WP/393/1990 of Vs on 27 December 2002

:O R D E R

E.PADMANABHAN.J.,

I RELIEFS:

In W.P.No.393 of 1990, Mr.Justice G.Ramanujam, formerly a Judge ofthis Court and who was the Vice Chairman of the Central AdministrativeTribunal has prayed for the issue of a writ of mandamus directing therespondents to sanction and grant his retirement benefits being (i) additionaldeath-cum-retirement-gratuity of Rs.20,000/= over and above Rs.30,000/=already paid for the reasons set out in paras 7 and 8 supra; and (ii) commutedvalue of half of the enhanced pension after giving credit to the amountalready paid for the reasons set out in para 3 supra; and (iii) the totalamount of pension and pension equivalent of gratuity deducted from salary from1.11.1985 till 31.5.19 88 for the reasons set out in paras 5 and 6.

2. Writ Petition No.394 of 1990 is again by Mr.Justice G.Ramanujamfor the issue of a writ of mandamus directing the respondents to sanction andgrant the total amount of pension and Pension Equivalent of Gratuity deductedfrom the salary of the petitioner from 1.11.1985 till 31.5.1988 when thepetitioner held office as the Vice Chairman of the Central AdministrativeTribunal, Madras.

3. In W.P.No:4859 of 1990 the petitioner Thiru C.Venkataraman who was formerly member of the Indian Audit and Accounts Service and who held the postof Special Secretary in the Ministry of Finance and Ex-officio Secretary tothe Government of India, Department of Railways and who came to be selectedand appointed as Member of the Additional Bench of the Central AdministrativeTribunal has prayed for the issue of a writ of declaration to declare that theproviso to Rule 3 of the CAT (Salaries and Allowances and Condition ofServices of Chairman,Vice Chairman and Members) Rules 1985 as arbitrary, void,illegal and unconstitutional.

4. In W.P.No.4860 of 1990, the very same petitioner Mr.C.

Venkatarman has prayed for the issue of a writ of certiorarified mandamuscalling for the records of the respondent in proceedings No.A-12026/3/87-80dated 20.4.1990 quash the same and direct the respondent to fix the pay of thepetitioner from 1.11.1985 as Member, Central Administrative Tribunal without making any deductions of gross pension and/or pension equivalent of gratuityfrom the pay of the post with all arrears of pay with effect from 1.11.1985.

II CONSOLIDATING WRIT PETITIONS:

5. Since in all the above four writ petitions identical claims havebeen made and the contentions being identical contentions are being advancedfor identical reliefs, at the request of the counsel for the petitioner andrespondents, the above four writ petitions were consolidated and taken up forhearing on various dates.

6. Heard Mr.Vijay Narayan, learned counsel appearing for thepetitioners in all the four writ petitions, Mr.V.T.Gopalan, AdditionalSolicitor General, appearing for the Union of India, assisted by Mr.J. MadanaGopal Rao, and Mr.T.Ravikumar, Additional Central Government Standing Counselappearing respectively for Respondent Nos.1 and 3 and Mt.S.T.S.Murthy, learnedcounsel appearing for the respondent Nos.2 and 4 viz., III - PETITIONER'S CASE IN W.P.No.393 & 394 OF 1990

7. According to the petitioner in W.P.Nos:393 and 394 of 1990 he wasa permanent Judge of the Madras High Court between 11.7.1969 and 1 .6.1985 andhe demitted the office after putting Fifteen years, Ten months and twenty daysof service on attaining the age of 62 years. On 29.11.1985 he was alsogranted death-cum-retirement gratuity in addition to the grant of pension ofRs.22,400 per annum or Rs.1866.66 per month. The petitioner has also commutedthe pension and he was paid Rs.1,02,443.40 on 16.4.1986 and the commuted valuebeing Rs.11,200/= being one half of the pension of Rs.22,400/= per year. Witheffect from 11.1.1986 pension of all the High Court Judges both serving andretired was raised to Rs.4,000/= per month and the petitioner who was beingpaid Rs.3066.67 per month was paid Rs.4000/=. The petitioner's request forcommutation at the revised rate has not been permitted though it ispermissible in law.

8. The petitioner after superannuation was appointed as Vice Chairman of the Madras Bench of the Central Administrative Tribunal with effect from1.11.1985 on a monthly salary of Rs.3500/= as being the scale of payapplicable to High Court Judges. The petitioner demitted the said office on1.6.1988 after putting two years and seven months of service in the said post.According to the petitioner, during his tenure as Vice Chairman between1.11.1985 and 31.3.1988, the entire pension paid to him has been deducted fromhis salary in the post of Vice Chairman on the ground that pay which togetherwith pension and PEG should not exceed a Judge's salary of Rs.3500/= per monthbefore 31.3.1986 and Rs.8000/= after 1.4.1986.

9. It is the case of the petitioner that pension is paid for the services already rendered as Judge of High Court and that cannot be taken as aconsideration for services rendered after retirement. A retired Judge by nottaking up any employment will get his full pension sitting at home. Onemployment if his pension is deducted from the salary it is as if he is notgetting any pension at all for the past services. According to the petitionerfor the work done by him as Vice Chairman he is entitled to get Rs.8000/= assalary. It is pointed out that if a retired High Court Judge is appointed to similar post he wil get a salary of Rs.4000/= after deduction of his pensionof Rs.4000/=. Though both of them do the same work one gets Rs.8000/=,another gets Rs.4000/= as monthly salary. It is nothing but payment ofunequal salaries for the same work. The pension which the petitioner isentitled to get cannot be taken into account while evaluating the services onreemployment. Proviso to Rule 3 of CAT(Salaries and allowances and conditionsof services of Chairman, Vice Chairman and Members) Rules 1985, providing forcontrary, is unconstitutional, void besides it is violative of Articles 14 aswell as 16 of The Constitution.

10. According to the petitioner during his tenure as Vice Chairman in

addition to his pension a sum of Rs.274/= was deducted from his salary aspension equivalent of gratuity (hereinafter referred as PEG). However,pursuant to the pronouncement of the Supreme Court holding that the deductionof DCRG from salary is not legal, the Government of India by Notificationdated 27.12.1988 directed that in case of retired Judges already inreemployment as on 1.6.1988 and in whose case PEG was taken into account forfixing the initial pay, the pay should be refixed with effect from 1.6.1988 byignoring the element of PEG.

11. The petitioner retired on 31.5.1988, a day before the said crucial date and therefore he has been denied of the benefit of the saidNotification even though he was also a Judge on reemployment and PEG wasdeducted from his salary. Such discrimination between similarly situatedpersons merely based on the date of retirement has been held to beconstitutionally bad by the Supreme Court in Nakara's case. The reason forexclusion of PEG equally applies to exclusion of pension as well.

12. According to the petitioner though he has servd more than 15

years, he was just paid Rs.30,000/= as DCRG while other judges of the HighCourt who came from Subordinate Judiciary had been paid Rs.50,000 /= even ifthey had put in less than five years of service as High Court Judges. It isdiscriminatory to pay DCRG at such a rate and there cannot be a discriminationbetween the directly appointed High Court Judges and District Judges elevatedas High Court Judges and it offends Art.14.

13. The petitioner points out that when other Judges of the High Court who retired subsequently whose DCRG has been revised from Rs.30,000/= toRs.50,000/= as per the amendment to the High Court and Supreme Court Judgesconditions of Services Act, 1986 and the same was given effect from 1.11.1986,the Government of India had omitted to amend The High Court Judges Conditionsof Services Act, 1954 with effect from 27.3.1982 to 31.10.1986 and therebydenying the rights of some of the High Court Judges retired between the saidperiod to get the enhanced benefit. Number of representations have beensubmitted to the Government of India, but no positive action has been taken.

