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1998 DIGILAW 40 (KER)

Justice M. M. Pareed Pillay v. Union of India

1998-02-03

C.S.RAJAN

body1998
Judgment :- C.S. Rajan, J. The petitioner had service of 11 years and 5 months as District Judge and as judge of the High Court 10 years, seven months and 17 days. The total judicial services of the petitioner is 22 years and 17 days. As per Ext. P-1 letter of the first respondent sanction for payment of Rs. 80.000/- was issued. The first respondent accepted the recommendation made by the Fifth Central Pay Commission in its interim report and ordered that with effect from 1.4.1995 dearness allowance as linked to the average All India Consumers' Price Index 1201.66 may be treated as dearness pay for reckoning emoluments for the purpose of retirement gratuity and death gratuity under the Central Service (Pension) Rules, 1972. The ceiling limit of gratuity was enhanced to R.2.5 lakhs. The fourth respondent addressed a letter to the first respondent as per Ext. P-3 stating that the petitioner would be eligible for Rs. 2,34,720/- as Death-cum-Retirement Gratuity as per the revised orders. This Court as per Ext. P-6 judgment, in the case of another retired Judge Sri. S. Padmanabhan held that the orders of the State Government pegging the retirement gratuity payable to a retired High Court Judge to the maximum prescribed by the Kerala Service Rules are illegal, constitutionally invalid and improper. By Ext. P-7 representation the petitioner requested to grant him the Death-cum-Retirement Gratuity following Ext. P6 judgment. The third respondent informed the petitioner as per Ext. P-8 letter that the matter had been taken up with the second respondent and the second respondent has informed the third respondent that the matter was under consideration of the Government. 2. This Original Petition has been filed for a direction to the respondents to pay the Death-cum-Retirement Gratuity due to the petitioner on the basis of Ext. P-2 office memorandum untrammelled by the provisions contained in the Kerala Service Rules. 3. In the counter affidavit filed by the second respondent the stand taken is as follows: In Kerala pension, Death-cum-Retirement Gratuity etc are governed by the rules in Part-Ill KSR. Under these Rules the maximum Death-cum-Retirement Gratuity payable is Rs. 80.000/-, There are no separate rules for the members of the State Judicial Service. The enhancement of the Death-cum-Retirement Gratuity is from Rs.1 lakh to R.2.5 lakhs. Under these Rules the maximum Death-cum-Retirement Gratuity payable is Rs. 80.000/-, There are no separate rules for the members of the State Judicial Service. The enhancement of the Death-cum-Retirement Gratuity is from Rs.1 lakh to R.2.5 lakhs. The Central Rules had been extended to the judges of the High Court who have been elevated from the State Judicial Service. But the State Government find it difficult to amend these rules with regard to the claim of the members of the State Higher Judiciary alone. Therefore, for the time being it may not be feasible to raise the Death-cum-Retirement Gratuity rate to Rs. 2.5 lakhs. According to the counter affidavit, in terms of Ext. P-6 judgment it is for the Central Government to think in terms of any amendment to the rules applicable to Part-III Judges. 4. The learned counsel Sri. P.G.K. Wariyar appearing for the petitioner relied on the ruling of the Supreme court in M.L. Jain v. Union of India (AIR 1991 SC 928). In the above case the Supreme Court was considering the ceiling on additional pension in clause (b) of para 2 of Part-III of the First Schedule to the High Court Judges (Conditions of service) Act. According to the above clause, a special additional pension of Rs. 1,600/- per annum in respect of each completed year of service is admissible, but in no case such additional pension shall exceed Rs. 8,000/- per annum. Proviso to the above clause fixed a further ceiling of 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 with respect to the amount of pension under Clauses (a) and (b) of para 2 of Part-Ill of First Schedule. Considering the constitutional validity of the above ceiling limit the Supreme Court observed as follows: "4. The counter affidavit filed on behalf of the Ministry of Law and justice sought to justify the limit by referring to cases of Central Civil Service Officers retiring as Secretaries to Government where full credit was not being given for the entire period of service rendered and a ceiling was fixed. Such a ceiling actually is fixed in respect of all the three situations covered by the First Schedule. Such a ceiling actually is fixed in respect of all the three situations covered by the First Schedule. A member of the Bar