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PETITIONER: UNION OF INDIA AND ANR.

       Vs.

RESPONDENT: DEOKI NANDAN AGGARWAL

DATE OF JUDGMENT04/09/1991

BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II SHETTY, K.J. (J) YOGESHWAR DAYAL (J)

CITATION:  1992 AIR   96            1991 SCR  (3) 873  1992 SCC  Supl.  (1) 323 JT 1991 (3)   608  1991 SCALE  (2)481  CITATOR INFO :  E&D        1992 SC2014  (23)

ACT:      High  Court Judges (Conditions of Service)  Act,  1954: Paragraphs   2,  9,  Part  I  of  First  Schedule,   Section 17-A--Pension payable to retired Judge of High Court--Fixing of  minimum service of seven years-Fixing of lesser  pension to  those not eligible--Whether discriminatory-Amending  Act of  1986--Whether applicable to all Judges  irrespective  of their dates of retirement.      Judicial Activism: Invoking of judicial activism to set at  naught legislative judgment--Whether subversive  of  the constitutional       harmony       and       comity       of instrumentalities--Court to carry out the obvious  intention of legislature--not to legislate itself.

HEADNOTE: The  Respondent  retired  as Judge of  the  High1  Court  on 3.10.1983   on  superannuation and elected  to  receive  his pension under Part I of the First SChedule to the High Court Judges (Conditions of Service) Act, 1954. As a Judge of  the High  Court, he had put in service of 5 years 10 months  and 17 days and his pension was determined at Rs.8,400 p.a.  and family pension at Rs.250 p.m.      In 1986, the Act was amended providing for an increased pension  from 1.11.1986. Thereafter, the Respondent filed  a Writ  Petition before the High Court praying for  directions that  he was entitled to refixation of his pension from  the date  of his retirement at Rs.9,600 per annum on  the  basis that  the  period of his service for pension was fit  to  be enlarged  to six years, by addition of 1 month and 13  days; that  from  November 1, 1986 his pension may be  refixed  at Rs.20,580 per annum at the rate of Rs.3,430 for six complet- ed years of service; and that the family pension  admissible to his wife be calculated on the basis that he had completed six years of service.      During the pendency of the Writ Petition the Respondent made  representations to the Government of India that  since the  respondent fell short of 6 completed years  of  service only by 1 month and 13 days, the President may be pleased to

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allow him to add the period so as to 874 caluclate  the pension, gratuity and family pension  on  the basis  of  6 completed years of service as a Judge.  By  its order dated April 16, 1987 the Government of India  rejected the  representation  of the respondent among  other  grounds that the request was belated.     By  its  judgment dated March 15, 1988  the  High  Court allowed the Writ Petition directing the Government to  retix his  pension,  family pension and gratuity treating  him  as having  put in six completed years of service. The Union  of India  has  preferred the present appeal, by  special  leave against the High Court’s order.     It  was contended on behalf of the appellants  that  the High Court has re-written the retirement benefit  provisions of  the First Schedule to the Act which it was not  entitled to and hence the refxation of the pension on that basis  was wholly illegal and unconstitutional-     However, during the pendency of the appeal this Court in its  proceedings  dated  December 15,  1988  the  Government directed,  after obtaining the necessary sanction  from  the President  under  Section 16 of the Act, the addition  of  1 month  and  13 days subject to the final  decision  of  this Court  in the appeal. However, it was added that the  period shall  be disregarded in calculating additional pension.  if any, under Part I, Part II and Part III of the First  Sched- ule of the said Act. Allowing the appeal, this Court.      HELD:  1.  It is a well-known  practice  in  pensionary schemes  to  fix a minimum period for purposes  of  pension. What  shall  be  the minimum period for  such  pension  will depend on the particular service, the age at which a  person could enter into such service. the normal period which he is expected  to serve before his retirement on  superannuation, and  various other factors. There is nothing in evidence  to suggest that the period of seven completed years of  service fixed for pension is arbitrary. So far as the Judges of  the High Court are concerned even under the Government of  India Act  a  period of seven completed years  of  service  before superannuation  was prescribed for eligibility for  pension. In  fact no pension was provided for those who had not  com- pleted  seven  years of   service  under  pre-constitutional scheme.  Thus  there are historical grounds or  reasons  for fixing  not  less than seven years of service  for  pension. Part  I deals with pensionary scheme. Prescribing a  minimum period  of service before retirement on superannuation,  for pension is the very scheme itself and not a  classification. It is a qualification for eligibility. It is different  from computation of pension. All those who 875 satisfy that condition are eligible to get pension. [885G-H; 886A-C]      2. Even those who had completed seven years of  service were not given pension for all the completed years of  serv- ice  at the rate of Rs.1,600 per annum and a  maximum  limit has  been fixed for purposes of pension. If  one  calculates the  maximum amount provided with reference to the rate  per year  roughly  in about 14 years of service one  would  have reached the maximum amount. Any service above that period is not  taken  into account. Thus a person who had put  in  the minimum period for getting the maximum pension could be said to  be favourably treated against the person who had put  in more number of years of service than needed for the  maximum pension and thereby discriminated. [886D-E]     3. It is not correct to state that the amount of pension

