Brij Nandan Lal v. State of U. P. — 1971 DIGILAW 279 (ALL)

JUDGMENT W. Broome, J.-Patkak, J. - I greatly regret I am unable to agree. 2. The petitioner retired as District and Session judges on different dates between February 9, 1962 and March 15, 1955. Article 4 of the Civil Service Regulation provides that an Officer's claim to pension is regulated by the rules in force at the time when the officer resigns or is discharged from the service of Government. Part IV of the Civil Service Regulations provides for Ordinary Pensions. Article 394-A of Sec. I of Chapter XV thereof declares that the rules in Article 401-A, 465-A, 474-A and 575-A will apply to offices appointed into alia, to "the Provincial Civil Service Executive and judicial." Article 474-A (1) (ii) is relevant. It provides the scale of retiring pension, the maximum limit being Rs. 6,000/- a year, that is, in the case of those officers who have completed 30 years and more of service. That is the provision which the State Government has applied in the case of the petitioners. The petitioners contend, on the contrary that they are governed by rule 13 (1) (a) of the Superior Civil Services (Revision of pay, passage and pension) Rules. If that rule applies, there can be no doubt that after 30 years of qualifying service the petitioners would be entitled to a pension of Rs. 7,000/- a year. Now, rule 13 (1) (a) applies to members of the services and holders of posts specified in Schedule V. In Schedule V, there is the entry : "Officer who, though not members of one of the services mentioned above, hold posts borne on the cadre of any of those services or on the Indian Civil Service." The case of petitioner is that they held posts borne on the cadre of the Indian Civil Service. The question is whether they are right. 3. Prior to April 1, 1937 there were a number of posts of District and Sessions Judges and of Civil and Sessions Judges on the I. C. S. cadre. These were ordinarily manned by the members of the Indian Civil Service. Out of those posts nine posts of District and Sessions judges were described as "listed posts" to which members of the U.P. Civil Service (Judicial Branch) were appointed. These were ordinarily manned by the members of the Indian Civil Service. Out of those posts nine posts of District and Sessions judges were described as "listed posts" to which members of the U.P. Civil Service (Judicial Branch) were appointed. When the Government of India Act, 1935 came into force, then with effect from April 1, 1937 eleven out of those fifteen posts of Civil and Sessions Judges were taken out of the I.C.S. cadre and added to the cadre of the U.P. Civil Service (Judicial Branch) . The remaining four posts of Civil and Sessions ,Judge borne on the I. C. S. cadre were filled up exclusively by members of the Indian Civil Service. Therefore, as from April 1, 1937 there ceased to be any "listed posts" of Civil and Sessions judges on the I.C.S. cadre. In other words, the members of the U.P. Civil Service (Judicial Branch) were no longer entitled to be appointed to the posts of Civil and Sessions judges borne on the I.C.S. cadre, Meanwhile, the "listed posts" of District and Sessions judges continued on the I.C.S. cadre. They were nine in number, and remained open to the members of the U.P. Civil Service (Judicial Branch) . Then, with the achievement of independence on August 15, 1947, the scene changed. It was decided to wind up the Secretary of States Services. It was also decided to create the U.P. Higher Judicial Service to provide for posts of District and Sessions judges formerly borne on the cadre of the I.C.S. The U.P. Higher Judicial Service was created by a Notification No. P-2419/11-A-447/1948 dated November 12, 1949 made under Section 241 of the Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order 1947, and it declared that "in order to replace the posts of District and Sessions Judges which had been provided in the I.C.S. cadre of the United Provinces, a new service called the United Provinces Higher Judicial Service shall be formed with retrospective effect from August 15, 1917 with the following carde strength : "District and Sessions Judges including Judicial Secretary and Legal Remembrances ........................................30." Therefore, as from August 15, 1947, the posts of District and Sessions judges were no longer posts borne on the I.C.S. cadre. They were posts in the U.P. Higher Judicial Service. They were posts in the U.P. Higher Judicial Service. This is borne out by the terms of the communication dated August 17, 1950 addressed to the Registrar of this Court by the Chief secretary to the State Government. Reference is made in that document to the decision of the Government to provide provisionally for pension admissible to District and Sessions Judges in the U.P. Higher Judicial Service. It was not necessary to provide for pension in respect of those holding listed posts "borne on the I.C.S. cadre as provision in that behalf already existed. A perusal of the document shows that the posts of District and Sessions Judges in the U.P. Higher judicial Service have been treated as distinct from the "listed posts" borne on the I.C.S. cadre. The former are referred to as corresponding in status to the latter. Reading the document as a whole it appears to have been intended that the District and Sessions Judges in the U.P. Higher judicial Service would be provisionally entitled to pension under Rules 13 and 14 of the Superior Civil Service on the same basis as District and Sessions Judges holding "listed posts" borne on the I.C.S. cadre. Then follows the G.O. No. P-1243/II-A. 467/1963, dated March, 30 1961, the application of which is in controversy before us. 4. From what has gone before, it would seem, therefore, that it was no longer possible for members of the U.P. Civil Service (Judicial Branch) to be appointed to the "listed posts" of Civil and Sessions Judges as from April 1, 1937 and to the "listed posts" of District and Sessions Judges as from August 15, 1947. 5. Considered with reference to the "listed posts" of Civil and Sessions Judges, there is nothing on the record to show that the petitioners held those posts from before April 1, 1937. And considered with reference to the "listed posts" of District and Sessions Judges. there is nothing to show that they held those posts in a substantive capacity before August 15, 1947,. A Government servant, in my opinion, can be said to hold a post only when he holds it in a substantive capacity. A post is held by a Government servant when it can be said that he has a right to hold it. The right to hold a post accrues when it is held in a substantive capacity. A Government servant, in my opinion, can be said to hold a post only when he holds it in a substantive capacity. A post is held by a Government servant when it can be said that he has a right to hold it. The right to hold a post accrues when it is held in a substantive capacity. The petitioners, as appears from the record before us, were confirmed as District and Sessions Judges long after August 15, 1947. The posts which they held on confirmation were not "listed posts". The posts which they held were those belonging to the U.P. Higher Judicial Service created with effect from August 15, 1947. We have been referred to the Notification dated November 12, 1949 referring to the creation of the U.P. Higher Judicial Service and in particular to the note set out thereunder stating that "the emoluments and conditions of service of the District and Sessions Judges who are members of the I.C.S. or hold listed posts in the I.C.S. shall remain as hitherto." This note, in my opinion, refers to the members of the I.C.S. and those who held "listed posts" in the I.C.S. in a substantive capacity before August 15, 1947. 