Jain Vs. Union of India  INSC 11 (22 January 1991)
Rangnath (Cj) Misra, Rangnath (Cj) Kania, M.H.
1991 AIR 928 1991 SCR (1) 98 1991 SCC (1) 644 JT 1991 (5) 133 1991 SCALE (1)64
High Court Judges (Conditions of service) Act, 1954--First Schedule Part III
Para 2(b)--Ceiling on additional pension of Judges--Held ultra vires.
was a member of the state Judicial Service and was elevated as a Judge of the
High Court on 1.7.1975, and was later transferred to another High Court where
he retire on 21.7.1984. A dispute relating to pension was disposed of by this
Court on 9.4.1985 fixing it at Rs.21,500 per annum. Meanwhile, the High Court
Judges (Conditions of Services) Act,1954 was amended by Central Acts 38/86 and
20/88, and he applied under the said Amending Acts asking for benefits
there-under, and this Court refixed the petitioner's pension at Rs.41,600 per
annum w.e.f 1.1.1986 and at Rs. 46,100 per annum w.e.f. 1.11.1986.
interlocutory petition the petitioner challenged the ceiling on additional
pension appearing in clause (h) of paragraph 2 of Part III of the First
Schedule to the High Court Judges (Conditions of Service) Act 1954.
the petition, this Court,
1. There was no justification to introduce a further ceiling of Rs.8,000 per
annum irrespective of the years of completed service rendered and allow a
discrimination operate. Once the proviso has a limit which meets the purpose
there is no basis for the further limit of Rs 8,000. [101A}
ceiling of Rs. 8,000 is not necessary to be imposed and if that is applied, a
situation giving rise to the application of Article 14 of the Constitution does
Fixing the pension at Rs. 48,000 per annum held that the ceiling in paragraph
2(b) of Part III of the First Schedule is unsustainable under Article 14 of the
Constitution and would not be operative. [101F]
JURISDICTION: Interlocutory Application No. 1 of 1989.
W.P. No. 16093 of 1984 etc. (Under Article 32 of the Constitution of India).
Jain, S.K. Jain, Ms. Pratibha Jain and Pradeep Agarwal for the petitioner.
Additional Solicitor General, Kailash Vasdev and Ms. A. Subhashini for the
following order of the Court was delivered:
was a member of the Rajasthan Judicial Service and was elevated as a Judge of
the Rajasthan High Court on July 1, 1975.
He was transferred to the Delhi High Court from where he retired on July 21, 1984. A dispute relating to his pension
became the subject-matter of a writ petition before this Court and was disposed
of on April 9, 1985 (1985 2 SCC 355). This Court fixed
his pension at Rs.21,500 per annum.
meantime, certain changes in the High Court Judges (Conditions of Service) Act,1954,
were brought about, firstly, by Central Act 38/86 and again by Central Act
20/88. Petitioner applied to this Court in Civil Miscellaneous Petition No.
18044/88 asking for benefits under the Amending Act. This Court by its decision
on August 18, 1988, refixed petitioner's pension at Rs.
41,600 per annum with effect from January 1, 1986, and at Rs.46,100 per annum
with effect from November 1,1986, keeping the two amendments referred to above
in view (1988 4 SCC 121). In paragraph 19 of this Court's order, it was stated:
refrain from expressing any opinion as to the effect of lifting of the ceiling
on the special additional pension at Rs. 8,000 per annum placed by clause (b)
of paragraph 2 of Part III of the First Schedule. The question really does not
arise for our consideration at the moment and is left open." 100 The
petitioner has now applied to this Court challenging the ceiling on additional
pension appearing in clause (b) of paragraph 2 of Part III of the first
Schedule to the High Court Judges (Conditions of Service) Act of 1954. The
First Schedule Deals with pension of Judges. Judges in High Court are recruited
from three sources:
Members belonging to the former Indian Civil Service; and (c) Officers of the
State Judicial Service.
this case we are concerned with Part III as petitioner had been elevated as a
Judge of High Court from the Rajasthan State Judicial Service. In respect of
such a Judge the pension payable is prescribed to be:
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 or 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 rule of his service exceed Rs.8,000 per annum.
that the pension under clause (a) and 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 case of any other Judge." Since this
Court had fixed the pension at Rs. 46,100 and petitioner's claim for being put
at par with other Judges by fixing his pension at Rs. 48,000 per annum had not
been accepted, petitioner has approached this Court challenging the ceiling of Rs.
8,000. According to the petitioner, he had put in nine years of completed
service as a Judge and on the basis of the provision for special additional
pension of Rs. 1,600 per annum in respect of each completed year of service for
pension he was entitled to Rs.14,400 but the limit in the proviso would have
the effect of fixing ceiling at Rs. 48,000 per annum. There was no
justification to introduce a further ceiling of Rs. 8,000 per annum
irrespective of the years of completed service rendered and allow a
discrimination to operate. Once the proviso has a limit which meets the purpose
there is no basis for the further limit of Rs. 8,000 as contained in paragraph
counter-affidavit filed on behalf of the Ministry of Law and Justice sought to
justify the limit by referring to cases of Central Civil Service Officers
retiring as Secretaries to Government where full credit was not being given for
the entire period of service rendered and aceiling was fixed. Such a ceiling
actually is fixed in respect of all the three situations covered by the First Schedule.
Member of the Bar with 14 years of completed service out of which six years are
served as a Chief Justice or as a Judge of the Supreme Court gets the maximum
pension of Rs. 54,000 and in the event of his retirement without becoming Chief
Justice or a Judge of the Supreme Court, his pension entitlement is Rs. 48,000
per annum. Similar is the provision relating to the members of the Indian Civil
Service who were earlier elevated as Judges. It is the contention of the
petitioner that once a ceiling limit was fixed as contained in the proviso of
the Third Part, there was no further justification for the Paragraph 2(b)
find full force in the submission. The reasons which weighed with this Court on
the earlier occasion for enhancing the petitioner's pension fully apply to the
present aspect. The ceiling of Rs. 8,000, therefore, is not necessary to be
imposed and if that is applied, a situation giving rise to the application of
Art. 14 of the Constitution does arise. In fact, the presence of the proviso
clearly brings out the intention that no ******** sought to be made between
Judges recruited from the different sources for the matter of the ceiling on
therefore, modify the order of this Court fixing petitioner's pension at Rs.
46,100 and require his pension to be fixed at Rs. 48,000 per annum by holding
that the ceiling in paragraph 2(b) of Part III of the First Schedule is
unsustainable under Art. 14 of the Constitution and would not be operative. We
direct that petitioner's pension from November 1, 1986, shall be fixed at Rs. 48,000 a
would make it clear that as we have held that paragraph 2(b) is ultra-vires, it
will follow that all cases to which the present situation applied should be
revised by the Union of India without requiring representations or applications
from the retired Judges concerned.
would be no order as to costs.