Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
WRIT PETITION(C) NO. 300 OF 2016
K. Sreedhar Rao ..Petitioner
Versus
Union of India through Secretary,
Ministry of Law & Justice, New Delhi ..Respondent
J U D G M E N T
M.R. SHAH, J.
By way of this petition filed under Article 32 of the
Constitution of India, the petitioner, who retired as Acting Chief
Justice of the Gauhati High Court, has prayed for an appropriate
writ, direction or order and declaration that the petitioner is
entitled to pensionary benefits, applicable to a retired Chief
Justice of a High Court.
2. That the petitioner joined services as a member of the
Karnataka Judicial Service in the year 1988. He was elevated to
the High Court of Karnataka in the year 2000. Thereafter, he
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2019.09.06
17:10:03 IST
Reason:
was transferred to the Gauhati High Court as a puisne Judge.
That on 13.08.2014, in exercise of powers under Article 223 of
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the Constitution of India, the petitioner was appointed as the
Acting Chief Justice of the Gauhati High Court. He served in
that capacity for 14 months and retired as Acting Chief Justice
on 20.10.2015. While serving as Acting Chief Justice, the
petitioner was paid his salaries and allowances admissible to a
Chief Justice, as contemplated in the Second Schedule, PartD,
paragraphs 10 and 11 of the Constitution of India and under the
High Court Judges (Salaries and Conditions of Service) Act, 1954
(hereinafter referred to as the ‘1954 Act’).
2.1 That on 20.07.2015, when the petitioner was holding the
post of Acting Chief Justice, the Registry of the Gauhati High
Court sent the required documents for fixation of the petitioner’s
pension and gratuity to the Central Government. The petitioner
claimed the pensionary benefits as may be available to the Chief
Justice. However, the Department of Law & Justice informed the
High Court that the petitioner is not entitled to the higher
pension ceiling of Rs.5,40,000/ being the pension available to a
Chief Justice and therefore requested to furnish the revised
pension report fixing the pension at Rs.4,80,000/ annually. The
Registry of the High Court wrote to the Department of Law &
Justice that vide Rule 7 of PartI of the First Schedule to the
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1954 Act, the petitioner was entitled to pension admissible to the
Chief Justice. At this stage, it is required to be noted that
initially the petitioner elected to seek pension under PartIII of
the First Schedule to the 1954 Act. However, it is the case on
behalf of the petitioner that subsequently he clarified that he is
seeking pension under PartI of the First Schedule to the 1954
Act. The aforesaid shall be dealt with hereinbelow.
2.2 That thereafter the Ministry of Law & Justice, Government
of India rejected the contention of the High Court that the
petitioner was entitled to receive his pension as a Chief Justice,
the petitioner has preferred the present petition under Article 32
of the Constitution of India for an appropriate writ, direction or
order and declaration that the petitioner is entitled to the
pensionary benefits as that of the Chief Justice.
3. Shri Kailash Vasdev, learned Senior Advocate appearing on
behalf of the petitioner has vehemently submitted that as per
para 10 of Part D of the Second Schedule of the Constitution of
India, there shall be paid to the Judges of the High Courts, in
respect of time spent on actual service, salary at the rates
mentioned therein. It is submitted that as per para 11 of Part D
of the Second Schedule of the Constitution of India, the
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expression “Chief Justice” includes an Acting Chief Justice. It is
submitted that therefore Part D of the Second Schedule of the
Constitution of India, in the matter of pay and perks, equates the
Acting Chief Justice with the Chief Justice.
3.1 It is further submitted by Shri Kailash Vasdev, learned
Senior Advocate appearing on behalf of the petitioner that as per
Section 2(1)(a) of the 1954 Act, “Acting Chief Justice” means a
Judge appointed under Article 223 of the Constitution to perform
the duties of the Chief Justice. It is submitted that as per
Section 2(1)(g) of the 1954 Act, “Judge” means a Judge of a High
Court and includes the Chief Justice, Acting Chief Justice, an
additional Judge and Acting Judge of the High Court.
