Miscellaneous Petition No 18044 of 1980
IN Writ Petition No 16093 of 1984
Under Article 32 of the Constitution of India 
Tapash Ray
Ms Pratibha Jain and section K Jain for the Petitioner 
K Parasaran Solicitor General Kuldip Singh
Additional Solicitor Genera1 and Ms A Subhashini for the Respondent
The following Order of the Court was delivered O R D E R This is an application by Shri ML Jain retired Judge of the Delhi Court questioning the constitutional propriety and legality of the order issued by the Pay  Accounts PG NO 498 Officer Delhi Administrative High Court  Miscellaneous New Delhi dated July 12 1938 purporting to fix his pension at Rs26000 per annum and for an appropriate direction for re determination of his pension and other pensionary benefits in view of the change in law brought about by High Court Judges Conditions of Service Amendment Acts 1996 and 1988 Act Nos 38 of 1986 and 20 Of 1986
This order must be read in continuation of the earlier order delivered by this Court in M L Jain  Anr vs Union of lndia 19t3 5 2 SCC 355 by which this Court made a direction for payment of pension to the petitioner at Rs215000 per annum in view of the two ceilings then operating against him viz a a ceiling under the Rajasthan Rules providing that the maximum amount of pension should not exceed Rs 1500 per annum and b that under cl
b of Paragraph 2 of Part 111 of the First Schedule of the 
According to the petitioner in view of the change in law the amount of pension payable to him has to be re calculated and re determined at Rs41600 per annum wef January 1 1986 which amount has to be further increased to Rs46100 per annum wef November 1 1986 in place of the pension of Rs 21500 as earlier directed
he question hat falls of determination in this order is whether consequent upon the improvement of the service conditions including pension and other benefits by the High Court Judges Conditions of Service Amendment Acts 1986 and 1988 and pursuant to the office Memoranda issued by the Government of India Ministry of Personal Public Grievances  Pensions Department of Pensions  Pensioners welfare dated April 14 1987 and April 16 1987 the pension of the petitioner Shri ML Jain has o be re calculated and e determined at section 41600 per annum wef
January 1 1986 which amount has to be further inceases to Rs 46100 pew annum wef
November 11986 in place of the pension section 21500 as ealiear directed In view of the impoance of the question involved we requested Sri K Parasaran learned Attorney General to assist the Court
We are greatly be holden to the Leaned Attorney General of the assistance that he has rendered
The facts are uncontroverted
The petitioner has had a long and distinguished career in judicial service extending over a period of 38 years and 9 months
including 9 years and 21 days as a Judge of the High Court
When the PG NO 499 petitioner was appointed as a Judge of the High Court of Rajasthan on July 1 1975 he was a member of the Rajasthan Higher Judicial Service having been a District  Sessions Judge for the period from November 9 1970 to July 1 1975
On his appointment as a Judge of the Rajasthan High Court the petitioner opted for the purpose of his pension for of the First Schedule to the 
On July 23 1978 the petitioner was transferred as a Judge of the High Court of Delhi under article 222 1 of the Constitution
On July 24 1978 the petitioner was sworn in as a Judge of the Delhi High Court and continued to hold that office till the date of his retirement on July 21 1984
 In order to appreciate the point in its true perspective it is necessary to set out the relevant constitutional and other statutory provisions as well as the changes brought about by the High Court Judges Conditions of Service Amendment Acts 1986 and 1988 as also the Office Memoranda issued by the Government of India Ministry of Personnel Public Grievances and Pensions Department of Pension and Pensioners Welfare dated April 14 1987 and April 16 1987 for upward revision of pension and rationalisation of the same
article 221 of the Constitution enacts 221
Salaries etc
of Judges 1 There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and until provision in that behalf is so made such salaries as are specified in the Second Schedule
2 Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and until so determined to such allowances and rights as are specified in the Second Schedule Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his advantage after his appointment  Under cl
i every Judge of a Nigh Court is thus entitled to such salaries as may be determined by Parliament PG NO 500 by law
By cl
2 such a Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament
Until such a law is made every such Judge shall be entitled to such salaries allowances and rights as are specified in the Second Schedule
The relevant provision relating to the petitioner Shri ML Jain is the one contained in section 15 1 bof the which is a law made by Parliament regulating his right to pension and it reads 15
