OP(KAT) No. 438 of 2022 (In the High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE ACTING CHIEF JUSTICE MR. ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 14[TH] DAY OF JULY 2023 / 23RD ASHADHA, 1945 OP(KAT) NO. 438 OF 2022** **AGAINST THE ORDER IN OA (EKM) 547/2019 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** 1 V. CHANDRAN, AGED 71 YEARS, S/O AYYAPPAN, RESIDING AT VADAKKAYIL HOUSE, PAYYOLI, KOZHIKODE DISTRICT - 673522, RETIRED HEAD CLERK, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, PWD NATIONAL HIGHWAY BYPASS SUBDIVISION, KOZHIKODE. 2 P KRISHNAN, AGED 71 YEARS, S/O UNNIPERAVAN, RESIDING AT SREEKRIPA, PANANGAVIL HOUSE, MANAKKADAVU P.O , PANTHEERAMKAVU, KOZHIKODE DISTRICT- 673019, RETIRED HEAD CLERK, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, PWD BUILDING SUBDIVISION, KOZHIKODE. 3 N P THANKAMMA AGED 71 YEARS W/O P.A.JOSE, RESIDING AT MANJU BHAWAN, DESODHARINI CROSS ROAD, MALAPARAMBA KOZHIKODE DISTRICT - 673009, RETIRED ADMINISTRATIVE ASSISTANT, OFFICE OF THE SUPERENDING ENGINEER, PWD ROADS AND BRIDGES, NORTH CIRCLE, KOZHIKODE. 4 MARYKUTTY, AGED 71 YEARS, W/O K N PHILIP,RESIDING AT KARIMATTAM, CHEVAYOOR P.0, KOZHIKODE DISTRICT - 673017, RETIRED FIRST GRADE DRAFTS MAN, OFFICE OF THE SUPERENDING ENGINEER, PWD ROADS AND BRIDGES, NORTH CIRCLE, KOZHIKODE. BY ADVS.M.POLY MATHAI VIMAL K.CHARLES OP(KAT) NO. 438 of 2022 -: 2 :- ## **RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM, KERALA, PIN – 695001. 2 THE PRINCIPAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, KERALA STATE, PIN - 695001 ## **OTHER PRESENT:** SRI. B. UNNIKRISHNA KAIMAL-SR. GP THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 14.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **[CR]** ## **ALEXANDER THOMAS, Acg. C.J. & C. JAYACHANDRAN, J.** # **----------------------------------------------------------------------O.P.(KAT) No.438 of 2022** **-----------------------------------------------------------------------** Dated this the 14[th] day of July, 2023 ## **JUDGMENT** ## **C. Jayachandran, J.** The issue involved in this Original Petition is an offshoot of the 8[th] Pay Revision recommendations - accepted vide Annexure-A1 G.O. dated 17.3.2006 – which still remains unresolved. The petitioners are Government servants, who retired from service on or after 1.7.2004 and before 31.3.2005. Annexure-A2 G.O. dated 18.4.2006, issued in implementation of Annexure-A1 G.O., jeopardised the petitioners, inasmuch as their revised pension was lesser than those who retired prior to 1.7.2004 and after 31.3.2005. The petitioners approached the State Administrative Tribunal twice. The second Original Application, O.A.(Ekm)No.547/2019, was dismissed as per Ext.P4 Order dated 29.3.2022, which is under challenge in the instant Original Petition. If Ext.P2 constitutes a class within a class, with the further impact of discriminating the specie class (like the petitioners herein who retired from service on or after 1.7.2004 and before ## O.P.(KAT)No.438/2022 -: 2 :- 31.3.2005) from the genus class (pensioners generally), whether Ext.P2 invites the wrath of violation of the fundamental right under Article 14 of the Constitution, is the question which surfaces for consideration in this Original Petition. ## **2.** The facts:- The recommendations of the 8[th] Pay Revision Commission were accepted in toto, without any modification, vide clause 3 of Annexure-A1 order dated 17.3.2006, as per which, the then existing scales of pay were revised with effect from 1.7.2004. Clause 13 of Annexure-A1 provides for continuance of the present system of computation of pension at 50% of 10 months average emoluments and Clause 15 stipulates that the revised basic pension/family pension shall comprise of (i) existing pension/family pension (ii) fitment benefit of 6% and (iii) 59% of D.R. The crucial direction insofar as the instant facts are concerned is contained in Clause 28, which specifically stipulated that those retiring after 1.7.2004 will have their pension revised based on their revised pay scales. Clause 28 is extracted here below:- O.P.