6. I am of opinion that the petitioners, when they retired as District and Sessions Judges, did not hold posts borne on the cadre of the I.C.S. and are, therefore, not entitled to the benefit of the scale of pension provided by Rule 13 (1) (a) of the U.P. Superior Civil Service (Revision of Pay, Passage and Pension) Rules. 7. The petitioners contend, in the alternative that the State Government has discriminated between them and those District and Sessions Judges who had retired before August 17, 1950 inasmuch as the benefit of rules 13 and 14 of the Superior Civil Service (Revision of Pay, Passage and Pension) Rules, 1924 has been made available to the letter but not to the petitioners. I am not satisfied that the contention has any substance. The benefit of rules 13 and 14 was conferred provisionally only, as is clear from the Chief Secretary's latter of August 17, 1950. The Government Order dated March 30, 1961, which governs the petitioners, operates with retrospective effect from August 15, 1947 and applies to all members of the Service who had retired since or would retire thereafter. The benefit of rules 13 and 14 was conferred provisionally only, as is clear from the Chief Secretary's latter of August 17, 1950. The Government Order dated March 30, 1961, which governs the petitioners, operates with retrospective effect from August 15, 1947 and applies to all members of the Service who had retired since or would retire thereafter. The only exception were such members who would have on or after October 21, 1946 been confirmed in the listed posts" in the I.C.S. cadre but for the ban on such confirmation, and whose pension had already been determined finally in accordance with the orders applicable to them. The petitioners have been unable to point to a single specific instance of a District and Sessions Judge falling in the same class as themselves and who has none the less been given the benefit of rules 13 and 14 of the Superior Service Rules. 8. In my judgment the petition must fail. In the circumstances, I express no opinion on the merits of the preliminary objection raised by the respondents that the petitioners are guilty of laches and should, therefore, be refused relief. 9. The petition is dismissed, but without any order as to costs. 10. Gulati, J.- The petitioners, who are five in number, were confirmed District and Sessions Judge and post borne on the cadre of the U.P. Higher Judicial Service. They retired between the years 1952 and 1955 on attaining the age of superannuation, which at the material time was 55 years. The dispute raised by the petitioners relates to the amount of pension to which they are entitled. According to them, they became entitled on retirement to pension of two kinds, namely :- (i) Ordinary pension admissible under Article 474-A of the Civil Service Regulations, read with rule 13 (1) (a) of the Superior Civil Services (Revisions of pay, Passage and Pension) Rules, 1924, for holding a `listed post' born on the cadre of the Indian Civil Service for which a maximum pension of Rs. 7,000/- is provided for persons who have put in qualifying service of 30 or more years. (ii) Special Additional pension under Article 475-A of the Civil Service Regulations, for service as a District and Sessions judge, at the rate of Rs. 300/- per annum, for every completed year of service as such, subject to the maximum of Rs. 1,500/-. 7,000/- is provided for persons who have put in qualifying service of 30 or more years. (ii) Special Additional pension under Article 475-A of the Civil Service Regulations, for service as a District and Sessions judge, at the rate of Rs. 300/- per annum, for every completed year of service as such, subject to the maximum of Rs. 1,500/-. The State of Uttar Pradesh, on the other hand, has fixed their ordinary pension at Rs. 6,000/- in accordance with the scale of pension prescribed under Article 474-A, according to which the maximum pension for officers who have put in a qualifying service of 30 years or more, is Rs. 6,000/-. The State has also sanctioned to them the Special Additional Pension Admissible under Article 474-A. 11. In this way there is a difference of about Rs. 1,000/- per annum in the case of each petitioner. The final order fixing the amount of pension in respect of each petitioner were issued between December 1961 to April 27, 1963. True Copies of those orders have been annexed to the petition as Annexures `E' `F' `G', `H' and `I'. Those orders purport to have been passed in pursuance of G.O. No. P. 1243/II-A-467/1953 dated March 31, 1961. 12. The petitioners have in this petition challenged those orders and have prayed for writs of certiorari queshing those orders as also for writs of mandomus commanding the State of Uttar Pradesh, to fix the petitioner's gross pension specified in the Schedule attached to the petition and to pay the arrears of pension and interest. The respondent State has opposed this petition both on the merits as well as on a preliminary ground. The preliminary ground is that the petition is highly belated. 13. Before dealing with the revial contentions of the parties, it would be appropriate to state briefly the material facts. 14. Originally the posts of District and Sessions Judges and those of Civil and Sessions Judges were reserved for the members of the Indian Civil Service. The preliminary ground is that the petition is highly belated. 13. Before dealing with the revial contentions of the parties, it would be appropriate to state briefly the material facts. 