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TMI Blog1991 (9) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... t at Rs. 11,665.66 P. in lump-sum under Section 17A(3) also on the ground that he had put in only five completed years of service. The pension was payable with effect from October 4, 1983. The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986. On December 10, 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, October 4, 1983 to October 31, 1986 at Rs.9,600 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 November 1, 1986 at Rs.20,580 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 per annum for six completed years of service as stated above; (iii) to retix the family pension admissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement 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. As we are concerned in this case to the provisions applicable to a Judge to whom Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954 is applicable either by reason of his appointment directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out only relevant provisions relating to pension in Part I of the First Schedule. Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows: "2. Subject to the other provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; "2. Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be-- (a) for service as Chief Justice in any High Court, Rs.2,400 per annum; and (b) for service as any other Judge in any High Court, Rs. 1,600 per annum: provided that the pension shall in no case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in the case of any other Judge. 9. Where a Judge to whom this Part applies, retires or has retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.8,400 per annum shall be payable to such a Judge. Provided that nothing in this paragraph shall apply-- (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State." These amended provisions Were held applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from NOvember 1, 1986, As already stated, the respondent retired from service on October 3, 1983. For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38 of 1986 came into force, plus the usual dearness allowance admissible from time to time. This claim was made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of his service by the order of 'the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit one for enlarging the period of his service to six years. On the assumption that he is entitled for such enlargement and the had completed six years of service, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion. On the same reasoning which prompted the High Court to read "less than seven years" as "more than five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service the Judge would have earned Rs. 13,720 and on completion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in paragraph 9, necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years". The learned Judges read the provisions in the manner as was amended by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986. Consequential relief relating to the payment of the gratuity and family pension in the light of the relief granted relating to pension was also directed to be given. We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and various other factors. There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary. So far as the Judges of the High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension. In fact no pension was provided for those who had not completed seven years of service under preconstitution scheme. Thus we have history or historical grounds or reasons for fixing not less than seven years of service for pension. Part I deals with a pensionary scheme. Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is so to say a qualification for eligibility. It is different from computation of pension. All those who satisfy that condition are eligible to get pension. Even those who had completed seven years of service were not given pension for all the completed years of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum. We have already noticed that during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal. In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether the High Court was right in setting aside the earlier rejection for addition of the period. Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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