(KAT)No.438/2022 -: 3 :- _“28. Those retiring after 1-7-2004 will have their pension revised, based on their revised pay scales. They will be entitled to corresponding increase in commuted value of pension, DCRG and terminal surrender of earned leave. These as well as the arrears of pension from 1-7-2004 will be paid in cash after adjustment of interim relief received.”_ **3.** Clause 30 of Annexure-A1 reserved the right to issue separate detailed instructions regarding the schedule for reckoning the revised pension for various years of qualifying service, norms for fixation authority to revise pension, etc. in consultation with the Accountant General. **4.** By placing purported reliance upon Clause 30 of Annexure-A1, Annexure-A2 order was issued by the Government, which, however has gone to the extent of superseding, Annexure-A1 G.O. dated 17.3.2006, the power/authority for which course of action is neither traceable to Clause 30, nor explained before us on any legal premise. The relevant Clause in Annexure-A2 is Clause 2.3, which directed to reckon the pre-revised scale, together with notional D.A. at 59% to O.P.(KAT)No.438/2022 -: 4 :- compute 10 months emoluments, for the purpose of pension for those employees who retired from service on or after 1.7.2004. Clause 2.3 is extracted here below:- _“2.3. For computing the ten months emoluments for the purpose of average emoluments for pension, in respect of employees who retired from service on or after 1-7-2004 and who, during part of the said period of 10 months, drew pay in the pre-revised scale, their pay in the prerevised scale may be enhanced notionally by adding DA at 59%.”_ **5.** The consequence of this direction, according to the petitioners, is that the Government servants, like the petitioners, who retired from service between 1.7.2004 and 31.3.2005 and who have the same length of service, with the same scale of pay in the pre-revised scale, have to draw a pension lesser than those who retired prior to 1.7.2004 and after 31.3.2005, both. The petitioners would illustrate this prejudice by Annexure-A3 comparative chart, a copy of which is appended herebelow: ## O.P.(KAT)No.438/2022 -:5:- ## STATEMENT SHOWING THE DIFFERENCE IN THE AMOUNT OF PENSION RECEIVED BY JUNIOR SUPERINTENDENTS WHO ARE DRAWING THE SAME BASIC PAY IN THE SAME SCALE OF PAY BEFORE AND AFTER 2006 PAY REVISION W.E.F. FROM 1.7.2004. Pre-revised scale of pay Rs: 5500-150-6100-175-9075 Revised scale of pay Rs: 9190-200-9590-240-10790-280-11910-340-13610-380-15510 |(1)|(2)|(3)|(4)|(5)|(6)| |---|---|---|---|---|---| |Date of retirement 30.6.2004|Date of retirement 31.7.2004|31.3.2005|30.4.2005|30.4.2005|30.4.2005| |Qualifying service 30 years<br>Pre-revised Basic Pay Rs.6625<br>'' Pension Rs.3313<br>DR 59% Rs.1955<br>Fitment 6% Rs.199<br>-----------<br>Revised Pension Rs.5467<br>=======|Qualifying service 30 years<br>Revised Basic Pay Rs.12250<br>(1 Month)<br>Pre-revised Basic Pay Rs.94806<br>(9 Month)<br>------------<br>Rs.107056<br>Average Emoluments Rs.10706<br>-------------<br>Revised Pension Rs.5353<br>=======|30 years<br>(9 Month) Rs.110250<br>(1 Month) Rs.10534<br>------------<br>Rs.120784<br>Rs.12079<br>--------------<br>Rs.6040<br>=======|30 years<br>(10 Month) Rs.122500<br>Nil Nil<br>------------<br>Rs.122500<br>Rs.12250<br>--------------<br>Rs.6125<br>=======|29 years<br>(10 Month) Rs.119100<br>Nil Nil<br>------------<br>Rs.119100<br>Rs.11910<br>--------------<br>Rs.5757<br>=======|28 years<br>(10 Month) Rs.116300<br>Nil Nil<br>------------<br>Rs.116300<br>Rs.11630<br>--------------<br>Rs.5428<br>=======| OP(KAT) NO. 438 of 2022 -: 6 :- **6.** Before proceeding further, we need to take note of the various proceedings initiated by the petitioners to redress their grievance. Initially, the petitioners approached this Court by filing a writ petition in W.P.