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provided  in paragraph 9 is minimum pension. The said  para- graph  does not use the word ’minimum’ but only states  that if a Judge retires without being eligible for pension  under any of the provisions. notwithstanding anything contained in the  other  provisions. the pension of a  particular  amount mentioned therein shall be paid to the Judge. This amount is not  calculated or has any reference to any period of  serv- ice. A Judge who had put in only two years of service before retirement will also   receive the same amount as that of  a Judge  who  has completed six years     of service.  If  the provision  is struck down as unconstitutional the  condition relating  to completion of seven years of service  in  para- graph  2, all those  who had put in less than six  completed years of service would be seriously affected and paragraph 9 also  would become inapplicable. Further, it may be open  to those who have put in more than five years or more than four years as the case may be. to contend that they are discrimi- nated against because persons who had put in less than  that period will get pension at much higher rate. [886F-H: 887A]      4. The Amending Act 38 of 1980 provided that the amend- ed  liberalised pension scheme would apply only to  a  Judge who  has  retired on or after the commencement of  the  High Court  and  Supreme  Court Judges  (Conditions  of  Service) Amendment  Act.  1986. A similar provision  which  made  the amendment  01 1976 applicable only to those Judges who  have retired on or after October 1. 1974 was struck down as ultra vires  and it was decided that the benefit of the  amendment was available to. all the retired Judges irrespective of the date  of  retirement but subject to the condition  that  the enhanced  pension was payable only with effect from  October 1,  1974.  The Amending Act of 1986 could not  restrict  the applicability  of  the amended provision to only  those  who have  retired on or after the commencement of  the  Amending Act. It 876 would  be applicable to all the Judges irrespective  of  the dates  of retirement and they would be entitled to  be  paid pension  at  the  rates provided therein  with  effect  from November 1, 1986. [883A-D]     Union  of  India v. B. Malick. [1984] 3  SCR  550;  N.L. Abhyankar  v.  Union of India, [1984] 3 SCR  552  and  D.S., Nakara v. Union of India, [1983] 2 SCR 165, referred to.     5.  In  the instant case. High Court  had  exceeded  its jurisdiction  and power in amending and altering the  provi- sions  of  paragraph  2 by  substituting  different  minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service  for pension he will be eligible for pension at  the rates provided in paragraph 9 of Part I of the First  Sched- ule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for  the period  on  and  from November 1, 1986 at the  rate  of  Rs. 15,750 per annum. [887B-C]     6.  Since in compliance with the mandamus issued by  the High  Court, the President of India was pleased to  sanction the addition of one month and 13 days to the service of  the respondent to make it six years of completed service subject to the final decision in this appeal, this Court does not go into  the question whether the High Court was right in  set- ting aside the earlier rejection for addition of the period. The  addition  of one month and 13 days does  not  make  any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period was less than three months and  as the President was pleased to sanction the addition in  exer-

