Holding

The letter granting States discretion to deny the revised pension is unconstitutional as it violates Article 14, and the petitioner is entitled to the higher pension calculated under the amendment Acts and Office Memoranda.

Summary

M.L. Jain, a retired Judge of the Delhi High Court, challenged the pension fixed by the Pay & Accounts Officer at Rs.26,000 per annum, contending that amendments to the High Court Judges (Conditions of Service) Act in 1986 and 1988 and related Office Memoranda entitled him to a higher pension. The Government of India, through a letter dated 18 December 1987, allowed State Governments to decide whether to grant the revised pension, effectively creating a discretionary ceiling. The Supreme Court held that this letter violated Article 14 of the Constitution as it denied equal treatment to judges belonging to the same class without a rational basis. Consequently, the Court quashed the impugned order and directed that Jain's pension be re‑fixed at Rs.41,600 per annum from 1 January 1986 and Rs.46,100 per annum from 1 November 1986, with arrears to be paid. The petition was allowed.

Issues considered

The constitutionality of the Ministry of Law & Justice letter dated 18 December 1987 granting State Governments discretion to deny the revised pension to High Court Judges.
Whether the petitioner is entitled to re‑calculation of his pension under the High Court Judges (Conditions of Service) Amendment Acts, 1986 and 1988 and the Office Memoranda dated April 14 and 16, 1987.
Whether the ceiling on pension benefits can be varied by the State Governments in violation of Article 14.

Legislation cited

Constitution of Indias. Art 14, s. Art 221
High Court Judges (Conditions of Service) Act, 1954s. 15(1)(b), s. Part III of First Schedule
High Court Judges (Conditions of Service) Amendment Act, 1986
High Court Judges (Conditions of Service) Amendment Act, 1988
High Court Judges (Conditions of Service) Rules, 1956s. Rule 2

Subjects

pensionequalityArticle 14service conditionsjudicial retirement benefitsdiscriminationconstitutional law

Judgment

M.L. JAIN
v.
UNION OF INDIA

AUGUST 18, 1988
'B
[A.P. SEN ANDS. NATARAJAN,.JJ.]

High Court Judges (Conditions a/Service) Act, 1954/High Court
Judges (Conditions of Service) Rules, .1956: Section 15 and Para 2 of
Part. III of First Schedule/Rule 2-Retired High Court Judges-
Recalculation and redetermination of pension-Improvement of service
C conatiions including pension by virtUe of Amendment Act 38/86 and
·20/88-Constitutional propriety and legality of Ministry of Law &
Justice letter dated December 18, 1987 giving liberty to State Govern-
ment to determine the pension.

·D , The petitioner, before his appointment as a Judge of the
Rajasthan High Court, was a member of the Rajasthan Higher Judicial
Service. He was later transferred ·and appointed as a Judge of the High
'court of Delhi. He retired on July 21, 1984. The petitioner had opted,
'for
the purpose of his pension, for Part III of the First Schedule to the
High Court Judges (Conditions of Service) Act, 1954. Under this provi-
E si9n, the petitioner was entitled to a basic pension as admissible under
·the ordinary rules of his Service if he had not been appointed a Judge,
and an additional pension for each completed year of service as a Judge
of the High Court.

The High Court Judges (Conditions of Service) Amendment Act,
F 1986 and 1988 brought about improvements in the service conditions,
including pension, of the High Court Judges. The Government of India '
subsequently issued If scheme for rationalisation of pension structure
for pre-January 1, 1984 pensioners. Pursuant thereto, the Ministry of
Law & Justice, Government of India, issued letter dated December 18,
1987 giving directions to the Accountants Gen'<rals/P~y and Accounts
Officers as to the manner in which the basic pension of the High Court
G Judges·governed by the provisions of.Part Hi of the First Schedule to
ihe High Court Judges (Conditions of Service) Act, 1954 may be revised
with effect from I. !.'i986, as in the case ofthe employees of Central
·Government, ·or from 'some other. date the ·respective State Govern-
ments may decide to adopt these orders or an independent order issued
'H·by'them.

