ivil Appeal No 3674 of 1988
From the Judgment and Order dated 1531988 of the Allahabad High Court in Civil Misc
Writ Petition No 20328 of 1986
VC Mahajan CVS Rao and A Subba Rao for the Appel lants
Deoki Nandan Aggarwal in person and Mrs section 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 Rs8400 per annum and the family pension in the event of his death earlier than his wife at Rs250 per month in the letter of Accountant General Allahabad dated December 2 1983
The gratuity was worked out at Rs 1166566 P in lump sum under Section 17A3 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 Rs9600 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 Rs20580 per annum plus dearness allowance or other allow ances as may be admissible under the rules from time to time at the rate of Rs3430 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 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 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 Rs5000 per annum and b for each subsequent completed year of service for pension a further sum of Rs 1000 per annum provided that the basic pension shall in no case exceed Rs 10000 per annum
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
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 20000 Grade II 740 16000 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 Rs6000 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 Rs2400 per annum and b for service as any other Judge in any High Court Rs 1600 per annum provided that the pension shall in no case exceed Rs28000 per annum in the case of a Chief Justice and Rs22400 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 Rs8400 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 vs B Malick  and NL Abhyankar vs Union of India  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 Rs4500 per annum for each completed year of service b for service as any other Judge in any High Court RS3430 per annum for each completed year of service provided that the pension shall in no case exceed Rs54000 per annum in the case of a Chief Justice and Rs48000 per annum in the case of any other Judge
 The Act further amended paragraph 9 by substituting Rs 15750 for the figure Rs6000 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 DS Nakara vs Union of India  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 Rs9600 and at the rate of Rs20580 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 1600 for each completed year of service and for sixyears at Rs9600 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 1600 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 1600 would get Rs8000 or less than Rs8000 though Rule 9 provided for a fixed pension of Rs8400 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 1600 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 1600 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 Rs9600 per annum for the period from 4101983 to 31101986
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 Rs3430 for each completed year of service and for those who have not completed 7 years of service a sum of Rs15750 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 13720 and on com pletion of five years service he would have earned Rs17150 calculated at the rate of Rs3430 per annum as against a sum of Rs15750 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 Rs20580 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 PK Unni vs Nirmala Industries at 488 Mangilal vs Suganchand Rathi  Sri Ram Ram Narain Medhi vs The State of Bombay 1959 Supp 1 SCR 489 Smt
Hira Devi  Ors
vs District Board Shahjahanpur  at 113 1 Nalinkhya Bysack vs Shyam Sunder Haldar  Ors  at 545 Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdaor Sabha   section Narayanaswa mi vs G Pannerselvam  Ors  at 182 NS Vardachari vs G Vasantha Pai  Anr   Union of India vs Sankal Chand Himatlal Sheth  Anr  and Commissioner of Sales Tax UPv
Auriaya Chamber of Commerce Allahabad  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 1600 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 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
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 17A3 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
GN Appeal al lowed


Summary:
Appellants A1 to A3 were tried for the offences under Sections 147 148 323 and 309 read with section 149 of the Indian Penal Code
The Trial Court acquitted A 7 of all the charges but convicted A 1 to A 6 under sections 148 and 302 read with section 149 and sentenced them to imprisonment for life
On appeal the High Court acquitted A 4 to A 6 but confirmed the conviction and sentence of the appellants
In appeal to this Court it was contended on behalf of the appellants that in view of the acquittal of four ac cused the appellant s conviction under section 148 and on applying section 149 cannot be sustained
The appellants being three in number could not have formed unlaWful assem bly under section 141 IPC
Disposing the appeal this Court HELD 1
The High Court erred in confirming the convic tion and sentence of the appellants under Section 148 and on applying 149 IPC on the ground that they formed an unlaw ful assembly alongwith some unidentified persons
The prose cution case was that the seven named accused formed the unlawful assembly and not that apart from the seven accused persons there were some other unidentified persons who were involved in the crime
Four accused having been acquitted there was no question of the remaining three appellants forming an unlawful assembly within the meaning of section 141 of the Indian Penal Code
Accordingly the appellants cannot be convicted under section 148 and an applying 149 IPC Their conviction under the said sections is set aside
6F G 5 2
Both sections 149 and 34 IPC deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences
The non applicability of Section 149 IPC is therefore no bar in convicting the accused under Section 302 read with section 34 IPC if the evidence discloses commission of offence in furtherance of the common intention of them all
6H 7 A 21 Keeping in view the manner of attack and the number and nature of injuries there is no hesitation in holding that the appellants acted in furtherance of their common intention made the murderous attack on the deceased and caused his instantaneous death
Therefore they are held guilty under Section 302 read with Section 34 IPC and are sentenced to life imprisonment
7G H