' Justice (Retired) Ch. Rahim Dad Khan, retired as Chief Justice of Azad Jammu and Kashmir, on attaining superannuation on January 24, 1981. He was one of the poineers who shaped the judiciary in Azad Jammu and Kashmir State, on the establishment of the revolutionary, Azad Government of the State of Jammu and Kashmir, on October 24, 1947. He joined judicial service as Sub-Judge in October, 1947, was promoted as Sessions Judge in 1958. He became Judge of the High Court of Azad Jammu and Kashmir in December, 1964 and was elevated as Chief Justice of that Court in June, 1974. He was elevated as Chief Justice of Supreme Court of Azad Jammu and Kashmir in 1975 till his final retirement. He retired on full pension as contemplated under IV Schedule of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. In consideration of escalation of prices of necessary goods, it was deemed expedient by the Government to grant Cost of Living Allowance, in addition to pension, to retired Judges of Supreme Court. In order to give effect to the desired object, the President of the State issued Notification No.2/13/87-SO.IV on November 1, 1989. Rule 6-B was added to the Azad Jammu and Kashmir Supreme Court Judges Pension Rules, 1987, but the aforesaid Rule laid a restriction in the manner that the Cost of Living Allowance shall be admissible to a Judge who retired or retires on or after the first day of July 1987. Rule 6-B is reproduced:--
(2) After rule 6-A, as inserted aforesaid, the following new rule shall be inserted, namely:-- "6-B. Cost of Living Allowance in addition to Pension,-- A Cost of Living Allowance at the monthly rate specified below shall be paid to a Judge who retired/retires on or after the first day of July, 1987, and is entitled to a pension under these rules so, however, that the aggregate amount of such allowance and such pension does not exceed the maximum amount so specified--------
3. As noticed earlier, petitioner retired on January 24, 1981, whereas the benefit of the impugned rule 6-B was given to Judges of the Supreme Court who retired on or after July 1, 1987. The petitioner was deprived of the Cost of Living Allowance as the Rule being prospective, the petitioner was excluded from its scope of benefit. Petition was, therefore, addressed against the impugned Notification, assailing its validity as clearly violative of basic right of equality guaranteed by the Constitution. The claim of the petitioner is that by virtue of provision of Section 15 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner having equal status and position with Judges and Chief Justice who retired on or after July 1, 1987, cannot be deprived of the benefit of Cost of Living Allowance. The impugned Notification was ultra vires of the Constitution as it laid discrimination in the class of retired Judges, retired prior to July 1, 1987 and those who retired thereafter. The Notification patently violates the basic right of equality envisaged in Fundamental Rights, as such it is unsustainable.
4. The petition is addressed in the light of right of equality before law and equal protection of law.
The right of equality is postulated under section 15 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, in the following manner:-- "Equality of State Subjects.-- All Subjects are equal before law and are entitled to equal protection of law."
' The parallel provisions are contemplated under Article 25(1) of the Constitution of Islamic Republic of Pakistan. Synonymous provisions relating to the aforesaid right of equality find mention in Article 14 of the Indian Constitution. These provisions are :- "Equality before law.-- The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India."
It is evident that the right of equality of State-subjects described in Section 15 of the Interim Constitution Act, is totally identical to the provisions laid in Article 25 (1) of the Constitution of Pakistan. Article 14 of the Indian Constitution conceives right of equality before law. The scheme of language introduced in the Indian Constitution is descriptively different but these are patently synonymous to the provisions contained in the Interim Constitution Act and the Constitution of Pakistan. It is not required to dilate on the descriptive difference of the provisions as at present, we are asked to resolve the proposition under consideration by undertaking critical analysis of the discriminatory character of the impugned amendment, made in the Supreme Court Judges Pension Rules.
5. The basic right of equality before law and equal protection of law is an objective rule and it rests on the consideration of human value. It conceives the celebrated norm of equality as all citizens of free State, as human being, are entitled to equal dignity, grace, honour, privileges and duties. The right of equality, apart from its proverbial significance, postulates that all citizens placed in similar position and possessing equal qualifications and status, are entitled to indiscriminate place, privileges and liabilities. In other words, the citizens possessing equal qualifications and status, cannot be placed in a discriminatory position, by allowing an artificial, arbitrary and mala fide division. The right of equality before law and equal protection of law, introduced in the Constitution, provides a guarantee to citizens against discriminatory and arbitrary treatment and actions. A piece of legislation, an executive act or omission which creates unreasonable and irrational discrimination among the citizens having equal qualifications and position, contravenes the right of equality.
