V.S. Kokje, J.
1. The petitioner, in this case, was a Judge of the High Court of Madhya Pradesh till his retirement on 20-1-1986. At the time of his retirement the salary of a Judge of the High Court according to the Constitution was Rs. 3,500/-. By the Constitution (Fifty-fourth Amendment) Act, 1986 the IInd Schedule to the Constitution was amended to raise the salary of a Judge of the High Court from Rs. 3,500/- to Rs. 8,000/-. The Fifty-fourth Amendment of the Constitution came into force w.e.f. 1-4-1986. Thus, the salary last drawn by the petitioner was at the rate of Rs. 3,500/- per month. The petitioner was paid terminal benefits under the High Court Judges (Conditions of Service) Act, 1954. By memorandum dated 23rd December, 1985 (Annexure P/1 to the petition) the petitioner's pension was fixed at Rs. 11,200/- per annum and a lump sum payment of Rs. 16,333-35 paise was sanctioned to him as death-cum-retirement gratuity. The rate at which the Family Pension would be payable in the case of the petitioner was also fixed by the aforesaid memorandum. By a memorandum dated 26-3-1987 (Annexure P/2 to the petition) the General Administration Department of the State of Madhya Pradesh sanctioned payment of amount in lieu of leave standing to the credit of the petitioner on the basis of the salary and allowances last drawn by the petitioner as a Judge of the High Court.
2. On 13-1-1989, the Government of India, Ministry of Law & Justice (Department of Justice) issued a circular to all concerned conveying the decision of the Government of India to accept the recommendation of the Chief Justice of India that salaries of the Judges of the Supreme Court and the High Court be revised from 1-1-1986, thedate from which the salaries of the Central Government employees were revised, instead of 1-4-1986 as per the Fifty-fourth Amendment of the Constitution. The circular itself states that the President was pleased to order that all Judges of the High Courts and Supreme Court of India be paid an ad hoc amount in lieu of the arrears, presuming that the increase in the salaries of Judges of the High Courts and the Supreme Court of India was w.e.f. 1-1-1986 instead of 1-4-1986. As the petitioner had retired on 20-1-1986 he claimed the benefit under the aforesaid decision of the Government of India pursuant to which the President had issued the order. According to the petitioner if, the date of revision of the salary was to be shifted backwards from 1-4-1986 to 1-1-1986, by a legal fiction it will have to be deemed that between 1-1-1986 to 20-1-1986 the petitioner draw salary at the rate of Rs. 8,000/- per month and would be entitled to all the terminal benefits on that basis as also the difference in salary for the period between 1-1-1986 to 19-1-1986.
3. The petitioner accordingly wrote to the Secretary to the Government of India, Ministry of Law & Justice (Department of Justice), New Delhi (Annexure P/4 to the petition) as also to the Accountant General, Madhya Pradesh, Gwalior on 22nd December, 1990 (Annexure P/5 to the petition) claiming the aforesaid benefits. However, the Government of India and the Accountant General did not agree. On 11-6-1991 the Ministry of Law & Justice of the Government of India (Annexure P/ 7 to the petition) wrote to the petitioner that ad hoc payments allowed from 1-1-1986 to 31-3-1986 did not qualify for computing pensionary benefits. By letter dated 10-10-1991 (Annexure P/6 to the petition) the Office of the Accountant General, Madhya Pradesh, Gwalior wrote to the Treasury Officer, Indore authorising the Treasury Officer to make payment for the difference in salary alone for the period between 1-1-1986 to 19-1-1986, Rs. 990/- to the petitioner. The petitioner therefore filed this petition in response to which the same stand was repeated by the Government of India in it's return.
4. The sole point for consideration in this case is as to whether the fiction created by the Government of India's decision that the salaries of Judges of the High Courts and the Supreme Court were revised w.e.f. 1-1-1986 instead of 1-4-1986 would extend to payment of terminal benefits on that basis to the Judges who retired between 1-1-1986 to 31-3-1986 or would be confined only to payment of arrears of salary alone up to the date of their retirement. The petitioner contends that the fiction will have to be taken to it's logical consequences and the Union of India insists that the intention was to pay arrears of salary alone on that basis and7 therefore, terminal benefits to Judges retiring between 1-1-1986 and 31-3-1986 are not payable on the basis of increased salary.
5. The law on the point is summarised in the 'principles of statutory interpretation' by Hon'ble Justice G. P. Singh, Fourth Edition 1988 on page 208 as follows :-
'In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. It cannot also be extended by importing another fiction. And a legal fiction in terms enacted 'for purposes of this Act' is normally restricted to that Act and cannot be extended to cover another Act.
As was observed by James, L. J.: 'When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to'. 'When a legal fiction is created', stated Section R. Das, J. 'for what purpose, one is led to ask at one, is it so created?'.
After ascertaining the purpose, 'full effect must be given to the statutory fiction and it should be carried to its logical conclusion' and to that end 'it would be proper and even necessary to assure all those facts on which alone the fiction can operate'. In an oft-quoted passage, Lord Asquith stated: 'If you are bidden to treat an imaginary stated of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it....... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.' _,
The aforesaid observations are based on several decisions of the Supreme Court as also some English decisions.
6. In order to appreciate the problem in its proper perspective and in order to cull-out the real intention and the purpose of the fiction created by the Government of India and the President of India, it is necessary to reproduce the circulardated 13-1-1989 on the basis of which the date of increase in salary was taken back to 1-1-1986 :--
No. 24/38/87-Jus.
Government of India,
Ministry of Law & Justice
(Department of Justice) ..
North Block
New Delhi
Dated the 13-1-1989
To,
The Chief Secretaries of All State Governments.
