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Case Number

Civil Misc. Writ Petn. No. 7552 of 1987

Advocates

Hanuman Upadhya
V.K. Upadhya and V.R. Upadhya
D.P. Singh
Addl
Standing Counsel

Judges

B.N Sapru
Anshuman Singh, JJ.

Acts

Court Judges (Condition of Service) Act, 1954 (hereinafter referred to as the Principal Act) and the High Court Judges Rules, 1956 (hereinafter referred to as the Judges Rules 1956)
India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as 1958 Rules)
Court Judges (Conditions of Service) Amendment Act, 1988, the provisions of Ss. 2 and 5
Court Judges (Conditions of Service) Amendment Act, 1961, S. 2 of the Principal Act
Court Judges (Conditions of Service) Amendment Act, 1976
Constitution of India. Rule 2 of the Judge Rules 1956
Indian Administrative Service and sub-rule (2)
situated6. Rule 1(2)(a) of the 1958 Rules
Judges (Conditions of Service) Act, 1954,
Rule 19(1) of the 1958 Rules
Rule 17 of the 1958 Rules
Amending Act 1976 Judges
Amendment Act of 1961
Amending Act of 1976
Amending Act 1976
sub-rule (1),

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Smart Summary

Annotated Summary of Judicial Opinion — Anshuman Singh, J.

Factual and Procedural Background

This writ petition under Article 226 of the Constitution was filed by several retired Judges of the Allahabad High Court (petitioners 1–9 and later impleaded petitioner 10, the widow of a retired judge) seeking multiple reliefs:

mandamus directing respondents to compute and determine death-cum-retirement gratuity payable to them (on the basis of the benefits payable to an IAS officer holding the rank of Secretary to the State Government of Uttar Pradesh at the date of each petitioner’s retirement);
certiorari quashing paragraph III of letter No. 24/43/83-Jus dated 19.10.1984 (Annexure 2) issued by the Government of India (Department of Justice);
mandamus directing respondents to pay ad hoc relief and restraining respondents from recovering amounts already paid as ad hoc relief; and
mandamus directing respondents to pay petitioners 8 and 9 the difference of pension at a specified rate (Rs.100 per mensem as pleaded).

Relevant procedural steps recorded in the opinion:

Petitioners 1–2 had retired as Chief Justices and petitioners 3–9 as puisne Judges prior to 1 October 1974.
An impleadment application by Anar Devi (widow of a retired judge) was allowed and she was added as petitioner 10.
Counter-affidavits were filed on behalf of respondent 1 (Government of India, Department of Justice) and respondent 2 (Accountant General, U.P.). Rejoinder affidavits were filed by petitioners.
The Court heard learned counsel for the petitioners and for the Union of India and ultimately delivered judgment allowing the petition in part and granting the specified reliefs (see final paragraphs of the opinion).

Legal Issues Presented

Whether Judges of the High Court who retired prior to 1 October 1974 are entitled to receive death-cum-retirement gratuity (on the basis of the rules applicable to an IAS officer of the rank of Secretary) by virtue of Rule 2 of the High Court Judges (Conditions of Service) Rules, 1956 and the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
Whether paragraph III of letter No. 24/43/83-Jus dated 19.10.1984 (withdrawing ad hoc relief with effect from 1 October 1974) is lawful and should be quashed.
Whether certain petitioners (3, 4, 7, 8 and 9) are entitled to ad hoc relief (granted earlier by the Central Government) from 1 January 1973 to date and whether respondents may be restrained from adjusting or recovering such ad hoc relief from pension arrears or future pension payments.
Whether petitioners 8 and 9, who served less than seven years as High Court Judges (six years and some months), are entitled to the minimum pension or enhanced pensionary benefit and, if so, how paragraph 2 of Part I of the First Schedule to the Principal Act (as amended) should be read to avoid arbitrariness.
Whether petitioners are entitled to interest on delayed payment of gratuity and/or ad hoc relief, and if so, at what rate.

Arguments of the Parties

Petitioners' Arguments

Though the petitioners retired before 1 October 1974, they are entitled to death-cum-retirement gratuity under Section 17 of the High Court Judges (Conditions of Service) Act, 1954 as amended (particularly by the 1961 amendment) read with Rule 19 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 — because Rule 2 of the Judges Rules 1956 makes the rules applicable to an IAS Secretary operative for judges where the Principal Act is silent.
The 1958 Rules applied to IAS officers who retired on or after 29 October 1951 and included retirement gratuity; therefore, where the Principal Act had no express provision, those Rules should govern High Court Judges for gratuity at their dates of retirement.
The petitioners claimed penal/compensatory interest on delayed payment (initially pressed at 20% per annum) on the basis that the Central Government was aware that 1958 Rules were applicable to Judges and nevertheless withheld gratuity unlawfully; reliance was placed on State of Kerala v. M. Padmanabhan Nair and similar decisions.
Ad hoc relief granted under Rule 17(2) of the 1958 Rules to meet rise in cost of living is not part of pension and cannot be withdrawn retrospectively; discontinuance by the October 1984 letter is unlawful and discriminatory (Article 14).
Petitioners 8 and 9 argued that paragraph 2 of Part I of the First Schedule (post-amendment) was arbitrary by excluding judges who had completed six but not seven years of service; the appropriate remedy is a reading down so that eligibility extends to those with "more than four years" to avoid arbitrariness.

