DUA - (1.) THIS judgment will dispose of three cases (i) W. P. no. 630 of 1970 (Shri R. L. Narasimham v. Union of India and anr.) (ii) C. A. No. 2066 of 1970 (Shri B. Malik v. Union of India and anr.) and (iii) C. A. No. 2165 of 1970) (Shri M. C. Desai v. Union of India) because they raise common question of law. These cases were originally heard in November, 1971 by a Bench of which our late brother Roy, J., was a member. Unfortunately before the judgment could be announced Roy, J., died with the result that these cases were set down for hearing before the present Bench. The parties then filed written arguments, supplementing them by oral address. Shri R. L. Narasimham, at the hearing addressed us in person in support of his writ petition under Article 32 of the Constitution and Shri S. C. Manchanda addressed arguments on behalf of Shri Malik in C. A. No. 2065 of 1970. On behalf of Shri Desai in C. A. No. 2165 of 1970 Shri Gupta adopted the arguments addressed in the other two cases. On 27/04/1972 Shri Narasimham was permitted to file additional written arguments on two points which, according to his representation, he had not fully developed in his earlier oral address. In reply the Union of India was permitted to file written arguments by 5/05/1972.The relevant facts of the three cases may now be briefly stated :
(2.) W. P. No. 630 of 1970: Shri Narasimham, Petitioner in W. P. No. 630 of 1970 joined the Indian Civil Service on 12/10/1931 and he was assigned to Bihar Cadre. On 26/07/1948 when India was Dominion under the Indian Independence Act, 1947 he was appointed a Puisne Judge of the Orissa High Court and on 21/03/1956, after the enforcement of the High Court Judges (Conditions of Service) Act; 28 of 1954 (hereinafter called the 1954 Act), enacted by the Parliament as provided in Article 221 (2), he was appointed Chief Justice of that High Court. On 4/01/1965 he was appointed Chief Justice of the Patna High Court from where he retired on 2/08/1968. Soon after his retirement he was appointed a member of the Law Commission on 2/08/1968. On 6/06/1966 Indian rupee was devalued and on 18/11/1967 English pound was devalued. Sometime prior to the actual date of his retirement the question of determining then exact amount of pension in rupees payable to the petitioner arose. The petitioner did not claim that he was entitled to receive his pension in pounds sterling under the provisions of the Government of India (High Court Judges) Order, 1937 (hereinafter called the 1937 Order). His main prayer was that he was entitled to be paid his pension in rupees by calculating it initially as payable in pounds sterling and then converting the sterling into rupees at the current rate of exchange prevailing at the time of payment: (vide last part of Para 16 of his writ petition and last part of Para 3 of his rejoinder - affidavit). According to the petitioner the amount of pension calculated in accordance with the terms of the 1937 Order being more favourable to him than the amount determined under the 1954 Act, he was entitled to receive pension under the former. The Government, however, decided to calculate his pension in accordance with the scale and the provisions of the 1954 Act which provide for payment of pension in terms of rupees without any reference to pound sterling or to its current rate of exchange into rupees. Only 2/07/1968 the petitioner, in terms of the proviso to Section 15 of the 1954 Act elected to receive the pension payable to him under Part I of the First Schedule to that Act. His option reads : "In pursuance of the proviso to Section 15 of the High Court Judges (Conditions of Service) Act, 1954 I. R.L. Narasimham, I.C.S., Chief Justice of the Patna High Court, hereby elect to receive the pension payable to me under Part I of the first Schedule to that Act. The exercise of this option is made without prejudice to my right to claim pension in pound sterling under the provisions of the High Court Judges Order, 1937, to be converted into rupees at superannuation if it will be more favourable to me. On 9/10/1968 (as per annexure F to Shri Narashimham's writ petition) the Accountant General, Bihar intimated to the Accountant General, Central Revenues, New Delhi, and also among others, to Shri Narasimham, the sanction of the Government of India with respect to the payment of Rupees 93,062,75 being the commuted value of Rupees 883/- out of the pension of Rupees 1,665.65 per mensem (Rupees 20,000/- p.a.) to Shri Narasimham. After the dismissal of the writ petitions of Shri B. Malik and Shri M. C. Desai by the Allahabad High Court Shri Narasimham is stated to have approached the Home Secretary in the matter of payment of his pension and to have tried to distinguish his case from those of Shri Malik and Shri Desai. Having failed to get the desired relief from the Government Shri Narasimham filed the present writ petition in November 1970. Apart from questioning the correctness of the aforesaid judgment of the Allahabad High Court he also tried to distinguish his case from the cases of the other two Chief Justices.
