Full Judgment Text
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PETITIONER:
R. L. NARASIMHAM
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT04/08/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SIKRI, S.M. (CJ)
SHELAT, J.M.
KHANNA, HANS RAJ
MATHEW, KUTTYIL KURIEN
CITATION:
1972 AIR 2405 1973 SCR (1) 773
1972 SCC (2) 763
ACT:
Govt. of India Act, 1935. Sections 221 and 309, Govt. of
India (High Court Judges) Order 1937, Paras 18, 19 and 21-
Whether create a legal obligation for the authorities and
vested right in the High Court Judges to receive pension,
expressed in Sterling, converted to rupees at the market
rate of exchange.
Constitution of India Art. 221(2).
High Court (Judger) Conditions of Service Act 1954 (28 of
1954) Sections 14, 15, 18 and 25, Scheduled I, Part I paras
4 and 5-Whether these provisions preserve the ’benefit’ of
exchange rate ’guaranteed’ under 1937 order-Whether the
constitutional provisions and 1954 Act afford less
favourable terms in matters of the exchange rate.
Constitution of India, Art. 14-Whether there was
discrimination in matters of fixation of pension amongst the
ICS Officers.
HEADNOTE:
M. & D. the two ex-Chief Justices of Allahabad High Court
filed a W. P.. in Allahabad H. C. for appropriate Writ
and directions challenging the fixation of their pension in
rupee and to re-fix the pension in accordance with the
provisions of the Govt. of India (High Court Judges) Order,
1937 in Sterling and then to convert the same into rupees at
the present market rate of exchange after the devaluation of
rupee on June 6, 1966. D further claimed a direction
enabling him to draw his pension at the Treasury in England
in Sterlings. Both the petitions were dismissed by the full
Bench of the Allahabad H.C. They appealed to this Court
after obtaining the certificate of fitness, N field a W.P.
under Art.. 32 of the Constitution claiming similar reliefs.
In exercise of power u/s 221 r/w see. 309 of the Govt. of
India Act, 1935, the Governor General issued Govt. of India
(H.C. Judges) Order, 1937. Schedule III to the Order
expressed the pensions payable in Pound Sterlings. Para 21
provided "Pensions expressed in Sterling only shall, if paid
in India, be converted at such rate of exchange as the Secy.
of State may from time to time prescribe". With the
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adoption of the Constitution in 1950, the services of the
three Judges were continued under Art. 376 of the
Constitution. Art. 221 of the Constitution provides for the
salaries, leave etc. of Judges and continues the guarantees
of not varying salaries, pensions etc. to the disadvantage,
of the Judges, as guaranteed by Sec. 221 of the 1935 Act.
In 1954, Parliament passed an enactment regulating the
salaries, pensions payable to the H. C. Judges including the
Judges who belong to the I . C . S . Part 1. Part 11 and
Part III of the First Schedule gave different options to be
elected by the Judges u/s, 15 of the Act. In 1958. new
paragraph 3 specifying in rupees the new scale for
additional Pension was substituted for the original
paragraph 3, of Part 11, in which pension payable to an ICS
Judge, had been expressed in Sterling only. Part I of the
Sch. provide for the pensions payable in rupees only. Sec.
18 of the Act (reiterated provisions of para 21 of 1937
Order) provided that pensions expressed in Sterling shall be
converted into rupees at such rate of exchange as the
Central Govt. may from
774
time to time specify in this behalf. Sec. 25(1) of the Act
restated the guarantees in Art 221 of the Constitution that
the pension conditions shall not be varied to the
disadvantage of the Judges.
M was governed by Sec. 14 of the Act r/w Art. 221(2) of the
Constitution as he was appointed the C.J. in 1947. D and N
who were ICS Judges opted for the pensions to be paid
according to the Part I of the First Schedule annexed to the
1954 Act. They were appointed C.J. after 1954. Before this
Court, the three ex-Judges contended that they had a right
under the 1937 order to get the pension expressed in Pound
Sterlings and to convert the same into rupees according to
the prevalent market rate, after the devaluation of the
rupee. They further contended that the said right was
protected and preserved by the Constitution and the 1954
Act, and that the fixation of their pension in rupees only
was illegal.
Dismissing the. appeals,
HELD : (i) N & D were appointed C.J. after 1954 and
exercised the option in terms of Sch., 1, Part I of the Act,
which expressed pension in rupees only. M was governed by
the provisions of the 1954 Act and Art. 221 of the
Constitution. Strictly speaking for determining the ques-
tion of the creation and preservation of the rights claimed
by three Chief Justices, we have to look to the provisions
of the Constitution and to the statutory enactment made in
accordance with it.
(2) Para 21 of the 1937 Order did not impose any legal
obligation on the authorities concerned to adopt the current
or market rate of exchange. The Secy. of States’ Governor
General were free to prescribe whatever they considered the
proper rate of exchange. The 1937 order did not create any
vested right in the Chief Justices. Further, by virtue of
Art. 221(2) of the Constitution the provisions of 1937 Order
were applicable only till the Parliament made a law in
respect of pensions. [792F-H]
(3) Art. 221(2) only protected the rights of a Judge in
respect of pension against variation to his disadvantage.
Assuming this proviso to take within its fold, the right of
a Judge in respect of pensions under the 1937 Order. there
was no right conferred on a Judge under that Order to get
his pension specified in Pound Sterling only, converted into
rupees at the current or market rate of exchange. There was
therefore no question of any such right being protected
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under the Constitution or under Sec. 25 of the 1954 Act.
[793B-F]
(4) Since D had opted for payment according to Part I of
Schedule I of the 1954 Act, his prayer for payment of
pension in Sterlings on the Treasury in England was not
tenable.
(5) N’s contention that as a creditor of the Govt. or a
person having a money claim he was entitled to the
conversion at market rate, ’was untenable in view of the
fact that neither the Constitution nor the 1954 Act preserve
’the right’ to express the pension in Pound. The Constitu-
tion and the said Act only contemplate calculation and
payment of pension in rupees. [796 C]
(6) The plea of discrimination and violation of Art. 14 of
the Constitution raised by N was misconceived. as the facts
of his case were distinguishable from the facts of other ICS
Officers. [798B]
(7) D’s contention that the Pound Sterling is intrinsically
more stable than the rupee and therefore he was given less
favourable terms was contrary to his own election of payment
under Part I Schedule I of the 1954 Act and was without any
merit. [799A]
775
Appeals of M & D were dismissed and N was allowed to
withdraw writ petition.
JUDGMENT:
ORIGINAL/CIVIL APPELLATE JURISDICTION : Writ Petition
No. 630 of 1970.
Under Article 32 of the Constitution of India for the
enforcement of fundamental rights.
AND
Civil Appeals Nos. 2065 & 2165 of 1970.
