Case: R. L. Narasimham Vs. Union Of India

retired after the enforcement of the 1954 Act but before its amendment in1958. However, for the purpose of pension he had elected to be governed by Part II of the First Schedule to the 1954 Act. He was accordingly paid pension to which he would have been entitled under the ordinary rules of I.C.S., if he had not been appointed a Judge, his servie as a Judge being treated as service therein for the purpose of calculating his pension, Shri Harish Chandra was also stated to be entitled to an additional pension according to the scale prescribed under Part II. It was also added in the counter-affidavit that even as an I.C.S. Officer Shri Harish Chandras pension should have been expressed under the relevant articles of the Civil Service Regulations in rupees as he wanted to draw his pension in India. He had, therefore, been wrongly sanctioned pension under a mistaken belief that he was entitled to his pension in sterling. In fact according to the counter- affidavit the pension cases of all these four Judges were under the consideration of the Government. These instances not being similar do not afford any assistance in the present case. Even the instance of Shri Harish Chandra is distinguishable. There is thus no question of any hostile discrimination and the plea on the basis of violation of Art. 14 of the Constitution being misconceived is unacceptable. Shri Narasimham retired in 1968, when the Parliament had by the 1954 Act already determined his right in respect of pension by converting the pounds sterling into rupees at the prevailing rate. He also elected to receive pension under Part I of the First Schedule of the 1954 Act and not under Part II.The use of the singular in the Proviso in Art. 231 (2) of the Constitution relied upon by Shri Narasimham is, in our opinion, of no particular significance. It does not change the plain meaning of the Proviso which, in our view, does not entitle the present Chief Justices to claim payment of pensions on conversion of the pound into rupees at the current rate of exchange prevailing at the time of payment.35. Shri Narasimham in his second set of written arguments has prayed for a further opportunity of addressing oral arguments. In our opinion, he has already had more than ample opportunity of stating and developing his arguments and there is no cogent ground for allowing him any further opportunity of oral address.36. Shri Desai has in his written arguments, it may incidentally be pointed out, claimed that pension, unlike salary, is earned at once, each instalment being only a part of the whole pension. On this basis he claimed that the 1954 Act gave him unfavourable terms by substituting unstable currency like the rupee for the more stable currency like the pound sterling. According to him the rate prevailing at the time when the pension was converted into rupees by the Parliament is also irrelevant as his pension had not fallen due to him at that time. The argument is without merit. Shri Desai retired in February, 1966 when the Parliament had already validly fixed his pension in rupees: he also elected to receive pension according to Part I of the First Schedule to the 1954 Act. He further got his pension commuted in July, 1966 at the rate determined under the 1954 Act after the devaluation of the rupee. In these circumstances it is difficult to appreciate what right he has now, to ask for pension being paid to him by converting pound sterling into rupees at the current rate of exchange. The bald assertion unsupported by any cogent material, that pound sterling is intrinsically a more stable currency than rupee, apart from being wholly unacceptable, has no relevance, when we find that pension expressed in sterling was validly converted into rupees by the Parliament for payment to the Chief Justice and Judges of the High Courts at a uniform rate.37. After the judgment was ready the office of this Court circulated to us copies of Shri Narasimhams application (C. M. P. No. 4457 of 1972 in his Writ Petition No. 630 of 1970) dated July 12, 1972 praying that in view of the changed circumstances, this Court may permit him to withdraw his writ petition and that the parties be directed to bear their own costs. The change in the circumstances necessitating the withdrawal of the writ petition has not been stated in the application.38. As all the three cases were heard together and on behalf of Shri Desai the arguments addressed in the other two cases were adopted by his counsel all the points of law raised in all the three cases have to be decided by this Court. It is accordingly not necessary to delete any part of the decision from the judgment. All that we need say is that Shri Narasimham is allowed to withdraw his writ petition and that the same is dismissed as withdrawn without any order as to costs.39. There is also another fact which requires notice. Shri B. Malik has after the judgment was ready, sent to us individually by registered post additional written arguments in his case (C.A. No. 2065 of 1970) with a covering letter dated July 7, 1972 stating that he had been informed that this Court had directed his appeal and other connected cases to be listed for further hearing after the re-opening of the Court and that this Court had also directed written arguments to be filed. We do not think that Shri Malik has been correctly informed. Sending arguments to the Judges by post also seems to us to be irregular and contrary to the practice and procedure of this Court. A proper application seeking permission to file additional arguments should have been filed in court in accordance with rules. However, as almost all the points raised in his fresh arguments have already been dealt with in the judgment we need say nothing more in this connection.