(3.) CIVIL Appeal No. 2065 of 1970: Shri B. Malik was an Advocate of the Allahabad High Court when he was appointed a Puisne Judge of that High Court in 1944 and was appointed Chief Justice of the same Court on Decem 15/12/1947. He retired as Chief Justice of that Court on 11/01/1955. According to his submission at the time of his appointment he was governed by the Government of India Act, 1935 and by virtue of Section 221 of that Act, Article 221 of the Constitution and Section 25 of the 1954 Act, his right in respect of pension cold not be varied to his disadvantage after his appointment. His right to receive pension in terms of the 1937 Order has been preserved, claims Shri Malik, and it is added that he is entitled to be paid the equivalent of his pension expressed in pounds in terms of Indian Currency calculated at the prescribed exchange rate when pension is paid to him in India. The prescribed rate of exchange, according to the submission, must be current market rate of exchange. Civil Appeal No. 2165 of 1970: Mr. M. C. Desai having joined the Indian Civil Service in December 1925, was appointed an Additional Judge of the Allahabad High Court on December 13, 1948. He became a permanent Judge of that Court on 24/01/1950. He was appointed Chief Justice of the same Court on 17/01/1961, after the 1954 Act had come into force and retired as Chief Justice of that Court on 25/02/1966. The President sanctioned a sum of Rupees 19,340.00 per annum payable to Shri Desai by way of pension in accordance with Part I of First Schedule of the 1954 Act. Obviously Shri Desai had elected to receive pension under Part I as provided by the proviso to Section 15 of that Act. Indeed, it is so admitted by him in Para 6 of his rejoinder-affidavit dated 12/02/1960 though it is stated in Para 5 thereof that he had at that time not thought of the question as to what his pension would be under the 1937 Order and in para 7 thereof that there was no question of the exercise of any option between the 1937 Order and the 1954 Act, the option being confined as between Part I and Part II of the First Schedule of the 1954 Act. The pension payment order was actually issued to him for payment of pension of Rupees 1,611.65 per month by the Accountant General of U.P. This payment order was addressed to the Treasury Officer, Allahabad. On 12/07/1966 Shri Desai got commuted half of his pension with effect from that date and received in lieu thereof Rupees 87,219.80 with the result that his pension payment order was revised by the Accountant General, U.P., and the balance of the pension payable to him was fixed at Rupees 805.85 per mensem. The order commuting his pension, according to his writ petition, was passed in October, 1966 which was obviously after the devaluation of the Indian rupee. On 19/01/1967 he wrote to the Accountant General of U.P. pointing out that his pension was to be expressed in sterling and then converted into rupees at a rate of exchange fixed by the Government of India. The Accountant General on 17/03/1967 sent reply stating that he could only fix the amount of pension as sanctioned by the President of India. Shri Desai thereupon wrote to the Secretary, Ministry of Home affairs, Government of India, New Delhi on 9/05/1967 for either refixing his pension in rupees after taking into consideration the effect of devaluation of the rupee or for making an order of payment of pension of him in sterling in England. In that letter he claimed payment of pension under paragraph 933 A of the Civil Service Regulations. In March, 1968 he represented his case to the Minister of Home Affairs in which he tried to distinguish his case from that of Shri Malik whose writ petition was at that time pending in the Allahabad High Court. His prayer was rejected by the Home Ministry on 20/04/1968.;