TMI Blog1988 (5) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... to refund the ad hoc relief paid to them; and (iv) mandamus directing the respondents to pay petitioners 8 and 9 the difference of pension at the rate of ₹ 100/- per mensem. 2. The facts giving rise to the instant writ petition, which are relevant for the purpose of determining the controversy involved, briefly are that petitioners 1 and 2 retired as Chief Justices of the Allahabad High Court and Petitioners 3 to 9 as puisne Judges of the Allahabad High Court prior to October 1, 1974. Subsequently an implement application was filed by Anar Devi widow of late Sri M.L. Chaturvedi, who retired as Puisne Judge of the Allahabad High Court in July 1959. The said application was allowed and she has also been impleaded as petitioner 10 in the petition. 3. A counter-affidavit has been filed on behalf of respondent 1 by Babu Lal, Under Secretary, Department of Justice, Ministry of Law and Justice, Government of India. Another counter-affidavit has been filed on behalf of respondent 2 by Vikram Chandra, Senior Deputy Accountant General (Pension), Office of A.G., U.P., Allahabad Two rejoinder affidavits have been filed on behalf of the petitioners by petitioner 6 Mr. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id benefit was not granted to the petitioners on the ground that they have retired prior to 1st October 1974. 5. Mr. V.B. Upadhaya, learned counsel for the petitioners strenuously urged that though the petitioners have retired before 1st October 1974, they are entitled to get retirement gratuity under Section 17 of the Principal Act as amended by the Amendment Act of 1961 read with Rule 19 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as 1958 Rules) as the same is applicable to them by virtue of Rule 2 of the Judges Rules 1956 from the very commencement of the Constitution of India. Rule 2 of the Judge Rules 1956 reads as under: 2. Conditions of Service in Certain Cases:-- The conditions of services of a judge of a High Court for which no express provision had been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been determined by the rules for the time being applicable to a member of the Indian Administrative Service, holding the rank of Secretary to the Government of the State, in which the principal seat of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or after 1st October, 1974, the petitioners having retired prior to the aforesaid date were not entitled to receive gratuity. He further contended that the question of payment of gratuity on retirement has been finally adjudicated upon by the Supreme Court of India in the case of N.L. Abhyankar v. Union of India and while granting pensionary benefits under the Amending Act of 1976 to Judges who had retired on or after 1-10-1974 said that what they had said about pensionary benefits does not apply to payment of gratuity and as such it is not open to the petitioners to agitate the said matter again in the instant writ petition and this Court is not competent to sit in judgment over the decision taken by the Supreme Court in the said case. 9. The Amending Act 1976 amended the First Schedule of Part I relating to pension of Judges and provided liberalised pensionary benefits only to the Judges who retired on or after the 1st day of October 1974. The said provision was challenged by petitioners 1, 2, 5 and 6 together with two other Judges (since dead), who had retired prior to 1st October 1974 by way of Writ Petn. No. 3781 of 1979 in this Court and a Division Bench allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid order of the Supreme Court on the review petition the argument raised by the learned Additional Standing Counsel for Union of India that the :matter regarding payment of gratuity on retirement has been finally adjudicated upon by the Supreme Court has no legs to stand and we reject the same. In view of the aforesaid discussion we are of definite view that under Rule 2 of the Judge Rules 1956 the petitioners who retired prior to 1st October 1974 are entitled to receive gratuity on their respective dates of retirement which was payable to a member of the Indian Administrative Service, holding the rank of Secretary to the Government of the State i.e. Uttar Pradesh. 10. Another limb of argument advanced on behalf of the Union of India is that no mandamus can be issued for the demand of gratuity after such a long period as the petitioners have never claimed for the same and this Court should not interfere on the ground of laches committed on the part of the petitioners. We have gone through the Principal Act and Judges Rules 1956 and we find no provision which requires the retiring Judge to apply for pension or other pensionary benefits including the gratuity. It is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view the decisions of the Supreme Court in D. S. Nakara v. Union of India and that of the Punjab and Haryana High Court in Bhagwant Singh v. State of Haryana (1988(1) SLR 434) regarding payment of interest it is expedient in the interest of justice that the petitioners should be awarded interest at the rate of 12 per cent per annum on the sum due to them as gratuity from the date of retirement till the date of payment as respondents have knowingly and willfully withheld the payment to which the petitioners were legally entitled. 12. The other grievance raised on behalf of petitioners 3, 4, 7, 8 and 9 is regarding payment of ad hoc relief, it would be pertinent to mention here at this very stage that petitioners 1, 2, 5 and 6 are being paid ad hoc relief of ₹ 110/- per month apart from the pension payable to them. Rule 17 of the 1958 Rules deals with retiring pension and gratuity which reads as under : -- Retiring Pension and gratuity.-- (1) A retiring pension and death-cum-retirement gratuity shall be granted to a member of the Service who retires or is required to retire under Rule 16. (2) Notwithstanding anything contained in Sub-rule (1), re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India v. Bidhubhushan 'Malik. 13. The redeeming feature of the case is that whereas the ad hoc relief is still being paid to petitioners 1, 2, 5 and 6 but the same benefit has been denied to petitioners 3, 4, 7, [8 and 9. Learned Standing Counsel appearing for the Union of India on the other hand has strenuously contended that the Judges are only entitled to receive pension and not to any ad hoc relief, the ad hoc relief given to the Judges is a part of the amount of pension and not an amount in addition to the pension. We find ourselves unable to accept the contention raised on behalf of the Union of India that the ad hoc relief is referable to pension and is a part of the pension paid to the petitioners. In our view this ad hoc relief was granted to the Judges in order to meet the rise in cost of living and the petitioners are entitled to receive the same over and above the amount of pension payable to them. We see no justification that on the one hand the respondents are still paying ad hoc relief to some of the petitioners and on the other they refuse to pay the same to other petitioners and the action of the respondents is wholly discriminatory and violativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the Amending Act 1976 Judges who have put in six years of service and had not completed seven years were placed arbitrarily at a disadvantageous position. Similarly under the amending Act 1986 the Judge who had put in five years or six years of service was put at a disadvantageous position. Para 2 of the 1st Schedule was challenged on the ground of being arbitrary and unreasonable in Writ Petn. No. 20328 of 1986 Deoki Nandan Agarwala v. Union of India decided on March 15, 1988 : (Reported in). The controversy involved in the said case and the grievance of petitioners 8 and 9 in the instant case are squarely the same. In the aforesaid case of Deoki Nandan Agarwala (supra) we have held that the words 'not less than seven years' have to be read as 'more than four years' in para 2 in order to uphold the validity of the provisions. When the judgment in that case was delivered the recent amendment dated April 8, 1988 to the Principal Act was not in existence. The Parliament has passed Act No. 20 of 1988 known as the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1988, the provisions of Sections 2 and 5 whereof shall be deemed to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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