2024 INSC 219

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2024 INSC 219 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 4272 of 2024 (Arising out of SLP (C) No 7246 of 2019)

Union of India, Ministry of Law & Justice …Appellant

Versus

Justice (Retd) Raj Rahul Garg (Raj Rani Jain) …Respondents and Others

JUDGMENT

Dr Dhananjaya Y Chandrachud, CJI

1 Leave granted.

2 This appeal arises from a judgment dated 14 August 2018 of a Division Bench of

the High Court of Punjab and Haryana.

3 The first respondent was appointed as a Judicial Magistrate in the State of

Haryana on 11 May 1981. She was appointed as an Additional District Judge on 26

August 1997 and later, as a District Judge on 19 July 2010. In December 2013, she was recommended for appointment as a Judge of the High Court. Sometime

before her appointment as a Judge of the High Court, she retired as a District

Judge on 31 July 2014. On 25 September 2014, the first respondent assumed

office as a Judge of the Punjab and Haryana High Court. She attained the age of

superannuation and retired from service on 4 July 2016.

4 As a former Judge of the High Court, the first respondent instituted proceedings

under Article 226 of the Constitution, aggrieved by the determination of her

pensionary benefits. She sought that notwithstanding the gap between her

superannuation as a District judge and appointment as a Judge of the High Court,

the entire period of service as from 11 May 1981 to 31 July 2014 as well as service

rendered from 25 September 2014 to 04 July 2016, be reckoned for pensionary

and other retirement benefits. The Union of India contested the petition on the

ground that the gap ought to be considered as a break in service.

5 By its judgment dated 14 August 2018, the Division Bench of the High Court held

that the entire period of service rendered by the first respondent from 25

September 2014 to 4 July 2016 as a Judge of the High Court shall be blended with

the years of her service from 11 May 1981 till 31 July 2014 as a Judge of the

district judiciary for the purpose of computing her pension as a Judge of the High

Court. The Union of India is in appeal against the judgment of the High Court.

Constitutional and Statutory Framework

6 Article 217 of the Constitution provides for the appointment and conditions of the

office of a Judge of a High Court. Clause (2) of Article 217 stipulates that a person

shall not be qualified for appointment as a Judge of a High Court unless such a

person has:

(a) held a judicial office for a period of ten years in the territory of India;

and

(b) been an Advocate of a High Court or of two or more such Courts in

succession for at least ten years.

7 Sub-clause (a) of clause (2) of Article 217 deals with persons who have held

judicial office before appointment as a Judge of the High Court, while clause (b)

essentially sets out conditions of eligibility for the appointment of Advocates to

the Bench of the High Court.

8 Article 221 of the Constitution provides for salaries, allowances and pensions to be

paid to the Judges of the High Courts. Clause 2 of Article 221 states that “(2) Every Judge shall be entitled to such al- lowances and to such rights in respect of leave of absence and pension as may be from time to time be determined by or under law made by Parlia- ment and, until so determined, to such allowances and rights as are specified in the Second Sched- ule.”

9 The High Court Judges (Salaries and Conditions of Service) Act 1954 1 has been

enacted by Parliament “to regulate salaries and certain conditions of service of

the Judges of the High Court”. Section 2(1)(g) of the Act defines the expression

‘Judge’ to mean a Judge of a High Court and to include the Chief Justice, an acting

Chief Justice, an Additional Judge and an acting Judge of the High Court. Chapter III

of the statute deals with salaries and pensions. Section 14 stipulates that subject

to the provisions of the Act, every Judge would, on retirement be paid a pension in

accordance with the scale and provisions in Part I of the Schedule. The proviso,

however, qualifies the entitlement to pension by stipulating 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 superannuation; or

1 ‘The Act’ (c) his retirement is medically certified to be necessitated by ill health.

10 The proviso to Section 14 stipulates that if a Judge is in receipt of a pension at the

time of their appointment in respect of any previous service in the Union or a

State, other than a disability or wound pension, the pension payable under the Act

shall be in lieu of and not in addition to that pension. The Explanation to Section

14, however, is in the following terms:

“Explanation.— In this section “Judge” means a Judge who has not held any other pensionable post under the Union or a State and includes 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 of the First Schedule.”

