{"id":65182,"date":"1991-09-04T00:00:00","date_gmt":"1991-09-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-deoki-nandan-aggarwal-on-4-september-1991"},"modified":"2015-12-09T14:12:42","modified_gmt":"2015-12-09T08:42:42","slug":"union-of-india-and-anr-vs-deoki-nandan-aggarwal-on-4-september-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-deoki-nandan-aggarwal-on-4-september-1991","title":{"rendered":"Union Of India And Anr vs Deoki Nandan Aggarwal on 4 September, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India And Anr vs Deoki Nandan Aggarwal on 4 September, 1991<\/div>\n
Equivalent citations: 1992 AIR 96, \t\t 1991 SCR (3) 873<\/div>\n
Author: V I Ramaswami<\/div>\n
Bench: Ramaswami, V. (J) Ii<\/div>\n
           PETITIONER:\nUNION OF INDIA AND ANR.\n\n\tVs.\n\nRESPONDENT:\nDEOKI NANDAN AGGARWAL\n\nDATE OF JUDGMENT04\/09\/1991\n\nBENCH:\nRAMASWAMI, V. (J) II\nBENCH:\nRAMASWAMI, V. (J) II\nSHETTY, K.J. (J)\nYOGESHWAR DAYAL (J)\n\nCITATION:\n 1992 AIR   96\t\t  1991 SCR  (3) 873\n 1992 SCC  Supl.  (1) 323 JT 1991 (3)\t608\n 1991 SCALE  (2)481\n CITATOR INFO :\n E&D\t    1992 SC2014\t (23)\n\n\nACT:\n     High  Court Judges (Conditions of Service)\t Act,  1954:\nParagraphs   2,\t 9,  Part  I  of  First\t Schedule,   Section\n17-A--Pension payable to retired Judge of High Court--Fixing\nof  minimum service of seven years-Fixing of lesser  pension\nto  those not eligible--Whether discriminatory-Amending\t Act\nof  1986--Whether applicable to all Judges  irrespective  of\ntheir dates of retirement.\n     Judicial Activism: Invoking of judicial activism to set\nat  naught legislative judgment--Whether subversive  of\t the\nconstitutional\t     harmony\t   and\t     comity\t  of\ninstrumentalities--Court to carry out the obvious  intention\nof legislature--not to legislate itself.\n\n\n\nHEADNOTE:\nThe  Respondent\t retired  as Judge of  the  High1  Court  on\n3.10.1983   on\tsuperannuation and elected  to\treceive\t his\npension under Part I of the First SChedule to the High Court\nJudges (Conditions of Service) Act, 1954. As a Judge of\t the\nHigh  Court, he had put in service of 5 years 10 months\t and\n17 days and his pension was determined at Rs.8,400 p.a.\t and\nfamily pension at Rs.250 p.m.\n     In 1986, the Act was amended providing for an increased\npension\t from 1.11.1986. Thereafter, the Respondent filed  a\nWrit  Petition before the High Court praying for  directions\nthat  he was entitled to refixation of his pension from\t the\ndate  of his retirement at Rs.9,600 per annum on  the  basis\nthat  the  period of his service for pension was fit  to  be\nenlarged  to six years, by addition of 1 month and 13  days;\nthat  from  November 1, 1986 his pension may be\t refixed  at\nRs.20,580 per annum at the rate of Rs.3,430 for six complet-\ned years of service; and that the family pension  admissible\nto his wife be calculated on the basis that he had completed\nsix years of service.\n     During the pendency of the Writ Petition the Respondent\nmade  representations to the Government of India that  since\nthe  respondent fell short of 6 completed years\t of  service\nonly by 1 month and 13 days, the President may be pleased to\nallow him to add the period so as to\n874\ncaluclate  the pension, gratuity and family pension  on\t the\nbasis  of  6 completed years of service as a Judge.  By\t its\norder dated April 16, 1987 the Government of India  rejected\nthe  representation  of the respondent among  other  grounds\nthat the request was belated.\n    By\tits  judgment dated March 15, 1988  the\t High  Court\nallowed the Writ Petition directing the Government to  retix\nhis  pension,  family pension and gratuity treating  him  as\nhaving\tput in six completed years of service. The Union  of\nIndia  has  preferred the present appeal, by  special  leave\nagainst the High Court's order.\n    It\twas contended on behalf of the appellants  that\t the\nHigh Court has re-written the retirement benefit  provisions\nof  the First Schedule to the Act which it was not  entitled\nto and hence the refxation of the pension on that basis\t was\nwholly illegal and unconstitutional-\n    However, during the pendency of the appeal this Court in\nits  proceedings  dated\t December 15,  1988  the  Government\ndirected,  after obtaining the necessary sanction  from\t the\nPresident  under  Section 16 of the Act, the addition  of  1\nmonth  and  13 days subject to the final  decision  of\tthis\nCourt  in the appeal. However, it was added that the  period\nshall  be disregarded in calculating additional pension.  if\nany, under Part I, Part II and Part III of the First  Sched-\nule of the said Act.\nAllowing the appeal, this Court.\n     HELD:  1.\tIt is a well-known  practice  in  pensionary\nschemes\t to  fix a minimum period for purposes\tof  pension.\nWhat  shall  be\t the minimum period for\t such  pension\twill\ndepend on the particular service, the age at which a  person\ncould enter into such service. the normal period which he is\nexpected  to serve before his retirement on  superannuation,\nand  various other factors. There is nothing in evidence  to\nsuggest that the period of seven completed years of  service\nfixed for pension is arbitrary. So far as the Judges of\t the\nHigh Court are concerned even under the Government of  India\nAct  a\tperiod of seven completed years\t of  service  before\nsuperannuation\twas prescribed for eligibility for  pension.