Every Judge a   b who is not a member of the Indian Civil Service but has held any other pensionable civil post under the Union or a State shall on his retirement be paid a pension in accordance with the scale and provisions in of the First Schedule It is unquestionable that while the salary of Judges of the High Court charged on the Consolidated Fund of the State the pension of such High Court Judges is charged on the Consolidated Fund of lndia
Paragraph 2 of of the First Schedule as amended by Act 35 of 1976 which was in force on July 1 1975 when the petitioner was first appointed as a Judge or the Rajasthan High Court was in these terms 2
The pension payable to such a Judge shall be a the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge his service as a judge being treated as service therein for the purpose of calculating that pension  and b a special additional pension of Rs 700 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension if any to which he is entitled under the ordinary rules of his service shall exceed Rs3500 per annum
 PG NO 501 By Act 36 of 1986 in cl
b of Paragraph 7 of Part III of the First Schedule of the Act the special additional pension of Rs700 has been raised to Rs 1600 and the ceiling of Rs3500 to Rs 8000 respectively wef November 1 1986
There is however a proviso beneath cl
b which reads Provided that the pension under clause a and the additional pension under clause b together shall in no case exceed Rs 54000 per annum in the case of a Chief Justice and Rs 48000 per annum in the case of any other Judge
 Rule 2 of the High Court Judges Rules l956 as amended till March 181987 which governs all Service Judges provides 2
Conditions of service in certain cases The Conditions of service of a Judge of a High Court for which no express provision has been made in the shall be and shall from the commencement of the Constitution be deemed to have been determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated Provided that in the case of a a Judge of the High Court of Delhi the condition of service shall be determined by the rules for the time being applicable to a member of the Indian Administrative service on deputation to th Government of India and holding the rank of Joint Secretary to the Government of India stationed at New Delhi
 It would be convenient at this stage to refer to the decisions taken by the Government of India Ministry of Personnel Public Grievances  Pensions Department of Pension  Pensioners Welfare
On March 18 1987 the Government of India by Resolution No 21387 PIC accepted the recommendations of the Fourth Central Pay Commission for upward revision of pension and pensionary benefits
It was applicable to all pension to all pensioners family pensioners who were drawing pension family pension under the CCS Pension Rules 1972
CCS Extraordinary Pension Rules and the corresponding rules applicable to Railway Pensioners and pensioners of All India Service
PG NO 502 In pursuance of the aforesaid Resolution the Government of lndia Ministry of Personnel Public Grievances  Pensions Department of Pension  Pensioners Welfare issued an Office Memorandum No 21 87 PIC II dated April 14 1987 bringing about modifications in the rules regulating Pension Death cum Retirement Gratuity and Family Pension under the CCS Pension Rules 1972 Rule 31 of the Rules as modified made the revised provisions applicable to Government servants who retired or died in harness on or after January 1 1986
Rule 52 provided that pension shall be calculated at 50 of average emoluments in all cases instead of under the slab formula given in cl
a of sub r
2 of r 49 of the Pension Rules
By a subsequent Office Memorandum dated April 16 1987 the MInistry of Personnel Public Grievances and Pension Department of Pension and Pensioners Welfare issued a scheme for rationalisation of pension structure for pre January 1 l986 pensioners
It applied to all pensioners belonging to the classes enumerated above including officers of the Indian Civil Service who retired from service on or after January 1 1973
Paragraph 22
of the Office Memorandum provides that separate orders would be issued by the Ministry of Defence in regard to Armed Forces PensionersFamily Pensioners
Paragraph 23 is a provision with regard to retired Judges of the Supreme Court and the High Courts and it provides These orders do not also apply to retired High Court and Supreme Court Judges and other constitutionalstatutory authorities whose pension etc
is governed by separate orders
Necessary orders in their case will be issued by the respective administrative authorities
 Paragraph 5 of the aforesaid Office Memorandum provides for payment of additional benefit equal to the difference between half of the emoluments and the basic pension in view of re calculation of pension at 50 of average monthly emoluments in place of the slab system
