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PETITIONER: M.L. JAIN & ANR.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT08/04/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR  619            1985 SCR  (3) 608  1985 SCC  (2) 355        1985 SCALE  (1)636  CITATOR INFO :  R          1989 SC 669  (1,16)  RF         1991 SC 928  (1)

ACT:           High Court Judges (Conditions of Service) Act 1954 Para 2  (a).  Part  111.  First  Schedule  Judicial  Officer appointed as  a High  Court Judge-Calculation  of pension on retirement-How determined.

HEADNOTE:           Paragraph 2 of Part III of the 1st Schedule to the High Court  Judges (Conditions  of Service)  Act ,   1954  , provides that  the pension  payable to  a Judge shall be-(a) the pension to which he is entitled under the ordinary rules of his  service if  he had not been appointed a Judge ,  his service as  a Judge being treated as service therein for the purpose of  calculating that  pension;  and  (b)  a  special additional pension  of Rs.  700 per annum in respect of each completed year  of service  for pension  but in no case such additional pension shall exceed Rs.3,500 per annum.      By a  letter dated September 19 ,  1984 ,  addressed to all Accountants  General the  Ministry of Law ,  Justice and Company Affairs  indicated the  method for  calculation of a Judges pension.  It provided  that: (i) the service as Judge of the  High Court will count towards qualifying service for pension in  his parent  service or  post ,  and (ii) pay for the purpose  for calculating  pension under para 2 (a) shall be the  pay which  a Judge  had drawn or would have drawn in the scale  of pay  of the  post held  by him  in his  parent Department preceding  the date on which he was elevated as a Judge of the High Court ,  including annual increments ,  if any ,   which  he would  have drawn  upto the  pate  of  his superannuation as  a Government servant ,  and (iii) special additional pension  under para 2 (b) as provided in the High Court Judges (Conditions of Service) Act 1954.      The petitioner  was a  member  of  the  State  Judicial Service. His total period of service as a Judicial Officer , otherwise than  as a  Judge of the High Court was 29 years , 9 months  and one  day while  his service  as a Judge of the High Court was a period of 9 years and 21 days- According to the calculation made by the respondent ,  the petitioner was

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entitled to  a pension  of Rs  15,320 per annum. This figure was arrived  at on  the basis  that had  he continued  as  a District and  Sessions Judge  ,   he would  have retired  on July- 31 ,  1977 ,  and on 609 that basis his pension was calculated at Rs.11,820 per annum under clause  (a) of  para 2 of the First Schedule read with the Rajasthan  Rules  and  to  that  figure  was  added  the additional pension  of Rs.3,500 per year under Clause (b) of Para 2  of Schedule  I. His  total pension was determined at Rs.15,320 per annum. A      Allowing the Writ Petition. ^      HELD: 1.  Para 2(ii) of the letter dated September 19 , 1984 of  the Ministry of Law ,  Justice & Company Affairs is a clear  departure from  para 2  clause (a) of Schedule I to the High  Court Judges  (Conditions of Service) Act ,  1954. Under clause  (a) of  para 2  of the Schedule I to the Act , the retiring  Judges’ entire  service as  a Judge  has to be reckoned for  the purpose Or calculating his pension and for that purpose  the last  pay drawn  by him  had to be the pay drawn by  him as  a Judge  of the High Court and not the pay that would have been drawn by him as a District Judge ,  had he not been appointed a High Court Judge. [612C -D ]      In the  instant case  the petitioner had put in a total service of  more than  38 years  and 9  months including his service as  a High  Court Judge  and his  last pay drawn was Rs.3,500 per  month ,   his  pension would  be Rs.1,525  per month. But since the Rajasthan Rules prescribed a ceiling of Rs. 1,500  per month  ,   he was  entitled to  a pension  of Rs.1,500 per  month only  under clause  (a)  of  para  2  of Schedule I.  To this  ,   the additional pension to b- added under clause  (b) was  Rs.700 x  9 - Rs.6,300 but here again the ceiling  prescribed was  Rs.3,500 per  annum. The  total pension would  therefore be  Rs.21,500 per annum. But 1) for the ceiling  prescribed under the Rajasthan Rules and clause (b) of para 2 of Schedule I of the Act ,  he would have been entitled to Rs.24,600 per annum.                                                  [612G-613B]      2.  The   letter  dated  August  30  ,  1984  from  the Government  of  India  to  the  Chief  Secretary  ,    Delhi Administration is  quashed and the pension of the petitioner is refixed at Rs.21,500 per annum. [613-E]      3. In  the recent  budget proposals  the ceiling on the pension of  civil servants  is to be lifted. It is hoped the situation would  be remedied  in the case of judges also and the ceiling lifted as early as possible. [613-C)