11 In terms of the Explanation, an artificial meaning is ascribed to the expression

‘Judge’ for the purpose of Section 14. The meaning ascribed to the expression, for

the purposes of Section 14, is a Judge who has not held any other pensionable

post under the Union or a State and includes a Judge who, having held any other

pensionable post under the Union or a State, elects to receive the pension payable

under Part I of the First Schedule. At this stage, it would be, therefore, material to

emphasize that while Section 2(1)(g) contains a broad and all-encompassing

definition of the expression ‘Judge’, the same expression for the purposes of

Section 14 has a more restricted meaning as described in the Explanation.

12 Section 15 contains a special provision for the payment of pension to Judges who

are members of the service. Section 15 is in the following terms:

“15. Special provision for pension in respect of Judges who are members of service.—[(1)] Every Judge—

(a) * * * *

(b) who * * * has held any other pensionable post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule: Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the First Schedule or, * * * Part III of the First Schedule, and the pension payable to him shall be calculated accordingly.

[(2) Notwithstanding anything contained in sub- section (1), any Judge to whom that sub-section applies and who is in service on or after the 1 st day of October, 1974, may, if he has elected under the proviso to that sub-section to receive the pension payable to him under * * * Part III of the First Schedule before the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976, receives the assent of the President, cancel such election and elect afresh to receive the pension payable to him under Part I of the First Schedule and any such Judge who dies before the date of such assent shall be deemed to have elected afresh to be governed by the provisions of the said Part I if the provisions of that Part are more favourable in his case.]”

13 Clause (b) of sub-section (1) of Section 15 indicates that every Judge who has held

any other pensionable post under the Union or a State would be paid a pension in

terms of Part III of the First Schedule, subject to the condition (set out in the

proviso) that the Judge elects to receive the pension payable either under Part I

or, as the case may be, Part III of the First Schedule. Under Section 15(1)(b), upon

electing for the payment of a pension under Part III of the First Schedule, the Judge

would be entitled to pensionary benefits in the terms set out in Part III. Part III of

the First Schedule is in the following terms:

“PART III

(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and

(b) a special additional pension of [Rs.45,016] per annum in respect of each completed year of service for pension, * * *

[Provided that the pension under clause (a) and the additional pension under (b) together 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.]”

Decision of the High Court

14 In the present case a communication dated 04 May 2016 addressed by the

Under Secretary to the Government of India to the Deputy Accountant

General (Pension) stated that since there was a break in the service of the

first respondent, and the same could not be condoned and the period of her

service as a Judge of the High Court could not be considered for calculating

her pension.

15 The High Court noted that paragraph 2 of Part III was applicable to the first

respondent. The High Court held that reading paragraph 2 harmoniously

would entail a ‘blending of the period of both the services’; and that if the

services were not so blended, the service of the first respondent as a Judge

of the High Court would slip into oblivion. Hence, it was held that in

accordance with the definition of ‘service’ in Section 2(1)(h) of the 1954 Act,

the first respondent’s service as a Judge of the High Court was ‘actual

service’:. The High Court observed:

“To conclude, it is manifestly clear that what is to be blended is the ‘actual service’ rendered as a Judge of the High Court to the service rendered by the petitioner from 1981 till 31 July 2014 as ser- vice, for pension and accordingly, the pension will have to be calculated as judge of High Court”

16 The High Court directed that the service of the first respondent as a Judge of

the High Court had to be blended with her services as a Judge of the District

Judiciary and pension was to be calculated as for a Judge of the High Court.

