Kishan Mal Lodha, J.
1. This writ petition has been filed by the Retired Contributory Provident Fund Holders' Association, through its Chairman Shri M.R. Purohit against the State of Rajasthan under Article 226 of the Constitution on March 3, 1984. The writ petition was subsequently amended and the amended writ petition was filed on September 18, 1984.
2. The members of the petitioner Association were employed in the erstwhile Princely State and they were the members of the Contributory Provident Fund Scheme, which was then prevalent in the former State of Jodhpur. After the formation of Rajasthan, they became the employees of the Government of Rajasthan and were governed by the Rajasthan Service Rules. 1951 (for short the Rules'). Under the P.F. Scheme, the members of the Contributory Provident Fund Scheme (CPF Scheme) used to give their own subscription and against this amount, equal amount was contributed by the Government. They exercised their option for PF and did not opt for pension. It appears that subsequently, the persons, who opted for pension, were put in advantageous position than the persons who were members of the CPF Scheme. The Pay Scales were revised in 1961, 1966, 1969, 1971, 1976 and lastly in 1983, and with the increase in the Pay Scale, amount of the pension has been increased, but no such corresponding benefit to the optees of the PF were given. Reference was made to the report of the Beri Pay Commission.Ex.1 contains the extract from the report of the Beri Pay Commission pages 908 to 910. A representation was submitted to the Chief Minister for an opportunity of exercising fresh option for pension. That was said to be under active consideration of the Government, as is apparent from the letter Ex. dated July 13, 1984, which was sent by the Chief Minister to the Central Minister of the State for Irrigation. It appears that the memorandum/circulars Exs. 5 8 were issued by the Finance Department of the Government of Rajasthan, by which the option in favour of pension was made open for those Government servants, who were members of the CPF Scheme and who had retired after the dates mentioned therein or who were in service on a particular date. The petitioner Association has prayed that the non-petitioner State may be ' directed to allow an opportunity to exercise the option for pension to all those employees of the Government irrespective of the date of retirement or the date on which the retired Government servant was in service or not and the memorandum/circulars Exs. 5 to 8, in so far as the dates have been mentioned therein, in respect of the retirement of the Government servants may be declared violative of Arts, 14 and 16 of the Constitution, to the extent they restrict from exercising option for the pension for already retired Government servants on the basis of the dates mentioned therein. A further relief has been claimed that the Govt. servants who had retired and did not fall within the category of the aforesaid memorandum/circulars Exs.5 to 8 the amount equal to the amount which would be difference of the amount of pension which such PF holder would have got had they opted for pension and the amount of increased pension to which they would have become entitled on account of extraordinary rise in price, may be ordered to be paid from the due date, per month. Certain other reliefs were also sought by this petition. A show cause notice was issued.
3. In reply to the amended writ petition, non-petitioner State has opposed the writ petition on various grounds. The objection that the writ petition is not maintainable at the instance of the petitioner, which is unregistered one, was also taken. It was submitted that on formation of Rajasthan, the employees who were governed by the CPF Scheme were given opportunity to elect either for the Pension under the Pension Rules as contained in the Rajasthan Service Rules continue to be governed under the Jodhpur CPF Rules. Those who opted for the pensionary benefits came over to the pension scheme contained in the Rajasthan Service Rules, while those who did not exercise this option, retired with CPF benefits. It was submitted that the persons who opted for CPF Scheme at the time of retirement, were paid lump sum amount at one time in full settlement of their claims for the services rendered in the State as per the provisions of the CPF Scheme and they are now estopped from saying that the opportunity should be given to them and further that having taken benefit of the CPF Scheme are now estopped from challenging the same on the grounds alleged by the petitioner Association. It was submitted that the circulars/memos Exs. 5.6 and 7 relate to the existing Government servants who had not retired till then and Ex. 1 was made effective from the date the liberalized Pension Rules came into force. Along with the reply to the show cause notice of the amended writ petition; (1) extract taken from the RSR (Ex. Rl/1); (2) copy of the memorandum No. F1 (FD (Kha)(8) FD (Gr. 2)/77 dated March 1, 1979 (Ex. R/1/2); (3) copy of the memorandum No. F. 1 (Kha)(8)FD (Gr.2)/77 dated March 5, 1980( Ex.R1/3); (4) Memorandum No. F.1 (53) F. 2 (Gr.) 82-1 dated February 17. 1983 Ex. R/1/4); (5) Extract taken from RSR. Rules 169 and 179(Ex. R/2); (6) copy of Order No. Fl(42)FD(F.xp-Rules) 67-1V dated June 13,1967 (Ex. R/3); (7) copy of office memorandum dated November 29, 1969 (Ex. R/4) were filed.
