# R. L. NARASIMHAM v. UNION OF INDIA - **Citation:** [1973] 1 S.C.R. 773 - **Court:** Supreme Court of India - **Decided:** 1972-08-04 - **Bench:** M .• Sikri, J. M. Shelat, D. Dua, H. R. Khanna, K. K. Mathew - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-l-narasimham-v-union-of-india-5716 - **Pages:** 28 ## Headnote Govt. of lfldl_a A.ct, 1935. Sections 221 and 309 Govt. of India (High Court Judges) Ordtr 1937, Paras 18, 19 and 21-WheJher create a legal Jb/igation for the authorities and vested right in the High Court Judges to r«eive peruion, expressed in Sterling, converted to rupees at the nJarket rate of exchange. Co!Utltutlon of India Art. 221(2). High Court (Judges) Condltio!IS of Service Act 1954 (28 'of 1954) Sections 14, IS, 18 and 25, Scheduled t, Part I paras 4 arid 5-Whether these provisions preserve the 'benefit' of exchange rate 'guarameed' under 1937 order-Whether the constitutional provisions and 1954 Act afford /e:r.J favourable ·terms in matters of 'fhe exchange rate. Constitution of India, Art. 14---Wltether there \.\'as disc:rhninatio11 in matters of fixation of pension amongst the JCS Officers . . M. & D. the two ex-Chief Justices of Allahabad Hiah Court filed a W. P. in Allahabad H. C. for appropriate Writ and directions challengin~ the fixation of their pension in rupee and to re-fix the pension in accord· aoce with the provisions of the Govt. of India (High Court Jud11es) Order, 1937 in Sterling and then to. convert the same into rupees at the preaent market rate of exchange after the devaluation of rupee on Juno 6, 1966. D further claimed .a direction enabling him to clraw his pension at the Treasury in England in Sterlings. Both the1 petitions were dis· missed bv the full Bench of the Allahabad H. C. Thev appealed to this Court after obtaining the certificate of fitness, N field a W.P. under Art 32. of the Constitution claiming similar reliefs. In exercise of power u/s 221 r/w sec. 309 of the Govt. of India Aot. 1935, the' Governor General issued Govt. of India (H.C. Judges) Order. 1937. Schedule III to the Order expressed the pensions payable in Pound Sterlings. Para 21 provided "Pensions expressed in Sterling only shall. if paid in l~dia, be converted at such rate of exchange as the Secy. of State may from time to time prescribe". With the adoption of the Constitution in 1950, the services of the three Judges were continued under Art. 376 of the Constitution. Art. 221 of the Constitution provides for the salaries, leave etc. of Judges and continues th~ guarantees of not ,varying salaries, pensions etc. to the disadvantage of the Judges, as guaranteed by Sec. 221 of the 1935 Act. Jn 1954, Parliament -passed an enactment regulating the salaries, pensions payable to the H. C. Judges including the Judges who belong to the J.C.S. Part I. Part II and Part III of the First Schedule gave different options to be elected by the Judges u/s 15 of the Act. In 1958, new paragraph 3 specifying in rupees the new sCale for additional pension was substituted for the original paragraph 3 of Part JI, in which J!Cnsion payable to an JCS Judge, had been expressed in Sterling only. Part I of the Sch. provide for the pensions payable in rupees only. Sec. 18 of the Act (reiterated provisions of para 21 of 1'937 Order) provided that pensions expressed in S'erling shall be converted into rupees at such rate of exchange as the Central Govt. mav from 174 SUPREME COURT REPORTS [1973) l S.C.'R. time to time specify in this behalf. Sec. 25(1) of the Act restated the £Uarantees in Art. 221 of the Constitution that the pension cond,itions shall not be varied to the disadvantaae of the Judges. M was &o,..,rned by Sec .. 14 of ihe Act r/w Art. 221 (2) of the Consti" tution as he was appointed the C.J. in 1947. D and N who were JCS Judges opted for the pensions to be paid according to the Part I of the First Schedule aunexed to the 1954 Act. They were appointed C.J. after 1954. Before this Court, the three ex-Judges contended that they had a riaht under the 1937 order to get the pension expressed in Pound Sterlin&" and to convert the same into rupees according to the prevalent market rate, after the devaluation of the rupee. Thev further contended that the said ri&ht was protected and preserved by the Constitution and the 1954 Act, and that the f ## Text _Characters 0–39,942 of 70,346. This is a partial read: ask again with offset=39942 for what follows._ A B c D F G H R. L. NARASIMHAM v. UNION OF INDIA August 4, 1972 773 [S, M .