ANSHUMAN SINGH, J.

(1.) This writ petition under Art.226 of the Constitution of India has been filed by the petitioners for issue of writ in the nature of (i) mandamus directing the respondents to compute and determine the death-cum-retirement gratuity payable to an officer of the rack of Secretary to the U.P. State Government of the Indian Administrative Service at the time of retirement of the petitioners; (ii) certiorari quashing Para III of the impugned letter No. 24/43/83/- Jus. dated October 19, 1984, issued by the Government of India Ministry Of Law and Justice, Department of Justice, (annexure-'2' to the writ petition); (iii) mandamus directing the respondents to pay ad hoc relief to the petitioners and restraining them from asking the petitioners to refund the paid to them; and (iv) mandamus directing the respondents to pay petitioners 8 and 9 the difference of pension at the rate of Rs. 100/- per mensem.

(2.) The facts giving to the instant writ petitions, which are relevant for the purpose of determining the controversy, involved, briefly are that petitioners 1 and 2 retired as Chief Justices of the Allahabad High Court and Petitioners 3 to 9 as puisne Judges of the Allahabad High Court prior to, October 1, 1974. Subsequently, an impleadment application was filed by Anar Devi widow of late Sri M.L. Chaturvedi, who retired as Puisne Judge of the Allahabad High Court in July 1959. The said application was allowed and she has also been impleaded as petitioner 10 in the petition.

(3.) A counter-affidavit has been filed on behalf of respondent 1 by Babu Lal, Under Secretary, Department of Justice, Ministry of Law and Justice, Government of India. Another counter-affidavit has been filed on behalf of respondent 2 by Vikram Chandra, Senior Deputy Accountant General (Pension), Office of A.G., U.P., Allahabad. Two rejoinder affidavits have been filed on behalf of the petitioners by petitioner 6 Mr. Gyanendra Kumar to the aforesaid counter-affidavits.

(4.) We have heard Sri V.B. Upadhya, learned counsel for the petitioners, and Sri D.P. Singh, learned Additional Standing counsel for Government of India The first grievance raised on behalf of the petitioners by the learned counsel is that though all the petitioners have retired prior to 1st October 1974 on attaining the age of 62 years, they are entitled to death-cum-retirement gratuity. The conditions of Service of the Judges of the High Courts, in matters pertaining to their pension, gratuity and Provident Fund etc. are governed by the High Court Judges (Condition of Service) Act, 1954 (hereinafter referred to as the Principal Act) and the High Court Judges Rules, 1956 (hereinafter referred to as the Judges Rules 1956) framed under Ss.23 and 24 of the Principal Act. All the petitioners are governed by the provisions of the First Schedule, Part I of the Principal Act. In the Principal Act and the Judges Rules 1956 there was no express provision for payment of gratuity to the retired Judges who were governed by the First Schedule, Part I. By means of the High Court Judges (Conditions of Service) Amendment Act, 1961, S.2 of the Principal Act (relating to definitions) was amended to the extent that in Sub-Sec. (i) after Cl.(g). the following clause shall be, and shall be deemed always to have been, inserted, namely :-

"(gg) 'Pension' means a pension of any kind whatsoever payable to or in respect of a Judge, and includes any gratuity or other sum or sums so payable by way of death or retirement benefits."

The High Court Judges (Conditions of Service) Amendment Act, 1976 which was passed by the Parliament brought about a number of drastic changes in the structure and content of various provisions of the Principal Act as well as its First Schedule. This amendment Act was made retrospectively operative with effect from 1st day of October, 1974". It is pertinent to mention that for the first time the provision for grant of death-cum-retirement gratuity was expressly made available by the Amending Act of 1976 even to Judges who were governed by Part I of the First Schedule. Since all the petitioners have retired prior to 1st October, 1974 even by incorporating the express provision for grant of death-cum-retirement gratuity by the Amending Act of 1976, the said benefit was not granted to the petitioners on the ground that they have retired prior to 1st October, 1974.

