M.L. JAIN v.

UNION OF INDIA

JANDA.RY 22, 1991

B [_RANGANATH M~SRA, ~J AND M.fl. Ki\NlA, J.l

The High Court Judges (Conditions pf servicf!) Act, 1954-First Schf!dufe Part lfl Para 2(b )-,-Ceiling on additional pensip, rz pf lud1J'3s- Held ultra vires. "-- _

Ptitioner was a member of fhe State Judicial Service and was

{::: elevated as a Judge of the High Court qn 1.7.1975, find was later trans~ ferred to another High Court from where~ retired on 21.7.1984. A dispute relating to his pension was disposed of by this Court on 9.4.1985 fixing it at Rs.21,500 per annum. Meanwhile, the High Court Judges (Conditions of Services) Act, 1954 was amended by Central Acts 38/86 o and 20/88, and he applied under the said Amending Acts asking for benefits there-under, and this Court refixed the petitioner's pension at Rs.41,600' per annum w.e.f. 1.1.1986, and t Rs.46,100 per l!m w.e.f. 1.11.1986.·

In an interlocutory petition the petitionr ch~µeqg~ t.b.e 4; eiling E on additional pension appearing in clause (h) qf par@~!lh 2 pf Piµi ill

oft~~ Firsf Sc~~4ule to the Q:igb Court Judges (Conditions of Servh:e) >- Act, 1954.

Allowing the petitimh tb.is ~!>urt,

F HELD: 1. There was llO justification to introduce a further ceiling

of Rs~~,9~ ptirc ?11n11111 irre.speth't: of tb.e years of completed servic(l rendered a11d ~Hgw 11 disctjnlinat.iQll to QP.tm•te, Qp~~ tb.e pr.pviSQ ltas fl limit wich ets the P!!rpoe. ~Iler~ is no basis fQr the furtller Unlit of Rs.8,000. [101A]

2. The ceiling of Rs.8,000 is not necessary t!l be imposed and if that is applied, a situation giving rise to tll, e flPpUc11mm of Article 14 of . the C911sm11tioq d, oes ar~. (JOUl;]

3~ Fixing tle pe.nsiQJJ. at Rs.48,0()0 per annum held that the cellj- ing in P?ragr11p'1 2(b) of P?rt IJI o( the First Sch.edule is unsustamable H ~µ~r Article i4 Qfthe Ccmtftlltin and would npt lte oper!ltive, (101Fl

1 ORIGINAL JURISDJCTlON: Interlocutory Application No. 1 A _ ~-, of 1989.

-~'

W.P. N?· 16093of1984etc.

(Under Article 32 of the Constitution of Jpdi~),

S.M. Jain, S.K. Jain, Ms. Pratibha Jain and Pn1.geep Agarwal for the Petitioner. ·

Arun Jaitly, Additional Solicitor General, Kail11.slt Vasdev and C Ms. A. Subhashini for the Respondent.

The following order of the Court was delivered:

, Petitioner was a member of the Rajasthan Judicial Service and was elevated as a Jµdge of the Rajasthan High Court on Ju\ly 1, 1975.

D He was transferred to the pelpi High Court from where he retired on July 21, 1984. A dispµ!e relatiµg to his pension became the subjectmatteT'of a writ petition before this Qeurt and was disposed of on April 9, 1985 (1985 2 SCC 3~~). Thi~ Co"rt fied his pension at Rs.21,500 per annum.

In the meantime. certain Phnnges in th~ High pµrt Judges (Conditions of Service) Act, 1954, were .. prgulH 11bpµf, fif§t!y, b, y 9@i1tral Act 38/86 and again by Central Act 20/88. Petjtioner !'!PPlied to this Court in Civil Miscellaneous Petition No. 18044/88 asking fqr benefits under the Amending Act, This C::o.1.m PY it~ fl~isiQp PJl ;\µgust 18, 1988, refixed petitioner's pension lit Rs.41,690 per finnum with F

...._ effect from January l, 1986, ancl 11t R~,46, 100 per aI}nUill with effect from November 1, 1986, keeping th~ twp amendments referred to above in view (1988 4 SCC 12l). Jn paragraph 19 ofthis Court's order,

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it was stated; ·

ffWe refr;:i.in from expressip.g any opinion as to the G effect Of liftip.~ .. of the ceiling On the special additional pension at Rs,8,000 per annum placed by clause (b) of paragraph 2 of Part III of the First Schedule. The qµestion really does not arise for our consideration at the moment and is left open."

E '

p991) 1 S.C.R.

Tpe p~iiop.er qs p.ow applied tq this Court challenging the ceiJing oq aqditiopal pens.ioQ. appearing ip clause (b) of paragraph 2 of ;,-.