Respondents' (Union of India) Arguments

The Amending Act of 1976 expressly provided gratuity on retirement only for Judges who retired on or after 1 October 1974; therefore petitioners who retired earlier are not entitled to such gratuity.
Reliance was placed on the Supreme Court decision in N.L. Abhyankar v. Union of India — the Union argued that the Supreme Court’s disposition meant that the question of gratuity for pre-1.10.1974 retirees had been finally adjudicated and could not be reopened in the present writ petition.
The respondents argued that no mandamus should issue after such a long delay (asserting laches) because the petitioners had not earlier claimed gratuity.
With respect to ad hoc relief, the Union contended that the ad hoc relief was part of pension (i.e., was referable to pension) and not an amount payable in addition to pension, so it could be adjusted or withdrawn as part of pension arrangements.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandra Kala Agarwal v. Union of India (Civil Misc. Writ Petn. No. 5372 of 1985) — decided 27.4.1988	Establishes application of Rule 2 of the Judges Rules 1956 where Principal Act is silent (example concerning family pension).	The Court noted a similar view had been taken earlier in that case: where Principal Act lacked a provision, Rules under Rule 2 applied — supporting petitioners' reliance on Rule 2 for gratuity/family pension.
N.L. Abhyankar v. Union of India, (1984) 3 SCC 125 : AIR 1984 SC 1247	Supreme Court's observations regarding pensionary benefits; referenced by Union as adjudicating pension/gratuity issues.	The Court recorded that the Union relied on this decision to say gratuity claims were foreclosed. The Court explained that the Supreme Court had observed that "what we have said about pensionary benefits does not apply to payment of gratuity," and a later review order clarified petitioners may move separate petitions on gratuity; accordingly, Union's reliance on Abhyankar to foreclose gratuity claims was rejected.
Union of India v. Bidhubhushan Malik, (1984) 3 SCC 95 : AIR 1984 SC 1177	Affirmed the Division Bench judgment striking down "who has retired on or after 1 October 1974" limitation for pensionary benefits.	The Supreme Court dismissed the Special Leave Petition against the Allahabad High Court decision; the Allahabad High Court quoted the operative part and relied on the result for pensionary relief, distinguishing pension from gratuity where necessary.
State of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429 : AIR 1985 SC 356	Authority on award of interest/compensation for delayed payment of statutory entitlements.	The opinion considered this Supreme Court decision in deciding an appropriate rate of interest for delayed gratuity/ad hoc relief and relied on its principles (along with other authorities) to award 12% per annum interest.
R.S. Sehgal v. Union of India (1985 (2) SLR 285) (Punjab & Haryana High Court)	Application of interest principles in delayed payment cases (followed State of Kerala decision).	Cited as an instance where the State of Kerala decision was followed; used to support awarding interest on delayed payments.
D.S. Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130	Landmark decision on pensionary benefits and classification: principles for remediable inequality/entitlement and consequences.	The Court referred to Nakara among other authorities when determining an appropriate interest remedy and in reasoning about entitlement to pensionary benefits and remedial action against governmental inaction.
Bhagwant Singh v. State of Haryana, (1988 (1) SLR 434) (Punjab & Haryana High Court)	Authority concerning payment of interest in pensionary/delay contexts.	Referred to in the Court's consideration of interest on delayed payments; used to justify the award of 12% interest in the present case.
Daljit Singh Narula v. The State of Haryana, (1969) 1 Serv LR 420	Principle that conditions of service determined by executive order cannot be altered retrospectively by executive order to the prejudice of a civil servant.	The Court relied on this authority in reasoning that the executive letter (Oct 19, 1984) seeking to withdraw ad hoc relief retrospectively from 1 October 1974 was not permissible and that paragraph (iii) of that letter deserved to be quashed.
Deoki Nandan Agarwala v. Union of India (Writ Petn. No. 20328 of 1986) — decided 15.3.1988 (AIR 1988 All 271)	Challenge to paragraph 2 of Part I of the First Schedule (eligibility threshold), with holding that "not less than seven years" be read down to "more than four years" to avoid arbitrariness.	The Court treated that decision as directly on point for petitioners 8 and 9 and adopted the reading-down remedy (i.e., interpret the provision as "more than four years") to uphold validity and to remedy the arbitrary exclusion of judges with six years' service.