(5.) Mr. V.B. Upadhaya, learned counsel for the petitioners strenuously urged that though the petitioners have retired before 1st October 1974, they are entitled to get retirement gratuity under S.17 of the Principal Act as amended by the Amendment Act of 1961 read with R.19 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as 1958 Rules) as the same is applicable to them by virtue of R.2 of the Judges Rules 1956 from the very commencement of the Constitution of India. Rule 2 of the Judge Rules 1956 reads as under :

"2. Conditions of Service in Certain Cases :- The conditions of services of a judge of a High Court for which no express provision had been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been determined by the rules for the time being applicable to a member of the Indian Administrative Service, holding the rank of Secretary to the Government of the State, in which the principal seat of the High Court is situated.."

Rule 1(2)(a) of the 1958 Rules made these rules applicable to all those Officers belonging to the Indian Administrative Service who retired from service on or after 29th October, 1951. According to R.2(b) of the 1958 Rules "death-cum-retirement gratuity" means the lump sum granted to a member of the service or, his family in accordance with R.19. Rule 19(1) of the 1958 Rules provides for payment of gratuity on retirement whereas R.19(2) provides for payment of gratuity in the event of death. The provision for payment of gratuity in the event of death has been made in Ss.17 and 17A of the principal Act as amended by the Amendment Act of 1961 but there is no, specific provision for payment of gratuity in the event of retirement.

(6.) We have carefully perused R.2 of the Judges Rules 1956. There is no manner of doubt that R.2 specifically provided that where no express made in the Principal Act, rules applicable to a member of the Indian Administration Service holding the rank of Secretary to the Government of the State, in which the principal seat of the High Court is situated shall be applicable. The fact that the members, belonging to the Indian Administrative Service were entitled under the 1958 Rules for payment of gratuity on retirement with effect from 29th October, 1951 is not under doubt and there being no express provision for payment of gratuity on retirement to the High Court Judges, the said rule will be applicable to the petitioners on the date of their retirement.

(7.) A similar controversy arose in Civil Misc. Writ Petn. No. 5372 of 1985 - Chandra Kala Agarwal v. Union of India - decided on 27-4-1988 in which the petitioner claimed family pension after the death of her husband who retired as a Pusine Judge of this Court. In the said case we have already taken the view that since there was no specific provision for grant of family pension in the Principal Act the petitioner was entitled to receive family pension in view of R.2 of the Judges Rules 1956.

(8.) Mr. D.P. Singh, learned Additional Standing Counsel appearing for the Union of India, who has very ably argued the case, urged that since an express provision has been introduced for the first time by Amending Act of 1976 for payment of gratuity on retirement only to those Judges who retired on or after 1st October, 1974, the petitioners having retired prior to the aforesaid date were not entitled to receive gratuity. He further contended that the question of payment of gratuity on retirement has been finally adjudicated upon by the Supreme Court of India in the case of N.L. Abhyankar v. Union of India, AIR 1984 SC 1247 [LQ/SC/1984/118] and while granting pensionary benefits under the Amending Act of 1976 to Judges who had retired on or after 1-10-1974 said that what they had said about pensionary benefits does not apply to payment of gratuity and as such it is not open to agitate petitioners to agitate the said matter again in the instant writ petition and this Court is not competent to sit in judgement over the decision taken by the Supreme Court in the said case.

(9.) The Amending Act 1976 amended the First Schedule of Part I relating to pension of Judges and provided liberalised pensionary benefits only to the Judges who retired on or after the 1st day of October 1974. The said provision was challenged by petitioners 1, 2, 5 and 6 together with two other Judges (since dead), who had retired prior to 1st October, 1974 by way of Writ Petn. No. 3781 of 1979 in this Court and a Division Bench allowed the said petition on March 2, 1983 by which the words "who has retired on or after the 1st day of October 1974" appearing in paragraph 10 of the First Schedule, as amended by the Amending Act of 1976 were struck down and a writ of mandamus was issued to the Union of India with the following direction :- "to compute and pay the pension to Judges(including Chief Justices) of High Courts accordingly." The Union of India feeling grieved against the before said judgement of this Court filed special Leave petition No. 9616 of 1983 which was dismissed by the Supreme Court by its judgement dated 24th April 1984. The said judgement is reported in Union of India v. Bidhubhushan Malik, All 1984 SC 1177 [LQ/SC/1984/117] . The operative part reads as under :

"For the reasons mentioned by the learned Judges of the Allahabad High Court in their judgement, we agree with their conclusion and dismiss the Special Leave petition."