14. According to the petitioner he has rendered services as Vice Chairman, Central Administrative Tribunal between 1.11.1985 and 31.5.19 88.Though it is a pensionable service under Rule 8(1) of CAT Service Rules,pension has not been paid to the petitioner on the ground that he has alreadyin receipt of Rs.4000/=, the maximum amount of pension payable to High Court

15. It is contended out that when once the services rendered in theTribunal is made pensionable, everyone doing that service is entitled to claimpension irrespective of the fact as to who renders that service and the factthat a person has earned certain pension for his past services in anothercapacity cannot stand in his way of getting pension for the services renderedas Vice Chairman, CAT. The services rendered in the Tribunal being apensionable service for some and non pensionable in the case of others. Theproviso to Rule 8(2) of the Rules is clearly arbitrary, discriminatory andviolative of Articles 14 and 16 of The Constitution and the said proviso hasto be struck down as unconstitutional and consequential relief should begranted.

16. In W.P.No.394 of 1990 the very same petitioner after setting out identical set of facts has prayed for the issue of a writ of mandamusdirecting the respondents to sanction and grant additional DCRG of Rs.20,000/=over and above Rs.30,000/= already paid and also to pay the commuted value ofone half of the amount ater giving credit to the amount already paid and totalamount of pension, PEG deducted from salary from 1.11.1985 till 31.5.1988 whenthe petitioner held office as the Vice Chairman of the Central AdministrativeTribunal, Madras.

IV - PETITIONER'S CASE IN W.P.No:4859 AND 4860 OF 1990:

17. In W.P.No:4859 of 1990, Mr.C.Venkataraman, Member of the IndianAudit and Accounts Service entered into Indian Audit and Accounts Service inthe year 1951 and served in different capacities between 1951 to 1985. It isnot necessary to set out the various posts which this petitioner held.On15.10.1985 the petitioner while he was working as Financial Commissioner andEx officio Secretary to the Government of India, Department of Railways, wasselected for appointment as a Member of the Additional Bench of the CentralAdministrative Tribunal, Madras established on 1.11.1985. The petitioner wasrequested to take action to seek retirement from the Government service inaccordance with Rule 5(1) of the Rules. The petitioner was informed that hehas to take up the office at the earliest since the Central AdministrativeTribunal Bench had to be fully functional from 1.11.1985.

18. On 8.10.1985 the petitioner issued a notice of voluntary retirement from Government service in order to enable the Government of Indiato notify his appointment to the Central Administrative Tribunal. On31.10.1985 the petitioner was informed that his voluntary retirement has beenaccepted by the President of India. While waiving the notice of a period ofthree months, the President of India was pleased to appoint the petitioner asMember of the Central Administrative Tribunal, Additional Bench at Madras.The retirement of the petitioner was effective from the afternoon of31.10.1985. The petitioner was informed that pension is payable at the rateof Rs.2577 per month with effect from 1.11.1985 and the relief at the rate ofRs.25 per month or at the rate imposed from time to time. The petitioneropted for commutation of pension and a sum of Rs.1,11,120.25 has been paid andthe pension has been reduced to Rs.1,718 per month with effect from 6.12.1985,besides Rs.25 per month towards relief. The petitioner was also sanctioned

19. According to the Rules governing the post of Members, Central Administrative Tribunal the petitioner is entitled to receive a sum ofRs.3000/= as pay, but by virtue of the proviso to Rule 3, since the grossamount of retirement benefits including the pension equivalent of retirementgratuity aggregating to Rs.2,963.50 had to be deducted, the petitioner hasreceived only a sum of Rs.36.50 per month towards pay for the months ofNovember and December, 1985. On 7.5.1987 the petitioner made a representation to the Hon'ble Minister of State, Department of Personnel and Training and tothe Chairman, Central Administrative Tribunal regarding the effect of theProviso to Rule 3.

20. The petitioner also pointed out that the appointment to the

Tribunal as a Member or the Vice Chairman is not an reemployment, but it is anappointment to a statutory post which is governed by the provisions of theAdministrative Tribunals Act and the Rules framed thereunder. The petitionerwas compelled to seek retirement from service by virtue of Rule 5(1) of theRules and therefore it should not be treated as reemployment but it could onlybe taken to be a fresh appointment. According to the petitioner the grant ofpension is neither a bounty, nor a matter of grace, but it is a payment forthe past services rendered and therefore the employees who retire fromGovernment Service has a vested right to receive pension under the statutoryrules for the services already rendered. Therefore any rule which prescribesdeduction of the pension and the PEG to be made from the pay of the Post isarbitrary and illegal. In the case of reemployed pension who again joinedGovernment service, the basis for introducing a rule or instruction whichauthorises the deduction of pension from the pay of the re-employed pensionerwas that in the case if a Government Servant unless such deduction was made itwould given an unintended benefit to a retired Government Servant as comparedto serving Government servant who is holding the same post. But thisreasoning has no application in the case of appointment to the posts like aMember or Vice Chairman in the CAT, where no serving Government servant couldbe appointed and it is obligatory to retire before his being appointed to suchpost.

21. According to the petitioner there is a distinction betweenreemployment and Government Servant and appointment to an independent post ofjudicial nature. The Government of India also by its letter dated 14.4.1996addressed to Mr.S.P.Mukherjee, the then Member of the Principal Bench of theTribunal at New Delhi informed that after careful consideration it had beendecided that appointments to the Central Administrative Tribunal after theirretirement from Government service cannot be treated as reemployment. Thepetitioner requested the Ministry that pension and other retirement benefitsshall not be deducted from the pay of a Member of the Central AdministrativeTribunal, but they are of no avail. The petitioner's representation wasforwarded to the Central Government with an endorsement of the Vice Chairmanwho expressed his vie that the petitioner has made out a strong case andjustifiable case for a suitable amendment to the Rules to provide for thefixation of pay without taking into consideration of the pension and PEG.

22. By seeking early retirement which the petitioner was obliged to

22. By seeking early retirement which the petitioner was obliged to do by virtue of Rule 5 of the Rules, the petitioner also lost sizeable amountfrom monthly recurring entitlement of pension as well as from his DCRG. Thiswas because of the IV pay commission recommendations subsequently accepted bythe Government and were given effect to only from 1.1.1986. Had thepetitioner continued to serve till the normal date of retirement he would havebeen entitled for the calculation of pension at 50% of the ten months averageemoluments as Secretary to Government where his pay would have been Rs.8000/=per month from 1.1.1986. So also in the case of DCRG. The petitioner wasalso paid Rs.20,000/= as gratuity. Had the petitioner continued he would havebeen paid a substantial sum towards DCRG. Subsequently the rule was amendedfrom 1.6.1988 and PEG is not to be deducted from the pay.

23. When a person commutes 1/3rd of his pension on retirement, to which he is automatically entitled the commuted value is arrived at on thebasis of multiplying the 1/3rd of the monthly pension by a figure whichrepresents the number of years of pension given in a table, depending on theage of the applicant at the time of applying for such commutation so that alump sum is paid to the applicant, thereby avoiding the need to make paymentof 1/3rd portion of the pension every month. In other words, the Governmentpurchases the value of 1/3rd of the pension by paying a lump sum and that isgiven as commuted pension. When PEG is arrived at, the exactly reverseprocess is applied to arrive at the monthly pension to which the lump sumgratuity paid on retirement is the equivalent.