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cise of his power under Section 16 of the Act though subject to the final decision of this Court it is just and necessary to allow this addition to remain for the purposes of  calcu- lation  of gratuity, and family pension only though not  for pension.  The  respondent will be entitled  to  fixation  of family pension and for payment of gratuity calculated on the basis of his having completed six years of service. [887D-H]     7.1.  It is not the duty of the Court either to  enlarge the scope of the legislation or the intention of the  legis- lature  when  the  language of the provision  is  plain  and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred  on the courts. The Court cannot add words to a statute or  read words  into  it  which are not there. Assuming  there  is  a defect or an omission in the 877 words used by the legislature the Court could not go to  its aid  to  correct  or make up the  deficiency.  Courts  shall decide what the law iS. and not what it should be. The Court of  course  adopts a construction which will carry  out  the obvious intention of the legislature but could not legislate itself.  But  to invoke judicial activism to set  at  naught legislative  judgment  is subversive of  the  constitutional harmony and comity of instrumentalities. [885A-D]     7.2 Modifying and altering the scheme and applying it to others  who are not otherwise entitled to under the  scheme, will not also come under the principle of affirmative action adopted  by courts some times in order to avoid  discrimina- tion.  What the High Court has done in this case is a  clear and naked usurpation of legislative power. [885F]     P.K.  Unni  v.  Nirmala Industries, [1990]  1  SCR  482; Mangilal v. Suganchand Rathi, [1965] 5 SCR 239; Sri Ram  Ram Narain Medhi v. The State of Bombay, [1959] Supp. 1 SCR 489; Smt.  Hira  Devi  & Ors. v.  District  Board,  Shahjahanpur, [1952] SCR 1122; Nalinakhya Bysack v. Shyam Sunder Haldar  & Ors.,  [1953] SCR 533; Gujarat Steel Tubes Ltd.  v.  Gujarat Steel Tubes Mazdoor Sabha, [1980] 2 SCR 146; S. Narayanaswa- mi  v.G. Pannerselvam & Ors., [1973] 1 SCR 172; N.S.  Varda- chari v. G. Vasantha Pai & Anr., [1973] 1 SCR 886; Union  of India  v. Sankal Chand Himatlal Sheth & Anr., [1978]  1  SCR 423 and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of Commerce, Allahabad, [1986] 2 SCR 430, relied on.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3674  of 1988.     From  the  Judgment  and Order dated  15.3.1988  of  the Allahabad High Court in Civil Misc. Writ Petition No.  20328 of 1986. V.C.  Mahajan,  C.V.S. Rao and A. Subba Rao for  the  Appel- lants.     Deoki  Nandan Aggarwal-in-person and Mrs. S.  Dixit  for the Respondents. The Judgment of the Court was delivered by     V. RAMASWAMI, J. The respondent was elevated as Judge of the Allahabad High Court on November 17, 1977. He retired on October  3, 1983 on superannuation at the age of 62. He  had elected  to  receive his pension under Part I of  the  First Schedule to the High 878 Court  Judges (Conditions of Service) Act, 1954. As  he  had put  in  only a period of five years 10 months and  17  days