4. Rejoinder to the reply filed by the non-petitioner, was filed on behalf of the petitioner Association controverting the pleas taken in the reply. Along with the rejoinder, the copy of the memorandum dated September 26, 1964 (Anx, 9) : memo dt, May 9, 1969 (Anx. 10) and memo dated January 22, 1975 (Anx. 10) were filed. On behalf of the non-petitioner reply to the rejoinder was submitted reiterating the stand taken in the reply to the writ petition.
5. I have heard Mr. M.R. Calla and Mr. M.R. Singhvi for the petitioner-Association and Mr. R.P. Dave; Deputy Government Advocate for the non-petitioner and considered the writ petition, reply thereto, rejoinder to the reply; reply to the rejoinder and the documents filed by the parties. Learned Counsel for the parties also submitted written arguments in support of their submissions.
6. Learned Deputy Government Advocate has raised a preliminary objection that the petitioner-Association is not a registered body and therefore, it has no locus standi to file the writ petition. It has been stated by the petitioner Association that it is the body which represents the common interest of its members, who were in the Government service and who had opted for the PF instead of pension & the President of the petitioner-Association in Shri M.R. Purohit. The Association, vide its Resolution dated October 28, 1983, contained in Schedule-A authorised its Chairman Shri M.R. Purohit to file the writ petition in the High Court and for prosecuting the writ petition appointed Shri M.R. Calla and Shri M.R. Singhvi, Advocates. It has further been stated that this writ petition has been filed in a representative character and so it partakes the nature of a public interest litigation so as to enforce the postretirement claims of its members whose names have been mentioned in Schedule B appended to the writ petition. In the reply to the show cause notice, it has merely been stated that the petitioner-Association has no legal right to maintain the present writ petition and that they may be put to strict proof in regard to the maintainability of the writ petition. The writ petition has been filed on behalf of the members of the petitioner-Association through Chairman, who was authorised by the Resolution (Sch. A) passed by the members of the Association. The Chairman of the Association, is also the retired CPF holder. The facts pertaining to the Resolution and its members have been sworn by him as true to his personal knowledge. In these circumstances, the Association represents the interests, which are common to members of the retired CPF Holder's Association, Jodhpur. The members of the Association have adversely been affected by the circulars/memos Exs. 5 to 8. If the circulars/memos Exs. 5 to 8 impair the rights of the retired Government servants who are members of the petitioner Association, the court will not, concentrating merely upon the technical operation of the action deny itself jurisdiction to grant relief. It is settled that on being authorised, jurisdiction of the court can be invoked in a representative capacity on behalf of others. Thus, for the reasons (1) that by Resolution contained in Schedule A, the Chairman of the Association has been authorised to file the writ petition; (2) the writ petition as filed disclosed the representative character, which partakes the nature of the public interest litigation for enforcing the post-retirement claims of the members, who are retired Govt. servants; it (Association) has right to maintain the writ petition. The first preliminary objection is, therefore, over ruled.