\nIn  fact no pension was provided for those who had not\tcom-\npleted\tseven  years of\t  service  under  pre-constitutional\nscheme.\t Thus  there are historical grounds or\treasons\t for\nfixing\tnot  less than seven years of service  for  pension.\nPart  I deals with pensionary scheme. Prescribing a  minimum\nperiod\tof service before retirement on superannuation,\t for\npension is the very scheme itself and not a  classification.\nIt is a qualification for eligibility. It is different\tfrom\ncomputation of pension. All those who\n875\nsatisfy that condition are eligible to get pension. [885G-H;\n886A-C]\n     2. Even those who had completed seven years of  service\nwere not given pension for all the completed years of  serv-\nice  at the rate of Rs.1,600 per annum and a  maximum  limit\nhas  been fixed for purposes of pension. If  one  calculates\nthe  maximum amount provided with reference to the rate\t per\nyear  roughly  in about 14 years of service one\t would\thave\nreached the maximum amount. Any service above that period is\nnot  taken  into account. Thus a person who had put  in\t the\nminimum period for getting the maximum pension could be said\nto  be favourably treated against the person who had put  in\nmore number of years of service than needed for the  maximum\npension and thereby discriminated. [886D-E]\n    3. It is not correct to state that the amount of pension\nprovided  in paragraph 9 is minimum pension. The said  para-\ngraph  does not use the word 'minimum' but only states\tthat\nif a Judge retires without being eligible for pension  under\nany of the provisions. notwithstanding anything contained in\nthe  other  provisions. the pension of a  particular  amount\nmentioned therein shall be paid to the Judge. This amount is\nnot  calculated or has any reference to any period of  serv-\nice. A Judge who had put in only two years of service before\nretirement will also   receive the same amount as that of  a\nJudge  who  has completed six years\tof service.  If\t the\nprovision  is struck down as unconstitutional the  condition\nrelating  to completion of seven years of service  in  para-\ngraph  2, all those  who had put in less than six  completed\nyears of service would be seriously affected and paragraph 9\nalso  would become inapplicable. Further, it may be open  to\nthose who have put in more than five years or more than four\nyears as the case may be. to contend that they are discrimi-\nnated against because persons who had put in less than\tthat\nperiod will get pension at much higher rate. [886F-H: 887A]\n     4. The Amending Act 38 of 1980 provided that the amend-\ned  liberalised pension scheme would apply only to  a  Judge\nwho  has  retired on or after the commencement of  the\tHigh\nCourt  and  Supreme  Court Judges  (Conditions\tof  Service)\nAmendment  Act.\t 1986. A similar provision  which  made\t the\namendment  01 1976 applicable only to those Judges who\thave\nretired on or after October 1. 1974 was struck down as ultra\nvires  and it was decided that the benefit of the  amendment\nwas available to. all the retired Judges irrespective of the\ndate  of  retirement but subject to the condition  that\t the\nenhanced  pension was payable only with effect from  October\n1,  1974.  The Amending Act of 1986 could not  restrict\t the\napplicability  of  the amended provision to only  those\t who\nhave  retired on or after the commencement of  the  Amending\nAct. It\n876\nwould  be applicable to all the Judges irrespective  of\t the\ndates  of retirement and they would be entitled to  be\tpaid\npension\t at  the  rates provided therein  with\teffect\tfrom\nNovember 1, 1986. [883A-D]\n    Union  of  India v. B. Malick.<\/a> [1984] 3  SCR  550;\tN.L.\nAbhyankar  v.  Union of India,<\/a> [1984] 3 SCR  552  and  D.S.,\nNakara v. Union of India,<\/a> [1983] 2 SCR 165, referred to.\n    5.\tIn  the instant case. High Court  had  exceeded\t its\njurisdiction  and power in amending and altering the  provi-\nsions  of  paragraph  2 by  substituting  different  minimum\nperiod for eligibility for pension in paragraph 2 of Part I.\nSince the respondent has not put in seven completed years of\nservice\t for pension he will be eligible for pension at\t the\nrates provided in paragraph 9 of Part I of the First  Sched-\nule to the Act, that is to say for the period from 4.10.1983\nto 31.10.1986 at the rate of Rs.8,400 per annum and for\t the\nperiod\ton  and\t from November 1, 1986 at the  rate  of\t Rs.\n15,750 per annum. [887B-C]\n    6.\tSince in compliance with the mandamus issued by\t the\nHigh  Court, the President of India was pleased to  sanction\nthe addition of one month and 13 days to the service of\t the\nrespondent to make it six years of completed service subject\nto the final decision in this appeal, this Court does not go\ninto  the question whether the High Court was right in\tset-\nting aside the earlier rejection for addition of the period.