It further provides that there would be no upper ceiling on the amount of pension now so worked out
On December 18 1987 the Government of India Ministry of Law  Justice Department of Justice purported to issue a letter addressed to 1 Accountants General All States 2 The Pay  Accounts Officer Supreme Court of India New Delhi and 3 The Pay  Accounts Officer No XIV Delhi Administration New Delhi giving direction as to the manner in which the basic pension of the Supreme Court Judges and PG NO 503 High Court Judges governed by the provisions of Part III of the First Schedule to the High CourtSupreme Court Judges Conditions of Service Act 19541958 is to be determined the relevant portion whereof reads  The ordinary pension admissible to High CourtSupreme Court Judges under para 2a of Part III of the First ScheduleSchedule to the High CourtSupreme Court Judges Conditions of Service Act 19541958 respectively may be revised with effect from 1 1 1986 as in the case of the employees of Central Government or from some other date the respectively State Governments may decide to adopt these orders or an independent order issued by them if any to grant the benefit of increased pension on similar lines to their employees including members of Higher Judicial Service
 The said letter goes on to say This is subject to the condition that the total pension including additional pension admissible to such Judges under para 2a and b of Part III of the First ScheduleSchedule to the High CourtSupreme Court Judges CS Act 19541958 shall not exceed Rs48000 pa Rs54000 pa and Rs 60000 pa
in the case of Judge High Court Chief Justice High CourtJudge Supreme Court of India and the Chief Justice of India respectively
 We fail to appreciate the propriety of the aforesaid letter of the Ministry of Law  Justice giving liberty to the different State Governments to deny the benefit of the revised pension to the Service Judges consequent upon the enactment of Act 3886 and 2088 read along with the aforesaid Office Memoranda issued by the Government of India Ministry of Personnel Public Grievances  Pensions Department of Pension  Pensioners Welfare dated April 14 1987 and April 16 1987 and r 2 of the High Court Judges Rules 1956
Virtually this means that the State Governments may or may not issue any orders in of Paragraph 23 of the Office Memorandum dated April 16 1987 appointing a date for grant of revised pension or appoint different dates for the grant of revised pension to the retired High Court Judges who had opted to be governed by Part III of the First Schedule of the Act
Such a direction in our view was constitutionally impermissible as offending Act
14 of the Constitution
It is tantamount to denial of equal treatment PG NO 504 to persons belonging to the same class without any national basis
It was urged on behalf of the petitioner that the Pay  Accounts Officer should not have denied the petitioner the benefit of the higher pension he was entitled to in the light of the changed provisions of law and that paragraph 23 of the Memorandum had no relevance to the petitioner s case because the petitioner by reason of his transfer from the Rajasthan High Court to the Delhi High Court under Act
222 of the Constitution became automatically a judge of the Delhi High Court and therefore he was governed by the first proviso to r 2 of the High Court Judges Conditions of Service Rules 1955 which provides that in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab  Haryana the conditions of service shall be determined by the Rules for the time being applicable to a Member of Indian Administrative Service on deputation to the Government of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi
It was urged by reason of this position the petitioner was entitled to the benefits of pension in restructured scale set out in the Memorandum
It was further stated that Iikewise the action of the Pay  Accounts Officer in reckoning the basic pension of the petitioner at Rs 1500 per month as provided in column 1 to the Table appended to the Memorandum and not at Rs2925 merely on the strength of the earlier position noticed in M L Jain s case despite the changes brought about by Act 38 of 1986 and Act 20 of 1988 and in depriving him of the benefit of additional relief of Rs250 per month wef
January 1 1986 was wholly misconceived and unwarranted
We not only found the contentions of the petitioner to have force but also to be irrefutable ones
To bring out more forcefully how the governmental action is patently arbitrary and as to how he had been subjected to discriminatory treatment without there being any justifiable basis for it the petitioner brought to our notice the higher rates of pension the Pay  Accounts Officer had fixed for some other Judges of the Delhi High Court even though their overall period of service and their tenure of office as a Judge of the High Court was lesser than his