7. The second preliminary objection raised on behalf of the non-petitioner is that there has been in inordinate delay in the filing of the writ petition and on this ground also the petition should be dismissed. It may be recalled that the original writ petition was filed on March 5, 1984. It may be stated that the report of the Rajasthan Pay Commission by Shri B.P. Beri, former Chief Justice, Rajasthan High Court was submitted and point No. 7 of that report deals with ex-gratia payment to those who retired as members of the CPF. After submission of the report, the Chairman of the CPF Holders' Association submitted various representations to the Chief Minister, Government of Rajasthan and the Finance Minister of the Government of Rajasthan. It was by Ex 3 which bears endorsement, dated January 12, 1982 that the matter relating to the recommendations of the Pay Commission will be considered by the Council of Ministers and at that time that will be considered. So the demand of the petitioner Association to grant an opportunity to exercise fresh option in favour of the Pension was under the active consideration of the Government. When nothing was done, the writ petition was filed on March 5, 1984. It also transpires that this demand was under the consideration of the Government as appears from the letter Ex. 4 dated July 30, 1984 sent by the Chief Minister of the Government of Rajasthan to the State Minister for Irrigation. It appears that memorandum Exs. 5, 6,7 & 8 dated June 29, 1971; January 12, 1977; March 27, 1978 and February 17, 1983 respectively, were issued by the Finance Department of the Government of Rajasthan by which exercise of option in favour of pension was made open to the members of the CPF to those who retired after the dates mentioned therein or who were in service on a particular date. The members of the petitioner Association have a recurring cause of action in this regard. In these circumstances, it cannot be said that there has been undue delay in filing the writ petition. In exercise of the discretionary powers u/Art. 226 of the Constitution the delay in filing the writ petition, does not affect the jurisdiction of the court to entertain the writ petition. It is merely a rule of discretion. Apart from that violation of Articles 14 and 16 of the Constitution have been alleged and as such delay should not be a bar. In these circumstances on the ground of delay, the writ petition cannot be thrown-out. The second preliminary objection is, therefore, rejected.
8. The third preliminary objection is that the writ petition is not maintainable for re-opening finally settled claims, say 15 to 20 years back. It may be stated that the aforesaid memos Exs. 5 to Ex. 8 have been issued from time to time and opportunity has been afforded to the Government servants, who had retired prior to the dates mentioned therein for the exercise of option and so this cannot be a ground for not entertaining the writ petition which has been filed by the petitioner Association. The issuance of memos Ex. 5 to Ex. 8 has furnished cause of action to them and they have resulted in infringement of the fundamental rights under Articles 14 and 16 of the Constitution. It is also repelled.
9. Having over-ruled the preliminary objections, I proceed to examine the writ petition on merits.
10. The principal question is whether the State of Rajasthan should be directed to afford opportunity to the Government servants, who are members of the petitioner Association to exercise option for pension irrespective of the date of retirement or the date on which the retired persons were in service or not.
11. The Pay Scales of the Government servants were revised in 1961, 1966, 1969, 1971, 1976 and lastly in 1983. The necessary consequence of the revision of the Pay Scales was that the amount of pension payable to the Government servants has also been increased from time to time. This corresponding benefit was not available to the persons, who had opted for the CPF. The Rajasthan Pay Commission was appointed and it was one member Commission. Shri B.P. Beri, former Chief Justice of the Rajasthan High Court, was the sole member of this Commission. Point No. 7 at pp. 908 to 910 deals with ex-gratia payment to those, who retired as members of the CPF. The petitioner has filed the relevant extract of the report as Ex. 1, which is as follows:
Point No. 7 : Ex-gratia payment to those who retired as member of C.P.F.
30.5.15. The existing pensioners and retired Government Servants have made representations to this Commission, inter alia, asking that those persons who retired from the membership of C.P.F. Scheme should also be given some relief, in the form of some bonus or pension equivalent to dearness allowance sanctioned to other pensioners. Those persons who had opted for the CPF Scheme get no relief despite the rise in prices. The number of such persons is small, in fact; it is said to be under 500 and they are all in the advanced age group of around 70 and over. Naturally having opted out for the C.P.F. Scheme, they received no pension and because they get no pension they get nothing to combat the dearness which is all pervasive;
30.5.16. The Union of India has introduced for its railway servants who were members of the PF Scheme and did not or could not have opted for pension, the scheme of giving ex-gratia pension. This has been paid beginning from 1-1-1967 at the following rates:
---------------------------------------------------------Pay Drawn by the railway employee Amount of Ex-gratiaat the time of retirement Pension(Rs.) (Rs.)---------------------------------------------------------80 or less 15.00Above 80 and upto 130 17.50Above 130 and upto 200 20.00Above 200 and upto 500 22.50---------------------------------------------------------30.5.17. There have been increases in the above amount a number of times. An increase ranges from Rs. 5 to Rs. 9/-. The railway employees are being paid total ex-gratia pension as on 1-5-1980 as under:
----------------------------------------------------------Pay drawn of the railway employee Amount of ex-gratiaat the time of retirement pension per month (Rs.) (Rs.)----------------------------------------------------------80 or less 90.00Above 80 and upto 130 92.50Above 130 and upto 200 100.00Above 200 and upto 500 143.50----------------------------------------------------------30.5.18. It appears that as and when the pensioners are allowed increase in pension the person who had opted out for the CPF are also given a rise in their ex-gratia pension. As a matter of fact, this is a just & humantarian attitude towards the aged in any society whose motto is human welfare. In advanced countries such as United Kingdom United State of America, Canada and some others, Senior Citizens, that is people who have attained the age of 65 years, are eligible for old age pension. We are not that affluent yet, and, therefore, we can think in terms of giving a limited benefit to our limited number of aged Government Servants.
