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TMI Blog1991 (9) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... etition directing the Government to retix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment. The main grievance of Union of India in this appeal is that the 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. Since the High Court issued the mandamus directing the Union of India to add one month and 13 days to the total length of service renderred by the respondent as Judge of the Allahabad High Court for the computing the pension under Section 16 of the Act, during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988)." However, they added that the period shall be disregarded in calculating additional pension, if any, under Part I and Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de II. Service as any other Judge in any High Court. 5. For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be entitled to the additional pension specified in relation to that grade in the second column of the table annexed hereto. provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year. TABLE Service aggregate Additional pension Maximum annum per annum pension per Rs. Rs. Grade I 740 20,000 Grade II 740 16,000 9. Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge. Provided that nothing in this paragraph shall apply-- (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnum for each completed year of service: provided that the pension shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge." The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000- At this stage itself, we may note that this Amending Act 38 of 1986 provided that the amended liberalised pension scheme would apply only to a Judge "who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in the two decisions of this Court above referred to and it was held that the benefit of the amendment was available to all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974. That was also ratio of the decision of the Constitution Bench of this Court in D.S. Nakara v. Union of India, [1983] 2 SCR 165. On the same reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1,600, would get Rs.8,000 or less than Rs.8,000 though Rule 9 provided for a fixed pension of Rs.8,400 per annum for those who had not completed seven years of service, he wanted to read "not less than five years" of service in paragraph 2 as "more than five years" of service. This argument was accepted by the High Court on the ground that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year of service which was provided for those who had completed seven years of service. The High Court was of the view denying the benefit of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a discriminatory piece of legislation and that however the provision can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than five years' in the place of not less than seven years." In that view the High Court amended paragraph 2 so to say by substituting the words "not less than 7 years" as "more than 5 years" and allowed the claim for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries, 1990 1 SCR 482 at 488; Mangilal v. Suganchand Rathi, [1965] 5 SCR 239; Sri Ram Ram Narain Medhi v. The State of Bombay, [1959] Supp. 1 SCR 489; Smt. Hira Devi & Ors. v. District Board, Shahjahanpur, [1952] SCR 1122 at 113 1; Nalinkhya Bysack v. Shyam Sunder Haldar & Ors., [1953] SCR 533 at 545; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdaor Sabha, [1980] 2 SCR 146; S. Narayanaswami v. G. Pannerselvam & Ors., [1973] 1 SCR 172 at 182; N.S. Vardachari v. G. Vasantha Pai & Anr., [1973] 1 SCR 886; Union of India v. Sankal Chand Himatlal Sheth & Anr., [1978] 1 SCR 423 and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of Commerce, Allahabad, [1986] 2 SCR 430 at 438. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast drawn pay if the maximum limit had not been fixed. It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension. The said paragraph does not use the word 'minimum' but only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything contained in the other provisions, the pension of a particular amount mentioned therein shall be paid to the Judge.. This amount is not calculated or has any reference to any period of service. For instance a Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who have completed six years of service. Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable. Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who have' put in more than five years or more than four years as the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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