(C)No.4769/2009 challenging Annexure-A2 G.O. Pursuant to the constitution of the Administrative Tribunals, the said case was transferred to the Tribunal and re-numbered as T.A.No.6162/2012. By Annexure-A4 interim order dated 18.5.2015, the Tribunal deemed it fit and proper that the matter requires re-examination by the Government and accordingly, gave liberty to the petitioners to prefer a representation and also directed the Government to hear the petitioners and to pass a speaking order dealing with the contentions raised by the petitioners. In purported compliance of Annexure-A4 order, the Government issued Annexure-A5 G.O. dated 16.9.2015, wherein the provisions in Annexure-A2 G.O. is seen quoted and relied upon, which apparently did not afford any relief to the petitioners' grievance. Para no.3 of Annexure-A5 is extracted here below:- _“3) Government have examined the matter in detail. As per G.O.(P) No.150/2015/Fin dated 24/04/2015, it was ordered that in the case of employees who retire during the part of pre-revised and revised pay and have the_ OP(KAT) NO. 438 of 2022 -: 7 :- _eligibility of full pension and if the pension calculated at the time of retirement is less than 50% of the minimum of the revised scale of pay from which they retired, 50% of the minimum of the revised scale of pay will be ensured. For the retirees who are not eligible for full pension, the proportion of the full pension based on qualifying service will be ensured. The date of effect of order is from 01.07.2004 vide GO(P) No. 278/15/Fin dated 10.07.2015. As the benefit of the order has given effect from 01/07/2004, the applicants are eligible to get the benefit of the Government Order thereby ensuring pension to 50% of the minimum of the revised scale of pay from which they retired.”_ **7.** T.A.No.6162/2012 was ultimately heard and disposed of by the Tribunal as per Annexure-A6 order dated 19.1.2017, where also, the Tribunal, after taking stock of the prejudice caused to the petitioners, directed the 2[nd] respondent Principal Secretary, Finance Department to look into the grievance and redress the same by issuing appropriate orders. The Tribunal also set aside Annexure-A5 G.O. of the Government. Accordingly, the Government considered Annexure-A7 representation of the petitioners and issued AnnexureA8 G.O., where again, the contents of Annexure-A2 G.O. is seen reiterated, without redressing the specific grievance espoused by the petitioners. OP(KAT) NO. 438 of 2022 -: 8 :- **8.** The petitioners again approached the Administrative Tribunal by filing the subject Original Application, O.A.(Ekm)No.547/2019, which, however, was dismissed by the Tribunal as per Ext.P4 order dated 29.3.2022. The same Tribunal, which felt the discrimination and prejudice caused to the petitioners on account of Annexure-A2 G.O. and directed the same to be redressed in Annexure-A6 order, however, dismissed the O.A. challenging Annexure-A8 G.O., which did precious little to address the grievance of the petitioners. The Tribunal held that Pay Commissions are headed by experts in the field; that their recommendations are implemented by the State Government with or without modifications; that a formula to the satisfaction of everyone cannot be arrived at; that Annexure-A8 order considered all relevant aspects including the financial constraints of the Government; and that Annexures-A5 and A8 endevoured to redress the grievance of the applicants to the extent possible. On the strength of such findings, the O.A. was dismissed. **9.** Having heard Adv.M.Poly Mathai on behalf of the petitioners and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader OP(KAT) NO. 438 of 2022 -: 9 :- on behalf of the respondents, we are afraid whether the reasons stated by the Tribunal to refuse reliefs to the petitioners is legally tenable. Before addressing the legal issue, we may take note of the admitted factual position as regards the pension drawn by the petitioners. The relevant pleadings in paragraph no.6(iii) of the O.A. is extracted herebelow: _“6(iii) …..................In other words by Annexure A2 the Government made an illegal classification among pensioners as those who retired before 01/07/2004 and those who retired after 31/03/2005. The classification resulted in the reduction of pension for those who retired between 01/07/2004 and 31/03/2005. In other words the person who had the same number of qualifying service in the Government started to draw different amount as pension and the loss suffered in the deal were persons who retired between 01/07/2004 and 31/03/2005.”