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IN THE HIGH COURT OF ALLAHABAD
B. N. SAPRU, A. N. SHUMAN SINGH
DEOKI NANDAN AGARWALA - Appellant
Versus
UNION OF INDIA - Respondents
C. M. W. P. 20328 Of 1986
Decided On : 03/15/1988
HIGH COURT JUDGES (CONDITIONS OF SERVICE) ACT, 1954 - SECTION 16 - POWER OF PRESIDENT TO ADD TO THE SERVICE FOR PENSION - SECTION 17A - FAMILY PENSION AND GRATUITIES - CONSTITUTION OF INDIA, ART. 221(2) - PROVISO - VARIATION OF PENSION TO THE DISADVANTAGE OF A JUDGE AFTER HIS APPOINTMENT - INTERPRETATION OF STATUTES - READING DOWN OF UNCONSTITUTIONAL PROVISIONS - DISCRIMINATION AMONG JUDGES BASED ON DATE OF RETIREMENT - RATIONALITY OF CLASSIFICATION - UNIFORMITY OF PENSION BENEFITS FOR JUDGES - ENHANCEMENT OF PENSION AND FAMILY PENSION - APPLICABILITY TO JUDGES WHO RETIRED BEFORE THE AMENDMENT.
Fact of the Case:
Sri Deoki Nandan Agarwala, a Senior Advocate, was appointed as a permanent Judge of the Allahabad High Court and retired on 4-10-1983 after serving for 5 years 10 months and 17 days. He elected to receive his pension under Paragraph 9 of Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954, as amended, and was granted a pension of Rs. 8,400 per annum with effect from 4-10-1983. He contended that he should have been granted a pension of Rs. 9,600 per annum by adding one month and 13 days to his service under Section 16 of the Act.
Finding of the Court:
The Court held that the requirement of a proposal from the High Court concerned with the approval of the Chief Justice of the High Court for granting the benefit of Section 16 of the Act to a Judge was unwarranted and that the Department of Justice had no authority to reject the claim for giving the benefit of Section 16 extraneous to the provisions of the Act. The Court further held that the power of the President of India under Section 16 of the Act is discretionary but not an arbitrary power and that the reason for denial of the benefit, which was extraneous and unsupported by the provisions of the Act, was not valid. The Court also held that the fixation of a minimum pension for the Judges has a rational basis but that such fixation should not lead to discrimination amongst the Judges who would earn more than the minimum pension if pension for them is calculated according to the rates prescribed for the other Judges who have put in more than seven years of service.
Issues: 1. Whether the requirement of a proposal from the High Court concerned with the approval of the Chief Justice of the High Court for granting the benefit of Section 16 of the Act to a Judge was valid? 2. Whether the Department of Justice had the authority to reject the claim for giving the benefit of Section 16 of the Act to a Judge extraneous to the provisions of the Act? 3. Whether the power of the President of India under Section 16 of the Act is discretionary or arbitrary? 4. Whether the reason for denial of the benefit under Section 16 of the Act, which was extraneous and unsupported by the provisions of the Act, was valid? 5. Whether the fixation of a minimum pension for the Judges has a rational basis? 6. Whether such fixation should lead to discrimination amongst the Judges who would earn more than the minimum pension if pension for them is calculated according to the rates prescribed for the other Judges who have put in more than seven years of service?
Ratio Decidendi: 1. The requirement of a proposal from the High Court concerned with the approval of the Chief Justice of the High Court for granting the benefit of Section 16 of the Act to a Judge is unwarranted and the Department of Justice has no authority to reject the claim for giving the benefit of Section 16 extraneous to the provisions of the Act. 2. The power of the President of India under Section 16 of the Act is discretionary but not an arbitrary power and the reason for denial of the benefit, which is extraneous and unsupported by the provisions of the Act, is not valid. 3. The fixation of a minimum pension for the Judges has a rational basis but such fixation should not lead to discrimination amongst the Judges who would earn more than the minimum pension if pension for them is calculated according to the rates prescribed for the other Judges who have put in more than seven years of service.