24. According to the petitioner pension equivalent to a lump sum payment namely the DCRG is not liable to be deducted from the pay of a Post ofa Member, CAT and there is no reason as to why the monthly pension is to bededucted. The petitioner also points out that in the case of GovernmentServants who are employed by Public Sector Undertakings, the pension whichthey received from the Government is not deducted from the monthly pay. Inthe case of Mr. G.Ramasamy, who was a member of the Audit and AccountsService who was later appointed as Director of the Minerals and Metals TradingCorporation of India Limited he was in receipt of a pay of Rs.2700/= per monthand in his case the pension which he was receiving from the Government was notdeducted from the monthly pay and allowances. Moreover, he was also eligiblefor pro rata pension and DCRG based on the length of his qualifying serviceunder the Government of India till the date of his permanent absorption in theMinerals and Metals Trading Corporation of India Limited. So also in the caseof Mr.A.J.A.Tauro, another Indian Audit and Accounts Service, when he wasappointed as Finance Director in the Indian Petro Chemicals Corporation Ltd.,.So also in the case of Shri P.S.Bajaj who was a Government servant and who wasthereafter employed by the Indian Telephone Industries. In all those cases,pension was not deducted from the gross amount of pay and allowance, but inthe case of members, Vice Chairman and Chairman of Tribunals established underThe Administrative Tribunals Act, 1985 the pension is being deducted from thegross amount of of pay and allowances. There is no reason or rhyme for themembers of this Tribunal alone should be treated differently.

968 also provided for payment of full salary in addition to the salary drawnby a Government of Indian Servant who is appointed in the Public Sector. Theabove attitude of the Government of India demonstrates individuousdiscrimination between the Government servants who are permanently appointedby public sector undertakings and Government Servants appointed as Member,Vice Chairman, or Chairman in the Central Administrative Tribunals. Suchdiscrimination has absolutely no nexus to the object sought to be achieved andit is violative of Articles 14 and 16 of The Constitution. There is no reasonat all to treat the members of the Administrative Tribunal with a stepmotherly treatment though it has been held that the said Tribunals aresubstitutes for the High Courts in Sampath Kumar's case.

26. The petitioner has also referred to the pay fixation of members who are drawn from the Government, from the Judiciary and from the Bar, thedifference in pay fixation of the Members of the CAT to show the grossinjustice meted in the matter of pay fixation. While a member of the Bar whohas been appointed directly as Mr.N.R.Chandran who was directly appointed tothe Tribunal was paid Rs.7600/= as net pay, while the petitioner who after hisresignation was paid only Rs.36.50as on 1.11.1985, Rs.3785.70 on 1.1.1986,Rs.3885.70 on 1.11.1986 , Rs.3985.70 on 1.11.1987, Rs.4085.70 on 1.11.1988.

27. The petitioner made a number of representations drawing the attention of the Government of India. But there has been no consideration atall. The petitioner has explained the reasons for approaching this court inpara 15 of the affidavit. IN the said background, the petitioner calls forthe various reliefs including for a declaration that Rule 3 o the Rules isarbitrary, illegal and violative of Articles 14 and 16 and 300 of TheConstitution of India, besides seeking for a mandamus directing therespondents to fix his pay from 1.11.1985 as prayed for without making anydeduction of gross pension and/or PEG and pay the arrears of pay with effectfrom 1.11.1985.

V - COUNTER CASE OF THIRD RESPONDENT:

28. The third respondent filed a counter in W.P.Nos.393 and 394 of 1990 setting out as follows:- "(a) With regard to para 3 of the affidavit, it is submitted that thepetitioner retired under Part-I of the first schedule to the High Court Judges(Conditions of Service) Act, 1954 (hereinafter to be called as ACT) on29.11.1985. As on his date of retirement, the Act provided fro grant ofpension at Rs.1600/= for each completed year of service, subject to a maximumof Rs.22,400/= per annum and a death cum retirement gratuity ofRs.30000/=(maximum) in lump sum at the rate of 20 days salary for eachcompleted year of service. As such his case for pensionary benefits wassettled accordingly. However, in pursuance of the Chief Justice's Conferenceheld in 1985, further improvements in the Conditions of Service of the Judgesof Supreme Court/High Court were made by Amendment Act, 1986. AS a result ofthe said improvements, the pension of High Court Judges was raised fromRs.1600 to Rs.3430 for each completed year of service subject to a maximum ofRs.48000/= per annum with effect from 1.11.1986. In pursuance of SupremeCourt Order in W.P.No.502 of 1987 Justice S.B.Srivatsava retired Chief JusticeVs. Union of India, the benefit of enhanced rates/ scales of pension introduced from 1.11.1986 onwards, were extended to pre 1 .11.1986 retiredJudges with effect from 1.11.1986, irrespective of their date of retirement.Accordingly, the petitioner was allowed revised higher pension with effectfrom 1.11.1986 i.e., with prospective effect. By virtue o the provisions ofSection 19 of the Act of 1954 read with the Civil Pension (Commutation ofPension) Rules, the Judges are entitled to commute one half of their pension.Rule 10 of said rule provides that-

"Retrospective revision of final pension-An applicant who has commuteda fraction of his final pension and after commutation his pension has beenrevised and enhanced retrospectively as a result of Government's decision, theapplicant shall be paid the difference between the commuted value determinedwith reference to enhanced pension and the commuted value already authorised."In view of the aforesaid provisions of Rule 10, the petitioner is not entitledto further commutation of pension out of the revised pension allowedprospectively with effect from 1.11.1986onwards. This aspect was also upheldby the Division Bench of Supreme Court in D.S. Nakara's Case - 1983 (1) SCC305 para 61.

(b) With regard to para 5 of the affidavit, it is submitted that from the pay of a Chairman, Vice Chairman or a Member, who is in receipt of orhas received or has become entitled to receive any retirement benefits by wayof pension and or gratuity, etc., the same are to be deducted from the pay asVice Chairman. This in accordance with proviso to Rule 3 of the CentralAdministrative Tribunal (Salaries and Allowances and Conditions of Service ofChairman/Vice Chairman and Members) Rules 1985. The contention of thepetitioner that for doing the same work a serving Judge gets a salary ofRs.8000/= and a retired Judge gets only Rs.4000/= is misplaced because thepension of Rs.400 0/= pm., to a retied Judge cannot be ignored to be takeninto account. A person cannot draw a full salary from the Government and atthe same time also draw pension from the Government. If such a view is takenthen these appointments will mean favouring the retired Judges in the mattersof salary etc., which is not the intention of Rules. In any case before beingactually appointed a Chairman, Vice Chairman and Member in the CentralAdministrative Tribunal, they are made well aware of the conditions of serviceby which they will be governed including deduction of pension from theirsalary, along with the offer of appointment. There is no question ofviolation of Art.14 and 16 of the Constitution. On the contrary, if thecontention of the petitioner is accepted, it may attract the provisions ofArt.14 and 16 of the Constitution.

(c) With regard to Para 6 of the Affidavit, it is submitted that ti is true that as per proviso to Rule 3 as they stood before amendmenteffective from 1.6.1988, vide Notification dated 22.2.1989, pension equivalentof gratuity was also deducted from the pay of Vice Chairman. With effect from1.6.1988, the Rule was amended and pension equivalent of Gratuity was nolonger required to be deducted from the pay. The amendment was givenretrospective effect from 1.6.1988. As the petitioner retired with effectfrom 31.5.1988, he could not get the benefit of this Amendment. It may alsobe mentioned that as and when amendments are made in the Rules to be effectivefrom a specific date, such type of cases always come type, irrespective of thedate of amendment.