\nThe  addition  of one month and 13 days does  not  make\t any\ndifference in calculation of pension it is relevant only for\nthe purpose of calculating the gratuity under section 17A(3)\nof the Act. As the period was less than three months and  as\nthe President was pleased to sanction the addition in  exer-\ncise of his power under Section 16 of the Act though subject\nto the final decision of this Court it is just and necessary\nto allow this addition to remain for the purposes of  calcu-\nlation\tof gratuity, and family pension only though not\t for\npension.  The  respondent will be entitled  to\tfixation  of\nfamily pension and for payment of gratuity calculated on the\nbasis of his having completed six years of service. [887D-H]\n    7.1.  It is not the duty of the Court either to  enlarge\nthe scope of the legislation or the intention of the  legis-\nlature\twhen  the  language of the provision  is  plain\t and\nunambiguous. The Court cannot rewrite, recast or reframe the\nlegislation for the very good reason that it has no power to\nlegislate. The power to legislate has not been conferred  on\nthe courts. The Court cannot add words to a statute or\tread\nwords  into  it\t which are not there. Assuming\tthere  is  a\ndefect or an omission in the\n877\nwords used by the legislature the Court could not go to\t its\naid  to\t correct  or make up the  deficiency.  Courts  shall\ndecide what the law iS. and not what it should be. The Court\nof  course  adopts a construction which will carry  out\t the\nobvious intention of the legislature but could not legislate\nitself.\t But  to invoke judicial activism to set  at  naught\nlegislative  judgment  is subversive of\t the  constitutional\nharmony and comity of instrumentalities. [885A-D]\n    7.2 Modifying and altering the scheme and applying it to\nothers\twho are not otherwise entitled to under the  scheme,\nwill not also come under the principle of affirmative action\nadopted\t by courts some times in order to avoid\t discrimina-\ntion.  What the High Court has done in this case is a  clear\nand naked usurpation of legislative power. [885F]\n    P.K.  Unni\tv.  Nirmala Industries,<\/a> [1990]\t1  SCR\t482;\nMangilal v. Suganchand Rathi,<\/a> [1965] 5 SCR 239; Sri Ram\t Ram\nNarain Medhi v. The State of Bombay,<\/a> [1959] Supp. 1 SCR 489;\nSmt.  Hira  Devi  & Ors. v.  District  Board,  Shahjahanpur,<\/a>\n[1952] SCR 1122; Nalinakhya Bysack v. Shyam Sunder Haldar  &\nOrs.,<\/a>  [1953] SCR 533; Gujarat Steel Tubes Ltd.\t v.  Gujarat\nSteel Tubes Mazdoor Sabha,<\/a> [1980] 2 SCR 146; S. Narayanaswa-\nmi  v.G. Pannerselvam & Ors., [1973] 1 SCR 172; N.S.  Varda-\nchari v. G. Vasantha Pai & Anr., [1973] 1 SCR 886; Union  of\nIndia  v. Sankal Chand Himatlal Sheth & Anr.,<\/a> [1978]  1\t SCR\n423 and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of\nCommerce, Allahabad, [1986] 2 SCR 430, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3674  of
\n1988.\n<\/p>\n
    From  the  Judgment\t and Order dated  15.3.1988  of\t the
\nAllahabad High Court in Civil Misc. Writ Petition No.  20328
\nof 1986.\n<\/p>\n
V.C.  Mahajan,\tC.V.S. Rao and A. Subba Rao for\t the  Appel-
\nlants.\n<\/p>\n
    Deoki  Nandan Aggarwal-in-person and Mrs. S.  Dixit\t for
\nthe Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    V. RAMASWAMI, J. The respondent was elevated as Judge of
\nthe Allahabad High Court on November 17, 1977. He retired on
\nOctober\t 3, 1983 on superannuation at the age of 62. He\t had
\nelected\t to  receive his pension under Part I of  the  First
\nSchedule to the High
\n878<\/span>
\nCourt  Judges (Conditions of Service) Act, 1954. As  he\t had
\nput  in\t only a period of five years 10 months and  17\tdays
\nservice\t as  a Judge. of the High Court, under\tparagraph  9
\nPart I of the First Schedule pension payable was  determined
\nat the rate of Rs.8,400 per annum and the family pension  in
\nthe  event of his death earlier than his wife at Rs.250\t per
\nmonth  in the letter of Accountant General, Allahabad  dated
\nDecember  2,  1983.  The  gratuity was\tworked\tout  at\t Rs.
\n11,665.66  P. in lump-sum under Section 17A(3) also  on\t the
\nground\tthat  he  had put in only five\tcompleted  years  of
\nservice. The pension was payable with effect from October 4,
\n1983. The Act was amended by the Amending Act No. 38 of 1986
\nproviding for an increased pension with effect from November
\n1,  1986. On December 10, 1986 the petitioner filed  a\twrit
\npetition  before the Allahabad High Court under Article\t 226
\nof  the\t Constitution  praying for an  order  or  directions
\ndeclaring  (i)\tthat he was entitled to\t refixation  of\t his
\npension from the date of his retirement, namely, October  4,
\n1983 to October 31, 1986 at Rs.9,600 per annum plus dearness
\nallowance  admissible under the rules from ‘time to time  on
\nthe basis that the period of his service for pension was fit
\nto  be enlarged to six years, by addition of 1 month and  13
\ndays to the 5 years 10 months and 17 days; (ii) for  refixa-
\ntion  of  pension for the period from November\t1,  1986  at
\nRs.20,580 per annum plus dearness allowance or other  allow-
\nances  as  may be admissible under the rules  from  time  to
\ntime,  at the rate of Rs.3,430 per annum for  six  completed
\nyears of service as stated above; (iii) to retix the  family
\npension\t admissible to his wife on the scale  allowed  under
\nSection\t 17A as amended by Act 38 of 1986 again\t taking\t the
\nperiod\tof completed years of service as 6 years and not  as
\ntotal service of 5 years, 10 months, and 17 days.
