Full Judgment Text
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PETITIONER:
M.L. JAIN
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT22/01/1991
BENCH:
MISRA, RANGNATH (CJ)
BENCH:
MISRA, RANGNATH (CJ)
KANIA, M.H.
CITATION:
1991 AIR 928 1991 SCR (1) 98
1991 SCC (1) 644 JT 1991 (5) 133
1991 SCALE (1)64
ACT:
The High Court Judges (Conditions of service) Act,
1954--First Schedule Part III Para 2(b)--Ceiling on
additional pension of Judges--Held ultra vires.
HEADNOTE:
Petitioner was a member of the state Judicial Service
and was elevated as a Judge of the High Court on 1.7.1975,
and was later transferred to another High Court where he
retire on 21.7.1984. A dispute relating to pension was
disposed of by this Court on 9.4.1985 fixing it at
Rs.21,500 per annum. Meanwhile, the High Court Judges
(Conditions of Services) Act,1954 was amended by Central
Acts 38/86 and 20/88, and he applied under the said
Amending Acts asking for benefits there-under, and this
Court refixed the petitioner’s pension at Rs.41,600 per
annum w.e.f 1.1.1986 and at Rs. 46,100 per annum w.e.f.
1.11.1986.
In an interlocutory petition the petitioner
challenged the ceiling on additional pension appearing in
clause (h) of paragraph 2 of Part III of the First Schedule
to the High Court Judges (Conditions of Service) Act 1954.
Allowing the petition, this Court,
HELD: 1. There was no justification to introduce a
further ceiling of Rs.8,000 per annum irrespective of the
years of completed service rendered and allow a
discrimination operate. Once the proviso has a limit
which meets the purpose there is no basis for the further
limit of Rs 8,000. [101A}
2. The ceiling of Rs. 8,000 is not necessary to be
imposed and if that is applied, a situation giving rise to
the application of Article 14 of the Constitution does
arise. [101E]
3. Fixing the pension at Rs. 48,000 per annum held
that the ceiling in paragraph 2(b) of Part III of the First
Schedule is unsustainable under Article 14 of the
Constitution and would not be operative. [101F]
JUDGMENT:
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ORIGINAL JURISDICTION: Interlocutory Application No. 1
of 1989.
IN
W.P. No. 16093 of 1984 etc.
(Under Article 32 of the Constitution of India).
S.M. Jain, S.K. Jain, Ms. Pratibha Jain and Pradeep
Agarwal for the petitioner.
Arun Jaitly, Additional Solicitor General, Kailash
Vasdev and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered:
Petitioner was a member of the Rajasthan Judicial
Service and was elevated as a Judge of the Rajasthan High
Court on July 1, 1975. He was transferred to the Delhi High
Court from where he retired on July 21, 1984. A dispute
relating to his pension became the subject-matter of a writ
petition before this Court and was disposed of on April 9,
1985 (1985 2 SCC 355). This Court fixed his pension at Rs.
21,500 per annum.
In the meantime, certain changes in the High Court
Judges (Conditions of Service) Act,1954, were brought about,
firstly, by Central Act 38/86 and again by Central Act
20/88. Petitioner applied to this Court in Civil
Miscellaneous Petition No. 18044/88 asking for benefits
under the Amending Act. This Court by its decision on
August 18, 1988, refixed petitioner’s pension at Rs. 41,600
per annum with effect from January 1, 1986, and at Rs.
46,100 per annum with effect from November 1,1986, keeping
the two amendments referred to above in view (1988 4 SCC
121). In paragraph 19 of this Court’s order, it was stated:
"We refrain from expressing any opinion as to the
effect of lifting of the ceiling on the special
additional pension at Rs. 8,000 per annum placed
by clause (b) of paragraph 2 of Part III of the
First Schedule. The question really does not arise
for our consideration at the moment and is left
open."