On 24th April, 1984 the Supreme Court also decided the case of N.L. Abhyankar (supra) wherein it has been observed :

"The writ petitions are disposed of accordingly. What we have said about pensionary benefits does not apply to payment of gratuity."

The aforesaid observation of the Supreme Court has been made the sheet anchor of the argument advanced on behalf of the Union of India that since the Supreme Court while ranting pensionary benefits did not grant benefit of payment of gratuity to Judges who retired prior to 1st October, 1974 amounts to denial of payment of gratuity on retirement and as such the petitioners are debarred from agitating the matter again in this Court. The aforesaid order of the Supreme Court was being interpreted by the Union of India to mean that the Supreme Court has rejected the claim regarding payment of gratuity on retirement to the Judges who retired prior to 1-10-1974. A review petition was filed in the Supreme Court if India in the aforesaid case which clarified the misgiving created by the respondents by the following order passed on November 20, 1984 :-

"By consent of learned Attorney General both the petitions are allowed. Our decision relates only to the question of pension. The petitioners are at liberty to move separate petitions with regard to gratuity, if necessary and if so advised. No costs."

A photostat copy of the said order has been filed before us. In view of the aforesaid order of the Supreme Court on the review petition the argument raised by the learned Additional Standing Counsel for Union of India that the matter regarding payment of gratuity on retirement has been finally adjudicated upon by the Supreme Court has no legs to stand and we reject the same. In view of the aforesaid discussion we are of definite view that under R.2 of the Judge Rules 1956 the petitioners who retired prior to 1st October, 1974 are entitled to receive gratuity on their respective dates of retirement which was payable to a member of the Indian Administrative Service, holding the rank of Secretary to the Government of the State i.e. Uttar Pradesh.

(10.) Another limb of argument advanced on behalf of the Union of India is that no mandamus can be issued for the demand of gratuity after such a long period as the petitioners have never claimed for the same and this Court should not interfere on the ground of laches committed on the part of the petitioners. We have gone through the Principal Act and Judges Rules 1956 and we find no provision which requires the retiring Judge to apply for pension or other pensionary benefits including the gratuity. It is an obligation on the Government under the Principal Act 1954 to pay pension and gratuity to the retired Judges. We think that in view of the fact that the Judges hold posts under the Constitution and sanctity attached to their office the Parliament never intended that a Judge on his retirement should apply to the Government for payment of pension, gratuity etc. and as such the claim of the petitioner to which they are legitimately entitled cannot be denied, Moreso we have no hesitation in saying that it is an inaction on the part of the respondent which resulted in non- payment of gratuity to the petitioner on their retirement to which they were legally entitled. In the circumstances we think it proper to exercise our jurisdiction under Art.226 of the Constitution and direct the respondents to pay retirement gratuity to them which was payable to a member belonging to the Indian Administrative Service, holding the rank of Secretary to the Government of the State on the respective dates of retirement of the petitioners.

