REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 521 OF 2002
P. Ramakrishnam Raju .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
WITH
WRIT PETITION (CIVIL) NO. 523 OF 2002
WRIT PETITION (CIVIL) NO. 524 OF 2002
WRIT PETITION (CIVIL) NO. 37 OF 2003
WRIT PETITION (CIVIL) NO. 38 OF 2003
WRIT PETITION (CIVIL) NO. 465 OF 2005
AND
CIVIL APPEAL NOS.4248-4249 OF 2014
(Arising out of S.L.P. (C) Nos. 9558-9559 of 2010)
J U D G M E N T
P.Sathasivam, CJI.
1) The main question which arises for consideration is
whether High Court Judges, who are appointed from the Bar
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under Article 217(2)(b) of the Constitution of India, on
retirement, are entitled for an addition of 10 years to their
service for the purposes of their pension?
2) The above petitions have been filed by former Judges of
the various High Courts of the country as well as by the
Association of the Retired Judges of the Supreme Court and
the High Courts elevated from the Bar.
3) The petitioners have prayed that the number of years
practiced as an advocate shall be taken into account and
shall be added to the service as a Judge of the High Court for
the purpose of determining the maximum pension
permissible under Part-I of the First Schedule to the High
Court Judges (Salaries and Conditions of Service) Act, 1954
(in short ‘the HCJ Act’). It was further stated that in respect
of Part-III of the First Schedule, which deals with the Judges
elevated from the State Judicial Service, almost all the Judges
get full pension even if they have worked as a Judge of the
High Court for 2 or 3 years and their entire service is added
to their service as a Judge of the High Court for computing
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pension under this Part. For this reason, the members of the
subordinate judiciary get more pension than the Judges
elevated from the Bar on retirement.
4) In view of the above, the petitioners prayed that though
Part-I and Part-III Judges hold equivalent posts, they are not
similarly situated in regard to pension and retirement
benefits which is breach of Articles 14 and 21 of the
Constitution of India and one rank one pension must be the
norm in respect of a constitutional office. It is further prayed
that the retired Judges of the High Courts should also be
given enhanced allowance for domestic help/peon/driver,
telephone expenses and other secretarial assistance.
5) We have heard the arguments advanced by learned
counsel for the parties and perused the records.
6) The Constitution of India provides for three-tier judicial
system. The Union Judiciary-Establishment and Constitution
of Supreme Court of India (Articles 124 to 147); The High
Courts in the States (Articles 214 to 231) and Subordinate
Courts (Article 233 to 237). The Constitution of India also
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provides for appointment of Judges from amongst the
members of the Bar at all the three levels.
7) The appointment of the Judges of the Supreme Court is
governed by Article 124(3),(a), (b) and (c) of the
Constitution. It envisages appointment from three sources:
(i) from amongst the Judges of the High Court having service
of at least five years; (ii) the members of the Bar having a
standing of not less than 10 years; and (iii) any person, who
is, in the opinion of the President, is a distinguished jurist.
8) The appointment of a Judge of the High Court is
governed by Article 217(2)(a) and (b) of the Constitution
which envisages appointments from two different sources:
(a) from amongst the Judicial officers who have held the
office for at least 10 years; and (b) the members of the Bar,
who have been Advocates of a High Court for at least 10
years.
9) The appointment of District Judges is governed by
Article 233(2) of the Constitution which provides that a
person not already in the service of the Union or of the State
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shall only be eligible to be appointed as a district judge if he
has been for not less than seven years an advocate or a
pleader and is recommended by the High Court for
appointment.
10) The Supreme Court Judges (Salaries & Conditions of
Service) Act, 1958, (in short ‘the SCJ Act’), the HCJ Act and
the Rules made thereunder, regulate their salary and
conditions of service. The provisions under both the Acts
were similar prior to the Amendment Act, 2005. The service
conditions of the Judges of the subordinate courts are
governed by the Service Rules made under Article 309 of the
Constitution of India.
11) Section 13 of the SCJ Act read with Clause 2 of Part-I of
the Schedule deals with the pension payable to the retired
Judges of the Supreme Court. Similarly, Section 14 of the HCJ
Act read with Clause 2 of Part-I of the First Schedule deals
with the pension payable to the retired Judges of the High
Courts. The provisions under both the Acts were similar prior
to the Amendment Act, 2005. Relevant portion of Section 14
of the HCJ Act reads as follows:
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“14. Pension payable to Judges.- Subject to the
provisions of this Act, every Judge shall, on his retirement,
be paid a pension in accordance with the scale and
provisions in Part 1 of the First Schedule:
Provided that no such pension shall be payable to a Judge
unless-
a) he has completed not less than twelve years of service
for pension; or
b) he has attained the age of sixty-two years; or
c) his retirement is medically certified to be necessitated
by ill-health;”
12) Clause 2 of Part-I to the First Schedule of the said Act
deals with the pension for the retired Judges of the High
Court, who are directly appointed from the Bar, which reads
as under:-
“2. Subject to the other provisions of this part, the pension
payable to a Judge, to whom this part apply and who has
completed not less than 7 years of service for pension
shall be
(a) for service as Chief Justice in any High Court,
Rs.43,890/- per annum for each completed year of service;
(b) for service as any other Judge in any High Court
Rs.34,350/- per annum for each completed year of service.