Court's Reasoning and Analysis

The court's legal analysis proceeded by examining the interplay between the Principal Act (High Court Judges (Conditions of Service) Act, 1954), the Judges Rules 1956 and the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (1958 Rules), together with subsequent amending legislation:

Applicability of Rule 2, Judges Rules 1956:
The Court accepted that Rule 2 of the Judges Rules 1956 provides that where the Principal Act contains no express provision, the conditions of service shall be deemed to have been determined by the rules applicable to an IAS member holding the rank of Secretary. Consequently, in absence of an express provision for retirement gratuity in the Principal Act for Part I judges, the 1958 Rules (which applied to IAS officers and provided for retirement gratuity from 29 October 1951) are applicable to the petitioners on their respective dates of retirement.
Effect of the 1961 and 1976 amendments:
The 1961 amendment broadened the definition of "pension" to include gratuity and death benefits. The 1976 Amending Act expressly provided death-cum-retirement gratuity for Part I judges but was made retrospectively operative from 1 October 1974; the Government nevertheless refused gratuity to judges who had retired prior to that date. The Court held that the retrospective grant in 1976 did not, and could not, displace the rules applicable earlier where the Principal Act was silent; Rule 2 and the 1958 Rules governed the entitlement at the date of retirement.
Treatment of Supreme Court authority (N.L. Abhyankar) and the review order:
Although the Union sought to rely on N.L. Abhyankar to contend that the Supreme Court had foreclosed gratuity claims, the Court pointed to the Supreme Court's separate observation that its decision on pensionary benefits did not apply to gratuity and to a subsequent review order (dated 20.11.1984) which clarified that the Supreme Court's decision related only to pension and that petitioners were at liberty to move separate petitions with regard to gratuity. On this basis the Court rejected the Union's contention that the matter was finally adjudicated by the Supreme Court.
Laches and governmental obligation:
The Union argued laches, but the Court examined the statute and Rules and found no provision requiring a retiring judge to apply for pension or gratuity. The Court characterized payment as an obligation of the Government under the Principal Act and concluded that inaction by the respondents — not any omission by the petitioners — caused non-payment. When office-holders are judges, the Parliament did not intend that they must apply for pension/gratuity; thus laches did not bar relief.
Interest on delayed payment:
The petitioners sought penal interest (20%). The Court considered Rule 19-A (as amended in 1987 providing 5% interest for delayed payments) but, relying on precedents (State of Kerala v. M. Padmanabhan Nair, D.S. Nakara, and other High Court decisions), exercised its equitable discretion to award interest at 12% per annum from the date of retirement until payment because respondents had knowingly and willfully withheld payment.
Ad hoc relief under Rule 17(2) of the 1958 Rules:
Rule 17(2) provided relief against rise in cost of living to members of the Service "at such scale and in such manner" as prescribed by Central Government; the Central Government had in fact granted ad hoc and graded relief to judges who retired prior to 1.10.1974 (per Government Orders, e.g., dated 29.8.1977). The Court held that such ad hoc relief was granted over and above pension (not as part of pension) and could not be withdrawn retrospectively by the October 19, 1984 letter. The Court found the withdrawal discriminatory where some petitioners continued to receive ad hoc relief while others were denied it; that discrimination violated Article 14.
Minimum pension and reading down impugned statutory language:
Petitioners 8 and 9 had served less than seven years; paragraph 2 (as amended) required "not less than seven years" for specified benefits. Relying on a contemporaneous/allied decision (Deoki Nandan Agarwala) and legislative developments (1986/1988 amendments), the Court adopted the remedy of reading down paragraph 2 of Part I of the First Schedule to mean "more than four years" (in place of "not less than seven years") to avoid arbitrariness and to make the provision constitutionally sustainable.

Holding and Implications

HOLDING: PETITION ALLOWED

Core directives and practical consequences imposed by the Court (as ordered in the opinion):

The respondents are directed to compute and determine the retirement gratuity payable to each petitioner on the basis of the amount payable to an IAS officer holding the rank of Secretary to the Government of Uttar Pradesh at the respective date of each petitioner’s retirement, and to pay those gratuities to the petitioners along with interest at 12% per annum from the dates of retirement until payment. Payment is to be made within four months from the date of the order.
Paragraph (iii) of letter No. 24/43/83-Jus dated 19.10.1984 (Annexure 2) issued by the Government of India (Department of Justice), insofar as it discontinues ad hoc relief with effect from 1 October 1974, is quashed by writ of certiorari.
The respondents are directed to pay ad hoc relief to petitioners 3, 4, 7, 8 and 9 from 1 January 1973 until the date of the order, together with interest at 12% per annum, within four months. The respondents must continue regular payment thereafter.
The respondents are restrained from adjusting, deducting or recovering ad hoc relief already paid to petitioners from pension arrears or from future pension payments.
The respondents are directed to pay petitioners 8 and 9 the difference between the pension they had been paid and the enhanced pension to which they are entitled under this order within two months from the presentation of a certified copy of the order to the Secretary, Government of India, Ministry of Law and Justice, Department of Justice, New Delhi.
The relief granted to petitioner 2 is to be deemed granted to Smt. Nirmala Verma, widow and legal heir of petitioner 2, following the death of petitioner 2 after judgment was dictated but before delivery; her substitution was ordered and the relief extended accordingly.
Petitioners are entitled to their costs.

