The main legal point established in the judgment is that the calculation of a retired High Court Judge's pension should be based on the last drawn emoluments, and the ceiling on the special additional pension under the High Court Judges (Conditions of Service) Act, 1954 is unconstitutional.

JUDGMENT:

RAVEENDRAN, J.

These appeals by special leave are filed against the judgment dated 10.7.1997 in Writ Appeal No.804 of 1992 and the order dated 10.11.1997 in Review Petition No.299/1997 passed by a Division Bench of the Kerala High Court.

2.The appellant entered the Kerala Higher Judicial Service as a directly recruited District & Sessions Judge and was later elevated as a Judge of the Kerala High Court in the year 1972. He retired on 31.7.1980 with 23 years of pensionable service which included 8 years of service as a Judge of the High Court. At the time of his retirement, the appellant was in receipt of a total emolument of Rs.4,237/- comprising Basic Pay of Rs.3,500/-, Dearness Allowance of Rs.437/- and Special Allowance of Rs.300/-.

3.The pension payable to High Court Judges is governed by Chapter III of the High Court Judges (Conditions of Service) Act, 1954 (for short the Act). Clause (b) of sub-section (1) of section 15 provides that every Judge who was not a member of the Indian Civil Service but has held any other pensionable post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule. The proviso thereto and sub-section (2) require such Judge to exercise certain options. The appellant was governed by Part III of the First Schedule to the Act as he did not opt for pension under Part I of that Schedule. Part III of the First Schedule is extracted below :

"1.The provisions of this Part apply to a Judge who has held any pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I.

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 service therein for the purpose of calculating that pension; and

(b)a special additional pension of 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 rules of his service, shall exceed Rs.8,000 per annum.

Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge."

(Note : The special additional pension was Rs.700/- per annum and the ceiling was Rs.3500/- per annum under clause (b) and these were substituted as Rs.1600/- and Rs.8000/- respectively with effect from 1.11.1986)

The pension payable to the appellant was fixed at Rs.17,300/- per annum (comprised of Rs.13,800/- as ordinary pension and Rs.3,500/- as special additional pension).

4.The Government of India vide Official Memorandum dated 16.4.1987 rationalised the pension structure of the employees who retired prior to .1.1986. Clause 4.1 thereof provided for additional relief for existing pensioners. Clause 5 provided for calculation of pension at 50% of average emoluments in the case of pensioners whose pension was calculated under the slab formula. Clause 6.1 related to consolidation of pension and provided that the pension of existing pensioners will be consolidated with effect from 1.1.1986 by adding together (a) the existing pension, (b) the existing dearness relief and (c) the additional benefits accruing from Paras 4 and 5 of the said O. M. dated 16.4.1987. The said O. M. was not applicable to retired High Court Judges whose pension was governed by separate rules/orders and stated that necessary orders will be issued in their cases by the respective authorities.

5.By Circular dated 18.12.1987, the Government of India notified the Accountant Generals of all States that the ordinary pension admissible to High Court Judges u