Appeals by certificate from the judgment and order dated
September 10, 1967 of the Allahabad High Court in Civil
Misc. Writ Petitions Nos. 3006 of 1967 and 1646 of 1948.
Writ Petition No. 630 of 1970
C. K. Daphtary, B. P. Singh and D. N. Misra for the
petitioner.
B. Sen, R. M. Mehta, R. N. Sachthey, S. P. Nayar, B. D.
Sharma for respondents Nos. 1 and 2.
J. B. Dadachanji, O. C. Mathur, Ravinder Narain, P. C.
Bhabpatai.
I. M. Lal and E. C. Agarwala for the intervener (Kirshna
Prasada)
E. C. Agarwala for the intervener (I. M. Lal)
Civil Appeal No. 2065 of 1970.
C. K. Daphtary, S. C. Manchanda, A. K. Nag and Sapna Ghosh
for the appellant.
M. C. Setalvad, M. C. Bhandare, B. Sen, R. N. Sachthey and
S. P. Nayar for the respondents.
Civil Appeal for 2165 of 1970.
M. C. Chagla, S. C. Manchanda, J. P. Goyal and G. N.
Wantoo and R. A. Gupta, and M. C. Setalvad for the
appellant.
B. Sen, R. M. Mehta and S. P. Nayar for the respondents.
776
The Judgment of the Court was delivered by
Dua, J.-This judgment will dispose of three cases (i) W.P.
No. 630 of 1970 (Shri R. L. Narasimham vs. Union of India &
anr.) (ii) C.A. No. 2065 of 1970 (Shri B. Malik vs. Union
of India & anr.) and (iii) C.A. No. 2165 of 1970 (Shri M. C.
Desai vs. Union of India) because they raise common
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questions 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 Art. 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. In
April 27, 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 May 5, 1972. The
relevant facts of the three cases may now be briefly stated
W.P. No. 630 of 1970: Shri Narasimhan, petitioner in W.P.
No. 630 of 1970 joined the Indian Civil Service on
October12, 1931 and he was assigned to Bihar Cadre. On July
26,1948 when India was a Dominion under the Indian
IndependenceAct,1947 he was appointed a Puisne Judge of
the Orissa High Court and on March 31, 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 Art. 221(2), he was
appointed Chief Justice of that High Court. On January 4,
1965 he was appointed Chief Justice of the Patna High Court
from where he retired on August 2, 1968. Soon after his
retirement he was appointed a Member of the Law Commission
on August 2, 1968. On June 6, 1965 Indian rupee was
devalued and on November 18, 1967 English pound was
devalued.
777
Sometime prior to the actual date of his retirement the
question of determining the 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. On
July 2, 1968 the petitioner, in terms of the proviso to s.
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 Services)
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 u
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nder Part
I of the First Schedule to that Act.
The exercise of this option it 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 time.
Sd./- R. L. Narasiniham
2-7-68
On October 9, 1968 (as per annexure F to Shri Narasimham’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 Rs.
93,062.75 being the commuted value of Rs. 883/- out of the
pension of Rs. 1,666.65 per mensem (Rs. 20,000/- p.a.) to
Shri Narasimham.
--L 152 Sup CI/73
778
After the dismissal of the Writ Petitions of Shri B. Malik
and Shri N. C. Desai by the Allahabad High Court Shri Nara-
simham is stated to he 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.
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 December 15,.1947. He retired
as Chief Justice of that Court on January 11, 1956.
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, Art. 221 of the
Constitution and s. 25 of the 1954 Act, his right in respect
of pension could 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 : Shri 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 January 24, 1950. He was appointed Chief Justice
of the same Court on January 17, 1961, after the 1954 Act
had come into force, and retired as Chief Justice of that
Court on February 25, 1966. The President sanctioned a sum
of Rs. 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 s. 15 of
that Act. Indeed, it is so admitted by him in Para 6 of his
rejoinder-affidavit dated February 12, 1969 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,
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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
779
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 Rs. 1,611.65 ps. per month by the Accountant
General of U.P. This payment order was addressed to the
Treasury Officer, Allahabad. On July 12, 1966 Shri Desai
got commuted half of his pension with effect from that date
and received in lieu thereof Rs. 87,219.80 ps. 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 Rs. 805.85 ps. 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 January 19, 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 March 17,
1967 sent a reply starting 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 May 9, 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 to him in sterling in
England. In that letter he claimed payment of pension under
paragraph 933A 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 April 20, 1968.
Both Shri Malik and Shri Desai applied to the Allahabad High
Court under Art. 226 of the Constitution the former in
August, 1967 and the latter in May, 1968. In Shri Malik’s
writ petition prayers were made inter alia that the High
Court be pleased :-(i) to issue an order, direction or writ
in the nature of certiorari and quash the order of the
Accountant General U.P., Allahabad expressed in his letter
No. PAI/SA/5990 dated February 6, 1967, and (ii) to issue an
order, direction or writ in the nature of mandamus directing
the Accountant General, Allahabad to issue a fresh PPO for
Rs. 2,060.38 ps. per mensem and Rs. 24,724.56 ps. per annum
in view of the devaluation of the Indian rupee in
supersession of PPO No. 118260 for Rs. 1,299.10 ps. p.m. and
Rs. 15,590.00 per annum. Shri Desai prayed for "(a) a writ,
order or direction to. the Union of India to refix his
pension in accordance with the provisions of the Government
of India (High Court Judges) Order, 1937 in sterling and
then to convert the same into rupees at the present rate of
exchange, (b) a writ. order or direction
780
directing the opposite party No. 1 (Union of India) to pass
suitable orders enabling the petitioner to draw his pension
at the Treasury in England in sterling; (c) a writ, order or
direction. directing the opposite party No. 1 to recalculate
the amount of his pension that has been commuted in
accordance with the provisions of the Government of India
(High Court Judges) Order, 1937 according to the present
rate of exchange and to pay to the petitioner the difference
between the said amount and the amount already paid to him."
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A Full Bench of the Allahabad High Court, by a common order
dated September 10, 1969, dismissed both the Petitions of
Shri Malik and Shri Desai. That Court, however, certified
the cases to be fit for appeal to this Court under Arts.
132(1) and 133(1)(c) of the Constitution. It is in these
circumstances that these three cases have been heard
together.
The principal distinction between C.A. No. 2065 of 1970
(Shri B. Malik vs. Union of India & Anr.) and the other two
cases, as suggested at the bar, is that Shri B. Malik never
belonged to the Indian Civil Service whereas Shri Narasimham
and Shri Desai originally belonged to the Indian Civil
Service and were appointed Judges of their respective High
Courts as members of that service. The difference between
these two categories of cases lies in the difference in the
rules of service with regard to payment of pension governing
the Judges Who came from the Indian Civil Service and those
who never belonged that service.