Broader implications as recorded in the opinion:

The Court did not purport to lay down a novel general principle beyond application of existing rules and precedent; rather it applied Rule 2 of the Judges Rules 1956 and relevant statutory provisions and precedents to vindicate entitlements of individual petitioners. The Court emphasised that when the Principal Act is silent, rules applicable to an IAS Secretary determine conditions of service for High Court Judges and that the State cannot withdraw previously granted executive relief retrospectively to the prejudice of retired judges without lawful basis.
The Court read down a challenged statutory provision (paragraph 2, Part I, First Schedule) to cure arbitrariness by interpreting "not less than seven years" as "more than four years" so as to uphold the legislation rather than strike it down outright.
The judgment clarifies that a Supreme Court disposition limited to pensionary benefits does not necessarily close the question of gratuity where the Supreme Court itself observed that its remarks on pension did not apply to gratuity and later permitted separate petitions on gratuity.

This summary strictly reflects the contents of the provided opinion and does not add information beyond what the opinion explicitly states.

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M.C Desai And Others v. Union Of India And Others

Anshuman Singh, J.:— This writ petition under Art. 226 of the Constitution of India has been filed by the petitioners for issue of writ in the nature of (i) mandamus directing the respondents to compute and determine the death-cum-retirement gratuity payable to an officer of the rank of Secretary to the U.P State Government of the Indian Administrative Service at the time of retirement of the petitioners; (ii) certiorari quashing Para III of the impugned letter No. 24/43/83 Jus. dated October 19, 1984, Issued by the Government of India Ministry of Law and Justice, Department of Justice, (annexure ‘2’ to the writ petition); (iii) mandamus directing the respondents to pay ad hoc relief to the petitioners and restraining them from asking the petitioners to refund the ad hoc relief paid to them; and (iv) mandamus directing the respondents to pay petitioners 8 and 9 the difference of pension at the rate of Rs. 100/- per mensem.

2. The facts giving rise to the instant writ petition, which are relevant for the purpose of determining the controversy involved, briefly are that petitioners 1 and 2 retired as Chief Justices of the Allahabad High Court and Petitioners 3 to 9 as puisne Judges of the Allahabad High Court prior to October 1, 1974. Subsequently an impleadment application was filed by Anar Devi widow of late Sri M.L Chaturvedi, who retired as Puisne Judge of the Allahabad High Court in July 1959. The said application was allowed and she has also been impleaded as petitioner 10 in the petition. A counter-affidavit has been filed on behalf of respondent 1 by Babu Lal, Under Secretary, Department of Justice, Ministry of Law and Justice, Government of India. Another counter-affidavit has been filed on behalf of respondent 2 by Vikram Chandra, Senior Deputy Accountant General (Pension), Office of A.G, U.P, Allahabad. Two rejoinder affidavits have been filed on behalf of the petitioners by petitioner 6 Mr. Gyanendra Kumar to the aforesaid counter-affidavits.

3. We have heard Sri V.B Upadhya, learned counsel for the petitioners, and Sri D.P Singh, learned Additional Standing Counsel for Government of India the first grievance raised on behalf of the petitioners by the learned counsel is that though all the petitioners have retired prior to 1st October 1974 on attaining the age of 62 years, they are entitled to death-cum-retirement gratuity. The conditions of Service of the Judges of the High Courts, in matters pertaining to their pension, gratuity and Provident Fund etc. are governed by the High Court Judges (Condition of Service) Act, 1954 (hereinafter referred to as the Principal Act) and the High Court Judges Rules, 1956 (hereinafter referred to as the Judges Rules 1956) framed under Ss. 23 and 24 of the Principal Act. All the petitioners are governed by the provisions of the First Schedule, Part I of the Principal Act. In the Principal Act and the Judges Rules 1956 there was no express provision for payment of gratuity to the retired Judges who were governed by the First Schedule, Part I. By means of the High Court Judges (Conditions of Service) Amendment Act, 1961, S. 2 of the Principal Act (relating to definitions) was amended to the extent that in sub-sec. (i) after cl. (g) the following clause shall be, and shall be deemed always to have been, inserted, namely:—

“(gg) ‘Pension’ means a pension of any kind whatsoever payable to or in respect of a Judge, and includes any gratuity or other sum or sums so payable by way of death or retirement benefits.”

