Holding

The High Court exceeded its jurisdiction by altering the statutory qualification; the respondent is not entitled to the higher pension and is only eligible for pension under paragraph 9, with the added service period applicable only to gratuity and family pension.

Summary

The respondent, a retired High Court judge, had served only 5 years 10 months and 17 days and was receiving a pension of Rs.8,400 per annum under Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954. He sought a higher pension by claiming that an additional 1 month and 13 days should be added to his service, making it six years, and that the 1986 amendment to the Act should apply to him, entitling him to a pension of Rs.9,600 per annum before November 1986 and Rs.20,580 thereafter. The Allahabad High Court allowed this, effectively rewriting the statutory qualification of "not less than seven years" of service. The Supreme Court held that the High Court had exceeded its jurisdiction by altering the plain language of the statute, that the minimum seven‑year service is a legitimate eligibility condition, and that the 1986 amendment applies to all retired judges irrespective of retirement date but does not lower the qualification period. Consequently, the respondent was not entitled to the higher pension; he was only eligible for the pension under paragraph 9 (Rs.8,400 and Rs.15,750) and the addition of one month and 13 days was permitted solely for calculating gratuity and family pension. The appeal was allowed and the High Court order set aside.

Issues considered

Whether the High Court can read down or amend the statutory qualification of "not less than seven years" of service for pension eligibility.
Whether the 1986 amendment to the High Court Judges (Conditions of Service) Act applies only to judges who retired after its commencement.
Whether the respondent is entitled to a higher pension based on six years of service despite not meeting the seven‑year qualification.
Whether the addition of service period under Section 16 of the Act can be used for pension calculation.
Whether judicial activism permitting courts to rewrite legislation is constitutionally permissible.

Legislation cited

Subjects

pensionhigh court judgesminimum service periodjudicial activismstatutory interpretationamendment applicabilitygratuityfamily pensionconstitutional law

Judgment

UNION OF INDIA AND ANR.
v. A
DEOKI NANDAN AGGARWAL

SEPTEMBER 4, 1991

[K. JAGANNATIIA SHETTY, V. RAMASWAMI AND B
YQGESHWAR DAYAL, JJ]

High Court Judges (Conditions of Service) Act, 1954: Paragraphs
2, 9, Part I of First Schedule, Section 17-A-PensiOn payable to retired
Judge of High. Court-Fixing of minimum service of sev1n years-
~
Fixing of lesser pension to those not eligible-Whether discriminatory-
~ Amending Act of 1986-Whether applicable to all Judges irrespective of c
their dales ofre1irement.

Judicial Activism: Invoking of judicial activism to set ar naught
legisla1ive judgmen1-Whether subversive of the consritutional harmony
and cornily of instrumentalities-Court to carry our rhe obvious inten- D
tion of legislature-not to legislate itself.
• Court on 3.10.1983
The Respondent retired as Judge of the High
on superannuation and elected to receive his pension under Part I of the
•• First Schedule to the High Court Judges (Conditions of Service) Act,
1954. As a Judge of the High Court, he had put in service of S years 10 E
months and 17 days and his pension was determined at Rs.8,400 p.a.
and family pension at Rs.250 p.m.

In 1986, the Act was amended providing for an increased pension
from 1.11.1986. Thereafter, the Respondent filed a Writ Petition before
.\ the High Court praying for directions that he was entitled to retixation F
· of his pension from the date of his retirement at Rs.9 ,600 per annum on
the basis that the period of his service for pension was tit to be enlarged
to six years, by addition of 1 month and 13 days; that from November 1,
1986 his pension may be retixed at Rs.20,580 per annum at the rate of
Rs.3,430 for six completed years of service; and that the family pension
admissible to his wife be calculated on the basis that he had completed G
six years of service .
•
During the pendency of the Writ Petition the Respondent made
rep;·esentations to the Government of India that since the respondent
fell short of 6 completed years of service only by 1 month and 13 days,
the President may be pleased to allow him to add the period so as to H

873
874 SUPREME COURT REPORTS [1991] 3 S.C.R.

caluclate the pension, gratuity and family pension on the basis of b
A
completed years of service as a Judge. By its order dated April 16, 1987
the Government of India rejected the representation of the respondent
among other grounds that the request was belated.