Shri Narasimham and Shri Desai had originally joined the
Indian Civil Service and were appointed first as puisne
Judges and then as Chief Justice of their respective High
Courts. As already noticed, they were appointed as Chief
Justices after the enforcement of the 1954 Act. We do not
consider it necessary to trace the origin of the Indian
Civil Service and refer to its historical background for
discovering the dominant object and purpose of the
provisions relating to payment of pensions embodied in the
1937 Order by correlating them with the provisions for
making payment of the salaries and pensions in pounds
sterling in England or of its equivalent in rupees in India,
to the members of the Covenanted Services entering into
covenants with the British Crown in England for serving in
India, which at that time happened to be a part of the
British Empire. At the bar reference was only made to the
1937 Order for founding the claims of all the three Chief
Justices before us, as their rights under this Order were
stated to have been preserved in subsequent enactments and
also in the present Constitution of India and in the 1954
Act. We may, therefore, start with the examination of the
relevant provisions dealing with the pension payable to
Judges of the High Courts as contained in
781
the 1937 Order. This Order was made by His Majesty in
Council under s. 221 read with r. 309 of the Government of
India Act, 1935. Section 221. reads
"221. Salaries etc., of Judges.-
The Judges of the several High Courts shall be
entitled to such salaries and allowances,
including allowances for expenses in respect
of equipment and travelling upon appointment,
and to such rights in respect of leave and
pensions, as may from time to time be fixed by
His Majesty in Council:
Provided that neither the salary of a judge,
nor his rights in respect of leave of absence
or pension, shall be varied to his
disadvantage after his appointment."
The 1937 Order provided for all the matters mentioned in s.
321 Para 5 of the Second Schedule of this Order shows that
salaries payable to the Chief Justices and Judges of various
High Courts in British India were specified in rupees.
Pensions payable to them were, however, expressed in pounds
sterling in the Third Schedule. It does not require such
research or analysis to discover the reason why salaries,
unlike pensions, of Chief Justices and Judges were specified
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in rupees only and quite obviously this distinction between
payment of salary and payment of pension was not
unintentional or without purpose. The intended
beneficiaries of these provisions were obviously those who
were expected ordinarily to receive their salaries in India
and their pensions in England. The subject of pensions is
dealt with in paras 17 to 24 of this Order though we are
directly concerned with paras 18, 19 and 21 only. These
paragraphs read as under
"18(1) .-Subject to the provisions of this
Order, the pension payable to a Judge who on
his retirement is entitled to a pension shall
be calculated--
(a) in the case of a Chief Justice or Judge
who is not a member of the Indian Civil
Service, or of a Chief Justice of a Chartered
High Court who is a member of the Indian Civil
Service, in accordance with the scale and
rules in Part I of the Third Schedule to this
Order.
in the case of a Judge who is a member of the
Indian Civil Service and is not a Chief
Justice of a Chartered High Court, in
accordance with the scale and rules in Part II
of the said Schedule.
782
19.(1) The provision of this paragraph
shall apply in relation to a Judge who is a
member of a civil service of the Crown in
India.
(2)If any such Judge is eligible for a
pension under paragraphs 17 and 18 of this
Order he shall elect to receive either that
pension or such pension as is referred to in
the next succeeding subparagraph.
(3)_If any such Judge is not eligible for a
pension under paragraphs 17 and 18 of this
Order or, being eligible for such a pension
elects not to receive that pension, the
pension payable to him shall be--
(a) the pension for which he would have been
eligible under the rules of his civil service
if he had not been appointed a Judge, his
service as a Judge being treated as service
for the purpose of calculating that pension;
and
(b) if he is not a member of the Indian Civil
Service, a special additional pension of five
hundred rupees per annum in respect of each
completed year of service for pension in any
one or more of the High Courts, but not in any
case exceeding two thousand five hundred
rupees per annum.
(4)The pension payable to any such Judge part
of whose service includes service as a Chief
Justice shall in no case be less than the
pension for which he would have been eligible
if all his service for pension had been
service rendered otherwise than as Chief
Justice.
21.Pensions expressed in sterling only
shall, if paid in India, be converted at such
rate of exchange as the Secretary of State may
from time to time prescribe :
Provided that nothing in this paragraph shall
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affect any specific privilege in respect of
the conversion of sterling pensions which was
conferred by any Rules previously in force on
persons who on the 1st February, 1921, were
members of a civil service of the Crown in
India."
We do not consider it necessary to reproduce the relevant
portions of the Third Schedule. It is, however, clear that
para 18 in-so far as it provides for pension payable to a
Chief Justice
783
could scarcely apply to the two I.C.S. Chief Justices who
never held the offices of Chief Justices during the
operation of the 1937 Order, having been appointed as Chief
Justices only after the enforcement of the 1954 Act.
When India secured independence in 1947 by virtue of the
Indian Independence Act, 1947 (10 and 11 Geo. VI, c. 13)
protection in certain respects was granted to the Secretary
of State’s Services by enacting, s. 10 which provided
"10. Secretary of State’s Services etc.
(1)The provisions of this Act keeping in
force provisions of the Government of India
Act, 1935 shall not continue in force the
provisions of that Act relating to
appointments to the civil service of, and
civil posts under, the Crown in India by the
Secretary of. State, or the provisions of
that Act relating to the reservation of
posts.
(2) Every person who--
(a) having been appointed by the Secretary
of State or Secretary of State in Council, to
a civil service of the Crown in India
continues on and after the appointed day to
serve under the Government of either of the
new Dominions or of any Province or part
thereof; or
(b) having been appointed by His Majesty
before the appointed day to be a Judge of the
Federal Court or of any Court which is a High
Court within the meaning of the Government of
India Act,, 1935, continues on and after the
appointed day to serve as Judge in either of
the new Dominions,
shall be entitled to receive from the Governments of the
Dominions and Provinces or parts which he is from time to
time serving, or, as the case may be, which are served by
the courts in which he is from time to time a Judge,, the
same conditions of service as respects remuneration, leave
and pension, and the same rights as respects disciplinary
matters or, as the case may be, as respects the tenure of
his office, or rights as similar thereto as changed
circumstances may permit, as that person was entitled to
immediately before the appointed day.
784
(3)Nothing in this Act shall be construed as
enabling the rights and liability of any
person with respect to the family pension
funds vested in Commissioners under section
two hundred and seventy three of the
Government of India Act, 1935, to be governed
otherwise than by Orders in Council made
(whether before or after the passing of this
Act or the appointed day) by His Majesty in
Council and rules made (whether before or
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after the passing of this Act or the appointed
day) by a Secretary of State or such other
Minister of the Crown as may be designated in
that behalf by Order in Council under the
Ministers of the Crown (Transfer of Functions)
Act, 1946."