(11.) It has also been urged on behalf of the petitioners that they are also entitled to interest at the rate of twenty per cent per annum. Learned Additional Standing Counsel has invited our attention to R.19-A of the 1958 Rules as amended in 1987 which provides for payment of interest at the rate of five per cent per annum in case of delayed payment. Learned counsel for the petitioners on the strength of Letter No. 19/79/75-Jus. dated August 29, 1977, from the Government of India, Ministry of Law, Justice and Company Affairs, Department of Justice addressed to the Chief Secretaries of All State Governments (Annexure-I to the counter-affidavit of Vikram Chandra) urged that the Central Government was aware that 1958 Rules were applicable to the High Court Judge and since a categorical stand has been taken that no retirement gratuity was paid to the Judges who retired prior to 1st October, 1974 the Central Government has illegally withheld the gratuity and as such the petitioners are entitled to penal interest. In this connection learned counsel for the petitioners has placed reliance on the decision of the Supreme Court in State of Kerala v. M. Padmanabhan Nair, AIR 1985 SC 356 [LQ/SC/1984/339] which has been followed by the Punjab and Haryana High Court in R.S. Sehgal v. Union of India (1985 (2) SLR 285). We have perused the aforesaid decisions and also keeping in view the decisions of the Supreme Court in D.S. Nakara v. Union of India. AIR 1983 SC 130 [LQ/SC/1982/209] and that of the Punjab and Haryana High Court in Bhagwant Singh State of Haryana, (1988(1) SLR 434) regarding payment of interest it is expedient in the interest of justice that the petitioners should be awarded interest at the rate of 12 per cent per annum on the sum due to them as gratuity from the date of retirement till the date of payment as respondents have knowingly and wilfully withheld the payment to which the petitioners were legally entitled.

(12.) The other grievance raised on behalf of petitioners 3, 4, 7, 8 and 9 is regarding payment of ad hoc relief. It would be pertinent to mention here at this very stage that petitioners 1, 2, 5 and 6 are being paid ad hoc relief of Rs. 110/- per month apart from the pension payable to them. Rule 17 of the 1958 Rules deals with retiring pension and gratuity which reads as under :-

"Retiring Pension and gratuity.- (1) A retiring pension and death-cum-retirement gratuity shall be granted to a member of the Service who retires or is required to retire under R.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 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 Services, Class I."

A perusal of the said provisions indicate that a retiring pension and death-cum-retirement gratuity is paid to a member of the service belonging to the Indian Administrative Service and sub-rule (2) lays down that apart from the pension and death-cum-retirement gratuity relief against rise in the cost of living index shall be granted to every such 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 Services, Class I. It has already been held earlier that the provisions of 1958 Rules were applicable to the High Court Judges also by virtue of R.2 of the Judges Rules 1956. Thus it is abundantly clear that the Judges of the High Court are also entitled to the relief mentioned in R.17(2) of the 1958 Rules. This fact is admitted that the Judges who had retired prior to October 1, 1974 were given ad hoc and graded relief in addition to the pension by the Central Government in exercise of its power under R.17(2) of the 1958 Rules. The said fact is borne out by the Government Order dated August 29, 1977 (Annexure-I to the Counter-Affidavit of Vikram Chandra). The said ad hoc relief was given from January 1, 1973 to Judges who retired prior to October 1, 1974. In the last paragraph of the aforesaid Government Order it has been clearly mentioned that the Judges who retired prior to October 1, 1974 will get graded relief in addition to the ad hoc relief from October 1, 1975. By means of the Government Order dated October 19, 1984 (Annexure-'2' to the writ petition) the ad hoc relief is sought to be withdrawn from October 1, 1974. It has been mended on behalf of the petitioners that since this relief is granted under R.17(2) of the 1958 Rules to meet the rise in the cost of living index, it is neither part of pension nor it is granted in lieu of pension but this relief is granted over and above the pension payable to a Judge. The payment made thereunder cannot be stopped, deducted or adjusted against the arrears of revised pension payable by virtue of the decision of the Supreme Court in Union of India v. Bidhubhushan Malik, AIR 1984 SC 1177 [LQ/SC/1984/117] .

(13.) The redeeming feature of the cases 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. Learned Standing Counsel appearing for the Union of India on the other hand has strenuously contended that the Judges are entitled to receive pension and not to any ad hoc relief, the ad hoe relief given to the Judges is a part of the amount of pension and not an amount in addition 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 hoe 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 petitioner and on the other they refuse to pay the same to other petitioner and the action of the respondent is wholly discriminatory and violative of act 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 disadvantages of the Judges in view of the proviso to Art.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 matter. 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 retrospectively has placed reliance on a decision of the Punjab and Haryana High Court in Daljit Singh Narula v. The 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 be 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.