with 14 years of completed service out of which six years are served as a Chief Justice or as a judge of the Supreme Court gets the maximum pension of Rs. 54,000/- and in the event of his retirement without becoming Chief Justice or a judge of the Supreme Court, his pension entitlement is Rs. 48,000/- per annum. Similar is the provision relating to the members of the Indian Civil Service who were earlier elevated as Judges. It is the contention of the petitioner that once a ceiling limit was fixed as contained in the proviso of the Third Part, there was no further justification for the paragraph 2(b) ceiling. We find full force in the submission. The reasons which weighed with this Court on the earlier occasion for enhancing the petitioner's pension fully apply to the present aspect. The ceiling of Rs. 8,000 therefore, is not necessary to be imposed and if that is applied, a situation giving rise to the application of Art.14 of the Constitution does arise. In fact, the presence of the proviso clearly brings out the intention that no attempt is sought to be made between judges recruited from the different sources for the matter of the ceiling on pension. We, therefore, modify the order of this Court fixing petitioner's pension at Rs. 46,100 and require his pension to be fixed at Rs. 48,000 per annum by holding that the ceiling in para 2(b) of Part III of the First Schedule is unsustainable under Art.14 of the Constitution and would not be operative. We direct that petitioner's pension from November 1,1986, shall be fixed at Rs. 48,000/-a year." 5. In Ext. P- 6 judgment relying on the ruling of the Supreme Court mentioned above this Court held as follows: 7. In the light of the principles enunciated by the Supreme Court regarding pension, I see no justification to fix another limit in respect of the payment of gratuity for judges governed by Part III and direct that they are entitled to get only the amount specified under the provisions of the Kerala Service Rules viz. Rs. 60,000/-. In the light of the principles enunciated by the Supreme Court regarding pension, I see no justification to fix another limit in respect of the payment of gratuity for judges governed by Part III and direct that they are entitled to get only the amount specified under the provisions of the Kerala Service Rules viz. Rs. 60,000/-. The above decision of the Supreme Court is equally applicable to the payment of gratuity also and hence there is no justification for the contention raised by the respondents that the petitioner is governed by the said rules dealing with gratuity". As per Ext. P-2(a) letter issued by the Government of India to the various Accountant Generals it has been stated that the Death/ Retirement Gratuity of the High/ Supreme Court Judges belonging to Part-I of the First Schedule to the High/Supreme Court Judges (Conditions of service) Act may be calculated after treating 63% of dearness allowance subject to minimum of Rs. 4.380/- as dearness pay subject to maximum limit of Rs. 2.50 lakhs. In the case of the High Court Judges retiring under Part-Ill of the First Schedule of the Act are also entitled to the same treatment. On the basis of the above letter the Registrar of the High Court informed the second respondent that the petitioner is entitled to get Rs. 2,34,720/- as Death-cum-Retirement Gratuity. Therefore, I do not think that the second respondent is justified in refusing to pay the Death-cum-Retirement Gratuity due to the petitioner in accordance with the above provisions. When the Supreme Court has held that the ceiling on the pension amount is bad and violative of Art.14 of the Constitution, the same yardstick must be applied in the case of ceiling limit for the Death¬cum-Retirement Gratuity also. The answer of the State that it is not possible to have separate rules for the members of the higher judiciary is not an answer to deny the benefit of Death-cum-Retirement Gratuity as per Ext. P-2(a) letter. Under these circumstances, it is declared that the petitioner is entitled to get the Death-cum-Retirement Gratuity amount as determined in Ext. P-3 letter. The respondents are directed to take steps to disburse the balance amount due to the petitioner after deducting what had already been paid to him. This must be done within two months from the date of receipt of a copy of this judgment. P-3 letter. The respondents are directed to take steps to disburse the balance amount due to the petitioner after deducting what had already been paid to him. This must be done within two months from the date of receipt of a copy of this judgment. The petitioner is also entitled to get interest at the rate of 12% per annum from 1.8.1996 to the date of payment. Original Petition is disposed of as above.