INTERPRETATION OF STATUTE: COURT'S POWER

Supreme Court of India

Union Of India And Anr vs Deoki Nandan Aggarwal on 4 September, 1991

Equivalent citations: 1992 AIR 96, 1991 SCR (3) 873

Author: V I Ramaswami

Bench: Ramaswami, V. (J) Ii

PETITIONER: UNION OF INDIA AND ANR.

Vs.

         RESPONDENT:  DEOKI NANDAN AGGARWAL

DATE OF JUDGMENT04/09/1991

BENCH:

RAMASWAMI, V. (J) II

SHETTY, K.J. (J)

YOGESHWAR DAYAL (J)

CITATION:

 1992 AIR   96                        1991 SCR  (3) 873

 1992 SCC  Supl.  (1) 323 JT 1991 (3)   608

 1991 SCALE  (2)481

 CITATOR INFO :

 E&D       1992 SC2014      (23)  

ACT:

     High  Court Judges (Conditions of Service)            Act,  1954:

Paragraphs   2,        9,  Part  I  of  First  Schedule,   Section

17-A--Pension payable to retired Judge of High Court--Fixing

of  minimum service of seven years-Fixing of lesser  pension

to  those not eligible--Whether discriminatory-Amending            Act

of  1986--Whether applicable to all Judges  irrespective  of

their dates of retirement.

     Judicial Activism: Invoking of judicial activism to set

at  naught legislative judgment--Whether subversive  of          the

constitutional harmony     and  comity            of  instrumentalities -- Court to carry out the obvious  intention of legislature--not to legislate itself.

HEADNOTE:

The  Respondent    retired  as Judge of  the  High1  Court  on 3.10.1983   on superannuation and elected  to    receive          his pension under Part I of the First SChedule to the High Court Judges (Conditions of Service) Act, 1954. As a Judge of       the High  Court, he had put in service of 5 years 10 months    and 17 days and his pension was determined at Rs.8,400 p.a.   and  family pension at Rs.250 p.m.  In 1986, the Act was amended providing for an increased

pension         from 1.11.1986. Thereafter, the Respondent filed  a  Writ  Petition before the High Court praying for  directions that  he was entitled to refixation of his pension from the date  of his retirement at Rs.9,600 per annum on  the  basis that  the  period of his service for pension was fit  to  be enlarged  to six years, by addition of 1 month and 13  days;  that  from  November 1, 1986 his pension may be            refixed  at  Rs.20,580 per annum at the rate of Rs.3,430 for six completed years of service; and that the family pension  admissible to his wife be calculated on the basis that he had completed  six years of service.

     During the pendency of the Writ Petition the Respondent made  representations to the Government of India that  since  the  respondent fell short of 6 completed years     of  service only by 1 month and 13 days, the President may be pleased to allow him to add the period so as to calculate  the pension, gratuity and family pension  on      the basis  of  6 completed years of service as a Judge.  By       its order dated April 16, 1987 the Government of India  rejected the  representation  of the respondent among  other  grounds that the request was belated.

    By   its  judgment dated March 15, 1988  the       High  Court allowed the Writ Petition directing the Government to  re-fix  his  pension,  family pension and gratuity treating  him  as having            put in six completed years of service. The Union  of India  has  preferred the present appeal, by  special  leave  against the High Court's order.

    It was contended on behalf of the appellants  that          the High Court has re-written the retirement benefit  provisions of  the First Schedule to the Act which it was not  entitled to and hence the re-fixation of the pension on that basis   was wholly illegal and unconstitutional.

    However, during the pendency of the appeal this Court in its  proceedings  dated           December 15,  1988  the  Government directed,  after obtaining the necessary sanction  from   the President  under  Section 16 of the Act, the addition  of  1 month  and  13 days subject to the final  decision  of this Court  in the appeal. However, it was added that the  period  shall  be disregarded in calculating additional pension.  If  any, under Part I, Part II and Part III of the First  Schedule of the said Act. 

Allowing the appeal, this Court.

