UNION OF INDIA Vs. DEOKI NANDAN AGGARWAL

JUDGEMENT

(1.) THE Judgment of the court was delivered by -

(2.) THE respondent was elevated as Judge of the Allahabad High court on 17/11/1977. He retired on 3/10/1983 on superannuation at the age of 62. He had elected to receive his pension under Part I of the First Schedule to the High court Judges (Conditions of Service) Act, 1954. As he put in only a period of five years 10 months and 17 days service as a Judge of the High court, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs. 8,400.00 per annum and the family pension in the event of <PG>326</PG> his death earlier than his wife at Rs. 250.00 per month in the letter of Accountant General, Allahabad dated 2/12/1983. THE gratuity was worked out at Rs. 11,666.66 in lumpsum under S. 17-A(3 also on the ground that he had put in only five completed years of service. THE pension was payable with effect from 4/10/1983. THE Act was amended by the Amending Act 38 of 1986 providing for an increased pension with effect from 1/11/1986. On 10/12/1986 the petitioner filed a writ petition before the Allahabad High court under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, 4/10/1983 to Octo 31/10/1986 at Rs. 9,600.00 per annum plus dearness allowance admissible under the rules from time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixation of pension for the period from 1/11/1986 at Rs. 20,580.00 per annum plus dearness allowance or other allowances as may be admissible under the rules from time to time, at the rate of Rs. 3,430.00 per annum for six completed years of service as stated above; (iii) to refix the family pension admissible to his wife on the scale allowed under S. 17-A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months and 17 days.

(3.) IN order to appreciate the argument of the learned counsel for the appellant-Union of INdia it is necessary to set out certain provisions relating to pension payable to a Judge of the High court on his retirement. Clause 17 of the government of INdia (High court Judges) Order, 1937 relating to pension payable to a judge on his retirement which was in force prior to the coming into force of the Constitution provided that