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PETITIONER: M.L. JAIN

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT18/08/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  669            1988 SCR  Supl. (2) 496  1988 SCC  (4) 121        JT 1988 (3)   499  1988 SCALE  (2)370  CITATOR INFO :  D          1991 SC 928  (2)

ACT:     High Court Judges (Conditions of Service) Act, 1954/High Court Judges (Conditions of Service) Rules, 1956: Section 15 and  Para  2  of Part 111 of First  Schedule/Rule  2-Retired High  Court  Judges- Recalculation  and  redetermination  of pension-Improvement of service conattions including  pension by  virtue of Amendment Act 38186  and  20/88-Constitutional propriety  and legality of Ministry of Law & Justice  letter dated December 18,1987 giving liberty to State Government to determine the pension.

HEADNOTE:     The petitioner, before his appointment as a Judge of the Rajasthan  High Court, was a member of the Rajasthan  Higher Judicial Service. He was later transferred and appointed  as a  Judge of the High Court of Delhi. He retired on July  21, 1984.  The  petitioner  had opted. for the  purpose  of  his pension,  for  Part 111 of the First Schedule  to  the  High Court  Judges Conditions of Service) Act, 1954.  Under  this provision, the petitioner was entitled to a basic pension as admissible under the ordinary rules of his Service if he had not  been appointed a Judge, and an additional  pension  for each completed year of service as a Judge of the High Court.     The High Court Judges (Conditions of Service)  Amendment Act, 1986 and 1988 brought about improvements in the service conditions.  including pension, of the High  Court   Judges. The  Government of India subsequently  issued  a scheme  for rationalisation of pension structure for pre-January 1, 1984 pensioners. Pursuant there to the Ministry of Law & Justice, Government  of India, issued letter dated December 18,  1987 giving   directions  to  the  Accountants  General/Pay   and Accounts  Officers  as  to the manner  in  which  the  basic pension of the High Court Judges governed by the  provisions of  Part 111 of the First Schedule to the High Court  Judges Conditions  of Service Act, 1954 may be revised with  effect from  1.1.1986, as in the case of the employees  of  Central Government,  or  from some other date the  respective  State Government   may  decide  to  adopt  these  orders   or   an independent order issued by them.

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                                                 PG NO 496                                                   PG NO 497     The petitioner has claimed higher pension on the  ground that  service  Judges with lesser service, who  belonged  to Higher  Judicial  Service of some other  States?  have  been granted  higher  pension while he has been  subjected  to  a discriminatory treatment in the matter.     Allowing the Civil Miscellaneous Petition, it was,     HELD:  (1) This Court fails to appreciate the  propriety of  the letter dated December 111, 1987 of the  Ministry  of Law & Justice giving liberty to different State  Governments to  deny the benefit of the revised pension to  the  Service Judges  consequently  upon the enactment of the  High  Court Judges  (Conditions  of Service) Amendments Acts.  1986  and 1988  read  along  with  Office  Memoranda  issued  by   the Government of  Pension & Pensioners Welfare, dated April  14 1987,and April 16, 1987 and rule 2 of the High Court  Judges Rules,   1956.   Such  a   direction   is   constitutionally impermissible as offending Art.14 of the Constitution. It is tantamount to denial of equal treatment to persons belonging to the same class without any rational basis. [503F-H;  504A ]     (2)  While  the salary of Judges of the  High  Court  is charged on the Consolidated Fund of the States, the  pension of High Court Judges is  charged on the Consolidated Fund of India. [500E]

JUDGMENT:     ORIGINAL   JURISDICTION: Civil  Miscellaneous   Petition No. 18044 of 1980.                              IN     Writ Petition No. 16093 of 1984.     (Under Article 32 of the Constitution of India ).     Tapash  Ray.  Ms. Pratibha Jain and S. K. Jain  for  the Petitioner-.     K.    Parasaran,   Solicitor  General,   Kuldip   Singh. Additional  Solicitor Genera1 and Ms. A. Subhashini for  the Respondent.     The following Order of the Court was delivered:                          O R D E R     This is an application by Shri M.L. Jain, retired  Judge of the Delhi Court questioning the constitutional  propriety and  legality  of  the order issued by the  Pay  &  Accounts                                                   PG NO 498 Officer, Delhi Administrative (High Court &  Miscellaneous), New Delhi dated July 12) 1938 purporting to fix his  pension at Rs.26,000 per annum and for an appropriate direction  for re-determination   of  his  pension  and  other   pensionary benefits in view of the change in law brought about by  High Court  Judges (Conditions of Service) Amendment  Acts,  1996 and  1988  (Act Nos. 38 of 1986 and 20 Of 1986). This  order must be read in continuation of the earlier order  delivered by this Court in M. L. Jain & Anr; v. Union of lndia, [19t3- 5]  2  SCC  355 by which this Court  made  a  direction  for payment of pension to the petitioner at Rs.21,5000 per annum in view of the two ceilings then operating against him,  viz (a)  a ceiling under the Rajasthan Rules providing that  the maximum  amount of pension should not exceed Rs.  1,500  per annum and (b) that under cl. (b) of Paragraph 2 of Part  111 of the First Schedule of the  High Court Judges  (Conditions of Service) Act, 1954.     According  to the petitioner, in view of the  change  in law,  the  amount of pension payable to him has  to  be  re-