6. It is undenied that the Judges and Chief Justice of the Supreme Court who retired beforet and after July 1, 1987, as a class of Judges, are equal in qualifications, status and position, as such are covered by a singular classification. The learned Advocate-General who represents the respondents, does not dispute such position. The Judges of the Supreme Court belong to common class. A further classification, by time factor applying to their retirement, whether can draw the line of distinction or not, is the essence of the proposition under consideration.
7. Article 4(4)(15) forbids class legislation. However, reasonable classification is permissible. In order to ascertain whether classification is reasonable or not, is to be construed on the test of two conditions. These are:--
(i) that the classification must rest on as intelligible differentia which distinguishes pc, sons or things that are grouped together from others left out of the group; and
(ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
' The impugned pension rule has been enforced as an aid to retired Judges to enable to meet ordeal of inflationary conditions and live a dignified and graceful life, suitable to their status. In view of the intended objective of the impugned Notification, it has to be ascertained as to what is the cause of rational basis for classification in the matter of denying the Dearness Allowance to Chief Justice and Judges of Supreme Court who retired before July 1, 1987 and providing its benefit only to those who retired on or after that period. The pinch of escalation of prices and inflationary conditions affect equally all the retired Judges irrespective of the dead-line date of July 1, 1987. The criteria upon which Cost of Living Allowance is awarded, remains uniform whether a Chief Justice or Judge retires before or after the said date. The date specified, demarcating line of discrimination, is obviously devoid of intelligible differentia.
8. The next qualification relating to reasonable classification, that is of significance, is that the differentia must have rational relation to the objective, sought to be achieved by a statute. In present case, as noticed earlier, the intended object of the questioned statute is to provide financial aid in the manner of Cost of Living Allowance to retired Judges and Chief Justice of the Supreme Court, to meet necessary needs of life and to maintain themselves in the society, with desired dignity and honour. The questioned Rule is a step up, as financial benefit to the retired Judges. The financial aid is advanced to retired Judges, as a class. To draw a line by a definite date of retirement, cannot help to realise the desired objective. This is so as the objective of the grant can only be accomplished by enlarging its benefit to all the Judges irrespective of the date of their retirement. As a class, all retired Judges deserve financial aid to live up to the desired style and standard. In this view of the matter, the impugned Notification is considered as violative of the right of equality guaranteed by the Constitution.
9. The controversy resting on the right of equality before law was raised in D.S. Nakara's case (A.I.R.
1983 S.C.(Ind.) 130), where two retired pensioners assailed the memorandum issued by the Government on May 25, 1979, whereby the formula for computation of pension was liberalised and was made enforceable to the case of Government servants who retired on or after March 31, 1979.
The amendment was made in Pension Rules of 1972. The memorandum in question was challenged through a writ petition for its being violative of right of equality before law. The claim of the petitioners in that case was that the pensioners of the Central Government formed a class by itself for the purpose of pensionary benefits. Therefore, there could not be a mini-classification within the class, as "pensioners". A further division in the class of pensioners for the purpose of pensionary benefits among those who retired by certain date and those who retired after that date, was an invalid classification. Mr. Justice Desai, the learned Judge who recorded the verdict of the Court, made a deep and critical analysis of the terms "equality before law" and "equal protection of law", with reference to authorities of Supreme Court and concluded:- "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."
10. In 1976, High Court Judges (Conditions of Service) (Amendment) Act of 1976 was enforced whereby rate of pension admissible io High Court Judges was enhanced w.e.f, October 1, 1974. The Judges and Chief Justice of the High Court who retired on or after October 1, 1974, were given the benefit of the amendment in question, to get pension at the enhanced rate. The Judges and Chief Justice who retired prior to the statutory dates, were deprived of pension at the enhanced rate.