• SIKRI, C.J., J. M. SHELAT, I, D. DUA, H. R. KHANNA AND K. K. MATHEW, JJ.] Govt. of lfldl_a A.ct, 1935. Sections 221 and 309 Govt. of India (High Court Judges) Ordtr 1937, Paras 18, 19 and 21-WheJher create a legal Jb/igation for the authorities and vested right in the High Court Judges to r«eive peruion, expressed in Sterling, converted to rupees at the nJarket rate of exchange. Co!Utltutlon of India Art. 221(2). High Court (Judges) Condltio!IS of Service Act 1954 (28 'of 1954) Sections 14, IS, 18 and 25, Scheduled t, Part I paras 4 arid 5-Whether these provisions preserve the 'benefit' of exchange rate 'guarameed' under 1937 order-Whether the constitutional provisions and 1954 Act afford /e:r.J favourable ·terms in matters of 'fhe exchange rate. Constitution of India, Art. 14---Wltether there \.\'as disc:rhninatio11 in matters of fixation of pension amongst the JCS Officers . . M. & D. the two ex-Chief Justices of Allahabad Hiah Court filed a W. P. in Allahabad H. C. for appropriate Writ and directions challengin~ the fixation of their pension in rupee and to re-fix the pension in accord· aoce with the provisions of the Govt. of India (High Court Jud11es) Order, 1937 in Sterling and then to. convert the same into rupees at the preaent market rate of exchange after the devaluation of rupee on Juno 6, 1966. D further claimed .a direction enabling him to clraw his pension at the Treasury in England in Sterlings. Both the1 petitions were dis· missed bv the full Bench of the Allahabad H. C. Thev appealed to this Court after obtaining the certificate of fitness, N field a W.P. under Art 32. of the Constitution claiming similar reliefs. In exercise of power u/s 221 r/w sec. 309 of the Govt. of India Aot. 1935, the' Governor General issued Govt. of India (H.C. Judges) Order. 1937. Schedule III to the Order expressed the pensions payable in Pound Sterlings. Para 21 provided "Pensions expressed in Sterling only shall. if paid in l~dia, be converted at such rate of exchange as the Secy. of State may from time to time prescribe". With the adoption of the Constitution in 1950, the services of the three Judges were continued under Art. 376 of the Constitution. Art. 221 of the Constitution provides for the salaries, leave etc. of Judges and continues th~ guarantees of not ,varying salaries, pensions etc. to the disadvantage of the Judges, as guaranteed by Sec. 221 of the 1935 Act. Jn 1954, Parliament -passed an enactment regulating the salaries, pensions payable to the H. C. Judges including the Judges who belong to the J.C.S. Part I. Part II and Part III of the First Schedule gave different options to be elected by the Judges u/s 15 of the Act. In 1958, new paragraph 3 specifying in rupees the new sCale for additional pension was substituted for the original paragraph 3 of Part JI, in which J!Cnsion payable to an JCS Judge, had been expressed in Sterling only. Part I of the Sch. provide for the pensions payable in rupees only. Sec. 18 of the Act (reiterated provisions of para 21 of 1'937 Order) provided that pensions expressed in S'erling shall be converted into rupees at such rate of exchange as the Central Govt. mav from 174 SUPREME COURT REPORTS [1973) l S.C.'R. time to time specify in this behalf. Sec. 25(1) of the Act restated the £Uarantees in Art. 221 of the Constitution that the pension cond,itions shall not be varied to the disadvantaae of the Judges. M was &o,..,rned by Sec .. 14 of ihe Act r/w Art. 221 (2) of the Consti" tution as he was appointed the C.J. in 1947. D and N who were JCS Judges opted for the pensions to be paid according to the Part I of the First Schedule aunexed to the 1954 Act. They were appointed C.J. after 1954. Before this Court, the three ex-Judges contended that they had a riaht under the 1937 order to get the pension expressed in Pound Sterlin&" and to convert the same into rupees according to the prevalent market rate, after the devaluation of the rupee. Thev further contended that the said ri&ht was protected and preserved by the Constitution and the 1954 Act, and that the fixation of their pension in rupees only was illegal, Dismissing the appeals, HELD : (i) N & D were appointed C.J. after 1954 and exercised the option in terms of Sch. I, Part I of the Act, which expressed pension in rupees only, M was governed by the pro,isions of the 1954 Act and Art. 221 of the Constitution. Strictly speaking for determining the qu""- tion of the creation and preservation of the rights claimed by three Chief Justices, we have to look to the provisions of the Constitution and to the statutory enactment made in accordance with it. (2) Para 21 of the 1937 Order did not impose any legal