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service  as  a Judge. of the High Court, under  paragraph  9 Part I of the First Schedule pension payable was  determined at the rate of Rs.8,400 per annum and the family pension  in the  event of his death earlier than his wife at Rs.250  per month  in the letter of Accountant General, Allahabad  dated December  2,  1983.  The  gratuity was  worked  out  at  Rs. 11,665.66  P. in lump-sum under Section 17A(3) also  on  the ground  that  he  had put in only five  completed  years  of service. The pension was payable with effect from October 4, 1983. The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1,  1986. On December 10, 1986 the petitioner filed  a  writ petition  before the Allahabad High Court under Article  226 of  the  Constitution  praying for an  order  or  directions declaring  (i)  that he was entitled to  refixation  of  his pension from the date of his retirement, namely, October  4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance  admissible under the rules from ’time to time  on the basis that the period of his service for pension was fit to  be enlarged to six years, by addition of 1 month and  13 days to the 5 years 10 months and 17 days; (ii) for  refixa- tion  of  pension for the period from November  1,  1986  at Rs.20,580 per annum plus dearness allowance or other  allow- ances  as  may be admissible under the rules  from  time  to time,  at the rate of Rs.3,430 per annum for  six  completed years of service as stated above; (iii) to retix the  family pension  admissible to his wife on the scale  allowed  under Section  17A as amended by Act 38 of 1986 again  taking  the period  of completed years of service as 6 years and not  as total service of 5 years, 10 months, and 17 days.     During the pendency of the writ petition the  respondent made representations to the Government of India stating that since  the  respondent fell short for 6 completed  years  of service only by one month and 13 days, the President may  be pleased  to allow him to add the period so as  to  calculate the  pension, gratuity and family pension on the basis of  6 completed  years of service as a Judge. By its  order  dated April  16, 1987 the Government of India rejected the  repre- sentation  of  the respondent among other grounds  that  the request  was belated. By its judgment dated March  15,  1988 the  High  Court  allowed the writ  petition  directing  the Government  to  retix his pension, his  family  pension  and gratuity  treating him as having put in six completed  years of service and in the manner provided in the judgment.     The  main grievance of Union of India in this appeal  is that  the  High Court has rewritten the  retirement  benefit provisions of the First 879 Schedule  to tile Act which it was not entitled to  and  the refixation  of the pension on that basis was wholly  illegal and unconstitutional. Since the High Court issued the manda- mus  directing  the Union of India to add one month  and  13 days  to  the total length of service renderred by  the  re- spondent  as Judge of the Allahabad High Court for the  com- puting  the pension under Section 16 of the Act, during  the pendency  of  the appeal in this Court  in  the  proceedings dated  December  15,  1988 the  Government  directed,  after obtaining  the necessary sanction from the  President  under Section 16 of the Act, the addition of one month and 13 days "subject  to  the final decision of this  Court  in  Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988)." However, they added that the period shall be disregarded in calculat- ing additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act.     In  order  to  appreciate the argument  of  the  learned

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counsel for the appellant-Union of India it is necessary  to set out certain provisions relating to pension payable to  a Judge of the High Court on his retirement. Clause 17 of  the Government of India (High Court Judges) Order, 1937 relating to  pension payable to a Judge on his retirement  which  was in force prior to the coming into force of the  Constitution provided that "a pension shall be payable to a Judge on  his retirement if, but only if, either:               "(a) he has completed not less than 12  years’               service for pension; or               (b)  he has completed not less than  7  years’               service  for pension and has attained the  age               of sixty; or               (c)  he has completed not less than  7  years’               service  for  pension and  his  retirement  is               medically  certified  to  be  necessitated  by               ill-health."     Thus  it  may  be seen that under  the  provisions  then existing a Judge who had completed less than seven years  of service was not allowed any pension.     As  we  are  concerned in this case  to  the  provisions applicable  to a Judge to whom Part I of the First  Schedule of  the High Court Judges (Conditions of Service) Act,  1954 is  applicable either by reason of his appointment  directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out 880 only  relevant provisions relating to pension in Part  I  of the  First Schedule. Paragraphs 2, 3, 4, 5, and 9  as  stood prior to its amendment by Act 35 of 1976 read as follows:               "2.  Subject to the other provisions  of  this               part,  the pension payable to a Judge to  whom               this  Part applies and who has  completed  not               less  than seven years of service for  pension               shall be the basic pension specified in  para-               graph  3 increased by the additional  pension,               if  any, to which he is entitled  under  para-               graph 5.               3.  The  basic pension to which such  a  Judge               shall be entitled shall be--               (a)  for  the first seven completed  years  of               service for pension, Rs.5,000 per annum; and               (b)  for  each subsequent  completed  year  of               service  for  pension, a further  sum  of  Rs.               1,000 per annum:               provided  that the basic pension shall  in  no               case exceed Rs. 10,000 per annum.               4.  For the purpose of calculating  additional               pensions, service as a Judge shall be  classi-               fied as follows:-               Grade I. Service as Chief Justice in any  High               Court;               Grade  II. Service as any other Judge  in  any               High Court.               5.  For  each completed year  of  service  for               pension  in either of the grades mentioned  in               paragraph  4, the Judge who is eligible for  a               basic  pension under this Part shall be  enti-               tled  to the additional pension  specified  in               relation to that grade in the second column of               the table annexed hereto.                        provided that the aggregate amount of               his  basic  and additional pension  shall  not               exceed  the  amount  specified  in  the  third               column  of the said table in relation  to  the