_ The contention was reiterated in Ground no.2 as well. We do not find any denial of this specific allegation in the O.A. in the reply statement preferred by the 2[nd] respondent/Principal Secretary (Fin.). Moreover, we find that the above referred fact is taken note of and treated by the Tribunal in the impugned order as a _fait accompli,_ but justifying the same as one unavoidable, while implementing the subject pay revision recommendations. OP(KAT) NO. 438 of 2022 -: 10 :- **10.** With this prelude, let us address the legal consequence/impact of the above anomaly, which according to the petitioners, amounts to hostile discrimination, inviting the wrath of Articles 14 and 16 of the Constitution. Needless to say that the situation resultant to Annexure-A2 order, in the backdrop of the above referred admitted factual position, tantamount to discriminating the retirees like the petitioners _vis-a-vis_ their predecessors and successors (if we may employ such expression, for brevity). How far such discrimination violates the mandate of Articles 14 and 16 is the question to be examined, especially so on account of the disparity of the pension drawn by the petitioners _vis-a-vis_ the retirees, who retired prior to 1.7.2004. **11.** We may now refer to the following case laws in this regard: The first and foremost decision to be taken note of is a Constitution Bench decision of the Hon'ble Supreme Court in **D.S.Nakara and others v. Union of India –** [(1983) 1 SCC 305]. The issue before the Hon'ble Supreme Court was the legality and constitutionality of restricting the benefits of a liberalised formula for OP(KAT) NO. 438 of 2022 -: 11 :- computation of pension to those persons who have retired from service on or after 31.3.1979 and depriving the same to those who retired before the said date. One of the questions framed by the Hon'ble Supreme Court for consideration was : “Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attract Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of Article 14?” **12.** We may pause here for a moment to note that the liberalised pension formula was one consequent to the First Central Pay Commission, as are similar to the facts, which we are dealing with herein. After referring to the contours of Article 14 as elucidated in the celebrated cases in **In re Special Courts Bill, 1978** [(1979) 1 SCC 380]; **Menaka Gandhi v. Union of India** [(1978) 1 SCC 248]; **E.P.Royappa v. State of T.N.** [(1974) 4 SCC 3]; **Ajay Hasia v. Khalid Mujib Sehravardi** [(1981) 1 SCC 722]; **Air India v.** OP(KAT) NO. 438 of 2022 -: 12 :- ## **Nergesh Meerza** [(1981) 4 SCC 335] the Constitution Bench held ## thus: _“39. .........................................................................................._ _If this be the underlying intendment of liberalisation of pension scheme, can anyone be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee? What is the sum total of picture? Earlier the scheme was not that liberal keeping in view the definition of average emoluments and the absence of slab system and a lower ceiling. Those who rendered the same service earned less pension and are exposed to the vagary of rising prices consequent upon the inflationary inputs. If, therefore, those who are to retire subsequent to the specified date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired earlier with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupee. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specified date. The Government was perfectly justified in liberalising the pension scheme. In fact it was overdue. But we find no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but falling on one or the other side of the specified date._ _40. xxx xxx_ _41. xxx xxx_ _42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous_ OP(KAT) NO. 438 of 2022 -: 13 :- _class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. ................................................................_ _43. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Article 14.”_ **13.