ORDER
C.S. Rajan, J.
1. The petitioner, an octogenerian who adorned the exalted office in this temple of justice has approached this Court for the redressal of his grievances regarding payment of pension. The petitioner who was appointed as a judge of this Court in 1960 retired on superannuation in 1970. The conditions of service of High Court Judges including payment of pensionary benefits are governed by the High Court Judges (Conditions of Service) Act 1954 (hereinafter referred to as 'the Act') and the High Court Judges Rules 1956. Section 14 of the Act statesthat every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule to the Act. Rule 2 of the High Court Judges Rules 1956 provides that conditions of service of a Judge of a High Court for which no express provision has been made in the Act shall be determined by the Rules applicable to a member of the Indian Administrative Service holding the rank of the Secretary to Government of the State. The Central Government framed the All India Services (Death-cum-Retirement Benefits) Rules 1958 (hereinafter referred to as 'the Rules'). Rule 17 of the Rules reads as follows :
'(1) Retiring pension and death-cum-retirement gratuity shall be granted to a member of the service who retires or is required to retire under Rule 16.
(2) Notwithstanding anything contained in Sub-rule (1) relief against rise in the cost of living index shall be granted to every such member and in such manner as may be prescribed by the Central Government from time to time for Officers of the Central Civil Services Class I.'
2. The petitioner is governed by the provisions of Part I of the First Schedule to the Act. There is no express provision for payment of gratuity or reliefs in the Act. Therefore the petitioner is entitled to get gratuity and reliefs etc. in accordance with the Rules applicable to the Secretary to the Government of the State of Kerala. Judges who retired prior to 1-10-1974 were paid ad hoc relief of Rs. 110/- per mensem with effect from 1-4-1974. They were also paid graded relief (dearness relief) which was Rs. 600/- per mensem from 1-7-1986.
3. The pension of the High Court Judges was revised by an order of the Central Government dated 19-10-1984 with effect from 1-10-1974. By that order the ad hoc relief which was earlier granted was stopped retrospectively from 1-10-1974 and the ad hoc relief paid from 1-10-974 was directed to be adjusted from the revised pension. The above provision was made applicable to the petitioner by Ext. P1 communication from the Government of India to the Chief Secretary of the State. The Accountant General implemented Ext. P1 order by Ext. P2 dated 17-11-1984. Pursuant to Ext. P2 order, the Accountant General withheld an amount of Rs.13,310/- representing the ad hoc relief paid to the petitioner from the arrears of revised pension.
4. The pension of retired High Court Judges was again revised with effect from 1-11-1986. While implementing the above revision as per Ext. P3, graded relief already paid from 1-11-1986 onwards was directed to be adjusted white the revised pension was paid. Thus an amount of Rs. 10,200/- was deducted from the petitioner's revised pension.
5. Subsequently by orders dated 3-6-1988, 26-7-1988 and 15-12-1988, the petitioner was granted revised rates of dearness relief. But the above rate was less than Rs. 600/- per mensem. Thus the petitioner who was really entitled to receive Rs. 15,600/- was paid only Rs. 7900/-. The balance amount of Rs. 7,700/- was really due to the petitioner. The petitioner was corresponding with the Government of India on this aspect. Finally by Ext. P9 communication dated 18-10-96 the petitioner was informed tht the petitioner is not entitled to get neither the ad hoc relief nor the graded relief. Hence this Original Petition.
6. This is not an isolated problem. Many other Judges of other High Courts had to confront with this stand of the Government of India. The eligibility to receive liberalised pension irrespective of the date of their retirement has now been settled for ever. A Division Bench of the Allahabad High Court in the ruling reported in Bidhubhushan Malik v. Union of India, AIR 1983 All 209, had taken the following view :
' 14. We arc consequently of the view that theeligibility for liberalised pension of havingretired on or after the 1st day of October 1974 inthe High Court Judges (Conditions of Service)Act 1974 (as amended) violates Article 14 and isunconditional.
15. The High Court Judges (Conditions of Service) Act 1954 (as amended) shall be read down as under : in para 10 of the First Schedule the words 'and who has retired on or after the 1st day of October 1974' are unconstitutional and are struck down. Omitting the unconstitutional part it is declared that the Judges (including the Chief Justices) of the High Court are entitled to pension as computed under the High Court Judges (Conditions of Service) Act, 1954 (as amended) irrespective of the date of retirement. The date October 1, 1974, continues to be relevant asbeing one from which the liberalised pension became operative under the High Court Judges (Conditions of Service) (Amendment)Act 1976, irrespective of the date of retirement and hence there is no question of payment of arrears of pension for the period preceding October 1, 1974'.
