ivil Appeal No 3838 of 1988
From the Judgment and Order dated 2261987 of the Tamil Nadu High Court in WA No 555 of 1984
KTS Tulsi Additional Solicitor General BK Prasad AK Srivastava P Parmeshwaran for the Appellants
ATM Sampath and KV Sreekumar for the Respondents
The Judgment of the Court was delivered by VERMA J
This matter brings to the fore once again the ineptitude with which litigation is conducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repercussions are involved
The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units
Inspite of this fact to support validity of the impugned policy the re quired materials were not produced in the High Court and to overcome the adverse decision several opportunities given by us to produce the entire relevant record were not availed
The learned Additional Solicitor General informed us after several adjournments that better performance is not possi ble
We therefore concluded the hearing and proceed to decide on the available materials
It is indeed fortunate for the appellants that our conclusion is in their favour
The railway administration with its countrywide network can help to improve this situation by a genuine effort in this direction and thereby contribute also to saving of needless expense and time
We therefore direct that a copy of this judgment be sent to the Chairman Railway Board Ministry of Railways Government of India
In view of the situation indicated above we are mentioning only 898 those facts which are necessary for deciding this matter and which are accepted by both the sides
It is not unlikely that there may be more material in the available records of the appellants to support our conclusion
Briefly stated the controversy in this matter relates only to the employees working in the Inspection Wing of the Production Control Organization for short PCO  of the Integral Coach Factory Perambur
The grievance of these employees in the Inspection Wing is to the implementation of the circular dated 861982 of the General Manager s Office Personnel BranchFur Madras of the Integral Coach Factory issued in supersession of the earlier circulars on the subject with the Railway Boards approval to treat the Progress Wing alone of the PCO as a separate cadre
The grievance of the employees in the Inspection Wing is that there is no reasonable basis for this classification of the Progress Wing of the PCO separately denying the same benefit to those in the Inspection Wing
In short the employees of the Inspection Wing of the PCO also want to be in a separate cadre like those in the Progress Wing and absorbed perma nently in the PCO without the risk of being reverted to the shop floor from which they had been taken and where their lien continues
A brief history of the Production Control Organization in the Integral Coach Factory Perambur may now be given
The PCO of the Integral Coach Factory was constituted to ensure quality control of the production in the factory
It comprises of four wings which include the Progress and Inspection Wings
It appears that the policy for manning the different wings of the PCO remained nebulous for quite long and several changes therein were made from time to time to accommodate the staff s point of view
To begin with persons from different trades in the shop floor were taken on deputation for the different wings of the PCO For the Progress Wing of the PCO there was also some direct recruitment but the same was stopped after some time proba bly in the year 1958 and it was decided that the posts in the Progress Wing be filled by taking persons on deputation from the shop floor
On 2241963 the Railway Board laid down uniform policy for the PCOs
in all units of the Indian Railways according to which all the posts in the PCOs were made ex cadre and every employee posted in the PCO was to be from a trade in shop floor
The employees transferred from the shop floor to the PCO were to retain their lien in the shop floor and deemed to be on temporary transfer
This gave rise to some practical difficulty and the permanently absorbed staff in the PCO were given option to revert to the 899 shop floor
The staff directly recruited in the PCO were to be allotted a trade and given the option for getting absorbed in the shop floor
On 13101964 a modification was made which is contained in the GM P s letter No PBSM6ATC which refers to the Railway Board s letter No ENG 59SR 6 22 dated 224
This was the first stage as described by the learned Additional Solicitor General for the employees in the PCO of the Integral Coach Facto ry Perambur
At the next stage
this policy was further modified for the Inspection Wing by a circular dated 1381965 of the Office of the GMPBShell of the Integral Coach Factory
This was a half way measure implemented straightaway in the Inspection Wing but could not be imple mented in the other three wings namely Progress Planning and Time Study because of certain practical difficulties therein
According to this modification the Inspection Wing was to form a separate ex cadre unit and the employees in the Inspection Wing were given proforma position in the cadre posts in their trade and could be reverted to their parent cadre in the shop floor in the position which they occupied in the shop floor
This again met with difficulty in implementation giving rise to circular dated 2991967 of the Office of the General ManagerPersonnel Branch Staff  of the Integral Coach Factory
Option was given to the staff in the Progress Planning and Time Study Wings of the PCO to get absorbed and interpolated in the shop floor leaving the Inspection Wing separate
This circular dated 299
1967 was struck down by the Madras High CoUrt vide its order dated 228
