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
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
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-
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
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
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
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
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
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
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
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
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.
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