Common Cause a Registered Society
& Ors Vs. Union of India [1986] INSC 258 (9 December 1986)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
(CJ)
CITATION: 1987 AIR 210 1987 SCR (1) 497 1987
SCC (1) 142 JT 1986 991 1986 SCALE (2)974
CITATOR INFO:
RF 1988 SC1407 (3) R 1988 SC2125 (3) D 1990
SC1228 (1)
ACT:
Central Civil Services (Commutation. of
Pension) Rules, 1981-Commuted value of pension--Deduction from monthly
pension-Restoration of--After completion of 15 years from date of
retirement--Both for Civilian employees and Armed Forces personnel--Benefit
effective from April 1, 1985.
HEADNOTE:
The Central Civil Services (Commutation of
Pension) Rules, 1981 are the rules applicable to civilian employees under the
Government of India. In regard to Defence personnel a similar set of
regulations is in force. In the case of civilians the total amount of pension
which can be commuted is upto onethird, while in the case of Defence personnel,
commutation is admissible upto 43% in the case of officers and upto 45% in
respect of other ranks.
In petitions under Article 32, the
petitioners have asked for striking down certain provisions of the said Rules
as they permit the Union to recover more than what is paid to the pensioners
upon commutation and for a direction that an appropriate scheme rationalising
the provisions relating to commutation be brought into force because there has
been a substantial improvement in the life expectancy of the people, and since
commutation portion out of the pension is ordinarily recovered within about 12
years, there is no justification for fixing the period at 15 years.
The respondent--Union of India challenged the
maintainability of the petitions as also the claim of the petitioners. On the
suggestion of the Court, the Union of India examined the matter and agreed to
restore the commuted portion of the pension in regard to civilian employees at
the age of 70 years or after 15 years, whichever is later, effective from April
1, 1986. So far as Defence employees were concerned, it was contended that
retirement in their case was at an early age and merely with 1apse of a period
of 15 years full pension could not be restored because they receive in
consideration of the exigencies of the service a higher rate of pension as
compared to civilian employees and the benefit contained in the Government
order cannot be extended to all classes of Defence personnel.
Allowing the petitions, 498
HELD: 1. When a pensioner commutes any part
of his pension upto the authorised limit, his pension is reduced for the
remaining part of his life by deducting the commuted portion from the monthly
pension. [501 B]
2. Commutation brings about certain
advantages. The commuting pensioner gets a lump sum amount which ordinarily he
would have received in course of a spread over period subject to his continuing
to live. Two advantages are certainly forthcoming out of commutation--(1)
availability of a lump sum amount, and (2) the risk factor. Many State Governments
have already formulated schemes accepting the 15 years rule. This Court would
not be justified in disturbing the 15 years formula so far as civilian
pensioners are concerned.
[501 C-D]
3. On the expiry of 15 years from the date of
retirement, restoration of commuted value of pension would take place and it
would be just and equitable that the benefit of commuted portion of the pension
should be effective from 1.4.1985 so far as civilian employees are
concerned.[500 E, 501 G]
4. The decision of the respondent--Government
does not cover all classes of Defence personnel, having been confined to
personnel of Armed Forces in whose case the retirement age varies in accordance
with the colour service prescribed for the rank (attaining the age of 37/38
years or more).
Previously the retiring age for the lower
ranks such as sepoys, used to be after 15 years' service but now it has been
enhanced to 20 years' service. A sepoy retiring after 20 years' service is
entitled to 5 years of weightage, for his pension entitlement. Similarly a Naik
retiring after 22 years' of service and a Havildar after 24 years' service are
also given credit of five yeats. While a civilian employee ordinarily retires
after a full term of service entitling him to full pension, it does not happen
in the case of the lower ranks in the Defence services and with the extraadvantage
by the addition of years of credit, the benefit in terms of money works out in
the range of about 75% to 6%.