According to s. 1 of this Act, August 15, 1947 was the
appointed day with effect from which the Independent
Dominion of India was set up. In S. 221 of the Government
of India Act the "Governor General" was substituted for "His
Majesty in Council". Similarly, in para 21 of the 1937
Order "Governor General" was substituted for "Secretary of
State". This apparently became necessary as a result of
India having become an Independent Dominion. When the new
Constitution was framed India constituted itself into a
Sovereign Democratic Republic. Chapter V of Part VI deals
with the High Courts in the States so far as relevant for
our purpose. In order to be qualified for appointment as a
Judge of a High Court a person must, among other
qualifications stated in Art. 217(2), be a citizen of India.
The existing Judges of the High Courts were, however,
specifically exempted from the requirement of qualification
of Indian citizenship contained in this sub-Article : vide
Art. 376(1). According to Art. 216 every High Court is to
consist of a Chief Justice and such other Judges as the
President may from time to time deem it necessary to
appoint. Article 221 of the Constitution fixed the salaries
of Judges and also made provision for leave of absence and
pensions. This Article prima facie seems to refer to Judges
appointed under the Constitution. The Judges of the High
Courts holding office immediately before the commencement of
the Constitution were by virtue of Art. 376(1) also
entitled, unless they had elected otherwise, to such
salaries and allowances and to such rights in respect of
leave of absence and pensions as are provided for under Art.
221, which reads :
"221. Salaries etc., of Judges
(1)There shall be paid to the Judges of
each High Court such salaries as are specified
in the Second Schedule.
(2)Every Judge shall be entitled to such
allowances and to such rights in respect of
leave of absence and pensions 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 :
Provided that neither the allowances of a
Judge nor his rights in respect of
leave of
absence or pension shall be varied to his
disadvantage after his appointment." Article
376(1) provides
"376. Provisions as to Judges of High
Courts.
(1)Notwithstanding anything in clause (2)
of article217 the Judges of a High Court in
any Province holdingoffice immediately before
the commencement of this Constitution shall,
unless they have elected otherwise, become on
such commencement the Judges of the High Court
in the corresponding State, and shall there-
upon be entitled to such salaries and
allowances and to such rights in respect of
leave of absence and pension as are provided
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22
for under article 221 in respect of the Judge
of any other High Court."
Any such Judge shall, notwithstanding that he
is not a citizen of India, be eligible for
appointment as Chief Justice of such High
Court, or as Chief Justice or other Judges of
any other High Court."
The last part was added by the First Constitution Amendment
Act, 1951.
Para 10(1), Part D of the Second Schedule provides for
salaries to be paid to the Chief Justice and Judges of High
Courts. The Chief Justices and Judges drawing higher salary
immediately before the commencement of the Constitution were
entitled to receive as special pay an amount equal to the
difference between the salary specified in para 10(1) and
the salary which they were drawing before such commencement.
Para 10(4) dealing with the rights of the High Court Judges
respect of leave of absence and pensions provided :
"10(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 commencement of
this Constitution, were applicable to the
Judges of the High Court in corresponding
Province."
786
This sub-para became unnecessary when the Parliament made
the required law with respect of pensions as contemplated by
Art. 221(2). Strictly speaking, therefore, we have now to
look only to the provisions of our Constitution and to the
statutory enactments made in accordance therewith for
determining the question of the preservation or creation
of the rights claimed by the three Chief Justices in these
proceedings. This position was not, as indeed in face of
the scheme of our Constitution, could not, be controverted
by them.
In 1954 Parliament, as contemplated by Art. 221(2), enacted
the 1954 Act. This Act sought to provide for one common
scale of pensions for all Chief Justices and another common
scale for other Judges because under the Constitution one
uniform rate of salary for Chief Justices and another
uniform rate of salaries for other Judges of High Courts was
provided. The Judges already drawing higher salary, it may
be recalled, were compensated by the grant of a special pay
under the Constitution,. The fact that as originally
enacted "the High Court" as defined in this Act meant the
High Court of Part A States is immaterial for our purpose
because now there are no Part B States and, therefore, no
Part B State High Courts. Chapter III and First Schedule of
this Act deal with the subject of pensions payable to the
Judges so far as relevant for our purpose. This Act was
amended in some important respects in 1958 with
retrospective effect from November 1, 1956 (vide : Act 46 of
1958). That was the date with effect from which the
Constitution Seventh Amendment Act was enforced. By virtue
of s. 10 of this Amending Act in Part II of the First
Schedule new paragraph 3 specifying in rupees the new scale
for additional pension was substituted for the original
paragraph 3 in which pension payable to an I.C.S. Judge had
been expressed in sterling only (vide s. 15). This Act was
again amended in 1961 with retrospective effect from the
inception of the principal Act and then again in 1964 with
retrospective effect. It is not necessary to go into those
details. No doubt, Shri Malik had retired on January 11,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22
1955 but no point was sought to be made on his behalf on the
ground of these retrospective amendments being subsequent to
his retirement. His case is plainly governed by s. 14 as
originally framed read with Art. 221(2) of the Constitution
and we will ignore the later amendments. Section 14, after
the aforesaid amendments with retrospective effect, reads as
under :
"14. Pension payable to Judges.--Subject to
the provisions of this Act, every Judge shall,
on his retirement, be paid a pension in
accordance with the scale and provisions in
Part I of the First Schedule :
787
Provided that no such pension shall be payable
to a Judge unless--
(a) he has completed not less than twelve
years of service for pension; or
(b) he has attained the age of sixtytwo
years; or
(c) his retirement is medically certified to
be necessitated by ill-health.
Provided further that if a Judge 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 in the
Union or
a State, the pension payable under this Act
shall be in lieu of, and not in addition to
that pension.
Explanation.-In this Section ’Judge’ means a
Judge who is not a member of the Indian Civil
Service or has not held any other pensionable
civil post under the Union or a State and
includes a Judge who being a member of the
Indian Civil Service or having held any other
pensionable civil post under the Union or a
State has elected to receive the pension
payable under Part I of the First Schedule."
The second proviso was added by the 1958 Amendment Act and
in cl. (b) of the first proviso the word ’sixtytwo’ was
substituted for the word ’sixty’ by amendment in 1964.
Section 15 which has retained its original form contains
special provision for pension in respect of Judges who are
members of service. It reads :
"15. Special provision for pension in respect
of
Judges who are members of service.-
Every Judge-
(a) who is a member of the Indian Civil
Service shall, on his retirement, be paid a
pension in accordance with the scale and
provisions in Part 11 of the
First Schedule;
(b) who is not a member of the Indian Civil
Service but has held any other pensionable
civil post under the Union or a State, shall,
on his retirement, be paid a pension in
accordance with the scale and provisions in
Part Ill of the First Schedule.