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calculated  and re-determined at Rs.41,600 per annum  w.e.f. January,  1. 1986 which amount has to be  further  increased to Rs.46,100 per annum w.e.f. November 1, 1986  in place  of the pension of Rs. 21,500 as earlier directed.     he question hat falls of determination in this order  is whether  consequent  upon the improvement  of  the   service conditions including pension and  other benefits by the High Court  Judges (Conditions of Service) Amendment  Acts,  1986 and  1988 and pursuant to the office Memoranda issued by the Government of India, Ministry of Personal, Public Grievances &  Pensions,  Department of Pensions  &  Pensioners  welfare dated  April 14, 1987 and April 16, 1987 the pension of  the petitioner  Shri  M.L. Jain has o be  re-calculated  and  e- determined  at  s. 41,600 per annum w.e.f. January  1,  1986 which  amount has to be further inceases to Rs.  46,100  pew annum  w.e.f.  November 1,1986 in place of  the  pension  s. 21,500  as  ealiear directed In view of the  impoance of the question  involved,  we requested Sri  K Parasaran,  learned Attorney  General  to assist the Court. We  are  greatly  be holden to the Leaned Attorney General of the assistance that he has rendered.     The  facts are uncontroverted. The petitioner has had  a long and distinguished career in judicial service  extending over  a period of 38 years and 9 months. including  9  years and  21  days  as  a  Judge of  the  High  Court.  When  the                                                   PG NO 499 petitioner  was  appointed as a Judge of the High  Court  of Rajasthan on July 1,  1975, he was a member of the Rajasthan Higher  Judicial Service having been a District  &  Sessions Judge for the period from November 9, 1970 to July 1,  1975. On  his appointment as a Judge of the Rajasthan High  Court, the  petitioner opted, for the purpose of his  pension,  for Part  III  of the First Schedule to the  High  Court  Judges (Conditions  of  Service) Act,  1954. On July 23,  1978  the petitioner  was transferred as a Judge of the High Court  of Delhi  under Art. 222 (1) of the Constitution. On  July  24, 1978  the  petitioner was sworn in as a Judge of  the  Delhi High  Court and continued to hold that office till the  date of his retirement on July 21, 1984."     In   order   to  appreciate  the  point  in   its   true perspective,  it  is  necessary  to  set  out  the  relevant constitutional and other statutory provisions as well as the changes  brought about by the High Court Judges  (Conditions of  Service)  Amendment  Acts, 1986 and 1988,  as  also  the Office Memoranda issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department  of Pension  and  Pensioners Welfare dated April  14,  1987  and April   16,  1987  for  upward  revision  of   pension   and rationalisation of the same.     Art. 221 of the Constitution enacts:     "221.  Salaries etc. of Judges- (1) There shall be  paid to  the  Judges of each High Court such salaries as  may  be determined by Parliament by law and, until provision in that behalf  is  so made, such salaries as are specified  in  the Second Schedule.     (2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made  by Parliament and, until so determined, to such allowances  and rights as are specified in the Second Schedule:     Provided that neither the allowances of a Judge nor  his rights  in respect of leave of absence or pension  shall  be varied to his advantage after his appointment. "     Under  cl.  (i)  every Judge of a  Nigh  Court  is  thus entitled to such salaries as may be determined by Parliament