By its judgment dated March 15, 1988 the High Court allowed the
B Writ Petition directing the Government to refix his pension, family
pension and gratuity treating him as having put in six completed years
of service. The Union of India has preferred the present appeal, by
special leav~J-against the High Court's order.

It was contended on behalf of the appellants that the High Court
bas re-written the retirement benefit provisions of the First Schedule to
c the Act which it was not entitled to and hence the refixation of the
pension on that basis was wholly illegal and unconstitutional.

However, during the pendency of the appeal this Court in its
proceedings dated December 15, 1988 the Government di=ted, after
D obtaining the necessary sanction from the President under Section '16 of
the Act, the addition of 1 month and 13 days subject to the final decision
of this Court in the appeal. However, it was added that the period shall
be disregarded in calculating additional pension, if any, under Part I, -·~
Part II and Part III of the First Schedule ot the said Act.

E Allowing the appeal, this Court.

HELD: I. It is a well-known practice in pensionary schemes to fix
a minimum period for purposes of pension. \\hat shall be the minimull!
periodJor such pension will depend on the particular service, the age .at
which a person could enter into such service. the normal period which
F he is expected to serve before his retirement on superannuation, and
various other factors. There is nothing in evidence to suggest that the
period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court are concerned even under the
Government of India Act a period of seven completed years of service
before superannuation was prescribed for eligibility for pension. In fact
G no pension was provided for those who had not completed seven years of
service under pre-constitutional scheme. Thus there are historical
grounds or reasons for fixing not less than seven years of service for
pension. Part I deals with pensionary scheme. Prescribing a minimum
period of service before retirement on superannuation, for pension is
the very scheme itself and not a classification. It is a qualification for
H eligibility. It is different from computation of pension. All those who

I
U.0.1. v. DEOKI NANDAN 875

satisfy that condition are eligible to get pension. [885G-H; 886A-CJ
A
2. Even those who had completed seven years of service were not
given pension for all the completed years of service at the rate of
Rs.1,600 per annum and a maximum limit has been fixed for purposes
of pension. If one calculates the maximum amount provided with refe-
r~llce to the rate per year roughly in about 14 years of service one would B
have reached the maximum amount. An,y serYice above that period is not
taken into account. Thus a person who had put in the minimum period
for getting the maximum pension could be said to be favourably treated
against the person wlio had put in more number of years of service than
.,, needed for the maximum pension and thereby discriminated. [886D-E]

3. It is not correct. to state that the amount of pension provided in c
paragraph 9 is minimum pension. The said paragraph does not use the
word 'minimum' but only states that if a Judge retires without being
eligible for pension under any of !ht provisions. notwithstanding any-
thing contained in the other provisions. the pension of a particular
amount mentioned therein shall be paid to the Judge. This amount is D
not ~alculated or has any reference to any period of service. A Judge
who had put in only two years of service before retirement will also
\. receive the same amount as that ot a Judge who has completed six years
of service. If the provision is struck down as unconstitutional the condi-
tion 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 E
seriously affected and paragraph 9 also would become inapplicable.
Further, it may be open to those who have put in more than five years
or more than four years as the case may be. to contend that they are
discriminated against because persons "ho had put in less than that
period will get pension at much higher rate. l886F-H; 887 Al
F
4. The Amending Act 38 of J 980 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 provi-
sion which made the amendment ot 1976 applicable only to those Judges
who have retired on or after October J. 1974 was struck down as ultra G
vires and it was decided that the benefit of the amendment was available
to all the retired Judges irrespective of the date of retirement but sub-
ject to the condition that the enhanced pension was payable only with
effect from October I. 1974. The Amending Act of 1986 could not
restrict the applicability of the amended provision to only those who
have retired on or after the commencement of the Amending Act. It H
876 SUPREME COURT REPORTS [1991] 3 S.C.R.

would be applicable to all the Judges irrespective of the dates of retire-
'
A ment and they would be entitled to be paid pension at the rates provided
therein with effect from November I, 1986. [883A-D]

Union of India v. B. Mal.ck. [198413 SCR 550; NL. Abhyanifar •
v. Union of India, [19841 3 SCR 552 and D.S. Nakara v. Union of
B India, [1983] 2 SCR 165, referred to.