(d) With regard to para 7 of the affidavit, it is submitted that

the petitioner belonged to Part I of the first schedule to the Act of 19 54and his entitlement for death cum retirement gratuity was governed by theprovisions of Section 17-A(3) of the Act of 1954. On the date of hisretirement, the said provisions provided for payment of maximum of Rs.30000/=in lump sum as DCRG and the same was allowed in his case. Justice S.ZaheerHassan, retired under Part III from Allahabad High Court with effect from1.17.19985. The amount of DCRG in the case of part III Judges is regulated bythe provisions of Section 17-A(2 ) of the Act of 1954, read withrules/orders/notifications of their earlier pensionable service under theUnion or State Government. On the date of retirment of Justice S.ZaheerHassan, the provisions of Section 17-A(2) of the Act of 1954 read withU.P.Superior Judicial Service provided or grant of DCRG of Rs.50000/=(maximum) in lump sum at the rat of 15 days salary for each completed year ofservice to a member of the service who retired with maximum qualifying serviceof 3 3 years. Justice S.Zaheer Hassan, as on his date of retirement had 3 7years 10 months and 19 days service including four completed years of serviceas High Court Judge. The Central Civil Service (Pension) Rules are alsosimilar to that of U.P.Superior Judicial Service Rules. As Judges elevatedfrom Bar do not get such a long term s that of a Part III Judge, the CentralCivil Service (Pension) Rules were, therefore, modified for grant of higheramount of DCRG for each completed year of service i.e., 20 days salary foreach completed year of service instead of 15 days salary, applicable to partIII Judges. Petitioner had 15 years 10 month and 20 days service to hiscredit as on 31 .5.1985 for the purpose of Pensionary benefits. In fifteenyears of service he earned DCRG what a Part III Judge would have earned in 20years of service under Central Civil Service (Pension) Rules/U.P. SuperiorJudicial Service Rules. Thus, there is no violation of Article 14 , ascontended by the petitioner.

(e) In regard to para 8 of the writ petitioner, it is submitted that the entitlement of DCRG of Part I Judges, to which the petitionerbelonged, is regulated by the provisions of Section 17-A(3) read with CentralCivil Service (Pension) Rules. In the case of Central Service Officers, theamount of DCRG was raised to Rs.50,000/= with effect from 31.3.1985. Keepingin view the increase in the said ceiling and applicability of Central CivilService (Pension) Rules, with modifications as contained in Section 17-A(30 ofthe Act of 1954 to Judges elevated from Bar, the Chief Justices Conferenceheld in 1985 recommended for increase in the ceiling of DCRG from Rs.30000/=to Rs.50,000/= and the same was accepted by the Government. Theimplementation of said recommendation involved Amendment of the Section17-A(3) of the Act of 1954. After complying with nece ssary modalities, heenhanced ceiling of the DCRG became effective from 1.11.1986 onwards.

It is further submitted that in pursuance of the recommendations ofthe Fourth Central Pay Commission, the Central Government improved theconditions of service of Central Civil Service Officers with effect from1.1.1986 onwards. One of the said improvements, was raising of ceiling ofDCRG from Rs.50000/= to Rs.1,00,000/= in lump sum from 1 .1.1986 onwards.Justice Satish Chandra, who retired as Chief Justice with effect from31.8.1986 under Part I of the first schedule to the Act of 1954 and was sanctioned a DCRG of Rs.50,000/= too the matter to Supreme Court of India forgrant of DCRG at par with Central Civil Service Officers. The Division Benchof Supreme Court allowed his Writ Petition No.764 of 1987 in its order of29.9.1987. Accordingly, the ceiling on DCRG was raised to Rs.1,00,000/= witheffect from 1.1.19 86 as per the High Court and Supreme Court Judges(conditions of service) Amendment Act, 1988."

It is contended by the third respondent that the petitioner in both the writpetitions are not entitled to any relief prayed for.

VI - COUNTER CASE OF RESPONDENT NO.1

29. On behalf of the first respondent the Under Secretary, Ministryof Law and Company Affairs has filed a counter affidavit. It is not necessaryto set out the contents of the counter affidavit as there is no factualdispute. What is contended being that in terms of Proviso to Rule 10, thepetitioners are not entitled to further commutation of pension out of therevised pension allowed prospectively with effect from 1.11.1986. It ispointed out by the first respondent that from the pay of Chairman or ViceChairman or a Member who is in receipt of or has received or has becomeentitled to receive any retirement benefits by way of pension and or gratuitythe same are to be deducted from the pay as Vice Chairman. This is inaccordance with proviso to Rule 3 of the Central Administrative Tribunal(Salaries and Allowances and Conditions of Service of Chairman/Vice Chairmanand Members) Rules 1985. The pension drawn by a Judge cannot be ignored andit has to be taken into account.

30. According to Union of India, a person cannot draw a full salary from the Government while at the same time also draw pension from theGovernment. If such a view is taken then these appointments will meanfavouring the retired Judges in the matters of salary etc., which is not theintention of Rules. At any rate before appointment the Vice Chairman orMember of the Central Administrative Tribunal being well aware of theconditions of service by which they will be governed including deduction ofpension from their salary, along with the offer of appointment, there is noquestion of violation of Article 14 and 16 of the Constitution arises. It istrue that as per the existing rules which was in force PEG was also deductedtill 1.6.1988. AS the petitioner retired with effect from 31.5.1988, he couldnot get the benefit of the amendment. As regards the deduction of DCRG aswell as the plea of discrimination advanced by the petitioner, it is submittedthat there is no violation of Art.14. The entitlement of DCRG of Part IJudges is regulated by the provisions of Section 17 A(3) read with CentralCivil Services (Pension) Rules and DCRG was raised to Rs.50,000/= with effectfrom 31.3.1985. After amendment of Section Section 17-A(3) of the Act,enhanced ceiling of the DCRG became effective from 1.11.1986 onwards. Pensionto the Vice Chairman of Central Administrative Tribunal is governed by the CAT(Salaries and Allowances and conditions of Services of Chairman, Vice Chairmanand Members) Rules 1985 which places a ceiling on the maximum amount ofpension.

31. According to proviso to rule 8(2) the pension drawn or entitledto be drawn while holding office in the Tribunal, shall not exceed the maximum

amount of pension prescribed for a Judge of High Court. Therefore in no casethe pension payable to the Vice Chairman can exceed to a pension payable to aHigh Court Judge. There is nothing unconstitutional in proviso to Rule 8(2)of the CAT Rules, 1985. The various contentions advanced in this respect aredevoid of merits and the writ petitions are liable to be dismissed.

VII - ADDITIONAL COUNTER BY RESOPNDENT No.1

32. Another counter affidavit has been filed in Writ Petition Nos:4859 and 4860 of 1990 on behalf of the Union of India by the Desk Officer in theMinistry of Personnel reiterating the same contentions and contenting that thewrit petitioner is not entitled to any relief in both the writ petitions.Identical objections have been raised in W.P.Nos:4859 and 4860 of 1990 aswell. It is not necessary to refer to the same in detail herein.

VIII - SUMMARY OF CONTENTIONS ADVANCED BY PETITONERS33. Mr.Vijay Narayan, learned counsel appearing for the petitionersin both the writ petitions contended that the retired employee has a vestedright to receive pension under the statutory rules for the services alreadyrendered by deduction of the gross pension, and Pension Equivalent to Gratuityfrom the salary of the petitioner, it would result in withholding of pensionAS if it is a case of reemployment of a retired servant under the Governmentwhich is impermissible in law. The Government of India Orders issued fromtime to time refers to reemployment. The appointment as a Vice Chairman orChairman is not reemployment, but it is an employment made to the respectivepost. That being the legal position, proviso to Rule 3 which virtually deniesthe right to draw pension for the service already rendered before acceptingthe post, by effecting deduction from the pay and allowances to the post thepetitioner is appointed, the rule is arbitrary and violative of Art.14.According to Mr.Vijay Narayan, learned counsel, a member of the CAT holdJudicial Office and cannot be equated with a post in the Executive Wing of theUnion and therefore they have been asked to seek voluntary retirement from theGovernment Service. The service of a Member cannot be termed to bereemployment which would mean that he continues in the Executive Wing of theUnion, which would be in violation of basic concept of independence ofjudiciary. A person appointed as a Member of the Tribunal cannot be equatedwith a Government Servant who is reemployed on retirement. Proviso to Rule 3is on reemployment a pensioner should not get full pension because that wouldmean that he draws his retirement benefits at the time of superannuation,thereby starts drawing pension and also receives full pay and equivalent ofthis would be that the reemployed pensioner would be drawing much higheremoluments than a similarly situated person who is performing the same duties.

