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1997(4) Supreme 329
SUPREME COURT OF INDIA
K. Ramaswamy, G.T. Nanavati and K. Venkataswami, JJ.
State of Punjab -Appellant
versus
Justice S.S. Dewan (Retired Chief Justice) & Ors. -Respondents
Civil Appeal No. 506 of 1992
Decided on 25-4-1997
Counsel for the Parties :
For the Appellant : Manoj Swarup, Advocate (N/P).
For the Respondent : K.C. Dua, Advocate.
Held : What has been done by amending Rule 16 is to make the period to practice at the Bar, which was otherwise irrelevant for determining the qualifying service, also relevant for that purpose. It is a new concept and a new retiral benefit. The object of the amendment does not appear to be to go for liberalisation. The purpose for which it appears to have been made is to make it more attractive for those who are already in service so that they may not leave it and for new entrants so that they may betempted to join it. Though Rule 16 does not specifically state that the amended rule will apply only to those who retired after 22.2.90, the intention behind it clearly appears to be to extend the new benefit to those only who retired after that date. For these reasons the principle laid down in D.S. Nakara s case (supra) that if pensioners form a class computation of their pension cannot be by different formula affording unequal treatment merely on the ground that some retired eaelier and some retired later, will have no application to a case of this type. Therefore, on both the grounds the High Court was in error in applying the ratio of the decision in D.S. Nakara s case (supra) to this case. As rigtly contended on behalf of the Stae, benefit of the amendment wouldbe available to only those direct recruits who retiredafter it has come into force. (Para 8)
JUDGMENT
Nanavati, J.-The respondent who retired as the Chief Justice of the High Court of Punjab and Haryana on 31.12.89 was enrolled as an advocate on 27.1.59, appointed as District and Sessions Judge on 20.11.68 and then as a Judge and the Chief Justice of Punjab and Haryana High Court on 14.12.77 and 4.10.89 repectively. On his retirement he elected for computation of his pension under Part III of the Ist Schedule to the High Court Judges (Conditions of Service) Act, 1954. According to the provisions contained in Part III, pension of the Judge has to be determined in accordance with the rules of his service. The rules which applied to his are the Punjab Superior Judicial Service Rules, 1963. His pension was, therefore, fixed in accordance with the said rules. On 20.2.90, Rule 16 of the said Rules was amended by the Government of Punjab and it was provided that in case of a direct recruit to the Punjab superior Judicial Service the actual period of practice at the bar not exeeding 10 years shall be added to his service qualifying for superannuation pension and other retirement benefits. In view of this amendment the respondent claimed that being a direct recruit to the punjab Superior Judicial Service he was entitled to additiona of actual period of practice at the bar not exceeding 10 years to his qualifying service and, therefore, his pension and other retirement benefits have to be refixed. The High Court, in its turn, wrote to the Accountant General on 5.6.90 for refixation of his benefit of the amendment. The Accountant general, it appears, was not inclined to agree with this claim and, therefore, referred the matter to the State Government for correct interpretation of the rule. On 25.2.91 the State Government decided that the notificaiton dated 22.2.90 has only prospective effect and, therefore, benefit of the amended Rule 16 cannot be given to the respondent. He, therefore, filed a writ petition in the high Court inter alia praying that the Union of India and the State Government be directed to given benefit of the amended Rule 16 of him and to compute his pension afresh in accordance with the said provision. The stand taken by the Under of India was that it was not really concerned with the subject-matter of the petition and that it pertained to the State of Punjab. The State contended that the amended rule applies to those only who retired after 22.2.90.
2. The learned Single Judge following the judgment of this Court in D.S. Nakara and Others v. Union of India1, held that all retired judges irrespective of the date of retirement constitute one class and the benefits available under the amended rule cannot be confined to the judges who retired after the amendment. He, therefore found the action of the State of Punjab as illegal, allowed the petition and directed the State of Punjab to refix pension of the respondent inaccordance with the amended rule with effect from 22.2.90 and to pay the arrears with interest at the rate of 18 per cent per annum. The State of Punjab filed a letters patent appeal. The Division bench of the High Court dismissed it with a clarification that the prayer being retricted only to pension and not to other retirement benefits, the order passed by the learned Single Judge should be read a sconfined to grant of pension only. The State has, therefre, filed this appeal.
3. The only controversy in this appeal is whether the High Corut was right in directing refixation of pension of the respondent in accordance with amended Rule 16. The respondent, having retired as a Judge of a High Court and having elected to receive pension payable under Part III of the First Schedule to the Act his entitlement was as provided in paragraph 2 of that Schedule, which reads as under :
"2. The pension payable to such a Judge shall 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 Serv
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