4. The High Court Judges (Conditions of Service) Amendment Act, 1976 which was passed by the Parliament brought about a number of drastic changes in the structure and content of various provisions of the Principal Act as well as its First Schedule. This amendment Act was made retrospectively operative with effect from 1st day of October, 1974. It is pertinent to mention that for the first time the provision for grant of death-cum-retirement gratuity was expressly made available by the Amending Act of 1976 even to Judges who were governed by Part I of the First Schedule. Since all the petitioners have retired prior to 1st October 1974 even by incorporating the express provision for grant of death-cum-retirement gratuity by the Amending Act of 1976, the said benefit was not granted to the petitioners on the ground that they have retired prior to 1st October 1974.

5. Mr. V.B Upadhaya, learned counsel for the petitioners strenuously urged that though the petitioners have retired before 1st October 1974, they are entitled to get retirement gratuity under S. 17 of the Principal Act as amended by the Amendment Act of 1961 read with R. 19 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as 1958 Rules) as the same is applicable to them by virtue of R. 2 of the Judges Rules 1956 from the very commencement of the Constitution of India. Rule 2 of the Judge Rules 1956 reads as under:

“2. Conditions of Service in Certain Cases:— The conditions of services of a judge of a High Court for which no express provision had been made in the High Court, Judges (Conditions of Service) Act, 1954, shall be and shall from the commencement of the Constitution be deemed to have been determined by the rules for the time being applicable to a member of the Indian Administrative Service, holding the rank of Secretary to the Government of the State, in which the principal seat of the High Court is situated………”

6. Rule 1(2)(a) of the 1958 Rules made these rules applicable to all those Officers belonging to the Indian Administrative Service who retired from service on or after 29th October 1951. According to R. 2(b) of the 1958 Rules “death-cum-retirement gratuity” means the lump sum granted to a member of the service or his family in accordance with R. 19. Rule 19(1) of the 1958 Rules provides for payment of gratuity on retirement whereas R. 19(2) provides for payment of gratuity in the event of death. The provision for payment of gratuity in the event of death has been made in Ss. 17 and 17A of the principal Act as amended by the Amendment Act of 1961 but there is no specific provision for payment of gratuity in the event of retirement.

7. We have carefully perused R. 2 of the Judges Rules 1956. There is no manner of doubt that R. 2 specifically provided that where no express provision has been made in the Principal Act, rules applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated shall be applicable. The fact that the members belonging to the Indian Administrative Service were entitled under the 1958 Rules for payment of gratuity on retirement with effect from 29th October 1951 is not under doubt and there being no express provision for payment of gratuity on retirement to the High Court Judges, the said rule will be applicable to the petitioners on the date of their retirement.

8. A similar controversy arose in Civil Misc. Writ Petn. No. 5372 of 1985 — Chandra Kala Agarwal v. Union of India — decided on 27-4-1988 in which the petitioner claimed family pension after the death of her husband who retired as a Pusine Judge of this Court. In the said case we have already taken the view that since there was no specific provision for grant of family pension in the Principal Act the petitioner was entitled to receive family pension in view of R. 2 of the Judges Rules 1956.

9. Mr. D.P Singh, learned Additional Standing Counsel appearing for the Union of India, who has very ably argued the case urged that since an express provision has been introduced for the first time by the Amending Act of 1976 for payment of gratuity on retirement only to those Judges who retired on or after 1st October, 1974, the petitioners having retired prior to the aforesaid date were not entitled to receive gratuity. He further contended that the question of payment of gratuity on retirement has been finally adjudicated upon by the Supreme Court of India in the case of N.L Abhyankar v. Union of India, (1984) 3 SCC 125 : AIR 1984 SC 1247 and while granting pensionary benefits under the Amending Act of 1976 to Judges who had retired on or after 1-10-1974 said that what they had said about pensionary benefits does not apply to payment of gratuty and as such it is not open to the petitioners to agitate the said matter again in the instant writ petition and this Court is not competent to sit in judgment over the decision taken by the Supreme Court in the said case.

10. The Amending Act 1976 amended the First Schedule of Part I relating to pension of Judges and provided liberalised pensionary benefits only to the Judges who retired on or after the 1st day of October 1974. The said provision was challenged by petitioners 1, 2, 5 and 6 together with two other Judges (since dead), who had retired prior to 1st October 1974 by way of Writ Petn. No. 3781 of 1979 in this Court and a Division Bench allowed the said petition on March 2, 1983 by which the words “who has retired on or after the 1st day of October 1974″ appearing in paragraph 10 of the First Schedule, as amended by the Amending Act of 1976 were struck down and a writ of mandamus was issued to the Union of India with the following direction:—

“to compute and pay the pension to Judges (including Chief Justices) of High Courts accordingly.”