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             higher grade in which he has rendered  service               for not less than one completed year.               881                                    TABLE                    Service    Additional  pension    Maximum               aggregate                             per annum           pension  per               annum                               Rs.               Rs.                    Grade I  740                 20,000               Grade II   740                  16,000               9.  Where a Judge to whom this  Part  applies,               retire  or has retired at any time  after  the               26th January, 1950 without being eligible  for               a  pension under any other provision  of  this               Part, then, notwithstanding anything contained               in  the  foregoing provisions,  a  pension  of               Rs.6,000 per annum shall be payable to such  a               Judge.               Provided that nothing in this paragraph  shall               apply--               (a) to an additional Judge or acting Judge; or               (b) to a Judge who at the time of his appoint-               ment is in receipt of a pension (other than  a               disability or wound pension) in respect of any               previous service under the Union or a State.               Note:  The Proviso was added by Act No. 46  of               1958."     By  the Amending Act 35 of 1976 the First  Schedule  was amended  by  substituting paragraphs 2 and  9  and  deleting paragraphs  3, 4 and 5. The substituted paragraphs 2  and  9 read as follows:               "2.  Subject to the other provisions  of  this               Part,  the pension payable to a Judge to  whom               this  Part applies and who has  completed  not               less  than seven years of service for  pension               shall be--               (a)  for service as Chief Justice in any  High               Court, Rs.2,400 per annum; and               (b) for service as any other Judge in any High               Court, Rs. 1,600 per annum:               provided  that  the pension shall in  no  case               exceed  Rs.28,000 per annum in the case  of  a               Chief  Justice and Rs.22,400 per annum in  the               case of any other Judge.               882                   9.  Where  a Judge to whom this  Part  ap-               plies, retires or has     retired at any  time               after the 26th January, 1950 without     being               eligible for pension under any other provision               of  this     part, then, notwithstanding  any-               thing  contained in the      foregoing  provi-               sions,   a  pension  of  Rs.8,400  per   annum               shall be payable to such a Judge.               Provided that nothing in this paragraph  shall               apply--               (a) to an additional Judge or acting Judge; or               (b) to a Judge who at the time of his appoint-               ment is in receipt of a pension (other than  a               disability or wound pension) in respect of any               previous service under the Union or a State."     These amended provisions Were held applicable in respect of  all the Judges of the High Court who have retired  irre- spective  of their dates of retirement in the  decisions  of this Court in Union of. India v. B. Malick, [1984] 3 SCR 550