     HELD:  1.  It is a well-known  practice  in  pensionary  schemes           to  fix a minimum period for purposes       of  pension. What  shall  be         the minimum period for such  pension         will depend on the particular service, the age at which a  person could enter into such service. the normal period which he is expected  to serve before his retirement on  superannuation,

and  various other factors. There is nothing in evidence  to suggest that the period of seven completed years of  service fixed for pension is arbitrary. So far as the Judges of     the High Court are concerned even under the Government of  India Act  a         period of seven completed years            of  service  before superannuation      was prescribed for eligibility for  pension.  In  fact no pension was provided for those who had not            completed    seven  years of          service  under  pre-constitutional scheme.        Thus  there are historical grounds or  reasons         for fixing      not  less than seven years of service  for  pension. Part  I deals with pensionary scheme. Prescribing a  minimum period            of service before retirement on superannuation,    for pension is the very scheme itself and not a  classification. It is a qualification for eligibility. It is different   from computation of pension. All those who satisfy that condition are eligible to get pension. [885G-H; 886A-C]

     2. Even those who had completed seven years of  service were not given pension for all the completed years of  service  at the rate of Rs.1,600 per annum and a  maximum  limit has  been fixed for purposes of pension. If  one  calculates the  maximum amount provided with reference to the rate per year  roughly  in about 14 years of service one would      have reached the maximum amount. Any service above that period is not  taken  into account. Thus a person who had put  in    the minimum period for getting the maximum pension could be said to  be favourably treated against the person who had put  in more number of years of service than needed for the  maximum pension and thereby discriminated. [886D-E]

    3. It is not correct to state that the amount of pension provided  in paragraph 9 is minimum pension. The said  paragraph  does not use the word 'minimum' but only states       that if a Judge retires without being eligible for pension  under any of the provisions. notwithstanding anything contained in the  other  provisions. the pension of a  particular  amount mentioned therein shall be paid to the Judge. This amount is not  calculated or has any reference to any period of  service. A Judge who had put in only two years of service before retirement will also   receive the same amount as that of  a Judge  who  has completed six years    of service.  If            the provision  is struck down as unconstitutional the  condition relating  to completion of seven years of service  in  paragraph  2, all those  who had put in less than six  completed years of service would be seriously affected and paragraph 9 also  would become inapplicable. Further, it may be open  to those who have put in more than five years or more than four years as the case may be. to contend that they are discriminated against because persons who had put in less than     that period will get pension at much higher rate. [886F-H: 887A]

     4. The Amending Act 38 of 1980 provided that the amended  liberalised pension scheme would apply only to  a  Judge who  has  retired on or after the commencement of  the       High Court  and  Supreme  Court Judges  (Conditions     of  Service) Amendment  Act.     1986. A similar provision  which  made            the amendment  01 1976 applicable only to those Judges who have retired on or after October 1. 1974 was struck down as ultra vires  and it was decided that the benefit of the  amendment was available to. all the retired Judges irrespective of the date  of  retirement but subject to the condition  that        the enhanced  pension was payable only with effect from  October 1,  1974.  The Amending Act of 1986 could not  restrict  the applicability  of  the amended provision to only  those       who  have  retired on or after the commencement of  the  Amending Act. It  would  be applicable to all the Judges irrespective  of the dates  of retirement and they would be entitled to  be           paid pension            at  the  rates provided therein  with      effect from November 1, 1986. [883A-D]

    Union  of  India v. B. Malick. [1984] 3  SCR  550;  N.L.

Abhyankar  v.  Union of India, [1984] 3 SCR  552  and  D.S.,

Nakara v. Union of India, [1983] 2 SCR 165, referred to.

    5.    In  the instant case. High Court  had  exceeded  its jurisdiction  and power in amending and altering the  provisions  of  paragraph  2 by  substituting  different  minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service      for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First  Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for   the period   on  and     from November 1, 1986 at the  rate  of         Rs. 15,750 per annum. [887B-C]

    6.    Since in compliance with the mandamus issued by the High  Court, the President of India was pleased to  sanction the addition of one month and 13 days to the service of    the respondent to make it six years of completed service subject to the final decision in this appeal, this Court does not go into  the question whether the High Court was right in     setting aside the earlier rejection for addition of the period. The  addition  of one month and 13 days does  not  make          any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period was less than three months and  as the President was pleased to sanction the addition in  exercise of his power under Section 16 of the Act though subject to the final decision of this Court it is just and necessary to allow this addition to remain for the purposes of  calculation   of gratuity, and family pension only though not      for pension.  The  respondent will be entitled  to   fixation  of family pension and for payment of gratuity calculated on the basis of his having completed six years of service. [887D-H]