\n    During the pendency of the writ petition the  respondent
\nmade representations to the Government of India stating that
\nsince  the  respondent fell short for 6 completed  years  of
\nservice only by one month and 13 days, the President may  be
\npleased\t to allow him to add the period so as  to  calculate
\nthe  pension, gratuity and family pension on the basis of  6
\ncompleted  years of service as a Judge. By its\torder  dated
\nApril  16, 1987 the Government of India rejected the  repre-
\nsentation  of  the respondent among other grounds  that\t the
\nrequest\t was belated. By its judgment dated March  15,\t1988
\nthe  High  Court  allowed the writ  petition  directing\t the
\nGovernment  to\tretix his pension, his\tfamily\tpension\t and
\ngratuity  treating him as having put in six completed  years
\nof service and in the manner provided in the judgment.
\n    The\t main grievance of Union of India in this appeal  is
\nthat  the  High Court has rewritten the\t retirement  benefit
\nprovisions of the First
\n879<\/span>
\nSchedule  to tile Act which it was not entitled to  and\t the
\nrefixation  of the pension on that basis was wholly  illegal
\nand unconstitutional. Since the High Court issued the manda-
\nmus  directing\tthe Union of India to add one month  and  13
\ndays  to  the total length of service renderred by  the\t re-
\nspondent  as Judge of the Allahabad High Court for the\tcom-
\nputing\tthe pension under Section 16 of the Act, during\t the
\npendency  of  the appeal in this Court\tin  the\t proceedings
\ndated  December\t 15,  1988 the\tGovernment  directed,  after
\nobtaining  the necessary sanction from the  President  under
\nSection 16 of the Act, the addition of one month and 13 days
\n“subject  to  the final decision of this  Court\t in  Special
\nLeave Petition 6798 of 1988 (CA No. 3674 of 1988).” However,
\nthey added that the period shall be disregarded in calculat-
\ning additional pension, if any, under Part I and Part II and
\nPart HI of the First Schedule of the Said Act.
\n    In\torder  to  appreciate the argument  of\tthe  learned
\ncounsel for the appellant-Union of India it is necessary  to
\nset out certain provisions relating to pension payable to  a
\nJudge of the High Court on his retirement. Clause 17 of\t the
\nGovernment of India (High Court Judges) Order, 1937 relating
\nto  pension payable to a Judge on his retirement  which\t was
\nin force prior to the coming into force of the\tConstitution
\nprovided that “a pension shall be payable to a Judge on\t his
\nretirement if, but only if, either:\n<\/p>\n
\t      “(a) he has completed not less than 12  years’
\n\t      service for pension; or\n<\/p><\/blockquote>\n
\t      (b)  he has completed not less than  7  years’
\n\t      service  for pension and has attained the\t age
\n\t      of sixty; or\n<\/p><\/blockquote>\n
\t      (c)  he has completed not less than  7  years’
\n\t      service  for  pension and\t his  retirement  is
\n\t      medically\t certified  to\tbe  necessitated  by
\n\t      ill-health.”<\/p><\/blockquote>\n
    Thus  it  may  be seen that under  the  provisions\tthen
\nexisting a Judge who had completed less than seven years  of
\nservice was not allowed any pension.\n<\/p>\n
    As\twe  are\t concerned in this case\t to  the  provisions
\napplicable  to a Judge to whom Part I of the First  Schedule
\nof  the High Court Judges (Conditions of Service) Act,\t1954
\nis  applicable either by reason of his appointment  directly
\nto the High Court from the Bar or who has elected to receive
\npension payable under that part we need to set out
\n880<\/span>
\nonly  relevant provisions relating to pension in Part  I  of
\nthe  First Schedule. Paragraphs 2, 3, 4, 5, and 9  as  stood
\nprior to its amendment by Act 35 of 1976 read as follows:\n<\/p>\n
\t      “2.  Subject to the other provisions  of\tthis
\n\t      part,  the pension payable to a Judge to\twhom
\n\t      this  Part applies and who has  completed\t not
\n\t      less  than seven years of service for  pension
\n\t      shall be the basic pension specified in  para-
\n\t      graph  3 increased by the additional  pension,
\n\t      if  any, to which he is entitled\tunder  para-
\n\t      graph 5.\n<\/p><\/blockquote>\n
\t      3.  The  basic pension to which such  a  Judge
\n\t      shall be entitled shall be–\n<\/p><\/blockquote>\n
\t      (a)  for\tthe first seven completed  years  of
\n\t      service for pension, Rs.5,000 per annum; and\n<\/p><\/blockquote>\n
\t      (b)  for\teach subsequent\t completed  year  of
\n\t      service  for  pension, a further\tsum  of\t Rs.