obli~ation on the authorities concerned to adopt the current or market rate of exchange. The Secy. of States' Governor General were free to prescribe whatever they considered the proper rate of exchange. The 1937 order did not create anv vested right in the Chief Justices. Further, bv Tirtue of Art. 221(2) of the Constitution the provisions of 1937 Order were applicable only till the Parliament made a law in respect of pensions. [792F-Hl (3) Art. 221(2) only protected the rights of a Judge in respect of pension against variation to his disadvantage. Assuming thiS proviso to take within its fold, the right of a Judge in respect of pensions under the 1937 Order. there was no right conferred on a Judge under that Order to get his pension specified in Pound Sterling only, converted into rupees at the current or market rate of exchange. There was therefore no ques .. tion of anv such ri£ht bein£ protected under the Constitution or under Sec. 25 of the 1954 Act. [793B-Fl ( 4) Since D had opted for paymenti according to Part I of Schedule I of the 1954 Act, his prayer for payment of pension in Sierlings on the Treasurv in En~and was not tenable. (5) N's contention that as a creditor of the Govt .. or a person having a money claim be was entitled to the conversion at market rate, was , untenable in view of the fact that neither the Constitution hor the 1954 Act preserve 'the right' to express the pension in Pound. The Constitu• tion and the said Act only contemplate calculation and payment of pension in rupees. [796 Cl (6\ The plea of discrimination and violation of Art. 14 of the Constitution raised by .N was misconceived as the facts of his case were distinguishable from the facts of other ICS Officers. H!l$B] (7) D's contention that the Pound Sterling is intrinsically more stable than the rupee and therefore he was given le.s favourable terms was contrarv to bis own election of pavment under Part I Schedule I of the 1954 Act and was without any merit. [799AJ A B c E F G H A Il. L. NAilASWHAM l'. UNION 775 Appeals of M & D were dismissed and N was allowed to withdraw the writ petition. ORIGINAL/CML APPELLATE JURISDICTION : Writ Petition No. 630 of 1970. B Under Article 32 of the Constitution of India for the enforcec D F G H ment of fundamental rights. AND Civil Appeals Nos. 2065 & 2165 of 1970. Appeals by certificate from the judgment and order dated September 10, 1967 of the Allahabad High Court in Civil Milll:: . .Vrit Petitions Nos. 3006 of 1967 and 1646 of 1948. Writ Petition No. 630 of 1970 C. K. Daphtary, B. P. Singh and D. N. Misra for the petitioner. n. Sen, R. M. Mehta, R. N. Sachthey, S. P. Nayar, B. D. Sharma for respondents Nos. I and 2. J. B. Dadachanji, 0. C. Mathur, Ravinder Narain, P. C. Bhabpatai. I. M. Lal and E. C. Agarwala for the intervener (Kirshna Prasada) E. C. Agal'Wa/a for the intervener (I. M. Lal) Civil Appeal No. 2065 of 1970. C. K. Daphtary, S. C. Manchanda, A. K. Nag a;id Sapna Ghosh for the appellant M. C. Setalvad, M. C. Bhandare, B. Sen, R. N. Sachthey and S. P. Nayar for the respondents. Civil Appeal for 2165 of 1970. M. C. Chagla, S. C. Manchanda, 1. P. Goyal and G. N. Wantoo and R. A. GuptCJ, and M. C. Setalvad tor the appellant. B. Sen, R. M. Mehta and S. P. Nayar for the respondent. 716 SUPREME COURT REPORTS [1973) 1 S.C.R. 'Qle Judgment of the Court was delivered by Dua, J .-This judgment will. dispose of three case9 (i) W. P. No. 630 of 1970 (Shri R. L. Narasimham vs. Union of India & anr.) (ii) C.A. No. 2065 of 1970 (Shri B. Malik vs. Union of India & anr.) and (iii) C.A. No. 2165 of 1970 (Shri M. C. Desai vs. Union of India) because they raise common questions of law. These cases were originally heard in November, 1971 by a Bench of which. our late brother Roy J., was a member. Unfortunately before the judgment could be announced Roy J., died with the result that these cases were set down for hearing before the present Bench. The parties then filed written arguments, supplementing them by oral address. Shri R. L. Narasimhan1, ~t the hearing adressed us in person in support of his writ petition under Art. 32 of the Constitution and Shri S. C. Mancharda addressed arguments on· behalf of Shri Malik in C.A. No. 2065 of 197v. On behalf of Shri Desai in C.A. No. 2165 of 1970 Shri Gupta adopted the arguments addressed in the other two cases. In April 27, 1972 Shri Narasimham was permitted to file additional written arguments on two points which, according A B c D to his representation, he had not fully developed in his earlier oral address. In reply the Union of India was permitted to