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition Nos. 16093/84 & 1 3243/83 G      Under Article 32 of the Constitution of India.      Sobhag Mal  Jain ,   S.K.  Jain and  D.K. Garg  for the Petitioner.      A.K. Ganguli and R.N. Poddar for the Respondents.          The Judgment of the Court was delivered by 610      CHINNAPPA REDDY  ,  J. On November 20 ,  1984 this writ petition was  heard along  with Writ  Petition No.  13243 of 1983 (Shri  J.P Chaturvedi  v. Union  of India).  Shri  J.P. Chaturvedi’s petition  was allowed  ,   by  consent  of  the learned Attorney  General who  appeared  for  the  Union  of India. Shri  M.L. Jain’s  petition was  allowed on  the same

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lines under  the impression that the facts involved were the same. It  has now been brought to our notice by the Registry that there  is considerable difference in the prayers in the two cases.  We have  ,   therefore ,   recalled  our earlier order in Shri M.L. Jain’s case and examined his case afresh.      Shri M.L.  Jain was a member of the Rajasthan Judiciary from September 31 ,  1945 onwards till July 1 ,  1975 during which period  he was  a District  and Session  Judge ,  from November 9  ,   1970 to  July 1  ,   1975. Thereafter he was elevated as  a Judge of the High Court on July 1 ,  1975. He retired as a Judge of the High Court on July 21 ,  1984. Had he not  been appointed a Judge of the High Court ,  he would have retired  as District  and Session  Judge on  July 31  , 1977. His  total period  of service  as a Judicial Officer , otherwise than  as a  Judge of the High Court was 29 years , 9 months  and one  day while  his service  as a Judge of the High Court was a period of 9 years and 21 days.      When he  was appointed  a Judge  of the  High Court  he appears to  have opted  ,   for the purpose of his pension , for Part  Ill of  the 1st Schedule to the High Court Judges’ (Conditions of  Service) Act  ,  1954. Paragraph two of Part III of the Ist Schedule is as follows:-           "The pension  payable to  such Judge  shall be-(a)      the pension  to which he is entitled under the ordinary      rules of  his service  if he  had not  been appointed a      Judge ,   his  service as  a  Judge  being  treated  as      service therein  for the  purpose of  calculating  that      pension; and  (b) a  special additional  pension of Rs.      700 per  annum in  respect of  each completed  year  of      service for  pension but  in no  case  such  additional      pension together with the additional or special pension      ,  if any ,  to which he is entitled under the ordinary      rules of  his service  ,   shall exceed  Rs. 3,500  per      annum."      According to  the calculation  made by the respondent , Shri M.L.  Jain was  entitled to a pension of Rs. 15,320 per annum only. 611 This figure  was  arrived  at  on  the  basis  that  had  he continued as  a District  and Sessions  Judge he  would have retired  on  July  31  ,    1977  and  his  average  monthly emoluments during the period ,  October 1 ,  1976 to July 31 ,   1977 ,  would be Rs. 2,500 per month as that was the pay he would  have drawn as a District Judge had he continued as a District  Judge and  retired on  July 31  ,  1977. On that basis his  pension was  calculated at  Rs. 11,820  per annum under clause (a) of Para (2) of the First Schedule read with the Rajasthan  Rules  and  to  that  figure  was  added  the additional pension of Rs. 3,500 per year under Clause (b) of Para 2  of Schedule I. His total pension was thus determined at Rs. 15,320 per annum.      The calculation made under clause (a) of Paragraph 2 of the First  Schedule was  apparently  done  pursuant  to  the letter dated September 19 ,  1984 from the Ministry of Law , Justice and  company Affairs  addressed to  all  Accountants General. Paragraph 2 of the letter is as follows:           "The question  as to  what should  be  taken  into      account for  calculation of  pension in  terms of  part      2(a) mentioned  above  ,    has  been  examined.  After      careful consideration  of the  matter ,   it  has  been      decided that............                (i) The  service as  Judge of  the High Court                will count  towards  qualifying  service  for                pension in his parent service or post.                (ii)  pay  of  the  purpose  for  calculating

