JUDGMENT Monoj Kvmar Mukherjee, J : Forty three erstwhile employees of the Calcutta Municipal Corporation ('Corporation' for short), who retired before April 1, 1977, filed an application under Article 226 of the Constitution of India praying, inter alia, for a writ of and/or in the nature of mandamus commanding the Corporation, the Secretary, Local Government and Urban Development, Government of West Bengal and the Finance Officer and Chief Accountant of the Corporation (respondents no.1, 2 and 3 therein), to extend the benefit of the pension scheme under the Corporation of Calcutta Employees (Death-cum-Retirement) Benefit Regulations, 1982 (regulation for short) to them, In their application the writ petitioners aver that a scheme of pension was in force in the Corporation upto 1914 and those who were in service till them used to enjoy its benefit. Thereafter, the scheme was discontinued. In 1968 there was a proposal to reintroduce the scheme irrespective of the date of retirement of the employees and a resolution was passed to that effect. The acceptance of the scheme was however delayed. At last, in 1982 the scheme was accepted in the regulations with effect from April 1, 1977. The grienvance of the writ petitioners is that they have been deprived of the pension scheme only because they retired before 1.4.77. According to them the effective date has been fixed arbitrarily and whimsically and with intent to deny pension to all employees, who retired before 1.4.77. The writ petitioners allege that such act of the Corporation is discriminatory and violative of Article 14 of the Constitution of India as the cut off date drawing a line between eligible and non-elegibles made a classification without any intelligible differentiation. 2. In its affidavit-in-opposition the Corporation has asserted that the regulations were framed by its Administrator under sub-s. (1) of s. 85 of the Calcutta Municipal Act, 1951 by his order dated October 18, 1982 in consultation with the Public Service Commission and the Municipal Service Commission. The regulations were then forwarded to the State Government for according sanction under s. 534 of the said Act and brought into force en and from April 1, 1977. According to the Corporation the question of deprivation of the benefit of pension by putting a classification date as alleged in the writ application did not arise. The regulations were then forwarded to the State Government for according sanction under s. 534 of the said Act and brought into force en and from April 1, 1977. According to the Corporation the question of deprivation of the benefit of pension by putting a classification date as alleged in the writ application did not arise. The benefit under the regulation had been given to the employees who retired on and after April 1, 1977 and in the facts and circumstances of the case the question of discrimination did not arise. 3. After hearing the parties and scrutinising the regulations in their entirety the learned Judge held that the classification, as made to provide benefit of pension to the persons who retired after 1.4.1977 denying the persons who retired prior to the said date was arbitrary, artificial and evasive and there was no rational basis for the same. According to the learned Judge The classification did not fulfil the requisite tests, namely (i) that the classification must be founded on an intelligible differentia which distinguished there bat were grouped together from others and (ii) that the differentia must have a rational relation to the object sought to be achieved by the legislation. Accordingly the 1earned Judge allowed the writ application and issued a Mandamms commanding the respondents to extend the benefit of pension under the regulations to the writ petitioners and/or all the retired employees treating the date 1.4.1977 appearing therein as non est. Aggrieved thereby the Corporation filed the instant appeal. 4. After we had heard the appellant Corporation and the writ petitioners at length and reserved the matter for judgment, the State of West Bengal made appearance and filed an affidavit disclosing certain facts which led to the formulation of the scheme and making it effective from April 1, 1977. Apart from challenging the right of the State to file such an affidavit, the writ petitioners filed an affidavit-in-opposition denying the facts averred by the State to which an affidavit-in-reply was filed by the State. We reserved our answer to the question of entertainment of the affidavit at the time of delivering the present judgment. 5. Apart from challenging the right of the State to file such an affidavit, the writ petitioners filed an affidavit-in-opposition denying the facts averred by the State to which an affidavit-in-reply was filed by the State. We reserved our answer to the question of entertainment of the affidavit at the time of delivering the present judgment. 5. Though the State was made a party, they did not contest the writ application, nor did they file any appeal against the order of the learned trial Judge directing grant of pension to the writ petitioners and all other employees who retired prior to 1.4.77. In the context of these facts it must be said that it is a belated attempt on the part of State to come up with an affidavit to say that if the order of the learned trial Judge is upheld the State would have to suffer a great financial burden. That apart, as the discussion to follow will indicate, the affidavit filed by the State does not contain facts relevant to the issue, to persuade us to differ form the views expressed by the learned trial judge. 