Judgment

CHINNAPPA REDDY, J.:- On November 20, 1984 this writ petition was heard along with Writ Petition No. 13243 of 1983 (reported in AIR 1984 SC 1247) (J.P. Chaturvedi v. Union of India). Shri J. P. Chaturvedis petition was allowed, by consent of the learned Attorney General who appeared for the Union of India. Shri M. L. Jains petition was allowed on the same lines under the impression that the facts involved were the same. It has now been brought to our notice by the Registry that there is considerable, difference in the prayers in the two cases. We have, therefore, recalled our earlier order in Shri M. L. Jains case and examined his case afresh.

2. Shri M. L. Jain was a member of the Rajasthan Judiciary from September 31, 1945 onwards till July 1, 1975 during which period he was a District and, Sessions Judge, from November 9, 1970 to July 1, 1975. Thereafter he was elevated as a Judge of the High Court on July 1, 1975. He retired as a Judge of the High Court on July 21, 1984. Had he not been appointed a Judge of the High Court, he would have retired as District and Sessions Judge on July 31, 1977. His total period of service as a Judicial Officer, otherwise than as a Judge of the High Court was 29 years, 9 months and one day while his service as a Judge of the High Court was a period of 9 years and 21 days.

3. When he was appointed a Judge of the High Court he appears to have opted, for the purpose of his pension, for Part III of the Ist. Schedule to the High Court Judges (Conditions of Service). Act, 1954. Paragraph two of Part III of the Ist Schedule is as follows: -

"The pension payable to such 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 service therein for the purpose of calculating that pension; and (b) a special additional pension of Rs. 700/- 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 rules of his service, shall exceed Rs. 3,500 per annum."

According to the calculation made by the respondent, Shri M. L. Jain was entitled to a pension of Rs. 15,320/- per annum only. This figure was arrived at on the basis that had he continued as a District and Sessions Judge he would have retired on July 31, 1977 and his average monthly emoluments during the period, October 1, 1976 to July 31,1977, would be Rs. 2,500/- per month as that was the pay he would have drawn as a District Judge had he continued as a Districe Judge and retired on July 31, 1977. On that basis his pension was calculated at Rs. 11,820/- per annum, under Cl. (a) of Para 2 of the First Schedule read with the Rajasthan Rules and to that figure, was added the additional pension of Rs. 3,500/- per year under Cl. (b) of Para 2 of Schedule I. His total pension was thus determined at Rs. 15,320/- per annum.

4. The calculation made under Cl. (a) of Paragraph 2 of the First Schedule was apparently done pursuant to the letter dated September 19, 1984 from the Ministry of Law, Justice and Company Affairs addressed to all Accountants General. Paragraph 2 of the letter is as follows

"The question as to what should be taken into account for calculation of pension in terms of para 2(a) mentioned above, has been examined. After careful consideration of the matter, it has been decided that ..................

(i) The service as Judge of the High Court will count towards qualifying service for pension in his parent service or post.

(ii) pay for the purpose for calculating, pension under para 2(a) shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in his parent Department, preceding the date on which he was elevated as a Judge of the High Court, including annual increments, if any, which he would have drawn up to the date of his superannuation