tition Nos
1609384  1 324383 G Under Article 32 of the Constitution of India
Sobhag Mal Jain  SK Jain and DK Garg for the Petitioner
AK Ganguli and RN Poddar for the Respondents
The Judgment of the Court was delivered by 610 CHINNAPPA REDDY  J
On November 20  1984 this writ petition was heard along with Writ Petition No 13243 of 1983 Shri JP Chaturvedi vs Union of India
Shri JP Chaturvedi s petition was allowed  by consent of the learned Attorney General who appeared for the Union of India
Shri ML Jain s petition was allowed on the same lines under the impression that the facts involved were the same
It has now been brought to our notice by the Registry that there is considerable difference in the prayers in the two cases
We have  therefore  recalled our earlier order in Shri ML Jain s case and examined his case afresh
Shri ML Jain was a member of the Rajasthan Judiciary from September 31  1945 onwards till July 1  1975 during which period he was a District and Session Judge  from November 9  1970 to July 1  1975
Thereafter he was elevated as a Judge of the High Court on July 1  1975
He retired as a Judge of the High Court on July 21  1984
Had he not been appointed a Judge of the High Court  he would have retired as District and Session Judge on July 31  1977
His total period of service as a Judicial Officer  otherwise than as a Judge of the High Court was 29 years  9 months and one day while his service as a Judge of the High Court was a period of 9 years and 21 days
When he was appointed a Judge of the High Court he appears to have opted  for the purpose of his pension  for Part Ill of the 1st Schedule to the High Court Judges  Conditions of Service Act  1954
Paragraph two of Part III of the Ist Schedule is as follows The pension payable to such 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 Rs 3500 per annum
 According to the calculation made by the respondent  Shri ML Jain was entitled to a pension of Rs 15320 per annum only
611 This figure was arrived at on the basis that had he continued as a District and Sessions Judge he would have retired on July 31  1977 and his average monthly emoluments during the period  October 1  1976 to July 31  1977  would be Rs 2500 per month as that was the pay he would have drawn as a District Judge had he continued as a District Judge and retired on July 31  1977
On that basis his pension was calculated at Rs 11820 per annum under clause a of Para 2 of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs 3500 per year under Clause b of Para 2 of Schedule I
His total pension was thus determined at Rs 15320 per annum
The calculation made under clause a of Paragraph 2 of the First Schedule was apparently done pursuant to the letter dated September 19  1984 from the Ministry of Law  Justice and company Affairs addressed to all Accountants General
Paragraph 2 of the letter is as follows The question as to what should be taken into account for calculation of pension in terms of part 2a mentioned above  has been examined
After careful consideration of the matter  it has been decided that  i The service as Judge of the High Court will count towards qualifying service for pension in his parent service or post
ii pay of the purpose for calculating pension under para 2a shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in his parent Department  preceding the date on which he was elevated as a Judge of the High Court  including annual increments  if any  which he would have drawn upto the date of his superannuation as a Government servant
Further the pay which he would have drawn in the selection grade  if any  for which he would have been automatically  eligible and not on the basis of any selection  will also be taken into account
In case he was holding a post on deputation as distinct from foreign service  the pay in such an ex cadre post will also be 612 taken into account on the same lines as mentioned above
iii Special additional pension under para 2b will be calculated as provided in the High Court Judges  Conditions of Service Act  1954
 We are of the opinion that para 2ii of the letter dated September 19  1984 is a clear departure from para 2 clause a of Schedule I to the High Courts Judges Conditions of Service Act
Under clause a of para 2 of the Schedule I to the High Courts Judges  Conditions of Service Act the retiring Judges entire service as a Judge has to be reckoned for the purpose of calculating his pension and for that purpose the last pay drawn by him has to be the pay drawn by him as a Judge of the High Court and not the pay that would have been drawn by him as a District Judge  had he not been appointed a High Court Judge
Under the Rajasthan Rules  his monthly pension was to be calculated in the following manner Upto the first Rs 1000 of emoluments  the monthly pension would be 50 of the emoluments For the next Rs 500 of the emoluments  the pension would be 45 of the emoluments  For the balance of the emoluments  the pension would be 40 of the emoluments The amount of pension was to be arrived at on the basis of these slabs  related to the maximum qualifying service of 33 years
There was however a ceiling on the pension and it was prescribed that the maximum amount of pension should not exceed Rs 1500 per month
As Shri ML Jain had put in a total service of more than 38 years and 9 months including his service as a High Court Judge and his last pay drawn was Rs 3500 per month  his pension would be Rs 1525 per month