34. It is contended that in respect of persons who have been absorbedin Public Sector, no deduction of the pension already drawn for suchappointees is made and a person who is appointed will be at par with otheremployees of public enterprise in regard to pay fixation, besides they areentitled to receive pro-rata monthly pension on their resignation fromGovernment service for the purpose of getting absorbed in the publicenterprise. Very many persons getting absorbed in the public sectorcorporations and getting their pension for their earlier Government service inaddition to the pay of the Post in which they are absorbed in the public

enterprise has been cited and when such liberal treatment is given to theGovernment Servants who get absorbed in Public Sector Enterprises, which iscreated and controlled by the Executive Wing of the State, there is nojustification to give a step motherly treatment in respect of members of theAdministrative Tribunals or chairman as the case may be. It is not aclassification and there is no nexus at all. Classification if any must bebased on intelligible differentia which distinguishes things that are groupedtogether from those that are left out of the group and this is per sediscriminatory. The Rule 3 uses the expression "appointment" while the UnionGovernment has been treating these appointees virtually as reemployment whichconstruction is illegal and factually untenable. There is no justification atall to deny PEG from the salary and at any rate after the amendment of theRule by Notification dated 22.2.1989. There has been a number ofrepresentations and various authorities at higher level have examined thematter and in fact accepted the views of the petitioners. But the Governmentfor apriori consideration has not chosen to agree.

35. It is also pointed out for doing identical work different memberswith varying service backgrounds and even without any background of Governmentservice get different pay as detailed in pages 16 to 18 of the affidavit filedin support of the writ petition. Principle of equal pay for equal work isviolated. Persons doing the same work and discharging the same work andresponsibilities cannot be classified into different groups and there isdiscrimination. Senior and more experienced members in CAT get less pay ascompared to juniors. It is contended that the deduction of pension from thesalary payable to a member or a vice Chairman or Chairman is illegal,unconstitutional. So also the deduction of PEG.

IX - CONTEST BY RESPONDENTS:

36. Per contra, Mr.V.T.Gopalan, learned Additional Solicitor Generalappearing for the respondents contended that having accepted the appointmentsubject to the Rules it is not open to the petitioners to contend that theRule is unconstitutional. It is also contended that there is a clearclassification and classification has a nexus and therefore the contentionthat such a classification is arbitrary or violative of Articles 14 or 16 isuntenable. Challenge to the Rules as arbitrary or discriminatory or violativeof Articles 14 and 16 is untenable.

37. In these two writ petitions, the following points arise forconsideration:-

A. Whether the proviso to Rule 8 of The Central AdministrativeTribunal (Salaries and Allowances and Conditions of Service of Chairman,Vice-Chairman and Members) Rule 1985 is unconstitutional?

B. Whether the Rule of equal pay on the payment of salaries paidto Chairman, Vice Chairman and Members of The Administrative Tribunal isviolated?

C. Whether the appointment of retired Judges or Government employees as Member/Vice Chairman/Chairman is reappointment within the meaning of Pension Rules and Central Administrative Tribunal Conditions of ServiceRules?

D. When the request to receive Pension is a fundamental right, whether the deduction of pension for the services already rendered from thesalary of Vice Chairman/Member of Administrative Tribunal is valid in law?

E. Whether the deduction of Pension Equivalent of Gratuity towards lump sum payment of DCRG is valid and enforceable legally?

F. Whether the petitioners are entitled to the difference in DCRGas claimed by them?

G. To what relief, if any, the petitioners are entitled to inthese writ petitions?

XI - ADMITTED FACTUAL MATRIX:

38. Factually, there is no dispute that Justice G.Ramanujam, petitioner in Writ Petition Nos.393 and 394 of 1990, was holding the post ofHigh Court Judge between 11.7.1969 and 1.6.1985 and he has rendered in allFifteen years and Ten months and twenty days of valuable service. He demittedoffice on reaching the age of superannuation on 29 .11.1985. He has alsodrawn DCRG of Rs.30,000/= in addition to the grant of pension of Rs.22,400/=per annum. He was also permitted to commute the pension. Justice G.Ramanujamwas appointed as Vice Chairman of the Central Administrative Tribunal witheffect from 1.11.1985 i.e., after a gap of five months from the date of hissuperannuation.

39. Mr.C.Venkataraman, who is the petitioner in W.P.Nos:4859 and 4860 of 1990, a Member of the Indian Audit and Accounts Service, who entered thesaid service in 1951 was holding the post of Ex-officio Secretary to theGovernment of India, Department of Railways had to resign and accept the postof Member, CAT, Madras Bench. His resignation letter was accepted waiving theperiod of notice with effect from 31.10.1985. Mr.Venkataraman also assumedcharge as Member CAT on 1.11.1 985. Mr.Venkataraman was drawing Rs.36.50 permonth towards pay from November, 1985 onwards.

40. Administrative Tribunals were constituted under The Administrative Tribunals Act, 1985. The Madras Bench of the Tribunal wasconstituted on 1.11.1985. The said Legislation is in pursuance of Art.323 Aof The Constitution and to provide matters connected therewith. Section 6prescribes the qualification for appointment as a Chairman, Vice Chairman andother members. Section 8 fixes a term of office of Chairman, Vice Chairmanand other members. Section 10 prescribes Salaries and allowances payable andthe other terms and conditions of service including pension gratuity and otherretirement benefits of the Chairman, vice Chairman and other members as may beprescribed by the Central Government. In terms of Section 11, the Chairmanand vice chairman and members are ineligible to be appointed to the Governmentof a State or India. Section 28 excludes the jurisdiction of Courts exceptthe Supreme Court in respect of service matters. Section 33 provides that theAct shall have overriding effect notwithstanding anything inconsistent therewith containing in any other law for the time being in force. Section 35confers powers on the Central Government to make rules including to providefor the salaries and allowances payable to and terms and conditions of servicefor Chairman, vice Chairman and other Members. Section 37 provides for layingthe Rules before the Parliament and the procedure related thereto. Inexercise of powers conferred under section 35(2)(d), The CentralAdministrative Tribunals (conditions of service, Pension etc.,) Rules 1985 forChairman, Vice Chairman and Members which came into force on 10.8.1985.

XII - POINTS A, B AND C

41. The points framed could be considered together and answered asthey are interrelated or interconnected. That apart, the contentions advancedare obviously no longer res integra and the substantial contentions havealready been decided by various pronouncements of the Apex Court.

42. In Deokinandan Prasad v. State of Bihar, reported in 1971 (2)

SCC 330 a Five Judges Bench of the Supreme Court held that pension is aproperty under Art.31(1) and by a mere executive order the Government has nopower to withhold pension. It has also been further held that it is alsoproperty under Art.19(1)(f) and it is not saved by sub Art.(5) of Art.19. Itwas further held that denial of pension or the right to receive pensionaffects the fundamental rights guaranteed under Art.19(1)(f) and 31(1) of TheConstitution. The Apex Court also laid down that for enforcement of pensionwhich is a fundamental right a writ petition under Art.32 is maintainable.

43. The View of the Supreme Court in Deokinandan Prasad v. State of Bihar, reported in 1971 (2) SCC 330 has also been confirmed by a later FiveJudges Bench of the Supreme Court in D.S.Nakara Vs. Union of India, reportedin 1983 (1) SCC 305. The Apex Court laid down that Government Servants havethe right to receive pension under the statutory rules. While discussing thequestion whether liberalised pension Scheme become operative to all pensionersor not, the Apex Court laid down the meaning of the expression "pension" andthe reason for grant of pension.