14. Originally the posts of District and Sessions Judges and those of Civil and Sessions Judges were reserved for the members of the Indian Civil Service. A certain number of those posts was however thrown open to the members of the U.P. Civil service (Judicial Branch) and such posts were called `listed posts' After India obtained independence on August 15, 1947, the Indian Civil Service was abolished and was replaced by the Indian Administrative Service, but the judicial posts were excluded from the cadre of the Indian Administrative Service leaving them to be filled mostly by the members of the provincial State judicial Service. Later on by a notification dated November 12, 1949, a separate cadre known as the U.P. Higher Judicial Service was created with a strength of 30 District and Sessions Judges including the Judicial Secretary and the legal Rememberancer. The scale of pay of the members of this cadre was fixed, but the emoluments and the conditions of the service of the District and Sessions judges, who were members of the Indian Civil Services or who held the listed posts in the Indian Civil Service were left unaltered. From time to time the strength of this cadre was increased. 15. The State of Uttar Pradesh, however, issued a G.O. No. O-3868 (ii)/II-B.-5-1949, dated August 17, 1950. That G.O. has been annexed to the writ petition as Annexure `A' and reads as under :- " (B) Department. Dated Lucknow, August 17, 1960. From time to time the strength of this cadre was increased. 15. The State of Uttar Pradesh, however, issued a G.O. No. O-3868 (ii)/II-B.-5-1949, dated August 17, 1950. That G.O. has been annexed to the writ petition as Annexure `A' and reads as under :- " (B) Department. Dated Lucknow, August 17, 1960. Subject : Pension of Provincial Civil Service Officers promoted as District and Sessions Judges in the Uttar Pradesh Higher Judicial Service., Sir, I am directed to say that on the winding up of the Secretary of State's Services, the Uttar Pradesh Higher Judicial Service was created to provide for posts of District and Sessions judges formerly borne on the cadre of the I.C.S. pending finalisation of the service rules of this service Government have under consideration the question of fixation of pension of Provincial service Officers on promotion as District and Sessions Judge in the Higher Judicial service which correspond in status to `listed posts' in the I. C. S. It has been decided that until the new pension rules are framed, such officers may be granted provisionally only the maximum ordinary pension which would have been admissible to them under rules 13 and 14 of the Superior Civil Service Rules, if they had been appointed to listed posts of District and Sessions Judges in the I.C.S. Such pension would be subject to adjustment later in the light of the new pension rules that may eventually be prescribed for the Uttar Pradesh Higher Judicial Service. 2. Listed post holders are also eligible for additional pensions of the upper and lower administrative grades as the case may be, under Article 475-A of the Civil Service Regulations. Although new pension rules have not been finalised, it is not contemplated to provide in those rules for the grant of Additional pension. It has accordingly been decided that no special additional pension should be granted to District and Sessions judges promoted to posts in the Higher Judicial Service." In pursuance of the aforesaid G.O. the pension payable to each petitioner was provisionally fixed at Rs. 7,000/- or less depending on whether he had put in qualifying service of 30 years or less. The Special Additional pension admissible under Article 474-A was, however, withdrawn. 7,000/- or less depending on whether he had put in qualifying service of 30 years or less. The Special Additional pension admissible under Article 474-A was, however, withdrawn. The petitioners contend, that Special Additional Pension was withdrawn because the State had under contemplation the framing of pension rules which were expected to make provision for a higher and better pension in place of special additional pension. 16. Although the U.P. Higher Judicial Service was created in 1949, with effect from August 15, 1947, yet no rules pertaining to the condition of service of the members of this newly created cadre were framed for a long time. The rules came to be framed in 1953 and were called the U.P. Higher Judicial Service Rules, 1953, which were published in the gazette of April 1, 1953, but curiously those rules also did not contain any provision for pensionary benefits. Rule 26 of the Rules, however, provided :- "28. REGULATION OF ALLOWANCES PENSION etc. : Except as provided in these rules, the pay, allowances, pensions leave and other conditions of service, shall be regulated by rules made under Article 309 of the Constitution, and pending the issue of such rules, by the rules made applicable,by Government notification no. A-5822/X-303, dated November 14, 1930 and No. G.O. 698/X-534 (44), dated July 18, 1937 and Continued in force under Article 313 of the Constitution of India." 17. Rule 29 then provided that notwithstanding anything contained in those Rules, the conditions of service of the District and Sessions judge, who are members of the Indian Civil Service, shall remain as hitherto. The State of Uttar Pradesh finally framed the U.P. Liberalised Pension Rules, 1961, which were published on September 12, 1961, followed by the Uttar Pradesh Retirement Benefits Rules, 1961, published on March 29, 1952. Under these Rules, the Special Additional Pensions were abolished (vide rule 4 (2) of the U.P. Retirement Benefit Rules, 1961), but some additional benefits by way of death-cum-retirement gratuity were provided. Unfortunately, these rules were made applicable only to persons who retired on or after April 1, 1961 did not cover the cases of the officers like the petitioners, who had retired before that date. 18. Unfortunately, these rules were made applicable only to persons who retired on or after April 1, 1961 did not cover the cases of the officers like the petitioners, who had retired before that date. 18. In order, however to cover the cases of the officers, who had retired prior to the coming into force of the newly framed pension rules relating to the Higher Judicial Service, the State issued a G.O. dated March 30, 1961. The impugned orders fixing the pension of the petitioners finally have been passed in pursuance of this G.O. Naturally the entire controversy centres round the interpretation of this G.O. and it would, therefore, be useful to reproduce that G. O. in full : "G. O. No. P. 1243/II-A-467/1963, dated March 30, 1961 from the Mukhya Sachiv Government of Uttar Pradesh, Niyukti (Ka) Vibhag, Lucknow to the Registrar High Court, Allahabad. Sir, I am directed to refer to the correspondence resting with your letter No. 16308, dated November 4, 1960, and to say that, after due consideration, the Governor has decided that in the matter of pensionary benefits, the members of the U.P. Higher Judicial Service will be governed by the same rules as are applicable to members of other State Services under his rule making control. Accordingly, in supersession of the provisional orders contained in G. O. No O-3858 (ii)/II-B-5./1949, dated August 17, 1950, the Governor has decided that the pension rules contained in the Civil Service Regulations, as adapted by the State Government will apply in their entirety to members of the U.P. Higher Judicial Service. According to the above Regulations in addition to the ordinary pension admissible thereunder the members of the Service will also he eligible for the grant of Special Additional Pension admissible under Article -475-A, of the Regulations in respect of their service in the posts of District and Sessions Judges in the Cadre of the service. 