ORDER
Upendralal Waghray, J.
1. This Writ Petition is filed by a former Judge of this Court. He was initially appointed as District and Sessions Judge by direct recruitment on 13-6-1959 and was elevated to the High Court Bench on 7-7-1969 and retired as a Judge on 15-7-1978 on reaching the age of 62 years. He was entitled to be paid pensionary benefits as calculated under Part III of the High Court Judges (Conditions of Service) Act, 1954, (hereinafter referred to as the Act). At the time of his retirement the computation of pensionary benefits being adopted by the respondents under Part-III was lower than that payable to a Judge appointed by direct recruitment who was entitled to calculation of pension under Part-I of the Act. The Petitioner, therefore, elected to receive pension under Part I of the Act and was being paid accordingly.
2. The Supreme Court in the first M.L. Jain 's case reported in M.L. Jain v. Union of India, : [1985]3SCR608 held that calculation of pension payable to a Part-III Judge based on a notional last drawn pay in the service as District Judge was not correct and that it should be determined adopting the last pay drawn as a High Court Judge for the purpose of calculation of pension. This would result in a Judge entitled to the pension under Part-III to more beneficial pension than that of a Part-I Judge. In the light of the judgment of the Supreme Court, the Government of India issued a circular dated 29-4-1985 to compute the pension in accordance with the aforesaid judgment of the Supreme Court and even past cases may be revived and pension re-fixed wherever necessary and arrears of pension may be allowed from the date of the pension became payable. The petitioner requested for his pension being determined under Part III and for payment of arrears also. At that stage, the Act was amended by the Act 38 of 1986 raiding the salaries and pension payable to the High Court Judges with effect from 1-11-1986. Later, the Government of India decided that even Judges, who retired prior to the enforcement of the amendment Act 38 of 1986 were entitled to its benefits. The Act was further amended by Act 20 of 1988 with retrospective effect from 1-11-1986. Apart from this, the Government of India decided to extend the benefit of ad-hoc relief to the High Court Judges with effect from 1-1-1986 to 31-10-1986 on lines similar to those it was being given to other class I Government Servants. At that stage, the Supreme Court in the second M.L. Jain's case reported in M.L. Jain v. Union of India, : AIR1989SC669 held that the action of some State Governments in denying the benefit of fixation of basic pension to Judges (i.e. those to whom Part-III applies in accordance with the Judgment of the Supreme Court and the Amendment Acts 38/86 and 20/88) was not valid.
3. The present writ petition was filed on 19-12-1989 complaining that the petitioner was not being given the pensionary benefits as calculated under Part-III and in accordance with the law declared by the Supreme Court. After filing of the writ petition that is, sometime in August, 1990, the Government of India took a policy decision to permit such of the Judges who are entitled to have their pension calculated under Part III but, had earlier elected to receive pension under Part-I (like the petitioner) to opt afresh for the pension being calculated under Part-III. It is not in dispute that the petitioner's option in this behalf has been accepted.
4. Another development which took place after the filing of the writ petition is the Judgment of the Supreme Court in third M.L. Jain's case reported in M.L. Jain v. Union of India, : (1991)ILLJ499SC where it is held that the inner ceiling on the special additional pension payable to a service Judge (those who are entitled to pension under Part-III) by paragraph 2(b) of Part-III is not valid in view of the ceiling contained in the proviso to the said paragraph introduced by Act 38 of 86. This decision of the Supreme Court has also been accepted by the respondents. The result is, the petitioner will be entitled to have his pension determined under the provisions of Part-III in accordance with the decisions of the Supreme Court and for payment of arrears.
5. The Government Pleader for GAD has filed a counter affidavit on behalf of the Accountant General and the State of Andhra Pradesh i.e. respondents 1 and 2, sworn to by the Deputy Secretary to the Stale Government on 8-11-1990. It takes note of the position prior to the third M.L. Jain's case (3 supra) and notices that the Central Government had accepted the earlier Judgments of the Supreme Court and issued instructions accordingly. No counter-affidavit is filed on behalf of the Union of India. The correspondence filed by the petitioner also shows that the position as emerges after the third M.L. Jain's case (3 supra) is accepted by the respondents.
6. The Writ Petition came up for hearing on 26-4-1991 and as, the position to the extent indicated above was not in controversy, and the petitioner was not being paid the pension in accordance with the law declared by the Supreme Court and accepted by the Government, probably, on the ground of pendency of the writ petition which raised some other controversies also, a direction was issued by this court to pay to the petitioner the pension together with arrears calculated on the basis of the accepted position pending further orders on the writ petition. It is now stated that the petitioner's pension has been so determined and he has also been paid arrears in accordance with the said directions.
7. According to the counsel for the petitioner two more controversies survive for determination of this court viz.,
(1) The action of the respondents in implementing the ceiling on 'special additional pension' as contemplated' by paragraph 2(b) of part III for the period Prior to 1-11-86 is illegal.
(2) The petitioner is entitled to interest because of the delay in payment.
8. Point No. 1: It is contemplated by Sri S. Dasaratharama Reddi, learned counsel for the petitioner, that imposition of ceiling for the period prior to 1-11-1986 is illegal for the same reasons as held by the Suprcme Court in respect of the period after 1-11-1986 in the third M.L. Jain's case (3 supra). To appreciate the controversy, it is useful to extract the provisions of paragraph 2 of Part-III of the Act as they existed prior to the amendment Act 38/86 and as they now stand after the said amendment:
'Schedule I - Part III
1. x x x x x x x x x
2. The pension payable to such a Judge shall be (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension;
and
(b) a special additional pension of Rs. 700/- per annum in respect of each completed year of service for pension but also in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service, shall exceed Rs. 3,500/- per annum.'
After Amendment Act 38/86.
'In the case of a Judge to whom this Part applies and who has retired on or after the commencement (26-8-1986) of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986, the foregoing provisions of this part shall have effect subject to the modifications that-
(i) in paragraph 2-
(a) in Clause (b) for the figures '700' and '3,500' the figures '1,600' and '8,000' shall respectively be substituted;
(b) after Clause (b) the following proviso shall be inserted namely:-
'Provided that the pension under Clause (a) and the additional pension under Clause (b) together shall in no case exceed Rs. 54,000 per annum in the case of a Chief Justice and Rs. 48,000 per annum in the case of any other Judge.'
The Supreme Court has examined the controversy regarding the ceiling on 'Special Additional Pension' in paragraph 2(b) of Part-III, in the light of the ceiling on pension fixed by the newly introduced proviso and an identical ceiling for Part-I Judges was also made. In this context, it held that the ceiling on 'Special Additional Pension' in paragraph 2(b) to be arbitrary. For Service Judges (i.e. those whose pension is governed by Part-III) there was no ceiling on pension prior to 1986 amendment. But, there was a ceiling on Judges, whose pension was governed by Part-I even prior to 1986 amendment. The Ceiling on 'Special Additional Pension' in respect of service Judges in effect provides for a ceiling on total pension. It cannot be said that prevision of such a ceiling for service Judges was in any way arbitrary when a ceiling was provided for Part I Judges. I am, therefore, not able to accept the first contention of the learned counsel for the petitioner.
9. Point No. 2: In the circumstances of the case, it cannot be said that there has been any deliberate delay on the part of the respondents in permitting the petitioner to opt afresh for determining the pension and payment of arrears. I do not consider it to be a case for awarding interest against the respondents. I am not able to agree with the second contention also.
10. The petitioner's pension has been fixed in accordance with the orders of this court passed on 26-4-1991 and is in accordance with law. No further orders are necessary in the Writ Petition which is, accordingly, disposed of. No orders, as to costs.