Patna High Court
Syed Sarwar Ali vs Union Of India (Uoi) And Ors. on 26 June, 1990
Equivalent citations: 1990(38)BLJR1058
JUDGMENT S.B. Sanyal, J.
1. Will the ceiling on pension that of a puisne Judge or that of a Chief Justice be attracted to a Judge of a High Court who has served as an Acting Chief Justice for two completed years of service is the bottom line question in this writ petition.
2. This writ petition has come on reference to me because of divergent opinions expressed by a Division Bench of this Court.
FACTS
3. The petitioner retired as a puisne Judge of the Patna High Court on 8-9-1984 after fourteen years of service. The Accountant-General, Bihar, Patna calculated his pension at the rate of Rs. 1600 per annum for twelve completed years of service as a High Court Judge and at the rate of Rs. 2400 per annum for two completed years of service as an Acting Chief Justice of a High Court:
(a) Rs. 1600.00 X 12 = Rs. 19,200,00
(b) Rs. 2400-00 X 2 = Rs 4,800,00
_____________
Rs. 24.000-00
But allowed him maximum pension of Rs. 22,400-00 per annum by applying the ceiling on pension applicable to a puisne Judge. The ceiling on pension of a Chief Justice at that time was Rs. 28,000/-, which was claimed by the petitioner.
4. The Accountant General as per the decision of the Supreme Court in writ petition Nor. 502 and 784 of 1987, extended the benefit of the Amendment Act 38 of 1986 to the petitioner by which pension of Judges was enhanced, namely,-
(a) Pension at the rate of Rs. 3,430-00 per annum for twelve completed, years of service, as a Judge, and
(b) Pension at the rate of Rs. 4,500-00 per annum for two completed years of service as an Acting Chief Justice of a High Court: -
Rs. 3,430-00 x 12 = Rs. 41,160,00
Rs. 4,500-00 X 2 = Rs. 9,000,00
_____________
Rs. 50,160,00
But allowed him only Rs, 8,000.00 per annum, the ceiling on pension applicable to a puisne Judge. The petitioner claimed that his pension should have been fixed at Rs. 50,160-00, being within the ceiling limit of a Chief Justice, which under Act 38 of 1986, is Rs. 24,000/- per annum.
5. The petitioner filed a representation, which is Annexure 2 to the writ petition, contending that he is entitled to the ceiling applicable to a Chief Justice in the matter of fixation of pension, since, for the purpose of pensionary benefits, there is no difference between an Acting Chief Justice appointed under Article 223 of the Constitution of India and that of a Chief Justice appointed under Article 21? of the Constitution of India.
6. In the counter affidavit, the respondent Union of India, inter alia, stated that since the petitioner belonged to Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954, he has been subjected to over all eeiling on pension as applicable to the case of a puisne Judge because "the status of the petitioner as on the date of retirement was that of a Judge, and not of the Chief Justice and, therefore, his pension was correctly fixed". A letter of the Deputy Accountant General, Bihar, Patna, to the Ministry of Law and Justice has been annexed as Annexure "B" to the counter-affidavit, referring the claim made by the petitioner in his representation for orders, in which it was stated as follows:
... While fixing his pension the rate of pension admissible to a Chief Justice was taken into consideration but the total amount of pension was limited to Rs, 22,400 (the ceiling fixed for the Judge of a High Court) as he retired as a Judge.
(Emphasis added) The Ministry of Law and Justice by letter dated 19th July, 1988, addressed to the petitioner (Annexure C) rejected the representation of the petitioner saying that his pension has been rightly calculated.
7. It may be remembered here that Article 221 of the Constitution of India directs that till such time Parliament by law determines, a Judge shall be entitled to salary, pension, allowance, etc. as per Second Schedule of the Constitution. Clause 10, Part D, of the Second Schedule provided for the salary and other benefits Clause 11 states "In this part, the expression 'Chief Justice' includes Acting Chief Justice and a 'Judge' includes an ad hoc Judge".