11. The Union of India feeling aggrieved against the aforesaid judgment of this Court filed Special Leave Petition No. 9616 of 1983 which was dismissed by the Supreme Court by its judgment dated 24th April 1984. The said judgment is reported in Union of India v. Bidhubhushan Malik, (1984) 3 SCC 95 : AIR 1984 SC 1177. The operative part reads as under:

“For the reasons mentioned by the learned Judges of the Allahabad High Court in their judgment, we agree with their conclusion and dismiss the Special Leave Petition.”

12. On 24th April 1984 the Supreme Court also decided the case of N.L Abhyankar (supra) wherein it has been observed:

“The writ petitions are disposed of accordingly. What we have said about pensionary benefits does not apply to payment of gratuity.”

13. The aforesaid observation of the Supreme Court has been made the sheet-anchor of the argument advanced on behalf of the Union of India that since the Supreme Court while granting pensionary benefits did not grant benefit of payment of gratuity to Judges who retired prior to 1st October 1974 amounts to denial of payment of gratuity on retirement and as such the petitioners are debarred from agitating the matter again in this Court. The aforesaid order of the Supreme Court was being interpreted by the Union of India to mean that the Supreme Court has rejected the claim regarding payment of gratuity on retirement to the Judges who retired prior to 1-10-1974. A review petition was filed in the Supreme Court of India in the aforesaid case which clarified the misgiving created by the respondents by the following order passed on November 20, 1984:—

“By consent of learned Attorney General both the petitions are allowed. Our decision relates only to the question of pension. The petitioners are at liberty to move separate petitions with regard to gratuity, if necessary and if so advised. No costs.”

14. A photostat copy of the said order has been filed before us. In view of the aforesaid order of the Supreme Court on the review petition the argument raised by the learned Additional Standing Counsel for Union of India that the matter regarding payment of gratuity on retirement has been finally adjudicated upon by the Supreme Court has no legs to stand and we reject the same. In view of the aforesaid discussion we are of definite view that under R. 2 of the Judge Rules 1956 the petitioners who retired prior to 1st October 1974 are entitled to receive gratuity on their respective dates of retirement which was payble to a member of the Indian Administrative Service, holding the rank of Secretary to the Government of the State i.e Uttar Pradesh.

15. Another limb of argument advanced on behalf of the Union of India is that no mandamus can be issued for the demand of gratuity after such a long period as the petitioners have never claimed for the same and this Court should not interfere on the ground of laches committed on the part of the petitioners. We have gone through the Principal Act and Judges Rules 1956 and we find no provision which requires the retiring Judge to apply for pension or other pensionary benefits including the gratuity. It is an obligation on the Government under the Principal Act 1954 to pay pension and gratuity to the retired Judges. We think that in view of the fact that the Judges hold posts under the Constitution and sanctity attached to their office the Parliament never intended that a Judge on his retirement should apply to the Government for payment of pension, gratuity etc. and as such the claim of the petitioner to which they are legitimately entitled cannot be denied. More so we have no hesitation in saying that it is an inaction on the part of the respondents which resulted in non-payment of gratuity to the petitioner on their retirement to which they were legally entitled. In the circumstances we think it proper to exercise our jurisdiction under Art. 226 of the Constitution and direct the respondents to pay retirement gratuity to them which was payable to a member belonging to the Indian Administrative Service, holding the rank of Secretary to the Government of the State on the respective dates of retirement of the petitioners.

16. It has also been urged on behalf of the petitioners that they are also entitled to interest at the rate of twenty per cent per annum Learned Additional Standing Counsel has invited our attention to R. 19-A of the 1958 Rules as amended in 1987 which provides for payment of interest at the rate of five per cent per annum in case of delayed payment. Learned counsel for the petitioners on the strength of Letter No. 19/79/75-Jus. dated August 29, 1977, from the Government of India, Ministry of Law, Justice and Company Affairs, Department of Justice addressed to the Chief Secretaries of All State Governments (Annexure I to the counter-affidavit of Vikram Chandra) urged that the Central Government was aware that 1958 Rules were applicable to the High Court Judge and since a categorical stand has been taken that no retirement-gratuity was paid to the Judges who retired prior to 1st October, 1974 the Central Government has illegally withheld the gratuity and as such the petitioners are entitled to penal interest. In this connection learned counsel for the petitioners has placed reliance on the decision of the Supreme Court in State of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429 : AIR 1985 SC 356 which has been followed by the Punjab and Haryana High Court in R.S Sehgal v. Union of India (1985 (2) SLR 285). We have perused the aforesaid decisions and also keeping in view the decisions of the Supreme Court in D.S Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130 and that of the Punjab and Haryana High Court in Bhagwant Singh v. State of Haryana, (1988 (1) SLR 434) regarding payment of interest it is expedient in the interest of justice that the petitioners should be awarded interest at the rate of 12 per cent per annum on the sum due to them as gratuity from the date of retirement till the date of payment as respondents have knowingly and wilfully withheld the payment to Which the petitioners were legally entitled.