"49ii
M.L. JAIN v.U.O.I. 497

The petitioner has claimed higher pension on the ground that
A
service Judges with lesser service, who belonged to Higher Judicial
Service of some other States, have been granted higher pension ·while he
has been subjected to a discriminatory treatment in the matter.

Allowing the Civil Miscellaneous Petition, it was,
B
HELD: (l) This Court fails to appreciate the propriety of the
letter dated December 18, 1987 of the Miuistry of Law & Justice giving
liberty to different State Governments to deny the benefit of the revised
·pension to the Service Judges consequent upon the enactment of the
High Court Judges (Conditions of Service) Amendments Acts, 1986 and
1988 read along with Office Memoranda issued by the- Government of
India, Department of Pension & Pensioners Welfare, dated April 14,
c
19_87 and April 16, 1987 and rule 2 of the High Court Judges Rules,
1956. Such a direction is constitutionally impermissible as offending
Art. 14 of the Constitution. It is tantamount to denial of equal
treatment to persons belonging to the same class without any rational
basis .. [503F·ff; 504A] D

(2) While the salary of Judges of the High Court is charged on the
Consolidated Fund of the States, the pension of High Court Judges is
charged on the Consolidated Fund of India. [SOOE]

ORIGINAL· JURISDICTION: Civil Miscellaneous Petition ·E
No. 18044 of 1980.

IN
Writ Petition No. 16093 of 1984.

(U oder Articl~ 32 of the Constitution of India).

Tapash Ray. Ms. Pratibha Jain and S.K. Jain for the Petitioner. ·

K. Parasaran, Solicitor General, Kuldip Singh, Additional
Solicitor General and Ms. A. Subhashini for the Responde~t.
G
The following Order of the Court was delivered:

ORDER
·- . . . . ' - ·- . - - • • • ,! • \.

This is an application by Shri M.L. Jain-, retired -Judge of the
il)elhi 'High ·court questioning the ·constitutional propriety and legaiity H
498 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

of the order issued by the Pay & Accounts Officer, Delhi Administra-
A
tion (High Court & Miscellaneous), New Delhi dated July 12, 1988
purporting to fix his pension at Rs.26,000 per annum and for an
appropriate direction for re-determination of his pension and other
pensionary benefits in view of the change in law brought about by High
Court Judges (Conditions of Service) Amendment Acts, 1986 and 1988
B' (Act Nos. 38 of 1986 and 20 of 1986). This order .nust be read in
continuation of the earlierorder delivered by this Court in M.L. Jain
& Anr: v. Union of India, [ 1985] 2 SCC 355 by which this Court made a
direCtion for payment of pension to the petitioner at Rs.21,500 per
annum in view of the two ceilings then operating against him, viz (a) a
ceiling under the Rajasthan Rules providing that the maximum
amount cif pension should not exceed Rs.1,500 per annum and (b) that
c under cl.(b) of Paragraph 2 of Part III of the First Schedule of the High
Court Judges (Conditions of Service) Act, 1954.

According to the petitioner, in view of the change in law, the
amount of pension payable to him has to be re-calculated and re-
D determined at Rs.4,1,600 per annum w.e.f. January l, 1986 which
amount has to be further increased to Rs.46, JOO per annum w.e.f.
November l, 1986 in place of the pension of Rs.2 l,500 as earlier
directed.

The question that falls for determination in this order is whether
E consequent upon the improvement of the service conditions including
pension.and other benefits by the High Court Judges (Conditions of
Service J Amendment Acts, 1986 and 1988 and pursuant to the Office
Memoranda issued by the Government of India, Ministry of Per-
sonnel, Public Grievances & Pensions» Department of Pensions &
Pensioners Welfare dated April 14, 1987 and April ·16, 1987 the pension
F of the petitioner Shri ·M.L. Jain ])as to be re-calculated and re-
determined at Rs.41,600 per annum w,e.f. January 1, 1~86 which
amount has to be further increased to Rs.46,100 per annum w.e.f.
November l, 1986 in place of the pension of Rs.21,500 as earlier
dITected. In view of the importance of the question involved, we re-
quested Sri K. Parasaran, learned Attorney General to assist the
G Court. We are greatly beholden to the learned Attorney General for
the assistance that he has rendered.