8. The High Court Judges (Conditions of Service) Act, 1954, (to be referred to as the 'Act') was enacted pursuant to Article 221(2) of the Constitution of India to determine the rights in respect of leave of absence, pension and certain other subsidiary service conditions of Judges of a High Court. This Act has been amended from time to time. Section 2(a) of the Act defines "Acting Chief Justice to mean 'a Judge appointed under Article 223 of the Constitution to perform the duties of the Chief Justice", and Section 2(g) of the Act defines "Judge" to mean "a Judge of a High Court and includes the Chief Justice, an Acting Chief Justice, an additional Judge and an acting Judge of the High Court". Section 14 of Chapter HI of the said Act deals with pension. It provides pension payable to a Judge in accordance with the scale and provisions in Part I of the First Schedule of the Act.
9. First Schedule of Part T of the High Court Judges (Conditions of Services Act, 1954, as amended by Act, 35 of 1V76, applicable to a Judge elevated from the Bar, and retired on or after 1st of October, 1974 and who was not a member of the Indian Civil Services and has not held any other pensionary post or having held such post ejected to receive pension under this Part, is as follows:
Paragraph 2. Subject to the other provisions of this Part the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be-
(emphasis added)
(a) for service as Chief Justice in any High Court, Rs. 2400 per annum, and
(b) for service as any other Judge in any High Court. Rs. 1600/- per annum Provided that the pension shall in no case exceed Rs. 28000/- per annum in the case of a Chief Justice and Rs. 22,400 per annum in the case of any other Judge".
Paragraphs 3 to 5 omitted.
Paragraph 6. A Judge who has rendered service for pension in both the grades may claim that any period of service of less than a completed year rendered by him in the higher grade or any portion of any such period, shall be treated for the purposes of Paragraph 2 as service rendered by him in the lower grade.
Paragraph 7 for the purposes of this part, service as an Acting Chief Justice of a High Court or an ad hoc Judge of the Supreme Court shall be treated as though it were service rendered as Chief Justice of a High Court.
(emphasis added) Paragraph 8 Notwithstanding anything contained in the foregoing provisions of this Part, the pension payable to a Judge who has completed fourteen years of service for pension, including not less than six years of service as Chief Justice of the (sic) or more of the High Courts, shall be Rs. 28,000 per annum.
Paragraph 9 deals with Judges who retired after 26th January, 1950, without being eligible for pension with which we are not concerned).
10. Amendment Act 38 of 1986 while maintaining the same provisions, enhanced the ceiling on pension of the Chief Justice from Rs. 28,000/- per annum to Rs. 54,000/- per annum and that of a puisne Judge from Rs. 22,400-00 to Rs. 48,000 per annum. Similarly, for each completed year of service, a puisne Judge was allowed Rs. 3,430-00 per annum and Chief Justice Rs. 4,500-00 per annum. It also substituted the figure Rs. 54,000/- in paragraph 8, instead of Rs. 28,000/-.
11. The two Hon'ble Judges of this Court concluded differently in interpreting those paragraphs of the First Schedule of the Act. According to Uday Sinha, J.
Clause 7 does create a sort of parity between Acting Chief Justice and Chief Justice but the benefit of Clause 7 will be admissible only to such Judge who have put in fourteen years as a Judge followed by a period of acting Chief Justiceship and the career holding the office of permanent Chief Justice. The benefit of Clause 7 will be admissible only to such Acting Chief Justice who ends up as permanent Chief Justice. If the tenure of a Chief Justice consists of a year and a half as Acting Chief Justice followed by six months of permanent Chief Justiceship the benefit of Clause 7 would be admissible to him. Clause 7 is meant to cover such cases It is not meant to cover cases where in broken periods at some point or the other, a person has held office of Acting Chief Justice and ended up as a puisne Judge. For a Judge retiring as such, the ceiling is prescribed in Clause 2, namely, that the Pension was in no case to exceed Rs. 22,400 in case of any other Judge. The mandate of the law is imperative. The words 'in no case exceed' are clear command of the law. This cannnot be ignored. There may be cases where a puisne Judge may have put in sixteen years of service. If the proviso is to be ignored, he would be entitled to Rs. 25 600/- per annum but that is not permissible because of the proviso which places an embargo on any person receiving more than Rs. 22 400/- That is the reconciliation between Clause 2 and Clause 7 There have been several cases where the tenure of a Chief Justice has been preceded by a period of acting as such. The benefit of Clause 7 would be admissible to such Chief Justices. In my view, therefore the petitioner's service tenure as Acting Chief Justice cannot be equated with that of permanent Chief Justice.