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and  N.L.  Abhyankar v. Union of India, [1984]  3  SCR  552. However  the increased pension was payable only with  effect from October 1, 1974,     Part I of the First Schedule was further amended by  Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows:               "2.  Subject to the other provisions  of  this               Part,  the pension payable to a Judge to  whom               this Part applies, and who has                      completed not less than seven years  of               service for pension shall be---               (a)  for service as Chief Justice in any  High               Court,  Rs.4,500 per annum for each  completed               year of service;               (b) for service as any other Judge in any High               Court,  RS.3,430 per annum for each  completed               year of service:               provided  that  the pension shall in  no  case               exceed  Rs.54,000 per annum in the case  of  a               Chief  Justice and Rs.48,000 per annum in  the               case of any other Judge."      The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000- 883     At this stage itself, we may note that this Amending Act 38  of  1986 provided that the amended  liberalised  pension scheme  would apply only to a Judge "who has retired  on  or after  the commencement of the High Court and Supreme  Court Judges  (Conditions  of  Service) Amendment  Act,  1986."  A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in  the two  decisions  of this Court above referred to and  it  was held that the benefit of the amendment was available to  all the  retired judges irrespective of the date  of  retirement but  subject to the condition that the enhanced pension  was payable only with effect from October 1, 1974. That was also ratio  of  the decision of the Constitution  Bench  of  this Court in D.S. Nakara v. Union of India, [1983] 2 SCR 165. On the  same reasoning and logic we have to hold that  Amending Act. 38 of 1986 could not restrict the applicability of  the amended provision to only those who have retired on or after the commencement of the Amending Act. The resultant position would  be that the provisions of pension in Part I of  First Schedule as amended by Act 38 of 1986 would be applicable to all  the Judges irrespective of the dates of retirement  and they  would  be  entitled to be paid pension  at  the  rates provided therein with effect from NOvember 1, 1986,     As  already stated, the respondent retired from  service on October 3, 1983. For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is  entitled to  be  paid  at the rate of Rs.9,600 and  at  the  rate  of Rs.20,580  per year from November 1, 1986 when the  Amending Act  38  of 1986 came into force, plus  the  usual  dearness allowance admissible from time to time. This claim was  made on the ground that the power of the President under  Section 16  of the Act though discretionary could not  be  exercised arbitrarily or on extraneous or other unsupportable  grounds that  on the facts and circumstances the refusal to  include the  period  of one month and 13 days to the length  of  his service by the order of ’the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case  is a  fit  one for enlarging the period of his service  to  six years.  On the assumption that he is entitled for  such  en- largement  and  the had completed six years of service,  the

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further  case of the respondent was that he is entitled  for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six.years at Rs.9.600  per annum  for the period prior to November 1, 1986. He  further contended that in paragraph 2 of Part I of the First  Sched- ule  the words "who has completed not less than seven  years of service for pension’’ shall be read as "who has completed more than five years of service for pension" on 884 the ground that while a Judge who has completed seven  years of  service  is permitted to calculate at the  rate  of  Rs. 1,600 for each completed years of service, a person who  had not  completed  seven years of service could not  be  denied that  benefit. But finding that a person who  had  completed only five years of service or less than five years of  serv- ice,  if the pension is to be calculated at the rate of  Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though  Rule 9 provided for a fixed     pension of Rs.8,400 per annum for those  who  had  not completed seven years  of  service,  he wanted  to  read "not less than five years"  of  service  in paragraph  2  as  "more than five years"  of  service.  This argument  was accepted by the High Court on the ground  that there is no rational basis for depriving a Judge who had put in  six completed years of service to calculate the  benefit of  pension  at the rate of Rs. 1,600 per  year  of  service which  was provided for those who had completed seven  years of  service.  The  High Court was of the  view  denying  the benefit  of  calculation at the rate of Rs. 1,600  per  year would  lead to the striking down of the provision as a  dis- criminatory piece of legislation and that however the provi- sion can be saved by "reading down paragraph 2 of  Part I of the  First Schedule to the Act and reading ’more  than  five years’  in the place of not less than seven years." In  that view the High Court amended paragraph 2 so to say by substi- tuting  the  words "not less than 7 years" as "more  than  5 years"  and  allowed  the claim for payment  of  pension  at Rs.9,600  per  annum  for  the  period  from  4.10.1983   to 31.10.1986.      As  already stated as per the Amending Act 38  of  1986 the pension payable for those who have completed 7 years  of service  was  to be calculated at the rate of  Rs.3,430  for each  completed year of service and for those who  have  not completed 7 years of service a sum of Rs.15,750 was  payable as  pension. On the same reasoning which prompted  the  High Court  to  read "less than seven years" as "more  than  five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service  the Judge would have earned Rs. 13,720 and on  com- pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of  Rs.15,750  provided in        paragraph  9,  necessarily paragraph  2 will have to be read down by providing  instead of  "not less than seven years" as "more than  four  years". The learned Judges read the provisions in the manner as  was amended  by them and calculated the pension payable  to  the respondent at Rs.20,580 per annum for the period November 1, 1986.  Consequential relief relating to the payment  of  the gratuity  and  family  pension in the light  of  the  relief granted relating to pension was also directed to be given. 885     We  are  at a loss to understand the  reasoning  of  the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for  the period subsequent to November 1, 1986. It is not the duty of