30.5.19. According to the Rajasthan Pensioners Samaj, Jaipur the number of such persons who had opted out for the CPF and are alive is about 400 to 500, and they belong to the low income group class.
30.5.20. I, therefore, recommend that the ex-gratia pension ranging from Rs. 45 to Rs. 70/- per month be paid to those former Government Servants who retired as members of Contributory Provident Fund Scheme, in various slabs given below:
--------------------------------------------------Range Amount of Ex-gratia(Rs.) Pension (Rs.)--------------------------------------------------Pay last drawn upto 100 45/-Above 100 and upto 200 50/-Above 200 and upto 300 55/-Above 300 and upto 400 65/-Above 400 and upto 500 70/---------------------------------------------------30.5.21. The above rates suggested are nearly 50% of what the Government of India is paying as ex-gratia pension to the employees of the Railway Administration.
12. It is clear that the said Commission has recommended for grant of ex-gratia pension. The contention raised on behalf of the petitioner Association is that the memos Exs. 5 to 8 were issued by the Finance Department giving fresh opportunities one after the other to the Government Servants, who had retired before the specified dates, to exercise the option for pension within the time mentioned there in and so the classification between the retired Government servants with reference to those who retired before the dates given in the notifications and those who retired thereafter is wholly illusory and violative of Articles14, 16 and 19 of the Constitution. In other words, the submission on behalf of the petitioner is that the Government servants who had already retired should be taken as one class, and all the Government servants, who had retired should be given benefit of the memos/ circulars Exs. 5 to 8, as the dates, which have been fixed while allowing the opportunities are not only arbitrary, but smack of hostile discremination amongst the persons who are similarly situated. On behalf of the non-petitioner, it was submitted that prior to the formation of the State of Rajasthan employees of the erstwhile Stale of Jodhpur were governed by the Jodhpur Government Service Regulations. Chapter VIII of those Regulations deals with Jodhpur Provident Fund and Gratuity-Rules. After the formation of the Rajasthan, the Pension Scheme was introduced w.e.f. April 1, 1951. Opportunity was given for option from April 1, 1951 and onwards. The existing employees in the service of the State of Rajasthan on the dates of liberalised Pension Rules being in force, were also given chance time and again to opt for pension. Those who opted for the PF benefit at the time of retirement, were paid lump sum amount of P.F. benefit, at one time in full and final settlement for their claims for the service rendered in the Government. Not only this, when the age of retirement was lowered from 55 to 58 w.e.f. July 1, 1967 such retired Government servants were allowed P.F. benefits for additional three years notional service vide Government order No. F. 1(42)/FD/Exp-Rules/67-IV dated June 13, 1967. The document has been filed as Ex. R/3. It was further submitted by the learned Deputy Government Advocate that the Pension Rules were further liberalised w.e.f. September 1, 1968, September 1, 1976, October 31, 1977 and September 1, 1981. As there was revision of the pay scales of the State Government employees w.e.f. the aforementioned dates the aforesaid memos were issued from time to time and they were given the retrospective effect. According to him, the benefit of revision of pay scales as well as option to opt for pension were only given to the persons, who were in service of the Government on the dates specified in the memos/circulars/orders etc. The following tabuler statement was referred to clarify the position;
--------------------------------------------------------------Date of Date fromNumber of Memo issue which broughtinto force--------------------------------------------------------------F. 1 (65) FD(R)/68-I 29-6-1971 1-9-1968F. 1 (55) FD (Gr. 2)/76-I 12-1-1977 1-9-1976F. 2 (Kha) (8) FD (Gr. 2) 77-I 27-3-1978 31-10-1977F. 1 (53) FD (Gr. 2)/82-I 17-2-1983 1-9-1981--------------------------------------------------------------