Learned Judge goes on to say further:
Having considered the matter with all the care that it required I am of the view that Clause 7 can be reconciled with Clause 2 of the First Schedule of Part I. Acting merely in terms of Clause 7 would render the proviso to Clause 2 nugatory. That the Courts are not permitted to do. There would be no point in enacting Clause 8 of the 1st Schedule Part I if the provision of Clause 7 was to override the provision to Clause 2. The petitioner's case not falling within the bounds of Clause 8, the contentions urged on behalf of the petitioner are untenable.
12. Hoda, J "on the contrary" observed as follows:
... the Acting Chief Justice is entitled to have his pension calculated for the period he acts as such on the same rate as admissible to Chief Justice (the question of ceiling is not considered at this stage The answer, in my opinion, must be m the affirmative. This view I am inclined to take because paragraph 7 of the said Schedule which has already been quoted above, makes it abundantly clear that for the purposes of computation of pension, service as Acting Chief Justice is to be treated as if it was services as Chief Justice of High Court in calculation of his pension, the petitioner is, there-fore. entitled to have the benefit of higher rate as laid down in paragraph 2(a) of the Schedule. In fact, the Accountant General in Annexure I has accepted this position and the computation is on that basis. But it was because of the proviso that the amount had been limited to Rs. 22,400/- per annum.
The learned Judge further observed:
The object of the statute, in this case, is to make provision for pension taking into account the nature of service rendered-a Chief Justice or an Acting Chief Justice being entitled to a higher pension as compared to any other Judge. The contention of the respondents that pension is dependent on the position held on the date of retirement does not, in my opinion, have a rational relation or nexus with the object sought to be achieved by the Statute. Classification on the suggested basis would be irrational and has no nexus with the object of provision of the law as extracted above. I have, therefore, no hesitation in holding that the classification on the basis of position held on the date of retirement would be arbitrary and discriminatory and, thus, liable to be struck down under Article 14 of the Constitution. But, this extreme position can be avoided by interpreting proviso in the manner already indicated above, It is well settled that where as provision is capable of two interpretations, one which makes it constitutional and the other which makes it unconstitutional, the interpretation which makes it constitutional must be preferred.
Therefore, the learned Judge concluded that the petitioner's pension should be fixed at Rs. 50,160/-.
13. Mr. Aftab Alam, learned Counsel appearing on behalf of the petitioner, contended that the object of paragraph 7 of the First Schedule is to give extended meaning to Chief Justice of a High Court for the purpose of pensionary benefits. Paragraph 8 of the First Schedule, on the other hand, confers some extra benefit to a Judge who has served out of fourteen years, six; years as Chief Justice, by giving him the maximum pension of Rs. 28,000/- even though he earns Rs. 27,200/-. Therefore, paragraph 8 of the First Schedule is not at all relevant for the present dispute. Counsel also prayed that fresh commutation may be allowed to the petitioner with respect to enhanced pension.
14. Mr. Giri, learned standing counsel of Union of India, contended that the material date for the purpose of pension is the date of retirement and the status of the Judge on the said date is a relevant consideration for the purpose of attracting the ceiling on pension of an Acting Chief Justice and/or Chief Justice and/or Puisne Judge. In short he tried to justify the calculation and the limit of pension applied to the petitioner by the Accountant General, Mr. Giri strorgly assailed the prayer for commutation of the enhanced pension, since, according to learned Counsel, commutation can not be allowed with retrospective effect.
15. Mr. Ram Balak Mahto, learned Advocate General, who was asked to assist the Court, submitted that paragraph 2 of Part I of the First Schedule is not in absolute terms, but has been subjected to paragraph 7 of this Part. Therefore, service is an Acting Chief Justice of a High Court will be deemed to be service rendered as a Chief Justice of a High Court. The learned Advocate General further contended that the Accountant General having given the benefit of pension payable to a Chief Justice to the petitioner for the period he was serving as an Acting Chief Justice, there could be no reason why the ceiling fixed for the Chief Justice be not applicable to such a Judge.