2. The above orders will have retrospective effect from August 15, 1917, and shall apply to all members of the Service who have retired since then or who may retire thereafter, except in the case of such members as would have on or before October 21, 1945 been confirmed in listed posts in the Indian Civil Service but for the ban on such confirmation and whose pension has already been determined finally in accordance with the orders applicable to them. 3. 3. The Accountant General, U.P. is being asked to finalise at an early date, in accordance with the above orders, the pension of such retired members of the Service as have been allowed provisional pension in accordance with the orders contained in the Government Order dated August 17, 1950, referred to above." 19. According to the petitioner's contention, the intention behind this G.O. was to restore status quo ante so far as the officers like the petitioners were concerned. The intention could not have been to reduce the pension with retrospective effect. In the alternative it is contended that if the G.O. in question is interpreted to mean that the petitioner's pension could be reduced with retrospective effect, the same is invalid and beyond the competence of the Government and further that the impugned order would be unconstitutional offending against Article 14 of the Constitution inasmuch as insidious discrimination has resulted against the petitioners in the matter of pension; the reason being that other officers like the petitioners who had joined the service on the same terms and conditions as applicable to the petitioners and who had retired before August 17, 1950 had been given higher pension. The contention in short is that the G.O. of March 30, 1961, should be so interpreted as to mean that the petitioner's pension were to be fixed in accordance with the rules which were in force at the time of their retirement or to strike down the G.O. as ultra vires. The G.O. appears to have done two things, (1) that the Special Additional Pension admissible under Article 475-A of the Regulations which was withheld previously on August 17, 1950 was restored and (2) that all the members of the U.P. Higher Judicial Service, who had retired between August 15, 1947 and April 1, 1961 were to be allowed ordinary pension under the Rules as were applicable to the Members of the other State Services under the rude making control of the Governor. Thus it is clear that the Special Additional pension under Article 475-A which was originally withheld from the petitioners has been restored. The only controversy between the parties is with regard to the ordinary pension allowable to the petitioners. 20. Thus it is clear that the Special Additional pension under Article 475-A which was originally withheld from the petitioners has been restored. The only controversy between the parties is with regard to the ordinary pension allowable to the petitioners. 20. There is no doubt that by a notification dated November 12, 1949, the posts of the District and Sessions Judges were transferred from the cadre of the Indian Civil Services to that of the Higher Judicial Service leaving their rights to pensionary benefits unaffected. Rule 28 of the U.P. Higher Judicial Service Rules of 1953 refers to two notifications dated November 14, 1930 and July 16, 1937. These two notifications have been annexed to the petition as Annexures `B' and `C' respectively. A. reading of these two notifications shows that pending the promulgation of their own rules relating to pension, the then Government of United Provinces had declared that the pensions of the Government servants of the U.P. Government were to be governed by the relevant rules in the Civil Services Regulations. 21. The short question, therefore, that has been left to be decided is as to the meaning of the words `ordinary pension' as used in the G.O. of March 30, 1961. It appears to be the admitted case of the parties that the ordinary pension is to be determined in accordance with Regulation 474-A of the Civil Services Regulations. That also appears to be the position when one looks at Article 474-A. That Article applies to officers mentioned in Article 349-A which provides that the rules in Articles 404-A, 465-A, 474-A and 475-A would apply to officers other than military officers and the members of the Indian Civil Service appointed substantively to the service or the appointments mentioned in that Article. One of the services mentioned therein is "Provincial Civil Services Executive and Judicial." 22. Now, Article 474-A prescribes two scales of pension which for tho sake of convenience would be referred to as Scale `A' and Scale `B'. The first scale which is Scale `A' is as below: Years of Completed Service. Sale of Pension Maximum limit of Pension. 25 30 sixtieths of average emoluments Rs. 5000 a year 26 30 " " " Rs. 5200 " 27 30 " " " Rs. 5400 " 28 30 " " " Rs. 5600 " 29 30 " " " Rs. Sale of Pension Maximum limit of Pension. 25 30 sixtieths of average emoluments Rs. 5000 a year 26 30 " " " Rs. 5200 " 27 30 " " " Rs. 5400 " 28 30 " " " Rs. 5600 " 29 30 " " " Rs. 5800 " 30 and above 30 " " " Rs. 6000 " The second scale which is Scale `B' provides for slightly higher rate of pension and is applicable in cases of officers who are governed by Rule 13 (1) (a) of the Superior Civil Services (Revision of Pay, Passage and Pension) Rules, 1924. That scale is as under :- After 25 years qualifying service Rs. 6000 " 26 " " " Rs. 6200 " 27 " " " Rs. 5400 " 28 " " " Rs. 6600 " 29 " " " Rs. 6800 " 30 " " " Rs. 7000 The only controversy between the parties appears to be as to whether the petitioners are entitled to ordinary pension in accordance with Scale `A' or Scale B. The petitioners' contention is that it is Scale `B' which is applicable in their case while the Government has fixed their pension in accordance with Scale A. The answer to that question would depend on as to whether Rule 13 (1) (a) of the Superior Civil Service (Revision of Pay, passage and pension) Rules, 1924, is applicable in the case of the petitioners. That rule reads thus:- "13 (1) (a) . In the case of members of the service and holders of the posts specified in Schedule V whose pensions are regulated under the Civil Rules and who retire on or after the 1st April, 1924, the maximum limits for retiring and superannuation pensions, excluding amounts earned for special additional pensions shall be as followed." Then it sets cut the scale of pension which has already been reproduced above. When one turns to Schedule V mentioned in