Provided that the pension under this paragraph shall in no
case exceed Rs.5,40,000/- per annum in the case of Chief
Justice and Rs.4,80,000/- per annum in case of any other
Judges.”
13) The above-noted Clause (2) of Part I of the First
Schedule implies that no pension is payable to the Judges
having less than 7 years of service as a Judge. The above
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Section further shows that for a Judge of the High Court to
receive full pension benefits, he should have completed 12
years of service as a Judge of the High Court. It is submitted
that when members of the Bar are offered the post of High
Court Judges, they are generally at the age of about 50 years
or above and at the prime of their practice, which they have
to give up to serve the system. Therefore, many of them are
reluctant to accept the offer as the post-retirement benefits
are not attractive enough.
14) Section 13 and Clause 2 of the Schedule to the SCJ Act
earlier contained similar prohibition with regard to the
eligibility of pension to the Judges appointed from the Bar as
contained in the HCJ Act. Both the Acts provide that no
pension shall be payable to a Judge who has less than 7
years of service.
15) In Kuldip Singh vs. Union of India, (2002) 9 SCC 218,
the petitioner therein, who was appointed as a Judge of the
Supreme Court from the Bar, on his retirement was denied
the benefit of pension as he did not fulfill the requisite
conditions. Consequently, he filed a Writ Petition before this
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Court praying, inter alia, (a) to take into account 10 years of
practice at the Bar in addition to his service for the purposes
of pension. (b) In the alternative, prayed for a direction to
treat the appointees under Article 124(3)(b) for the purposes
of pension at par with the appointees under Article 124(3)(a).
On 24.09.2002, while issuing notice, this Court passed the
following order:-
“1. In this writ petition, the question which arises for
consideration relates to pension which is payable to a
Judge who retires from this Court after having been
appointed directly from the Bar. Similar question also
arises with regard to Bar appointees to the High Courts.
2. Experience has shown that the Bar appointees
especially, if they are appointed at the age of 50 years and
above, get lesser pension than the Service Judge
appointees. It is to be seen that as far as the Constitution
of India is concerned, it stipulates the manner of
appointment of the Judges and provides what may be
termed as the qualification required for their appointment.
The Constitution contemplates appointment to the High
Courts from amongst members of the Bar as well as from
amongst the judicial officers. The Constitution does not
provide for any specific quota. Till a few years ago in
practice 66 2/3% of vacancies were filled from amongst
members of the Bar and 33 1/3% from the judicial
services. It is only in the Conference of 4-12-1993 of the
Chief Ministers and the Chief Justices that it was decided
that the number of vacancies from amongst the judicial
officers “might go up to 40%”. The decision of 4-12-1993,
cannot mean that the number of Judges from the services
has to be 40%. The normal practice which has been
followed was 2/3rds and 1/3rd from amongst members of
the Bar and judicial services respectively and it is only on
a rare occasion that the Chief Justice of a High Court can
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propose more Service Judges being appointed if suitable
members of the Bar are not available. But this cannot be
more than 40% in any case. It may here also be noted that
in the Chief Justices’ Conference held in 1999, it was
unanimously resolved that the quota should normally be
66 2/3% and 33 1/3% and it is on this basis the
Government should determine the likely number of Bar
Judges and then consider whether the High Court Judges
who are appointed from amongst the members of the Bar
should not be given the same weightage as is now sought
to be given to the members of the Bar who are appointed
to this Court as far as pension is concerned.”
(Emphasis
supplied)
16) The Government, vide Amendment Act, 2005 (46/2005),
added Section 13A to the SCJ Act which reads as under:
“Subject to the provision of this Act, a period of ten years
shall be added to the service of a Judge for the purpose of
his pension, who qualified for appointment as such Judge
under sub-clause (b) of Clause (3) of Article 124 of the
Constitution.”
Therefore, the condition of minimum 7 years of service as a
Judge to become eligible for pension was omitted from the
Section as well as from Clause 2 of its Schedule. In view of
the amendment, the said writ petition was dismissed as
withdrawn on 06.12.2005. However, petitioner’s writ petition
and other connected matters remained pending.