5. In the instant case. High Court had exceeded its jurisdiction
and power in amending and altering the provisions of paragraph 2 hy
substituting different minimum period for eligibility for pension in
paragraph 2 of Part I. Since the respondent has not put in seven comp·
~
leted years of service for pension he will be eligible for pension at the
c 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
Rs.8,400 per annum and for the period on and from November I, 1986
at the rate of Rs.IS, 750 per annum. [887B-CI

D 6. Since in compliance with the mandamus issued by the High
Court, 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, this
Court does not go into the question whether the High Court was right in ~
setting aside the earlier rejection for addition of the period. The ad di-
E tion of one month and 13 days does not make any difference in calcula·
lion of pension it is relevant only for the purpose of calculating the
gratuity under section 17A(3) of the Act. As the period was less than
three months and as the President was pleased to sanction the addition
in exercise of his power under Section 16 of the Act though subject
to the final decision of this Court it is just and necessary to allow j_
F this addition to remain for the purpose. of calculation of gratuity,
and family pension only though not for pension. The respondent
will be entitled to fixation of family pension and for payment of
gratuity calculated on the basis of his having completed six years of
service. [8S7D-HI

G 7. I. It is not the duty of the Court either to enlarge the scope of ·
the legislation or the intention of the legislature when the language of
the provision is plain and unambiguous. The Court cannot rewrite, ...
recast or reframe the legislation for the very good reason that it has no
power to legislate. The power to legislate has not been conferred on the
courts. The Court cannot add words to a statute or read words into it
H which are not there. Assuming there is a defect or an omission in the

i
U.0.I. v. DEOKI NANDAN IRAMASWAMI, J.] 877

words used by the legislature the Court could not go to its aid to correct
A
or make up the deficiency, Courts shall decide what tile law is. and not
' what it should be. The Court of course adopts a construction which will
> carry out the obvious intention of the legislature but could not legislate
itself, But to invoke judicial activism to set at naught legislative judg-
ment is subversive of the constitutional harmony and comity of
instrumentalities. [88SA-D] B

7.2 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. What the High Court has done in this
_,,, case is a clear and naked usurpation oflegislative power. [88SF I
c
P.K. Unni v. Ntrmala Industries, (1990] l SCR 482; Mangilal v.
Suganchand Rathi, [1965] 5 SCR 239; Sri Ram Ram Narain Medhi v.
The State of Bombay, [1959] Supp. l SCR 489; Smt. Hira Devi & Ors.
v. District Board, Shahjahanpur, (1952] SCR 1122; Nalinakhya Bysack
v. Shyam Sunder Haldar & Ors., [1953] SCR 533; Gujarat Steel Tubes D
Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980] 2 SCR 146; S.
Narayanaswami v. G. Pannerselvam & Ors., (1973] l SCR 172; N.S.
Vardachari v. G. Vasantha Pai & Anr., (1973] 1 SCR 886; Union of
\.
India v. Sankal Chand Himat/al Sheth & Anr., [1978] 1 SCR 423 and
Commissioner of Sales Tax, U.P. v. Auriaya Chamber of Commerce,
Allahabad, (1986] 2 SCR 430, relied on. E

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3674
of 1988.
_\ From the Judgment and Order dated 15.3.1988 of the Allahabad
High Court in Civil Misc. Writ Petition No. 20328 of 1986. F

V.C. Mahajan, C.V.S. RaoancjA. SubbaRaofortheAppellants.