Rule 13 (1) (a) one finds that it sets out certain All India and Central Services to which the rule applies. Under the category of "Central Services", is the following entry : "Officers who, though not members of one of the services mentioned above hold posts borne on the cadres of any of those services or of the Indian Civil Services. Under the category of "Central Services", is the following entry : "Officers who, though not members of one of the services mentioned above hold posts borne on the cadres of any of those services or of the Indian Civil Services. There can be no manner of doubt that the `listed posts' referred to above were the posts which were borne on the cadre of Indian Civil Services. The only question that remains is as to whether the petitioners occupied such posts or not. It has already been mentioned that the posts of District and Sessions Judge as also Civil and Sessions judges were reserved for the members of the Indian Civil Services. Therefore all such parts were borne on the cadre of Indian Civil Services. A small portion of these posts, however, were thrown: open to the members of the provincial Civil Services and obviously the officers of Provincial Civil Services who came to occupy such posts were occupying the posts which were borne on the cadre of the Indian Civil Services. if that be so, the pension of such officers was to be fixed in accordance with Articles 474-A read with Rule 13 (1) (a) of the Superior Civil Services Rules, 1924. 23. That the Members of the Higher Judicial Service like the petitioners were to receive their ordinary pensions in accordance with Article 474-A of the Civil Services Regulations read with Rules 13 (1) (a) of the Superior Civil Services Rules, 1924, also derives support from the fact that the provisional ordinary pensions allowed to the petitioners under the G.O. dated August 17, 1950 was fixed with reference to Rule 13 (1) (a) of the Rules, 1924, otherwise there is no reason why their ordinary pension should not have been fixed provisionally in accordance with the Scale `B' mentioned above. The only thing which at that time was not decided by the Government was as to whether or not the petitioners should be allowed the Special Additional Pension admissible under Art. 475-A which admittedly they were entitled to at that time. The Special Additional Pension was withdrawn on the consideration that the same would be replaced by an additional pensionary benefit under the rules which the Government intended to frame in future. The Special Additional Pension was withdrawn on the consideration that the same would be replaced by an additional pensionary benefit under the rules which the Government intended to frame in future. After the rules were framed the Special Additional Pension was withdrawn and in its place benefits of other kinds were provided for, but as it is, those rules were not made applicable to the officers who had retired prior to April 1, 1961. That is why the Government decided to allow to the petitioners the Special Additional Pension under the G.O. of March, 30, 1961. The contention of the State that the ordinary pension under G.O. of March 30, 1961 refers to the scale of ordinary pension mentioned in Scale `A', therefore, appears to be plainly wrong. 24. To my mind the word `ordinary' in the G. O. in question has been used in contradiction to the Special additional pension admissible under Art.. 474-A. There are only two kinds of pensions, one is `ordinary pension' and the other is `the special additional pension'. In the case of officers, who are not governed by rule 13 (1) (a) of the Superior Civil Services Rules, 1924, the scale of pension admissible is in the scale as mentioned in Table A which goes upto the maximum of Rs. 6,000/-, but the officers who are governed by rule 13 (1) (a), the scale of pension is slightly higher and goes upto the maximum of Rs. 7,000/- as indicated in Table B. 25. I have already pointed out above that the officers like the petitioners, who had occupied the posts of the Civil and Sessions judges as also of District and Sessions judges, were holding `listed posts' in the category of Indian Civil Services and therefore in their case the ordinary pension would be the one admissible under Article 474-A read with rule 13 (1) (a) of the Superior Civil Services Rules of 1924. 26. In its counter-affidavit the State has taken the stand that rule 13 (1) (a) of the Superior Civil Services Rules, 1924 would be applicable only in the case of officers who had been confirmed in the post of District and Sessions judge prior to August, 1947, Annexure `VII' has been filed along with the counter-affidavit to show that the petitioners were confirmed as District and Sessions judges from various dates between 13th July, 1948 to 1st July, 1951. This contention also appears to be wholly untenable. 27. Rule 13 (1) (a) of the Superior Civil Services Rules, 1924, is applicable to all officers, who occupied the `listed posts' which were borne on the cadre of the Indian Civil Services and the `listed post' included the posts not only of the District and Sessions judges but also of Civil and Sessions Judges. It follows, therefore, that all officers, who before the creation of the U.P. Higher Judicial Service were occupying the posts of Civil and Sessions Judges or District and Sessions Judges, were occupants of the `listed post' and the facts that they came to be confirmed as District and Sessions judges after the creation of the Higher judicial Service does not detract from that position. 28. Nothing has been brought on the record to show that it is only such District and Sessions judges as had been confirmed prior to August 15, 1947 were eligible for the higher scale of ordinary pension under Article 474-A read with rule 13 (1) (a) of the Superior Civil Services Rules, 1924. It is true that recruitment to the Indian Civil Service was stopped after August, 1947. It is also true that the members of the provincial Civil Services who were occupying `listed posts' either as District and Sessions judges or as Civil and Sessions Judges, were transferred to the newly created cadre of the U.P. Higher Judicial Service in 1949, but that does not mean that their conditions of service relating to their emoluments and pensions were in any way altered. In fact rule 28 of the U.P. Higher Judicial Service Rules preserved their rights in that behalf. Admittedly Article 474-A even now applies to the petitioners. The Article is of general application and rule 13 (1) (a) of the Superior Civil Services Rules, 1924, merely makes an amendment in that Article. I have already shown that Article 13 (1) (a) applies to certain All India Services and Central Services as also to officers, who occupied certain posts in the cadre of such services or in the cadre of the Indian Civil Services. It is abundantly clear that the petitioners had occupied the posts borne on the cadre of the Indian Civil Services prior to the creation of the U.P. Higher Judicial Service. It is abundantly clear that the petitioners had occupied the posts borne on the cadre of the Indian Civil Services prior to the creation of the U.P. Higher Judicial Service. They were, therefore, entitled to ordinary pension in accordance with Article 474-A read with Rules 13 (1) (a) of the Superior Civil Services Rules of 1924. I am accordingly of opinion that the G.O. dated March 30, 1961 relating to the payment of ordinary pension to the petitioners should be interpreted to have reference to the ordinary pension admissible in accordance with the rules in force at the time of the retirement of the petitioners. According to such rules, the petitioners were entitled to the higher scale of ordinary pension as envisaged by rule 13 (1) (a) of the Superior Civil Services Rules 1924. That being the position, it is not necessary to examine the alternative plea of the petitioners that the impugned order should be struck down as ultra vires. 