17. The other grievance raised on behalf of petitioners 3, 4, 7, 8 and 9 is regarding payment of ad hoc relief. It would be pertinent to mention here at this very stage that petitioners 1, 2, 5 and 6 are being paid ad hoc relief of Rs. 110/- per month apart from the pension payable to them. Rule 17 of the 1958 Rules deals with retiring pension and gratuity which reads as under:—

“Retiring Pension and gratuity.— (1) A retiring pension and death-cum-retirement gratuity shall be granted to a member of the Service who retires or is required to retire under R. 16.

(2) Notwithstanding anything contained in sub-rule (1), relief against rise in the cost of living index shall be granted to every such member of the Service at such scale and in such manner as may be prescribed by the Central Government from time to time for officers of the Central Civil Services, Class I.”

18. A perusal of the said provisions indicate that a retiring pension and death-cum-retirement gratuity is paid to a member of the service belonging to the Indian Administrative Service and sub-rule (2) lays down that apart from the pension and death-cum-retirement gratuity relief against rise in the cost of living index shall be granted to every such member of the Service at such scale and in such manner as may be prescribed by the Central Government from time to time for officers of the Central Civil Services, Class I. It has already been held earlier that the provisions of 1958 Rules were applicable to the High Court Judges also by virtue of R. 2 of the Judges Rules 1956. Thus it is abudantly clear that the Judges of the High Court are also entitled to the relief mentioned in R. 17(2) of the 1958 Rules. This fact is admitted that the Judges who had retired prior to October 1, 1974 were given ad hoc and graded relief in addition to the pension by the Central Government in exercise of its power under R. 17(2) of the 1958 Rules. The said fact is borne out by the Government Order dated August 29, 1977 (Annexure I to the Counter-Affidavit of Vikram Chandra). The said ad hoc relief was given from January 1, 1973 to Judges who retired prior to October 1.1974 In the last paragraph of the aforesaid Government Order it has been clearly mentioned that the Judges who retired prior to October 1, 1974 will get graded relief in addition to the ad hoc relief from October 1, 1975. By means of the Government Order dated October 19, 1984 (Annexure ‘2’ to the writ petition) the ad hoc relief is sought to be withdrawn from October 1, 1974. It has been contended on behalf of the petitioners that since this relief is granted under R. 17(2) of the 1958 Rules to meet the rise in the cost of living index, it is neither part of pension nor it is granted in lieu of pension but this relief is granted over and above the pension payable to a Judge. The payment made thereunder cannot be stopped, deducted or adjusted against the arrears of revised pension payable by virtue of the decision of the Supreme Court in Union of India v. Bidhubhushan Malik, (1984) 3 SCC 95 : AIR 1984 SC 1177.

19. The redeeming feature of the case is that whereas the ad hoc relief is still being paid to petitioners 1, 2, 5 and 6 but the same benefit has been denied to petitioners 3, 4, 7, 8 and 9. Learned Standing Counsel appearing for the Union of India on the other hand has strenuously contended that the Judges are only entitled to receive pension and not to any ad hoc relief, the ad hoc relief given to the Judges is a part of the amount of pension and not an amount in addition to the pension. We find ourselves unable to accept the contention raised on behalf of the Union of India that the ad hoc relief is referable to pension and is a part of the pension paid to the petitioners. In our view this ad hoc relief was granted to the Judges in order, to meet the rise in cost of living and the petitioners are entitled to receive the same over and above the amount of pension payable to them W e see no justification that on the one hand the respondents are still paying ad hoc relief to some of the petitioners and on the other they refuse to pay the same to other petitioners and the action of the respondents is wholly discriminatory and violative of Art. 14 of the Constitution.

20. It has been urged before us that the payment of ad hoc relief is a condition of service and the same cannot be varied to the disadvantage of the Judges in view of the proviso to Art. 221(2) of the Constitution. There appears to be some substance in the argument but we express no concluded opinion on this aspect of the matter. Once the said relief was granted to the petitioners by the Central Government it could not be withdrawn and more so from retrospective effect by letter dated October 19, 1984 and no reasons have been assigned for discontinuing the payment of ad hoc relief with effect from October 1, 1974. Learned counsel for the petitioners in support of his contention that the grant of ad hoc relief could not be withdrawn retrospectively has placed reliance on a decision of the Punjab and Haryana High Court in Daljit Singh Narula v. The State of Haryana, (1969) 1 Serv LR 420, wherein it has been held that the conditions of service determined by executive order, cannot be altered by executive order retrospectively to the prejudice of civil servant. In our opinion para (iii) of the said letter deserves to be quashed and the respondents can neither be permitted to either adjust or recover the amount from the pensionary amount which is due to the petitioners nor can they be permitted to adjust the same while making payment of pension in future.