Deoki Nandan Aggarwal-in-person and Mrs. S. Dixit for the
Respondents.
G
The Judgment of the Court was delivered by

V. RAMASWAMI, J. The respondent was elevated as Judge of
the Allahabad High Court on November 17, 1977. He retired on
October 3, 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 H

..'
878 SUPREME COURT REPORTS [1991] 3 S.C.R.

Court Judges (Conditions of Service) Act, 1954. As he had put in only
A
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 per annum and the ••
family pension in the event _of his death earlier than his wife at Rs.250
per month in the letter of Accountant General, Allahabad dated
B December 2, 1983. The gratuity was 1-VOrked out at Rs.11,665.66 P. in
lump-sum under Section 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 October 4, 1983. The Act was amended by the Amending
Act No. 38 of 1986 providing for an increased pension with effect from
November 1, 1986. On December 10, 1986 the petitioner filed a writ
_..
petition before the Allahabad High Court under Article 226 of the .,.___
c Constitution praying for an order or directions declaring (i) that he
was entitled to refixation of his pension from the date of his retire-
ment, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 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
D 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 November 1, 1986 at Rs.20,580 per annum plus dearness allo-
wance or other allowances as may be admissible under the rules from
time to time, at the rate of Rs.3,430 per annum for six completed years
of service as stated above; (iii) to refix the family pension admissible to
E his wife on the scale allowed_ under Section 17A 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 11 days.

During the pendency of the writ petition the respondent made
representations to the Government of India stating that since the J.
F respondent fell short for 6 completed years of service only by one
month and 13 days, the President may be pleased to allow him to.add
the period so as to calculate the pension, gratuity and family pension
on the basis of 6 completed years of service as a Judge. By its order
dated April 16, 1987 the Government of India rejected the representa-
tion of the respondent among other grounds that the request was belated. By
G its judgment dated !March 15, 1988 the High Court allowed the writ
petition directing the Government to refix his pension, his family pen- ...
sion 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
H High Court has rewritten the retirement benefit provisions of the First

)
U.0.I. v. DEOKI NANDAN (RAMASWAMI, J.) 879

Schedule to th,e Act which it was not entitled to and the refixation of
the pension on that basis was wholly illegal and unconstitutional. Since A

.• 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 comput·
ing the pension under Section 16 of the Act, during the pendency of
the appeal in this Court in the proceedings dated December 15, 1988 B
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, tliey added
that tlte period shall be disregarded in calculating additional pension,
.... if any, under Part I and Part II and Part III of tlte First Schedule of the
c
Said Act.

In order to appreciate the argument of the learned counsel for
the appellant-Union of India it is necessary to set out certain provi-
sions rela~ing to pension payable to a Judge of the High Court on his
retirement. Clause 17 of the Government of India (High Court Judges) D
Order, 1937 relating to pension payable to a Judge on his retirement
which was in force prior to tlte coming into force of the Constitution
provided that "a pension shall be payable to a Judge on his retirement
" . if, but only if, either:

" (a) he has completed not less than U years' service for E
pension; or

(b) he has completed not less than 7 years' service for pen·
~\ sion and has attained the age of sixty; or

(c) he has completed not less than 7 years' service for pen- F
sion and his retirement is medically certified to be neces-
sitated by ill-health."

Thus it may be seen that under the provisions then existing a
Judge who had completed less than seven years of service was not
allowed any pension. G
•
As we are concerned in this case to the provisions applicable to a
Judge to whom Part I of the First Schedule of the High Court Judges
(Conditions of Service) Act, 1954 is applicable either by reason of his
appointment directly to the High Court from the Bar or who has
elected to receive pension payable under that part we need to set out H
880 SUPREME COURT REPORTS [1991] 3 S.C.R.

A only relevant provisions relating to pension in Part I of the First
Schedule. Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment
by Act 35 of 1976 read as follows:

"2. Subject to the other provisions of this part, the pension
B payable to a Judge to whom this Part applies and who has
completed not less than seven years of service for pension
shall be the basic pension specified in paragraph 3
increased by the additional pension, if any, to which he is
entitled under paragraph 5.