29. So far as the preliminary objection is concerned I find that there is absolutely no substance in that objection. The petitioners have stated that after the G.O. of August 17, 1950, when their pensions were fixed provisionally they did not object to the withholding of the additional pensions because they were assured that better benefits were under contemplation of the State Government in the Rules which were intended to be framed for the members of the Higher Judicial Services. It is further stated that when the orders came fixing their scales of pensions finally they made representations to the Government of U.P. in 1962 and then in 1964. Thereafter they waited in a deputation on the then Chief Minister and presented a written memorandum. Thereafter they twice met the Home Minister during June 1967 and reminders were sent by registered post and in January 1968. The petitioners made a written representation to the Law Minister but there has been no response to any of the representations so far. It is clear that under the circumstances the petitioners cannot be held to be guilty of laches or inaction, As a matter of fact, the boot is on the other leg. It is the State of Uttar Pradesh which is guilty of gross inaction. It is clear that under the circumstances the petitioners cannot be held to be guilty of laches or inaction, As a matter of fact, the boot is on the other leg. It is the State of Uttar Pradesh which is guilty of gross inaction. In the first instance they took several years to frame pension rules for the Higher Judicial Service and when they came to be framed, they were not made applicable to the officers who had retired before 1-4-1961 although that was not the intention of the Government to start with. Secondly when the representation were made to the State Govt. and its Minister, it was the duty of the State Government to have taken prompt action on the said representations and to have given its decision. As it is, the State Government sat tight over the representations and took no decision whatsoever, in the matter. It is not denied by the learned counsel appearing for the State that the representations made by the petitioners were bound to be considered by the State Government and they could not be considered to be waste paper. The petitioners were all responsible officers belonging to the State judicialy,who had occupied the high posts of District and Sessions Judges. They were not expected to rush to the Court while their representations were still under the consideration of the Government. It is the State of Uttar Pradesh which has, in fact, failed to discharge its duty. It is settled principle of law that no one can be allowed to take advantage of his own default. The State Government clearly committed a default inasmuch as it did not take any decision on the representation made by the petitioners and the State Government cannot be allowed to turn round and to say that the petitioners have lost their right because of its own inaction and negligence. 30. For the foregoing reasons, I am of opinion that this petition must succeed and the same is allowed. A writ of mandamus shall issue to the opposite party requiring it to fix the petitioners' gross pension at the amounts specified in the Schedule annexed at the foot of the petition, and also to pay to the petitioners the arrears of pension so calculated with interest at a reasonable rate. The petitioners are entitled to the costs of this petition. 31. The petitioners are entitled to the costs of this petition. 31. Pathak and Gulati, JJ.- In view of the difference of opinion between us, this case is referred to a third Hon'ble judge for his opinion on the points in controversy. 32. The papers of the case shall be laid before the Hon'ble the Chief Justice for necessary orders. (On a difference of opinion between R. S. Pathak and R. L. Gulati, JJ.) 33. Broome, J.-This writ petition has been referred to me for opinion in accordance with the procedure laid down in Chapter VIII, rule 3 of the Rules of Court, because the Hon'ble judges who originally heard it could not agree as to how it should be disposed of and were equally divided, Pathak, J. being in favour of dismissal, while Gulati, J. wished to allow the petition. 34. The detailed facts of the case have been set forth in the judgment of Gulati, J. and it is unnecessary for me to give more than a bare outline. The five petitioners, who were confirmed District and Sessions judges, retired on various dated between February 1952 and March 1955 on attaining the age of 55 years. They claim that they are entitled to ordinary pension up to a maximum of Rs. 7,000/- under Article 474-A of the Civil Service Regulations, together with Special Additional Pension under Article 475-A of the Civil Service Regulation at the rate of Rs. 300/- per annum for every completed year of service as District and Sessions judge, subject to a maximum of Rs. 1500/-. The State has granted them the Special Additional Pension, but has fixed their ordinary pension at Rs. 6,000/- instead of Rs. 7,000/-. 35. The question that has to be decided, therefore, is whether the petitioners are entitled to ordinary pension at the rate of Rs. 7,000/-, as they claim. The position appears to be as follows. 1500/-. The State has granted them the Special Additional Pension, but has fixed their ordinary pension at Rs. 6,000/- instead of Rs. 7,000/-. 