\n\t      1,000 per annum:\n<\/p><\/blockquote>\n
\t      provided\tthat the basic pension shall  in  no
\n\t      case exceed Rs. 10,000 per annum.\n<\/p><\/blockquote>\n
\t      4.  For the purpose of calculating  additional
\n\t      pensions, service as a Judge shall be  classi-
\n\t      fied as follows:-\n<\/p><\/blockquote>\n
\t      Grade I. Service as Chief Justice in any\tHigh
\n\t      Court;\n<\/p><\/blockquote>\n
\t      Grade  II. Service as any other Judge  in\t any
\n\t      High Court.\n<\/p><\/blockquote>\n
\t      5.  For  each completed year  of\tservice\t for
\n\t      pension  in either of the grades mentioned  in
\n\t      paragraph\t 4, the Judge who is eligible for  a
\n\t      basic  pension under this Part shall be  enti-
\n\t      tled  to the additional pension  specified  in
\n\t      relation to that grade in the second column of
\n\t      the table annexed hereto.\n<\/p><\/blockquote>\n
\t\t       provided that the aggregate amount of
\n\t      his  basic  and additional pension  shall\t not
\n\t      exceed  the  amount  specified  in  the  third
\n\t      column  of the said table in relation  to\t the
\n\t      higher grade in which he has rendered  service
\n\t      for not less than one completed year.<\/p><\/blockquote>\n
\n\t      881<\/span>\n\t\t\t\t   TABLE\n\t\t   Service    Additional  pension    Maximum\n\t      aggregate\n\t\t\t    per annum\t\tpension\t per\n\t      annum\n\t\t\t      Rs.\t\tRs.\n\t\t   Grade I  740\t\t\t20,000\n\t      Grade II\t 740\t\t      16,000\n<\/pre>\n
\t      9.  Where a Judge to whom this  Part  applies,
\n\t      retire  or has retired at any time  after\t the
\n\t      26th January, 1950 without being eligible\t for
\n\t      a\t pension under any other provision  of\tthis
\n\t      Part, then, notwithstanding anything contained
\n\t      in  the  foregoing provisions,  a\t pension  of
\n\t      Rs.6,000 per annum shall be payable to such  a
\n\t      Judge.\n<\/p><\/blockquote>\n
\t      Provided that nothing in this paragraph  shall
\n\t      apply–\n<\/p><\/blockquote>\n
\t      (a) to an additional Judge or acting Judge; or\n<\/p><\/blockquote>\n
\t      (b) to a Judge who at the time of his appoint-
\n\t      ment is in receipt of a pension (other than  a
\n\t      disability or wound pension) in respect of any
\n\t      previous service under the Union or a State.
\n\t      Note:  The Proviso was added by Act No. 46  of
\n\t      1958.”<\/p><\/blockquote>\n
    By\tthe Amending Act 35 of 1976 the First  Schedule\t was
\namended\t by  substituting paragraphs 2 and  9  and  deleting
\nparagraphs  3, 4 and 5. The substituted paragraphs 2  and  9
\nread as follows:\n<\/p>\n
\t      “2.  Subject to the other provisions  of\tthis
\n\t      Part,  the pension payable to a Judge to\twhom
\n\t      this  Part applies and who has  completed\t not
\n\t      less  than seven years of service for  pension
\n\t      shall be–\n<\/p><\/blockquote>\n
\t      (a)  for service as Chief Justice in any\tHigh
\n\t      Court, Rs.2,400 per annum; and\n<\/p><\/blockquote>\n
\t      (b) for service as any other Judge in any High
\n\t      Court, Rs. 1,600 per annum:\n<\/p><\/blockquote>\n
\t      provided\tthat  the pension shall in  no\tcase
\n\t      exceed  Rs.28,000 per annum in the case  of  a
\n\t      Chief  Justice and Rs.22,400 per annum in\t the
\n\t      case of any other Judge.\n<\/p><\/blockquote>\n
\t      882<\/span><\/p>\n
\t\t  9.  Where  a Judge to whom this  Part\t ap-
\n\t      plies, retires or has\tretired at any\ttime
\n\t      after the 26th January, 1950 without     being
\n\t      eligible for pension under any other provision
\n\t      of  this\t   part, then, notwithstanding\tany-
\n\t      thing  contained in the\t   foregoing  provi-
\n\t      sions,   a  pension  of  Rs.8,400\t per   annum
\n\t      shall be payable to such a Judge.
\n\t      Provided that nothing in this paragraph  shall
\n\t      apply–\n<\/p><\/blockquote>\n
\t      (a) to an additional Judge or acting Judge; or\n<\/p><\/blockquote>\n
\t      (b) to a Judge who at the time of his appoint-
\n\t      ment is in receipt of a pension (other than  a
\n\t      disability or wound pension) in respect of any
\n\t      previous service under the Union or a State.”<\/p><\/blockquote>\n
    These amended provisions Were held applicable in respect
\nof  all the Judges of the High Court who have retired  irre-
\nspective  of their dates of retirement in the  decisions  of
\nthis Court in Union of. India v. B. Malick, [1984] 3 SCR 550
\nand  N.L.  Abhyankar v. Union of India,<\/a> [1984]\t3  SCR\t552.