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The principal distinction between C.A. No. 2065 of 1970 (Shri B. Malik v. Union of India and anr.) and the other two cases, as suggested at the bar, is that Shri B. Malik never belonged to the Indian Civil Service whereas Shri Narasimham and Shri Desai originally belonged to the Indian Civil Service and were appointed Judges of their respective High Courts as members of that service. The difference between these two categories of cases lies in the difference in the rules of service with regard to payment of pension governing the judges who came from the Indian Civil Service and those who never belonged to thatis not denied that Shri Malik who is not a member of the Indian Civil Service is to be paid his pension in accordance with the scale and provisions in Part I of the First Schedule as laid down by Section 14 of the 1954 Act. As regards Shri Desai also it is not disputed that he had on his retirement elected under the proviso to Section 15 to receive his pension under Part I of the First Schedule. All that he has pleaded in the rejoinder affidavit is that there was never any question of option between the 1937 Order and the 1954 Act. This plea ignores the fact that had he exercised his option to receive his pension under Part II he would have been entitled to invoke the ordinary rules of the Indian Civil Service applicable to him, had he not been appointed as Judge, and that his election to receive pension under Part I rules out all claim to pension in sterling. So far as these two Chief Justices are concerned it is hardly open to dispute that they have both to receive their pension under Part I. The claim made in the writ petition by Shri Desai that he was entitled to draw his pension at the Treasury in England in sterling is also in view of his election not easy to sustain and indeed no convincing argument was advanced in its support. It is only in the case of Shri Narasimhan that it was suggested that he had exercised his option without prejudice to his right to claim pension in pounds sterling under the 1937 Order to be converted into rupees, if that would be more favourable to him. Under the proviso to Section 15 as is clear he was required to elect to receive his pension either under Part I or under Part II. Part II of the First Schedule applies to a Judge who is a member of the Indian Civil Service and who has not elected to receive the pension payable under Part I. Under paragraph 2 of Part II pension payable to such a Judge is the pension to which he would be entitled under the ordinary rules of the Indian Civil Service if he had not been appointed a Judge, his service as a Judge being treated as service therein for calculating that pension, and to the additional pension, if any, to which he would be entitled under paragraph 3. It may be recalled that the original paragraph 3 as enacted in 1954 provided for a scale of additional pension for Judges completing not less than seven years of service, and that the amount was expressed in sterling. By the amending Act No. 46 of 1958 this scale in paragraph 3 was specified in rupees instead of sterling with retrospective effect. This amendment was effected long before Shri Narasimham retired. The vires of legality or this amendment was not questioned before us.20. It is true that in the absence of election by Shri Narasimham under Section 15 it was apparently not possible to calculate pension payable to him under the 1954 Act. It was, however, open to him, if he so desired, to elect to receive pension under Part II. Instead of so electing, he elected to receive pension under Part I without prejudice to his right to claim at superannuation payment of pension under the 1937 Order by converting sterling into rupees if that were more favourable to him. After the amendment of paragraph 3 of Part II of the First Schedule, even under that Part there is no question of calculating pension payable to retired Judges of the High Court in pounds sterling. Indeed, the 1954 Act, after its amendment marks the final break with the foreign currency in the matter of payment of pensions to the High Court Judges and the beginning of uniform treatment of all High Court Judges in the matter of payment of pension by providing for calculation and payment in Indian currency. The anomaly which was a relic of the British rule originally motivated by an apparent desire to bestow a special privilege and facility, carrying financial benefit, on British Judges serving in India was finally removed by this amendment. It is hardly necessary in this connection to emphasie the desirability of keeping our basic economic structure, so far as practicable, free from the direct effects of unpredictable fluctuations in the value of foreign currency. It was thus apparently with the intention of delinking the fixation of pension to the retired I. C. S. Judges of the High Court from the pound sterling-a foreign currency- that the Parliament in its wisdom decided to effect the necessary amendment in the 1954 Act, which removed the anomaly of paying pensions to a certain category of High Court Judges by first determining the amount