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              pension under  para 2(a)  shall  be  the  pay                which a  Judge had  drawn or would have drawn                in the  scale of  pay of the post held by him                in his  parent Department  ,   preceding  the                date on  which he  was elevated as a Judge of                the High Court ,  including annual increments                ,   if any  ,  which he would have drawn upto                the  date   of  his   superannuation   as   a                Government servant.  Further the pay which he                would have drawn in the selection grade ,  if                any  ,     for   which  he  would  have  been                automatically ,   eligible  and  not  on  the                basis of  any selection ,  will also be taken                into account.  In case  he was holding a post                on  deputation  (as  distinct  from  "foreign                service") ,  the pay in such an ex-cadre post                will also be 612 taken into account on the same lines as mentioned above.                (iii) Special  additional pension  under para                2(b) will  be calculated  as provided  in the                High Court  Judges ,  (Conditions of Service)                Act ,  1954."      We are  of the  opinion that  para 2(ii)  of the letter dated September  19 ,  1984 is a clear departure from para 2 clause  (a)   of  Schedule  I  to  the  High  Courts  Judges (Conditions of  Service) Act.  Under clause (a) of para 2 of the Schedule  I to  the High  Courts Judges’  (Conditions of Service) Act  the retiring  Judges entire service as a Judge has to  be reckoned  for  the  purpose  of  calculating  his pension and  for that  purpose the last pay drawn by him has to be  the pay drawn by him as a Judge of the High Court and not the  pay that would have been drawn by him as a District Judge ,  had he not been appointed a High Court Judge. Under the Rajasthan  Rules ,    his  monthly  pension  was  to  be calculated in the following manner:-              Upto  the first  Rs. 1000  of emoluments ,  the monthly pension would be 50% of the emoluments;              For  the next  Rs. 500 of the emoluments ,  the pension would be 45% of the emoluments ,             For the balance of the emoluments ,  the pension would be 40% of the emoluments.      ’The amount  of pension  was to  be arrived  at on  the basis of  these slabs  ,   related to the maximum qualifying service of  33 years.  There was  however a  ceiling on  the pension and  it was  prescribed that  the maximum  amount of pension should  not exceed  Rs. 1500 per month. As Shri M.L. Jain had  put in a total service of more than 38 years and 9 months including  his service  as a High Court Judge and his last pay  drawn was Rs. 3,500 per month ,  his pension would be Rs.  1,525 per  month.  But  since  the  Rajasthan  Rules prescribed a  ceiling of  Rs. 1,500  per month  ,    he  was entitled to  a pension  of Rs.  1,500 per  month only  under clause (a)  of Para  2 of  Schedule III.  To  this  ,    the additional pension  to be added under clause (b) was Rs. 700 x 9 = Rs. 6,300 ,  but here again the ceiling 613 has been  prescribed  as  Rs.  3,500  per  annum.  Thus  the additional pension  under clause  (b) would be Rs. 3,500 per annum only  bringing the  total pension of Shri M.L. Jain to Rs. 21,500  per annum.  But for the ceiling prescribed under the Rajasthan Rules and clause (b) of para 2 of the Schedule I to  the High  Courts Judges’ (Conditions of Service) Act , Shri M.L.  Jain would have been entitled to a pension of Rs. 24,600 per  annum ,   which is meagre enough considering his

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long and  distinguished service  as a  Judicial Officer  and High Court  Judge for a period of 38 years and 9 months. But even this  he is  not entitled  to be  paid under  the rules because of  the respective  ceilings and he is only entitled to a  pension of  Rs. 21,500  per annum. We find that in the recent budget  proposals ,   the  ceiling on  the pension of civil servants  is to  be lifted. We hope the situation will be remedied  in the  case of  judges also  and  the  ceiling lifted as early as possible. We may suggest that this may be done straight  away by  including suitable provisions in the Bill now  announced to  be pending  before Parliament.  This will ,   of  course ,  be quite apart from the other changes for the  improvement of  the Conditions of Service of Judges in the  matter of  salaries ,  allowances etc. which changes also brook  no further delay if justice is to be done to the judges. The  petition is  allowed in  terms of  what we have stated. Letter  No. 6/4/84 - Jus dated August 30 , 1984 from the Government  of India  ,   Ministry of Law ,  Justice and Company  Affairs   to  the   Chief  Secretary   ,      Delhi Administration ,   Delhi is qua- shed and the pension of the petitioner is refixed at Rs. 21,500 per annum. N.V.K.                                      Petition Allowed 614