16. On a literal construction of the provision of Paragraph 2 of Part I of the First Schedule of Amendment Act 35 of 1976, Chief Justice and Judges who have more than seven years of service at their credit, have been allowed specified sum per annum for fixation of their pension, subject to a maximum of Rs. 29,000/- per annum in the case of Chief Justice and Rs. 22,400/- per annum in the case of any other Judge, subject to other provisions of this Act namely paragraphs 6, 7 and 8.
Paragraph 6 of the First Schedule contemplates if a Judge has rendered service for pension in both the grades, namely, Chief Justice and puisne Judge, any period of service less than a completed year rendered by him in higher grade, i.e., as Chief Justice, shall be treated for the purpose of paragraph 2 of the First Schedule as a service rendered by him in the lower grade, i.e. as a pusine Judge.
Paragraph 7 of the First Schedule envisages that for the purpose of this part (pension of Judges), service as an Acting Chief Justice of a High Court or as an ad hoe Judge of the Supreme Court shall be treated as though it was service rendered as a Chief Justice of a High Court.
17. Paragraph 2 of the First Schedule is not in absolute terms, but has been subjected to paragraph 7 of the First Schedule for the purposes of pension has equated the services rendered by an Acting Chief Justice and Chief Justice. Pension is earned for rendering long and efficient service and, in a sense, deferred portion of the compensation for services rendered and is closely" akin to wages paid in consideration of past services'' See Doge v. Board of Education (1937) 302 US 74. Since eligibility af pension is founded upon post services tendered and the services rendered by the Acting Chief Justice is commanded by the statute to be treated as that of Chief Justice, the Acting Chief Justice must. therefore, receive the same wages and/or compensation for past services which partake the character of pension on his retirement.
18. There appears to be conflict between paragraph 2 and paragraph 7 of the First Schedule requiring reconciliation. In ultimate analysis, all that is required is to read for the words "Chief Justice" in paragraph 2 and its proviso, as per mandate of paragraph 7" Acting Chief Justice of a High Court or as an ad hoc Judge of the Supreme Court'. With great respect none of the Hon'ble Judges have considered the implication of the words, subject to the other provisions of this part" in paragraph 2 and the words ''for the purposes of this part", while interpreting paragraphs 2 and 7 of Part I of the First Schedule of the Act. I find no conflict when paragraphs 2 and 7 are read in literal sense and in proper perspective. For the purpose of pension, it is the nature of service rendered which is relevant and not the mode of appointment. In spite of different modes of appointment during their tenure of office, both render the same service and share the same responsibility. It is, therefore, they drew the same salary during their tenure of office. Why not then pension ?
19. It is for this reason that the Accountant General has calculated the pension payable to the Chief Justice for the acting period, but curiously, the Accountant General stopped half way in giving full effect to paragraph 7 of the First Schedule while considering the ceiling applicable to an Acting Chief Justice. I do not find any words or expression either in paragraph 2 or in paragraph 7 of the First Schedule that for getting maximum pension of Chief Justice, a Judge must end up as a regular Chief Justice, even though he is entitled to the pension of Chief Justice for the period he has served as Acting Chief Justice. The stand of the Union of India appears to be contradictory and conflicting. If a Judge is entitled to the Chief Justices variables per annum for computation of pension during the period he acts as Chief Justice there appears to be no justification denying him the range of maximum pension applicable to Chief Justice if a Judge earns the said sum by remaining Acting Chief Justice. The Parliament has not so provided for in the Statute nor has so intended. The literal grammatical reading of the Statute does not give rise to any absurdity, inconvenience hardship or injustice not conceivable intended nor it leaves the legislative intent nebulous or uncertain so as to remedy it by "reading words in" to avoid repugnancy to good sense. The makers of the Statute have stated in unequivocal and clearest term what they intended, A "creative approach" in the circumstances, in the words of Lord Simond, will be "naked usurption of the legislative function under the thin disguise of interpretation (See Munger and St. Mellows (1951) 2 All Eng Reports 939 (HL).
It is true, as contended by Mr. Girt, that the relevant date of computation of pension is the date of retirement, but I do not agree with him if a person is not an Acting Chief Justice on the day of his retirement, he is deprived of the pensionary benefits admissible to a Chief Justice because for the pensionary benefits, service rendered as Acting Chief Justice will be treated as service rendered by the Chief Justice. Further, even if a person has retired as a puisne Judge, but served as an Acting Chief Justice for at least one completed year, the period he acted as Chief Justice of the High Court is not obliterated.