of pension in a foreign currency and then converting that amount into Indian rupees for payment to them. It also eliminated the possibility of recurring variations, depending on the uncontrollable fluctuations in the value of pound sterling, in the amount of pensions payable to that category ofseems obvious that in 1948 the Government felt some difficulty in acting on the representation of the I. C. S. Association on such an important point as the removal of the anomaly of fixing in sterling the I. C. S. annuity but in due course after fuller deliberation when India ceased to be a Dominion and became a Sovereign Democratic Republic the suggestion made by the said Association itself was accepted and carried out on a permanent basis by inserting the necessary provision in the Constitution and later by enacting the 1954 Act so far as the High Court Judges are concerned. We need not refer to the changes effected in the relevant Civil Service Regulations. The extract of the letter produce by Shri Narasimham would thus seem to be wholly unhelpful to him27. The vires of Section 18 of the 1954 Act in so far as it empowers the Central Government to specify the rate of exchange for converting sterling into rupees was not questioned before us. There being, therefore, no right created by the 1937 Order or by any other statutory provision brought to our notice vesting in the three Chief Justices a right to get their pension converted from pound sterling into rupees at the prevailing market rate of exchange at the time of their retirement or of actual payment, we do not think they can have any legitimate grievance against the fixation of their pension in rupees on a permanent basis by the Parliament under the 1954 Act as amended, in accordance with the then prevailing rate. The amount of pension fixed by the 1954 Act as amended was indisputably not less favourable to the three Chief Justices and even on their own argument they had no grievance against it at that time. The fact that it was so fixed on a permanent basis by the Parliament does not violate any right vested in the three Chief Justices.This argument in face of the clear provisions of the other relevant sections and of the relevant parts of the First Schedule is, in our opinion, unacceptable for sustaining the claim of the three Chief Justices to get their pensions converted into rupees in accordance with the terms of the 1937 Order for payment to them. Section 18 may well have been retained for the benefit of those I.C.S. Judges whose right to pension was governed by the 1954 Act prior to its amendment by Act 46 of 1953. It is, however, unnecessary to express any considered opinion on thisrelationship of creditor and debtor, assuming it to exist in this case, could only arise after the pension became due and payable. After the enforcement of the 1954 Act as amended he could only become a creditor in terms of rupees and not in terms of pounds. This contention is, therefore, of no assistance to Shri Narasimham.31. This also fully answers the alternative plea that Shri Narsimham has in any event a money claim against the Government. The money claim in respect of pension also materialises only when it becomes due. No provision of statutory law or binding precedent was brought to our notice under which a claim under the 1937 Order could be kept alive so far as the three Chief Justices are concerned after the commencement of the Constitution and enforcement of the 1954 Act beyond the extent to which any such claim was actually preserved thereunder. As observed earlier, the Constitution and the 1954 Act only contemplate calculation and payment of pension inuse of the singular in the Proviso in Art. 231 (2) of the Constitution relied upon by Shri Narasimham is, in our opinion, of no particular significance. It does not change the plain meaning of the Proviso which, in our view, does not entitle the present Chief Justices to claim payment of pensions on conversion of the pound into rupees at the current rate of exchange prevailing at the time of payment.As all the three cases were heard together and on behalf of Shri Desai the arguments addressed in the other two cases were adopted by his counsel all the points of law raised in all the three cases have to be decided by this Court. It is accordingly not necessary to delete any part of the decision from the judgment. All that we need say is that Shri Narasimham is allowed to withdraw his writ petition and that the same is dismissed as withdrawn without any order as to costs.39. There is also another fact which requires notice. Shri B. Malik has after the judgment was ready, sent to us individually by registered post additional written arguments in his case (C.A. No. 2065 of 1970) with a covering letter dated July 7, 1972 stating that he had been informed that this Court had directed his appeal and other connected cases to be listed for further hearing after the re-opening of the Court and that this Court had also directed written arguments to be filed. We do not think that Shri Malik has been correctly informed. Sending arguments to the Judges by post also seems to us to be irregular and contrary to the practice and procedure of this Court. A proper application seeking permission to file additional arguments should have been filed in court in accordance with rules. However, as almost all the points raised in his fresh arguments have already been dealt with in the judgment we need say nothing more in this connection.