[501 H-502 B]
5. More than 50% of the Defence personnel
belong to the lowest rank and about 81% in all retire early. The weightage
factor relied upon by the respondent to treat the Defence personnel differently
is not a tenable feature. The Defence personnel are a class by themselves. In
their case, retirement takes effect in certain classes as justified by the
exigencies of the service rather early. Weightage, if any, is intended to cover
this so that an equation for other purposes could be established. There is no
merit in the stand of respondent that the early age of retirement is fully
compensated by the higher rate of pension. [502C -D]
6. No separate period need be fixed for the
Armed Forces personnel and 499 they should also be entitled to restoration of
the commuted portion of the pension on the expiry of 15 years as is conceded in
the case of civil pensioners, and for them too the effective date should be
from 1.4.1985. [502 F-G]
7. In dealing with a matter of this nature it
is not appropriate to be guided by the example of Life Insurance;
equally unjust it would be to adopt the
interest basis. The conclusion should be evolved by relating it to the 'years
of purchase' basis. An addition of two years to the period necessary for the
recovery on the basis of years of purchase justifies the adoption of the 15
year rule, which appears to be equitable. [502 E]
ORIGINAL JURISDICTION: Writ Petition No.
3958-61 of 1983.
(Under Article 32 of the Constitution of
India) H. Salve, P.H. Parekh and P.K. Manohar, for the Petitioners.
P.P. Singh, R.D. Agarwala, Ms. S. Relan,
C.V.S. Rao, L.R. Singhand S.R. Srivastava for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. By these applications under Article 32 of the Constitution
Common Cause, a registered Society and three retired Government servants have
asked for striking down certain provisions of the Communication of Pension
Rules applicable to civilian and defence pensioners as they permit the Union of
India to recover more than what is paid to the pensioners upon commutation and
for a direction that an appropriate scheme rationalising the provisions
relating to commutation be brought into force. The respondent has filed a
counter-affidavit challenging the maintainability of the petition as also the
claim of the petitioners and the matter has been heard at considerable length
from time to time. Parties have filed written submissions supplementing their
oral arguments.
The Central Civil Services (Commutation of
Pension), Rules, 1981 are the approximate rules in force so far as civilian
employees Under the Government of India are concerned. A set of regulations is
in force in regard to Defence personnel.
It is not disputed that in the case of
civilians the total amount of pension which can be commuted is upto onethird
while in the case of Defence personnel, commutation is admissible upto 43 per
cent in the case of officers 500 and upto 45 per cent in respect of other
ranks. The argument advancement on behalf of the petitioners that there has
been a substantial improvement in the life expectancy of the people in India has
not been refuted on behalf of the respondent. This Court suggested to the
respondent in course of the hearing that in the changed situation now
prevailing in the country, a new look should be given to the matter. In
deference to the suggestion made by this Court the respondent took time to
consider the various aspects raised in the writ petitions and the oral
submissions advanced at the hearing as also the written notes submitted in
Court. II also took into account the fact that several State Governments have
changed the rule applicable to commutation and have restored full pension to
the pensioners who commuted a part of their pension after lapse of fifteen
years. Union of India has now agreed to restore the commuted portion of the
pension in regard to all civilian employees at the age of seventy years or
after fifteen years, whichever is later, and has agreed to make this effective
from April 1, 1986.
This decision of the Respondent was
communicated to the learned Attorney General by a letter dated 20.3.1986
reading thus:
"I am glad to inform you that Government
has taken a decision in the matter of recovery from pension towards commuted
value of pension. The decision is as follows:
(i) Recovery from pension payable every month
towards commuted value of pension will stop on the completion of 15 years from
the date of retirement on superannuation or on the pensioner completing the age
of 70 years, whichever is later.
(ii) The formulation will apply to all civilian
pensioners in whose case the age of retirement on superannuation is 58 years
and the personnel of Armed Forces in whose case the retirement age varies in
accordance with the colour service prescribed for the rank (attaining the age
of 37/38 years or more).
(iii) Government have taken this decision as
an act of goodwill to pensioners and to 'extend to them some measure of relief
in the evening of their lives. It is sincerely believed that there will be no
further demand on this issue and that the pensioners will accept the decision
of the Government without dissent or reservation.
(iv) The decision will take effect prospectively
(from April, 1, 1986)." 501 A distinction has been made in the case of
Defence employees on the ground that retirement in their case is at an early
age and merely with lapse of a period of fifteen years full pension could not
be restored. It has also been pointed out that the Defence personnel receive in
consideration of the exigencies of the service a higher rate of pension as compared
to civilian employees.