    7.1.  It is not the duty of the Court either to  enlarge the scope of the legislation or the intention of the  legislature          when  the  language of the provision  is  plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred  on the courts. The Court cannot add words to a statute or read words  into  it           which are not there. Assuming    there  is  a defect or an omission in the words used by the legislature the Court could not go to           its aid  to     correct  or make up the  deficiency.  Courts  shall decide what the law iS. and not what it should be. The Court of  course  adopts a construction which will carry  out         the obvious intention of the legislature but could not legislate itself. But  to invoke judicial activism to set  at  naught legislative  judgment  is subversive of            the  constitutional harmony and comity of instrumentalities. [885A-D]

    7.2 Modifying and altering the scheme and applying it to  Others  who are not otherwise entitled to under the  scheme, will not also come under the principle of affirmative action adopted  by courts some times in order to avoid  discrimination.  What the High Court has done in this case is a  clear

and naked usurpation of legislative power. [885F]

    P.K.  Unni  v.  Nirmala Industries, [1990]     1  SCR            482;

Mangilal v. Suganchand Rathi, [1965] 5 SCR 239; Sri Ram            Ram

Narain Medhi v. The State of Bombay, [1959] Supp. 1 SCR 489;

Smt.  Hira  Devi  & Ors. v.  District  Board,  Shahjahanpur,

[1952] SCR 1122; Nalinakhya Bysack v. Shyam Sunder Haldar  &

Ors.,  [1953] SCR 533; Gujarat Steel Tubes Ltd.        v.  Gujarat

Steel Tubes Mazdoor Sabha, [1980] 2 SCR 146; S. Narayanaswa-

mi  v.G. Pannerselvam & Ors., [1973] 1 SCR 172; N.S.  Varda-

chari v. G. Vasantha Pai & Anr., [1973] 1 SCR 886; Union  of

India  v. Sankal Chand Himatlal Sheth & Anr., [1978]  1    SCR

423 and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of

Commerce, Allahabad, [1986] 2 SCR 430, relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3674 of 1988.

From the Judgment           and Order dated 15.3.1988 of  the Allahabad High Court in Civil Misc. Writ Petition No. 20328 of 1986.

V.C. Mahajan,         C.V.S. Rao and A. Subba Rao for           the Appel- lants.

Deoki Nandan Aggarwal-in-person and Mrs. S. Dixit          for the Respondents.

The Judgment of the Court was delivered by V. RAMASWAMI, J.