file E written arguments by May 5, 1972. The relevant facts of the 1hree cases may now be briefly stated : W.P. No. 630 of 1970 : Shri Narasimhan, petitioner in W.P. F No. 630 of 1970 joined the Indian Civil Service on October 12, 1931 and he was assigned to Bihar Cadre. On July 26, 1948 when India was a Dominion under the Indian Independence Act, 1947 he was appointed a Puisne Judge of the Orissa High Court and on March 31, 1956, after the enforcement of ·the 0 High Court Judges' (Conditions of Service) Act, 28 of 1954 (hereinafter called the 1954 Act), enacted by the Parliament G as proviOOd in Art. 221 ( 2), he was appointed Chief 1 ustice of that HJgh Court. On January 4, 1965 he was appointed Chief Justice of the Patna High Court from where he i:etired on August 2, 1968. Soon after his retirement he was appointed a Member of the Law Commission on August 2, 1968. On June ff 6, 1965 Indian rupee was devalued ans on November 18, 1967 English pound was devalued. B c -,D F G R. L. NARASJMHAM v.,UNION (Dua, 1.) 777 Sometime prior to the actual date of his retirement the question of determining the exact amount of pension in rupees payable to the peti•tioner arose. The pe'titioner did not claim that he was entitled to receive his pension in pounds sterling under the provisions of the Government of India (Hi.2h Court Judges) Order, 1937 (hereinafter called the 1937 Order). His main prayer was that he was entitled to be paid his pension in rupees by calculating · it initially as payable in pounds sterling and then converting the sterling into rupees at the current rnte of exchange prevailing at the time of payment: ( vide last part of para 16 of his writ petition and last part of para 3 of his rejoinder-affidavit). According to the petitioner the atnount of pension calculated in accordance with the terms of the 1937 Order being more favourable to him than th€l amount determine!! under the 1954 Act, he was entitled to receive pension under the former. The Government, however, decided to calculate his pension in accordance with the scale and the provisions of the 1954 Act which provide for payment of pension in terms of rupees without any reference to pound sterling or to its current rate of exchange into rupees. On July 2, 1968 the petitioner, in terms of the proviso to s. 15 of the 1954 Act elected to receive the pension payable to him under Part I of the First Schedule to that Act. His option reads : "In pJJrsuance of the proviso to section 15 of the High Court Judges (Conditions of Services) Act, 1954 I, R. L. Narasimham, l.C.S., Chief Ju~tice of the Patna High Court, hereby elect to receive the pension payable to me under Part I of the First Schedule to that Act. The exercise of this 011tion it made without prejudice to my right to claiμJ. pension in pound sterling under the provisions of the High Court Judges Order, 1937 to be converted into rupees at superannuation if it will be more favourable time. Sd./- R. L. Narasimham [ 2-7-68 On October 9, 1968 (as per annexure F to Shri Narasimham's writ petition) the Accountant General, Bihar, intimated to the Accountant General, Central Revenues, New Delhi and also H among others, to Shri Narasimham, the sanction of the Governmynt of India with respect to the payment of Rs. 93,062.75 being the commuted value of Rs. 883/- out of the pension of Rs. 1,666.65 oer mensem (Rs. 20,000/- p.a.) to Shri Narasimham. 15-L 152 Sup CI/73 778 SUPREME COURT REPORTS [1973] I S.C.R. After the dismissal of the writ petitions of Shri B. Malik and Shri N. C. Desai by the Allahabad High Court Shri Narasiniham is stated to ha~ approached 'the Home Secretary in the matter of payment of his pension and to have tried to distinguish his case from those of Shri Malik and Shri Desai. Having failed to get the desired relief from the Government Shri N arasiniham filed the present writ petition in November, 1970. Apart from questioning the correctness of the aforesaid judgment of the Allahabad Hi~. Court he also tried to distinguish his case from the cases of the other two Chief Justices. Civil Appeal No. 2065 of 1970: Shri B. Malik was an Advocate of the Allahabad High Court when he was appointed a Puisne Judge of that High Court in 1944 and. was appointed Chief Justice of the same Court on December 15, 1947. He retired as Chief Justice of that Court on January 11, 1956. According to his submission at the time of his appointment he was toverned by the Government of India Act, 1935 and by virtue of Section 22i of 1that Act, Art. 221 of the Constitution ands. 25 of the 1954 Act, his right in respect of