R. C. MANKAD, J. ( 1 ) PETIONER a retired Chief Commissioner of Income_ tax has filed this petition challenging the constitutional validity of Office Memoranda (`o. M. for short) collectively marked Annexure `b to the petition to the extent to which eligibility for liberalized pension scheme is made applicable only to those government servants who retired on or after 31/03/1985 The contention of the petiti- oner is that the eligibility criterion for liberalized pension scheme the government servant should have retired on or after 31/03/1985 in the memoranda Annexure `b violates Article 14 and is unconstitutional and consequently the words who retired on or after 31st March 1985 used in the said 0. M. should be struck down. ( 2 ) PETITIONER who retired as Chief Commissioner of Income-tax (Administration) and Commissioner of Income-tax Gujarat-I on 30/09/1984 was a Central Government Servant and Central Civil Services (Pension) Rules 1972 (hereinafter referred to as the Rules) were applicable to him. When petitioner retired from service the total emoluments of the petitioner were as under:basic pay: rs. 2 750 special pay: rs. 250/- interim Relief by Pay Commission: rs. 100/- dearness Allowance: rs. 1 650 additional Dearness Allowance: rs. 600/- city Compensatory Allowance: rs. 75/- -- total. . . Rs. 5 425 --Rule 3 (1) (c) definesemoluments to mean emoluments as defined in Rule 33. Defining emoluments Rule 33 lays down as follows:"expression emoluments means pay as defined in Rule 9 (2) of the Fundamental Rules (including Dearness Pay as determined by the order of the Government issued from time to time) which a government servant was receiving immediately before his retirement or on the date of his death". It is also important to refer to sub-rule (1) of rule 5 on which reliance was placed on behalf of the respondents and it reads as under:"any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a government servant retires or is retired or is discharged or is allowed to resign from service or dies as the case may be". It is the contention of the respondents that Rule 33 has to be read with Rule 5 and therefore for the purpose of determining the pension and gratuity payable to the government servant on his retirement the relevant emoluments are the emoluments drawn by him on the date of retirement. It is the contention of the respondents that Rule 33 has to be read with Rule 5 and therefore for the purpose of determining the pension and gratuity payable to the government servant on his retirement the relevant emoluments are the emoluments drawn by him on the date of retirement. ( 3 ) UNDER the pension formula in force at the time of retirement of the petitioner on 30/09/1984 part of Dearness Allowance (`d. A. for short) was to be treated as pay or Dearness Pay ( D. P. for short) for the purpose of calculation of pension. For the purpose of pension petitioners emoluments were worked out as follows:basic Pay: Rs. 2 750 special Pay: Rs. 250. 00 interim relief: Rs. 100. 00 part of D. A. : Rs. 370. 00 -- total. . . . Rs. 3 470 --Pension payable to the petitioner under the pension formula in force at the time of retirement worked out to Rs. 1513. 00per month. However in the pension formula there was a ceiling of Rs. 1500. 00 per month in regard to pension payable to a government servant. Therefore petitioner was entitled to pension of Rs. 1500. 00 per month. Out of this pension payable to him petitioner was entitled to commute one third of the value of the pension that is Rs. 500. 00 per month. Petitioner took benefit of commutation of Rs. 500. 00 per month out of his pension of Rs. 1500. 00 per month and consequently after commutation the pension payable to him was Rs. 1000. 00 per month. ( 4 ) BY O. M. No. F. 1 (12)-EV/84 dated 30/04/1985 pension scheme was liberalized and it was decided that the entire Additional D. A. and ad hoc D. A. sanctioned in the Finance Ministrys O. M. No. 1301771 E. II (B) dated 19/01/1985 (linked to average index level 568) should be treated as dearness pay in addition to the D. P. treated as part of pay vide Finance Ministrys O. M. dated 25/05/1979 amended vide O. M. dated 30/12/1981 for the purpose of retirement benefits in respect of government servants who retire on or after 31/03/1985 to the extent specified in the O. M. Para 3 (i) of the O. M. laid down that D. P. indicated above shall count as emoluments for pension and gratuity in terms of Rule 33 of the Rules. Para 3 (ii) of the O. M. laid down that except as stated in the subsequent provisions the average emoluments under rule 34 of the Rules shall be determined on the above basis. Para 3 (iii) is not relevant for our purpose and it is not disputed that the provisions contained therein have been subsequently deleted. Government servant was given option to opt for pension payable under the old schedule or the pension payable under the new liberalized scheme. However para 5 of the O. M. made it clear that ceiling on maximum amount of gratuity raised from Rs. 36 0 to Rs. 50 0 vide Finance Ministrys O. M. No. F. 1 (12)-E. V. /84 dated 29/04/1985 shall be applicable to both who opt for merger of D. P. or not in terms of paragraph 4 of the O. M. which provided for exercise of option as indicated above. Para 8 of the O M. provided that there would be no ceiling on the amount of monthly pension for government servants retiring on or after 31/03/1985 In other words ceiling of Rs. 1500. 