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The petitioner has now applied to this Court
challenging the ceiling on additional pension appearing
in clause (b) of paragraph 2 of Part III of the first
Schedule to the High Court Judges (Conditions of Service)
Act of 1954. The First Schedule Deals with pension of
Judges. Judges in High Court are recruited from three
sources:
(a) from the Bar;
(b) Members belonging to the former Indian Civil
Service; and
(c) Officers of the State Judicial Service.
In this case we are concerned with Part III as petitioner
had been elevated as a Judge of High Court from the
Rajasthan State Judicial Service. In respect of such a
Judge the pension payable is prescribed to be:
"(a) the pension to which he is entitled under
the ordinary rules of his service if he had not
been appointed a Judge, his service as a Judge
being treated as service therein for the purpose
of calculating that pension; and
(b) a special additional pension or Rs.1,600 per
annum in respect of each completed year of service
for pension,but in no case such additional pension
together with the additional or special pension,
if any, to which he is entitled under the ordinary
rule of his service exceed Rs.8,000 per annum.
Provided that the pension under clause (a)
and additional pension under clause (b) together
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shall in no case exceed Rs.54,000 per annum in
the case of a Chief Justice and Rs. 48,000 per
annum in case of any other Judge."
Since this Court had fixed the pension at Rs. 46,100 and
petitioner’s claim for being put at par with other
Judges by fixing his pension at Rs. 48,000 per annum had
not been accepted, petitioner has approached this Court
challenging the ceiling of Rs. 8,000. According to the
petitioner, he had put in nine years of completed service as
a Judge and on the basis of the provision for special
additional pension of Rs. 1,600 per annum in respect of
each completed year of service for pension he was entitled
to Rs.14,400 but the limit in the proviso would have the
effect of fixing ceiling at Rs. 48,000 per annum. There
was no
justification to introduce a further ceiling of Rs. 8,000
per annum irrespective of the years of completed service
rendered and allow a discrimination to operate. Once the
proviso has a limit which meets the purpose there is no
basis for the further limit of Rs. 8,000 as contained in
paragraph (2) above.
The counter-affidavit filed on behalf of the Ministry
of Law and Justice sought to justify the limit by referring
to cases of Central Civil Service Officers retiring as
Secretaries to Government where full credit was not being
given for the entire period of service rendered and aceiling
was fixed. Such a ceiling actually is fixed in respect of
all the three situations covered by the First Schedule.
A Member of the Bar with 14 years of completed service out
of which six years are served as a Chief Justice or as a
Judge of the Supreme Court gets the maximum pension of Rs.
54,000 and in the event of his retirement without becoming
Chief Justice or a Judge of the Supreme Court, his pension
entitlement is Rs. 48,000 per annum. Similar is the
provision relating to the members of the Indian Civil
Service who were earlier elevated as Judges. It is the
contention of the petitioner that once a ceiling limit was
fixed as contained in the proviso of the Third Part, there
was no further justification for the Paragraph 2(b) ceiling.
We find full force in the submission. The reasons which
weighed with this Court on the earlier occasion for
enhancing the petitioner’s pension fully apply to the
present aspect. The ceiling of Rs. 8,000, therefore, is
not necessary to be imposed and if that is applied, a
situation giving rise to the application of Art. 14 of the
Constitution does arise. In fact, the presence of the
proviso clearly brings out the intention that no
sought to be made between Judges recruited from the
different sources for the matter of the ceiling on pension.
We, therefore, modify the order of this Court fixing
petitioner’s pension at Rs. 46,100 and require his pension
to be fixed at Rs. 48,000 per annum by holding that the
ceiling in paragraph 2(b) of Part III of the First Schedule
is unsustainable under Art. 14 of the Constitution and would
not be operative. We direct that petitioner’s pension from
November 1, 1986, shall be fixed at Rs. 48,000 a year.
We would make it clear that as we have held that
paragraph 2(b) is ultra-vires, it will follow that all cases
to which the present situation applied should be revised by
the Union of India without requiring representations or
applications from the retired Judges concerned.
There would be no order as to costs.
V.P.R. Petition allowed.
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