** We notice that the dictum laid down by the Constitution Bench in **Nakara** (supra) has since then been followed by the Hon'ble Supreme Court in a spate of cases, a few of which are noted here below: 1. **Surinder Singh and another v. Engineer-inChief, CPWD and others** [(1986) 1 SCC 639]; 2. **S.K.Chakraborty and others v. Union of India and others** [(1988) 3 SCC 575]; 3. **Subrata Sen and others v. Union of India and others** [(2001) 8 SCC 71]; 4. **Union of India v. S.R.Dhingra and others** [(2008) 2 SCC 229]; OP(KAT) NO. 438 of 2022 -: 14 :- ## 5. **State of Rajasthan and others v. Mahendra Nath Sharma** [(2015) 9 SCC 540]. **14.** Another important judgment of the Hon'ble Supreme Court, which we should note on account of its similarity of facts, is **Union of India and another v. SPS Vains (Retd.) and others** [(2008) 9 SCC 125]. The issue as framed by the Hon'ble Supreme Court in that case is as follows:- _“3. …....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 1-1-1996, when revision of pay scales took effect, be given the benefit of the provisions of the 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._ _4. The larger issue involved is whether there could be a disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter.”_ **15.** As could be seen from paragraph nos.6 and 7 of the judgment, the anomaly in **SPS Vains** (supra) also arose pursuant to the acceptance of the recommendations of the 5[th] Pay Commission, which resulted in a situation, where those employees who retired in the OP(KAT) NO. 438 of 2022 -: 15 :- same rank after 1.1.1996 would get much higher pension than the writ petitioners therein and other similarly placed officers, who retired prior to 1.1.1996. The Hon'ble Supreme Court found in paragraph no.27 that such a situation offends Article 14 of the Constitution. In paragraph no.28, the Hon'ble Supreme Court relied upon **D.S.Nakara** (supra) and took note of the dictum laid down therein that the date of retirement of an employee cannot form a valid criteria for classification and that specifying a cut off date resulted in differential and discriminatory treatment of equals in the matter of computation of pension, thus violating Article 14 of the Constitution. The Hon'ble Supreme Court accordingly dismissed the appeal preferred by the Department, frowning upon creation of a class within a class. **16.** In fact, the issue received the consideration of a Constitution Bench of the Hon'ble Supreme Court even prior to **D.S.Nakara** (supra) in **Purshottam Lal and others v. Union of India and another** [(1973) 1 SCC 651]. In that case, Pay Commission Recommendations were implemented with effect from July 1[st] 1959 OP(KAT) NO. 438 of 2022 -: 16 :- for all institutions and establishments under the Ministry, except the Forest Research Institute and Colleges, Dehradun. In F.R.I.C, Dehradun, the same was implemented with effect from 21.6.1962, the date on which the Government of India issued order revising the pay scales. This was frowned upon by the Hon'ble Supreme Court by holding thus in paragraph no.15: _“15. Mr.Dhebar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned.”_ **17.** In this regard, we should necessarily take note of certain subsequent decisions of the Hon'ble Supreme Court to ascertain whether the rigour of the dictum laid down in **D.S.Nakara** (supra) has been watered down. The first in this line is **Union of India v. P.N.Menon and others** [(1994) 4 SCC 68]. The subject matter of challenge therein was an O.M. dated 25.5.1979, which treated a OP(KAT) NO. 438 of 2022 -: 17 :- portion of the D.A. as pay, for the purpose of retirement benefits of Government servants who retired on or after 30.9.1977. Irrespective of the date of superannuation, the benefit of the O.M. should have been extended to all retired Government servants was the grievance urged. The High Court concerned allowed the writ application, relying upon **D.S.Nakara** (supra). The Hon'ble Supreme Court raised questions in paragraph no.6 of the judgment based on **D.S.Nakara** (supra) and in the touchstone of Article 14. The Supreme Court in paragraph no.8 sustained