Submissions

17 The Union of India has adopted the position that:

(i) The computation of the retiral benefits has been done correctly, taking into

account the thirty-three years of her service as a member of the District Judi-

ciary and the special additional pension. The High Court has erred in includ-

ing her service as a Judge of the High Court, condoning the break in service

of 54 days;

(ii) The first respondent had not completed twelve years of pensionable service

as a Judge of the High Court within the meaning of Section 14;

(iii) There was a break in service between the date on which the first respondent

retired as a District Judge (31 July 2014) and assumed the office of a Judge of

the High Court (25 September 2014). This break could not be condoned un-

der the 1954 Act by the High Court or by this Court;

(iv) The first respondent having opted to receive her pensionary payments under

Part III of the First Schedule, the years of service which were rendered by her

as a Judge of the High Court would be cumulated with her service as a mem -

ber of the district judiciary;

(v) The pension payable to the first respondent would then be computed on the

basis of last drawn salary as a District Judge; and

(vi) Since paragraph 2(b) of Part III of the First Schedule provides for a special ad-

ditional pension in respect of each completed year of service, the first re-

spondent would be entitled to that as well.

18 The essence of the contest in these proceedings relates to the correctness of the

interpretation which has been placed by the Union of India.

19 Mr Shailesh Madiyal, senior counsel appearing on behalf of the Union of India has

adopted the above submissions. It has been urged that though the first

respondent had not completed twelve years as a Judge of the High Court for the

eligibility for pension in terms of Section 14, in view of the provisions of Section

15, she would be entitled to the computation of pension in terms of Part III of the

First Schedule. Mr Madiyal urged that in terms of paragraph 2(a) of Part III, the

total length of service rendered as a Judge of the High Court would have to be

added to the length of service as a Judge of the district judiciary, to which a

special additional pension would be added. Hence, it is urged that the Union was

correct in computing the pensionary payment on the basis of the salary last drawn

by the first respondent as a Judge of the High Court.

20 Mr P S Patwalia, senior counsel appearing on behalf of the respondent, has, on the

other hand, urged that the Division Bench of the High Court was justified in

holding that the years of service as a member of the district judiciary would have

to be blended with the years of service as a Judge of the High Court. Adverting to

the provisions of Section 14A of the Act, which were introduced to provide an

addition of ten years of service to a member of the Bar who is appointed as a

Judge of the High Court, it was urged that it would be entirely discriminatory if a

similar principle were not applied to the members of district judiciary appointed as

a Judge of the High Court.

Analysis

21 Section 14(1) of the Act provides that the pension payable to a Judge shall be

computed in accordance with Part I of the First Schedule. Among the three

conditions prescribed for eligibility to receive pension, is the requirement of

completing twelve years of service for pension. At the same time, the Explanation

to Section 14 which was inserted by Act 13 of 2016, provides meaning to the

expression ‘Judge’ for the purposes of Section 14. In its first part, the Explanation

indicates that the expression means a Judge who has not held any other

pensionable post either under the Union or a State. In the second part, the

expression includes a Judge who has held a pensionable post under the Union or a

State and has elected to receive pension under Part I of the First Schedule. The

first part of the Explanation would encompass members of the Bar who would not

have held any other pensionable post under the Union or a State. The latter part

encompasses Judges falling within the description contained in Article 217(2)(a) of

the Constitution, who have held a pensionable post under the Union or the State

and who have opted to receive pension under Part I of the Schedule. The latter

part thus covers only a person who has opted for pension under Part I of the First

Schedule.

22 Section 15, on the other hand, is a special provision as its marginal note indicates,

for Judges who are members of the service meaning the judicial service. Clause

(b) of Section 15(1) indicates that a person who has held a pensionable post under

the Union or a State may elect to receive the pension payable either under Part I

or Part III. In the case of a Judge, such as the first respondent, who elects to

receive pension under Part III of the First Schedule, the pension payable has to be

computed in terms of the provisions contained in paragraph 2 of Part III. . For the

purpose of clause (a), the pension which is payable to the Judge is the pension to

which they are entitled under the ordinary rules of service if they had not been

appointed as a Judge and their service as a Judge is treated “as service therein for

the purpose of calculating that pension”. In other words, the service which is

rendered as a Judge of the High Court has to be cumulated with the service

rendered as a member of the district judiciary by treating it as service therein for

computing the pension. To this, would be added a special additional pension in

terms of clause (b) of paragraph 2.

