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
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
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
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
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