the action, pointing to the necessity of fixing a cut off date whenever a revision takes place, provided the implementation with effect from the cut off date is reasonable and rational in the light of Article 14. The decision also refers to the requirement of taking into account the financial constraints/resources of the Government. The Supreme Court took note of two options given to the employees who have retired within a specified period - to have the retirement benefit calculated on their pay, excluding the element of D.A; or the alternative to get the same recalculated taking into account the element of D.A – to find that, if the scheme is to be implemented without a cut off date, then the same OP(KAT) NO. 438 of 2022 -: 18 :- would become unworkable, for, those who have retired 20-25 years before the introduction of the scheme would also be entitled to the benefit of the scheme, which is one essentially linked with payment of D.A., based on the level of price index. **18.** The second decision to be taken note of is **State of Punjab and others v. Amar Nath Goyal and others** [(2005) 6 SCC 754]. Here again, the subject matter of challenge is a Circular dated 13.12.1996, issued pursuant to an interim report of the 5[th] Central Pay Commission, as per which, the Government employees, who retired on or after 1.4.1995, were entitled to get retirement benefits on the basis of addition of a portion of D.A. to their basic pay. The employees who retired between 31.7.1993 and 31.3.1995 sought for extension of the same benefit, which was refused. The High Court of Punjab and Haryana allowed the writ petitions, which were challenged by the State of Punjab before the Supreme Court. The thrust of the arguments by the employees was again based on **D.S.Nakara** , which however was distinguished on facts by the Supreme Court in paragraph no.29. The Hon'ble Supreme Court held OP(KAT) NO. 438 of 2022 -: 19 :- that the Pay Commission Recommendations will bind the Government only if it is accepted and implemented, consistent with the financial position of the Government, wherefore, fixing a cut off date for grant of retirement benefits can neither be irrational nor be arbitrary. **19.** The third decision is **State of A.P. and another v. A.P. Pensioners' Association and others** [(2005) 13 SCC 161]. In this case, the Hon'ble Supreme Court held beyond the shadow of any doubt that the financial implication is a relevant criterion for the State Government to determine as to what benefits can be granted pursuant to the recommendations of the Pay Revision Commission. On facts, it was held that it was the definite intention of the State not to grant any benefit towards gratuity in relation to those employees who retired between 1.7.1998 and 31.3.1999. **20.** Having referred to the three judgments of the Hon'ble Supreme Court afore-cited, we are of the opinion that the dictum laid down therein would not govern the instant facts before us, in perferance to OP(KAT) NO. 438 of 2022 -: 20 :- what has been laid down by the Constitution Bench in **D.S.Nakara,** followed by a two Judges Bench in **SPS Vains** (supra). The primary distinction which we notice in the instant facts is that the subject matter of challenge is not the implementation of the 8[th] Pay Revision Commission Recommendations with effect from the cut off date, that is, 1.7.2004. Nor is the grievance espoused to extend the benefit to those who retired prior to the cut off date. Instead, the specific grievance is the prejudice caused to the retirees, who retired between 1.7.2004 and 31.3.2005, who can draw only a pension lesser than those who retired prior to 1.7.2004. **21** . The second distinguishing feature which we take note of is that the anomalous situation narrated above is not a conscious creation of the State Government, but is only formed by default. In other words, the specie class, within the larger genus of pensioners, is created by default, wherefore, it is futile to search for any _intelligible differentia_ or for that matter, any _rational nexus_ between the class formed and object sought to be achieved. Thus, without a