 The respondent was elevated as Judge of the Allahabad High Court on November 17, 1977. He retired on October      3, 1983 on superannuation at the age of 62. He      had elected  to receive his pension under Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954. As he  had put in     only a period of five years 10 months and 17           days service as a Judge. of the High Court, under            paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs.8,400 per annum and the family pension in the event of his death earlier than his wife at Rs.250    per month in the letter of Accountant General, Allahabad dated December 2, 1983. The gratuity was   worked         out at Rs. 11,665.66 P. in lump-sum under Section 17A(3) also on     the ground   that he had put in only five completed years of service. The pension was payable with effect from October 4, 1983. The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986. On December 10, 1986 the petitioner filed a       writ petition before the Allahabad High Court under Article            226 of the    Constitution praying for an order or directions declaring (i)         that he was entitled to        re-fixation of           his pension from the date of his retirement, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance admissible under the rules from 'time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixa- tion of pension for the period from November       1, 1986 at Rs.20,580 per annum plus dearness allowance or other allow- ances as may be admissible under the rules from time to time, at the rate of Rs.3,430 per annum for six completed years of service as stated above; (iii) to retix the family pension    admissible to his wife on the scale allowed under Section 17A as amended by Act 38 of 1986 again        taking            the period    of completed years of service as 6 years and not as total service of 5 years, 10 months, and 17 days. During the pendency of the writ petition the respondent made representations to the Government of India stating that since the respondent fell short for 6 completed years of service only by one month and 13 days, the President may be pleased            to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge. By its            order dated April 16, 1987 the Government of India rejected the representation of the respondent among other grounds that           the request  was belated. By its judgment dated March 15,    1988 the High Court allowed the writ petition directing    the Government to            retix his pension, his          family            pension         and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment. The     main grievance of Union of India in this appeal is that the High Court has rewritten the           retirement benefit provisions of the First Schedule to tile Act which it was not entitled to and     the re-fixation of the pension on that basis was wholly illegal and unconstitutional. Since the High Court issued the mandamus directing         the Union of India to add one month and 13 days to the total length of service rendered by the   respondent as Judge of the Allahabad High Court for the computing    the pension under Section 16 of the Act, during the pendency of the appeal in this Court        in the            proceedings dated December    15, 1988 the            Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court  in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988)." However, they added that the period shall be disregarded in calculating additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act. In        order to appreciate the argument of   the learned counsel for the appellant-Union of India it is necessary to set out certain provisions relating to pension payable to a Judge of the High Court on his retirement. Clause 17 of  the Government of India (High Court Judges) Order, 1937 relating to pension payable to a Judge on his retirement which      was in force prior to the coming into force of the  Constitution provided that "a pension shall be payable to a Judge on   his retirement if, but only if, either:

"(a) he has completed not less than 12 years' service for pension; or

(b) he has completed not less than 7 years' service for pension and has attained the           age of sixty; or

(c) he has completed not less than 7 years' service for pension and       his retirement is medically            certified to   be necessitated by ill-health."

Thus it may be seen that under the provisions          then existing a Judge who had completed less than seven years of service was not allowed any pension. As      we are           concerned in this case            to the provisions applicable to a Judge to whom Part I of the First Schedule of the High Court Judges (Conditions of Service) Act,1954 is applicable either by reason of his appointment directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out only relevant provisions relating to pension in Part I of the First Schedule. Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows:

"2. Subject to the other provisions of  this part, the pension payable to a Judge to whom this Part applies and who has completed            not less than seven years of service for pension shall be the basic pension specified in paragraph 3 increased by the additional pension, if any, to which he is entitled          under paragraph 5.

3. The basic pension to which such a Judge shall be entitled shall be--

(a) for            the first seven completed years of service for pension, Rs.5,000 per annum; and

(b) for            each subsequent    completed year of service for pension, a further     sum of           Rs. 1,000 per annum:

provided       that the basic pension shall in no case exceed Rs. 10,000 per annum.

4. For the purpose of calculating additional pensions, service as a Judge shall be classified as follows:-

Grade I. Service as Chief Justice in any            High Court;

Grade II. Service as any other Judge in            any High Court.

5. For each completed year of   service           for pension in either of the grades mentioned in paragraph    4, the Judge who is eligible for a basic pension under this Part shall be entitled to the additional pension specified in relation to that grade in the second column of the table annexed hereto.

provided that the aggregate amount of his basic and additional pension shall           not exceed the amount specified in the third column of the said table in relation to      the higher grade in which he has rendered service for not less than one completed year.

                                                   TABLE

  Service      Additional pension    Maximum aggregate

                        per annum      pension per annum

                                Rs.                        Rs.

Grade I                    740                       20,000

Grade II                   740                        16,000

9. Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible   for a   pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge.

Provided that nothing in this paragraph shall apply--

(a) to an additional Judge or acting Judge; or

(b) to a Judge who at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State. Note: The Proviso was added by Act No. 46 of 1958."

By       the Amending Act 35 of 1976 the First Schedule     was amended          by substituting paragraphs 2 and 9 and deleting paragraphs 3, 4 and 5. The substituted paragraphs 2 and 9 read as follows:  

"2. Subject to the other provisions of  this Part, the pension payable to a Judge to whom this Part applies and who has completed            not less than seven years of service for pension shall be--

(a) for service as Chief Justice in any    High Court, Rs.2,400 per annum; and

(b) for service as any other Judge in any High Court, Rs. 1,600 per annum:

provided       that the pension shall in no         case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in      the case of any other Judge.