pension could not be varied to his disadvantage after his appointment. His right to receive pension in tenns of the 1937 Order has been preserved, claims Shri Malik, and it is added that he is entitled to be pa!'l the equivalent of his pension expressed in pounds in tenns of Indian currency calculated at the prescribed exchange rate when pension is paid to him in India. The prescribed rate of ex- . change, according to the submission, mus~ be current ·"larket rate 'of exchange. B c E Civil Appeal No. 2165 of 1970 : Shri M. C. Desai having joined the Indian Civil Service in December, 1925 was appointed an Additional Judge of the Allahabad High Ccurt on December F 13, 1948. He became a pennanent Judge of that Court on Jan· uary 24, 1950. He was appointed Chief-Justio~ of the same Court on January 17, 1961, after the 1954 Act had come into force, and retired as Chief Justice of that Court on February 25, 1966. The President sanctioned a sum of Rs. 19,340.00 per annum payable to Shri Desai· by way of pension in accordance with Part I of First Schedule of the 1954 Act. Obviously Shri Desai had elected to receive pension under Part I as provided by the proviso to s. 15 of that Act. Indeed, it is so admitted by him in para 6 of his rejoinder-affidavit dated February 12, 1969 though it is stated in para 5 thereof that he had at tl!at time not thougl:\! of the question as to what his pension would be under the 1937 Order and in para 7 thereof that there was no question of_th\l exercise of any option between the 1937 Or~er and the 1954 Act, the option being confined as between Part G H A B c D }I G H R. L. NARASJMHAM v. UNION (Dua, I.) 779 I and Part ll of the First Schedule of the 1954 Act. The pension payment order WM actually issued to him for payment of pension of Rs. 1,611.1'5 ps. per month by the Accountant General of U.P. This payment order was addressed to the Treasury Officer, Allahabad. On July 12, 1966 Shri Desai got commuted half of his pension with effect from that date and received in lieu thereof Rs. 87,219.80 ps. with the result that his pension payment order was revised by the Accountant General, U.P., and the. bclan_r.e of the pension payable to him was fixed at Rs. 805.85 pS. per mensem. The order commuting his pension, according to his writ petition, was passed in October, 1966 which was obviously after the devaluation of the Indian rupee. On January 19, 1967 he wrote to the· Accountant General of U.P. pointing out that his pension was to be expressed in sterling and then convected into rupees at a rate of exchange fixed by the Government of India. The Accountant General on March 17, 19_~7 sent a reply st~ting that he could only fix the amount of pension as sanctioned by the President of India. Shri Desai thereupon wrote to the Secretary, Ministry of Home Affairs, Government of India, New· Delhi on May 9, 1967 ·for either refixing his pension in rupees after taking into consideration the effect of devaluation cif the rupee or for making an order of payment of pension to him in sterling in England. In that letter he claimed payment of pension under paragraph 933A of the Civil Serviee Regulations. In March, 1968 h~ represented . his case to the Minister of Home Affairs in which he tried to distinguish his case from that of Shri Malik whose writ petition was at. that. time pending in the Allahabad High Court. His prayer was rejected by the Home Ministry on April 20, 1968. Both Shri Malik and Shri Desai applied to the Allahabad High Court under Art. 226 of the Constitution •the former in August, 1967 and the latter in May, 1968. In Shri Malil:'s writ petition prayers v.i::re made inter alia that the High €our! be 'J)lea>ed :-{i) to issue an order, direction or writ in the nature of certiorari and quash the order of the Accountant General U.P,, A_Ua)rnbad expressed in his letter No. PAI/SA/5990 dated February 6, 1967, and (ii) to issue an order, direction or writ in the nature of mandamus directing the Accountant General, Allahabad tb issue a fresh PPO for Rs. 2,060.38 ps. per mensem and Rs. 24,724.56 ps. per annum in view of the devaluation of ~he Indian rupee in supersession of PPO No. 118260 for Rs. 1,299.10 ps. p.lll. and Rs. 15,590.00 per annum: Shri Desai prayed for " (a) a writ, order or direction to the Union of India to refix his pension in accordance with the provisions of the Government of India (High Court Judges) Order, 1937 in sterling and then to convert the same into rupees at the present rate of exchange, (b) a writ, order or direction 780 SUPREME COURT REPORTS [1973] 1 S.C.R. d~ecting the