788
Provided that every such Judge shall elect to
receive the pension payable to him either
under Part I of the First Schedule or, as the
case may be, Part II or Part III of the First
Schedule, and the pension payable to him shall
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22
be calculated accordingly."
The proviso is significant so far as the I.C.S. Chief
Justices, namely, Shri Narasimham and Shri Desai, are
concerned because they were required to elect to receive the
pension payable to them either under Part I or Part II of
the First Schedule and if they elected in favour of Part I
then their case would be similar to that of Shri Malik, who,
under s. 14 has prima facie, as is clear from the
explanation, to be paid his pension "in accordance with the
scale and provisions in Part I." Apart from the two parts of
the First Schedule there was no third option open to the two
I.C.S. Chief Justices before us because Part III of the
First Schedule does not apply to the I.C.S. Judges. Before
considering the First Schedule we may as well read ss. 18
and 25(1) of this Act:
"18. Conversion of sterling pension into
rUpeeS.--
Pensions expressed in sterling only shall, if
paid in India, be converted into rupees at
such rate of exchange as the Central
Government may, from time to time, specify, in
this bhalf.
Provided that nothing in this section shall
affect any specific privilege in respece of
the conversion of sterling pensions which was
conferred by any rules previously in force in
respect of persons who, on the 1st February,
1921, were members of the Indian Civil
Service." (Emphasis supplied).
This section is a reproduction of para 21 of the 1937 Order
except that "Central Government" is substituted for
"Governor-General". The proviso which expressly excludes
from the operation of this section any specific privilege in
respect of conversion of sterling pensions conferred by
prior rules on pre-1921 members of the Indian Civil Service,
was omitted by Act 40 of 1958 with retrospective effect from
November 1, 1956. No argument was founded on the purpose of
the original enactment of this proviso and its retrospective
removal in 1958.
Section 25(1) reads :
"25. Savings.--(1) Nothing contained in this
Act shall have effect so as to give to a Judge
who is serving as such at the commencement of
this Act less favourable terms in respect of
his allowances or his right in
789
respect of leave of absence (including leave
allowances) or pension than those to which he
would be entitled if this Act had not been
passed.
Sub-section (2) of this section which was added by Act 46 of
1958 with retrospective effect from November 1, 1956-
apparently in order to give effect to the Proviso to Art.
221 of the Constitution so far as Judges of the former High
Courts in Part B States were concerned is not relevant for
our purpose. The whole controversy before us would in
effect seem to centre mainly round the construction to be
placed on these two sections and on Art. 221 of the
Constitution for determining the nature and extent of the
preexisting rights in respect of pensions which were claimed
by the Chief Justices to have been preserved by the
Constitution and the 1954 Act.
Beginning with the First Schedule of the 1954 Act we find
that all the paras of Part I specify the amount of pension
payable in rupees. Para 3 provides for basic pension and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22
paras 4 and 5 for additional pension. Para 4 reads :
"4. For the purpose of calculating additional
pensions, service as a Judge shall be
classified as follows :-
Grade I., Service as Chief Justice in any High
Court;
Grade II. Service as any other Judge in any
High Court."
Para 5 which also fixes the maximum aggregate pension per
annum provides :
"5. For each completed year of service for
pension in either of the grades mentioned in
paragraph 4, the Judge who is eligible for a
basic, pension under this Part shall be
entitled to the additional pension specified
in relation to that grade in the second column
of the table annexed hereto :
Provided that the aggregate amount of his
basic and additional pension shall not exceed
the amount specified in the third column of
the said table in relation to the higher grade
in which he has rendered service for not less
than one completed year.
TABLE
Service Additional pension Max. aggregate
per annum pension. pa.
Rs. Rs.
Grade 1 740 20,000
Grade 11 470 16,000"
790
it is not denied that Shri Malik who is not a member of the
Indian Civil Service is to be paid his pension in accordance
with the scale and provisions in Part I of the First
Schedule as laid down by s. 14 of the 1954 Act. As regards
Shri Desai also it is not disputed that he had on his
retirement elected under the proviso to s. 15 to, receive
his pension under Part I of the First Schedule. All that he
has pleaded in-the rejoinder affidavit is that there was
never any question of option between the 1937 Order and the
1954 Act. This plea ignores the fact that had be exercised
his option to receive his pension under Part 11 he would
have been entitled to invoke the ordinary rules of the
Indian Civil Service applicable to him, had he not been
appointed as Judge, and that his election to receive pension
under Part 1 rules out all claim to pension in sterling. So
far as these two Chief Justices are concerned it is hardly
open to dispute that they have both to receive their pension
under Part 1. The claim made in the writ petition by Shri
Desai that he was entitled to draw his pension at the
Treasury in England in sterling is also in view of his
election not easy to sustain and indeed no convincing
argument was advanced in its support. It is only in the
case of Shri Narasimham that it was suggested that he had
exercised his option without prejudice to his right to claim
pension in pounds sterling under the 1937 Order to be
converted into rupees, if that would be more favourable to
him. Under the proviso to s. 15 as is clear he was required
to elect to receive his pension either under Part I or under
Part 11. Part 11 of the First Schedule applies to a Judge
who is a member of the Indian Civil Service and who has not
elected to receive the pension payable under Part 1. Under
paragraph 2 of Part 11 pension payable to such a Judge is
the pension to which he would be entitled under the ordinary
rules of the Indian Civil Service if he had not been
appointed a Judge, his service as a Judge being treated as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22
service therein for calculating that pension, and to the
additional pension, if any, to which he would be entitled
under paragraph 3. It may be recalled that the original
paragraph 3 as enacted in 1954 provided for a scale of
additional pension for Judges completing not less than seven
years of service, and that the amount was expressed in
sterling. By the Amending Act no. 46 of 1958 this scale in
paragraph 3 was specified in rupees instead of sterling with
retrospective effect. This amendment was affected long
before Shri Narasimham retired. The vires or legality of
this amendment was not questioned before us.
