1991 (9) TMI 344 - SC - Indian Laws

Whether High Court has rewritten the retirement benefit provisions of the First Schedule to tile Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional? Held that - High Court had exceeded its jurisdiction and power in amending and altering the provisions of paragraph 2 by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of ₹ 8,400 per annum and for the period on and from November 1, 1986 at the rate of ₹ 15,750 per annum. Puring the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal. Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act. The appeal is accordingly allowed and the order of the High Court is set aside.

Issues Involved:
1. Entitlement to refixation of pension from the date of retirement.
2. Calculation of pension for the period from November 1, 1986.
3. Refixation of family pension.
4. Legality of the High Court's amendment of statutory provisions.
5. Calculation of gratuity and family pension based on additional service period.

Detailed Analysis:

1. Entitlement to Refixation of Pension from the Date of Retirement:
The respondent, who retired on October 3, 1983, sought refixation of his pension from the date of his retirement, arguing that his service period should be considered as six years instead of 5 years, 10 months, and 17 days. The High Court directed the Government to treat the respondent as having completed six years of service and refix his pension accordingly. The Supreme Court, however, held that the High Court had no authority to rewrite the retirement benefit provisions of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954. The Court emphasized that it is not the duty of the judiciary to enlarge or alter the scope of legislation, and the respondent was entitled to pension as per the existing statutory provisions, which did not allow for such an extension.

2. Calculation of Pension for the Period from November 1, 1986:
The respondent claimed that he should receive a pension calculated at the rate of Rs. 20,580 per annum from November 1, 1986, based on the amended provisions of the Act. The Supreme Court noted that the Amending Act 38 of 1986, which provided for increased pension rates, could not restrict its applicability to judges who retired on or after the commencement of the Amending Act. The Court held that the amended pension provisions would apply to all judges irrespective of their retirement dates, entitling the respondent to the enhanced pension rates from November 1, 1986.

3. Refixation of Family Pension:
The respondent sought refixation of the family pension for his wife based on the assumption that he had completed six years of service. The Supreme Court ruled that since the respondent had not completed seven years of service, he was not eligible for the pension rates applicable to those who had. Consequently, the family pension would be calculated based on the actual service period of 5 years, 10 months, and 17 days, as per the statutory provisions.

4. Legality of the High Court's Amendment of Statutory Provisions:
The Supreme Court criticized the High Court for reading down the statutory provisions to substitute "not less than seven years" with "more than five years" and "more than four years." The Court held that it is not within the judiciary's power to rewrite or amend clear and unambiguous legislative provisions. The Court emphasized that judicial activism should not override legislative judgment, and the High Court had exceeded its jurisdiction by altering the statutory requirements for pension eligibility.

5. Calculation of Gratuity and Family Pension Based on Additional Service Period:
During the pendency of the appeal, the Government of India, complying with the High Court's mandamus, sanctioned the addition of one month and 13 days to the respondent's service period. The Supreme Court acknowledged this addition for the purpose of calculating gratuity and family pension under Section 17A(3) of the Act. However, the Court clarified that this addition would not affect the calculation of the respondent's pension, which would remain based on the actual service period of 5 years, 10 months, and 17 days.

Conclusion:
The appeal was allowed, and the High Court's order was set aside. The respondent was entitled to pension at the rate of Rs. 8,400 per annum from October 4, 1983, to October 31, 1986, and Rs. 15,750 per annum from November 1, 1986. The respondent's family pension and gratuity would be calculated based on a service period of six years, considering the additional one month and 13 days sanctioned by the President, but this addition would not apply to the pension calculation. There were no orders as to costs.

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