UNION OF INDIA AND ANR. versus DEOKI NANDAN AGGARWAL

Citation: [1991] 3 S.C.R. 873 · Decided: 04-09-1991 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

Cited by 10 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

UNION OF INDIA AND ANR. 
A 
v. 
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. 
• 
The Respondent retired as Judge of the High Court on 3.10.1983 
•• 
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 
A 
874 
SUPREME COURT REPORTS 
[1991] 3 S.C.R. 
caluclate the pension, gratuity and family pension on the basis of b 
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. 
c 
It was contended on behalf of the appellants that the High Court 
bas re-written the retirement benefit provisions of the First Schedule to 
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 tha

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