1975 in a petition filed by employees of the shop floor on the ground that the General Manager of the Integral Coach Factory had no power to act inconsistently with the Railway Board s circular and the remedy is to modify the Railway Boards circular dated 2241963
Accord ingly the procedure laid down in the order dated 299
1967 was cancelled and all posts in the PCO were declared ex cadre by a circular dated 288 1977 of the General Manag er s Office Personnel BranchFur of the Integral Coach Factory
A modification m the earlier proposal was made by this order
All employees were to be allotted a trade and given option either to go to the shop floor or remain perma nently in the PCO However this too could not be imple mented on account of the protest of the staff and the unions representing them
At the next stage a proposal was made by the Integral CoaCh Factory to the Railway Board which is contained in the letter dated 13
1982 from the Chief Personnel Officer Integral Coach Factory to the Joint director Establishment Railway Board
This was in pursu ance to the suggestion of the staff itself that the Progress Wing alone be treated as separate cadre in the PCO and not the remaining wings
Reasons in support of the proposal were also given therein
The Railway Board 900 conveyed its approval to this proposal in its letter No ENG dated 203
This led to the issuance of the order dated 861982 by General Manager Integral Coach Factory stating that in accordance with the Railway Board s approval the Progress Wing alone of the PCO would be a separate cadre and not the remaining wings
As a result of this decision the Inspection Wing is not treated as a separate cadre unlike the Progress Wing
This is the basis of the grievance of the employees of the Inspection Wing which led to the filing of the writ petition giving rise to this appeal
Writ Petition No 4468 of 1982 filed in the Madras High Court by the respondents was allowed by the learned Single Judge on 741984
Thereafter another step was taken by the railway administration which may be mentioned
The Integral Coach Factory issued a circular on 2191984 conveying Railway Board s decision contained in the letter dated 1391984 regarding the staffing pattern of the PCOs
in the workshops including the Integral Coach Factory
Accord ing to this decision all posts in the PCO except the Progress Wing continued to be ex cadre posts and the tenure of these posts was directed to be strictly adhered to
The existing position regarding en cadering of the posts in the PCO in all wings of Southern Railway and Progress Wing of Integral Coach Factory was allowed to be continued
In short it was a reversion to the initial stage contained in the order dated 2241963 of the Railway Board except for the Progress Wing
The writ appeal of the railway adminis tration was thereafter dismissed by the High Court on 2261987
The further facts are not material for deciding the point in controversy
In short the employees of the Inspection Wing which include the respondents contend that they are entitled to be treated similarly as the employees of the Progress Wing whose continuance in the PCO without the risk of rever sion to the shop floor is assured by the adoption of this policy
This contention of the respondents has been accepted by the High Court
The acceptance of the respondents claim results in striking down the Railway s policy to this extent of not treating the Inspection Wing also as a separate cadre like the Progress Wing
It also affects the prospects of those in the shop floor who are denied the chance of being taken in the Inspection Wing of the PCO because of the continuance permanently of those already there retaining their lien in the shop floor
It is admitted that the serv ice conditions in the PCO are better than those of the corresponding posts in the shop floor
This is the reason for those in the PCO not wanting to revert to the shop floor and the keenness of persons from the shop 901 floor to go to the PCO
Some employees working in the shop floor have preferred SLP Civil No 9774 of 1990 arising out of a connected matter and have supported the stand of the railway administration taken in Civil Appeal No 3838 of 1988
It is common ground before us that the Inspection Wing of the PCO performs the function of inspecting the quali ty of the products of the Integral Coach Factory and thereby ensures quality control of the products
The Progress Planning and Time Study Wings of the PCO are involved in the manufacture of these products and come at the stage relating to manufacture of the products
There is thus an intelligible differentia between the function of the Inspec tion Wing on one side and the remaining wings of the PCO on the other
The background indicated earlier leading to the decision by the Railway Board that the Progress Wing alone would be treated as a permanent cadre in the Integral Coach Factory and not the others was reached on the basis of experience over a long period and was in consonance with the opinion of the Staff Council representing the views of the staff of the Integral Coach Factory
It appears that continuity in Progress Wing and rotation in the Inspection Wing was considered desirable for better efficiency
The Railway Board being competent to effect necessary changes in the staff pattern of the various units under its control for the purpose of streamlining the Organisation and improving their efficiency took this decision for this purpose which is consistent with the view of the staff Council represent ing the interest of the entire staff in the PCO
It does appear that the railway administration did want at one time to treat all units in the PCO as separate permanent cadres but practical difficulty in the implementation of that policy and opposition by the staff impelled it to give up the same