44. In this respect, the Apex Court held thus:- "20. The antiquated notion of pension being a bounty, a gratuitous paymentdepending upon the sweet will or grace of the employer not claimable as aright and, therefore, no right to pension can be enforced through Court hasbeen swept under the carpet by the decision of the Constitution Bench inDeokinandan Prasad v. State of Bihar wherein this Court authoritatively ruledthat pension is a right and the payment of it does not depend upon thediscretion of the Government but is governed by the rules and a governmentservant coming within those rules is entitled to claim pension. It wasfurther held that the grant of pension does not depend upon anyone'sdiscretion. It is only for the purpose of quantifying the amount havingregard to service and other allied matters that it may be necessary for theauthority to pass an order to that effect but the right to receive pensionflows to the officer not because of any such order but by virtue of the rules.This view was reaffirmed in State of Punjab v. Iqbal Sing.Xx xx xx xx xxxx xx xx xx xx

27. Viewed in the light of the present day notions pension is a term appliedto periodic money payments to a person who retires at a certain age consideredage of disability; payments usually continue for the rest of the natural lifeof the recipient. The reasons underlying the grant of pension vary fromcountry to country and from scheme to scheme. But broadly stated they are (i)as compensation to former members of the Armed Forces or their dependents forold age, disability, or death (usually from service causes), (ii) as old ageretirement or disability benefits for civilian employees, and (iii) as socialsecurity payments for the aged, disabled, or deceased citizens made inaccordance with the rules governing social service programmes of the country.Pensions under the first head are of great antiquity. Under the second headthey have been in force in one form or another in some countries for over acentury but those coming under the third head are relatively of recent origin,though they are of the greatest magnitude. There are other views aboutpensions such as charity, paternalism, deferred pay, rewards for servicerendered, or as a means of promoting general welfare (see EncyclopaediaBritannica, Vol. 17, p. 575). But these views have become otiose.

28. Pensions to civil employees of the Government and the defence personnelas administered in India appear to be a compensation for service rendered inthe past. However, as held in Douge v. Board of Education a pension isclosely akin to wages in that it consists of payment provided by an employer,is paid in consideration of past service and serves the purpose of helping therecipient meet the expenses of living. This appears to be the nearest to ourapproach to pension with the added qualification that it should ordinarilyensure freedom from undeserved want.

29. Summing up it can be said with confidence that pension is not onlycompensation for loyal service rendered in the past, but pension also has abroader significance, in that it is a measure of socioeconomic justice whichinheres economic security in the fall of life when physical and mental prowessis ebbing corresponding to aging process and, therefore, one is required tofall back on savings. One such saving in kind is when you give your best inthe hey-day of life to your employer, in days of invalidity, economic securityby way of periodical payment is assured. The term has been judicially definedas a stated allowance or stipend made in consideration of past service or asurrender of rights or emoluments to one retired from service. Thus thepension payable to a government employee is earned by rendering long andefficient service and therefore can be said to be a deferred portion of thecompensation or for service rendered. In one sentence one can say that themost practical raison d'etre for pension is the inability to provide foroneself due to old age. One may live and avoid unemployment but not senilityand penury if there is nothing to fall back upon.

30. The discernible purpose thus underlying pension scheme or a statuteintroducing the pension scheme must inform interpretative process andaccordingly it should receive a liberal construction and the courts may not sointerpret such statute as to render them inane (see American Jurisprudence,2d, 881).

31. From the discussion three things emerge : (i) that pension is neither abounty nor a matter of grace depending upon the sweet will of the employer andthat it creates a vested right subject to 1972 Rules which are statutory incharacter because they are enacted in exercise of powers conferred by theproviso to Article 309 and clause (5) of Article 148 of the Constitution;

(ii) that the pension is not an ex gratia payment but it is a payment for thepast service rendered;and

(iii) it is a social welfare measure rendering socio-economic justice to thosewho in the hey-day of their life ceaselessly toiled for the employer on anassurance that in their old age they would not be left in lurch. It must alsobe noticed that the quantum of pension is a certain percentage correlated tothe average emoluments drawn during last three years of service reduced to 10months under liberalised pension scheme. Its payment is dependent upon anadditional condition of impeccable behaviour even subsequent to retirement,that is, since the cessation of the contract of service and that it can bereduced or withdrawn as a disciplinary measure."

45. Nakara's Case is the authority for the proposition that pensionis generally understood in contra distinction to the one in service and thosewho render service and retire on superannuation or any other mode ofretirement and are in receipt of pension are comprehended in the expressionpensioners. Such pensioners form a homogeneous class which cannot be dividedarbitrarily fixing an eligibility criteria unrelated to the purpose ofrevision of pension.

46. Their Lordships also held that the Pension Rules being statutoryin character, the amended rules since the specified date accord differentialand discriminatory treatment to the equals in the matter of commutation ofpension is discriminatory. The Division which classified pension into twoclasses being artificial and arbitrary is not based on any rational principleand whatever principle if there be any, has not only no nexus to the objectssought to be achieved by liberalising the pension rules, but iscounterproductive and runs counter to the whole gamut of the pension scheme.

47. The point whether the service in Central Administrative Tribunalsis a reemployment in connection with the affairs of the Union and whether theRules envisage linking of past service with the service in the Tribunals whichis a quasi judicial body, was the subject matter of consideration in Union ofIndia Vs. K.B.Khare and others reported in 1994 Supple.(3) SCC 502. In thesaid case, a Member of the State Judicial Service himself had to seekvoluntary retirement from service before his being appointed as a Member ofthe Central Administrative Tribunal as required by Rule 5 of the CAT(Salaries, allowance and conditions of service of Chairman,Vice Chairman andMembers) Rules 1 985, hereinafter referred to as the Rules, wanted both of hisservices to be clubbed so as to enable him to get single consolidated pensionwhile placing reliance on Rule 16 of the Rules and CCS (Fixation of Pay ofre-employed pensioners) order 1986. The High Court sustained the said claim.

48. However, their Lordships of the Supreme Court reversed thedecision of the High Court. Rule 8 of the Rule was the subject matter ofinterpretation before the Supreme Court. The Apex Court further held that theservice in CAT is not a reemployment in connection with the affairs of theUnion, but it is an independent judicial service, the appointments in the CATis on judicial basis and the pension relating to such post is clearly governedby the Rule 8 of the Rules which is exhaustive in nature.

49. The Apex Court in this respect held thus:-

"17. In our considered view, the High Court has gone wrong in considering theservice in CAT as re-employment in connection with the affairs of the Union.On the contrary, an independent judicial service, the appointment in the CATis on tenure basis. The pension relating to such post is clearly governed byRule 8 of the Rules quoted above and at the risk of repetition, we may stateit exhaustive in nature. If that be so, there is no scope for resort to Rule16 at all. If the first respondent had to resign from Judicial Servicebecause of the statutory requirement under Rule 5 of the Rules (quoted above),we are unable to see as to how both the services namely senior District Judgein the State Judicial Service and a Member in the CAT could be clubbed. Sucha clubbing is not contemplated at all. From this point of view, we find itdifficult to accept the reasoning of the High Court that the matter of optionto club the two services for pension is a subject on which the Rules aresilent and the residuary provision in Rule 16 of the Rules intends to fill thegap by supplementing the Rules by rules applicable to the Secretary to theGovernment of India.