00 per month on the pension payable to government servants was lifted. By O. M. No. 27/5/84-Pension Unit dated 21/06/1985 the Government of India decided that for the purpose of average emoluments under rule 34 of the Rules the D. A Additional D. A. and ad hoc D A. upto average index level 568 shall be treated as D. P. with effect from the dates from which these were sanctioned. Petitioners grievance is that he has not been given the benefit of the aforesaid Memoranda by which pension scheme was liberalized. Petitioner has not been given the benefit of the liberalized pension scheme because according to the respondents this scheme is applicable only to those government servants who retired on or after 31/03/1985 As already observed above petitioners contention is that liberalized pension scheme to the extent to which it is made applicable to only government servants mho retired on or after March 31 1985 is violative of Article 14 of the Constitution. ( 5 ) AS already observed above the contention of the respondents is that according to the provisions of sub-rule (1) of rule 5 of the Rules any claim to pension of family pension shall be regulated by the provisions of the rules in force at the time when the Government servant retires or is retired or is discharged or is allowed to resign from service or dies as the case may be. At the time of retirement of the petitioner from service that is on 30/09/1984 there was no provision in the rules for treating D A. Additional D. A. Ad hoc. D. A. upto the average index level 568 as D. P. for calculation of the average emoluments for the purpose of pension. He is therefore not governed by the provisions contained in the O. M collectively marked Annexure `b. It is in the backdrop of the facts stated above and the contention raised on behalf of the respondents that the question arises whether the words who retired on or after 31/03/1985 used in the O. M. dated 30/04/1985 are violative of Article 14 of the Constitution. ( 6 ) IDENTICAL question with reference to O. M. No. F-19 (3)-EV-79 dated 25/05/1979 had come up for consideration before the Supreme Court in D. S. Nakara v. Union of India A. I. R. 1983 S. C. 130. In that case petitioner No. 1 had been a civil servant and petitioner No. 2 was a member of Services Personnel of armed forces. Third petitioner was a society sponsoring the cause of the petitioners. Government of India Ministry of Finance issued O. M. dated 25/05/1979 whereby formula for computation of pension was liberalized. It made it applicable to Government servants who were in service on 31/03/1979 and retired from service on or after that date. By Memorandum of Ministry of Finance dated 28/09/1979 the liberalized pension formula introduced for the government servants governed by the Rules was extended to the armed forces personnel with a condition that the new rules of pension would be effective from 1/04/1979 to those service officers only who become ineffective on or after that date. By Memorandum of Ministry of Finance dated 28/09/1979 the liberalized pension formula introduced for the government servants governed by the Rules was extended to the armed forces personnel with a condition that the new rules of pension would be effective from 1/04/1979 to those service officers only who become ineffective on or after that date. Petitioners contended that the differential treatment for those retiring prior to a certain date and those retiring subsequently the choice of the date being wholly arbitrary would be according differential treatment to pensioners who form a class irrespective of the date of retirement and therefore would be violative of Article 14 of the Constitution. It was also contended that classifications based on fortuitous circumstance of retirement before on subsequent to a date fixing of which is not shown to be related to any rational principle would be equally violative of Article 14. Desai J. speaking for the Constitution Bench of the Supreme Court observed that the burden lay upon the State to affirmatively establish that the twin tests are satisfied namely that the classification is founded on intelligible differentia which distinguishes persons grouped together from those that are left out of the group and that the differentia has a rational nexus to the object sought to be achieved by the statutory provision in question. The petitioners for the purpose of pension benefits it was held form a class. Therefore the classification drawn was devoid of rational principle and arbitrary. It was observed:"it is 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 class to be divided by arbitrary 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 object sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalize the pension scheme we find no rational principle behind it for granting those benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalize the pension scheme we find no rational principle behind it for granting those benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to Government servants then