Justice (Retired) Mr. Bidhubhushan Malik, Chief Justice of Allahabad High Court challenged the validity of the Amendment Act, by addressing a writ petition. It was alleged that the impugned amendment was in conflict with the right of equality envisaged in Article 14 of the Indian Constitution. The controversy raised in the petition was resolved in the light of the dictum of the Supreme Court, recorded in D.S. Nakara's case, mentioned above. Mr. Justice Agrawal, the learned Judge who spoke for the Court, in the aforesaid authority, recorded in AIR 1983 Allahabad 209, accepted the petition by striking down the questioned part of the Act, namely, the specified date of October 1, 1974 that made a discrimination among the retired judges. It was held that the High Court Judges (Conditions of Service) Act, 1974 as amended vide Act of 1976, shall be read down omitting the words "and who has retired on or after the Ist day of October, 1974". The relevant observation as recorded in para 13 of the order, is:-- "13. "Viewed in the light of the law laid down in the case of D.S. Nakara (A.I.R.1983 SC 130) (supra) which entirely covers the dispute, it will be observed that except for the fact that the petitioners retired from service prior to Ist October, 1974, there is no other basis for the denial to them of the liberalised pensionary benefit created under the Amendment Act, 1976. We enquired from the learned Standing Counsel for the Union of India, if there is any relevant or valid consideration to selection of eligibility criteria, but none could be suggested. In the counter affidavit the submission made is that the Government of India in Sept. 1974 for the first time considered that the conditions of service of Judges should be liberalised and, therefore, the Amendment Act was enforced with effect from the specified date. This should hardly constitute a legitimate basis for discriminating against those whose retirement had taken place prior to the said date. In the absence of such consideration, the criteria remains arbitrary and irrelevant. The amelioration in the pensioner benefit must extend to all covered under this class without regard to the question whether the Judge/Chief Justice retired from service before or after the 1st October, 1974. The decision is unsupportable being devoid of rational principle; the object being evidently to give something more in the form of additional pensionary benefit to persons otherwise equally placed, the line drawn at the said date is clearly discriminatory."
11. Another authority of the recent past on the point at issue is available in M.A. Rashid's case PLD 1988 Quetta 70. The leading facts of that case are that the incumbent Judge retired on March 25, 1981. The Government enhanced the rate of pension of the retired Judges by an order issued on April 4, 1983. The rate of pension was enhanced w.e.f, July 1, 1981. The Judges who retired on or after July 1, 1981, were made entitled to draw pension at the enhanced rate. Mr. MA. Rashid made a representation pleading his entitlement to draw pension at the enhanced rate in the light of the aforesaid order of the Government. The Accountant-General, Balochistan agreed with the claim of the learned retired Judge and allowed him to draw pension at the enhanced rate. However, on second thought, vide his letter of May 4, 1986, the Accountant-General advised the concerned Treasury Officer not to pay the pension to the incumbent Judge at the enhanced rate and to reduce it to the rate prevailing prior to the Government order in question. The subsequent action of the Accountant-General was challenged before the High Court. The learned Acting Chief Justice of Baloschistan High Court declared the Government order as discriminatory and violative of the right of equality. It was held that the date of enforcement of enhanced rate of pension i.e, July 1, 1981, laid an arbitrary discrimination among the class of Judges, as such it was struck down. The learned Acting Chief Justice supported his finding by following the dictum of the Supreme Court of India recorded in D.S. Nakara's case AIR 1983 SC (Ind.) 130), the authority of Allahabad High Court recorded in Bidhubhushan Malik's case AIR 1983 Allahabad 209 and observations made in the case of pension admissible to retired Judges, by the Chief Justice (Rtd.) Sardar Muhammad Iqbal Khan, an eminent jurist and retired Ombudsman of Pakistan.
12. The authorities listed above provide ample support to the case of the petitioner, to hold that the specific date of retirement of July 1, 1987, for drawing Cost of Living Allowance as retired Judge or Chief Justice of the Supreme Court, makes a patent arbitrary and discriminatory classification in the class of retired Judges of the Supreme Court. It infringes the celebrated right of equality before law and equal protection of law, as enunciated in Section 15 of the Interim Constitution Act. The impugned provisions are, therefore struck down. Rule 6-B enforced by Notification No.2/13/87-SO-IV of November 1. 1989, shall be read as:- "6-B. Cost of Living Allowance in addition to Pension.-- A Cost of Living Allowance at the monthly rate specified shall be paid to a Judge who is entitled to a pension under these rules so, however, that the aggregate amount of such allowance and such pension does not exceed the maximum so specified.
13. The writ petition is, therefore, accepted. The questioned part of notification is declared ineffective and invalid for its being violative of right of equality as envisaged in Section 15 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. No order as to costs.