3.2 It is further submitted by Shri Kailash Vasdev, learned
Senior Advocate appearing on behalf of the petitioner that as per
Rule 2 of Part I of the First Schedule of the 1954 Act, the pension
payable to a Judge to whom Part I applies for pension shall be for
service as Chief Justice in any High Court – Rs.1,21,575/ per
annum for each completed year of service and the pension
payable to a Chief Justice shall in no case exceed Rs.15,00,000/
per annum. It is submitted that as per Rule 7 of Part I of the
First Schedule of the 1954 Act, for the purposes of Part I, service
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as an Acting Chief Justice of a High Court ……. shall be treated
as though it were service rendered as Chief Justice of a High
Court. It is submitted that therefore the petitioner who retired as
an Acting Chief Justice shall be entitled to all pensionary benefits
as may be available to a retired Chief Justice including the
maximum limit of Rs.15,00,000/ per annum in the case of a
Chief Justice.
3.3 Learned Senior Advocate appearing on behalf of the
petitioner has submitted that in fact the respondent rejected the
claim of the petitioner considering his application under Part III
of the First Schedule of the 1954 Act. It is submitted that in fact
subsequently the petitioner claimed the pension/pensionary
benefits under Part I of the First Schedule of the 1954 Act, and
therefore, his case is required to be considered under Part I of the
First Schedule of the 1954 Act.
3.4 Now so far as the reliance placed upon the decision of this
Court in the case of Union of India v. Syad Sarwar Ali (1998) 9
SCC 426 by the respondent is concerned, it is vehemently
submitted by the learned Senior Advocate appearing on behalf of
the petitioner that the said decision shall not be applicable at all
to the facts of the case on hand. It is submitted that the facts in
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the said case are distinguishable. It is submitted that the said
judgment deals with a fact situation where the respondent
discharged his duties as Acting Chief Justice during his tenure
as a Judge and as such he retired as a Judge and not as an
Acting Chief Justice. It is submitted that observations of this
Court in para 9 of the aforesaid judgment are obiter dicta . It is
submitted that therefore the decision in the case of Syad Sarwar
Ali(supra) has no application to the facts of the case on hand.
3.5 It is further submitted by Shri Kailash Vasdev, learned
Senior Advocate appearing on behalf of the petitioner that para
11 of Part D of the Second Schedule of the Constitution of India
specifically provides the expression “Chief Justice” includes an
Acting Chief Justice. It is submitted that Rule 7 of Part I of the
First Schedule of the 1954 Act reiterates that “for the purposes of
this Part, service as an Acting Chief Justice of a High Court ……
shall be treated as though it were service rendered as Chief
Justice of a High Court”. It is submitted that the Acting Chief
Justice discharges the same duties, obligations and functions as
the Chief Justice. It is submitted therefore that the petitioner,
who retired as an Acting Chief Justice, for all practical purposes,
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retired as a Chief Justice and therefore he is entitled to the
pensionary benefits as may be available to the Chief Justice.
3.6 It is further submitted by Shri Kailash Vasdev, learned
Senior Advocate appearing on behalf of the petitioner that as
such Part III of the First Schedule of the 1954 Act shall not be
applied to a Judge who retires as an Acting Chief Justice. It is
submitted that Part III of the First Schedule of the 1954 Act
applies to a Judge who has held any pensionable post under the
Union or a State …… and who has not elected to receive the
pension payable under Part I. It is submitted that Part III deals
with pension payable to such a Judge and it does not deal with
pension payable to a Judge who retires as an Acting Chief
Justice.
3.7 It is further submitted by Shri Kailash Vasdev, learned
Senior Advocate appearing on behalf of the petitioner that Section
14 of the 1954 Act provides that “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 I of the First
Schedule”. It is submitted that Rule 7 of the First Schedule
equates the service of an Acting Chief Justice as service rendered
as a Chief Justice of the High Court for the purposes of Part I. It
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is submitted that therefore when on the date of retirement the
petitioner retired as an Acting Chief Justice after rendering
service as an Acting Chief Justice for 14 months, the petitioner
shall be entitled to the pensionary benefits which may be
available to a Chief Justice.
3.8 Making the above submissions, it is prayed to allow the
present petition.
4. The present petition is vehemently opposed by Ms. V.
Mohana, learned Senior Advocate appearing on behalf of the
respondent. It is vehemently submitted that the petitioner being
a promotee Judge and retired as an Acting Chief Justice from the
High Court, Part III of the First Schedule of the 1954 Act only
shall be applicable. It is submitted that even otherwise as such
the petitioner submitted the application for pension under Part III
only and therefore his application was processed under Part III
only. It is submitted that only before this Court subsequently as
an afterthought the petitioner is claiming the pension/pensionary
benefits under Part I. It is submitted that as there was no upper
limit so far as the pension payable under Part III is concerned,
the petitioner applied for pension under Part III only.