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                                                 PG NO 500 by  law. By cl. (2) such a Judge shall be entitled  to  such allowances and to such rights in respect of leave of absence and  pension  as may from time to time be determined  by  or under  law  made by Parliament. Until such a  law  is  made, every  such  Judge  shall  be  entitled  to  such  salaries, allowances  and  rights  as  are  specified  in  the  Second Schedule.     The  relevant provision relating to the petitioner  Shri M.L.  Jain is the one contained in s. 15 (1) (b)of the  High Court  Judges (Conditions of Service) Act, 1954 which  is  a law  made by Parliament regulating his right to pension  and it reads:     "15. Every Judge     (a) ***** ******     (b) who is not a member of the Indian Civil Service  but has held any other pensionable civil post under the Union or a  State,  shall, on his retirement, be paid  a  pension  in accordance with the scale and provisions in Part III of  the First Schedule";     It is unquestionable that while the salary of Judges  of the  High  Court  charged on the Consolidated  Fund  of  the State,  the pension of such High Court Judges is charged  on the Consolidated Fund of lndia.     Paragraph 2 of Part III of the First Schedule as amended by  Act 35 of 1976, which was in force on July 1, 1975  when the  petitioner  was  first  appointed as  a  Judge  or  the Rajasthan High Court, was in these terms:     "2. The pension payable to such 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 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."                                                   PG NO 501     By Act 36 of 1986 in cl. (b) of Paragraph 7 of Part  III of  the  First Schedule of the Act, the  special  additional pension  of  Rs.700  has been raised to Rs.  1,600  and  the ceiling  of  Rs.3,500  to  Rs.  8,000  respectively   w.e.f. November 1, 1986. There is however a proviso beneath cl. (b) which reads:     "Provided  that  the pension under clause  (a)  and  the additional  pension  under clause (b) together 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."     Rule  2 of the High Court Judges Rules, l956 as  amended till  March  18,1987  which  governs  all  Service   Judges, provides:     "2.   Conditions  of  service  in  certain  cases-   The Conditions  of service of a Judge of a High Court for  which no express provision  has been made in the High Court Judges (Conditions of Service) Act, 1954  shall be, and shall  from the commencement of the Constitution be deemed to have been, determined  by the rules for the time being applicable to  a member of the Indian Administrative Service holding the rank of  Secretary  to the Government of the State in  which  the principal seat of the High Court is situated:     Provided  that,  in the case of a a Judge  of  the  High Court of Delhi, the condition of service shall be determined

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by  the rules for the time being applicable to a  member  of the  Indian  Administrative  service  on  deputation  to  th Government of India and holding the rank of Joint  Secretary to the Government of India stationed at New Delhi."     It  would  be convenient at this stage to refer  to  the decisions  taken  by the Government of  India,  Ministry  of Personnel,  Public  Grievances  &  Pensions,  Department  of Pension  &  Pensioners  Welfare.  On  March  18,  1987   the Government  of India by Resolution No. 2/13/87-PIC  accepted the recommendations of the Fourth Central Pay Commission for upward  revision of pension and pensionary benefits. It  was applicable   to  all  pension  to  all   pensioners   family pensioners who were drawing pension family pension under the C.C.S. (Pension) Rules, 1972. C.C.S. (Extraordinary Pension) Rules  and  the corresponding rules  applicable  to  Railway Pensioners and pensioners of All India Service.                                                   PG NO 502     In pursuance of the aforesaid Resolution, the Government of  lndia,  Ministry  of  Personnel,  Public  Grievances   & Pensions, Department of Pension & Pensioners Welfare  issued an Office Memorandum No. 2/1-87-PIC-II dated April 14,  1987 bringing   about  modifications  in  the  rules   regulating Pension,  Death-cum-Retirement Gratuity and  Family  Pension under  the  C.C.S. (Pension) Rules, 1972, Rule  3.1  of  the Rules as modified made the revised provisions applicable  to Government  servants  who retired or died in harness  on  or after January 1, 1986. Rule 5.2 provided that pension  shall be  calculated  at 50% of average emoluments  in  all  cases instead of under the slab formula given in cl. (a) of sub-r. (2) of r. 49 of the Pension Rules.     By  a subsequent Office Memorandum dated April 16,  1987 the  MInistry of Personnel, Public Grievances  and  Pension, Department of Pension and Pensioners Welfare issued a scheme for rationalisation of pension structure for pre-January  1, l986  pensioners. It applied to all pensioners belonging  to the  classes  enumerated above, including  officers  of  the Indian  Civil Service who retired from service on  or  after January  1  1973. Paragraph 2.2. of  the  Office  Memorandum provides  that  separate  orders  would  be  issued  by  the Ministry   of   Defence   in   regard   to   Armed    Forces Pensioners/Family  Pensioners. Paragraph 2.3 is a  provision with  regard to retired Judges of the Supreme Court and  the High Courts and it provides:     "These  orders do not also apply to retired  High  Court and Supreme Court Judges and other  constitutional/statutory authorities  whose  pension  etc. is  governed  by  separate orders. Necessary orders in their case will be issued by the respective administrative authorities."     Paragraph 5 of the aforesaid Office Memorandum  provides for  payment of additional benefit equal to  the  difference between half of the emoluments and the basic pension in view of  re-calculation  of  pension at 50%  of  average  monthly emoluments in place of the slab system. It further  provides that  there  would  be no upper ceiling  on  the  amount  of pension now so worked out.     On  December 18, 1987 the Government of India,  Ministry of Law & Justice, Department of Justice purported to issue a letter addressed to (1) Accountants General, All States, (2) The  Pay  & Accounts Officer, Supreme Court  of  India,  New Delhi  and  (3) The Pay & Accounts Officer  No.  XIV,  Delhi Administration, New Delhi giving direction as to the  manner in  which the basic pension of the Supreme Court Judges  and                                                   PG NO 503 High Court Judges governed by the provisions of Part III  of the  First Schedule to the High Court/Supreme  Court  Judges