The Registrar, Supreme Court of India, New Delhi.
The Registrars, All State High Courts.
The All Accountants General, State Governments.
The Comptroller and Auditor General of India.
The Pay and Accounts Officer, Supreme Court of India, New Delhi.
The Pay and Accounts Officer No. XIV, Delhi Administration, R.B.I. Building, New Delhi.
Subject: Payment of an ad hoc amount in lieu of arrears presuming that increase in the salaries of Judges of High Courts and Supreme Court of India was with effect from 1-1-1986 instead of 1-4-1986.
Sir,
I am directed to say that the Chief Justice of India had proposed to the Government of India that the salaries of the Judges of the Supreme Court and the High Court be revised from 1-1-1986, the date from which the salaries of the Central Government Employees were revised, instead of 1-4-1986, as determined by the Constitution (Fifty-fourth Amendment) Act, 1986. The proposal hasbeen considered carefully by the Governmentand the President is pleased to order that allJudges of the High Courts and of theSupreme Court of India be paid an ad hocamount in lieu of the arrears, presuming thatthe increase in the salaries of Judges of theHigh Courts and the Supreme Court of Indiawas with effect from 1-1-1986 instead of1-4-1986.
Yours faithfully,
Sd/-
(J. S. Bodhan)
Joint Secretary to
the Govt. of India
Copy to: 'Ministry of Finance, Department of Expenditure E.III Branch.
Finance III Branch, Ministry of Home Affairs.
Budget Division, Ministry of Home Affairs.
Legislative Department, Shastri Bhawan, New Delhi.
Sd/-
(J. S. Budhan)
Joint Secretary to
the Govt. of India'.
7. Applying the principles stated herein-, above to the aforesaid order, we find, thought that in reality the Constitution, revised the salary of the Judges of the High Courts w.e.f. 1-4-1986, the Government of India and the President created a fiction that they were so increased w.e.f. 1-1-1986. What was the purpose sought to be achieved? The purpose was to synchronize the date of grant of benefit with the date with effect from which the salaries of the Central Government employees were revised. It is clear that the increase in salary of the Central Government employees and that of the Judges was considered simultaneously and the increase in the salary of the Judges had also some relation to the salaries which were being paid to the Central Government employees. A sense of proportion and parity had to be maintained because it appears that one of the considerations for increase in the salary of the Judges was to maintain. At least to some extent, a respectable difference between the salaries payable to the Judges and salaries payable to the Central Government employees. The Government did not (want) to create a situation in which many Central Government employees would get higher salaries and total remuneration, than the Judges of the High Court and the Supreme Court at any point of time.
8. It appears that a situation had been created between 1-1-1986 and 1-4-1986 in which several Central Government employees lower in status than the Judges of the High Court and the Supreme Court were getting higher salaries than the Judges of the High Court and the Supreme Court. The purpose therefore was to remedy this situation and not to permit even for a single day a situation to exist in which employees of the Central Government holding lower post than the Judges of the High Court and the Supreme Court could be able to draw salary higher than these constitutional functionaries. The essential decision was therefore of presuming that the increase in salaries of the Judges of the High Courts and the Supreme Court of India was w.e.f. 1-1-1986 instead of 1-4-1986. The legal fiction is created by the last part of the letter which presumes that the increase in the salaries was w.e.f.' 1-1-1986 instead of 1-4-1986. The preceding part about payment of an ad hoc amount in lieu of arrears is not the main part because by itself it would not create any fiction. The essential part of the order is the part which creates the fiction and that is the part which eloquently tells us the purpose behind the fiction. Now since it is presumed by a fiction that the increase in the salaries was w.e.f. 1-1-1986, it will have to be deemed that the salaries were factually increased from 1-1-1986 itSelf right front the beginning. The petitiorief was therefore, naturally entitled to get all his terminal benefits on the basis that the salary last drawn by him was at the rate of Rs. 8,000/- per month. The payment of terminal benefits like calculation of the lump sum amount of death cum-gratuity, leave encashment benefit etc. calculated at the rate of enhanced rate of salary would therefore follow as a. natural consequence of the increase in salary. It would be an inevitable corollary of the state of affairs created by the fiction. The interpretation put on the decision of the Government of India and the President by the Accountant General, Madhya Pradesh, Gwalior and the, Secretary to the Government of India, Ministry of Law & Justice to confine the benefit to arrears of salary alone is therefore not correct, in fact it is arbitrary. The moment it is accepted by the Government of India that on 19-1-1986 on the eve of his retirement, the petitioner was entitled to draw salary at the rate of Rs. 8,000/- per month, the fiction has to be taken to its logical end the petitioner will be deemed to have drawn salary at the rate of Rs. 8,000/- per month on the date of his retirement and will have to be paid all the terminal benefits on that basis.
We therefore allow this petition and declare that the petitioner is entitled to all the terminal benefits on the basis that the salary last drawn by him was at the rate of Rs. 8,000/ - per month add not Rs. 3,500/- per month. The decision to the contrary taken by the respondents deserves to be quashed and is hereby quashed. The letter dated 10-10-1991 of the Accountant General, Madhya Pradesh, Gwalior (Annexure P/6) and that of the Government of India dated 11th June, 1991 (Annexure P/7) are hereby quashed. The respondents are directed to calculate the amounts of terminal benefits under different heads payable to the petitioner o,n the above basis within a period of two months from the date of this judgment and to pay the entire difference/arrears with interest @ 10%. per an-num on the amount from 13-7-1989 (taking six months as a reasonable period for compliance with the circular dated 13-1-1989) till the date of the payment within two months thereafter. The parties shall bear their own costs. Security costs be refunded.