The above ruling was con Tinned by the Supreme Court in the ruling reported in Union of India v. Bidhuhhushan Malik, AIR 1984 SC 1177 as follows :
'The Allahabad High Court has held :
'.......The High Court Judges(Conditions of Service) Act 1954 (as amended) shall be read down as under : In para 10 of the First Schedule, the words 'and who has retired on or after the 1st day of October, 1974' are unconstitutional and are struck down. Omitting the unconstitutional part it is declared that the Judges (including the Chief Justices) of the High Courts are entitled to pension as computed under the High Court Judges (conditions of Service) Act 1954 (as amended), irrespective of the date of retirement. The date October 1, 1974 continues to be relevant as being one from which the liberalised pension became operation under the High Court Judges (Conditions of Service) (Amendment) Act 1976, irrespective of the date of retirement and hence there is no question of payment of arrears of pension for the period, preceding October 1, 1974................' For the reasons mentioned by the learned Judges of the Allahabad High Court in their judgment, we agree with their conclusion and dismiss the special leave petition.'
7. Nine retired Judges of the Allahabad High Court filed writ petition in the High Court praying to quash Ext.P-1 letter dated 19-10-1984 and also paying for a direction to the Government of India to pay ad hoc relief and graded relief without break. Out of the nine petitioners in the above case, ad hoc relief was denied only to 5 of them. At the same time 4 petitioners were regularly paid the same. While considering the above case, the Division Bench of the Allahabad High Court held as follows in M.C. Desai v. Union of India, AIR 1988 All 283:
'13. The redeeming feature of the case is that whereas the ad hoc relief is still being paid to petitioners 1, 2, 5 and 6 but the same benefit has been denied to petitioners 3,4,7,8 and 9, LearnedStanding Counsel appearing for the Union of India on the other hand has strenuously contended that the Judges are only entitled to receive pension and not to any ad hoc relief, the ad hoc relief given to the Judges is a part of the amount of pension and not in amount in additional to the pension. We find ourselves unable to accept the contention raised on behalf of the Union of India that the ad hoc relief is referable to pension and is a part of the pension paid to the petitioners. In our view this ad hoc relief was granted to the Judges in order to meet the rise in cost of living and the petitioners are entitled to receive the same over and above the amount of pension payable to them. We see no justification that on the one hand the respondents are still paying ad hoc relief to some of the petitioners and on the other they refuse to pay the same to other petitioners and the action of the respondents is wholly discriminatory and violative of Article 14 of the Constitution.
14. It has been urged before us that the payment of ad hoc relief is a condition of service and the same cannot be varied to the disadvantage of the Judges in view of the proviso to Article 221(2) of the Constitution. There appears to be some substance in the argument but we express no concluded opinion on this aspect of the mailer. Once the said relief was granted to the petitioners by the Central Government it could not be withdrawn and more so from retrospective effect by letter dated October 19, 1984 and no reasons have been assigned for discontinuing the payment of ad hoc relief with effect from October 1, 1974. Learned counsel for the petitioners in support of his contention that the grant of ad hoc relief could not be withdrawn retrospective has placed reliance on a decision of the Punjab and Haryana High Court in Daljit Singh Narula v. State of Haryana. (1969) 1 Serv LR 420, wherein it has been held that the conditions of service determined by executive order, cannot be altered by executive order retrospectively to the prejudice of civil servant. In our opinion para (iii) of the said letter deserves to he quashed and the respondents can neither be permitted to either adjust or recover the amount from the pensionary amount which is due to the petitioners nor can they be permitted to adjust the same while making payment of pension in future.'
While allowing the above writ petition, theHigh Court also held that as a result of the Amending Act of 1976 Judges who have put in six years of service and had not completed seven years were placed arbitrarily at a disadvantageous position. Similarly under the Amending Act 1986 the Judge who had put in live years or six years of service was put at a disadvantageous position. The above view was based on an earlier decision reported in AIR 1988 All 271 (Deoki Nandan Agarwala v. Union of India).
8. The above judgment of the Allahabad High Court was affirmed by the Supreme Court in Civil Appeal No. 3715 of 1990, (Ext. P-4) with a slight modification. With regard to the payment of ad hoc relief the Supreme Court held as follows :
'6. With regard to the payment of ad hoc relief apart from the pension, the High Court has referred to Government order dated August, 1977 which shows that ad hoc relief was given from January 1, 1973 to (sic) 1973 to Judges who retired prior to October 1, 1974. The High Court has also pointed out that the said payment had been made to some of the respondents while it was denied to other respondents similarly situate. The High Court was, in our opinion, justified in giving the directions regarding payment of ad hoe relief to respondents Nos. 3, 4, 7, 8 and 9.'
But Dcoki Nandan's case was reversed by the Supreme Court in the ruling reported in 1991 (3) SCR 873 : (AIR 1992 SC 96). (Union of India v. Deoki Nandan Aggarwal). On the above basis the judgment of the Allahabd High Court was modified to the extent it went against the dictum in Deoki Nandan's case as mentioned above,
9. Sri. P. G. Parameswara Panickcr, learned counsel for the petitioner submitted that in the light of the decision of the Allahabad High Court as affirmed by the Supreme Court, there was no justification for the Central Government to deny payment of ad hoc relief and dearness relief to the petitioner. The view of the Government of litdia as indicated in Ext. P-7 communication that the payment of ad hoc relief was specifically ordered to the Judges of the Allahabad High Court and that the petitioner was not entitled to the benefit of the above dictum is absolutely illegal and legally unsustainable.
