UNION OF !NOIA AND ANR.

M.C. DESAI AND ORS.

OCTOBER 111, 1995

B [S.C. AGARWAL AND G.B. PATTANAIK, .l.l.J

Se1vice La1v :

High Court Judge's Rules, 1956-Rule 2:-Death-cum-Retirement C Gratuity benefit-To the Judges of High Cowt who retired p1ior to October I,

1974-Seivice less tha11 7 years-De11ial of the be11efit-Ad-hoc relief-Per- 111itted under Govenunent order-Granted to sonic and denied to

ot!zm~Held, Judges e11titled to the benefit a11d the ad hoc relief-Howeve1; those Judges who have not put in Se1vice of 7 years but re11dered Service for four years-Held not entitled to as Deoki Nandan 1s case was subsequently D reversed-All India Se1vices (Death-cum-Retirement Benefit) Rules, 1958.

Death-cum-Retirement Gratuity was denied to the Respondents who had retired as judges of the High Court prior to October, 1, 1974 Ad-hoc relief on pension permitted by Government order dated August 29, 1977 E was paid lo some of the respondents but denied to other Respondents.

The A.llahabad High Court in the Writ Petition filed by the Respondents, held that Death-cum-Retirement Gratuity was payable to all the respondents. The High Court further directed payment of ad-hoc relief to the Respondents. With Regard to respondent No. 9 the High Court held F that he can avail the 11ensinnary henelit, even though he had not 11ut in service of 7 years. Reliance was placed on the earlier judgment of the said High Court in Dcoki Na11dan Agarwal v. Union of India.

Partly allowing the appeal, this Court

HELD : l. In view of Rule 2 of the High Court Judges' Rules, 1956 the High Court Judges who had retired prior to October, 1974 were also entitled to avail the Death-cum-Retirement Gratuity benefit that was available to the ollicers of the Indian Administrative Service in the rank of the Secretary to the State Government who is governed by the All India H Services (Death-cum-Retirement Benefit) Rules, 1958. The High Court was

justified in giving directions regarding payment of Ad-hoc relief to respon- A dents. (204-F, 205-A]

UOI v. Gumam Singh, [1982] 3 SCR 7110, relied on.

2. Since the Judgment of the High Court in ( Dcoki Naill/an Agmwal)

v. Union of India has been reversed by this Court respondent no. 9, who B had .served for six years and five months as a Judge_ of the High Court was not entitled to pensionary benefit. [2115-C-E]

Union of India v. Dcoki Nanda11 Aganval, [1991] 3 SCR 873, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3715 of 1990.

From the Judgment and Order dated 13.5.88 of the Allahabad High Court in C.M.W.P. No. 7557 ofl987.

K.T.S. Tulsi, Additional Solicitor General, P. Parmeswaran, A. Subba Rao and C.B. Babu for the Appellants.

Salish Chandra. (Raja Ram Agarwal, Ms. Lalita Kohli,) for Manoj

Swamp & Co. and Madan Lokur for the Respondents.

The following Order of the Court was delivered :

Having regard to the office report dated September 12, 1995 the application for substitution of legal representatives of respondent Nos. 1 and 8 is dismissed for non-prosecution. As regards respondent No. 10 \Ve F find that she was not impleaded as a party when the special leave petition was filed in 1988 and an application was submitted for impleading her as a party on April 27, 1995 and before that date respondent No. 10 had died.

An application has been filed to bring on record her legal representatives.

No steps have been taken for service of' the substitution application on the legal representatives. The said applications for impleadment of respondent G No. 10 as well-as substitution are also dismissed for non-prosecution~ As regards respondent No. 2, Mr. S.K. Verma we find that in the impugned Judgment of the High Court it is mentioned that Mr. S.K. Verma expired on M_ay, 9, 1988 leaving Smt. Nirn1alct Verma as his legal representative and that the application for substitution of Smt. Nirmala Verma as the legal H

SUPREME COURT REPORTS {1995] SUPP. 4 S.C.R.

A representative of Mr. S.K. Verma was allowed by the High Court on May 12, 1.988. S111t. Nirmala Vernia, ho\Vcvcr, has not been i1npleadcd as a party in the appeal and Mr. S.K. Verma, (who was dead) was impleaded as respondent No. 2. The appeal filed against Mr. S.K. Verma, respondent No. 2 is, therefore, not n1aintainablc. The appeal against rcSJ1')ndcnt Nos.

I and 8 \viii stand dismissed as having abated and as regards rc:-.pondcnt No. 2 it is treated as not maintainable. It survives against respondent Nos. 3 to 7 and 9.

We have heard the learned Additional Solicitor General for the appellants and the learned counsel for the respondents on the appeal.

The appeal relates to the payment of Death-cum-Retirement Gratuity (DCRG) to Judges of the High Court who retired prior to October l, 1974. By the impugned judgment the High Court has held that DCRG is payable lo such .Judges in view of Rule 2 of the High Court Judges' Rules, 1956 (hereinafter referred to as 'the Rules') since the D members of the Indian Administrative Service are entitled to the said benefit under the All India Services (Death-cum-Retirement Benefits) Rules, 1958.

The learned Additional Solicitor General has fairly invited our attention to the decision of this Court in Union of India v. Gwnam Singh, (1982] 3 SCR 700, wherein il has been held that the benefit of leave encashment would be available to Judges of the High Court in view of Rule 2 of the Rules. Having regard to the principle laid down in the said decision of this Court we are in agreement with the view of the High Court that in. view of Ruic 2 of the Rules lhe High Courl Judges who retired prior lo October 1, 1974 were also entitled to avail lhe DCRG benelil thal was available to an officer of the Indian Administrative Service in the rank of the Secretary to the State Government who is governed by the All India Services (Deathcum-Retiremeni Benefits) Rules, 1958.

G The High Court has awarded interest @ 12% on the amount of gratuity which was denied to the respondents. We do not find any ground to interfere with the said direction given by the High Court.

With regard to the payment of ad hoc relief apart from the pension the High Court has referred lo Government order dated August 29, 1977 H which shows that ad hoc relief was given from January 1, 1973 to Judges

who retired prior to October 1, 1974. The High Court has also pointed out A thal the said payment had been made to some of lhc respondents while it was denied lo other respondents similarly situate. The High Courl was, in our opinion, justified in giving the directions regarding payment of ad hoc relief to respondent Nos. 3, 4, 7, 8 and 9.

Respondent No. 8 had served as a Judge of the High Court for six years and seven months while respondent No. 9 had served for six years and five months. The period of service of both the respondents was less than seven years. Placing reliance upon its judgment in Deoki Na11da11 Aga1Wa/ v. U11ion of India, (Writ Petition No. 20328 of 1986 decided on March 15, 1988), the High Court has held that Judges who had not completed seven years of service would also be entitled to benefit of pension provided they had rendered service for more than four years. The said view of the High Court in the case of Deoki NandanAgwwal (supra) has been reversed by this Court in Union of India v. Deoki Nanda11Aga1Wal,

11991] 3 SCR 873.

In view of the said decision of this Court the ju.dgment of the High Court based on the decision in the case of Deoki Nundan ,,4ga1wal (supra) cannot be sustained and has to be set aside.

The appeal is, therefore, partly allowed and the judgment of the High Court to-the extent it holds that respondent No. 9 can avail the pensionary E benefit on the basis of the judgment of the High Court in Deoki Nandan Ag01wal (supra) is set aside. The rest of the judgment of the High Court is upheld. No costs.

K.K.T.

Appeal partly allowed.