In Ex. 5, it is, inter alia, mentioned that the orders contained therein shall apply to the Government servants, who were in service on September 1, 1968, and that the persons who have retired on or after September 1, 1968 but before the issuance of the orders contained in Ex. 5, their case may also be re-opened and decided under these orders. The memo Ex. 5 is dated June 29, 1971. By this the Government servants who have retained their C.P.F. benefits, were allowed another opportunity to opt for the Pension Rules, in the R.S.R. includings the benefits of the New Family Pension Rules, as amended from time to time. The period fixed for exercising the option was six months from the date of the publication of the orders in the Official Gazette. The memo Ex. 6 dated January 12, 1977 says that as a result of introduction of Rajasthan Civil Services (Revised New Pay Scales) Rules, 1976 w.e.f. September 1, 1976, the Governor has been pleased to decide that the Government servants who have retained the C.P.F. benefits, may be allowed another opportunity to exercise option for the Pension Rules contained in the Rajasthan Service Rules including benefits of the New Family Pension Rules, as amended from time to time. It was stated that the Government servants, who have already retired after September 1, 1976, and received their retirements benefits as admissible under the CPF Rules shall also be entitled to exercise option for pension and on their electing to be governed by the Pension Rules, retirement benefits already paid to them shall be adjusted against the Death-cum-retirement Gratuity and pension admissible under the RSR. Similarly Ex. 7 dated March 27, 1978, it is mentioned that this would be applicable to the Government servants, who had already retired on or after January 31, 1977 and received their retirement benefits as admissible under the CPF Rules shall also be entitled to exercise option for pension and on their electing to be governed by the Pension Rules, retirement benefits already paid to them shall be adjusted against the Death-cum-retirement gratuity and pension admissible under the Rajasthan Service Rules.
13. Learned Counsel for the petitioner has submitted that the words 'on or after 1-9-1968' in Ex. 5 'after 1-9-1976' in Ex. 6; 'on or after 31-1-1977' in Ex, 7 and 'after 1-9-1981' in Ex. 8 are unconstitutional as these dates discriminate between the members of the C.P.F. holders, who are similarly situated i.e. who have retired. In this connection he has referred D.S. Nakara v. Union of India : (1983)ILLJ104SC in which Articles 14, 39(c), 41, 43(3) and Preamble to the Constitution, and Rule 34 of the Central Civil Services (Pension) Rules, 1972 and Ministry Finance Memorandum No. B/40725/AG/ PS 4-C/1816/AD (Pension) dated September 28,1979, were considered. In that case, there was classification in revised pension formula between pensioners on basis of date of retirement specified in memorandam. It was held that the classification in revised pension formula between pensioners on the basis of date of retirement specified in memorandam is arbitrary and violative of Article 14 of the Constitution. The Government of India issued office memorandum No. F. 19(3) EV-79 dated May 25, 1979, whereby the formula for computation of pension was liberalised but made it applicable to Government servants who were in service on March 31, 1979 and retired from service on or after that date. The persons, who retired prior to March 31,1979 were not entitled to pension of the liberalised pension formula. The constitutionality of the order was challenged in the Supreme Court. After considering Re. Special Courts Bill AIR 1979 SC 478 and noticing the principles laid down therein in regard to the scope of Article 14, it was observed as under:
Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
In that case, the applicability of the object of granting pension was also considered by posing the questions as under:
What is a pension What are the goals of pension What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date We need seek answers to these and incidental questions so as to render justice between parties to this petition.
Thereafter, it was stated as under:
31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that; in their old age they would not be left in lurch. It must be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years 6f service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeceable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.