10. Sri George C. P. Tharakan, learned senior Standing Counsel argued on the basis ofthe averments in the counter-affidavit that the Supreme Court had not extended the scope of the judgment of the Allahabad High Court with regard to the payment of ad hoc relief to other retired Judges. It was further contended that thcjudgmcnt of the Supreme Court with regard to ad hoc relief was restricted. According to the learned counsel, the Government of India had in fact implemented the judgment of the Supreme Court as per Ext. P-5. According to Ext. P-5. the petitioner was entitled to the payment of DCRG only and not the payment of ad hoc relief.
11. Therefore necessarily this Court has to consider the scope and ambit of the decision of the Allahabad High Court as affirmed by the Supreme Court in Ext. P-4 judgment. According to Rule 17 of the Rules, a retiring person is entitled to get death-cum-retirement gratuity. According to Rule 17(2) relief against rise in the cost of living index shall be granted to every member of the service at such scale and in such manner as may be prescribed by the Central Government from time to time for officers of the Central Civil Service. Class I. Thus it is clear that the payment of ad hoc relief is intended to meet the rise in cost of living. Thus the ad hoe relief can never be included in the amount of pension. If the above amount represents the proportionate increase in the cost of living, then it can only be considered as in amount in addition to the pension. Therefore I do not find any justification to accept the plea of the Government of India that ad hoc relief is part of the pension. The very fact that the Government of India is paying ad hoc relief to some of the Judges who retired (as can be seen from the judgment of the Allahabad High Court) will go to show the hollowness of the stand of the Government of India. Therefore the denial of the payment of ad hoc relief and the adjustment of the amount representing ad hoc relief from the arrears of revised pension of the petitioner is illegal.
12. In this connection it is pertinent to point out that that part of the judgment of the Allahabad High Court dealing with payment of ad hoc relief was affirmed by the Supreme Court in Ext. P-4 judgment as noted above. The further stand of the Government of India that the judgment of the Supreme Court with regard to ad hoc relief was restricted is without any foundation.
13. The stand of the Government of India inthis respect is also unsupportable in view of Ext. P-10 communication dated 29th August, 1977 from the Government of India to all the Chief Secretaries of the States. The following paragraphs of Ext. P-10 will further fortify the case of the petitioner:
'2. Reliefs and ad hoc reliefs on pension are given to the Central Government Servants in accordance with the Ministry of Finance Office memorandum No. F.22(B)-RV(A)/75 dated the 13th February, 1976 No. 3(6)/EV(A)/75 dated the 5th April, 1976 and 6th April,1976 (copies enclosed). By All India Service (Death-cum-Retirement Benefits) Rules, 1958 by notification No. 33/20/73-AIS(II) dated the 31st May 1975, relief against the rise in the cost of living index is also admissible to every member of the All India Services at such scale and in such manner as may be prescribed by the Central Government from time to time for officers of the Central Civil Services Class I.
5. The Ad Hoc relief and graded relief on pension to which a member of the Indian Administrative Service holding the rank of Secretary to the Government of a State is eligible is a, condition of service. There being no express provision in the High Court Judges (Conditions of Service Act, 1954 regarding reliefson pension, under Rule 2 of the High Court Judges Rules, 1956, the High Court Judges are entitled to the reliefs on pension, under Rule 2 of the High Court Judges Rules, 1956, the High Court Judges are entitled to the reliefs on pension as admissible under Rule 17(2) of the All India Services (Death-Cum-Retirement Benefits) Rules 1958.'
Therefore I have no doubt in my mind that the conduct on the part of the officers of the Ministry of Law and Justice of the Government of India is absolutely illegal, arbitrary and discriminatory. Therefore I quash Exts. P-6 to P-9 to the extend to which they deny the benefit of ad hoc relief and graded relief to the petitioner and also the adjustment of the amount of ad hoc relief paid to the petitioner from the arrears of revised pension. The respondents are therefore directed to pass orders in compliance with the directions contained in Ext. P-5 order dated 6-8-1996. The respondents are also directed to refund to the petitioner Rs. 13,310/- (ad hoc relief) and Rs. 10,200/-(dearness relief) with interest at the rate of 12% per annum from the respective dates of recoveryto the date of refund. The respondents are also directed to pay to the petitioner ad hoc relief at the rate of Rs. 110/- per mensem from 1 -11 -1984 and to continue to pay the same without break besides pension and other reliefs. The respondents are also directed to pay to the petitioner dearness relief at Rs. 600/- per memsem from 1-11-1985 to 31-12-1988 deducting the amount already paid for the above period. The above amounts will also carry interest at the rate of 12% per annum from the respective due dates till the date of payment.
14. The Original Petition is allowed as indicated above.