Koshal, J. - (1.) THE Judgment of the court was delivered by
(2.) THIS is an appeal by certificate granted by the High court of Gujarat under Article 133(l)(c) of the Constitution of India and is directed against its judgment dated 29/06/1970 dismissing a petition under Article 226 of the Constitution In which the appellant, who began his career as a member of the Indian Civil Service and was ultimately appointed a High court Judge, prayed for the issuance of appropriate writs to ensure that he was granted two pensions independently of each other, one in relation to his service as a High court Judge and the other for the service rendered by him prior to his appointment as such. The facts leading to the petition decided by the impugned judgment are not in dispute and may be shortly stated. On 6/10/1932 the appellant was appointed by the secretary of State for India to the Indian Civil Service and was allotted to its Bombay cadre. On 15/08/1947, he was serving as a District Judge in the Province of Bombay and thereafter continued 516 in service in accordance with the provisions of S. 10(2) of the Indian Independence Act, 1947 (hereinafter referred to as 'the 1947 Act') and Article 314 of the Constitution. He was appointed Additional Judge of the Bombay High court on 12/06/1959 and on bifurcation of the State of Bombay on 1/05/1960 became an Additional Judge of the High court of Gujarat wherein he was made a permanent Judge on 5/04/1961 and continued to serve as such till 10/02/1969 on which date he submitted his resignation from and relinquished charge of his office. Through a letter dated 28/05/1966 addressed to the Registrar of the High court of Gujarat the Accountant General, Gujarat requested the appellant to exercise his option in accordance with the proviso to S. 15 of the High court Judges (Conditions of Service) Act, 1954 (hereinafter called 'the 1954 Act') and to intimate whether he would receive his pension under Part 1 or Part 11 of the First Schedule to that Act. The stand taken by the appellant was that he was not bound to exercise any option and that pension in relation to his service as a High court Judge was payable to him under S. 14 of the 1954 Act read with Part I of the said First Schedule. The government of India not having agreed with the stand taken by the appellant, he moved the High court as stated above and in his petition challenged the validity of the second proviso to S. 14 of the 1954 Act as also of clause (a) of S. 15 thereof read with Part 11 of the said First Schedule.
(3.) THE relevant provisions of law may with advantage be noticed here. Prior to 1947 a High court Judge was entitled to pension in accordance with paragraphs 17, 18 and 19 of the government of India (High court Judges) Order, 1937 (for short 'the 1937 Order') promulgated by His Majesty- in-Council under the provisions of Section 221 of the government of India Act, 1935. Those paragraphs classified High court Judges for purposes of pension into three categories according as (1) they were members of the Indian Civil Service, (2) members of services other than Indian Civil Service or (3) were not drawn from any of the civil services, and provided a different scale of pension for each category. By virtue of S. 10(2) of the 1947 Act, the 1937 Order continued to be in force right up to the commencement of the Constitution, Article 221 (2) of which provided, inter alia : Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule. Sub-paragraphs (1) and (4) of Paragraph 10 of Part 'D' of the Second Schedule to the Constitution provided : (1) There shall be paid to the Judges of the High court of each State specified in Part 'A' of the First Schedule, in respect of time spent on actual service, salary at the following rates per mensern, that is to say:- The Chief Justice - 4,000 rupees An other Judge - 3,500 rupees (4) The rights in respect of leave of absence (including leave allowances) and pension of the Judges of the High court of any State shall be governed by the provisions which immediately before the 517 commencement of this Constitution, were applicable to the Judges of the High court in the corresponding Province. ;