opposit~ party No. 1 (Union of India) to pass surtable orders enabling the petitioner· to draw his pension at the Treasury in England in sterling; ( c) a writ, order or direction directing the opposite party No. 1 t;:i re-calculate the amount of · his pension that has been commllted in accordance with the provisions of the Government of India (High Court Judges) Order, 1937 according to the present rate of exchange and to pay to the petitioner the difference between the said amount and the amount already paid to him." A Full Bench of the Allahabad High Court, by a common order dated September 10, 1969, dis missed both the petlitions of Shd Malik and Shri Desai. That Court, however, ce~trlied the cases to. be fit for appeal to this Cou:t under Arts. 132(1) and 133(l)(c) of the Consti• tution. It is in these circumstances that these three cases have been heard together. The principal distinction between C.A. No. 2065 of 197v (Shri B. Malik vs. Union of India & Anr.) and the other two cases, as sugi:ested at the bar, is that Slu:i B. Malik ·never belonged to !he Indian Civil Service whereas Shri N arasimham and Shri Desai originally belonged to the Indian Civil Servic~ and ·were appointed Judges of their respective High Courts as members of thii'. iervice. The difference between these two categories of cases lies in the difference in the rules of service with regard to payment of peroion governing the Judges who came from the Indian Civil Service and those who never belonged that service. Shri Narasimham and Shti Desai had originally joined the Indian Civil Service and were appOinted first as puisne Judges and then as Chief Justice of their respective High Courts. As already noticed, ·they wen ~ppointed as Chief Justices after the enforcement of the 1954 Act. We do not consider it necesbry to trace the origin of the Indian Civil Service and refer to its histmical background for discovering the dominant object and purpose of the provisions relating to paymel,lt of pensions embodied in the 1937 Order by correlating them with the provisions for making payment of the salaries and pensions in pounds ~ierling in England or of its equivalent in· rupees in India, to the members of the Covenated Services entering into covenants with the British Crown in England for serving in India, which at that time happened to be a part of the British Empire. A B c D E F G At the bar reference was only made to the 1937 Order for foundinl!: the claims of all the three Chief Justices before us, as their rights under this Order were stated to have been pr<:1· served in subsequent enactments and also in the present ConstiH tution of India and in the 1954 Act. We may, therefore, start with the examination of the relevant provisions dealing with the. pension payable 110 Judges of the High Courts as contained in ., A 8 c B E 11 G H R. L. NARASIMHAM v. VNION"(Dua, J.) 781 the 1937 Order. This Order was made by His Majesty in Council under s. 221 read with r. 309 of the Government of India Act, 1935. Section 221 reads : "221. Salaries etc., of Judges.- Th~ Judges of the several lfigh Courts shall be entitled to such salaries and allowances, including allowances for expenses in respect of equipment and travelling upon appointment, and to such rights in res· pect of leave and 'f)ensions, as may from time to time be fixed by His Majesty in Council : Provided that neither the salary of a judge, nor his rights in respect of leave of absence or pension, shall be varied to his disadvantage after his appointment." The 1937 Order provided for all the matters mentioned in s. 321 Para 5 pf the Second Schedule of this Order shows that , salaries payable to the Chief Justices and Judges of various High Courts in British India were specified in rupees. Pensions payable to them were, however, expressed in pounds llterling in the Third Schedule. It does not req~ such research or analysis to discover the reason why salaries, unlike pensions, of Chief Justices and Judge£. were specified in rupees only and quiite obviously this distinction- betwelen payment of salary and payment of pension was not unintentional or without purpose. The intended beneficiaries of these provisions were obviously those who were expected ordinarily to receive their salaries in India and their pensions. in England. The subject of pensions is dealt with in paras 17 to . 24 of this Order though we are directly concerned ~ paras 18, 19 and 21 only. These paragraphs read as under :- "18(1) .