23 As a result of Section 14A, a period of ten years is added and is deemed to have

been added from 1 April 2004 for the purpose of pension to the service of a Judge

who is appointed under clause (2)(b) of Article 217. Section 14A, is in other words,

a special provision which was introduced for Judges of the High Court who have

been appointed from the Bar. The introduction of Section 14A in 2016 was

preceded by three judgments of this Court. The first of them in Kuldip Singh vs

Union of India,2 dealt with the appointment of a Judge of the Supreme Court

from the Bar. This Court held that a member of the Bar who was appointed as a

Judge of the Supreme Court would be entitled to the addition of ten years of

service for the purpose of computing pension. This principle was similarly applied

in Government of NCT of Delhi vs All India Young Lawyers Association

(Registered)3 in the case of the district judges. Eventually, the same principle

was extended by this Court in P Ramakrishnam Raju vs Union of India 4 in

dealing with the pension payable to High Court Judges who are appointed from the

Bar under Article 217(2)(b) of the Constitution. A three-Judge Bench of this Court,

speaking through Sathasivam, CJ noted that Judges who are appointed under

Article 217(2)(a) being members of the judicial service obtain full pensionary

benefits even if they serve as a Judge of the High Court for a bare period of a year

or two because of their earlier entry into judicial service, but such a benefit is not

extended to members of the Bar who become Judges of the High Court. This Court

while laying down the principle of non-discrimination between High Court judges

elevated from the bar on the one hand and from the district judiciary on the other,

observed:

“19. 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

2(2002) 9 SCC 218 3(2009) 14 SCC 49 4(2014) 12 SCC 1 practising 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 Judgeship. The experience and knowledge gained by a successful lawyer at the Bar can never be considered to be lessimportant from any point of view vis- à-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.

24 The principles which have been laid down by the three-Judge Bench decision in P

Ramakrishnam Raju (supra) provide guidance to this Court in resolving the

controversy in the present case.

25 Pensionary payments to Judges constitute a vital element in the independence of

the judiciary. As a consequence of long years of judicial office, Judges on demitting

office do not necessarily have the options which are open to members from other

services. The reason why the State assumes the obligation to pay pension to

Judges is to ensure that the protection of the benefits which are available after

retirement would ensure their ability to discharge their duties without “fear or

favour” during the years of judgeship. The purpose of creating dignified conditions

of existence for Judges both during their tenure as Judges and thereafter has,

therefore, a vital element of public interest. Courts and the Judges are vital

components of the rule of law. Independence of the judiciary is hence a vital

doctrine which is recognized in the constitutional scheme. The payment of salaries and dignified pensions serves precisely that purpose. Hence, any interpretation

which is placed on the provisions of the Act must comport with the object and

purpose underlying the enactment of the provision.

26 The contention of the Union of India is that the first respondent did not fulfill the

requirement of twelve years of service and was, therefore, not entitled to the

benefit of Section 14. This submission clearly misses the plain consequence of the

Explanation to Section 14. The Explanation is exhaustive in terms of the

categories of Judges to which it applies since it uses both the expression ‘means’

and ‘includes’. In other words, Section 14 applies to a Judge who has not held any

pensionable post either in the Union or the State or a person who having held a

pensionable post has opted to receive pension under Part I of the Schedule. A

Judge such as the first respondent who has not opted to receive the benefits of

pension under Part I of the First Schedule would fall outside the purview of the

Explanation and, hence Section 14 would have no application.

27 The post-retiral pension to such a Judge would, therefore, be governed by Section

15 read with paragraph 2 of Part III of the Act. Upon electing to receive pension

under Part III of the First Schedule, the first respondent was entitled to have the

years of service which were rendered by her as a Judge of the High Court

cumulated with the years of service rendered as a member of the district judiciary.