9. Where a Judge to whom this Part    ap- plies, retires or has     retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding     any- thing contained in the foregoing provisions, a pension of Rs.8,400          per annum shall be payable to such a Judge. Provided that nothing in this paragraph shall apply--

(a) to an additional Judge or acting Judge; or

(b) to a Judge who at the time of his appoint- ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State."

These amended provisions Were held applicable in respect of all the Judges of the High Court who have retired irrespective of their dates of retirement in the decisions of this Court in Union of. India v. B. Malick, [1984] 3 SCR 550 and N.L. Abhyankar v. Union of India, [1984]  3 SCR 552. However       the increased pension was payable only with effect from October 1, 1974, Part I of the First Schedule was further amended by  Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows:

"2. Subject to the other provisions of  this Part, the pension payable to a Judge to whom this Part applies, and who has completed not less than seven years of service for pension shall be---

(a) for service as Chief Justice in any    High Court, Rs.4,500 per annum for each completed year of service;

(b) for service as any other Judge in any High Court, RS.3,430 per annum for each completed year of service:

provided       that the pension shall in no         case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in      the case of any other Judge."

The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000-

At this stage itself, we may note that this Amending Act 38 of     1986 provided that the amended liberalised pension scheme         would apply only to a Judge "who has retired on or after the commencement of the High Court and Supreme Court Judges   (Conditions of         Service) Amendment Act, 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in            the two decisions   of this Court above referred to and it  was held that the benefit of the amendment was available to        all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension      was payable only with effect from October 1, 1974. That was also ratio of the decision of the Constitution Bench of     this Court in D.S. Nakara v. Union of India, [1983] 2 SCR 165. On the same reasoning and logic we have to hold that Amending Act. 38 of 1986 could not restrict the applicability of      the amended provision to only those who have retired on or after the commencement of the Amending Act. The resultant position would be that the provisions of pension in Part I of First Schedule as amended by Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement    and they would be entitled to be paid pension at the rates provided therein with effect from November 1, 1986, As       already stated, the respondent retired from service on October 3, 1983. For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38         of 1986 came into force, plus    the usual dearness allowance admissible from time to time. This claim was          made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of  his service by the order of 'the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit    one for enlarging the period of his service to            six years.       On the assumption that he is entitled for such           enlargement and    the had completed six years of service,           the further          case of the respondent was that he is entitled          for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six. years at Rs.9.600       per annum for the period prior to November 1, 1986. He further contended that in paragraph 2 of Part I of the First Schedule the words "who has completed not less than seven years of service for pension'' shall be read as "who has completed more than five years of service for pension" on the ground that while a Judge who has completed seven years of service is permitted to calculate at the rate of    Rs. 1,600 for each completed years of service, a person who had not completed            seven years of service could not be denied that benefit. But finding that a person who had completed only five years of service or less than five years of service, if the pension is to be calculated at the rate of   Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though        Rule 9 provided for a fixed           pension of Rs.8,400 per annum for those who had            not completed seven years of         service, he wanted            to read "not less than five years" of     service in paragraph 2 as "more than five years" of service.   This argument was accepted by the High Court on the ground         that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year  of service which was provided for those who had completed seven years of service. The High Court was of the view      denying         the benefit   of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a          discriminatory piece of legislation and that however the provision can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than        five years'     in the place of not less than seven years." In            that view the High Court amended paragraph 2 so to say by substi- tuting     the words "not less than 7 years" as "more than 5 years"      and allowed the claim for payment of pension at Rs.9,600 per annum for the       period from 4.10.1983    to 31.10.1986.  