-Subject to the provisions of this Order, the pension payable to a Judge who on his retirement is entitled to a pension shall be calculated-· (a) (b) in the case of a Chief Justice or Judge who is not a member of the Indian Civil Service, or of a Chief Justice of a Chartered High Court who is a member of the Indian Civil Service, in accordance with the scale and rules in Part I of the Third Schedule to this Order. in the case of a Judge who is a member of the Indian Civil Service and is not a Chief Justice of a Chartered High Co&rt, iD. accordance with the scale and rules in Part II of the said Schedule. 782 SUP.U:ME COURT REPORTS (1973] 1 S.C.R. 19. ( 1) The provision of this paragraph shall apply in relation to a Judge who is a member of a civil service of the Crown in India. (2) If any such Judge is eligible for a pension under paragraphs 17 and 18 of this Order he shall elect to receive either that pension or such pension as is refered to in the . next succeeding sub-paragraph. (3) If any such Judge is not eligible for a pension under paragraphs 17 and 18 of this Order pr, being eligible for such a pension eleots not to receive that pension, the pensi in payable to him .shall be- (a) the pension for which· he would have been eli-- gi_ple under the rules of his civil service if he had not been appointed a-Judge, his service as a Judge being treated as service for the purpose of calculating that pension; and (b) if he is not a member of the Indian Civil Service, a special additional pension of fut~ hundred rupees per annum in respect of each completed year of servi•,e for pension in any one or more of the High Courts, but not in any c'1)ie exceeding two thousand five hundred rupees per annum. ( 4) The pension payable to any such Judge part of whose service includes service as a Chief Justice shall in no case be less than the pension Jor which he would have been. eligible if all his service for pension had been iervice rendered otherwise than as Chief Justice. 21. Pensions expressed in 'ter!ing only 'hall, if paid in India, be converted at ~uch rate of exchange as the Secretary of State may from time to time pr~ cribe: Provided that nothin)!; in this para)!;fa.ph shall affect aJ!Y speciiic privilege in respect of the conversion of sterling Qjlnsions which was conferred by any llules previou§IY in force on persons who on the 1st February, 1921, were members of a civil service of the Crown in India." We do not consider it necessary to reproduce the relevant portions of the Third Schedule. It is, however, clear that para 18 in so far as it provides for pension payable to a Chief Justice A B c D E F G H A B c D I r G H R. L. NARASIMHAM v. UNION (Dua, J.) 783 could sc;arcely apply to the •two I.C.S. Chief Justices who never held the offices of Chief Justices during the operation of the 1937 Order, having been appointed as Chief Justices only after the emorcement of the 1954 Act. When India secured independence in 1947 by virtue of the Indian Inde~ndence Act, 194 7 ( 10 and 11 Geo. VI, c. 13) protection :in certain respects was granted to the Secretary of State's Services by enacting s. 10 which provided .- "10. Secretary of State's Services etc. : ( 1 ) Thi> provisions of this Act keeping in force provisions of the Government of India Act, 1935 shall not continue in force the provisions of that Act relating to appointments to the civil service of, and civil posts under, the Crown in India by the Secretary of State, or the provisibns of that Act relating to the reservation of posts. (2) Every person who- (a) having been appointed by the Secretary of State or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; or (b) having been appointed by His .. Majesty before the appointed day to be a Judge of the Federal Court or of any Court which is a High Court within th\) meaning of the Government of India Act, 1935, continues on and after the appointed da_y to serve as Judge in either of '!he new Dominiolli, &hall be entitled to receive from the Governments of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time a Judg~, .the same conditions of service · as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed ckcUlllS1tances may permit, as that person was entitled to immediately before the apoointed day. 784 SUPREME COURT REPORTS [1973] l S.C.R. ( 3 ) Nothing in this A.ct shall be construed as enabling 1the rights and liability of any person with respect to the family pension funds vested in Commissioners under sec_tion two hundred and seventy three of the Government of India Act, 1935, to be governed otherwise "than by Orders in Council made (whether before or after the passing of this Act or the appointed day) by His