Pf~ III of *e fi~~ ~p_e, qule to tpe High Cort Judges (Conditions of

ervice) At pf 1954. ni, e first Schedule deals ith pensiop of Judges.

Jdges in Hgh o•m re r.erited from three soµrces:

(p) emers blongi11~ to tre former Indian Ciyil Seryice; and

( c) officers of the Stat!! Jµdicial Seryice.

Jq tpis cas~ V(f! 11re concem!!d with Part ~II as petitioner had been

eevated as ; i Juge of the High Court from te Rajasthan Stat~ Judi- , cial Service. In rspect Of s:uh a Judge the pension payable js pre- 'scribed tp be: ·

"(a) he pension to which he is entitled under the prdnary nJ.les. pf is service f he had not been appointed Judge, pis seryce as Jµdge eing treaed as service therein for the pµrpose of cal.culating niat pnsioµ; and

(b) a special additional pension of s.1,600 per annum in respe, ct of each , completed year of service for pension, but ip. no case sucQ. addtional pensioq. ogethef ith the addi-

~pµal of spcj~~ pens!pn, 'if ~PY, to qicp he is entitled

nqer the of~HmH"Y nde of pis ser.v~e shall exceed Rs.8,000 per pnni

?r0yided tq~~ the pension uqqrlause (a) and additiop.a~ pep.siop. under clause (iJ) together sQ.all in qo case exceed Rs:54,000 per annurµ in the case of a Chief Justice anq s.48,000 petn11µrn in cse of l!-ny other Judge."

Sin~.e tPis purt had fixed. tge pesion at R.s.46, 109 and petiti_oner's fl aim fpr ei11g put !it pr with other Judges by fixing his pension at A Rs.48,ooo per am1µm h11d not !Jen accepted, petitionr has approahed his CpHr~ challengig the ceiling pf Rs.8,000. According to the pet!tioner, h~ p.ad p:ut ill nine years of ormltd servce s a Judge and on th~ psis of tle proyisio!1 ~Pr specia~ adp~~onal pension of J- R.s. l ,600 per ilnnµlJ1 in rspef of ach CO!J!pleted ye11r of service for

pensoq ne ws ep.t!tJ~P o ~S.: 14,400 bt the Hmi~ ~µt)l.e prpviso wpulq H . hfl~~ h~ effc~ Hf fixig ~iHr, g a~ Rs.48,099 per al}num. Ther~ as po.-

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justification to introducl:! a further ceiling of Rs.8,000 per annum irrespective of the years of completed service rendered and allow a discrimination to operate. Once the proviso has a limit which meets the purpose there is no basis for the fiirther limit of Rs.8,000 as contained in paragraph (2) above.

The counter-affidavit filed on behalf of the Ministry of Law and Justice sought to justify the limit by referring to cases of Central Civil Service Officers retiring as Secretaries to Government where full credit was not being given for the entire period of service rendered and a ceiling was fixed. Such a ceiling actually is fixed in respect of all the three situations covered by the First Schedule. A member of the Bar with 14 years of completed service out of which six years are served as a Chief Justice or as a Judge of the Supreme Court gets the maximum pension of Rs.54,000 and in the event of his retirement without becom" ing Chief Justice or a Judge of the Supreme Court, his pension entitlement is Rs.48,000 per annum. Similar is the provision relating to the members of the Indian Civil Service who were earlier elevated as Judges. It is the contention of the petitioner that once a ceiling limit was fixed as contained in the proviso of the Third Part, there was no further justification for the paragraph 2(b) ceiling. We find full force in the submission. The reasons which weighed with this Court on the earlier occasion for enhancing the petitioner's pension fully apply to the present aspect. The ceiling of Rs.8,000, therefore, is not necessary to be imposed and if that is applied, a situation giving rise to the application of Art. 14 of the Constitution does arise. In fact, the 1"esence of the proviso clearly brings out the intention that n0 :mp• 1s sought to be made between Judges recruited from the diffetc1H sources for the matter of the ceiling on pension. We, therefore, modify the order of this Court fixing petitioner's pension at Rs.46, 100 and require his pension to be fixed at Rs.48,000 per annum by holding that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under Art. 14 of the Constitution and would not be operative. We direct that petitioner's pension from November 1, 1986, shall be fixed at Rs.48,000 a year.

We would make it clear that as we have held that paragraph 2(b) is ultra -vires, it will follow that all cases to which the present situatio .. applied should be revised by the Union of India without requiring representations or applications from the retired Judges concerned.

There would be no order as to costs.

V.P.R.

Petition allowed.