"The facts are uncontroverted. The petitioner has had a
long and distinguished career in judicial service extending
over a period of 38 years and 9 months, including 9 years
H and 2 l days as a Judge of the High Court. When the
M.L. JAIN v.U.O:I. 499

petitioner was appointed as a Judge of the High Court of
A
Rajasthan on July 1, 1975, he was a member of the
Rajasthan Higher Judicial Service having been a District &
Sessions Judge for the period from November 9, 1970 to
July 1, 1975. On his appointment as a Judge of the
Rajasthan High Court, the petitioner opted, for the
purpose of his pension, for Part III of the First Schedule to B
the High Court Judges (Conditions of Service) Act, 1954.
On July 23, 1978 the petitioner was· transferred as a Judge
of the High Court of Delhi under Art. 222(1) of the Con-
stitution. On July 24, 1978 the petitioner was sworn in as a
Judge of the Delhi High Court and continued to hold that
office till the date of his retirement on July 21, 1984."
c
In order to appreciate the point in its true perspective, it is neces-
sary to set out the relevant constitutional and other statutory provi-
sions as well as the changes brought about by the High Court Judges
(Conditions of Service) Amendment Acts, 1986 and 1988, as also the
Office Memoranda issued by the Government ~f India, Ministry of D
Personnel, Public Grievances and Pensions, Department of Pension
and Pensioners Welfare dated April 14, 1987 and April 16, 1987 for
upward revision of pension and rationalisation of the same.

Art. 221 of the Constitution enacts:
E
"221. Salaries etc. of Judges- (1) There shall be paid to
the Judges of each High Court such salaries as may be
determined by Parliament by law and, until provision in
that behalf is so made, such salaries as are specified in the
Second Schedule.
F
(2) Every Judge shall be entitled to· such allowances
arid to such rights in respect of leave of absence and pen-
sion as may from time to time be determined by or under
law made by Parliament and, until so determined, to such
allowances and rights as are specified in · the Second
Schedule: G

Provided that neither the allowances of a Judge nor
his rights in respect ofJeave of absemce or pension shall be
varied to his advantage after his appmintment."

Under cl.(J) every Judge of a High Court is thus entitled to such H
500 SUPREME COURT REPORTS [1988]-Supp. 2 S.C.R.

A salaries as may be determined by Parliameht by law. By cl. (2) such a
Judge shall be entitled to such allowances and to such rights in respect
of leave of absence and pension as may from time to time be
determined by or under law made by Parliament. Until such a law ~
IJ1ade, every such Judge shall be entitled to such salaries, allowances
and rights as are specified i_n the Second Schedule.

The relevant provisioruelating, to the petitionet Shri M.L. Jain is
the one contained.in_s:_ 15( l){b ).of the High Court Judges (Conditions
of Service) Act, 1954 which is a law made by Parliament regulating his
right to pension and it reads:

u 15. Every Judge

(a) ***** *****

(b) who is not a member of the Indian Civil Service but has
held any other pensionable civifpost under the Union or a
State;- shall, on his retirement, be paid a pension ,in accor-
dance with the scale and provisions in Part III of the First
Schedule";

It is unquestionable that while the salary of Judges of the High Court 1~
charged on the Consolidated Fund of the State, the pension of such
Ill High Court Judges is charged on the Consolidated Fund of India.

Paragraph 2 of Part III of the Ffrst Schedule as amended by Act
35 of 1976, which was in force on July !,, 1975 when the petitioner was
first appointed as. a Judge or the Rajasthan Hig_h Court, was in these
terms_:
F
"2. The pension payable to such a Judge shall be-

(a) the pension to which he is entitled under the ordi-
nary rules of his service if he had not been appointed a
Judge, his service as a Judge being treated as service
G .therein for ihe purpose·of calculating that pension; and

(b) a special additional pension of Rs. 700 per annum
in respect of each completed year of service for pension but
in no case such additional pension together with the addi-
tional or special pension, if any, to which he is entiiled
H under the' ordinary rules of his service; shall exceed
Rs.3,500per annum,"
M.L. JAIN v.U.0.1. 501

