V. RAMASWAMI - (1.) THE Judgment of the court was delivered by -
(2.) THE respondent was elevated as Judge of the Allahabad High court on 17/11/1977. He retired on 3/10/1983 on superannuation at the age of 62. He had elected to receive his pension under Part I of the First Schedule to the High court Judges (Conditions of Service) Act, 1954. As he put in only a period of five years 10 months and 17 days service as a Judge of the High court, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs. 8,400.00 per annum and the family pension in the event of 326 his death earlier than his wife at Rs. 250.00 per month in the letter of Accountant General, Allahabad dated 2/12/1983. THE gratuity was worked out at Rs. 11,666.66 in lumpsum under S. 17-A(3 also on the ground that he had put in only five completed years of service. THE pension was payable with effect from 4/10/1983. THE Act was amended by the Amending Act 38 of 1986 providing for an increased pension with effect from 1/11/1986. On 10/12/1986 the petitioner filed a writ petition before the Allahabad High court under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, 4/10/1983 to Octo 31/10/1986 at Rs. 9,600.00 per annum plus dearness allowance admissible under the rules from time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixation of pension for the period from 1/11/1986 at Rs. 20,580.00 per annum plus dearness allowance or other allowances as may be admissible under the rules from time to time, at the rate of Rs. 3,430.00 per annum for six completed years of service as stated above; (iii) to refix the family pension admissible to his wife on the scale allowed under S. 17-A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months and 17 days. During the pendency of the writ petition the respondent made representations to the government of India staling that since the respondent fell short for six completed years of service only by one month and 13 days, the President may be pleased to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of six completed years of service as a Judge. By its order dated 16/04/1987 the government of India rejected the representation of the respondent among other grounds that the request was belated. By its judgment dated 15/03/1988 the High court allowed the writ petition directing the government to refix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment. The main grievance of Union of India in this appeal is that the High court has rewritten the retirement benefit provisions of the First Schedule to the Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional. Since the High court issued the mandamus directing the Union of India to add one month and 13 days to the total length of service rendered by the respondent as Judge of the Allahabad High court for computing the pension under S. 16 of the Act, during the pendency of the appeal in this court in the proceedings dated 15/12/1988 the government 327 directed, after obtaining the necessary sanction from the President under S. 16 of the Act, the addition of one month and 13 days "subject to the final decision of this court in Special Leave Petition No. 6798 of 1988 (C.A. No. 3674 of 1988". However, they added that the period shall be disregarded in calculating additional pension, if any, under Part I and Part II and Part III of the First Schedule of the said Act.
(3.) IN order to appreciate the argument of the learned counsel for the appellant-Union of INdia it is necessary to set out certain provisions relating to pension payable to a Judge of the High court on his retirement. Clause 17 of the government of INdia (High court Judges) Order, 1937 relating to pension payable to a judge on his retirement which was in force prior to the coming into force of the Constitution provided that "a pension shall be payable to a Judge on his retirement if, but only if, either: (a) he has completed not less than 12 years' service for pension; or (b) he has completed not less than 7 years' service for pension and has attained the age of sixty; or (c) he has completed not less than 7 years' service for pension and his retirement is medically certified to be necessitated by ill-health." Thus it may be seen that under the provisions then existing a Judge who had completed less than seven years of service was not allowed any pension.;