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(Conditions of Service) Act, 1954/1958 is to be  determined, the relevant portion whereof reads :     "The  ordinary pension admissible to High  Court/Supreme Court  Judges  under  para 2(a) of  Part-III  of  the  First Schedule/Schedule  to  the High Court/Supreme  Court  Judges (Conditions of Service) Act, 1954/1958, respectively, may be revised  with effect from 1. 1. 1986 as in the case  of  the employees of Central Government or from some other date, the respectively  State  Governments may decide to  adopt  these orders  or  an independent order issued by them, if  any  to grant  the benefit of increased pension on similar lines  to their   employees  including  members  of  Higher   Judicial Service."     The said letter goes on to say:     "This is subject to the condition that the total pension including additional pension admissible to such Judges under para 2(a) and (b) of Part-III of the First Schedule/Schedule to the High Court/Supreme Court Judges (C/S) Act,  1954/1958 shall  not  exceed  Rs.48,000 p.a. Rs.54,000  p.a.  and  Rs. 60,000 p.a. in the case of Judge, High Court, Chief Justice, High  Court/Judge,  Supreme  Court of India  and  the  Chief Justice of India, respectively."     We  fail  to appreciate the propriety of  the  aforesaid letter  of the Ministry of Law & Justice giving  liberty  to the  different State Governments to deny the benefit of  the revised  pension to the Service Judges consequent  upon  the enactment  of  Act  38/86  and 20/88  read  along  with  the aforesaid  Office  Memoranda  issued by  the  Government  of India, Ministry of Personnel, Public Grievances &  Pensions, Department  of Pension & Pensioners Welfare dated April  14, 1987  and April 16, 1987 and r. 2 of the High  Court  Judges Rules, 1956. Virtually this means that the State Governments may  or may not issue any orders in of Paragraph 2.3 of  the Office Memorandum dated April 16, 1987 appointing a date for grant of revised pension, or appoint different dates for the grant  of revised pension to the retired High Court   Judges who  had  opted  to be governed by Part  III  of  the  First Schedule  of  the Act. Such a direction, in  our  view,  was constitutionally impermissible as offending  Act. 14  of the Constitution. It is tantamount to denial of equal  treatment                                                   PG NO 504 to persons belonging to the same class without any  national basis.     It was urged on behalf of the petitioner that the Pay  & Accounts  Officer should not have denied the petitioner  the benefit  of  the higher pension he was entitled  to  in  the light  of the changed provisions of law and  that  paragraph 2.3  of the Memorandum had no relevance to the  petitioner’s case because the petitioner, by reason of his transfer  from the Rajasthan High Court to the Delhi High Court under  Act. 222 of the Constitution became automatically a judge of  the Delhi High Court and therefore he was governed by the  first proviso  to  r. 2 of the High Court  Judges  (Conditions  of Service)  Rules, 1955 which provides that in the case  of  a Judge  of  the High Court of Delhi and a Judge of  the  High Court  of Punjab & Haryana, the conditions of service  shall be determined by the Rules for the time being applicable  to a  Member of Indian Administrative Service on deputation  to the Government of India holding the rank of Joint  Secretary to  the Government of India stationed at New Delhi.  It  was urged by reason of this position the petitioner was entitled to the benefits of pension in restructured scale set out  in the  Memorandum.  It was further stated  that  Iikewise  the action of the Pay & Accounts Officer in reckoning the  basic pension of the petitioner at Rs. 1,500 per month as provided