17) In Govt. of NCT of Delhi & Ors. vs. All India Young
Lawyers’ Association (Registered) And Another, (2009)
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14 SCC 49, a Lawyers’ Association filed a writ petition in the
High Court of Delhi praying therein that the benefit of 15
years addition of service be given to the Judge, who is
directly appointed from the Bar to the Higher Judicial Service
for the purposes of pension. The writ petition was allowed
and Rule 26B was ordered to be added to the Delhi Higher
Judicial Service Rules, 1970. The Govt. of NCT, Delhi
challenged the said judgment and order and this Court
upheld the validity of Rule 26B, however, the period to be
added to the service for the purposes of pension, was
reduced to 10 years or actual practice at the Bar whichever
is less.
18) In the three-tier judicial system provided by the
Constitution, members of the Bar, who join the Higher Judicial
Service at the District Judges level, on retirement, get the
benefit of 10 years addition to their service for the purposes
of pension (Rule 26B of the DHJS Rules). Judges of the
Supreme Court, who are appointed from the Bar given a
period of 10 years to their service for the purposes of pension
(Section 13A of the Amendment Act, 2005). However, the
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benefit of 10 years addition to their service for the purposes
of pension is being denied to the Judges of the High court
appointed from the Bar, which is arbitrary and violative of
Article 14 of the Constitution of India.
19) The Explanation (aa) appended to Article 217(2) of the
Constitution of India envisages that, “in computing the period
during which a person has been an advocate of a High Court,
there shall be included any period during which the person
has held judicial office or the office of a member of a tribunal
or any post, under the Union or a State, requiring special
knowledge of law after he became an advocate.” The
explanation thus treats the experience of an Advocate at the
Bar and the period of judicial office held by him at par.
20) The Judges, who are appointed under Article 217(2)(a)
being members of the Judicial Service, even if they serve as a
Judge of the High Court for only one or two years, get full
pension benefits because of the applicability of Rule 26B or
because of their earlier entry into judicial service. However,
the Judges of the High Court, who are appointed from the Bar
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do not get similar benefit of full pension, which is arbitrary
and discriminatory.
21) Section 14 of the HCJ Act and Clause 2 of Part I of the
First Schedule which governs the pension payable to Judges
gives rise to unequal consequences. The existing scheme
treats unequally the equals, which is violative of Articles 14
and 21 of the Constitution of India.
22) To remove the above discrimination, in the Chief
Justices Conference held on April 5 and 6, 2013, it was, inter
alia, resolved that, “for pensionary benefits, ten years’
practice as an advocate be added as a qualifying service, for
Judges elevated from the Bar.” (Resolution No.18 (viii). It
fully supports the petitioner’s submission.
23) The ratio of the decision cited by the respondent in
Union of India vs. Devki Nandan Agarwal, AIR 1992 SC
196 is not applicable because the reliefs prayed therein were
entirely different and also because it is per incuriam in view
of the subsequent decisions of this Court of equal strength in
All India Judges Association vs. Union of India, AIR 1992
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SC 165; and All India Judges Association vs. Union of
India, AIR 1993 SC 2493 wherein the requirement of
independence of the judiciary have been underlined as also
two decisions cited above i.e. Kuldip Singh (supra) and All
India Young Lawyers’ Association (supra).
24) When persons who occupied the Constitutional Office of
Judge, High Court retire, there should not be any
discrimination with regard to the fixation of their pension.
Irrespective of the source from where the Judges are drawn,
they must be paid the same pension just as they have been
paid same salaries and allowances and perks as serving
Judges. Only practicing Advocates who have attained
eminence are invited to accept Judgeship of the High Court.
Because of the status of the office of High Court Judge, the
responsibilities and duties attached to the office, hardly any
advocate of distinction declines the offer. Though it may be
a great financial sacrifice to a successful lawyer to accept
Judgeship, it is the desire to serve the society and the high
prestige attached to the office and the respect the office
commands that propel a successful lawyer to accept
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Judgeship. The experience and knowledge gained by a
successful lawyer at the Bar can never be considered to be
less important from any point of view vis-a-vis the experience
gained by a judicial officer. If the service of a judicial officer
is counted for fixation of pension, there is no valid reason as
to why the experience at Bar cannot be treated as equivalent
for the same purpose.
25) The fixation of higher pension to the Judges drawn from
the Subordinate Judiciary who have served for shorter period
in contradistinction to Judges drawn from the Bar who have
served for longer period with less pension is highly
discriminatory and breach of Article 14 of the Constitution.
The classification itself is unreasonable without any legally
acceptable nexus with the object sought to be achieved.
