Partly allowed

Association of Retired Judges of Supreme Court and High Court of India v. Union of India

Madhya Pradesh HC3 Dec 2020WP/15461/2020

Case brief

AI extract

What is this about?

The High Court interpreted the word 'From' in pension statutes to mean the starting point of an age slab rather than after completion of the year. It refused a declaratory order for universal application but granted consequential benefits to petitioners.

What did the court decide?

Writ petitions allowed insofar as respondents are directed to construe 'From' as the first day of entering the minimum age slab for the petitioners and their members.

Association of Retired Judges of… — Pension and Retirement Benefits | Madhya Pradesh HC (2020)

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W.P.No.13291/2020 & W.P.No.15461/2020

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HIGH COURT OF MADHYA PRADESH : JABALPUR

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Heard through Video Conferencing

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Writ Petition No.13291/2020

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Justice (Rtd.) Shambhu Singh

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vs.

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Union of India & others

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Writ Petition No.15461/2020

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Association of Retired Judges of Supreme Court & High Court of India

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vs.

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Union of India & others

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Shri Sumeet Samvatsar, learned counsel for the petitioners.

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Shri J.K.Jain, learned Assistant Solicitor General for the respondents No.1 and 2.

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Shri S.P.Nair, learned counsel for the respondent No.3 in W.P.No.13291/2020.

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CORAM :

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Hon’ble Shri Justice Sanjay Yadav, Acting Chief Justice. Hon’ble Shri Justice Vijay Kumar Shukla, Judge.

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O R D E R Jabalpur, dated : 03.12.2020

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Per : Sanjay Yadav, Acting Chief Justice.

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These writ petitions by the Association of Retired Judges of Supreme Court and High Courts of India and a retired judge of this Court raises the issue as to interpretation of Section 16B of the Supreme Court Judges (Salaries and Conditions of Service) Act,

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W.P.No.13291/2020 & W.P.No.15461/2020

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1958 and Section 17B of the High Court Judges (Salaries and Conditions of Service) Act, 1954.

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These provisions are reproduced below :

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Section 16B of the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958.

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“16B. Additional quantum of pension of family pension. - Every retired Judge or after his death, the family, as the case may be, shall be entitled to an additional quantum of pension or family pension in accordance with the following scale :-

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Age of pensioner or family pensioner	Additiona pensio pe	l quantum of n or family nsion
From eighty years to less than eighty-five years	Twenty pe pension pension	r cent of basic or family
From eighty-five years to less than ninety years	Thirty per pension pension	cent of basic or family
From ninety years to less than ninety-five years	Forty per pension pension	cent of basic or family
From ninety-five years to less than hundred years	Fifty per pension pension	cent of basic or family
From hundred years or more	Hundred basic pens pension	per cent of ion or family

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Section 17B of the High Court Judges (Salaries and

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Conditions of Service) Act, 1954.

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“ 17-B. Additional quantum of pension or family pension. - Every retired Judge or after his death, the family, as the case may be, shall be entitled to an additional quantum of pension or family pension in accordance with the following scale :

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W.P.No.13291/2020 & W.P.No.15461/2020

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Age of pensioner or family pensioner	Additional quantum of pension orfamily pension
From eighty years to less than eighty-fiveyears	Twenty percent of basic pension or family pension
From eighty-five years to less than ninety years	Thirty percent of basic pension or family pension
From ninety years to less than ninety-fiveyears	Forty percent of basic pension or family pension
From ninety-five years to	Fifty percent of basic
less than hundredyears	pension or family pension
From hundred years or more	Hundred percent of basic pension or family pension