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4.1 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that para 11 of
Part D of the Second Schedule of the Constitution read with
Article 221 shows that the said provisions prescribe entitlement
of salaries alone of a Judge/Chief Justice of a High Court and the
same is made applicable to an adhoc or an Acting Judge/Chief
Justice of the High Court. It is submitted that therefore an
Acting Chief Justice of a High Court is equated to a Chief Justice
for the limited purpose of salary only and not otherwise.
4.2 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that by virtue of
the 1954 Act, it is for the limited purpose of computation of
salary that the Acting Chief Justice is treated as Chief Justice.
4.3 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that Rule 7 of
Part I of the First Schedule of the 1954 Act is required to be read
with Rule 2 of Part I. It is submitted that Rule 7 of Part I also
speaks about computation and not grant of equal pension.
4.4 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that Rule 7 of
Part I of the First Schedule of the 1954 Act when read with Rule
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2 of Part I, it can be seen what is contemplated in Part I is only
computation as far as the position held by them during a
particular year either as a Judge/Acting Chief Justice/Chief
Justice. It is submitted that in any event, Rule 7 only counts the
length of service of a Judge being adhoc Judge under Article 127
of the Constitution or one under Article 223 of the Constitution.
It is submitted that therefore the prayer of the petitioner for
pension as Chief Justice is not sustainable and the petitioner is
not entitled to pensionary benefits applicable to a retired Chief
Justice of the High Court and is not eligible for consideration to
the all statutory posts and assignments for which a retired Chief
Justice is eligible.
4.5 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that the Acting
Chief Justice of a High Court, who is one appointed under Article
223 of the Constitution of India, may not be equated with the
Chief Justice of the High Court who is appointed under Article
217 of the Constitution of India. It is submitted that in the case
of Syad Sarwar Ali (supra) , this Court had categorically held that
the Acting Chief Justice is different from Chief Justice. Relying
upon paragraphs 10 and 11 of the aforesaid decision, it is
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submitted by the learned Senior Advocate that an Acting Chief
Justice who is one appointed under Article 223 of the
Constitution of India may not be equated with a Chief Justice
appointed under Article 217 of the Constitution of India.
4.6 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that there is a
clear distinction between a Chief Justice appointed under Article
217 of the Constitution of India and Acting Chief Justice
appointed under Article 223 of the Constitution of India. It is
submitted that when an Acting Chief Justice is appointed, the
office of the Chief Justice remains vacant. It is submitted that
under Article 223 of the Constitution, an Acting Chief Justice is
merely appointed by the President to perform the functions of the
Chief Justice while the office of the Chief Justice remains vacant.
It is submitted that Schedule 3 Para VIII of the Constitution of
India provides for an oath for the Chief Justice and other Judges,
but not for an Acting Chief Justice. It is submitted that Acting
Chief Justice never takes the oath of office. It is submitted that
any puisne Judge can be appointed as Acting Chief Justice. It is
submitted therefore that there is a material distinction between
the Chief Justice appointed under Article 217 of the Constitution
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and an Acting Chief Justice appointed under Article 223 of the
Constitution. It is submitted that only during the period a Judge
is appointed and functioning as an Acting Chief Justice and
considering para 11 of the Second Schedule of the Constitution
read with Article 221 of the Constitution, such an Acting Chief
Justice is entitled to the salaries of a Chief Justice of the High
Court. It is submitted therefore that the petitioner shall not be
entitled to the pensionary benefits as may be available to a
retired Chief Justice and therefore is rightly denied the
pension/pensionary benefits as may be available to a retired
Chief Justice.
4.7 Making the above submissions, it is prayed to dismiss the
present petition.
5. We have heard the learned counsel for the respective parties
at length.
5.1 The short question which is posed for the consideration of
this Court is, whether the petitioner who retired as an Acting
Chief Justice is entitled to the pensionary benefits which may be
available to a retired Chief Justice?
5.2 Section 14 of the 1954 Act provides for pension payable to
Judges. It provides that subject to the provisions of the 1954
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Act, every Judge shall, on his retirement, be paid a pension in
accordance with the scale and provisions in Part I of the First
Schedule. It further provides 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 sixtytwo years; or (c) his retirement is medically certified to be
necessitated by illhealth. “Judge” is defined under Section 2(1)(g)
of the 1954 Act. According to Section 2(1)(g) of the 1954 Act,
“Judge” means a Judge of a High Court and includes the Chief
Justice, an Acting Chief Justice, an additional Judge and an
Acting Judge of the High Court.