It is true that in the absence of election by Shri
Narasimham under s. 15 it was apparently not possible to
calculate pension payable to him under the 1954 Act. It
was, however, open to him, if he so desired, to elect to
receive pension under Part II. Instead of so electing, he
elected to receive pension under Part I without prejudice to
his right to claim act superannuation payment
791
of pension under the 1937 Order by converting sterling into
rupees if that were more favourable to him. After the
amendment of paragraph 3 of Part 11 of the First Schedule,
even under that Part there is no question of calculating
pension payable to retired Judges of the High Courts in
pounds sterling. Indeed, the 1954 Act, after its amendment,
marks the final break with the foreign currency in the
matter of payment of pensions to the High Court Judges and
the beginning of uniform treatment of all High Court Judges
in the matter of payment of pension by providing for cal-
culation and payment in Indian currency. The anomaly which
was a relic of the British rule originally motivated by an
apparent desire to bestow a special privilege and facility,
carrying financial benefit, on British Judges serving in
India was finally removed by this amendment. It is hardly
necessary in this connection to emphasise the desirability
of keeping our basic economic structure, so far as
practicable, free from the direct effects of unpredictable
fluctuations in the value of foreign currency. It was thus
apparently with the intention of delinking the fixation of
pension to the retired I.C.S. Judges of the High Courts from
the pound sterling a foreign currency-that the Parliament
in its wisdom decided to effect the necessary amendment in
the 1954 Act, which removed the anomaly of paying pensions
to a certain category of High Court Judges by first
determining the amount of pension in a foreign currency and
then converting that amount into Indian rupees for payment
to them. It also eliminated the possibility of recurring
variations. depending on. the uncontrollable fluctuations in
the value of pound sterling, in the amount of pensions
payable to that category of Judges.
Reliance was placed on s. 25 of the 1954 Act for the
contention that this Act itself saves the preexisting right
of the Judges serving as such at the commencement of this
Act in respect of their pensions. Section 25 read with s.
18, according to the argument, entitles the Chief Justices
to receive their pensions when expressed in sterling in the
1937 Order after converting them into rupees at the
prevailing rate of exchange. Linked with this submission is
the argument that the Proviso to Art. 221(2) of the
Constitution initially saved this right and s. 25 merely re-
produces this constitutional protection. Let us examine the
cogency and the validity of this argument. While doing so
we are completely ignoring the election made under s. 15 of
the 1954 Act.
The relevant provisions of the Constitution, the validity of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22
which is beyond challenge, must, after January 26, 1950, be
considered as the basic source of the rights in respect of
the pensions claimed by three Chief Justices. We have only
to examine those provisions in order to find out the nature
of their rights created or
792
preserved thereunder. In this connection it is important to
bear in mind that Shri Narasimham and Shri Desai were
appointed Chief Justices not only after the commencement of
the Constitution but also after the enforcement of the 1954
Act. Their rights in their capacity as Chief Justices
would, therefore, prima facie, seem to be governed not by
the 1937 Order but by the Constitution and the 1954 Act.
They were not serving as Chief Justices at the commencement
of the 1954 Act with the result that s. 25 of that Act would
seem to be ineffective so far as their rights for pension as
Chief Justices are concerned. Shri B. Malik had, however,
been appointed as Chief Justice in December, 1947 and he
retired in January, 1955. But he was never a member of the
Indian Civil Service and different considerations arise in
his case.
Now s. 25 of the 1954 Act-enacted by Parliament as con-
templated by Art. 221(2)-which has already been reproduced
merely saves the pre-existing right of the three Chief
Justices in respect of pensions from less favourable effect
of the provisions of the 1954 Act. The question, therefore,
arises if the 1954 Act has the effect of giving to the three
Chief Justices less favourable terms in respect of their
pensions than those to which they would have been entitled,
had the 1954 Act not been passed. For determining this
question we have to turn to the 1937 Order : vide Art.
221(2) read with para 10(4), Part D, Second Schedule of the
Constitution. Para 18 of the 1937 Order provided for the
calculation of pension, payable to a Chief Justice on his
retirement (whether or not he is a member of the Indian
Civil Service) in accordance with the scale and rules in
Part I of the Third Schedule. In that Part pensions are
expressed in sterling only. According to para 21, it may be
recalled, such pension when expressed in sterling only, if
paid in India, had to be converted at such rate of exchange
as the Secretary of ’State (before India became a Dominion)
or the Governor General, (after India became a Dominion)
may, from time to time, prescribe. This para, quite
plainly, did not impose any legal obligation on the
authorities concerned to adopt the current or market rate of
exchange. Neither any statutory provision nor any precedent
or principle was brought to our notice from which we could
be persuaded to spell out any such obligation. The
authorities concerned were free to prescribe whatever rate
of exchange they considered proper. By virtue, of Art.
221(2) of the Constitution, until Parliament by law
determined differently, every Judge was entitled to such
rights in respect of pension as are. specified in the Second
Schedule. In that Schedule, as provided by para 10(4)
(before its amendment by the Constitution (Seventh
Amendment) Act, 1956) of Part D, the rights in respect of
pension of the Judges of the High Courts were continued to
be governed by
793
the provisions which immediately before the commencement of
the Constitution were applicable to them in the
corresponding provinces. The Proviso to Art. 221(2), it may
be recalled, only protected the rights of a Judge in respect
of pension against variation to his disadvantage. Assuming
this Proviso to take within its fold the right of a Judge in
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respect of pensions under the 1937 Order, it may be pointed
out, that there was no right conferred on a Judge under that
Order to get his pension, specified in pounds sterling only,
converted into rupees at the current or market rate of
exchange. There was, therefore, no question of any such
right being protected under the Constitution. The only
right that could be protected was to get the "pension ex-
pressed in sterling only" converted for payment in India "at
such rate of exchange as the Governor General may from time
to time prescribe". The protection thus granted was also to
last only for the interim period till Parliament made a law
in respect of pensions as provided by Art. 221(2). This
sub-Article, in our view, clearly shows that the framers of
the Constitution intended the law relating to pensions of
all High Court Judges, including the Chief Justices, to be
placed on a more uniform, rational and stable basis. Such
law in the form of the 1954 Act, it may be recalled, was
brought on the statute book in 1954. The protection
guaranteed to the Judges of the High Courts in the Proviso
to Art. 221(2) was reproduced in the 1954 Act as well in the
form of s. 25. How if there was no preexisting right in the
three Chief Justices, to get their pensions, expressed in
sterling only, converted for payment to them into rupees at
the current or market rate of exchange, obviously there was
no question of preserving or protecting any such right
either under the Constitution or under the 1954 Act. Under
the said Act pensions expressed in sterling only were,
according to s. 18, to be converted into rupees at such rate
of exchange as the Central Government specified in this
behalf from time to time. This right is expressed in terms
identical with those used in para 21 of the 1937 Order ex-
cept that the authority empowered to specify the rate of
exchange for the conversion is the Central Government in
substitution for the Governor General. No complaint was
made by the Chief Justices before us against this
substitution. It is thus clear that the statutory
provisions beginning with the 1937 Order and ending with the
1954 Act nowhere vested in the High Court Judges a right to
have their pensions expressed in sterling to be converted
into rupees at the prevailing market rate of exchange at the
time of their retirement or of payment of pension to them.
We are, therefore, unable to hold that either the
Constitution or the 1954 Act preserves any right in the
three Chief Justices to get their pensions expressed in
sterling only converted for payment to them in India into
rupees at the prevailing market rate of exchange.