\nHowever\t the increased pension was payable only with  effect
\nfrom October 1, 1974,
\n    Part I of the First Schedule was further amended by\t Act
\n38 of 1986 with effect from November 1, 1986 and the amended
\nparagraph 2 reads as follows:\n<\/p>\n
\t      “2.  Subject to the other provisions  of\tthis
\n\t      Part,  the pension payable to a Judge to\twhom
\n\t      this Part applies, and who has
\n\t\t     completed not less than seven years  of
\n\t      service for pension shall be—\n<\/p><\/blockquote>\n
\t      (a)  for service as Chief Justice in any\tHigh
\n\t      Court,  Rs.4,500 per annum for each  completed
\n\t      year of service;\n<\/p><\/blockquote>\n
\t      (b) for service as any other Judge in any High
\n\t      Court,  RS.3,430 per annum for each  completed
\n\t      year of service:\n<\/p><\/blockquote>\n
\t      provided\tthat  the pension shall in  no\tcase
\n\t      exceed  Rs.54,000 per annum in the case  of  a
\n\t      Chief  Justice and Rs.48,000 per annum in\t the
\n\t      case of any other Judge.”\n<\/p><\/blockquote>\n
     The Act further amended paragraph 9 by substituting Rs.\n<\/p><\/blockquote>\n
15,750 for the figure Rs.6,000-\n<\/p>\n
883<\/span><\/p>\n
    At this stage itself, we may note that this Amending Act
\n38  of\t1986 provided that the amended\tliberalised  pension
\nscheme\twould apply only to a Judge “who has retired  on  or
\nafter  the commencement of the High Court and Supreme  Court
\nJudges\t(Conditions  of\t Service) Amendment  Act,  1986.”  A
\nsimilar provision which made the amendment by Act 35 of 1976
\napplicable Only to those judges who have retired on or after
\nOctober 1, 1974 was held ultra vires and struck down in\t the
\ntwo  decisions\tof this Court above referred to and  it\t was
\nheld that the benefit of the amendment was available to\t all
\nthe  retired judges irrespective of the date  of  retirement
\nbut  subject to the condition that the enhanced pension\t was
\npayable only with effect from October 1, 1974. That was also
\nratio  of  the decision of the Constitution  Bench  of\tthis
\nCourt in D.S. Nakara v. Union of India,<\/a> [1983] 2 SCR 165. On
\nthe  same reasoning and logic we have to hold that  Amending
\nAct. 38 of 1986 could not restrict the applicability of\t the
\namended provision to only those who have retired on or after
\nthe commencement of the Amending Act. The resultant position
\nwould  be that the provisions of pension in Part I of  First
\nSchedule as amended by Act 38 of 1986 would be applicable to
\nall  the Judges irrespective of the dates of retirement\t and
\nthey  would  be\t entitled to be paid pension  at  the  rates
\nprovided therein with effect from NOvember 1, 1986,
\n    As\talready stated, the respondent retired from  service
\non October 3, 1983. For the period from October 4, 1983 till
\nOctober 31, 1986 the respondent claimed that he is  entitled
\nto  be\tpaid  at the rate of Rs.9,600 and  at  the  rate  of
\nRs.20,580  per year from November 1, 1986 when the  Amending
\nAct  38\t of 1986 came into force, plus\tthe  usual  dearness
\nallowance admissible from time to time. This claim was\tmade
\non the ground that the power of the President under  Section
\n16  of the Act though discretionary could not  be  exercised
\narbitrarily or on extraneous or other unsupportable  grounds
\nthat  on the facts and circumstances the refusal to  include
\nthe  period  of one month and 13 days to the length  of\t his
\nservice by the order of ‘the Government dated April 16, 1987
\nwas illegal and on the facts and circumstances, his case  is
\na  fit\tone for enlarging the period of his service  to\t six
\nyears.\tOn the assumption that he is entitled for  such\t en-
\nlargement  and\tthe had completed six years of service,\t the
\nfurther\t case of the respondent was that he is entitled\t for
\ncalculation on the pension at the rate of Rs. 1,600 for each
\ncompleted year of service and for six.years at Rs.9.600\t per
\nannum  for the period prior to November 1, 1986. He  further
\ncontended that in paragraph 2 of Part I of the First  Sched-
\nule  the words “who has completed not less than seven  years
\nof service for pension” shall be read as “who has completed
\nmore than five years of service for pension” on
\n884<\/span>
\nthe ground that while a Judge who has completed seven  years
\nof  service  is permitted to calculate at the  rate  of\t Rs.
\n1,600 for each completed years of service, a person who\t had
\nnot  completed\tseven years of service could not  be  denied
\nthat  benefit. But finding that a person who  had  completed
\nonly five years of service or less than five years of  serv-
\nice,  if the pension is to be calculated at the rate of\t Rs.
\n1,600, would get Rs.8,000 or less than Rs.8,000 though\tRule
\n9 provided for a fixed\t   pension of Rs.8,400 per annum for
\nthose  who  had\t not completed seven years  of\tservice,  he
\nwanted\tto  read “not less than five years”  of\t service  in
\nparagraph  2  as  “more than five years”  of  service.\tThis
\nargument  was accepted by the High Court on the ground\tthat
\nthere is no rational basis for depriving a Judge who had put
\nin  six completed years of service to calculate the  benefit
\nof  pension  at the rate of Rs. 1,600 per  year\t of  service
\nwhich  was provided for those who had completed seven  years
\nof  service.  The  High Court was of the  view\tdenying\t the
\nbenefit\t of  calculation at the rate of Rs. 1,600  per\tyear
\nwould  lead to the striking down of the provision as a\tdis-
\ncriminatory piece of legislation and that however the provi-
\nsion can be saved by “reading down paragraph 2 of  Part I of
\nthe  First Schedule to the Act and reading ‘more  than\tfive
\nyears’\tin the place of not less than seven years.” In\tthat
\nview the High Court amended paragraph 2 so to say by substi-
\ntuting\tthe  words “not less than 7 years” as “more  than  5
\nyears”\tand  allowed  the claim for payment  of\t pension  at
\nRs.9,600  per  annum  for  the\tperiod\tfrom  4.10.1983\t  to
\n31.10.1986.\n<\/p>\n
     As\t already stated as per the Amending Act 38  of\t1986
\nthe pension payable for those who have completed 7 years  of
\nservice\t was  to be calculated at the rate of  Rs.3,430\t for
\neach  completed year of service and for those who  have\t not
\ncompleted 7 years of service a sum of Rs.15,750 was  payable
\nas  pension. On the same reasoning which prompted  the\tHigh
\nCourt  to  read “less than seven years” as “more  than\tfive
\nyears” in the provision which was in force prior to November
\n1, 1986 the High Court further held that since in four years
\nservice\t the Judge would have earned Rs. 13,720 and on\tcom-
\npletion of five years service he would have earned Rs.17,150
\ncalculated at the rate of Rs.3430 per annum as against a sum
\nof  Rs.15,750  provided in\t  paragraph  9,\t necessarily
\nparagraph  2 will have to be read down by providing  instead
\nof  “not less than seven years” as “more than  four  years”.