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2- Precise submission on behalf of the petitioners is that the expression “From” in each entry of the scale provided under Section 17B of 1954 Act has been interpreted by the Division Bench of the Gauhati High Court in W.P.(C) 4224/2016 (Virendra Dutt Gyani vs. The Union of India & ors.) decided on 15.03.2018 to mean “starting point” of “the year” instead of “after” the completion of “the year”. It is urged that the decision in Virendra Dutt Gyani (supra) was put to test before the Supreme Court by the Union of India vide Special Leave Petition (Civil) Diary No.18133/2019 which was dismissed on 08.07.2019. The grievance of the petitioners is that the expression “From” in the Central Act having been interpreted in a particular manner need to be universally applied in similar fact situation. However, the Union of India, it is urged, is not adhering to the same and the benefit of enhanced pension are extended only to those pensioners who approaches the Court. The petitioners accordingly seek direction to the respondents to extent the benefit of Section 16B of the Act of

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W.P.No.13291/2020 & W.P.No.15461/2020

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1958 and Section 17B of the Act of 1954 by interpreting the word “From” as the first day of entering the minimum age slab (i.e. 80, 85, 90, 95 and 100 years) along with other consequential benefits with regard to the retired Supreme Court and High Court Judges or their respective family pensioner.

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3- In W.P.No.13291/2020, Respondent-Union of India has filed an Affidavit through Under Secretary, Department of Justice, Ministry of Law and Justice, New Delhi and has adopted the same in W.P.No.15461/2020; wherein, while not disputing that based on the recommendation of Sixth Pay Commission, the Central Government had decided to grant additional quantum of pension/family pension to retired civil servants with reference to the age of the pensioner/family pensioner. And on the same analogy, it was proposed to extend similar benefit to all the retired Judges of High Court and Supreme Court. The civil pensioners and family pensioners, it is urged, are being sanctioned additional quantum of pension on completion of the age of 80 years. It is further contended that after dismissal of Special Leave Petition and the legal opinion for not seeking Review, the respondent is now holding inter-departmental consultation for deciding further course. On these contentions the respondents seek dismissal of petition. 4- In Virendra Dutt Gyani (supra) the Division Bench of Gauhati High Court while disgressing from the well established principle applicable to the construction of statute that ordinarily in computing time, the rule observed is to exclude the first and include the last as contained in Section 9 of the General Clauses

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W.P.No.13291/2020 & W.P.No.15461/2020

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Act, 1897 [please see - Haru Das Gupta vs. The State of West Bengal AIR 1972 SC 1293 : Para-5 and State of Himachal Pradesh vs. Himachal Techno Engineers ; (2010) 12 SCC 210 : Para-13] and taking recourse to purposive interpretation held :

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“22. Therefore, as per the dictionary meaning, the expression “from eighty years” would indicate the starting point of eighty years. However, as a note of caution, it has also been clarified that inclusiveness or exclusiveness associated with the expression would have to be interpreted having regard to the intention for use of such word or expression.

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Petitioner is right when he says that section 17B was inserted in the parent Act in the year 2009 to provide some succour to the ageing retired judges. Long back Winston Churchill had said that service rendered by judges demands the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shilling and pence according to the quantity of work done. After rendering such service to the nation, it is the duty of the State to ensure that a retired judge who has entered the autumn of his life is adequately looked after. A retired judge at the fag end of his life has peculiar problems on account of his advanced years and failing health. It is to cater to such a situation that Parliament in its wisdom had amended the Act in the year 2009 by inserting section 17B entitling every retired judge to additional quantum of pension or in case of death, the family to additional quantum of family pension in the scale mentioned.

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If this is the object behind insertion of section 17B, we must adopt such an interpretation which effectuates the object of the provision and which does not frustrate the object.

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Justice G.P. Singh in his seminal work Principles of Statutory Interpretation dealt with the subject of purposive construction of statutes. According to him, when material words are capable of bearing two or more constructions, the most firmly established rule for construction of such words of all statutes is the rule laid down in Hey don's case. This rule which is also known as “purposive

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W.P.No.13291/2020 & W.P.No.15461/2020

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construction” or “mischief rule”, requires consideration of four matters while construing an Act—

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(i) what was the law before the making of the Act;

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(ii) what was the mischief or defect for which the law did not provide;

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(iii) what is the remedy that the Act has provided; and

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(iv) what is the reason of the remedy.