3. The basic pension to which such a Judge shall be
c entitled shall be-

(a) for the first seven completed years of service for
pension, Rs.5,000 per annum; and

D (b) for each subsequent completed year of service for
pension, a further sum of Rs.1,000 per annum:
I
provided that the basic pension shall in no case exceed
Rs.10,000 per annum.

E 4. For the purpose of calculating additional pensions,
service as a Judge shall be classified as follows:-

Grade I. Service as Chief Justice in any High Court;

Grade II. Service as any other Judge in any High Court.
F
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.
G
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.
H
U.0.l. v. DEOK! NANDAN [RAMASWAMI, J.J 881

TABLE
Service Additional pension Maximum aggregate A
per annum pension pP,r annum
Rs. Rs.
Grade I 740 20,000
Grade II 740 16,000
B
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. C

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 appointment is m D
receipt of a pension (other than a disability or wound
pension) in respect of any previous service under the Union
or a State.

Note: The Proviso was added by Act No. 46 of 1958."
E
By the Amending Act 35 of 1976 the First Schedule was amended
by substituting paragraphs 2 and 9 and deleting paragrapths 3, 4 and 5.
The substituted paragraphs 2 and 9 read as follows:

"2. Subject to the other provisions of this Part, the pension
payable to a Judge to whom this Part applies and who has F
completed not less than seven years of service for pension
shall be-

(a) for service as Chief Justice in any High Court, Rs.2,400
per annum; and
0
• (b) for service as any other Judge in any High Court,
Rs. l,600 per annum:

provided that the pension shall in no case exceed Rs.28,000
per annum in the case of a Chief Justice and Rs.22,400 per
annum in the case of any other Judge. H
882 SUPREME COURT REPORTS (19911 3 S.C.R.

9. Where a Judge to whom this Part applies, retires or has·
A
retired at any time after the 26th January, 1950 without
being eligible for pension under any other provision of this
part, then, notwithstanding anything contained in the
foregoing provisions, a pension of Rs.8,400 per annum
shall be payable to such a Judg~. ·
B
Provided that nothing in this paragraph s_hall apply-

(a) to an additional Judge or acting Judge; or

(b) to a Judge who at the time of his appointment is in
receipt of a pension (other than a disability or wound
c pension) in respect of any previous service under the Union
or a State." ·

These amended provisions were held applicable in respect of all
the Judges cif the High Court who have retired irrespective of their
D dates ofretirement iri the decisions of this Court in Union of India v.
B. Malick, (1984] 3 SCR 550 and N. L. Abhyankar v. Union of India,
[19841 3 SCR 552. However the increased pension was payable only
with effect from October 1, 1974.

Part I of th~ First Schedule. was further amended by Act 38 of
E 1986 with effect from November 1, l986 and the amended paragraph 2
reads as follows:

"2. Subject to the other provisions of this Part, the pension
payable to a Judge to whom this Part applies and who has
completed not less than seven years of service for pension
F shall be-,-

(a) for service as Chief Justice in any High Court, Rs.4,500
per annum. for each completed year of service;

(b) for service as any other Judge in any High Court,
G Rs.3,430 per annum 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."

H The Act further amended paragraph 9 by substituting Rs.15,750
for the figure Rs.6,000.
U.0.1: v. DEOKl·NANDAN {RAMASWAMl;J.) 883

At this stage itself, we may note that this Amending Act 38 of A
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 Coutt and Supreme Court Judges (COnditions of Service)
Amendment Act, 1986." A similar provision which made the am.end-
ment 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 B
in the two decisions of this Court above referred to and it wa5 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 l,
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 reasoning and logic we have to hold that Amending Act .38 of
c
1986 could not resirict the applicability of the amended provision to
'only those .who have retired on or after the commencement of the
Amending Act. The resultant pQSition would be that the provisions of
pension in Part I of First Schedule as amended by Act 38 of 1986 would
be applicable to all the Judges irrespective of the dates of retirement D
and they would be entitled to be paid pension at the rates provided
therein with effect from N.ovember 1, 1986.

