Supreme Court of India
Justice Shailendra Singh vs Union Of India on 5 November, 2024
Author: Dhananjaya Y Chandrachud
Bench: Dhananjaya Y Chandrachud
1
Reportable
2024 INSC 862 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO 232 OF 2023
Justice Shailendra Singh & Ors … Petitioners
Versus
Union of India & Ors … Respondents
AND WITH
WRIT PETITION (CIVIL) NO 3 OF 2024
JUDGMENT
Dr Dhananjaya Y Chandrachud, CJI
Background
1 The jurisdiction of this Court under Article 32 of the Constitution has been invoked by
eight judges of the High Court of Patna who are aggrieved by a communication
dated 13 December 2022 issued by the Under Secretary to the Government of India
in the Department of Justice of the Union Ministry of Law and Justice. The
communication has been issued to the Senior Accounts Officer in the office of the
Principal Accountant General (A&E) at Patna.
2 The petitioners were appointed as District Judges on 15 April 2010. Seven petitioners
Signature Not Verified
Digitally signed by
in the first of the two petitions, were appointed as Judges of the Patna High Court on
Gulshan Kumar Arora
Date: 2024.11.08
18:38:03 IST
Reason:
4 June 2022 while the sole petitioner in the second petition was appointed as a
2Judge of that High Court on 22 November 2023. On appointment as Judges of the
High Court, their salaries and conditions of service were to be governed by the High
Court Judges (Salaries and Conditions of Service) Act 1954 1.
3 Chapter III of the Act governs salaries and pensions. Section 13A envisages that the
Chief Justice of a High Court would be paid a salary of Rs 2,50,000 per mensem and
that the salary of a Judge of a High Court would be Rs.2,25,000 per mensem.
Section 14 2 provides for the payment of pension in accordance with the scale and
provisions set out in Part I of the First Schedule. Section 15 makes a special provision
for the payment of pension for judges of the High Court who have held any other
pensionable post under the Union or State in accordance with the scale and
provisions in Part III of the First Schedule. However, every such Judge may elect to
receive the pension payable either under Part I or Part III of the Schedule.
1Act of 1954
214. 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 I 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:
Provided further that if a Judge 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 in the Union or a
State, the pension payable under this Act shall be in lieu of, and not in addition to, that
pension.
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.
3
4 Section 20 governs the payment of Provident Fund and is in the following terms:
“20. Provident Fund.—Every Judge shall be
entitled to subscribe to the General Provident
Fund (Central Services):
Provided that a Judge who has held any other
pensionable civil post under the Union or a
State shall continue to subscribe to the
Provident Fund to which he was subscribing
before his appointment as a Judge.”5 After the petitioners were appointed as judges of the High Court, no steps were
taken by the authorities to open a General Provident Fund account as a
consequence of which, on their retirement, they have not received any terminal
benefit pertaining to the provident fund. The scope of the controversy, in the
present case, turns on the interpretation of the provisions of Section 20.
Submissions
6 Mr K Parameshwar, Amicus Curiae, has broadly addressed the Court on three
propositions:
(i) The provisions of the Constitution and of the statute governing the conditions
of service of sitting and former judges must be construed from the
perspective of providing financial independence both at the institutional and
individual level;
(ii) There must be uniformity of the service conditions of High Court judges both
during service and after retirement and the intent underlying Article 221
would be defeated by making a distinction between the conditions of service
4available to judges (and former judges) of the High Court based on their
source of recruitment; and
(iii) All judges of the High Court constitute one single class as defined in Article
216 and Article 221, irrespective of the source of appointment and in
consequence, the principle of non-discrimination in regard to the conditions
of service must apply.
7 Mr Rakesh Dwivedi, senior counsel, who has appeared in a companion matter, has
also addressed the Court in the present batch of cases urging that :
(i) The provisions of the Constitution do not contemplate two classes of judges;
(ii) As holders of constitutional offices within constitutional institutions, there is only
one class of High Court judges irrespective of whether they have been drawn
from the Bar or the District Judiciary;
(iii) The requirement of financial independence which is the fundamental
constitutional postulate underlying the provisions of Article 202(3)(d), Article
112(3)(d)(iii) and Articles 216, 217 and 221, applies in equal measure both to
service and Bar judges appointed to the High Court;
(iv) The law under Article 221(1) must of necessity be uniform for all judges of the
High Court and no sub-classification is permissible; and
(v) The domain of the law which is contemplated in Article 221 is for the
determination of the quantum of salaries and there cannot be any
bifurcation between the entitlements of judges of the High Court drawn from
the district judiciary and the Bar.