(15.) The next grievance which has been raised on behalf of petitioners 8 and 9 related to the minimum pension payable to them Petitioner 8 served as a Judge of the Allahabad High Court for six years and seven months, and petitioner 9 for six years and five months, meaning thereby both the petitioners were Puisne Judges of this Court for less than seven years. It has been urged that according to the Schedule the Judges of the High Court who had put in six years and had not put in seven years of service were not benefited by the provisions of para. 2 of Part I of the 1st Schedule to the Principal Act, Para 2 of Part I of the 1st Schedule after the Amending Act of 1976 provided for calculation and payment of pension at a specified rate only in cases where the Judge had completed service for not less than seven years. Para. 9 of the said scheme provided for payment of minimum pension at the rate of Rs. 8400/- per annum according to Amending Act 1976. As a result according to the Amending Act 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 five years or six years of service was put at a disadvantageous position. Para 2 of the 1st Schedule was challenged on the ground of being arbitrary and unreasonable in Writ Petn. No. 20328 of 1986 Deoki Nandan Agarwala v. Union of India decided on March 15, 1988 : (Reported in AIR 1988 All 271 [LQ/AllHC/1988/141] ). The controversy involved in the said case and the grievance of petitioners 8 and 9 in the instant case are squarely the same. In the aforesaid case of Deoki Nandan Agarwala (supra) we have held that the words 'not less than seven years' have to be read as 'more than four years' in para 2 in order to uphold the validity of the provisions. When the judgement in that case was delivered the recent amendment dated April 8, 1988 to the Principal Act was not in existence. The Parliament has passed Act No. 20 of 1988 known as the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1988, the provisions of Ss.2 and 5 whereof shall be deemed to have come into force on the 1st day of January 1986 and the provisions of Ss.3, 4, 6 and 7 shall be deemed to have come into force on the 1st day of November 1986. The same provision has been repeated in para 2 of Part I of the 1st Schedule of the Principal Act. A copy of the Gazette of India Extraordinary dated April 8, 1988 had been produced before us in which we find that the same language as used in 1986 amending Act has been repeated. We are, therefore, of the opinion that the legislation can be saved by reading down paragraph 2 of Part I of the First Schedule to the Principal Act as amended by 1988 amending Act as "more than four years" in place of "not less than seven years."

(16.) In the result the petition succeeds and is allowed. We issue a writ of mandamus directing the respondents to compute and determine the retirement gratuity payable to an Officer of the rank of Secretary to the U.P. State Government of the Indian Administrative Service at the time of retirement of the petitioners and pay the same to them along with interest at the rate of twelve per cent per annum till the date of payment within four months from today. We also issue a writ of certiorari quashing para (iii) of letter No. 24/43/83-Jus. dated October 19, 1984, issued by the Government of India, Ministry of Law and Justice, Department of Justice, (Annexure- '2' to the writ petition) relating to discontinuance of ad hoc relief with effect from October 1, 1974. We further issue a writ of mandamus directing the respondents to pay ad hoc relief to petitioners 3, 4, 7, 8 and 9 from January 1, 1973 till this day along with interest at the rate of 12 per cent per annum within four months from today and shall also keep on paying regularly to them. The respondents are also restrained from adjusting, deducting or recovering the amount of ad hoc relief paid to the petitioners from their arrears of pension pending if any or from the pension payable to them in future. We also direct the respondents to pay petitioners 8 and 9 the difference of pension which they had been paid and the enhanced pension to which they are entitled under this order within two months from the date of presentation of a certified copy of this order before the Secretary, Government of India, Ministry of Law and Justice, Department of Justice, New Delhi. The petitioners are also entitled to their costs.

(17.) After the judgement was dictated and typed and the case is listed for delivery of judgement on May 13, 1988, an application was filed on May 12, 1988 stating therein that petitioner 2, Mr. S.K. Verma Ex-Chief Justice expired on May 9, 1988 leaving behind Smt. Nirmala Verma his widow as legal heir and representative. The said application has been allowed by us on May 12, 1988 and her name has been ordered to be substituted in place of petitioner 2. We, therefore, direct that the relief which we have granted to petitioner 2 in the writ petition shall now be deemed to have been granted to Smt. Nirmala Verma, legal heir and representative of petitioner 2. Petition allowed.