As already stated, the respondent retired from service on
October 3, 1983. For the period from October 4, 1983 till October 31,
1986 the respondent claimed that he is entitled to be paid at the rate of E
Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986
whert the Amending Act 38 of 1986 came into force, plus the usual
dearness allowance admissible from time to time. This claim was made
\
·t on the ground that the power of the President under Section 16 of the Act
though discretionary could not be exercised arbitrarily or on extrane-
ous or other unsupportable grounds that on the facts and circums- F
tances the refusal to iilclude the period of one month and 13 days to the
length ot his service by the.order of the Government dated April 16,
1987 was illegal and on the facts and circumstances, his case is a fit one
for enlarging the period of his service to six· years. On the assumption
that he is entitled for such enlargement and that he had completed six
years of service, the further case of the respondent was that he is G
• entitled for calculation on the pension at the rate of Rs. l,600 for each
completed year of service and for six years at Rs.9.600 per annum for
the period prior to November 1, 1986. He. further contended that in
paragraph 2 of Part I of the First Schedule the words "who has comp-
leted not less than seven years of service for pension" shall be read as
''who has completed more than five years of service for pension" on H
884 SUPREME COURT REPORTS [199i] 3 S.C.R.

the ground that while a Judge who has completed seven years of
A
service is permitted to calculate at the rate of Rs.1,60Q for each comp-
leted years of service, a person who had not completed seven years of
service could not be denied that benefit. But finding that a person who
had completed only five years of service or less than five years of
service, if the pension is to be calculated at the rate of Rs.1,600, would
B 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
acce?ted 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. l,600 per
c 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. l,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
D 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 of pension at Rs.9,600 per annum for the period from
4.10.1983 to 31.10.1986.
E
As already stated as per the Amending Act 38 of 1986 the
pension payable for those who have completed 7 years of service was
to be calculated at the rate of Rs.3,430 for each completed year of
service and for those who have not completed 7 years of service a sum
of Rs.15 ,750 was payable as pension. On the same reasoning which
F prompted the High Court to read "less than seven years" as "more
than five years" in the provision which was in force prior to November
1, 1986 the High Court further held that since in four years service the
Judge would have earned Rs.13, 720 and on completion of five years
service he would have earned Rs.17, 150 calculated at the rate of
Rs.3430 per annum as against a sum of Rs.15,750 provided in
G paragraph 9, necessarily paragraph 2 will have to be read down by
providing instead of "not less than seven years" as "more than four
years". The learned Judges read the provisions in the manner as was
amended by them and calculated the pension payable to the respon-
dent at Rs.20,580 per annum for the period November 1, 1986. Conse-
quential relief relating to the payment of the gratuity and family
H pension in the light of the relief granted relating to pension was also
directed to be given.
U.0.1. v. DEOKI NANDAN [RAMASWAMI, J.J 885

We are at a loss to understand the reasoning of the learned
Judges in reading down the provisions in paragraph 2 in force prior to A
November 1, 1986 as "more than five years" and as "more than four
• years" in the same paragraph for the period subsequent to November
1, 1986. It is not the duty of the Court either to enlarge the scope of the
legislation or the intention of the legislature when the language of the
provision is plain and unambiguous. The Court cannot rewrite, recast B
or reframe the legislation for the very good reason that it has no power
to legislate. The power to legislate has not been conferred on the
courts. The Court cannot add words to a statute or read words into it
which are not there. Assuming there is a defect or an omission in the
words used by the legislature the Court could not go to its aid to
correct or make up the deficiency. Courts shall decide what the law is
and not what it should be. The Court of course adopts a construction c
which will carry out the obvious intention of the legislature but could
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] J SCR 482 at 488; Mangilal v. Suganchand Rathi, [1965] 5 SCR D
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 1131; Nalinkhya Bysack v. Sh yam Sunder Haldar
' & Ors., [1953] SCR 533 at 545; Gujarat Steel Tubes Ltd. v. Gujarat
Steel Tubes Mazdoor Sabha, [1980] 2 SCR 146; S. Narayanaswami v.
G. Pannerselvam & Ors., [1973] 1SCR172 at 182; N.S. Vardachari v. E
G. V asantha Pai & Anr., [1973 J 1 SCR 886; Union of India v. Sankal
Chand Himatlal Sheth &Anr., [19781 1SCR423 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 F
some times in order to avoid discrimination. If we may say so, what the
High Court has done in this case is a clear and naked usurpation of
legislative power.

