a person retires on one date or another that person would necessary be a pensioner. All pensioners, therefore, who retire after a specified period of service and who are in receipt of an amount called pension must necessarily constitute a single class of pensioners.
7. The Supreme Court then proceeded to examine all the relevant judgments of its own touching upon Article 14 of the Constitution and after doing so summarised the law regarding Article 14 of the Constitution in the following terms:
'Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification being founded on an Intelligible differentia which distinguishes persons or things that are grouped together from those that are left out the group and that differentia must have a rational nexus to the object sought to be achieved by the statue in question '.
8. Earlier in Deoki Nandan Prasad v. State of Bihar, : (1971)ILLJ557SC and in State of Punjab v. Iqbal Singh A.I.R. 1976 S C 677 the Supreme Court had buried the antiquated motion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right. By these two decisions the Supreme Court affirmed the principle that grant of pension does not depend upon anyone's discretion. The right to receive pension flow to the officer not because of any such order but by virtue of the rules framed by the Government in that regard. In other words, the Supreme Court held that the right to receive pension is a right which cannot be denied to the pensioners on one or the other ground. Since this is a right available to a pensioner, any discrimination made between two pensioners on a ground not supportable by law would be naturally struck down.
9. What is a pension The answer to this question was also provided by the Supreme Court in D.S. Nakar's case by saying that pension is not only compensation for loyal service rendered in the past, but that it has broader significance, in that it is a measure of socio economic justice which physical and mental powers is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. Form what has been mentioned in the above extracted portions of the judgment of the Supreme Court in D.S. Nakara's case and the other paragraphs which we have carefully read, it is clear to use that pension is a right which is given to a Government servant under the relevant statute or rules and it is a benefit which is made available to the Government servant for the past services rendered by him to the Government. If there is thus a class of pensioners, could they be discriminated on the basis that some of them became pensioners on one date and others became pensioners on another date This was the short question which was before the Supreme Court and which was decided by it in D.S. Nakara's case. The Supreme Court found that the pensioners for the purposes of receiving pension from a class. If it is so, it would not be permissible to decide such a homogeneous class by arbitrarily fixing an eligibility criteria unrelated to the purpose of the benefits to be conferred. If at all a classification has to be made, then that has to be based on some rational principle and the rational principle must have nexus to the objects to be achieved. Admittedly the qualification for receiving pension was the rendering of service to the Government for a particular period of time. If this is so, then there was no rational principle behind denying the liberalised pension scheme to those who retired subsequent to a particular date simultaneously making the same available to those who retired prior to that particular date. Therefore, it was found that the division which classified pensioners into two classes was not based on any rational principle and if the principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed it would be clearly discriminatory. It can thus be seen that before the Supreme Court there was in existence a class of persons called pensioners and the pension scheme which was in existence at that time and applicable to all was, sought to be modified only for the purpose of making the benefit available to those persons who had retired after a particular date. Since the object of the pension scheme was to give succour to the Government servants who had retired and who became aged, the classification made by the Government by choosing date which was an arbitrary date, it was not going to further the object for which the scheme had been framed; on the other hand, it was going to frustrate the same in respect of at least a large part of the class of pensioners.
10. After understanding the proposition laid down by the Supreme Court in D.S. Nakara's case and after carefully going through the facts of the two petitions before us we are of the opinion that in the cases before us there is no question of any discrimination between persons belonging to the same class. We must not forget that the pension scheme as also the Family Pension Scheme are essentially meant for the Government servants themselves. As long as a Government servant is in service and as long as he is alive during the period of his retirement, the benefit that are available under the various schemes are meant for him and through him for the members of his family. On the facts before us, we have actually two classes of persons one the Government servants who retired prior to 1st of January, 1964 before the new scheme of 1964 came into force. Obviously, therefore, the liberalised scheme of 1964 could not be made applicable to those Government servants who had already retired. The other class is of those Government servants who were in service of the Government on 1st of January, 1964 or who joined Government service after the said date. At any particular point of time it is always open to the Government to treat its servants more liberally than it has treated its earlier servants who have retired. Merely because the Government decides to give higher salaries or greater benefits either in the form of pension or otherwise to the Government servants who are in service at a particular point of time, it cannot be said that the increased benefits by way of salary or otherwise should necessarily be made available also to those Government servants who have retired prior to the date on which the more beneficial scheme has come into force. The two classes of persons are distinct and separate. If this is the correct understanding of the facts of the case before us, then naturally one must conclude that there is no discrimination among persons belonging to the same class. The petitioners are the members of the family of those Government servants who had retired prior to 1st of January, 1964. The scheme which was made applicable with effect from 1st of January, 1964 covered only those Government servants who were in service on 1st of January, 1964 or who entered the Government service after that date. This latter group of persons necessarily form a distinct and separate class. In this view of the matter, in our opinion, it cannot be said that there is any discrimination between persons belonging to the same class. There are two different, distinct and separate classes of persons and one cannot claim by way of right that the benefits of a scheme made available to one class of persons should necessarily be made available to another class of persons. The basis of the classification in the instant case is not arbitrary. On the other hand, it is rational in the sense that the Government decide to treat its servants on a particular day more liberally than those Government servants who had retired prior to that date. There is nothing in this that can be called hostile discrimination defying the ban imposed by Article 14 of the Constitution.
11. It is no doubt permissible to the Government, if its resources permit and if it so desires, to extend the benefits of any liberalised scheme to larger and larger number of persons. But when a scheme is framed for the benefit of a particular class of persons united on the basis of a common feature, then another class, which is clearly distinguishable, cannot by way of right demand the benefits made available to the former class.
12. In an affidavit filed in reply to Writ Petition No. 3749 of 1983, it has been mentioned on behalf of the Government that the petitioners, as per the decision taken by the Government, are now entitled to Rs. 60 per month as pension which is being fixed on ad hoc basis on account of the reasons which have been mentioned in the affidavit. In addition, they would also be given relief benefits and the total amount each petitioner and other similarly situated will get is placed at Rs. 153. We have been told that irrespective of the decision in this petition this benefit and the total amount each petitioner and other similarly situated will get is placed at Rs. 153. We have been told that irrespective of the decision in this petition this benefit will be made available to the petitioners and those similarly situated. The issue of the rule on this petition has happily induced some thinking in the Government circles on the subject and the decision as aforesaid has been arrived at. We are happy to note the same.
13. In the result, both the petitions must fail. Rule in each of them is accordingly discharged with no order as to costs.
14. At this stage, Mr. Deshmukh on behalf of the petitioners prays for a certificate under Article 133 of the Constitution. The prayer is rejected.