conscious call being made by the Government, the revised pension of the specie class like OP(KAT) NO. 438 of 2022 -: 21 :- the petitioners is less than the one drawn by the Government employees, who retired prior to them. One can understand if the employees who retired on or after a cut off date is given a better benefit than their predecessors, the benefit possibly stems on the basis of the cost of living index. However, there is no justification, whatsoever, in law, if a class of retired employees have to draw a pension lesser than their predecessors, more so when no plausible explanation is forthcoming on the part of the Government. No financial constraint was espoused to confine the petitioners' class alone to suffer a prejudice/jeopardy. We are therefore of the definite view that the three decisions which thinned down the dictum laid down in **D.S.Nakara** (supra) cannot come to the rescue of the respondent State. **22.** In the light of the above authoritative pronouncements of the Apex Court, the legal position is well settled that creation of a class within a class, especially when there exists no rational nexus between the class so constituted and object sought to be achieved by such intra-classification within the class, is surely impermissible in law. In OP(KAT) NO. 438 of 2022 -: 22 :- the instant facts, we notice that as between pensioners who constitute a class, another class is created - though not intentionally but by default – amongst the retirees who has retired between 1.7.2004 and 31.3.2005, with a deleterious consequence that they are compelled to draw a pension lesser than those who have retired prior to 1.7.2004 and subsequent to 31.3.2005. The resultant situation is squarely in the teeth of the prohibition in Article 14 of the Constitution, as also, the dicta laid down in **D.S.Nakara** and **SPS Vains** (supra). We cannot therefore approve the logic/reasoning adopted by the Tribunal in refusing relief to the petitioners. It is true that pay revision orders are issued based on the recommendations of an expert body. However, for that reason, such orders cannot be completely insulated from judicial review, especially when implementation of the recommendations, vide orders like AnnexureA2, results in formation of a class within a class and discriminating the specie class from the genus, for a differential treatment to the detriment of the former. OP(KAT) NO. 438 of 2022 -: 23 :- **23.** Coming to the facts, we notice that neither Annexure-A5, nor Annexure-A8 afforded any solace to the above well conceived grievance of the petitioners. That apart, Annexure-A1 order, vide Clause 28, only stipulates that those retiring after 1.7.2004 will have their pension revised based on their revised pay scales. It is by virtue of Annexure-A2, vide Clause 2.3, that the petitioners are put to prejudice by virtue of the direction that, for computing 10 months emoluments for the purpose of pension in respect of employees who retired on or after 1.7.2004 and who, during part of the said period of 10 months drew pay in the pre-revised scale, their pre-revised scale, enhanced notionally by adding DA at 59% alone will be reckoned, thereby giving a go bye to the fitment benefit conferred by clause 15 of Annexure-A1 G.O. We cannot, but find that the retirees like the petitioners, who are apparently entitled to the benefit of Annexure-A1 pay revision order implemented with effect from 1.7.2004, had in fact been deprived of the same by virtue of the mandate under Clause 2.3 to Annexure-A2, whereby they are entitled to reckon only the pre-revised scale, together with DA at 59%, which will always be the formula in vogue before a Pay Commission Recommendation is accepted and implemented. OP(KAT) NO. 438 of 2022 -: 24 :- **24.