6. In the context of the respective cases of the parties, namely, the writ petitioners and the Corporation, the only question that fell for determination before the learned trial Judge – and which also requires an answer in this appeal – was whether the pension scheme under the regulations should be allowed to remain effective from 1.4.77 as they seek to do or without any cut off date. It cannot be gainsaid that the employees of the Corporation who retired before 1.4.77. and who retired thereafter formed a class of retired employees when the regulations and for that matter the pension scheme were framed in 1982. In that context it was for the Corporation and the State to satisfy the Court, when a challenge was thrown about its arbitrariness and others treatment as to why the employees who retired before 1.4.77 and others who retired after 1.4.77 were separately classified. For the law is now well settled that to avoid the vice of discrimination the authority concerned has to satisfy that such classification was made on an intelligible differentia and the differentia must have a rational nexus to the object sought to be achieved. For the law is now well settled that to avoid the vice of discrimination the authority concerned has to satisfy that such classification was made on an intelligible differentia and the differentia must have a rational nexus to the object sought to be achieved. In their affidavit-in-opposition the Corporation did not give any explanation whatsoever and in the belated affidavit filed before us, for what it worth, the State also has not given any reasonable explanation whatsoever. On the Contrary, we find that in its affidavit the State Government has stated that though the Public Service Commission recommended for fixing the date of introduction of scheme on and from 1.1.76 the Government decided to do so from 1.4.77. Such a statement made by the Government shows was wholly arbitrary. The only other of fixing 1.4.77 as the target date with respect to the pension scheme was to make the benefit of pension available to those who were in service then. 7. In the case of D.S. Nakara v. Union of India, reported in AIR 1983 SC page 130 a question arose as to whether the Government was justified in directing payment of enhanced pension to those of the pensioners who retired after a particular date. In deciding that question the Supreme Court first considered the scope of Article 14 of the Constitution of India and 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 test of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.” 8. In the light of the above principle the Court then proceeded to consider the basic contention raised therein that the pensioners for the purpose of receiving pension formed a class and there was no criterion on which classification of pensioners retiring prior to specific date and retiring subsequent to the date could provide a rational principle correlated to the object, viz, object underlying payment of pension. On such consideration, the Court first held that pension was neither a bounty nor an ex gratia payment but was a payment of past services rendered and a social welfare measure. On such consideration, the Court first held that pension was neither a bounty nor an ex gratia payment but was a payment of past services rendered and a social welfare measure. It then answered the question raised therein with the following words : "If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a c1ass, 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 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 pen ion scheme, we find no rational principle., behind it for granting these exnents 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 worse 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 something 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 on 36 months' salary while the other will have a ceiling of Rs. 12,000/- p.a. and average emolument will be commutated on the has is of last ten months' average. 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 on 36 months' salary while the other will have a ceiling of Rs. 12,000/- p.a. and average emolument will be commutated on the has is 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 liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised 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 commutation of pension. A 48 hours’ difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and un principled. Therefore, the classification does not stand the test of Act. 14. Further the classification is wholly arbitrary because we do not find a singly acceptable or persuasive reason for the division. This arbitrary action violated the guarantee of Art. 14” 9. The above observations are applicable with equal force in the case presented before us. We have already observed that on the date the pension scheme was framed and brought in the Statute books all persons who stood retired till then formed a class. Since pension is paid for past service rendered and to avoid destitution in old age as well as a social welfare measure, the differential treatment for those retiring prior to a certain date and those retiring subsequently – the choice of the date having been found by us to be wholly arbitrary – is clearly voilative of Article 14 of the Constitution of India. The classification based on the fortuitous circumstances of retiring before or subsequent to a date fixing of which is not shown to be related to any rational principle is equally violative of Article 14. 10. For the foregoing discussion the appeal fails and the same is hereby dismissed. But in the circumstances of the case, there will be no order as to costs. Sudhanshu Sekhar Ganguly, J. : I agree. Appeal dismissed.