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The rule than directs that the courts must adopt that construction which shall suppress the mischief and advance the remedy.

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25.1 In Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, Supreme Court succinctly explained the rule holding that it is a sound rule of construction of a statute for the sure and true interpretation of all statutes in general, including beneficial ones. After discerning and considering the four things as noticed above, the court is always to make such construction as shall suppress the mischief and advance the remedy; to suppress subtle inventions and evasions for continuance of the mischief; and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.

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25.2 According to Lord Reid, “the word mischief is traditional”. He expanded it to include “the facts presumed to be known to Parliament when the Bill which became the Act in question was before it” and “the unsatisfactory state of affairs” disclosed by these facts “which Parliament can properly be supposed to have intended to remedy by the Act”.

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25.3 As has been observed by the Supreme Court, to interpret a statute in a reasonable manner, the Court must place itself in the chair of a reasonable legislator. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner as to see that the object of the Act is fulfilled.

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25.4 In selecting different interpretations, court would adopt that which is just, reasonable and sensible. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty has to be avoided.

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W.P.No.13291/2020 & W.P.No.15461/2020

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25.5 Of course this rule would have no application when the words are susceptible to only one meaning and no alternative construction is reasonably open.

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While on purposive construction, it would be useful to refer to the decision of the Supreme Court in New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, which was placed before us by learned counsel for the petitioner. In that case, Supreme Court was considering the question as to who should lead evidence in a proceeding under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In the context of that question, Supreme Court observed that a literal construction would lead to an anomalous situation because the landlord may not be heard at all or may not even be permitted to adduce any evidence in rebuttal. In such a situation, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled. Referring to Purposive Interpretation in Law by Aharom Barak, Justice Sinha speaking for the Bench explained purposive construction as under:

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“Hart and Sachs also appear to treat ‘purpose’ as a subjective concept. I say ‘appear’ because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity: First, the interpreter should assume that the Legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the nonrebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.”

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Let us now revert back to section 17B of the Act which though quoted above, is again extracted hereunder for convenience of the deliberation:

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“17B. Additional quantum of pension or family pension.— Every retired Judge or after his death, the family, as the case may be, shall be entitled to an additional quantum of

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W.P.No.13291/2020 & W.P.No.15461/2020

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pension or family pension in accordance with the following scale :

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Age of pensioner or family pensioner	Additional quantum of pension orfamily pension
From eighty years to less than eighty-fiveyears	Twenty percent of basic pension or family pension
From eighty-five years to less than ninety years	Thirty percent of basic pension or family pension
From ninety years to less than ninety-fiveyears	Forty percent of basic pension or family pension
From ninety-five years to less than hundredyears	Fifty percent of basic pension or family pension
From hundred years or more	Hundred percent of basic pension or family pension

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If we look at the first two slabs, we find that the first slab is from 80 years to less than 85 years and the second slab is from 85 years to less than 90 years. The second expression in both the slabs is quite clear : it is either less than 85 years or less than 90 years. Now, if we apply the interpretation given by the respondents to the first expressions, i.e., from 80 years and from 85 years, consequence would be that on completion of 80 years to less than 85 years a retired judge would be entitled to the first scale of additional pension and again on completion of 85 years to less than 90 years, the retired judge would be entitled to the second scale of additional pension. In this process, not only the 80th year would stand excluded, even the 85th and 90th years would be excluded. Likewise, the 95th year as well as the 100th year would also be excluded. This could not be and certainly was not the intention of the law makers. Therefore, by applying purposive interpretation, we have no hesitation in our mind that the interpretation put forward by the respondents is not only unreasonable and irrational leading to an anomalous situation, it would also defeat the very object behind insertion of section 17B in the Act.”

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W.P.No.13291/2020 & W.P.No.15461/2020

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5- The judgment in Virendra Dutt Gyani (supra) has since been affirmed by Hon’ble Supreme Court in SLP (C) Diary No.18133/2019 decided on 08.07.2019; wherein, it is held :

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“Delay Condoned.