35. The question that has to be decided, therefore, is whether the petitioners are entitled to ordinary pension at the rate of Rs. 7,000/-, as they claim. The position appears to be as follows. The posts of District and Sessions Judges were originally meant for members of the Indian Civil Service only; but gradually they were thrown open to Provincial Service officers also, who came to be described as holding `listed posts.' In 1949 these District and Sessions judges, posts were transferred to the cadre of the U.P. Higher Judicial Service, with retrospective effect from 15-8-1947 (vide Annexure I to the counter-affidavit filed in this case) ; and rule 28 of the U.P. Higher Judicial Service Rules provided that the pensions of officers belonging to that service would be regulated by rules made under Article 309 of the Constitution, and pending the issue of such rules, by the rules made applicable by certain Government Notifications dated 14-11-1930 and 16-7-1937 (Annexures B and C to the petition) . With regard to officers who retired after 31-3-1961 fresh rules were framed in 1961 viz. the U.P. Liberalised Pension Rules and the U.P. Retirement Benefit Rules. But in the case of officers like the petitioners, who retired after 15-8-1947 but before 31-3-1961, no fresh rules were made they continued to be governed as regards pension, by the Notifications (Annexures B and C), which make applicable the "pension rules in the Civil Services Regulations as issued and amended from time to time by the Secretary of State in Council or by the United Provinces Government". The petitioners contend that they should be treated as holding that `listed posts' of the Indian Civil Service and that consequently they are entitled under the Superior Civil Services (Revision of pay, Pension and Passage) Rules (reproduced at pages 323 to 328 of Vol. I of the Civil Service Regulations, 6th edition) to pensions up to a maximum of Rs. 7.000/-, because they are included in Schedule V of these Rules being "officers who .......... hold posts borne on the cadres.... of the Indian Civil Services." 36. I of the Civil Service Regulations, 6th edition) to pensions up to a maximum of Rs. 7.000/-, because they are included in Schedule V of these Rules being "officers who .......... hold posts borne on the cadres.... of the Indian Civil Services." 36. On 17-8-1950 provisional instructions were issued regarding the pensions of District and Sessions judges by means of a G. O. (Annexure A to the petition) which runs as follows :- "I am directed to say that on the winding of the Secretary of State's Services, the Uttar Pradesh Higher Judicial Service was created to provide for posts of District and Sessions judges formerly borne on the cadre of the I.C.S. pending finalisation of the service rules of this service, Government have under consideration the question of fixation of pension of Provincial Service Officers on promotion as District and Sessions Judges in the Higher Judicial Service which corresponds in status to `listed posts' in the I.C.S. It has been decided that until the now pension rules are framed, such officers may be granted provisionally only the maximum ordinary pension which would have been admissible to them under rules 13 and 14 of the Superior Civil Service Rules, if they had been appointed to `listed posts' of District and Sessions judges in the I.C.S. Such pension would be subject to adjustment later in the light of the new pension rules that may eventually be prescribed for the Uttar Pradesh Higher Judicial Service. 2. Listed posts holders are also eligible for additional pensions of the upper and lower administrative grades as the case may be, under Article 475-A of the Civil Service Regulation. Although new pension rules have not been finalised, it is not contemplated to provide in those rules for the grant of Additional pension. It has accordingly been decided that no special additional pension should be granted to District and Sessions judges promoted to posts in the Higher Judicial Service." This clearly shows that, for the time being, retired District and Sessions judges were being treated as though they had held `listed posts' borne on the I.C.S. cadre and were on that account entitled to the pension prescribed by the Superior Civil Service Rules. On 30-3-1961 a further G.O. (Annexure D to the petition) was issued, giving a final decision on this question of pension in the following terms :- "the Governor has decided that in the matter of pensionary benefits, the members of the U.P. Higher Judicial Service will be governed by the same rules as are applicable to members of other State Services under his rule. making control. Accordingly in supersession of the provisional orders contained in G.O. No. O-3866 (ii) /II-B-5/1949, dated August 17, 1950, the Governor has decided that the pension rules contained in the Civil Service Regulations as adapted by the State Government, will apply in their entirety to members of the U.P. Higher Judicial Service. According to the above Regulations in addition to the ordinary pension admissible thereunder, the members of the Service will also be eligible for the grant of Special Additional pension admissible under Article 475-A, of the Regulations in respect of their service in the posts of the District and Sessions Judges in the cadre of the service." It is this latter G. O. that governs the case of the present petitioners and the fate of this petition depends on the meaning that is to be attached to the phrases used therein. According to the State Government it is to be interpreted as granting ordinary pension to the petitioners without treating them as having held `listed posts.' The petitioners on the other hand contend that this G.O. clearly implies that they are entitled to the benefits accruing to the holders of `listed posts'. 37. Having carefully considered the various documents that have been relied on in this case, I am inclined to accept the petitioner's contention. No doubt `listed posts' in the strict sense of the term have ceased to exist since 15-8-1947, because these posts of District and Sessions judge have been transferred to the U.P. Higher Judicial Service and are no longer posts borne on the I.C.S. cadre. But the indications are that in spite of this transfer the Government continued to treat these posts as `listed posts', conferring special advantages on the officers who occupied them. But the indications are that in spite of this transfer the Government continued to treat these posts as `listed posts', conferring special advantages on the officers who occupied them. The G.O. of 17-8-1950 (Annexure A) cannot of course afford very reliable guidance in this respect, as it made only provisional arrangements, which were expressly stated to be subject to later adjustment; but it does show that provisionally, at any rate, District and Sessions Judges were recognised as being entitled to pension under the Superior Civil Service Rules as if they had been appointed to `listed posts', and also as being eligible for special additional pensions under Article 475-A of the Civil Service Regulations (though these special additional pensions were for the time being to be withheld) . The later G.O. of 30-3-1961, however, clearly states that :- "According to the above Regulations (i.e. the Civil Service Regulations) ........ the members of the Service (i.e. the U.P. Higher Judicial Service) will also be eligible for the grant of Special Additional pension admissible under Article 475-A of the Regulations in respect of their service in the posts District and Sessions judges in the cadre of the service." A perusal of Article 475-A will show that the only way in which District and Sessions Judges can become eligible for the grant of special additional pension under that Article is by being treated as `officers ................holding Indian Civil Service posts of the rank of or higher in rank than that of...... a District and Sessions Judge in the selection grade "or as" officers......... holding superior Indian Civil Service posts lower in rank than that of........ a District and Sessions Judge in the selection grade''. Learned Standing Counsel has been unable to point to any other provision under which they can come within the scope of Article 475-A. It follows, therefore that the G.O., of 30-3-1961 recognises that District and Sessions Judge are deemed to be holding `listed posts', so as to entitle them to special additional pension under Article 475-A. And if that is so, there seems to be no reason why they should not likewise be deemed to be "officers who ................ hold posts borne on the cadres ................of the Indian Civil Services", as mentioned in Schedule V to the Superior Civil Services Rules (annexed to Art, 475-A of the Civil Service Regulations), thereby becoming entitled to enhanced ordinary pension. hold posts borne on the cadres ................of the Indian Civil Services", as mentioned in Schedule V to the Superior Civil Services Rules (annexed to Art, 475-A of the Civil Service Regulations), thereby becoming entitled to enhanced ordinary pension. As already remarked, `listed posts' have strictly speaking ceased to exist; but the G.O. Annexure D shows that for the purposes of pension the Government has decided to treat these posts which were formerly borne on the I.C.S. cadre as though they still continued to be I.C.S. posts, conferring on their incumbents the right to enhanced ordinary pension and to special additional pension. 38. Towards the close of the arguments in this case, learned Standing Counsel draw my attention to the fact that by virtue of the Notifications mentioned in Rule 28 of the U.P. Higher Judicial Service Rules, the petitioners would be governed by the pension rules in the Civil Service Regulations as amended by the U.P. Government : and he suggested that amendments might have been introduced into these Regulations by the State Government that would change the whole complexion of the case. A copy of the Regulations incorporating the U.P. amendments was then procured; and from this learned Standing Counsel was able to show that the schedules to Article 475-A had been amended by a notification dated 1-11-1962 The result of this amendment, so far as it is relevant for the purposes of the present case, is that the Schedules of Appointments carrying Additional Pensions no longer include the items ; "officers holding I.C.S. posts of the rank of or higher in rank than that of ... a District and Sessions judge in the selection grade" (for the Upper Grade of Pension) and "officers ... holding superior I.C.S. posts lower in rank than that of ... a District and Sessions judge in the selection grade" (for the Lower Grade of Pension) -instead, they include a single plain entry of "District and Sessions Judges (for Lower Grade Pension only). It is contended that in the light of this amendment there is no justification for the argument that the G.O. Annexure D treated the petitioners as entitled to special additional pension on the basis of their being deemed to be holders of I.C.S. posts. It is contended that in the light of this amendment there is no justification for the argument that the G.O. Annexure D treated the petitioners as entitled to special additional pension on the basis of their being deemed to be holders of I.C.S. posts. It is, important to note, however, that this amendment was not in existence either when the petitioners retired or when the crucial G.O. of 30-3-1961 (Annexure D) was issued. Under Article 4 of the Civil Service Regulations an officer's claim to pension is regulated by the rules in force at the time of his retirement; and Annexure D constitutes a declaration of what those rules were in the case of the present petitioners. It seems to me that Annexure D must be considered only in the light of the material that was already in existence up to the date of its issue when we are determining what was in the mind of the Government at the time when it was issued. There is nothing to indicate, moreover, that the amendment introduced in the Schedules to Article 475-A on 1-11-1962 was meant to have retrospective effect, and it cannot be taken into account for deciding the pensionary rights of the petitioners, who had retired much earlier. 39. An attempt has been made to argue on behalf of the State that this petition is unduly belated and that consequently the petitioners are not entitled to any relief by way of writ on account of the laches. It is pointed out that their pensions were finally determined on various dates between December. 1961 and April, 1963 (vide Annexures E, F, G, H, I.), but the petition was not filed until August, 1968. It is clear, however, from the averments made in paragraph 14 of the petition that the petitioners have been making repeated representations to the State Government ever since 1962, but have not received any reply, apart from an oral assurances, given at one stage, that the matter would be looked into. Considering the entire circumstances of the case, I find myself in full agreement with Gulati, J. in holding that the Government is far more to blame than the petitioners for the delay that has occurred and that the petitioners cannot be held to have lost their right to claim relief on account of any laches. 40. Considering the entire circumstances of the case, I find myself in full agreement with Gulati, J. in holding that the Government is far more to blame than the petitioners for the delay that has occurred and that the petitioners cannot be held to have lost their right to claim relief on account of any laches. 40. The result is that in my opinion this writ petition should be allowed with costs, the impugned orders fixing the petitioners' ordinary pensions (Annexures E, F, G, H, I) being quashed. A mandamus should be issued to the State Government to refix these pensions in accordance with the Superior Civil Service Rules, the petitioners being deemed to have held `listed posts' borne on the I.C.S. cadre, and this refixation should be completed within a period of 3 months from the date when this petition is finally disposed of. I do not however consider this a fit case for awarding interest. 41. Let this opinion be laid as early as possible before the Hon'ble judge, who first heard the petition, so that final orders may be passed without any further delay.