Majesty in Coiμicil and rules made (whether before or after the passing of this Act or the appointed day)_ by a Secretary of State or such other Minister of the Crown as may be designated in that behalf by Order in Council under the Ministers of the Crown (Transfer of Functions) Act, 1946." According to s. 1 of this Act, August 15, 194 7 was the appointed day with eJ:Iect from which the Independent Dominion of India was set up. In s. 221 of the Government of India Act A B c the "Governor General" was substituted for "His Majesty in .COuncil". Similarly, in para 21 of the 1937 Order "Governor General" was substituted for "Secretary of State". This appaD rently became necessary as a result of India having become an Independent Dominion. When the new Constitution was framed India constituted itself into a Sovereign Democratic Republic. Chapter V of Part VI deals with the High Courts in the States so far as relevant for our purpose. In order to be qualified for appointment as a Judge of a High Court a person must, among I: other qualifications stated in Art. 217(2), be a citizen of India. The existing Judges of the High Courts were, however, specifically exempted from the requirement of qualification of Indian citizenship contained in this sub-Article: vide Art. 376(1). Accoraing to Art. 216 every High Court is to consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Article 221 of the Constitution fixed the salaries of Judges and also made provision for leave of absence and pensions. This Article prima facie seems to refer to Judges appointed under the Constitution. The Judges '()f the High Courts holding office inunediately before the commencement of the Constitution were by virtue of Art. 376(1) also entitled, unless they had elected otherwise, to such salaries and allowances and to· such rights in respect of leave of absence and pensions as are provided for under Art. 221, which reads : "221. Salaries etc., of Judges : (1) There shall be paid to the Judges of each High Court such salaries as are specified in the Second ScheJule. F G H A B c D E F G ff R. L. NARAS!MHAM v. UNION (Dua, J.) 785 ( 2) Every Judge snail be entitled to such allowances and to such rights in respect of leave of absence and pensions as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are; suecified in the Second Schedule : Provided that neither the allowances of a Judge nor his rights in respect of leave. of absence or pensi;in shall be varied to his disadvantage after his appointment." Article .376( 1) provides : "376. Provisions as to Judges of High Courts. (1) Notwithstanding anything in clause (2) of article 217 the Judges of a High Court in any Province holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and 'pension as are provided for under article 221 in respect of the Judge,of any other High Court." Any such Judge shall, notwithstanding that he is not a citizen of India, be eligible for !J.ppointment as Chief Justice of such High Court, or as Chief Justice or other Judges of any other High Court." The last part was added by the First Constitution Amendment Act, 1951. Para 10 (1), Part D of the Second Schedule provides for salaries to be paid to the Chief Justice and Judges of High Courts. The Chief Justices and Judges drawing higher salary immediately before the commencement of the Constitution were entitled to receive as special pay an amount equal to the difference beiween the s~lary specified in !'ara 10(1) and the salary which they were dra"".!ng before su~h commencement. Para 10 ( 4) dealing with the nghts of the High Court Judges in respect of leave of absence and pensions provided : "10( 4). The rights in respect of leave of absence (including leave allowances) and pension of the Judges of the High Court of"any State shall be governed by the provisions which, immediately before the comniencement of this Constitution, were applicable to the Judges of the High Court in corresponding Province." · ·1ss SUPREME COURT llEPORTS (1973] ! S.C.R. This sub-para became unnecessary when the Parliament made the required law with respect of pensions as contemplated by Art. 221 (2). Strictly speaking, therefore, we have nqw to look only to the provisions of our Constitution and to the statutory enactments made in accordance therewith for determining the question of the preservation or creation of the rights claimed by the. three Chief Justices in these proceedings. . This position was not, as indeed in face of the scheme of our Constitution, could not, be controverted by them. In 1954 Parliament, as contemplated by Art. 221 (2), enacte