\nThe learned Judges read the provisions in the manner as\t was
\namended\t by them and calculated the pension payable  to\t the
\nrespondent at Rs.20,580 per annum for the period November 1,
\n1986.  Consequential relief relating to the payment  of\t the
\ngratuity  and  family  pension in the light  of\t the  relief
\ngranted relating to pension was also directed to be given.\n<\/p>\n
885<\/span><\/p>\n
    We\tare  at a loss to understand the  reasoning  of\t the
\nlearned Judges in reading down the provisions in paragraph 2
\nin force prior to November 1, 1986 as “more than five years”
\nand as “more than four years” in the same paragraph for\t the
\nperiod subsequent to November 1, 1986. It is not the duty of
\nthe Court either to enlarge the scope of the legislation  or
\nthe  intention of the legislature when the language  of\t the
\nprovision  is  plain and unambiguous. The Court\t cannot\t re-
\nwrite,\trecast or reframe the legislation for the very\tgood
\nreason\tthat  it  has no power to legislate.  The  power  to
\nlegislate  has not been conferred on the courts.  The  Court
\ncannot\tadd words to a statute or read words into  it  which
\nare not there. Assuming there is a defect or an omission  in
\nthe words used by the legislature the Court could not go  to
\nits  aid to correct or make up the deficiency. Courts  shall
\ndecide what the law is and not what it should be. The  Court
\nof  course  adopts a construction which will carry  out\t the
\nobvious intention of the legislature but could not legislate
\nitself.\t But  to invoke judicial activism to set  at  naught
\nlegislative  judgment  is subversive of\t the  constitutional
\nharmony\t and comity of instrumentalities. Vide P.K. Unni  v.
\nNirmala\t Industries,<\/a>  1990  1 SCR 482 at  488;\tMangilal  v.
\nSuganchand Rathi,<\/a> [1965] 5 SCR 239; Sri Ram Ram Narain Medhi
\nv.  The State of Bombay,<\/a> [1959] Supp. 1 SCR 489;  Smt.\tHira
\nDevi & Ors. v. District Board, Shahjahanpur,<\/a> [1952] SCR 1122
\nat  113 1; Nalinkhya Bysack v. Shyam Sunder Haldar  &  Ors.,<\/a>
\n[1953]\tSCR 533 at 545; Gujarat Steel Tubes Ltd. v.  Gujarat
\nSteel Tubes Mazdaor Sabha,<\/a> [1980] 2 SCR 146; S. Narayanaswa-
\nmi v. G. Pannerselvam & Ors., [1973] 1 SCR 172 at 182;\tN.S.
\nVardachari  v.\tG. Vasantha Pai & Anr.,<\/a> [1973]\t1  SCR\t886;
\nUnion of India v. Sankal Chand Himatlal Sheth & Anr.,<\/a> [1978]
\n1  SCR\t423 and Commissioner of Sales  Tax,  U.P.v.  Auriaya
\nChamber\t of  Commerce, Allahabad, [1986] 2 SCR 430  at\t438.
\nModifying and altering the scheme and applying it to  others
\nwho are not otherwise entitled to under the scheme, will not
\nalso come under the principle of affirmative action  adopted
\nby courts some times in order to avoid discrimination. If we
\nmay  say so, what the High Court has done in this case is  a
\nclear and naked usurpation of legislative power.
\n    The\t view of the High Court that paragraph\t2  discrimi-
\nnates between those who have completed seven years of  serv-
\nice and those who have not completed that much service is in
\nour  opinion  not correct. It is a  well-known\tpractice  in
\npensionary  schemes to fix a minimum period for purposes  of
\npension.  What shall be the minimum period for such  pension
\nwill  depend on the particular service, the age at  which  a
\nperson\tcould  enter into such service,\t the  normal  period
\nwhich  he  is  expected to serve before\t his  retirement  on
\nsuperannuation, and vari-\n<\/p>\n
886<\/span><\/p>\n
ous  other factors. There is nothing in evidence to  suggest
\nthat  the period of seven completed years of  service  fixed
\nfor  pension is arbitrary. So far as the Judges of the\tHigh
\nCourt is concerned as we have noticed earlier even under the
\nGovernment of India Act a period of seven completed years of
\nservice before superannuation was prescribed for eligibility
\nfor  pension. In fact no pension was provided for those\t who
\nhad not completed seven years of service under\tpreconstitu-
\ntion  scheme. Thus we have history or historical grounds  or
\nreasons for fixing not less than seven years of service\t for
\npension. Part I deals with a pensionary scheme.\t Prescribing
\na minimum period of service before retirement on superannua-
\ntion, for pension is the very scheme itself and not a  clas-
\nsification. It is so to say a qualification for eligibility.
