JUDGMENT 1. Petitioner retired from service on superannuation as a Judge of the High Court of Kerala on 31st July 1980. He started his official career as a District Judge. Later, he worked as an Officer in the Ministry of Law and Justice, Government of India, New Delhi on deputation. He was elevated to the post of Judge, High Court on 3rd April 1972. Thus he had a total service of 18 years plus 5 years Bar Service as provided in the Kerala Service Rules. Average emoluments drawn by him at the time of his retirement was Rs. 3,500. By Exhibit P-1 order, pension and other benefits due to the petitioner was fixed at Rs. 17,300 per annum. Later, pension was revised to Rs. 32,720 per annum with effect from 1st January 1986 to 31st October 1986 and at Rs. 37,720 per annum with effect from 1st November 1986. Petitioner challenges the orders fixing the pension at the above rates. 2. Petitioner entered service as a member of the Higher Judiciary. He has put in 8 years of service as a Judge of the High Court. He retired from service on 31st July 1980. He has to his credit 23 years of service for pension. He opted, for the purpose of his pension, for Part III of First Schedule to the High Court Judges' (Conditions of service) Act, 1954, hereinafter referred to as "the Act". Para.2 of Part III of the First Schedule, with which I am concerned in this Original Petition, was as follows: "The pension payable to such Judge shall be: (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension of Rs. 700 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service, shall exceed Rs. 3,500 per annum. As per the Kerala Service Rules, for a retired Government servant to get maximum pension, he should have 30 years of qualifying service as on the date of retirement. 3,500 per annum. As per the Kerala Service Rules, for a retired Government servant to get maximum pension, he should have 30 years of qualifying service as on the date of retirement. Under R.64 of Part III of Kerala Service Rules, full pension if payable only to an Officer who has completed 30 years of service. Petitioner's service, including Bar Service, is only 23 years. Thus, under para 2 (a), quoted above, he is entitled to 50 per cent of average emoluments multiplied by 23 and divided by 30. His salary as Judge of the High Court was Rs. 3,500 only. Therefore, the pension due to him under Para.2(a) comes to Rs. 1,342 per month. 3. The stand taken by the respondents is that petitioner is entitled to have his pension calculated in accordance with the provisions contained in Para.2(a) of Part III, Schedule I of the Act only. It is their further case that petitioner cannot get the benefits under Para.2 (b) of Part III of the First Schedule to the Act for the purpose of finding out pension under the rationalised pension scheme. In support of this, they rely on the two decisions of the Supreme Court in M. L. Jain v. Union of India ( AIR 1985 SC 619 = AIR 1989 SC 669 ). In the above mentioned decisions, it is argued, the pensionary benefits of Mr. M. L. Jain were fixed solely on the basis of the provisions contained in Para.2 (a). Such a course, it is argued, should be adopted in the instant case as well. I find it difficult to accept this argument. Sri M. L. Jain had to his credit more than 38 years of service. Consequently, he was entitled to full pension. As per the rules governing the payment of pension, the , maximum pension payable to a Government servant was fixed at Rs. 1,500 per month. The pension due to Mr. Jain, as per the provisions contained in para 2 (a) of Part III, Schedule I of the Act, was much more than Rs. 1500, the maximum which could be claimed by Mr. Jain. So, in his case, the effect of para 2(b) of Part III of the First Schedule to the Act did not arise for consideration. Jain, as per the provisions contained in para 2 (a) of Part III, Schedule I of the Act, was much more than Rs. 1500, the maximum which could be claimed by Mr. Jain. So, in his case, the effect of para 2(b) of Part III of the First Schedule to the Act did not arise for consideration. In the case of petitioner, he is not entitled to get full pension because he has not got 30 years of service to his credit. Consequently, his monthly pension calculated under para 2 (a) is far below the maximum fixed by the rules. In such a situation is he not entitled to the benefits coming within the purview of Para.2 (b)? 