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Having heard learned counsel for the petitioners and on perusing the relevant material, we are not inclined to interfere. The special leave petition is accordingly dismissed.”

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6- And, as it turn out from the Affidavit (supra) filed by the Union of India, the order passed in Virendra Dutt Gyani (supra) has been allowed to attain finality as would escape its application to the petitioners herein.

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7- That, Section 16B of the Act of 1958 is also worded in the same terms as Section 17B of the Act of 1954. The same deserves to be interpreted in the same manner as Section 16B of the Act of 1658. The interpretation of Section 17B of the Act of 1954 shall apply mutatis mutandis to Section 16B of the Act of 1958 i.e. the expression “From” in each entry of the scale provided under Section 16B of the Act of 1958 will mean “starting point” of “the year” instead of “after” the completion of “the year”.

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8- The question, however, is whether in a petition of this nature a declaration can be given to make the decision in Virendra Dutt Gyani (supra) applicable to all the retired judges of Supreme Court and the High Court irrespective of their residence. The answer lies in the decision in K.S.Rashid vs. The Income Tax Investigation Commission AIR 1954 SC 207 ; wherein, it is held:

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W.P.No.13291/2020 & W.P.No.15461/2020

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“3. … The whole law on this subject has been discussed and elucidated by this court in its recent pronouncement in Election Commission v. Venkata Rao [AIR 1953 SC 210] where the observations of the Judicial Committee in Parlakimedi's case, upon which reliance has been placed by the Punjab High Court, have been fully explained. It is to be noted first of all that prior to the commencement of the Constitution the powers of issuing prerogative writs could be exercised in India only by the High Courts of Calcutta, Madras and Bombay and that also within very rigid and defined limits. The writs could be issued only to the extent that the power in that respect was not taken away by the Codes of Civil and Criminal Procedure [ Vide in this connection Beasant v. The Advocate General of Madras, 46 IA 176] and they could be directed only to persons and authorities within the original civil jurisdiction of these High Courts. The Constitution introduced a fundamental change of law in this respect. As has been explained by this Court in the case referred to above, while Article 225 of the Constitution preserves to the existing High Courts the powers and jurisdictions which they had previously, Article 226 confers, on all the High Courts, new and very wide powers in the matter of issuing writs which they never, possessed before. “The makers of the Constitution” thus observed Patanjali Sastri C.J. in delivering the judgment of the court, “having decided to provide for certain basic safeguards for the people in the new set-up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights, and, finding that the prerogative writs, which the courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the State's sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. ‘for any other purpose’ being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England”. There are only two limitations placed upon the exercise of these powers by a High Court under Article 226 of the Constitution; one is that the power is to be

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W.P.No.13291/2020 & W.P.No.15461/2020

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exercised “throughout the territories in relation to which it exercises jurisdiction”, that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs “must be within those territories” and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under Article 226 of the Constitution is to be determined. …”

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9- In view whereof the relief of general nature sought by the petitioner for extension of benefits of section 16B of the Act of 1958 and Section 17B of the Act of 1954 to the retired Judges of High Courts and Supreme Court or their respective family pensioner cannot be acceded to. Instead the respondents are directed to construe the word “From” as it appear in the slab under Section 16B of the 1958 Act and Section 17B of the 1954 Act as the first day of entering the minimum age of the slab (i.e. 80, 85, 90, 95 and 100 years) alongwith other consequential benefits to the petitioner in Writ Petition No.13291/2020 and the members of the Petitioner in W.P.No.15461/2020.

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10- Consequently, the Writ Petitions are allowed to the extent above. No costs.

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(Sanjay Yadav) (Vijay Kumar Shukla) Acting Chief Justice Judge

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anand

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Digitally signed by ANAND KRISHNA SEN Date: 2020.12.17 02:22:15 +05'30'

Association of Retired Judges of Supreme Court and High Court of India v. Union of India

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Association of Retired Judges of Supreme Court and High Court of India v. Union of India

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