Final Decision: The Court allowed the writ petition and directed the respondent to add one month and 13 days to the total length of service rendered by Sri Deoki Nandan Agarwala as a Judge of Allahabad High Court for the purposes of computing the pension under Section 16 of the High Court Judge (Conditions of Service) Act, 1954; grant pension to Sri Deoki Nandan Agarwala at the rate of Rs. 9,600-00 per annum from 4-10-1983 to 31-10-1986 and at the rate of Rs. 20,580-00 per annum from 1-11-1986 onwards, plus the usual dearness allowance admissible to him from time to time treating him that he had put in six years of service as Judge; determine the family pension payable under Section 17a of the High Court Judges (Conditions of Service) Act, 1954, admissible to the wife of Sri Deoki Nandan Agarwala in the event of his death treating the pension of Sri Deoki nandan Agarwala at Rs. 20,580-00 as of date; pay Sri Deoki Nandan Agarwala the difference between the pension which he had been paid and the enhanced pension to which he is entitled under the terms of this order within two months of the presentation of a certified copy of this order before the Secretary the Government of India, Ministry of Law and Justice, Department of Justice, North Block, New Delhi; and re-determine the death-cum-retirement gratuity payable to Sri Deoki Nandan Agarwal treating, his pension as being Rs. 9,600 per annum on the date of his retirement and, if necessary, to re-calculate the pension equivalent to death cum-retirement gratuity.
( 1 ) SRI Deoki Nandan Agarwala who was a Senior Advocate, was appointed a permanent Judge of the Allahabad High Court and assumed office on 17-11-1977. He retired on 4-10-1983 on attaining the age of 62 years.
( 2 ) THE Deputy Accountant-General (Pension) of the Office of the Accountant-General III (U. P.) Allahabad by his letter No. P. RS/i/214246/83-84/1980 Dt. 2-12-1983 (Annexure-1 to the writ petition) addressed to the Secretary to the Government, Ministry of Law and Justice, Department of Justice, North Block, New Delhi, calculated that he had put in service as a Judge of the Allahabad High Court for a period of 5 years 10 months and 17 days. The letter added that Sri Agarwala had elected to receive his pension under Paragraph 9 of Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954, (hereinafter to be referred to as the Act) as amended from time to time. The pension was calculated at Rs. 8,400-00 per annum with effect from 4-10-1983. It was further calculated that the family pension in the event of his death earlier than his wife, would be Rs. 250-00 pee month subject to the usual conditions.
( 3 ) IN this writ petition, Sri Agarwala contends that he should have been granted a pension of Rs. 9,600-00 per annum at the rate of Rs. 1,600-00 for every year of completed service and in calculating the figure of Rs. 9,600-00, he claims that he is entitled to the benefit of S. 16 of the Act under which it is provided that the President of India may for special reasons add any period not exceeding three months to the service for pension of a Judge.
( 4 ) S. 16 of the Act runs as follows :-"16. POWER OF PRESIDENT TO ADD TO THE SERVICE FOR PENSION : the President of India may for special reasons direct that any period not exceeding three months shall be added to the service for pension of a Judge : provided that the period so added shall be disregarded in calculating any additional pension under Part I or Part II or Part III of the First Schedule. "
( 5 ) WE are not concerned with the proviso to the Section.
( 6 ) WHEN the writ petition was taken up for admission, this Court by its order dated 11-12-1986 asked Sri Agarwala to make a representation to the Central Government. A representation was made by Sri Agarwala. A reply has been received to the representation made by Sri Agarwala from Sri J. S. Badhan, Joint Secretary, Government of India, Ministry of Law and Justice (Department of Justice) North Block, New Delhi by his letter No. 24/57/86-JUS Dated 16-4-1987 (Annexure-3 to the supplementary affidavit) filed by Sri Agarwala. It was stated that it had been decided that -" (I) Addition of any period up to three months is allowed by this Department under S. 16 of the High Court Judges (Conditions of Service) Act 1954, on the basis of a proposal duly forwarded by the High Court concerned with the approval of Chief Justice of that High Court. No such proposal had been received from the Allahabad High Court in your case prior to the date of your retirement. Now, after more than three years of retirement, it is not possible for this Department to allow such addition. (ii) In view of (i), your pension cannot be calculated for complete six years with effect from 04-10-1983 and 01-11-1986 respectively. However, the matter regarding further revision of pension as per the amended Act of 1986 in the case of those who retired prior to 01-11-1986 is under consideration. "this letter also adds that, in view of what as stated in para (ii), the family pension, also could not be revised.
( 7 ) TAKING up the latter part of the claim of Sri Agarwala for being given the benefit of S. 16 of the Act, first, the reason for denying him the benefit of S. 16 of the Act have been stated in the letter filed as Annexure-3 to the Supplement Affidavit. In addition, in the counter-affidavit filed by Sri Babu Lal, under Secretary, Department of Justice, Ministry of Law and Justice, Government of India. it is st
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