As the position now stands, when a pensioner
commutes any part of his pension upto the authorised limit his pension is
reduced for the remaining part of his life by deducting the commuted portion
from the monthly pension.
The petitioners have contended that the
commuted portion out of the pension is ordinarily recovered within about 12
years and, therefore, there is no justification for fixing the period at 15
years. Commutation brings about certain advantages. The commuting pensioner gets
a lump sum amount which ordinarily he would have received in course of a spread
over period subject to his continuing to live. Thus, two advantages are
certainly forthcoming out of commutation--(1) availability of a lump sum
amount, and (2) the risk factor. Again many of the State Governments have
already formulated schemes accepting the 15 year rule. In this background, we
do not think we would be justified in disturbing the 15 year formula so far as
civilian pensioners are concerned.
The age of superannuation used to be 55 until
it was raised to 58. It is not necessary to refer to the age of the commuting
pensioner when the benefit would be restored. It is sufficient to indicate that
on the expiry of fifteen years from the period of retirement such restoration
would take place.
The respondent--Government has agreed that
this benefit should be extended with effect from 1.4.1986. The writ
applications were filed in 1983. The matter was placed on board for hearing in
February 1984. The Union Government took some time for responding to the
suggestion of the Court and that is how the disposal was initially delayed.
Thereafter, the hearing of the matter has again been delayed on account of
pressing business in the Court. In these circumstances, we think it just and
equitable that the benefit agreed to be extended in respect of the commuted
portion of the pension should be effective from 1.4.1985 so far as the civilian
employees are concerned.
The decision of the respondent--Government
contained in the above communication does not cover all classes of Defence
personnel having been confined to personnel of Armed Forces in whose case the
retirement age varies in accordance the colour service prescribed for the rank
(attaining the age of 37/38 years or more). In regard to those who are excluded
it has been contended that the retirement is at too early an age and since a
higher rate of 502 pension as compared to civilian employees is admissible, the
benefit contained in the Government order cannot be extended to that class.
Previously the retiring age for the lower ranks such as sepoys, used to be
after 15 years' service but now it has been enhanced to 20 years' service. A
sepoy retiring after 20 years' service is entitled to five years of weightage,
for his pension entitlement. Similarly a Naik retiring after 22 years of
service and a Havildar after 24 years' service are also given credit of five
years. While a civilian employee ordinarily retires after a full term of
service entitling him to full pension, it does not happen in the case of the
lower ranks in the Defence services and with the extra-advantage by the
addition of-years of credit, the benefit in terms of money works out in the
range of about 75% to 6%. It has to be remembered that more than 50% of the
Defence personnel belong to the lowest rank and about 81% in all retire early.
The weightage factor relied upon by the Respondent to treat the Defence
personnel differently is not a tenable feature. Undoubtedly the Defence
personnel are a class by themselves. In their case, retirement takes effect in
certain classes as justified by the exigencies of the service rather-early.
Weightage, if any, is intended to cover this so that an equation for other
purposes could be established. There is really no merit in the stand of the
Respondent that the early age of retirement is fully compensated by the higher
rate of pension.
In dealing with a matter of this nature, it
is not appropriate to be guided by the example of Life Insurance;
equally unjust it would be to adopt the
interest basis. On the other hand, the conclusion should be evolved by relating
it to the 'years of purchase' basis. An addition of two years to the period
necessary for the recovery on the basis of years of purchase justifies the
adoption of the 15 years rule. That is more or less the basis which appears to
be equitable. It may be that this would give rise to an additional burden on
the exchequer but it would not be heavy and after all it would bring some
relief to those who have served the cause of the Nation at great sacrifice. We
are, therefore, of the view that no separate period need be fixed for the Armed
Forces personnel and they should also be entitled to restoration of the
commuted portion of the pension on the expiry of 15 years as is conceded in the
case of civil pensioners. And for them too the effective date should be from
1.4.1985.
We direct the respondent--Government to give
effect to this order within a period of three months from now. We place on
record our appreciation of the consideration shown by the Union of India to
ameliorate the hardship of the pensioners. There will be no order as to the
costs.
A.P.J. Petitions allowed.
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