But since the Rajasthan Rules prescribed a ceiling of Rs 1500 per month  he was entitled to a pension of Rs 1500 per month only under clause a of Para 2 of Schedule III
To this  the additional pension to be added under clause b was Rs 700 x 9  Rs 6300  but here again the ceiling 613 has been prescribed as Rs 3500 per annum
Thus the additional pension under clause b would be Rs 3500 per annum only bringing the total pension of Shri ML Jain to Rs 21500 per annum
But for the ceiling prescribed under the Rajasthan Rules and clause b of para 2 of the Schedule I to the High Courts Judges  Conditions of Service Act  Shri ML Jain would have been entitled to a pension of Rs 24600 per annum  which is meagre enough considering his long and distinguished service as a Judicial Officer and High Court Judge for a period of 38 years and 9 months
But even this he is not entitled to be paid under the rules because of the respective ceilings and he is only entitled to a pension of Rs 21500 per annum
We find that in the recent budget proposals  the ceiling on the pension of civil servants is to be lifted
We hope the situation will be remedied in the case of judges also and the ceiling lifted as early as possible
We may suggest that this may be done straight away by including suitable provisions in the Bill now announced to be pending before Parliament
This will  of course  be quite apart from the other changes for the improvement of the Conditions of Service of Judges in the matter of salaries  allowances etc
which changes also brook no further delay if justice is to be done to the judges
The petition is allowed in terms of what we have stated
Letter No 6484 Jus dated August 30  1984 from the Government of India  Ministry of Law  Justice and Company Affairs to the Chief Secretary  Delhi Administration  Delhi is qua shed and the pension of the petitioner is refixed at Rs 21500 per annum


Summary:
Paragraph 2 of of the 1st Schedule to the  1954  provides that the pension payable to 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 shall exceed Rs3500 per annum
By a letter dated September 19  1984  addressed to all Accountants General the Ministry of Law  Justice and Company Affairs indicated the method for calculation of a Judges pension
It provided that i the service as Judge of the High Court will count towards qualifying service for pension in his parent service or post  and ii pay for the purpose for calculating pension under para 2 a shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in his parent Department preceding the date on which he was elevated as a Judge of the High Court  including annual increments  if any  which he would have drawn upto the pate of his superannuation as a Government servant  and iii special additional pension under para 2 b as provided in the 
The petitioner was a member of the State Judicial Service
His total period of service as a Judicial Officer  otherwise than as a Judge of the High Court was 29 years  9 months and one day while his service as a Judge of the High Court was a period of 9 years and 21 days According to the calculation made by the respondent  the petitioner was entitled to a pension of Rs 15320 per annum
This figure was arrived at on the basis that had he continued as a District and Sessions Judge  he would have retired on July 31  1977  and on 609 that basis his pension was calculated at Rs11820 per annum under clause a of para 2 of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs3500 per year under Clause b of Para 2 of Schedule I
His total pension was determined at Rs15320 per annum
A Allowing the Writ Petition
 HELD 1
Para 2ii of the letter dated September 19  1984 of the Ministry of Law  Justice  Company Affairs is a clear departure from para 2 clause a of Schedule I to the  1954
Under clause a of para 2 of the Schedule I to the Act  the retiring Judges  entire service as a Judge has to be reckoned for the purpose Or calculating his pension and for that purpose the last pay drawn by him had to be the pay drawn by him as a Judge of the High Court and not the pay that would have been drawn by him as a District Judge  had he not been appointed a High Court Judge
612C D  In the instant case the petitioner had put in a total service of more than 38 years and 9 months including his service as a High Court Judge and his last pay drawn was Rs3500 per month  his pension would be Rs1525 per month
But since the Rajasthan Rules prescribed a ceiling of Rs 1500 per month  he was entitled to a pension of Rs1500 per month only under clause a of para 2 of Schedule I
To this  the additional pension to b added under clause b was Rs700 x 9 Rs6300 but here again the ceiling prescribed was Rs3500 per annum
The total pension would therefore be Rs21500 per annum
But 1 for the ceiling prescribed under the Rajasthan Rules and clause b of para 2 of Schedule I of the Act  he would have been entitled to Rs24600 per annum
612G 613B 2
The letter dated August 30  1984 from the Government of India to the Chief Secretary  Delhi Administration is quashed and the pension of the petitioner is refixed at Rs21500 per annum
613 E 3
In the recent budget proposals the ceiling on the pension of civil servants is to be lifted
It is hoped the situation would be remedied in the case of judges also and the ceiling lifted as early as possible
613 C