The view of the High Court that paragraph 2 discriminates bet-
ween those who have completed seven years of service and those who G
• have not completed that much service is in our opinion not correct. It
is a well-known practice in pensionary schemes to fix a minimum
period for purposes of pension. What shall be the minimum period for
such pension will depend on the particular service, the age at which a
person could enter into such service, the normal period which he is
expected to serve before his retirement on superannuation, and vari- H
886 SUPREME COURT REPORTS [19'1!] 3 S.C.R.

A ous other factors. There i_ nothing in evidence to suggest that the
period of seven completed years of service fixed for pension is
arbitrary. So far as the Judges of the High Court is concerned as we
have noticed earlier even under the Government of India Act a period
of seven completed years of service before superannuation was pre-
scribed for eligibility for pension. In fact no pension was provided for
B those who had not completed seven years of service under pre-
constitution scheme. Thus we have history or historical grounds or
reasons for fixing not less than seven years of service for pension. Part
I deals with a pensionary scheme. Prescribing a minimum period of
service before retirement on superannuation, for pension is the very
scheme itself and not a classification. It is so to say a qualification for
C eligibility. It is different from computation of pension. All those who
satisfy that condition are eligible to get pension.

Even those who had completed seven years of service were not
given pension for all the completed years of service at the rate
Rs.1,600 per annum ·and a maximum limit has been fixed for purposes
D of pension. If we calculate the maximum arnount provided with refe-
rence to the rate per year roughly in about 14 years of service one
would have reached the maximum amount. Any service above that
period is not taken into account. Thus a person who had put in the
minimum period for getting the maximum pension could be said to be
favourably treated against the person who had.put in more number of
E years of service than needed for the maximum pension and thereby
discriminated. Thus the reasonableness of the provision in the pensio-
nary scheme cannot be considered in this line of reasonings. It is not
impossible to visualise a case where the pension payable would be
more than the last drawn pay if the maximum limit had not been fixed.

F 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 any-
thing contained in the other provisions, the pension of a particular
amount mentioned therein shall be paid to the Judge. This amount is
G 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 provi-
sion and strike as unconstitutional the condition relating to completion
of seven years of service in paragraph 2 all those who had put in less
H than six completed years of service would be seriously affected and
U.0.1. v. DEOKI NANDAN [RAMASWAMI, J.J 887

paragraph 9 also would become inapplicable. Further if we amend
A
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 case may be to, contend that they
are discrimina~ed against because persons who had put in less than that
period will get pension at much higher rate.
B
We have, therefore, no doubt that the 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 c
31.10.1986 at the rate of Rs.8,400 per annum and for the peHo.d on and
from November 1, 1986 at the rate of Rs.15,750per annum.
We have already noticed that during the pendency of the appeal
in this Court in the proceedings dated December 15, 1988 the Govern-
ment of India communicated 'to the Chief Secretary, Government of D
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 ser~ice subject to. the final decision in this appeal. In the
circumstances however and in the view we have expressed earlied on
the question of peqsion, we do not want to go into the question E
whether the High Court was right in setting aside the earlier rejection
for addition of the period. 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 17 A(3) of the
Act. As the period is less than three months and as the President was F
pleased to sanction the addition in exercise of his power under Section
16 of the Act though subject to the final decision of this Court we
would consider it just and necessary to allow this addition remain in
force for the purposes of calculation of gratuity, and family pension
only though not for pension.
The appeal is accordingly allowed ·and the order of the High G
• Court is set aside. The respondent will however be entitled to fixation
of family pension and for payment of gratuity calculated on the basis of
his having completed six years of service. There will be no orders as to
costs.

G.N. Appeal .allowed.