18. Merely because while the first respondent was a Member of the StateJudicial Service, he was governed by DCRB Rules of 1958, that cannot bepressed into service in view of the specific Rule 8 of the Rules.Consequently, the provisions relating to pensioners retired on invalid pensionis not applicable. The Rules being unambiguous cannot be construed to conferbetter pensionary benefits. It is no argument to hold that had the firstrespondent continued in the State Judicial Service, he would have got a higherpension. There is no escape from Rule 8 of the Rules with regard to the grantof pension of Chairman, Vice-Chairman or the Members of the Tribunal. Thatbeing so, the question of liberally construing pension rules does not arise.On the same reasoning, the principle laid down in D.S. Nakara case1 is notapplicable."

50. In Shiveshwar Prasad Sinha v. Union of India, reported in (19

85) 4 SCC 322, where a Judge of the High Court was reemployed as Chairman,Andhra Pradesh Administrative Tribunal, which appointment being contractualand as per the terms and conditions laid down by the Government of India hewas entitled to remuneration equivalent to that of a High Court Judge,provided his pension and other retirement benefits admissible as High CourtJudge do not exceed Rs.3,500/=.

51. While examining the question whether Pension Equivalent to Gratuity could be recovered or not, the Apex Court ruled thus:-"5. We are satisfied that there is absolutely no justification for directingrecovery of the pension equivalent of gratuity at the rate of Rs 170 permonth. In fact, this amount appears to have been arbitrarily fixed. If theJudge had to be subjected to such a deduction, the entire gratuity was to betaken into account and it could not be confined to the sum paid to him asgratuity after deduction or adjustment. There could be a case where theentire gratuity had been adjusted against existing dues to be recovered and,therefore, nothing was paid in cash at the time of retirement. In such a casethere would be no scope to demand any adjustment by way of pension equivalentof gratuity accepting the manner in which it has been done here. The methodadopted will have the effect of serving the Judge if the amount of gratuity to

52. In the light of the said pronouncement, the Union Governmentissued a Notification in this respect and recovery in respect of PensionEquivalent to Gratuity has been withdrawn. In the above case, the SupremeCourt has not gone into the question with respect to the proviso to Rule 8 orvalidity of the said proviso.

53. The next question that arise for consideration is what isreemployment and whether appointment of a superannuated Judge to the Office ofChairman or Vice Chairman or Member of Administrative Tribunals is anappointment or reemployment? Since a contention was advanced in this respect,this requires to be considered.

54. In M.S. Chawla v. State of Punjab, reported in (2001) 5 SCC 358

, while examining an identical provision under the Consumer Protection Act andthe Rules framed by the State of Punjab, the Apex Court held that theappointment of a District Judge after his superannuation to the post ofPresident of the District Forum is a case of reemployment of a pensioner as heis in receipt of pension for the services rendered as a District Judge inaccordance with the provisions in the Pension Rules. The challenge that thesalary fixed under the Consumer Protection Act and the Rules framed thereundercannot be altered and that pension amount of each of the appointee should notbe deducted from the salary payable to the President of the District ConsumerForum has been turned down by the Apex Court.

55. While distinguishing the pronouncement in D.S.Nakara Vs. Unionof India, G.B.Pattanaik,J., speaking for the Bench reiterated the conclusionsand held thus:- "7.....The appointment of a District Judge, after his superannuation as thePresident of the District Consumer Forum under the Consumer Protection Act,cannot but be held to be a case of re-employment of a pensioner inasmuch asthe said District Judge is in receipt of a pension for the services renderedas a District Judge in accordance with the provisions contained in the PunjabCivil Services Rules, Vol. II. Since Rule 2.1 of Chapter II Vol. IIunequivocally states that every pension shall be held to have been grantedsubject to the conditions contained in Chapter VII and Chapter VII conta insRule 7.18 as well as Note 3(a)(i), which have been extracted before, theconclusion is irresistible that the appropriate authority will have to decidethe pay and allowances, which the retired District Judge is entitled toreceive on being appointed as the President of the District Forumnotwithstanding the fixation of such pay under the Rules framed under theConsumer Protection Act and while fixing the same, the principle underlined inNote 3(a)(i) has to be followed. This being the position, we see no infirmitywith the government order dated 25-1-1996 and under the said notification thesalary of re-employed District Judges as President of the District ConsumerForum, has rightly been fixed, taking into account the pension, which they arein receipt of, as retired District Judges. The contention of Mr Rao that thesalary fixed under the Act and the Rules framed thereunder are being alteredby an administrative order is of no force, in view of the legal provisions enumerated above and in fact, it is the provision of the Punjab Civil ServicesRules, dealing with the salary of re-employed pensioners, which governs thefield. The other contention on the basis of the judgment of this Court inD.S. Nakara1, that pension is not a bounty is also of no consequence. In theaforesaid premises, we do not find any legal infirmity with the judgment ofthe High Court, requiring our interference under Article 136 of theConstitution. These appeals accordingly fail and are dismissed."

The point decided in the above pronouncement is in respect of an identicalprovision and the reasoning of the Supreme Court applies on all fours to theprovisions in question.

56. In V.S. Mallimath v. Union of India,(2001) 4 SCC 31, the Apex

Court examined Rule 3(b) proviso, which is identical to Rule 8 of the presentRule and by the said rule it has been provided that any pension which a Memberhas been in receipt for the services rendered earlier has to be deducted fromthe salary which under the rule has been indicated to be equal to the salaryof a Judge of the Supreme Court. G.B.Pattanaik,J., speaking for the Bench,while repelling the contention that the office of Chief Justice of the HighCourt or a Judge of the High Court is constitutional post and it is not aservice under the Government and therefore there could be no deduction of the pension payable inrespect of such office of Chief Justice or a High Court Judge, after referringto the earlier pronouncement in Union of India Vs. Prathibha Bonnerjea(1995)6 SCC 765 as well as Gurugobinda Basu Vs. Sankari Prasad Ghosal (AIR 1964 SC254) held that the expression whatever used in proviso to Rule 3(b) istherefore to be construed in the wider sense and the services rendered by aJudge or Chief Justice of a High Court must be held to be a service inconnection with the affairs of the Union and as such the proviso to Rule 3(b)of the Rules is governing the case of a Chief Justice or a Judge of the HighCourt in determining the salary which he would be entitled to on his beingappointed as the Human Rights Commission's Member.

57. In this respect, in Mallimath's Case, the Apex Court held thus:-"4.....In the Rules, when the rule-making authority provided for a salary tobe paid to a Member under Rule 3(b), a proviso was inserted for deduction fromsuch salary, the amount of pension other than disability or wound pension,which such Member was in receipt of, in respect of any previous salaries. Theintention of the rule-making authority is crystal clear that any pension whicha Member has been in receipt of, for the services rendered earlier, has to bededucted from the salary, which under the Rules has been indicated to be equalto the salary of a Judge of the Supreme Court. The contention of thepetitioner to the effect that the previous service as Chief Justice of a HighCourt not being one under the Government of the Union, must be held to be notcovered by the proviso, cannot be accepted, reading the Rules as a whole. Wehave, therefore, no hesitation in coming to the conclusion that the proviso toRule 3(b) would apply to the retired Chief Justice of India or the retiredChief Justice of a High Court and the pension which they are in receipt of,apart from the disability or wound pension, has to be deducted from theirsalary, which they are entitled to under the Rules. The contention of Mr Iyerappearing for the petitioner, on this score, therefore cannot be sustained."

58. Mr.Vijay Narayan, learned counsel appearing for the writ

Conclusion

58. Mr.Vijay Narayan, learned counsel appearing for the writ petitioners while referring to the pronouncement of the Apex Court in V.S.Mallimathi's case contended that Rule which provides for the deduction ofpension has not been challenged and he is challenging the validity of the Rulein the present case. Though there is no discussion with respect to thevalidity of the Rule in V.S.Mallimath's case, but we are not persuaded tosustain the contention that proviso to Rule 8 is violative of Art.14 or asunconstitutional as there is no basis at all to invalidate the said proviso asviolative of the constitutional provisions.