20. Paragraph 8 of the First Schedule which has been relied upon by Uday Sinha, J. in support of his conclusion, appears to me to be erroneous. It cannot be that only those persons who fulfil the criteria of Paragraph 8 of the First Schedule should get the benefits. There can be innumberable variations where a person during the course of his service, who has worked for some period as a puisne Judge and some period as Chief Justice, earns the maximum pension. Paragraph 8 of the First Schedule nowhere says that the maximum pension is not admissible to others. Paragraph 8. as it stood under the Amendment Act, 35 of 1976, conferred additional benefits to a Judge who has completed fourteen years of completed service, out of which six years of service has been rendered as Chief Justice. According to calculation, even though he earns a sum of Rs. 27,200, he is allowed Rs. 28,000 per annum, This Paragraph, however, has no relevance now after the substitution of Rs. 54,000 for Ks, 28,000 beyond the fact that special benefit conferred Rs. 28,000, beyond the fact that that special benefit conferred under paragraph 8 under the old Amendment ct:S of 1976, stands withdrawn. A Judge who has completed fourteen years of service for pension, including six years of service as a Chief Justice under the present Act, even though earns Rs. 54,000, but to him as well the ceiling of Rs. 54,000 is made applicable. Whether such a measure could affect to the disadvantage of a Judge after his appointment in view of Article 221(2) Proviso of the Constitution is a question, I am not concerned with in this case. It may be true, as contended by Mr. Aftab Alam that the draftsman has mechanically substituted the enhanced figure of pension in paragraph 8 of the First Schedule without appreciating its relevance and constitutionality.
21. Statute relating to pension being a beneficial legislation should receive liberal construction. Even if it is assumed two reasonable constructions are possible, the Court will lean in adopting the interpretation which is in favour of the pensioner. Cases gallore, pensionery and/or a welfare legislation dealing with conditions of service must receive such interpretation which would advance the intendment underlying the Act. The intendment in the instant case is clear from paragraph 7 of the First Schedule, that is, for the purpose of pension, Chief Justice and Acting Chief Justice are equal.
22. For the reasons aforesaid, I hold that an Acting Chief justice, who has at his credit, a completed year of service as such is covered by the ceiling on pension prescribed for the Chief Justice. It has, however, to be a completed year of service in view of paragraph 6, as otherwise, his service rendered as an Acting Chief Justice for less than a year would be reckoned as service rendered a" a puisne Judge.
In that view of the matter, I do not propose to go into the question that the distinction created between a Chief Justice and an Acting Chief Justice and classifying Acting Chief Justice as a puisne Judge is arbitrary and violative of Article 14 of the Constitution. This question, in my opinion, does not at till arise in the instant case in view of the view taken by me. I, therefore, hold that the petitioner's pension should be re-fixed at Rs. 50,160 per annum as per the Amendment Act 38 of 1986 (calculation has not been disputed) since, the eeiling on pension applicable to Chief Justice will also apply to Acting Chief Justice, it respective of the fact whether the incumbent on the date of his retirement was an Acting Chief Justice.
23. I do not find any substance in the argument of the learned Counsel for the petitioner for allowing the petitioner commutation of revised pension. It has been rightly contended by Mr. Giri that pension is al ways co-related to the date of retirement and the Court cannot change the date of retirement and impose fresh commutation benefits. The petitioner having already availed the benefit of commutation. I do not think that he is entitled to get that benefit at this late date, because commutation has to he availed of within a specified time-limit from the date of actual retirement and the petitioner having already availed of that he is not entitled to issue of a fresh direction in this regard.
24. In the result, the writ petition is allowed to the extent indicated in paragraph 22. The respondents are directed to refix the pension of the petitioner as indicated in the said paragraph 22 within three months of this order and pay the arrears within one month therefrom. Any delay in making the payment of arrears of pension within the time at the rate directed, will entitle the petitioner to the benefits of interest at the rate of 15 per cent per annum till the actual payment is made. There will be no order as to costs.