26) The meager pension for Judges drawn from the Bar and
served for less than 12 years on the Bench adversely affects
the image of the Judiciary. When pensions are meager
because of the shorter service, lawyers who attain distinction
in the profession may not, because of this anomaly, accept
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the office of Judgeship. When capable lawyers do not show
inclination towards Judgeship, the quality of justice declines.
27) In most of the States, the Judgeship of the High Court is
offered to advocates who are in the age group of 50-55
years, since pre-eminence at the Bar is achieved normally at
that age. After remaining at the top for a few years, a
successful lawyer may show inclination to accept Judgeship,
since that is the culmination of the desire and objective of
most of the lawyers. When persons holding constitutional
office retire from service, making discrimination in the
fixation of their pensions depending upon the source from
which they were appointed is in breach of Articles 14 and
16(1) of the Constitution. One rank one pension must be the
norm in respect of a Constitutional Office.
28) When a Civil Servant retires from service, the family
pension is fixed at a higher rate whereas in the case of
Judges of the High Court, it is fixed at a lower rate. No
discrimination can be made in the matter of payment of
family pension. The expenditure for pension to the High
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Court Judges is charged on the Consolidated Fund of India
under Article 112(3)(d)(iii) of the Constitution.
29) In the light of what is discussed, we accept the
petitioners’ claim and declare that for pensionary benefits,
ten years’ practice as an advocate be added as a qualifying
service for Judges elevated from the Bar. Further, in order to
remove arbitrariness in the matter of pension of the Judges
of the High Courts elevated from the Bar, the reliefs, as
mentioned above are to be reckoned from 01.04.2004, the
date on which Section 13A was inserted by the High Court
and Supreme Court Judges (Salaries and Conditions of
Service) Amendment Act, 2005 (46 of 2005). Requisite
amendment be carried out in the High Court Judges Rules,
1956 with regard to post-retiral benefits as has been done in
relation to the retired Judges of the Supreme Court in terms
of amendment carried out by Rule 3B of the Supreme Court
Judges Rules, 1959.
Civil Appeal Nos.4248-4249 of 2014
(Arising out of S.L.P. (C) Nos. 9558-9559 of 2010
30) Leave granted.
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31) At the instance of the Association of retired Judges of
the Supreme Court and High Courts, the Division Bench of
the High Court of Rajasthan at Jaipur directed the State
Government to pay a sum of Rs.9,000/- per month to a
retired Chief Justice of the High Court to meet expenses of
domestic help/peon/driver/telephone expenses and
secretarial assistance etc. and Rs. 7,500/- per month to a
retired Judge of the High Court for the same purposes. The
said order shall be effective from 01.02.2010. Questioning
the same, the State of Rajasthan has filed the above appeal.
32) With reference to the above claim and the order of the
High Court, in the Conference of Chief Ministers and Chief
Justices of the High Courts held on 18.09.2004, the following
Resolution was passed:
“18. Augmenting of post-retiral benefits of Judges.
Xxx xxxxx
[vi] As regards post-retiral benefits to the retired Judges of
the High Courts, the scheme sanctioned by the State of
Andhra Pradesh be adopted and followed in all the States,
except where better benefits are already available.”
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33) It is brought to our notice that in pursuance of the said
Resolution, most of the States in the country have extended
various post-retiral benefits to the retired Chief Justices and
retired Judges of the respective High Courts. By G.O.Ms.No.
28 dated 16.03.2012 issued by Law Department,
Government of Andhra Pradesh sanctioned an amount of
Rs.14,000/- per month to the retired Chief Justices of the
High Court of Andhra Pradesh and an amount of Rs.12,000/-
per month to the retired Judges of the High Court of Andhra
Pradesh for defraying the services of an orderly, driver,
security guard etc. and for meeting expenses incurred
towards secretarial assistance on contract basis and a
residential telephone free of cost with number of free calls to
the extent of 1500 per month over and above the number of
free calls per month allowed by the telephone authorities to
both the retired Chief Justices and Judges of the High Court of
Andhra Pradesh w.e.f. 01.04.2012.
34) While appreciating the steps taken by the Government
of Andhra Pradesh and other States who have already
formulated such scheme, by this order, we hope and trust
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that the States who have not so far framed such scheme will
formulate the same, depending on the local conditions, for
the benefit of the retired Chief Justices and retired Judges of
the respective High Courts as early as possible preferably
within a period of six months from the date of receipt of copy
of this order.
35) All the Writ Petitions and the appeals are disposed of on
the above terms. In view of the disposal of the writ petitions,
no orders are required in the intervention application.
NEW DELHI;
MARCH 31, 2014.
.…….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
………….…………………………J.
(N.V. RAMANA)
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