By ·Act 36 of 1986 in cl. (b) of Paragraph 2 of Part III of the.First A
Schedule of the Act, the special additional pensio~ of Rs. 700 has been
raised to Rs. 1,600 and the ceiling of Rs.3,500 to Rs.8,000 respectively
w.e.f. November l, 1986. There is however a proviso.beneath cl. (b)
which reads:

"Provided that the pension under clause (a) and the addi-
tional peqsion -under cl:rnse (b) together shall in l)O c~se ·
exceed Rs.54, 000 per apnum in the case of a Chief Ju5tice
and Rs.48,000 per annum in the case of any other Judge-"

Rule 2 of the High Court Judges Rules, ·1956 as .amended till
March 18, 1987 which governs all Service Judges, provjdes:. c
. "2. Cond.itions of service in certain cases- The Condjtiol)S
of servicl" of a Judge of a High Court for which no express
provision has been made in the High Court Judges (Condi-
tions of Service) Act, 1954, shall be, and shall from the
commencement of the Constitution be deemed to have I>
been, determined by the rules for the time·bein·g applicable
to a member of the Indian Administrative Service ho!ding
the rank of Secretary to the Government of tµe State in
which the principal seat of the Ifigh Court is situated:·

Provided that, in tµe case of a Judge of the High
Court of Delhi, the conditions of servi9e shall be deter-
f!lil)ed by t!ie rules for the time being applicable to a
member of the Inpian Administrative Service on deputa-
tion to the Government of India and holding the rank of
Joint Secretary to the Government of Incjia stationed at
New Delhi." f

It would be convenient at this stage to refer-to the decisions
taken by the Government of India, Ministry of Personnel, Public Orie,
vances & Pensions, Department of Pension & Pensioners Welfare. On
March 18, 1987 the Government of India by Resoluti~n No. 7/13/87:
PIC accepted the recommendations of the Fourth Central pay .Com-
mission for upwar<! revision of pension and pensionary !?"refits, !twas
applicable to all pensioµers family pensioners who ~ere drawing
pension family pensfon und"r th<:: C.<:;.S. (Pension) lh!e5, 1992;
C.C.S. \Extraordinary Pension) Rules and the corre5pqndjng rules
applicable to Railway Pensiollers and pensioners of All Iµdia Seryige.
502 SUPREME COURT REPORTS J1988] Supp. 2 S.C.R.

A In pursuance of the aforesaid Resolution; the Government of
India, Ministry of Personnel, Public Grievances & Pensions, Depart-
ment of Pension & Pensioners Welfare issued an Office Memorandum
No. 2/1/87-PIC-II dated April 14, 1987 bringing about modifications in
the rules regulating Pension, Death-cum-Retirement Gratuity and
Family Pension under the C.C.S. (Pension) Rules, 1972, Rule 3.1 of
B the Rules as modified made the revised provisions applicable to
Government servants who retired or died in harness on or after
January 1, 1986. Rule 5.2 provided that pension shall be calculated at
50% of average emoluments in all cases instead of under the slab
formula given in cl. (a) of sub-r.(2) of r. 49 of the Pension Rules.

By a subsequent Office Memoranqum dated April 16, 1987 the
C Ministry of Personnel, Public Grievances and Pensions, Department
of Pension and Pensioners Welfare issued a scheme for rationalisation
of pension structure for pre-January 1, 1986 pensioners. It applied to
all pensioners belonging to the classes enumerated above, including
officers of the Indian Civil Service who retired from service on or after
D January 1, 1973. Paragraph 2.2. of the Office Memorandum provides
that separate orders would be issued by the Ministry of Defence in
regard to Armed Forces Pensioners/Family Pensioners. Paragraph 2.3
is a provision with regard to retired Judges of the Supreme Court and
the High Courts and it provides:

E "These order.s-do not also apply to retired High Court and
Supreme Court Judges and other constitutional/statutory
authorities whose pension etc. is governed by separate
orders. Necessary orders in their case will be issued by the
respective administrative authorities."