This is in accordance with clause (a) which stipulates that the pension payable to

a Judge shall be first, the pension they would be entitled to under the ordinary

rules of ‘service’ if they had not been appointed as a Judge of the High Court, that

is if they continued their service as a District Judge; second, their service as a

Judge of the High Court would be treated as service therein for the purpose of

calculating their pension. Paragraph 2 (a) or any other provision of the Act does

not indicate that a break in service such as the one in the service of the first

respondent would make paragraph 2 inapplicable and disentitle such a Judge from

adding their service as a High Court Judge to their service as a District Judge for

the purpose of calculating their pension. The Union of India has failed to establish

such a disentitlement. Further, the break in service was attributable to the time

taken in processing the recommendation made in her favor. In any case, it was not

attributable to anything that the first respondent had done, and it could not be

used to prejudice her by rendering her service as a Judge of the High Court

inconsequential to the calculation of pension.

28 The Union has sought to urge that the pension was correctly calculated on the

basis of the last drawn salary as a District Judge. To accept this position would be

contrary to established precedent and would result in a clear discrimination

between a member of the Bar who becomes a Judge of the High Court and a

member of the district judiciary who is appointed as a Judge of the High Court.

29 In M L Jain vs Union of India, 5 this Court was deciding upon the validity of a

letter issued by Ministry of Law and Justice which stated that the pension under

para 2(a) of Schedule I of the 1954 Act would be in accordance with the pay that

they drew in the parent department, preceding their elevation to the High Court.

Quashing the said letter as contrary to the para 2(a) of Schedule I of the Act, a

three-judge bench of this Court, speaking through Justice O Chinnappa Reddy,

observed as follows:

“We are of the opinion that para 2(ii) of the letter dated September 19, 1984 is a clear departure from para 2 clause (a) of Schedule I to the High Courts Judges (Condi- tions of Service) Act. Under clause (a) of para 2 of the Schedule I to the High Courts Judges' (Conditions of Service) Act the retiring Judge’s entire service as a Judge has to be reckoned for the purpose of calcu- lating his pension and for that purpose the last pay drawn by him has to be the pay drawn by him as a Judge of the High Court and not the pay that would have been drawn by him as a District Judge , had he not been appointed a High Court Judge.”

5 1985 2 SCC 355, 357 30 Acceptance of the submission of the Union of India would discriminate against

Judges of the High Court based on the source from which they are drawn. A

member of the Bar is entitled to the addition of ten years of service by virtue of

the provisions of Section 14A. On the addition of the years of service, their

pensionary benefits would be computed on the basis of the last drawn salary as a

Judge of the High Court. However, if the argument of the Union of India is

accepted, the pension of a Judge who was a former District Judge would be

computed on the basis of their salary as a District Judge. A similar principle, as

applicable to Judges appointed from the Bar, must be applied for computing the

pension of a member of the district judiciary who is appointed to the High Court.

Any other interpretation would result in a plain discrimination between the Judges

of the High Court based on the source from which they have been drawn. Such an

interpretation would do disservice to the importance of the district judiciary in

contributing to the judiciary of the nation, and would be contrary to the overall

scheme and intendment of Chapter III of the statute. It would go against the anti-

discriminatory principles stipulated by this Court in so far as Judges drawn from

various sources are concerned.

Conclusion

31 We are, therefore, clearly of the view that the first respondent was entitled to the

addition of the period during which she served as a Judge of the High Court to be

added to the length of her service as a member of the district judiciary from 11

May 1981 to 31 July 2014. The break in her service must necessarily have no

adverse implications in computing her pension for the simple reason that her

service upon appointment as a High Court Judge was in pursuance of a

recommendation which was made during her tenure as a Judge of the district

judiciary.

32 The pensionary payments shall be computed on the basis of her last drawn salary

as a Judge of the High Court. The arrears of pension shall be payable to the first

respondent on or before 31 March 2024 together with interest at the rate of 6%

per annum.

33 The appeal is accordingly disposed of.

34 Pending applications, if any, stand disposed of.

…….......…...….......…………………..CJI. [Dr Dhananjaya Y Chandrachud]

……..…....…........……………….…........J. [J B Pardiwala]

……..…....…........……………….…........J. [Manoj Misra]

New Delhi; March 15, 2024 CKB