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in  column  1 to the Table appended to the  Memorandum,  and not  at  Rs.2,925  merely on the  strength  of  the  earlier position noticed in M. L. Jain ’s case, despite the  changes brought  about by Act 38 of 1986, and Act 20 of 1988 and  in depriving him of the benefit of additional relief of  Rs.250 per month w.e.f. January 1, 1986 was wholly misconceived and unwarranted.  We  not  only found  the  contentions  of  the petitioner to have force but also to be irrefutable ones.     To bring out more forcefully how the governmental action is patently arbitrary and as to how he had been subjected to discriminatory treatment without there being any justifiable basis for it the petitioner brought to our notice the higher rates  of pension the Pay & Accounts Officer had  fixed  for some other Judges of the Delhi High Court even though  their overall  period of service and their tenure of office  as  a Judge of the High Court was lesser than his. While the Pay & Accounts Officer has fixed the pension of the petitioner  at Rs. 26,000 per annum, the very same authority had fixed  the pension of Shri J.D. Jain at Rs.46,340 and that of Shri D.R. Khanna at Rs.44,684 per annum who had also retired as Judges of  the  Delhi High Court. They had put  lesser  periods  of total-service as well as service as High Court Judges.  Shri J.D.  Jain  had put in judicial service for a period  of  35                                                   PG NO 505 years, 7 months and 19 days including 6 years 5 months and 2 days  as a Judge of the Delhi High Court. Shri  D.R.  Khanna had  a  total period of judicial service of  34  years,  110 months and 25 days including 5 years, 11 months and 28  days as  a  Judge  of that High Court. We must  confess  that  it surpasses our comprehension as to on what rational basis the Pay  & Accounts Officer deemed it just and proper to  accord differential  treatment  to the petitioner  and  fixing  his pension  at the   low figure of Rs.26,000 when other  Judges of the same High Court who had put in lesser number of years of  service  were held entitled to pension  at  much  higher rates.     The   State   Government  of  Uttar   Pradesh   by   its notification  no. 14/1/39/84 CX (1) dated May 31,  1988  has brought about a change in cl. (b) of Paragraph 2 of Part III of  the  First  Schedule and revised the  rates  of  pension w.e.f. January 1, 1986 in terms of the aforesaid Memorandum. Accordingly,  a Judge of the Allahabad High Court Shri  J.P. Chaturvedi who, retired on February 7, 1981 had his  pension fixed  at Rs.46, 100 per annum. We are given  to  understand that  he  had  put  in much shorter  period  of  service  as compared  to  the petitioner. We commend the action  of  the State Government of Uttar Pradesh in issuing a  Notification as  abovesaid  to  clarify the position and  to  ensure  the implementation  of  the  change brought about in  cl.(b)  of Paragraph  1  of Part III of the First  Schedule  and  would direct all the State Governments to issue orders in  similar terms.     The  learned  Attorney General with his  usual  fairness frankly  conceded  that  there is patent  disparity  in  the pension  fixed for the petitioner at Rs.26,000, Shri  Kuldip Singh,  learned  Additional Solicitor General  appearing  on behalf  of the Union of India assured us that the  disparity disparity would be removed as expeditiously as possible  and the authorities would endeavour to pay th difference  to the petitioner  without delay. The learned Attorney General  was kind  enough to say that he would advise the  Government  to bring   about  party  between  the  pension  drawn  by   the petitioner and the other Judges in India.     We refrain from expressing any opinion as to the  effect of lifting of the ceiling on that special additional pension

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Rs. 8,000 per annum placed by cl.(b) of paragraph 2  of Part III  the First Schedule. The question really does not  arise for our consideration at the moment and is left open.     In  the  result,  C.M.P. No. 18044/88  is  allowed.  The impugned  of the Pay & Accounts Officer dated July 12,  1988 is quashed. We direct the Union of India as well as the  Pay                                                   PG NO 506 &  Accounts  Officer,  Delhi Administration  (High  Court  & Miscellaneous),  New  Delhi  to re-fix the  pension  of  the petitioner at Rs.4l,600 per annum w.e.f. January 1, 1986 and at Rs.46, 100 per annum w.e.f. November 1, 1986. We  further direct  that the arrears of the difference in the amount  of pension  be  paid  to the  petitioner  as  expeditiously  as possible  and in any event, not later than two  months  from today.  The petitioner shall also be entitled to  all  other consequential benefits. R.S.S.                                    Petition allowed.