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TMI Blog1997 (5) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... nisi was issued, respondent No. 1 has appeared and filed return and has stated that in pursuance of the circular dated 6-9-96 the petitioner is entitled to the payment of DCRG as per the rates/scales as existed on his date of retirement. It is the stand of the respondents that in view of the aforesaid circular the petitioner is entitled to 12 per cent interest from 13-5-88 also. It is the stand of the respondents that DCRG has been paid to the petitioner according to the provisions existing at the time of his retirement as also interest at the rate of 12% from 13-5-88 i.e. the date on which the Allahabad High Court passed the order in relation to another Judge. 3. In view of the pleadings of the parties, points which fall for determination are as follows ;-- Point No. 1 :-- Which rule existed on the date when the petitioner laid down his office? Point no. 2 :-- Whether the petitioner is entitled for grant of interest from 13-5-88 or from the date of his retirement, and at what rate? Point No. 1:-- According to respondent No. I on the date of retirement of the petitioner, provision in existence for calculation of DCRG was as follows:-- Amount of gratuity admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed in column 2 of Schedule B of the appendix and the appendix shows that a person who has completed monthly period of qualifying service of 35 shall be entitled to maximum amount of ₹ 15,300/- as death-cum-retirement gratuity. Petitioner has been paid the aforesaid amount under the head DCRG. Accordingly, I do not find that the calculation of the gratuity amount made by the respondents is in any way incorrect. 6. Point No. 2 It is relevant here to state that after the judgment of the Allahabad High Court in the case of M.C. Desai v. Union of India AIR 1988 All 283, and the judgment of the Supreme Court dated 10-10-95 passed in Civil Appeal No. 3715 of 1990, the Govt. of India woke up very late and issued circular dated 6-8-96 and recognised the right of pre 1-10-74 retired Judges to receive the gratuity. While doing so it directed for payment of interest @ 12% per annum from 13-5-88 i.e. the date of judgment of the Allahabad High Court. 7. The Allahabad High Court in the case of M. -C. Desai (AIR 1988 All 283) (supra) has held as follows (Para 11) :-- We have perused the aforesaid decisions and also keeping in view the decisions of the Supreme Court in D.S. Nakara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The payment of the balance of interest thus calculated shall be made within six months from the date of judgment of the Supreme Court in the above Allahabad case. Rule in the above terms. No costs. The judgment relied on by Shri Gohil, referred to above do not in any way advances the case of respondent No. 1. The aforesaid judgment was rendered by the Bombay High Court while the appeal against the judgment of the Allahabad High Court in M.C. Desai (AIR 1988 All 283) (supra) was pending and the Division Bench has in categorical terms stated as follows :-- If the judgment of the Allahabad High Court in M. C. Desai v. Union of India (supra), as regards the payment of interest is affirmed by the Supreme Court, the petitioner shall be paid interest at the rate of 12% per annum from the date of retirement till realisation upon the amount of DCRG payable to him instead of the interest, at the said rate from the date three years prior to the date of filing of the petition in this Court as directed by us above. 9. Writ petition was heard on 18-3-1997 and was closed for judgment. However, before the judgment could be pronounced, Shri Abhay Gohil appearing on behalf of responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cult task of choosing between the two decisions which were directly in conflict and in the said background it was observed as under : Now I take it that both the cases to which I have referred are not to be reconciled with Hayes v. Hayes, (1828) 38 ER 822 at all events, they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes (supra) is not sound law; indeed it appears that Sir John Leach himself was dissatisfied with his decision. In Miles v. Jaryis (1883) 24 Ch D 633, similar question came up for consideration and it was held as follows: ......The question is which of these two decisions I should follow, and, it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law. In the case of Young v. Bristol Aeroplane 1944 KB 718, in similar context the Court of Appeal held that it was not only entitled but indeed duty bound to decide which of the two conflicting decisions of its own will follow in the case of clear divergence in the earlier precedents. 12. The matter directly came up for consideration before the Full Bench of the Patna High Court in the case of Amar Singh Yadav v. Shanti Devi AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Here in the present case, the petitioner retired on 8-5-1972. Respondent Central Government has taken the posture of an ordinary litigant, not expected from it and replied to the demand of the petitioner by saying that 'Supreme Court's order in Civil Appeal No. 3715/90 specifically deals with regard to grant of DCRG to the respondents of said Civil Appeal. The judgment of the Allahabad High Court on the point of interest from the date of retirement has been affirmed by the Supreme Court. The judgment of the Allahabad High Court as also the Supreme Court did not give any new benefit to the pre 1-10-1974 retired Judges, but recognised their right to receive DCRG, It is relevant here to state that when the Allahabad High Court granted the relief, it did not create any new right or benefit for the retired Judges or a fresh liability for the Government of India, but in fact, recognised the right of the retired Judges, which was denied to them at the time of retirement. I would prefer to adopt the vi ..... 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