794
Shri Narasimham, however, sought support for his submission
from the previous history of the fixation of Is. 6d. to a
rupee as the rate of exchange in February, 1928. He placed
particular reliance on an extract from a letter (No.
23/44/48-Ests. dated December 14, 1948) from the Home
Ministry, Government of India, to the Chairman of the I.C.S.
Association (Annexure I to Shri Narasimham’s rejoinder
affidavit) in which assurance was said to have been given
that the rate of exchange for the purposes of art. 933 of
the Civil Services Regulations would be the one generally
applicable to all official transactions between India and
the United Kingdom and that there was no intention to
prescribe such rate arbitrarily with reference to pensions
alone. Apart from this assurance Shri Narasimham also
pressed into service the; "Principles of Nominalism" for
founding his claim and in this connection reference was made
to certain passages in Dicey’s Conflict of Laws and in
Cheshire’s Private International Law.
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History of the background in which 1s. 6d. was fixed as the
rate of exchange for a rupee is of little relevance in
determining the question in controversy before us. It does
not create any legal obligation in favour of the Chief
Justices before us which they can enforce in the present
proceedings. In any event the language of the 1937 Order
and of the 1954 Act is quite plain and it appears to us
impermeable to refer to any such history for the purpose of
construing these provisions. Similarly the extract from the
letter dated December 14, 1948 can render little assistance
in construing the clear provisions of the 1937 Order or of
the 1954 Act.
For reasons best known to Shri Narasimham he did not care to
produce for our examination the letter to which the letter
dated December 14, 1948 purports to be a reply, so as to
enable us to have a clearer and fuller picture of the
context in which this reply was given. Some parts of the
extract produced by Shri Narasimham, however, do throw some
light on what the Association had itself in all probability
suggested. The actual words from the extract may usefully
be reproduced here
"The Government of India agree that now that
most of the European members of the I.C.S.
have left, it is somewhat anomalous that the
I.C.S. annuity should continue to be fixed in
sterling. The matter, however, forms part of
a bigger issue affecting all services, and the
removal of the anomaly will involve an
alteration of the whole structure of the
pensionary rules in the Civil Service
Regulations. The Government of India regret
that they are not in a position to undertake
this piece of reform just at present."
795
It seems obvious that in 1948 the Government felt some
difficulty in acting on the representation of the I.C.S.
Association on such an important point as the removal of the
anomaly of fixing in sterling the I.C.S. annuity but in due
course after fuller deliberation when India ceased to be a
Dominion and became a Sovereign Democratic Republic the
suggestion made by the said Association itself was accepted
and carried out on a permanent basis by inserting the
necessary provision in the Constitution and later by
enacting the 1954 Act so far as the High Court Judges are
concerned. We need not refer to the changes effected in the
relevant Civil Service Regulations. The extract of the
letter produced by Shri Narasimham would thus seem to be
wholly unhelpful to him.
The vires of s. 18 of the 1954 Act in so far as it empowers
the Central Government to specify the rate of exchange for
converting sterling into rupees was not questioned before
us. There being, therefore, no right created by the 1937
Order or by any other statutory provision brought to our
notice vesting in the three Chief Justices a right to get
their pension converted from pound sterling into rupees at
the prevailing market rate of exchange at the time of their
retirement or of actual payment, we do not think they can
have any legitimate grievance against the fixation of their
pension in rupees on a permanent basis by the Parliament
under the 1954 Act as amended, in accordance with the then
prevailing rate. The amount of pension fixed by the 1954
Act as amended was indisputably not less favourable to the
three Chief Justices and even on their own argument they had
no grievance. against it at that time. The fact that it was
so fixed on a permanent basis by the Parliament does not
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violate any right vested in the three Chief Justices.
Reference on behalf of the Chief Justices was also made to
certain observations by Dr. Katju, the then Minister for
Home Affairs, during the discussion in the Parliament on the
High Court Judges’ (Conditions of Service) Bill which later
emerged as the 1954 Act. All that we need say in this
connection is that proceedings in Parliament are scaresly a
legitimate or a helpful aid to the construction of the
statutes and no observation made there can vary the plain
meaning of the statutory language which is otherwise clear
and unambiguous.
It was faintly suggested that the fact that s. 18 has been
retained in the 1954 Act even after its amendment by Act 46
of 1958 shows that a right of certain category of Judges to
have their pensions converted from sterling into rupees
still subsists. According to the submission it is Judges in
similar position as the three Chief Justices before us or at
least the I.C.S. Chief Justices
796
like Shri Narasimham and Shri Desai for whose benefit s. 18
has been retained. This argument in face of the clear
provisions of the other relevant sections and of the
relevant parts of the First Schedule is, in our opinion,
unacceptable for sustaining the claim of the three Chief
Justices to get their pensions converted into rupees in
accordance with the terms of the 1937 Order for payment to
them. Section 18 may well have been retained for the
benefit of those I.C.S. Judges whose right to pension was
governed by the 1954 Act prior to its amendment by Act 46 of
1958. It is, however, unnecessary to express any considered
opinion on this point.
Shri Narasimham’s argument that he being a creditor of the
Government in terms of pound sterling was entitled to
receive his pension as a debt by converting the pounds into
rupees at the current market rate of exchange is based on an
untenable premise. The relationship of creditor and debtor,
assuming it to exist in this case, could only arise after
the pension became due and payable. After the enforcement
of the 1954 Act as amended he could only become a creditor
in terms of rupees and not in terms of pounds. This
contention is, therefore, of no assistance to Shri
Narasimham.
This also fully answers the alternative plea that Shri Nara-
simham has in any event a money claim against the
Government. The money claim in respect of pension also
materialises only when it becomes due. No provision of
statutory law or binding precedent was brought to our notice
under which a claim under the 1937 Order could be kept alive
so far as the three Chief Justices are concerned after the
commencement of the Constitution and enforcement of the 1954
Act beyond the extent to which any such claim was actually
preserved thereunder. As observed earlier, the Constitution
and. the 1954 Act only contemplate calculation and payment
of pension in rupees.
Reliance was placed by Shri Narasimham on rule 149 of
Dicey’s "Conflict of Laws", 8th edn. in which the
Nominalistic Principle is stated as follows :
"A debt expressed in the currency of any
country involves an obligation to pay the
nominal amount of the debt in whatever is
legal tender at the time of payment according
to the law of the country in the currency of
which the debt is expressed (lex monotee)
irrespective of any fluctuations which may
have occurred in the value of that currency in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22
terms of sterling or any other currency, of
gold, or of any commodities between the time
when the debt was incurred and the time of
payment (Principle of Nominalism)."