F Paragraph 5 of the aforesaid Office Memorandum provides for
payment of additional benefit equal to the difference between half of
the emoluments and the basic pension in view of re-calculation of
pension at 50% of average monthly emoluments in place of the slab
system. It further provides that there would be no upper ceiling on the
amount of pension now so worked out. ·
G
On December 18, 1987 the Government of India, Ministry of
Law & Justice, Department of Justice purported to issue a Jett~:
addressed to ( 1) Accountants General, All States, (2) The Pay &
Accounts Officer, Supreme Court of India, New Delhi and (3) The
Pay & Accounts Officer No. XIV, Delhi Administration, New Delhi
H giving direction as to the manner in which the basic pension of the
M.L. JAIN v.U.0.1. 503

Supreme Court Judges and High Court Judges governed by the provi-
A
sions of Part III of the First Schedule to the High Conrt/Supreme
Court Judges (Conditions of Service) Act, 1954/19~~ is to be
determined, the relevant portion whereof reads:

"The ordinary pel)sion admissible to High Court/Supreme
Court Judges under para 2(a) of Part-III of the First B
Schedule/Schedule to the High Court/Supreme . Court
Judges (Conditions of Service) Act, 1954/1958, respec-
tively, may be revised with effect from 1.1.1986 as in the
case of the employees of. Central Government or from
some other date, the respectively State Governments may
decide to adopt these orders or an independent order
issued by them, if any to grant the benefit of increased c
pension on similar lines to their employees including mem-
bers of Higher Judicial Service."

The sa_id Jetter goes on to say:
D
"This is subject to the condition that the total pe11sibn
including additional pension admissible to such Judges
under para 2(a) and (b) of Part-III of the First Schedule/
Schedule to the High Court/Supreme Court Judges (CIS)
Act, 1954/1958, shall not exceed Rs.48,000 p.a. Rs.54,000
p.a. and Rs.60,000 p.a. in. the case of Judge, High Court, E
Chief Justice, High Court/Judge, Supreme Court of India
and the Chief Justice of India, respectively."

We fail to appreciate the pro_priety ofthe aforesaid Jetter of the
Ministry of Law & Justice giving liberty to the different State Govern-
ments to deny the benefit of the revised pension to the Service Judges F
consequent upon the enactment of Act 38/86 and 20/88 read along
1
with the aforesaid Office Memoranda issued by the Government of
India, Ministry of Personnel, Public Grievances & Pensions, Depart-
ment of Pension & Pensioners Welfare dated April 14, 1987 and April
16, 1987 and r. 2 of the High Court Judges Rules, 1956. Virtually this
means that the State Governments may or may not issue any orders in G
terms of Paragraph 2.3 of the Office Memorandum dated April 16,
1987 appointing a date for grant of revised pension, or appoint diffe-
rent dates for the grant of revised pension to the retired High Court
Judges who had opted to be governed by Part III of the First Schedule
of the Act. Such a direction, in our view, was constitutionally im-
permissible as offending Art. 14 of the Constitution. It is tantamount H
504 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

to denial of equal treatment to persons belonging to the same class
without any national basis.

It was urged on behalf of the petitioner that the Pay & Accounts
Officer should not have denied the petitioner the benefit of the higher
pension he was entitled to in the light of the changed provisions of law
B and that Paragraph 2.3 of the Memorandum had no relevance to the
petitioner's case because the petitioner, by reason of his transfer from
the Rajasthan High Court to the Delhi High Court under Art. 222 of
the Constitution became automatically a Judge of the Delhi High
Court and therefore he was governed by the first proviso to r. 2 of the
High Court Judges (Conditions of Service) Rules, 1955 which provides
that in the case of a Judge of the High Court of Delhi and a Judge of
C the High Court of Punjab & Haryana, the conditions of service shall be
determined by the Rules for the time being applicable to a Member of
Indian Administrative Service on deputation to the Government of
India holding the rank of Joint Secretary to the Government of India
stationed at New Delhi. It was urged by reason of this position the
D petitioner was entitled to the benefits of pension in restructured scale
set out in the Memorandum. It was further stated that likewise the
action of the Pay & Accounts Officer in reckoning the basic pension of
the petitioner at Rs.1,500 per month as provided in column I to the
Table appended to the Memorandum, and not at Rs.2,925 merely on
the strength of the earlier position noticed in M.L. Jain's case, despite
f. the changes brought about by Act 38 of 1986 and Act 20 of 1988 and in
depriving him of the benefit of additional relief of Rs.250 per month
w.e.f. January 1, 1986 was wholly misconceived and unwarranted. We
not only found the contentions of the petitioner to have force but also
to be irrefutable ones.