4. Para 2 of Part III of Schedule.1 to the Act lays down the method of calculating the pension payable to a Judge, who held any pensionable post prior to his elevation as High Court Judge. As per that provision, such a Judge shall be entitled to the pension calculated under Para.2(a) and the special additional pension calculated in terms of the provisions contained in Para.2(b). The pension payable to the petitioner under Para.2(a) is Rs. 1,342 per month. To this, the amount coming under Para.2(b) should also be added. The amount due to the petitioner under para 2(b) is Rs. 700 x 8, the number of years of service rendered by him as Judge of the High Court. But, this is subject to the maximum fixed therein, namely Rs. 3,500 per annum. Rs. 3,500 per annum is equal to Rs. 292 per month. So, the total pension payable to the petitioner per month is Rs. 1,634. This is so because the total admissible pension of a High Court Judge, who held any pensionable post prior to his elevation, should be as provided under para 2(a) and para 2(b) of Part III of the First Schedule to the Act. This exceeds the maximum pension payable to a Government servant. So, it has to be limited to Rs. 1,500 per month, the maximum amount payable as pension to a pensioner. 5. On March 18, 1987 the Government of India by Resolution No. 2/13/87 P.I.C. accepted the recommendations of the Fourth Central Pay Commission for upward revision of pension and pensionary benefits. So, it has to be limited to Rs. 1,500 per month, the maximum amount payable as pension to a pensioner. 5. On March 18, 1987 the Government of India by Resolution No. 2/13/87 P.I.C. accepted the recommendations of the Fourth Central Pay Commission for upward revision of pension and pensionary benefits. In pursuance of this, Government of India, Ministry of personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare issued Office Memorandum No. 2/1/87-P.I.C.-1, dated 16th April 1987 bringing out modifications in the rules regulating pension, Death cum Retirement Gratuity and Family Pension under the C.C.S. (Pension) Rules, 1972. R.5 provided that pension shall be calculated at 50 per cent of average emoluments in all cases instead of under the slab formula given in clause (a) of sub-rule (2) of R.49 of the Pension Rules. The reckonable qualifying service was in no manner varied. So, petitioner is not benefited by this provision because he has not put in service for the required number of years for getting the full pension. He can have the benefit of para 2 (a) and 2 (b) of Part III of the Schedule to the Act alone as stated earlier. The Office Memorandum, dated 16th April 1987 contains a table showing the existing pension and the part consolidated pension due from 1st January 1986. As per that table, an officer who was drawing pension of Rs. 1,500 per month is to be paid Rs. 2,925 per month. This works out at Rs. 35,100 per annum. This amount is the pension due to the petitioner from 1st January 1986. 6. Para.2(b) of Part III to Schedule I of the Act has been amended in the following terms with effect from 1st November 1986. "A special additional pension of Rs. 1,600 per annum in respect of each completed year of service for pension, but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service, shall exceed Rs. 8,000 per annum." The maximum amount of Rs. 8,000 per annum fixed therein has been struck down by the Supreme Court in M. L. Jain v. Union of India ( AIR 1991 SC 928 ). Petitioner has put in 8 years of service as a Judge of the High Court. 8,000 per annum." The maximum amount of Rs. 8,000 per annum fixed therein has been struck down by the Supreme Court in M. L. Jain v. Union of India ( AIR 1991 SC 928 ). Petitioner has put in 8 years of service as a Judge of the High Court. So, the amount payable to him under Para.2 (b) comes to Rs 1,600 x 8 = Rs. 12,800. Petitioner is entitled to this amount also. It, therefore, follows that the pension payable to the petitioner from 1st November 1986 is Rs. 35,100 + Rs. 12,800 = Rs. 47,900. This is below Rs. 48,000, the maximum limit fixed by the Act. In view of what has been stated, above, I direct respondents to re-fix petitioner's pension at Rs. 35,100 per annum from 1st January 1986 and at Rs. 47,900 per annum from 1st November 1986. Petitioner shall also be entitled to all other consequential benefits accruing on this re-fixation of pension. The arrears of difference in the amount of pension and other benefits payable to the petitioner should be quantified and paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Original petition is allowed in the above terms.