After considering the preamble of the Constitution, it was observed as under:
Then comes the old age in the life of every one, be he a monarch or a Mahatma, a worker or a Pariah. The old age overtakes each one, death being the fulfillment of life providing freedom from bondage. But here socialism aims at providing an economic security to those who have rendered unto society what they were fully equipped with their mental and physical powers. In the fall of life the State shall ensure to the citizens, a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom & the humility of dependence in old age. This is what Article 41 aims when it enjoins on the State of secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative, Executive and Judiciary to strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfillment of goal every State action illegible) taken must be directed, and must be so interpreted, as to take the society one step towards the goal.
D.S. Nakara's case (supra) was considered in Bidhubhushan Malik v. Union of India AIR 1983 All 202. The High Court Judges (Conditions of Service) Act, 1954 was considered. It was observed as under:.that the eligibility for liberalised pension of having retired on or after the 1st day of October 1974, in the High Court Judges (Conditions of Service) Act, 1974 (as amended) violates Articles 14 and is unconstitutional.
Special Leave petition (Civil) No. 4161/83 was filed from the aforesaid judgement of the Allahabad High Court vide Union of India v. Bidhubhushan Malik : 3SCR550 . Their Lordships while dismissing the special leave petition, expressed their agreement with the conclusion arrived at by the learned Judges of the Allahabad High Court. The Division Bench of the Allahabad High Court in Bidhubhushan Malik's case (supra) arrived at the following conclusion:
The High Court Judges (Conditions of Service) Act, 1954, (as amended) shall be read down as under, in para 10 of the First Schedule, the words 'and who has retired on or after October 1, 1974' are unconstitutional and are struck down. Omitting the unconstitutional part it is declared that the Judges (including the Chief Justice) of the High Court are entitled to pension as computed under the High Court Judges (Conditions of Services) Act, 1954 (as amended) irrespective of the date of retirement. The date October 1,1974, continues to be relevant as being one from which the liberalised pension became operative under the High Court Judges (Conditions of Service) (Amendment) Act, 1976 irrespective of the date of retirement and hence there is no question of payment of arrears of pension for the period preceding October 1, 1974....
On the basis of the principles that were laid down in the aforesaid authorities, the following propositions, for consideration on the basis of the contentions raised by the learned Counsel for the parties, arise:
(1) Whether retired CPF holders under the Rajasthan Service form a class as a whole ?
(2) Is the date of retirement a relevant consideration for eligibility to opt for pension when a fresh opportunity to opt for pension is given and made effective from a specified date ?
(3) Would different treatment to retired CPF holders related to the date of retirement qua a fresh opportunity to opt for pension attract Article 14 of the Constitution add
(4) Whether the Govt. servants who retired on the CPF form a class different from Government servants who retired on pension for purposes of granting relief against inflation and if not, what financial relief should be granted to them ?
14. It cannot be disputed that all the retired CPF holders form one class. In other words, it does not make any difference whether the Govt. servants who retired in 1961 is a different class than that of those who retired in 1981. The only difference is that of date of retirement, otherwise all retired CPF holders form one class. The date of retirement of CPF holders is not a sound critertion for classification as it any lead to incongruous results. According to the non-petitioner, the retired CPF holders, who were in service on a specified date or who retired on or after the specified date, were made eligible for exercising option for pension. The consequence of this is that those who retired before the specified date have not been made eligible to opt for pension. The retired CPF holders, thus, have been divided into two classes based on their date of retirement, and the precise question, therefore, is whether this classification is permissible and hence valid. It is settled by the catena of the cases of the highest court of the country inclusive of the decision referred to here-in-above, that in order to pass the test of permissible classification, two test must be satisfied : (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (2) that the differentia must have a rational relation to the object sought to be achieved. Mr. R.P. Dave, learned Deputy Govt. Advocate sought to justify the classification on the basis of the date of retirement on the date of liberalisation of Pension Rules. According to D.S. Nakara's case (supra), the argument of the learned Deputy Govt, Advocate is not sustainable for the reason that the Supreme Court has rejected in holding that the date of liberalisation of persons as the basis of dividing the class of pensioners into two classifications is not applicable. There exists no good reason in the case on hand to deviate from that principle. The sheet anchor of the argument of the learned Deputy Govt. Advocate is that several opportunities were given to the members of the retired CPF Holders Association to exercise their option for pension but they did not do so and so now it is not open to them to pray for the relief directing the non-petitioner to give them an opportunity to exercise option for pension irrespective of the date of retirement or the date on which the retired Govt. servants were in service. It may be recalled that in the memo, the CPF holders, who retired after 1-9-1981 were afforded various opportunities to opt for pension, still, fresh opportunity was given to them to exercise option for pension. One fails to understand as to why such a right was not made available or refused to those similarly situated on the ground that in the past they were afforded several opportunities. It is not in dispute that several opportunities were given for exercising option from 1951 to 1983, which shows that the opportunities so afforded were neither real nor effective. Mr. M.R. Singhvi, learned Counsel for the petitioner, in this connection submitted that the opportunities afforded were by notifications, which were published in the Gazette and the Gazette Notifications are not available to all. According to him, the Gazette Notifications did not amount to sufficient notice; those notifications should have been published in the local papers also. I do not want to make a deep probe on this question, for according to me, there was no reasonable basis for refusing the opportunity to the retired CPF holders on the basis of the date of retirement.
