M.L. JAIN & ANR.

UNION OF INDIA

April 8, 1985

(0.CHINNAPPA REDDY, A.P.SEN AND E.S.VENKATARAMIAH, JJ.J

High Court Judges (Conditions of Service) Act 1954 Para 2 (a). Part III.

First Schedule Judicial Officer appointed as a High Court Judge-Calculation of pension.on retirement-How determined.

Paragraph 2 of Part III of the !st Schedule to the High Court Judges (Conditions of Service) Act, 1954, provides that the pension payable to a Judge D 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, fhis servJ'ce as a Judge being treated as service therein for the purpo:; e 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 Rs.3,500 per annum.

By a letter dated September 19, 1984, addressed to all Accountants- General the Ministry of Law, Justice and Company Affai:rs indicated the me thod for calculation of a Judges' pension. It pro\ ided that : ( i) the service as Judge of the High Court will count towards qualifying sc:rvice 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 d:ra\Vn or would have drawn in the scale of pay of the post held by him in his ]parent :Qepartment,

preceding the date on which he was elevated as a Judge of the High Court, including annual increments, if any, V.'hich he would have drawn upto the Pate of his superannuation as a Government servant, a1d (i:ii) special additional pension under para 2 (b) as provided in the High Court Judges (Condilions of Service) Act 1954.

The petitioner was a member of the State Judicial Service. His total period of service as a JudiciaJ Officer, otherwise than as a Judge of the High Court was 29 years, 9 months and one day while his scrvk:e 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 15,320 per annum. This figure was arrived at on the basis that bad he continued as a District and Sessions Judge, he would have retired on July 31, 1977, and on

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M.t. iAiN v. UNION 609 ;

that basis his pension was calculated at Rs.11, 820 per annum under ct'3use (a) of para 2 of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs.3,500 per year under Clause (b).of Para 2 of Schedule I. His tota! pension was determined at Rs.15,320 per annu.m. .

Allowing the Writ Petition.

HELD : I. Para 2(ii) ofthe letter dated September 19, 1984 of the Ministry of Law, Justice & Company Affairs is a clear departure fro~ para 2,' clause (a) of Schedule I to the High Court Judges (Conditions of Service) A.ct,

1954. Under clause (a) of para 2 of the Schedule I to the Ac\, 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 bad to be the pay drawn by him as a Judge of the High Court and not the pay tb8.t would have been drawn by him as a District Judge, had he not been appoinfed a

1'' 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

tat pay drawn was Rs.3,500 per month, his pension would be Rs.I,525 per .mon / th. But since the Rajasthan Rules prescribed a ceiling of Rs. 1,500 . per month, he was entitled to a pension of Rs.1,500 per month only under clause (a) of para 2 of Schedule I. To this, the additional pensidn to be added under cl3.use

(b) was Rs.700 x 9-Rs.6,300 but here again the ceiling prescribed was Rs.J;'Soo' per annum. The total pension would therefore be Rs.21,500 per annum:- But. 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 Rs.24,600 per annum.'

[612G613B}

 2. The letter dated August 30, 1984 from the Government Of.India to the Chief Secretary, Delhi Administration is quashed and the pension o"f the: petitioner is refixed at Rs.21,500 per annum. [613EJ

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. [613Cl

ORIGINAL JURISDICTION : Writ Petition Nos. 16093/84 &

''

13243/83 G

ner.

Under Article 32 of the Constitution of India.

Sobhag Mal Jain, S.K. Jain and D.K. Garg for the Petitio-

A.K. Ganguli and R.N. Poddar for the Respondents .

. The Judgment of the Court was delivered by

610 SUPttllMB COUltT ltBt'OltTS {1~85) S.C.lt.

CHINNAPPA REDDY, J. On November 20, 1984 this writ petition was heard along with Writ Petition No. 13243 of 1983 (Shri J.P Chaturvediv. Union of India). Shri J.P. Chaturvedi's petition was allowed, by consent of the learned Attorney General who appeared for the Union of India. Shri M.L. 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 M.L. Jain's case and examined his case afresh.

Shri M.L. 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 Judgo, from November 9, 1970 to July 1, 1975. Thereafter he wa~ elevated as a Judge of the High Court on July l, 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.

E When he was appointed a Judge of the High Court he appears

to have opted, for the purpose of his pension, for PJrt UI of the 1st Schedule to the High Court Judges' (Conditions of Service) Act, 1954. Paragraph two of Part III of the 1st Schedule is as follows:-

 "The pension payable to such Judge s.hall 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 (h) 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 und"r the ordinary rules of his service, shall exceed Rs. 3,500 p1:r annum."

H According to the calculation made by the respondent, Shri M.L. Jain was entitled to a pension of Rs. 15,320 per annum only.

.__

' .

This figure was arrived at on the basis that had he continued as a A District and Sessions Judge he would have retired on July 31, 1977 and his average monthly emoluments during the period, October l, 1976 to July 31, 1977, would be Rs. 2,500 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 bis pension was calculated at Rs. 11,820 per annum under.clause (a) of B Para (2) of the First Schedule read with the Rajasthan Rules and to that figure was added the additional pension of Rs. 3,500 per year under Clause (b) of Para 2 of Schedule I. His total pension was thus determined at Rs. 15,320 per annum .

The calculation made under clause (a) of Paragraph 2 of the First Schedule wa; 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 2(a) mentioned above, has been examined. After careful consideration of the matter, it has been decided that .......... ..

J D

(i) The service as Judge of the High Court will E count towards qualifying service for pension in his parent service or post.

(ii) pay of 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 date of his super annuation as a Government setvant. 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

SUPREME COURT REPORTS

[1985] 3 S.C.R.

taken into account on the same lines as mentioned above.

(iii) Special additional pension under para 2(b) will be calculated as provided in the High Court Judges, (Conditions of Service) Act, 1954."

We are of the opinion that para 2(ii) of the lttrer 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 Ii.is pensioa and for that purpose the last pay dra11n 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 drnwn 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 M.L. Jain bad 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. 3,500 per month, bis pension would be Rs. 1,525 per month. But since the Rajasthan Rules prescrided a ceiling of Rs. 1,500 per month, he was entitled to a pension of Rs. 1,500 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. 6,300, but b!'re again the ceiling

has been prescribed as Rs. 3,500 per annum. Thus the additional pension under clause (b) would be Rs. 3,500 per annum only bringing the total pension of Shri M.L. Jain to Rs. 21,500 per anum.

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 M.L. Jain would have been entitled to a pension of Rs, 24,600 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 uhder the rules because of the respective ceilings and he is only entitled to a pension of Rs. 21,500 per anunm. 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 Np. 6/4/84-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 quashed and the pension of the petitioner is refixed at Rs. 21;500 per annum.

N.V.K.

Petition Allowed ..

.. c