\nIt  is different from computation of pension. All those\t who
\nsatisfy that condition are eligible to get pension.\n<\/p>\n
     Even  those  who had completed seven years\t of  service
\nwere not given pension for all the completed years of  serv-
\nice at the rate Rs. 1,600 per annum and a maximum limit\t has
\nbeen  fixed for purposes   of pension. If we  calculate\t the
\nmaximum amount provided with reference to the rate per\tyear
\nroughly in about 14 years of service one would have  reached
\nthe  maximum  amount. Any service above that period  is\t not
\ntaken into account. Thus a person who had put in the minimum
\nperiod\tfor getting the maximum pension could be said to  be
\nfavourably  treated against the person who had put  in\tmore
\nnumber\tof    years of service than needed for\tthe  maximum
\npension\t and thereby discriminated. Thus the  reasonableness
\nof the provision in the pensionary scheme cannot be  consid-
\nered  in  this line of reasonings. It is not  impossible  to
\nvisualise  a  case where the pension payable would  be\tmore
\nthan  the last drawn pay if the maximum limit had  not\tbeen
\nfixed.\n<\/p>\n
      It  is  also not correct to state that the  amount  of
\npension provided in paragraph 9 is minimum pension. The said
\nparagraph  does\t not use the word ‘minimum’ but\t only  state
\nthat  if a Judge retires without being eligible for  pension
\nunder  any of the provisions, notwithstanding anything\tcon-
\ntained in the other provisions, the pension of a  particular
\namount\tmentioned therein shall be paid to the Judge..\tThis
\namount is not calculated or has any reference to any  period
\nof  service.  For instance a Judge who had put in  only\t two
\nyears  of  service before retirement will also\treceive\t the
\nsame amount as that of a Judge who have completed six  years
\nof service. Again if we run down the provision and strike as
\nunconstitutional  the  condition relating to  completion  of
\nseven years of service in paragraph 2 all those who had\t put
\nin  less than six completed years of service would be  seri-
\nously affected and
\n887<\/span>
\nparagraph  9 also would become inapplicable. Further  if  we
\namend paragraph 2 of Part I of the First Schedule of the Act
\nas done by the High Court it may be open to those who  have’
\nput  in more than five years or more than four years as\t the
\ncase may be to, contend that they are discriminated  against
\nbecause\t persons who had put in less than that\tperiod\twill
\nget pension at much higher rate.\n<\/p>\n
    We\thave,  therefore, no doubt that the High  Court\t had
\nexceeded its jurisdiction and power in amending and altering
\nthe  provisions\t of paragraph 2\t by  substituting  different
\nminimum period for eligibility of pension in paragraph 2  of
\nPart I. Since the respondent has not put in seven  completed
\nyears of service for pension he will be eligible for pension
\nat the rates provided in paragraph 9 of Part I of the  First
\nSchedule  to  the Act, that is to say for  the\tperiod\tfrom
\n4.10.1983  to 31.10.1986 at the rate of Rs.8,400  per  annum
\nand for the period on and from November 1, 1986 at the\trate
\nof Rs. 15,750 per annum.\n<\/p>\n
    We have already noticed that during the pendency of\t the
\nappeal\tin this Court in the proceedings dated December\t 15,
\n1988  the  Government  of India communicated  to  the  Chief
\nSecretary,  Government\tof Lucknow, in compliance  with\t the
\nmandamus  issued  by the High Court, that the  President  of
\nIndia was pleased to sanction the addition of one month\t and
\n13  days  to the service of the respondent to  make  it\t six
\nyears of completed service subject to the final decision  in
\nthis appeal. In the circumstances however and in the view we
\nhave expressed earlier on the question of pension, we do not
\nwant  to  go into the question whether the  High  Court\t was
\nright in setting aside the earlier rejection for addition of
\nthe period. Since the addition of one month and 13 days does
\nnot make any difference in calculation of pension as we have
\nalready stated, this Presidential sanction has become  rele-
\nvant only for the purpose of calculating the gratuity  under
\nsection 17A(3) of the Act. As the period is less than  three
\nmonths\tand  as the President was pleased  to  sanction\t the
\naddition  in exercise of his power under Section 16  of\t the
\nAct  though subject to the final decision of this  Court  we
\nwould consider it just and necessary to allow this  addition
\nremain in force for the purposes of calculation of gratuity,
\nand family pension only though not for pension.
\n    The\t appeal is accordingly allowed and the order of\t the
\nHigh  Court  is set aside. The respondent  will\t however  be
\nentitled  to fixation of family pension and for\t payment  of
\ngratuity calculated on the basis of his having completed six
\nyears of service. There will be no orders as to costs.\n<\/p>\n
G.N.\t\t\t\t\t\tAppeal\t al-\nlowed.\n888<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India And Anr vs Deoki Nandan Aggarwal on 4 September, 1991 Equivalent citations: 1992 AIR 96, 1991 SCR (3) 873 Author: V I Ramaswami Bench: Ramaswami, V. (J) Ii PETITIONER: UNION OF INDIA AND ANR. Vs. RESPONDENT: DEOKI NANDAN AGGARWAL DATE OF JUDGMENT04\/09\/1991 BENCH: RAMASWAMI, V. (J) II BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-65182","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India And Anr vs Deoki Nandan Aggarwal on 4 September, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-deoki-nandan-aggarwal-on-4-september-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India And Anr vs Deoki Nandan Aggarwal on 4 September, 1991 - 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