15. Further question that remains to be determined is when the pensions were liberalised, the CPF holders in service or retired, were given opportunity to exercise option in favour of pension or not.
16. In the memos Exs. 5 to 8, opportunities to opt for pension were given on Sept. 1, 1968, Oct. 31, 1974, Sept. 1, 1976, October 31, 1977 and Sept. 1, 1981 which are the dates of liberalisation of pensions. According to these memos, the CPF holders, who had already retired and received their CPF amounts were given opportunity to opt for pension. According to the learned Counsel for the petitioner, in the following cases the principle followed was different and the dates of liberalisation of pension were completely ignored and the option was given to only those who were in service on the date of the order:
----------------------------------------------------------------Ex. No. Date of Order Date of liberalisation of pension after 30-9-1954----------------------------------------------------------------Ex. R1-1 13-1-1960 After 30-9-1954Ex. Anx. 9 26-9-1964 1-3-1964Anx. 10 9-5-1969 1-9-1968Ex. Rl/3 5-3-1980 21-1-1980----------------------------------------------------------------
Vide Ex. R-1/2 dated March 1. 1979, opportunity to opt for pension was given without there being any liberalisation of pension of revision of pay scales. It is, thus, clear that it is not correct to submit that whenever pensions were liberalised opportunities to opt for pension was given.
17. From the above discussion, it is established that the Government servants, who were CPF holders constituted one class governed by the RSR and on the basis of the date of retirement, the clasification of the retired CPF holders could not be made and this classification does not pass the test of permissible classification, for, the object could not be achieved on the basis of Exs. 5 to 8 by providing different dates of retirement, for classifying them by specifying different dates of retirement for exercise of option for pension. Following the principles laid down D.S. Nakara's case (supra), Bidhubhushan Malik's case (supra) which has been affirmed in Union of India's case (supra) The dates mentioned regarding the Government servants, who had retired for the exercise of option are un-constitutional being violative of Article 14 of the Constitution. This disposes of discussion on the propositions formulated here in above.
18. The result is that the writ petition is allowed and the words 'on or after 1-9-1768' in Ex. 5; 'after 1-9-1976' in Ex 6; 'on or after 31-1-1977' in Ex. 7 and 'after 1-9-1981' in Ex. 8, are unconstitutional and are struck down. The aforesaid unconstitutional parts in each of the memos shall be omitted. The non-petitioner State of Rajasthan is directed to afford opportunity to the Government servants who are members of the Retired Contributory Provident Fund Holders' Association (petitioner), to exercise the option for pension irrespective of the date of retirement or the date on which the retired person was in service or not. In case such persons elect to opt for pension, the non-petitioner (State of Rajasthan) is directed to compute and pay the pension admissible under the Rajasthan Service Rules, 1951. The other conditions that would govern the option for pension shall be in accordance with the memos Exs. 5 to 8. The amount of Government Contribution towards their (such persons who elect for pension) Contributory Provident Fund Account plus interest paid thereon and retirement benefits already paid to them shall be adjusted against the death-cum-retirement gratuity and pension admissible to them.
19. There will be no order as to costs.