While the Pay  Accounts Officer has fixed the pension of the petitioner at Rs 26000 per annum the very same authority had fixed the pension of Shri JD Jain at Rs46340 and that of Shri DR Khanna at Rs44684 per annum who had also retired as Judges of the Delhi High Court
They had put lesser periods of total service as well as service as High Court Judges
Shri JD Jain had put in judicial service for a period of 35 PG NO 505 years 7 months and 19 days including 6 years 5 months and 2 days as a Judge of the Delhi High Court
Shri DR Khanna had a total period of judicial service of 34 years 110 months and 25 days including 5 years 11 months and 28 days as a Judge of that High Court
We must confess that it surpasses our comprehension as to on what rational basis the Pay  Accounts Officer deemed it just and proper to accord differential treatment to the petitioner and fixing his pension at the low figure of Rs26000 when other Judges of the same High Court who had put in lesser number of years of service were held entitled to pension at much higher rates
The State Government of Uttar Pradesh by its notification No 1413984 CX 1 dated May 31 1988 has brought about a change in cl
b of Paragraph 2 of Part III of the First Schedule and revised the rates of pension wef January 1 1986 in terms of the aforesaid Memorandum
Accordingly a Judge of the Allahabad High Court Shri JP Chaturvedi who retired on February 7 1981 had his pension fixed at Rs46 100 per annum
We are given to understand that he had put in much shorter period of service as compared to the petitioner
We commend the action of the State Government of Uttar Pradesh in issuing a Notification as abovesaid to clarify the position and to ensure the implementation of the change brought about in clb of Paragraph 1 of Part III of the First Schedule and would direct all the State Governments to issue orders in similar terms
The learned Attorney General with his usual fairness frankly conceded that there is patent disparity in the pension fixed for the petitioner at Rs26000 Shri Kuldip Singh learned Additional Solicitor General appearing on behalf of the Union of India assured us that the disparity disparity would be removed as expeditiously as possible and the authorities would endeavour to pay th difference to the petitioner without delay
The learned Attorney General was kind enough to say that he would advise the Government to bring about party between the pension drawn by the petitioner and the other Judges in India
We refrain from expressing any opinion as to the effect of lifting of the ceiling on that special additional pension Rs 8000 per annum placed by clb of paragraph 2 of Part III the First Schedule
The question really does not arise for our consideration at the moment and is left open
In the result CMP No 1804488 is allowed
The impugned of the Pay  Accounts Officer dated July 12 1988 is quashed
We direct the Union of India as well as the Pay PG NO 506  Accounts Officer Delhi Administration High Court  Miscellaneous New Delhi to re fix the pension of the petitioner at Rs4l600 per annum wef
January 1 1986 and at Rs46 100 per annum wef
November 1 1986
We further direct that the arrears of the difference in the amount of pension be paid to the petitioner as expeditiously as possible and in any event not later than two months from today
The petitioner shall also be entitled to all other consequential benefits
RSS Petition allowed


Summary:
The time limit of six months provided by section 5 of the Bengal Tenancy Act within which a tenure holder has to give notice of his succession to the landlord or have his name mutated in his rent roll is not mandatory but directory in character and the only effect which non observance of that time limit can have under section 16 of the Act is to postpone his remedy to recover arrears of rent by way of suit till such time when he performs the duty cast upon him by section 5 Of the Act but it cannot by itself bar the remedy for all time to come
Section 16 is a penal provision and must be subjected to its statutory limitation and the penalty it imposes cannot be extended by implication
Consequently in a case where the sepatnidar resisted the durpatnidars  suit for recovery of arrears of rent on the ground inter alia that they had not got themselves mutated in the landlord s records under section 15 of the Bengal Tenancy Act and as such 227 the suit was barred under section 16 of the Act and the courts below found on the evidence adduced by the durpatnidars that the landlord had accepted rents from them and granted receipts after ordering mutation of their names in the rent roll Held that the courts below were right in holding in favour of the durpatnidars that there was the necessary mutation in the landlord s rent roll
The factum of mutation in the landlord s rent roll can be proved not only by the production of original rent roll or its certified copy butfailing these also by other secondary proof of mutation