those who retired earlier cannot be worst off than those who retire later. Therefore this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving some thing more to persons otherwise equally placed it would be discriminatory. To illustrate take two persons one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension. One retiring a day earlier will have to be subject to ceiling of Rs. 8 100 p. a. and average emolument to be worked out of 36 months salary while the other will have a ceiling of Rs. 12 0 p. a. and average emolument will be computed on the basis of last ten months average. The artificial division stares into face and is unrelated to any principle and whatever principle if there be any has absolutely no nexus to the objects sought to be achieved by liberalizing the pension scheme: In fact this arbitrary division has not only no nexus to the liberalized pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character since the specified date the rules accord differential and discriminatory treatment to equals in the matter of computation of pension. A 48 hours difference is matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprinciples. Therefore the classification does not stand the test of Article 14". A 48 hours difference is matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprinciples. Therefore the classification does not stand the test of Article 14". ( 7 ) THEIR Lordships of the Supreme Court further affirmed that there is nothing immutable about the choosing of an event as an eligibility criteria subsequent to a specified date if the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having na rationale for selecting it and having an undesirable effect of dividing homogeneous class and of introducing the discrimination the same can be easily severed and set aside. It is well settled that a statute is not retroactive because a part of the requisites for its action is drawn from a time antecedent to its passing. The principle of reading down the enactment was adopted and the contention for the Union of India that principle of severability could not beapplied to augment the class was repelled pointing"we are not sure whether there is any principle which inhibits the Court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification by striking down words of limitation the resultant effect may be enlarging the class. In such a situation the Court can strike down the measure. We know of no principle that severance limits the scope of legislation and can never enlarge it". Accordingly both the impugned memoranda were read down for implementation on severing the provision contained in them that they applied to Government servants/service officers retiring/becoming effective on or after 31/03/1979 The date mentioned in the memoranda was found relevant as being one from which the liberalized pension scheme became operative to all pensioners governed by the Rules irrespective of the date of retirement. It was however clarified that arrears of pension prior to the specified date as per computation was not admissible. Omitting the unconstitutional part it was declared that all pensioners governed by the Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalized pension scheme from the specified date irrespective of the date of retirement. It was however clarified that arrears of pension prior to the specified date as per computation was not admissible. Omitting the unconstitutional part it was declared that all pensioners governed by the Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalized pension scheme from the specified date irrespective of the date of retirement. ( 8 ) VIEWED in the light of the law laid down by the Supreme Court in the case of D. S. Nakara (supra) which clearly covers the dispute it may be observed that except for the fact that petitioner retired from service prior to 31/03/1985 there is no other basis for denial to him of the liberalized pension scheme under two O. M. Annexure B referred to above. The learned Standing Counsel for the respondents was not able to point out any relevant or valid consideration for selection of eligibility criteria laid down in the two O. M. The only contention which is raised on behalf of the respondents as pointed out above is that having regard to the provisions contained in Rule 5 of the Rules petitioner would be governed by the rules as they were in force on the date of his retirement that is 30/09/1984 arid therefore he was not entitled to the benefit of liberalized pension scheme in the two O. M. It was submitted that Rules 5 and 33 have to be read together to find out whether petitioner would be entitled to liberalized pension scheme under the two impugned O. M. and if they are so read it was obvious that he was not entitled to this benefit. It was urged that Rules 5 and 33 have not been considered by the Supreme Court in D. S. Nakaras case and therefore it was open to this Court to take a different view from the one taken by the Supreme Court having regard to the provisions contained in those rules. The argument advanced on behalf of the respondents is devoid of any substance. The rules were before the Supreme Court and it would not be open to the respondents to urge that Rules 5 and 