5.3 Part I of the First Schedule of the 1954 Act shall apply to a
Judge who has not held any other pensionable post under the
Union or a State or a Judge who having held any other
pensionable post under the Union or a State has elected to
receive the pension payable under Part I. Part III of the First
Schedule of the 1954 Act shall apply to a Judge who has held
any pensionable post under the Union or a State and who has
not elected to receive the pension payable under Part I. In the
present case, as such, the petitioner was a promotee Judge and
therefore Part III of the First Schedule may be applicable. It is
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required to be noted that as such the petitioner applied for
pension under Part III. However, it is the case on behalf of the
petitioner that subsequently having realised the mistake he had
applied for pension under Part I of the First Schedule of the 1954
Act. Without entering into the question, whether the petitioner
can be permitted to subsequently switch over to Part I of the First
Schedule of the 1954 Act, we shall consider the case of the
petitioner as if he had applied for pension under Part I of the
First Schedule.
6. Rule 2 of Part I of the First Schedule of the 1954 Act
provides that subject to the other provisions of Part I, the pension
payable to a Judge to whom Part I applies, pension shall be (a)
for service as Chief Justice in any High Court – Rs.1,21,575/ per
annum for each completed years of service; (b) for service as any
other Judge in any High Court – Rs. 96,524/ per annum for
each completed years of service. It further provides that the
pension under this paragraph shall in no case exceed
Rs.15,00,000/ per annum in the case of a Chief Justice and
Rs.13,50,000/ per annum in the case of any other Judge.
6.1 Rule 7 of Part I of the First Schedule of the 1954 Act, upon
which much reliance has been placed by the learned Senior
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Advocate appearing on behalf of the petitioner, provides that for
the purposes of Part I, service as an Acting Chief Justice of a
High Court …. shall be treated as though it were service rendered
as Chief Justice of a High Court. Therefore, for the purpose of
computation of the pension as per Rule 2, the service rendered by
a Judge as an Acting Chief Justice shall be treated as a service
rendered as Chief Justice, i.e., Rs.1,21,575/ per annum. For
example, like in the present case, for the services rendered by the
petitioner as Acting Chief Justice for 14 months, while computing
the pension for that 14 months, his pension shall be counted as
Chief Justice, i.e., Rs.1,21,575/ per annum and for rest of the
completed years of service his pension is to be computed as
Judge of the High Court. Rules 2 and 7 of Part I of the First
Schedule of the 1954 Act read as under:
“2.Subject to the other provisions of this Part, the
pension payable to a Judge to whom this Part applies
for pension shall be, __
(a)for service as Chief Justice in any High Court,
Rs.1,21,575/ per annum for each completed year
of service;
(b)for service as any other Judge in any High Court,
Rs.96,524/ per annum for each completed year of
service:
provided that the pension under this paragraph shall
in no case exceed Rs.15,00,000/ per annum in the
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case of a Chief Justice and Rs.13,50,000/ per annum
in the case of any other Judge.
7. For the purposes of this Part, service as an
acting Chief Justice of a High Court or as an ad hoc
Judge of the Supreme Court, shall be treated as
though it were service rendered as Chief Justice of a
High Court,
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.”
6.2 Now so far as the reliance placed upon para 11 Part D of the
Second Schedule of the Constitution and Articles 127, 221 and
223 of the Constitution by the learned Senior Advocate appearing
on behalf of the petitioner is concerned, on conjoint reading of
the aforesaid provisions, we are of the opinion that so long as a
Judge who is performing his duties as an Acting Chief Justice
appointed under Article 223 of the Constitution, shall be entitled
to the salary and other perks as that of the Chief Justice.
Meaning thereby, what is contemplated by the aforesaid
provisions is only payment of salary during the tenure while
functioning as Acting Chief Justice as that of a Chief Justice.
Even by virtue of the provisions of the 1954 Act, it is for the
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limited purpose for computation of the salary that Acting Chief
Justice is treated as Chief Justice.