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the Court either to enlarge the scope of the legislation  or the  intention of the legislature when the language  of  the provision  is  plain and unambiguous. The Court  cannot  re- write,  recast or reframe the legislation for the very  good reason  that  it  has no power to legislate.  The  power  to legislate  has not been conferred on the courts.  The  Court cannot  add words to a statute or read words into  it  which are not there. Assuming there is a defect or an omission  in the words used by the legislature the Court could not go  to its  aid to correct or make up the deficiency. Courts  shall decide what the law is and not what it should be. The  Court of  course  adopts a construction which will carry  out  the obvious intention of the legislature but could not legislate itself.  But  to invoke judicial activism to set  at  naught legislative  judgment  is subversive of  the  constitutional harmony  and comity of instrumentalities. Vide P.K. Unni  v. Nirmala  Industries,  1990  1 SCR 482 at  488;  Mangilal  v. Suganchand Rathi, [1965] 5 SCR 239; Sri Ram Ram Narain Medhi v.  The State of Bombay, [1959] Supp. 1 SCR 489;  Smt.  Hira Devi & Ors. v. District Board, Shahjahanpur, [1952] SCR 1122 at  113 1; Nalinkhya Bysack v. Shyam Sunder Haldar  &  Ors., [1953]  SCR 533 at 545; Gujarat Steel Tubes Ltd. v.  Gujarat Steel Tubes Mazdaor Sabha, [1980] 2 SCR 146; S. Narayanaswa- mi v. G. Pannerselvam & Ors., [1973] 1 SCR 172 at 182;  N.S. Vardachari  v.  G. Vasantha Pai & Anr., [1973]  1  SCR  886; Union of India v. Sankal Chand Himatlal Sheth & Anr., [1978] 1  SCR  423 and Commissioner of Sales  Tax,  U.P.v.  Auriaya Chamber  of  Commerce, Allahabad, [1986] 2 SCR 430  at  438. Modifying and altering the scheme and applying it to  others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action  adopted by courts some times in order to avoid discrimination. If we may  say so, what the High Court has done in this case is  a clear and naked usurpation of legislative power.     The  view of the High Court that paragraph  2  discrimi- nates between those who have completed seven years of  serv- ice and those who have not completed that much service is in our  opinion  not correct. It is a  well-known  practice  in pensionary  schemes to fix a minimum period for purposes  of pension.  What shall be the minimum period for such  pension will  depend on the particular service, the age at  which  a person  could  enter into such service,  the  normal  period which  he  is  expected to serve before  his  retirement  on superannuation, and vari- 886 ous  other factors. There is nothing in evidence to  suggest that  the period of seven completed years of  service  fixed for  pension is arbitrary. So far as the Judges of the  High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for  pension. In fact no pension was provided for those  who had not completed seven years of service under  preconstitu- tion  scheme. Thus we have history or historical grounds  or reasons for fixing not less than seven years of service  for pension. Part I deals with a pensionary scheme.  Prescribing a minimum period of service before retirement on superannua- tion, for pension is the very scheme itself and not a  clas- sification. It is so to say a qualification for eligibility. It  is different from computation of pension. All those  who satisfy that condition are eligible to get pension.      Even  those  who had completed seven years  of  service were not given pension for all the completed years of  serv- ice at the rate Rs. 1,600 per annum and a maximum limit  has been  fixed for purposes   of pension. If we  calculate  the