33 of the Rules on which reliance is placed by them were not considered by the Supreme Court. The argument advanced on behalf of the respondents is devoid of any substance. The rules were before the Supreme Court and it would not be open to the respondents to urge that Rules 5 and 33 of the Rules on which reliance is placed by them were not considered by the Supreme Court. In any case it is not open to this Court to say that since no reference is made to Rules 5 and 33 as urged on behalf of the respondents the decision of the Supreme Court in D. S. Nakaras case is not binding on this Court. In my opinion the present case will be governed by the decision of the Supreme Court in D. S. Nakaras case and it is not open to this Court to take a view different from the one taken by the Supreme Court. ( 9 ) AS discussed above there is no legitimate basis for discriminating against those whose retirement had taken place before 31/03/1985 In the absence of valid reasons the criteria for eligibility for reaping the benefit of liberalized pension scheme prescribed by the two impugned O. M. must be held to be arbitrary and irrelevant. The amelioration in the pensionery benefit must extend to all covered under the class of retired Government Servants without regard to the question whether the Government Servant had retired from service before or after 31/03/1985 The division or criterion prescribed by the impugned O. M. is unsupportable being devoid of rational principle; the object being evidently to give something more in the form of additional pensionery benefit to persons otherwise equally placed the line drawn at the said date is clearly discriminatory. I consequently hold that the eligibility for liberalized pension of having retired on or after 31/03/1985 under the two impugned O. M. violates Article-14 and it is unconstitutional. As held by the Supreme Court in D. S. Nakaras case eligibility for liberalized pension scheme that Government Servant should have retired on or after 31/03/1985 is liable to be struck down. This arbitrary and discriminatory portion in the O. M. can be easily severed and both the Memoranda can be enforced and implemented after severance of unconstitutional part. Accordingly the petitioner a pensioner governed by the rules shall be entitled to pension as computed under the liberalized pension scheme from 31/03/1985 irrespect of his date of retirement. This arbitrary and discriminatory portion in the O. M. can be easily severed and both the Memoranda can be enforced and implemented after severance of unconstitutional part. Accordingly the petitioner a pensioner governed by the rules shall be entitled to pension as computed under the liberalized pension scheme from 31/03/1985 irrespect of his date of retirement. Petitioner is therefore entitled to the benefit of liberalized pension scheme as contained in the two O. M. collectively marked Annexure-B. Consequently his pension shall have to be refixed on the basis of the said two Memoranda and he shall also be entitled to the benefit of commutation of one third of his pension on the basis of relaxed pension. This petition must therefore succeed. ( 10 ) IN the result this petition is allowed. The liberalized pension scheme as contained in Office Memoranda collectively marked Annexure B is held to be illegal and unconstitutional violative of Article 14 of the Constitution to the extent that the benefit of the liberalized pension scheme is extended only to those Government Servants who retire on or after 31/03/1985 Petitioner who is governed by the Central Civil Services (Pension) Rules 1972 shall be entitled to pension as computed under the liberalized pension scheme under the said two impugned Office Memoranda Annexure B from 31/03/1985 irrespective of the date of retirement. There will be no ceiling of Rs. 1500. 00 per month in fixing the pension. Petitioners pension shall be redetermined under Office Memorandum dated 30/04/1985 and for that purpose average emoluments under Rule 34 of the Central Civil Services (Pension) Rules 1972 Dearness Allowance Additional Dearness Allowance and Ad hoc Dearness Allowance linked upto the average index level 568 shall be treated as Dearness Pay with effect from the dates from which these were sanctioned. Petitioner shall also be entitled to commute one third of the pension so determined as per the rules. Petitioner shall also be entitled to death-cum-retirement gratuity as per liberalized pension scheme under which the limit of gratuity is raised from Rs. 36 0 to Rs. 50 0 Respondents are directed to refix the pension pay arrears of difference in pension as a result of such refixation additional commuted value of pension and additional gratuity as stated above within two months from the date of receipt of the writ of this Court. Rule made absolute accordingly with no order as to costs. 36 0 to Rs. 50 0 Respondents are directed to refix the pension pay arrears of difference in pension as a result of such refixation additional commuted value of pension and additional gratuity as stated above within two months from the date of receipt of the writ of this Court. Rule made absolute accordingly with no order as to costs. Writ to be sent down forthwith. (KMV) petition allowed. .