6.3 Now so far as the submission on behalf of the petitioner,
relying upon para 11 Part D of the Second Schedule that the
“Chief Justice” includes an “Acting Chief Justice” and that such a
Judge who is functioning as an Acting Chief Justice be paid the
salary of a Chief Justice and for all practical purposes he has
performed the duties of a Chief Justice and therefore he shall be
paid the pensionary benefits admissible to a retired Chief Justice
is concerned, it is required to be noted that there is a clear
distinction between a Judge appointed as an Acting Chief Justice
under Article 223 of the Constitution of India and a Chief Justice
appointed under Article 217 of the Constitution. Considering
Article 223 of the Constitution of India, it can be seen that a
Judge of the High Court is appointed as an Acting Chief Justice
under Article 223 of the Constitution for the purposes of the
duties of the Chief Justice and the office of the Chief Justice
remains vacant. In a case where the office of the Chief Justice of
the High Court is vacant, the duties of the office of the Chief
Justice will be performed by any other Judge as Acting Chief
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Justice. Therefore, only for the limited purpose of salary, such
an Acting Chief Justice is treated at par with the Chief Justice
and not for any other purpose, more particularly the pension.
For the purposes of pension, the relevant provisions of the 1954
Act are extracted hereinabove and as observed hereinabove while
computing the pension as per Rule 2 of Part I of the First
Schedule of the 1954 Act, the service rendered by a Judge as an
Acting Chief Justice only is required to be counted as a Chief
Justice and his pension is required to be computed accordingly
as a Chief Justice for the service rendered as an Acting Chief
Justice. Therefore, the services rendered by the petitioner as an
Acting Chief Justice, i.e., for a period of 14 months, is to be
counted/calculated as that of the Chief Justice, namely,
Rs.1,21,575/ per annum, or as the case may be. Rule 7 of Part I
of the First Schedule cannot be read in isolation. Even Rule 7
specifically provides that for the purposes of this part – Part I,
service as an Acting Chief Justice of a High Court shall be treated
as though it were service rendered as Chief Justice of a High
Court. Rule 2 and Rule 7 of Part I of the First Schedule of the
1954 Act are required to be read conjointly and if are read
conjointly, in that case, while making the computation of pension
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under Rule 2 of Part I of the First Schedule, the service rendered
as an Acting Chief Justice is required to be considered as a Chief
Justice and accordingly his pension is required to be counted
and for that period his pension is required to be computed as if
he has rendered service as Chief Justice.
7. Now so far as the reliance placed upon the decision of this
Court in the case of Syad Sarwar Ali(supra) by the learned
counsel appearing on behalf of the respondent is concerned,
learned counsel appearing on behalf of the petitioner is right to
some extent that the said decision is distinguishable on facts. It
is true that in the said case, the respondent – Judge retired as a
puisne Judge and not as an Acting Chief Justice. However, in
the said decision, it is specifically observed that the substantive
portion of Rule 2 read with Rule 7 of the First Schedule deals
with the calculation of the pension payable to a Judge during his
judicial career and that in computing the pension, the time which
he had spent as a Judge or Acting Chief Justice or Chief Justice
is taken into consideration. It is further observed by this Court
in the aforesaid decision that the rules containing First Schedule
are conscious of the fact that the retiring incumbent may be a
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Judge or a Chief Justice or may have acted as an Acting Chief
Justice for a period of time where for the purpose of calculating
the quantum of pension, the period spent by a Judge as an
Acting Chief Justice is taken into consideration for the purpose of
fixing the ceiling. It is further observed that however, an Acting
Chief Justice, who is one appointed under Article 223 of the
Constitution is not equated with the Chief Justice appointed
under Article 217 of the Constitution. The above observations
clinch the issue. Even otherwise, we have considered the
question posed independently and are of the opinion that the
petitioner is not entitled to the pensionary benefits including the
ceiling in the pension which may be available to a retired Chief
Justice and as observed hereinabove, only that period of service
rendered by him as an Acting Chief Justice, i.e., 14 months
service as an Acting Chief Justice is required to be considered as
service rendered as a Chief Justice for the purpose of
computation of pension under Rule 2/as per Rule 2 of the Part I
of the First Schedule of the 1954 Act.
8. In view of the above and for the reasons stated above, the
petitioner is not entitled to the relief and the declaration as
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prayed. The petitioner is not entitled to the pensionary benefits
including the ceiling in the pension as may be available to a
retired Chief Justice. The instant petition fails and the same
deserves to be dismissed and is accordingly dismissed.
………………………………J.
[ARUN MISHRA]
……………………………….J.
[M.R. SHAH]
NEW DELHI; …………………………………J.
SEPTEMBER 06, 2019. [B.R. GAVAI]
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