59. Incidentally, it was contended that the writ petitioners are entitled for equal pay for equal work like any other member of theAdministrative Tribunal or Chairman or Vice Chairman as the case may be. Inthe present case, there is no dispute that there is any disparity in thescale. But what is sought to be denied is or set off is being component whichthe member or the Vice Chairman is entitled for the services rendered as aHigh Court Judge or Central service is sought to be set off as part of theremuneration or salary payable to the Members or Vice Chairman. Therefore itcannot be said hat there is disparity in the salary or that the members orVice Chairman who on being appointed after retirement from High Court or otherCentral Service are being treated differently. Therefore no question ofdiscrimination arises.

60. In Baskara Nambiyar, Vs. Union of India, reported in 1997 (10)

SCC 469, the Apex Court held that payment of pension to High Court Judge whoseterm is less than seven years vis-a-vis with a longer tenure is notdiscriminatory, nor it offends Articles 14 and 16 of The Constitution. TheDivision Bench of the Supreme Court followed the decision in Union of IndiaVs. Deokinandan Agarwal, reported in 1992 Supple. (1) SCC 323 and rejectedthe plea of discrimination.

61. Relying upon Chairman, Railways Board and others Vs. C.R.

Rangadhamaiah, reported in 1997 (6) SCC 623, it was contended that it isunreasonable and arbitrary to deny pension. But, in the present case, thereis no denial of the pensionary benefit which right has accrued to thepetitioners. But what is sought to be done is setting off the pension amountalready received and fixing the salary or emoluments of a Member or ViceChairman in terms of the statutory rule. The rule has an intendment andobject. The Rule is in no way violative of Art.14 or Art.16.

62. On the facts, it may look as if the proviso to Rule 8 is very harsh and for the services that were rendered as Member or Vice Chairman onlya paltry sum namely two figure sum being paid. Factually, the petitionersmight have received a two figure amount or paltry sum in addition to thepension which they are entitled to draw, besides the Dearness Allowance andother allowances as admissible. But what has been provided for in the Act aswell as the Rules is that had the High Court Judge or a Member of a civilservice continued in service, his salary cannot exceed the salary which hewill be normally drawing had he continued in office and that is the basicreason and basis for setting off the pension out of the salary payable underthe Rules. This cannot be held to be unconstitutional or opposed to all

63. In V.B. Raju v. Union of India, 1980 Supp. SCC 513, the ApexCourt while examining an identical challenge to Rule as violative of Art.14,held thus:-

"18. The other contentions raised by the appellant ignore one basic reasonwhich provides justification for the trichotomy operating right from theenforcement of the 1937 Order. He does not (and of course cannot) challengethat trichotomy for the period prior to the commencement of the Constitutionbecause his objection to it is based on discrimination violative of Article 14thereof. But then he has failed to realise what the Constitution itselfenacted in paragraph 10 of its Second Schedule both before and after itsamendment by the 1956 Act. Prior to November 1, 1956 (which is the date onwhich the 1956 Act came into force) sub-paragraph (4) of the said paragraph 10provided for pension of Judges of the High Court of any State being governedby the provisions which were applicable to such Judges before the commencementof the Constitution. Those provisions were, as pointed out above, containedin the 1937 Order which initiated the trichotomy. The High Court was thusright in holding that the Constitution itself adopted that trichotomy.19. Then came the 1954 Act which was brought on the statute book byParliament in exercise of its legislative powers under Article 221(2) of theConstitution. The trichotomy introduced by the 1937 Order was repeated in the1954 Act, till when it had been kept alive by subparagraph (4)above-mentioned. And that trichotomy is good not only because it was adoptedby the Constitution till legislation was enacted under Article 221 (2) thereofbut also because it was necessitated by reason of High Court Judges beingdrawn from three different sources.

20. Insofar as persons who had been members of the Indian Civil Service or ofa State Judicial Service before being appointed as High Court Judges areconcerned, the period of service put in by them in such Service has to betaken into account. On the other hand, High Court Judges recruited directlyfrom the Bar do not have any prior service to their credit. All the HighCourt Judges, though holding equivalent posts, are thus not similarlysituated, particularly in regard to the payment of pension and otherretirement benefits. That is why different provisions were considerednecessary in the case of each of the three categories in regard to payment ofpension. The classification so made is a reasonable classification based onintelligible differentia having a proper nexus to the object to be achieved."

This pronouncement is a complete answer to the challenge advanced by thepetitioners as to the validity of the Rule.

64. The contention that even if the petitioners had not accepted theappointment of Vice Chairman or member, they will be drawing the sameemoluments as and by way of pension and therefore the payment of a paltry sum of Rs.36 or a two figure sum is not a salary at all and it would not amount toequal pay or equal salary, is just requires to be mentioned for beingrejected.

65. It is pointed out by Mr.V.T.Gopalan, learned Additional Solicitor General the petitioners were aware of the Rules when they accepted theappointments and in particular proviso to Rule 8 and therefore when thepetitioners are drawing the scales of pay as per the provisions of theAdministrative Tribunals Rules read with the Act, it is not open to them tocontend that their pension should not be set off or deducted.

66. We are not persuaded to sustain the contention that the proviso to Rule is either unconstitutional or violative of Art.14 or Art 1 9 or otherArticles or other provisions of the Constitution and the contentions advancedcannot be sustained in the light of the above pronouncements and law laid downby the Apex Court.

67. Before parting with the case, we are constrained to observe that

Mr.Justice G.Ramanujam, petitioner in W.P.Nos.393 and 394 of 1990, who had onreaching the age of superannuation, had not accepted the appointment as ViceChairman, he would be drawing the very same sum by way of pension and had hecontinued as a Judge of the High Court without his being required to demit theoffice of the Judge, assuming for the purpose of argument that he has notattained the age of superannuation, he would be drawing the same quantum ofsalary as a Judge as well. This factual position and the rule provisionpointed out by the learned Additional Solicitor General, we are persuaded toaccept as against the contention advanced by Mr.Vijay Narayan.

68. Mr.Vijay Narayan, learned counsel for the petitioners persuasively pointed out that the petitioners need not have worked for a twofigure sum, namely Rs.36 or thereabout for all the days or 25 days in a monthand they could have as well spent their retired life peacefully. It is truethat this may be a grievance. But the answer being that had JusticeG.Ramanujam continued as a Judge of the High Court, if treating the periodwhich he continued as a Vice Chairman, he would have drawn the same salary andhe might not be drawing any amount more than that of what he was drawing aspension and though there is unintended hardship, that cannot be a ground tointerfere in favour of the petitioners. Hence the Rule is upheld and all thecontentions advanced fail.

XIII- CONCLUSION

69. In the light of the above discussions and while following the pronouncements of the Supreme Court, Points, A,B.C,D and G are answeredagainst the petitioners.

70. Mr.Vijay Narayan, learned counsel for the petitioners while making his submission, represented that the petitioners are not pressing therelief, namely, direction to commute pension as per the revised rate since thepetitioners are getting commuted pension at the revised rate and that apartthere is only a marginal difference. The petitioners also did not press therelief regarding increased DCRG of Rs.5 0,000/= which came into effect from1.11.1986. Hence, points E and F are answered accordingly.

71. In the result, all the writ petitions fail and they are dismissed without costs.

Index:yesWebsite:yesGkv.

To,1. Secretary to GovernmentUnion of India,Ministry of Law and Justice(Department of Justice) New Delhi

2. Secretary to Govt.State of Tamil NaduPublic (Spl.B) Dept.,Chennai-9

3. The Accountant General, Chennai-64. The Registrar, High Court,Chennai-104