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maximum amount provided with reference to the rate per  year roughly in about 14 years of service one would have  reached the  maximum  amount. Any service above that period  is  not taken into account. Thus a person who had put in the minimum period  for getting the maximum pension could be said to  be favourably  treated against the person who had put  in  more number  of    years of service than needed for  the  maximum pension  and thereby discriminated. Thus the  reasonableness of the provision in the pensionary scheme cannot be  consid- ered  in  this line of reasonings. It is not  impossible  to visualise  a  case where the pension payable would  be  more than  the last drawn pay if the maximum limit had  not  been fixed.       It  is  also not correct to state that the  amount  of pension provided in paragraph 9 is minimum pension. The said paragraph  does  not use the word ’minimum’ but  only  state that  if a Judge retires without being eligible for  pension under  any of the provisions, notwithstanding anything  con- tained in the other provisions, the pension of a  particular amount  mentioned therein shall be paid to the Judge..  This amount is not calculated or has any reference to any  period of  service.  For instance a Judge who had put in  only  two years  of  service before retirement will also  receive  the same amount as that of a Judge who have completed six  years of service. Again if we run down the provision and strike as unconstitutional  the  condition relating to  completion  of seven years of service in paragraph 2 all those who had  put in  less than six completed years of service would be  seri- ously affected and 887 paragraph  9 also would become inapplicable. Further  if  we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who  have’ put  in more than five years or more than four years as  the case may be to, contend that they are discriminated  against because  persons who had put in less than that  period  will get pension at much higher rate.     We  have,  therefore, no doubt that the High  Court  had exceeded its jurisdiction and power in amending and altering the  provisions  of paragraph 2  by  substituting  different minimum period for eligibility of pension in paragraph 2  of Part I. Since the respondent has not put in seven  completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the  First Schedule  to  the Act, that is to say for  the  period  from 4.10.1983  to 31.10.1986 at the rate of Rs.8,400  per  annum and for the period on and from November 1, 1986 at the  rate of Rs. 15,750 per annum.     We have already noticed that during the pendency of  the appeal  in this Court in the proceedings dated December  15, 1988  the  Government  of India communicated  to  the  Chief Secretary,  Government  of Lucknow, in compliance  with  the mandamus  issued  by the High Court, that the  President  of India was pleased to sanction the addition of one month  and 13  days  to the service of the respondent to  make  it  six years of completed service subject to the final decision  in this appeal. In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want  to  go into the question whether the  High  Court  was right in setting aside the earlier rejection for addition of the period. Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become  rele- vant only for the purpose of calculating the gratuity  under section 17A(3) of the Act. As the period is less than  three

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months  and  as the President was pleased  to  sanction  the addition  in exercise of his power under Section 16  of  the Act  though subject to the final decision of this  Court  we would consider it just and necessary to allow this  addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension.     The  appeal is accordingly allowed and the order of  the High  Court  is set aside. The respondent  will  however  be entitled  to fixation of family pension and for  payment  of gratuity calculated on the basis of his having completed six years of service. There will be no orders as to costs. G.N.                                            Appeal   al- lowed. 888