21. The next grievance which has been raised on behalf of petitioners 8 and 9 related to the minimum pension payable to them. Petitioner 8 served as a Judge of the Allahabad High Court for six years and seven months, and petitioner 9 for six years and five months, meaning thereby both the petitioners were-Puisne Judges of this Court for less than seven years. It has been urged that according to the Schedule the Judges of the High Court who had put in six years and had not put in seven years of service were not benefited by the provisions of para 2 of Part I of the 1st Schedule to the Principal Act. Para 2 of Part I of the 1st Schedule after the Amending Act of 1976 provided for calculation and payment of pension at a specified rate only in cases Where the Judge had completed service for not less than seven years. Para 9 of the said scheme provided for payment of minimum pension at the rate of Rs. 8400/- per annum according to Amending Act 1976. As a result according to the Amending Act 1976 Judges who have put in six years of service and had not completed seven years were placed arbitrarily at a disadvantageous position. Similarly under the amending Act 1986 the Judge who had put in five years or six years of service was put at a disadvantageous position. Para 2 of the 1st Schedule was challenged on the ground of being arbitrary and unreasonable in Writ Petn. No. 20328 of 1986 Deoki Nandan Agarwala v. Union of India decided on March 15, 1988: (Reported in AIR 1988 All 271). The controversy involved in the said case and the grievance of petitioners 8 and 9 in the instant case are squarely the same. In the aforesaid case of Deoki Nandan Agarwala (supra) we have held that the words ‘not less than seven years’ have to be read as ‘more than four years’ in para 2 in order to uphold the validity of the provisions. When the judgment in that case was delivered the recent amendment dated April 8, 1988 to the Principal Act was not in existence. The Parliament has passed Act No. 20 of 1988 known as the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1988, the provisions of Ss. 2 and 5 whereof shall be deemed to have come into force on the 1st day of January 1986 and the provisions of Ss. 3, 4, 6 and 7 shall be deemed to have come into force on the 1st day of November 1986. The same provision has been repeated in para 2 of Part I of the 1st Schedule of the Principal Act. A copy of the Gazette of India Extraordinary dated April 8, 1988 had been produced before us in which we find that the same language as used in 1986 amending Act has been repeated. We are, therefore, of the opinion that the legislation can be saved by reading down paragraph 2 of Part I of the First Schedule to the Principal Act as amended by 1988 amending Act as “more than four years” in place of “not less than seven years.”

22. In the result the petition succeeds and is allowed we issue a writ of mandamus directing the respondents to compute and determine the retirement gratuity payable to an Officer of the rank of Secretary to the U.P State Government of the Indian Administrative Service at the time of retirement of the petitioners and pay the same to them along with interest at the rate of twelve per cent per annum till the date of payment within four months from today. We also issue a writ of certiorari quashing para (iii) of letter No. 24/43/83-Jus. dated October 19, 1984, issued by the Government of India, Ministry of Law and Justice, Department of Justice (Annexure ‘2’ to the writ petition) relating to discontinuance of ad hoc relief with effect from October 1, 1974. We further issue a writ of mandamus directing the respondents to pay ad hoc relief to petitioners 3, 4, 7, 8 and 9 from January 1, 1973 till this day along with interest at the rate of 12 per cent per annum within four months from today and shall also keep on paying regularly to them. The respondents are also restrained from adjusting, deducting or recovering the amount of ad hoc relief paid to the petitioners from their arrears of pension pending if any or from the pension payable to them in future. We also direct the respondents to pay petitioners 8 and 9 the difference of pension which they had been paid and the enhanced pension to which they are entitled under this order within two months from the date of presentation of a certified copy of this order before the Secretary, Government of India, Ministry of Law and Justice, Department of Justice, New Delhi. The petitioners are also entitled to their costs.

23. After the judgment was dictated and typed and the case is listed for delivery of judgment on May 13, 1988, an application was filed on May 12, 1988 stating therein that petitioner 2, Mr. S.K Verma Ex-Chief Justice expired on May 9, 1988 leaving behind Smt. Nirmala Verma his widow as legal heir and representative. The said application has been allowed by us on May 12, 1988 and her name has been ordered to be substituted in place of petitioner 2.

24. We, therefore, direct that the relief which we have granted to petitioner 2 in the writ petition shall now be deemed to have been granted to Smt. Nirmala Verma, legal heir and representative of petitioner 2.

25. Petition allowed.

M.C Desai And Others v. Union Of India And Others

Annotated Summary of Judicial Opinion — Anshuman Singh, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' (Union of India) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M.C Desai And Others v. Union Of India And Others

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