797
Reference in this very connection was also made to p. 684 of
Cheshire’s Private International Law (eighth edn.) where it
is stated that in England an English Court cannot order
payment except in English currency and whatever sum is
ordered to be paid must be expressed in English money or
such order cannot be enforced by the ordinary writs of
execution. It is not understood how these references can
help Shri Narasiniham. Once his plea as creditor or money
claimant in terms of pounds sterling fails, all these
arguments become wholly irrelevant and have to be repelled.
It was pleaded in para 19 of Shri Narasimham’s writ petition
(W. P. No. 630 of 1970) that Shri lqbal Ahmed, who retired
as Chief Justice of the Allahabad High Court in September,
1946, Shri R. K. Verma who retired as Chief Justice of the
same Court in December, 1947 and Shri P. N. Sapru who
retired as Judge of that High Court in February, 1954 and
Shri Harish Chandra, I.C.S., who retired as a Judge of the
same High Court in September, 1954 were all paid their
pensions in rupees at the prevailing rates of exchange.
These cases were stated to be identical with his case. The
last instance, namely, that of Shri Harish Chandra was
particularly relied upon by Shri Narasimham as a case very
close to his. It was stated in the writ petition that Shri
Harish Chandra’s pension was initially sanctioned at the
rate of Rs. 1,222-4-0 per month, but on devaluation of the
rupee in June, 1966 it was increased to Rs. 1,925/- and on
devaluation of the pound in November, 1967 it was reduced to
Rs. 1,650/-.
In the counter-affidavit it was explained that the first
three Judges had retired prior to the enforcement of the
1954 Act and their pensions were paid at the rate of Is. 6d.
to the rupee which was the rate prescribed for conversion of
sterling pension at the relevant time. Variation in par
value of the rupee was not considered to have any bearing on
the rate of exchange to be prescribed under the 1937 Order
or to be specified by the Central Government under the 1954
Act. Shri Harish Chandra’ had undoubtedly retired after the
enforcement of the 1954 Act but before its amendment in
1958. However, for the purpose of pension he had elected to
be governed by Part IT of the First Schedule to the 1954
Act. He was accordingly, paid pension to which he would
have been entitled under the ordinary rules of I.C.S., if
,he had not been appointed a Judge, his service as a Judge
being treated as service therein for the purpose of
calculating his pension. Shri Harish Chandra was also
stated to be entitled to an additional pension according to
the scale prescribed under Part II. It was also added in
the counter-affidavit that even as an T. C. S. Officer Shri
Harish Chandra’s pension should have been expressed under
the relevant articles of the Civil. Service Regulations in
798
rupees as he wanted to draw his pension in India. He had,
therefore, been wrongly sanctioned pension under a mistaken
belief that he was entitled to his pension in sterling. In
fact according to the counter-affidavit the pension cases of
all these four Judges were under the consideration of the
Government. These instances not being similar do not afford
any assistance in the present case. Even the instance of
Shri Harish Chandra is distinguishable. There is thus no
question of any hostile discrimination and the plea on the
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basis of violation of Art. 14 of the Constitution being
misconceived is unacceptable. Shri Narasimham retired in
1968, when the Parliament had by the 1954 Act already
determined his right in respect of pension by converting the
pounds sterling into rupees at the prevailing rate. He also
elected to receive pension under Part I of the First
Schedule of the 1954 Act and not under Part II.
The use of the singular in the Proviso in Art. 221(2) of the
Constitution relied upon by Shri Narasimham is, in our
opinion, of no particular significance. It does not change
the plain meaning of the Proviso which, in our view, does
not entitle the present Chief Justices to claim payment of
pensions on conversion of the pound into rupees at the
current rate of exchange prevailing at the time of payment.
Shri Narasimham in his second set of written arguments has
prayed for a further opportunity of addressing oral
arguments. In our opinion, he has already had more than
ample opportunity of stating and developing his arguments
and there is no cogent ground for allowing him any further
opportunity of oral address.
Shri Desai has in his written arguments, it may incidentally
be pointed out, claimed that pension, unlike salary, is
earned at once, each instalment being only a part of the
whole pension. On this basis he claimed that the 1954 Act
gave him unfavourable terms by substituting unstable
currency like the rupee for the more stable currency like
the pound sterling. According to him the rate prevailing at
the time when the pension was converted into rupees by the
Parliament is also irrelevant as his pension had not fallen
due to him at that time. The argument is without merit.
Shri Desai retired in February, 1966 when the Parliament had
already validly fixed his pension in rupees : he also
elected to receive pension according to Part I of the First
Schedule to the 1954 Act. He further got his pension
commuted in July, 1966 at the rate determined under the 1954
Act after the devaluation of the rupee. In these
circumstances it is difficult to appreciate what right he
has now, to ask for pension being paid to him by converting
pound sterling into rupees at the current rate of exchange.
The bald assertion unsupported by any cogent material,
799
that pound sterling is intrinsically a more stable currency
than rupee, apart from being wholly unacceptable, has no
relevance, when we find that pension expressed in sterling
was validly converted into rupees by the Parliament for
payment to the Chief Justices and Judges of the High Courts
at a uniform rate.
After the judgment was ready the office of this Court
circulated to us copies of Shri Narasimham’s application
(C.M.P. No. 4457 of 1972 in his Writ Petition No. 630 of
1970) dated July 12, 1972 praying that in view of the
changed circumstances, this ’Court may permit him to
withdraw his writ petition and that the parties be directed
to bear their own costs. The change in the circumstances
necessitating the withdrawal of the writ petition has not
been stated in the application.
As all the three cases were heard together and on behalf of
Shri Desai the arguments addressed in the other two cases
were adopted by his counsel all the points of law raised in
all the three cases have to be decided by this Court. It is
accordingly not necessary to delete any part of the decision
from the judgment. All that we need say is that Shri
Narasimham is allowed to withdraw his writ petition and that
the same is dismissed as withdrawn without any order as to
costs.
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There is also another fact which requires notice. Shri B,
Malik has after the judgment was ready, sent to us
individually by registered post additional written arguments
in his case (C.A. No. 2065 of 1970) with a covering letter
dated July 7, 1972 stating that he had been informed that
this Court had directed his appeal and other connected cases
to be listed for further hearing after the re-opening of the
Court and that this Court had also directed written
arguments to be filed. We do not think that Shri Malik has
been correctly informed. Sending arguments to the Judges by
post also seems to us to be irregular and contrary to the
practice and procedure of this Court. A proper application
seeking permission to file additional arguments should have
been filed in Court in accordance with rules. However, as
almost all the points raised in his fresh arguments have
already been dealt with in the judgment we need say nothing
more in this connection.
The final result is that W.P. No. 630 of 1970 is allowed to
be withdrawn and is accordingly dismissed as withdrawn but
without any order as to costs. The other two appeals (C.As.
800
Nos. 2065 and 2165 of 1970) fail and are also dismissed on
the merits but without costs.
S.B.W. Writ Petition and Appeals
dismissed.
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