F To bring out more forcefully how the governmental action is
patently arbitrary and as to how he had been subjected to discrimina-
tory treatment without there being any justifiable basis for it the
petitioner brought to our notice the higher rates of pension the Pay &
Accounts Officer had fixed for some other Judges of the Delhi High
Court even though their overall period of service and their tenure of
<!1 office as a Judge of the High Court was lesser than his. While the Pay
& Accounts Officer has fixed the pension of the petitioner at
Rs.26,000 per annum, the very same authority had fixed the pension of
Shri J.D. Jain at Rs.46,340 and that of Shri D.R. Khanna at Rs.44,684
per annum who had also retired as Judges of the Delhi High Court.
They had put lesser periods of total service as well as sei:vice as High
fl Court Judges. ·shri J .D, Jain had put in judicial ser.vi:te for a period of
M.L. JAIN v. U.0.1. 505

35 years, 7 months and 19 days including 6 years 5 months and 2 days
A
as a Judge of the Delhi High Court. Shri D.R. Khanna had a total
period of judicial service of 34 years, 10 months and 25 days including
5 years, 11 months and 28 days as a Judge of that High Court. We must
confess that it surpasses our comprehension as to on wh~t rational
basis the Pay & Accounts Officer deemed it just and proper tci accord
differential treatment to the petitione{ and fixing his pension at the B
low figure of Rs.26,000 when other Judges of the same High Court
who had put in lesser number of years of service were held entitled to
pension at much higher Jates.

The State Government of Uttar Pradesh by its notification no.
14/1/39/84 CX (I) dated May 31, 1988 has brought about a change in C
cl. (b) of Paragraph 2 of Part III of the First Schedule and revised the
rates of pension w .e.f. January 1, 1986 in terms of the aforesaid
Memorandum. Accordingly, a Judge of the Allahabad High Cpurt
Shri J.P. Chaturvedi who retired on February 7, 1981 had his pension
fixed at Rs.46, 100 per annum. We are given to understand that he had
put in much shorter period of service as compared to the petitioner. D
We commend the action of the State Government of Uttar Pradesh in
issuing a Notification as abovesaid to clarify the position and to ensure,
the implementation of the change brought about in cl.(b) of Paragraph
2 of Part III of the First Schedule and would direct all the State
Governments to issue orders in similar terms.
E
The learned Attorney General with his usual fairness frankly
conceded that there is patent disparity in the pension fixed for the
petitioner at Rs.26,000. Shri Kuldip Singh, learned Additfonal Sol-
icitor General appearing on behalf of the Union of India assured us
that the disparity would be removed as expeditiously as possible and
the authorities would endeavour to pay the difference to the petitioner p
without delay. The learned Attorney General was kind enough to say
thaLhe would advise the Government to bring about parity between
the pension drawn by the petitioner and the other Judges in India.

We 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 G
placed by cl.(b) of paragraph 2 of Part Ill of the First Schedule. The
question really does not arise for our consideration at the moment and
is left open.

In the result, C.M.P. No. 180'44/88 is allowed. The impugned
order of the Pal' & Accounts Qfficer dated Juli::. 12, 1988 is quashed. H
506 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A We direct the Union of India as well as the Pay & Accounts Officer,
Delhi Administration (High Court & Miscellaneous), New Delhi to
re-fix the pension of the petitioner at Rs.41,600 per annum w.e.f.
January 1, 1986 and at Rs.46, 100 per annum w.e.f. November 1, 1986.
We further direct that the arrears of the difference in the amount of
pension be paid to the petitioner as expeditiously as possible and in
any event, notJater than two months from today. The petitioner shall
also be entitled to all other consequential benefits.

R.S.S. Petition allowed.