Even here we find that while those already in the Inspection Wing want to remain there permanently the others who are in the shop floor and would be denied the prospect of being taken in the Inspection Wing of the PCO if the respondents  contention is upheld are opposed to this view
The decision of the Railway Board therefore takes into account all points of view and makes an attempt to reconcile the conflicting interests while ensuring im provement in the efficiency of the unit
If as a matter of policy the Railway Board approved the proposal made by the management of the Integral Coach Factory to treat the Progress Wing alone of the PCO as a separate cadre and not so the remaining wings including the Inspection Wing the same cannot be faulted unless it is held to be discrimi natory or arbitrary
In view of the nature of functions performed by the four different wings of the PCO we are unable to agree with the High Court s view that the Inspec tion 902 Wing and the Progress Wing of the PCO must be classified together and treated as separate cadres
It is significant that even at some of the earlier stages Inspection Wing was treated differently as a matter of policy
The work of the Inspection Wing as indicated earlier on the basis of undisputed facts before us is to inspect the quality of the manufactured products to ensure quality control while the Progress Wing is concerned with the stage prior to manufacture of the products
For the efficiency of the Inspection Wing which performs the duty of exercising vigilance over the production for the sake of ensuring quality of the products it is not unreasonable to think that a periodic rotation of its personnel would be conducive to efficient functioning of the Inspection Wing
The perma nency of personnel in the Inspection Wing can promote leth argy in them and may also tend to create vested interests
The possibility of change therein makes the existing person nel more vigilant to avoid any lapse which could be discov ered by the replacement
The highest possible standards of vigilance by them is achieved by the possibility of rever sion to the shop floor against their will if the required degree of efficiency and standard in performance of the duty is not maintained
The work of the Inspection Wing being at the end point with no further scrutiny thereafter rotation of its personnel is likely to promote the efficiency of the unit
This factor is sufficient to provide a reasonable basis for classification of the Inspection Wing differently from the Progress Wing and there is no ground to complain of discrimination if according to the Railway Board s policy the Inspection Wing is not treated as a separate cadre like the Progress Wing
The power of the railway administration to formulate such a policy provided it is not discriminatory being rightly not challenged this conclusion alone is sufficient to uphold the action of the railway administra tion
The contrary view taken by the High Court cannot therefore be sustained
We find that the competence of the Railway Board to change the staff pattern of the PCO in the Kharagpur Railway Workshop of South Eastern Railway was challenged before the Central Administrative Tribunal
The decision there was contained in a Memorandum of 1979 declaring that the posts in the PCO in the Kharagpur Railway Workshop would be treated as ex cadre  differently from the policy in Integral Coach Factory
The Tribunal rejected the chal lenge based on discrimination between two units and a spe cial leave petition filed in this Court was dismissed
This Court in SK Chakraborthy and Ors
vs Union of India  Ors
 1988 Supp 1 SCR 425 upheld the 903 authority of the Railway Board to adopt such a policy to bring about the necessary changes in the staff pattern for improving the efficiency of the administration of units under its control and for the purpose of streamlining the Organisation provided there was no discrimination
Consequently the appeal is allowed and the impugned judgment of the High Court is set aside resulting in the dismissal of the Writ Petition filed in the High Court
No costs
A copy of this judgment be sent to the Chairman Railway Board as directed
VPR Appeal allowed


Summary:
The Respondent retired as Judge of the High1 Court on 3101983 on superannuation and elected to receive his pension under of the First SChedule to the 
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 Rs8400 pa and family pension at Rs250 pm
In 1986 the Act was amended providing for an increased pension from 1111986
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 Rs9600 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 Rs20580 per annum at the rate of Rs3430 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  and 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 Rs1600 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
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 vs B Malick   NL Abhyankar vs Union of India  and DS Nakara vs Union of India   referred to
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 4101983 to 31101986 at the rate of Rs8400 per annum and for the period on and from November 1 1986 at the rate of Rs 15750 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 17A3 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 71
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 72 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 PK Unni vs Nirmala Industries  Mangilal vs Suganchand Rathi  Sri Ram Ram Narain Medhi vs The State of Bombay 1959 Supp 1 SCR 489 Smt
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G Pannerselvam  Ors   NS Varda chari vs G Vasantha Pai  Anr   Union of India vs Sankal Chand Himatlal Sheth  Anr  and Commissioner of Sales Tax UPv
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