** Having found so, what remains pertains to the appropriate remedial course of action. Ordinarily, we would have remitted the matter to the appropriate authority in the Government to reconsider the issue and to pass appropriate orders, remedying the anomaly. However, in the instant facts, we notice that the matter was remitted twice to the Government, first by virtue of Annexure-A4 interim order of the Tribunal dated 18.5.2015 and thereafter, by the final order of the Tribunal dated 19.1.2017, both in T.A.No.6162/2012. Annexures-A5 and A8 are the respective resultant G.Os. issued pursuant to Annexures-A4 and A6 orders, both of which failed to address the specific issue remitted for consideration. We notice that in Annexure-A5, as also in Annexure-A8, the Government had only reiterated its stand in Annexure-A2 G.O and we cannot find any additional benefit afforded to the petitioners than what is contemplated in Annexure-A2. We, therefore, find that it would be futile to remit the matter again to the Government for reconsideration. In this regard, we refer to the specific contention in the O.A. that the petitioners are entitled to reckon their pension calculated on the basis of the revised scales pursuant to Annexure-A1 OP(KAT) NO. 438 of 2022 -: 25 :- G.O., which by virtue of clause 15 affords fitment benefit as well. This, in fact, is the direction contained in Clause 28 of Annexure-A1 G.O. as well. We are therefore inclined to accept the said yardstick for the purpose of moulding the reliefs. **25.** In the result, Annexure-A8 order is set aside and we allow this O.P. as follows: 1. The Government shall re-fix the pension of the petitioners within a period of two months from the date of receipt of a copy of this judgment by adopting an appropriate scale, ensuring that such pension is not lesser than the pension received by the Government employees, who retired from service prior to 1.7.2004 and subsequent to 31.3.2005. 2. In case the Government fails to comply with relief no.1, the petitioners will be entitled to draw their pension calculated on the basis of the revised pay scale, as indicated in Clause 28 of Annexure-A1 G.O., including the fitment benefit referred to in clause 15 thereto. OP(KAT) NO. 438 of 2022 -: 26 :- 3. In either case of relief 1 or relief 2, the petitioners would be entitled to all other benefits together with arrears of pension, calculated on the basis of the pension to be re-fixed in accord with relief 1 or relief 2, as the case may be, which the respondents shall pay within a period of three months from the date of receipt of a copy of this judgment, together with interest at the rate of 6% per annum. The impugned Ext.P4 final order dated 29.3.2022 rendered by the Kerala Administrative Tribunal will stand set aside. With these observations and directions, the above O.P.(KAT) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, ACTING CHIEF JUSTICE** **Sd/-** **C. JAYACHANDRAN, JUDGE** skj ## **APPENDIX OF OP(KAT) 438/2022** ||**APPENDIX OF OP(KAT) 438/2022**| |---|---| |PETITIONERS'|ANNEXURES| |Exhibit P1|TRUE COPY OF THE O.A. NO.547/2019 ALONG WITH| ||ANNEXURES PRODUCED THEREIN, FILED BEFORE THE| ||K.A.T, THIRUVANANTHAPURAM.| |Annexure A1|TRUE COPY OF THE G.O.(P) 125/ 06/FIN DATED| ||17.3.2006.| |Annexure A2|TRUE COPY OF THE G.O.(P) 180/ 06/FIN DATED| ||18.4.2006| |Annexure A3|TRUE COPY OF STATEMENT SHOWING THE DIFFERENCE| ||IN PENSION| |Annexure A4|TRUE COPY OF THE INTERIM ORDER DATED| ||18.5.2015 OF K.A.T. IN I.A.NO.6162/2012.| |Annexure A5|TRUE COPY OF THE G.O.(RT) 8230/ 2015/FIN| ||DATED 16.9.2015.| |Annexure A6|TRUE COPY OF THE ORDER IN T.A.6162/2012 BY| ||KAT DATED 19.1.2017| |Annexure A7|TRUE COPY OF REPRESENTATION OF APPLICANT TO| ||2ND RESPONDENT| |Annexure A8|TRUE COPY OF THE G.O.(P) NO.159/2017 DATED| ||27.12.2017| |Annexure A9|TRUE COPY OF RELEVANT EXTRACT OF PARAGRAPH| ||8.1.25 OF THE RECOMMENDATIONS OF 8TH PAY| ||COMMISSION.| |Exhibit P2|TRUE COPY OF THE REPLY FILED BY THE| ||RESPONDENTS IN O.A.NO.547/2019 BEFORE THE| ||K.A.T.| |Exhibit P3|TRUE COPY OF THE REJOINDER FILED BY THE| ||PETITIONERS.| |Annexure A10|TRUE COPY OF THE G.O.(P) 373/ 99/FIN DATED| ||2.2.99| |Annexure A11|TRUE COPY OF THE G.O.(P) 59/ 2019/FIN DATED| ||22.5.2019.| |Annexure A12|TRUE COPY OF G.0.(P) 89/2019/ FIN DATED| ||17.7.2019.| |Exhibit P4|TRUE COPY OF THE JUDGMENT IN 0.A.NO.547/2019| ||DATED 29.3.2022| |Exhibit P5|TRUE COPY OF G.O.(P) 230/2012/FIN| ||DATED 19.4.2012.| |Exhibit P6|TRUE COPY OF G.O.(P) 211/2011/ FIN| ||DATED 7.5.2011|