As        already stated as per the Amending Act 38 of           1986 the pension payable for those who have completed 7 years of service        was to be calculated at the rate of Rs.3,430  for each completed year of service and for those who have not completed 7 years of service a sum of Rs.15,750 was payable as pension. On the same reasoning which prompted the     High Court to read "less than seven years" as "more than   five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service         the Judge would have earned Rs. 13,720 and on            com- pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in  paragraph 9,           necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years". The learned Judges read the provisions in the manner as        was amended          by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986. Consequential relief relating to the payment of          the gratuity and family pension in the light of           the relief granted relating to pension was also directed to be given.  We   are at a loss to understand the reasoning of  the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for         the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court          cannot           re- write,            recast or reframe the legislation for the very        good reason            that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot            add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out   the obvious intention of the legislature but could not legislate itself.         But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony  and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries, 1990 1 SCR 482 at 488;  Mangilal v. Suganchand Rathi, [1965] 5 SCR 239; Sri Ram Ram Narain Medhi v. The State of Bombay, [1959] Supp. 1 SCR 489; Smt.   Hira Devi & Ors. v. District Board, Shahjahanpur, [1952] SCR 1122 at 113 1; Nalinkhya Bysack v. Shyam Sunder Haldar & Ors., [1953]    SCR 533 at 545; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdaor Sabha, [1980] 2 SCR 146; S. Narayanaswa- mi v. G. Pannerselvam & Ors., [1973] 1 SCR 172 at 182;       N.S. Vardachari v. G. Vasantha Pai & Anr., [1973]      1 SCR 886; Union of India v. Sankal Chand Himatlal Sheth & Anr., [1978] 1 SCR           423 and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of Commerce, Allahabad, [1986] 2 SCR 430 at            438. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power. The     view of the High Court that paragraph            2 discrimi- nates between those who have completed seven years of serv- ice and those who have not completed that much service is in our opinion not correct. It is a well-known practice in pensionary schemes to fix a minimum period for purposes of pension. What shall be the minimum period for such pension will depend on the particular service, the age at which a person        could enter into such service,     the normal period which he is expected to serve before           his retirement on superannuation, and various other factors. There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary. So far as the Judges of the        High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension. In fact no pension was provided for those      who had not completed seven years of service under pre-constitution scheme. Thus we have history or historical grounds or reasons for fixing not less than seven years of service       for pension. Part I deals with a pensionary scheme.           Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is so to say a qualification for eligibility. It is different from computation of pension. All those        who satisfy that condition are eligible to get pension.  

Even those who had completed seven years of service were not given pension for all the completed years of serv- ice at the rate Rs. 1,600 per annum and a maximum limit has been fixed for purposes of pension. If we calculate         the maximum amount provided with reference to the rate per         year roughly in about 14 years of service one would have reached the maximum amount. Any service above that period is      not taken into account. Thus a person who had put in the minimum period         for getting the maximum pension could be said to be favourably treated against the person who had put in       more number          of years of service than needed for      the maximum pension and thereby discriminated. Thus the reasonableness of the provision in the pensionary scheme cannot be considered in this line of reasonings. It is not impossible to visualise a case where the pension payable would be more than the last drawn pay if the maximum limit had not  been fixed. It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension. The said paragraph does        not use the word 'minimum' but           only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything contained in the other provisions, the pension of a particular amount       mentioned therein shall be paid to the Judge. This amount is not calculated or has any reference to any period of service. For instance a Judge who had put in only          two years of service before retirement will also         receive          the same amount as that of a Judge who have completed six years of service. Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had            put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable. Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who have' put in more than five years or more than four years as         the case may be to, contend that they are discriminated against because       persons who had put in less than that period will get pension at much higher rate. We      have, therefore, no doubt that the High Court         had exceeded its jurisdiction and power in amending and altering the provisions         of paragraph 2        by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the     period            from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the      rate of Rs. 15,750 per annum.  

We have already noticed that during the pendency of       the appeal    in this Court in the proceedings dated December    15, 1988 the Government of India communicated to the Chief Secretary, Government   of Lucknow, in compliance with      the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month         and 13 days to the service of the respondent to make it      six years of completed service subject to the final decision in this appeal. In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether the High Court  was right in setting aside the earlier rejection for addition of the period. Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become rele- vant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period is less than three months          and as the President was pleased to sanction the addition in exercise of his power under Section 16 of the Act though subject to the final decision of this Court we would consider it just and necessary to allow this addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension. The          appeal is accordingly allowed and the order of        the High Court is set aside. The respondent will however be entitled to fixation of family pension and for            payment of gratuity calculated on the basis of his having completed six years of service. There will be no orders as to costs.  G.N.        Appeal allowed.