5
8 Mr R Venkataramani, Attorney General for India, on the other hand, has placed
reliance on the proviso to Section 20 of the Act of 1954 and urged that the true
intendment of the proviso is that a Judge who has held a pensionable civil post
under the State (in this case, the district judiciary) will continue to subscribe to the
provident fund to which he was subscribing before his appointment as a Judge of
the High Court. It has been urged that with the implementation of the National
Pension Scheme with effect from 1 April 2024, all district judges appointed after that
date came to be governed by the New Pension Scheme with the consequence that
any subscription to the provident fund must be in a manner consistent with the new
scheme. Hence, it has been urged by the Attorney General that a member of the
district judiciary who is appointed as a Judge of the High Court, they would not be
entitled to the benefit of the General Provident Fund which is otherwise applicable
to Judges of the High Court. Finally, it has been urged that in any event, there is no
justification for the petitioners to seek a transfer of the amounts of the New Pension
Scheme Contribution as district judges to the General Provident Fund accounts, if
they may be directed to be opened by this Court.
Analysis
9 Article 216 of the Constitution provides that every High Court shall consist of a Chief
Justice and such other judges as the President may from time to time deem it
necessary to appoint. 3 Article 217(2) provides for the sources of recruitment of
3 216. Constitution of High Courts.—Every High Court shall consist of a Chief Justice and such other Judges
as the President may from time to time deem it necessary to appoint.
6
judges of the High Court from the Bar or, as the case may be judicial service and
specifies the qualifications for appointment from the two sources. 4
10 Article 221, in its present form, is in the following terms:
4 217. Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High
Court shall be appointed by the President by warrant under his hand and seal 222[on the
recommendation of the National Judicial Appointments Commission referred to in Article 124-A], and
223[shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any
other case, until he attains the age of sixty-two years:
Provided that—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of
Article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the
Supreme Court or by his being transferred by the President to any other High Court within the territory of
India.
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of
India and—
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in
succession;
Explanation.—For the purposes of this clause—
(a) in computing the period during which a person has held judicial office in the territory of India, there
shall be included any period, after he has held any judicial office, during which the person has been an
advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or
a State, requiring special knowledge of law;
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;
(b) in computing the period during which a person has held judicial office in the territory of India or been
an advocate of a High Court, there shall be included any period before the commencement of this
Constitution during which he has held judicial office in any area which was comprised before the
fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been
an advocate of any High Court in any such area, as the case may be.
(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the
President after consultation with the Chief Justice of India and the decision of the President shall be final.
7
“221. Salaries etc. of Judges—(1) There shall be
paid to the Judges of each High Court such
salaries as may be determined by Parliament
by law and, until provision in that behalf is so
made, such salaries as are specified in the
Second Schedule.
(2) Every Judge shall be entitled to such
allowances and to such rights in respect of
leave of absence and pension as may from
time to time be determined by or under law
made by Parliament and, until so determined,
to such allowances and rights as are specified
in the Second Schedule:
Provided that neither the allowances of a
Judge nor his rights in respect of leave of
absence or pension shall be varied to his
disadvantage after his appointment.”
11 Clause (1) of Article 221 was substituted by the Constitution (54th Amendment) Act
1986. Prior to its substitution, Clause (1) stipulated that there shall be paid to the
judges of each High Court, such salaries as are specified in the Second Schedule. By
the substitution of Clause (1), the salaries which are payable to Judges of the High
Court are determined by Parliament by law and until such determination is made,
were to be governed by the salaries specified in the Second Schedule. Clause (2) of
Article 221 provides that every Judge shall be entitled to allowances and to such
rights in respect of leave of absence and pension, as may be determined by law
made by Parliament from time to time. The proviso to Clause (2), however, contains
a guarantee that neither the allowances nor the rights of a Judge in respect of
leave of absence or pension would be varied to their disadvantage after their
appointment.
12 Article 202(3) provides for expenditures which should be charged on the
Consolidated Fund of each State. Sub-clause (d) stipulates that expenditure in
8
respect of the salaries and allowances of Judges of a High Court would fall in that
category5. However, Article 112(3)(d)(iii) stipulates that the pensions payable to or in
respect of Judges of any High Court which exercises jurisdiction in relation to any
area included, inter alia, in the territory of India would be charged to the
Consolidated Fund of India. 6
13 The constitutional scheme for High Court Judges is unique in that the salaries and
allowances payable to Judges of the High Court which are determined by a law
enacted by Parliament are charged to the Consolidated Fund of each State under
Article 202(3)(d). However, the pensionary payments payable to the Judges of the
High Court in pursuance of a law enacted by Parliament under Article 221(2) are
charged to the Consolidated Fund of India by virtue of Article 112(d)(3). Elaborate
provisions have thus been made by the Constitution to secure the independence of
the Indian Judiciary by providing Judges a measure of financial independence both
during their term of office and after retirement.
5 202 Annual financial statement
(3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State—
…
(d) expenditure in respect of the salaries and allowances of Judges of any High Court
6 112 Annual financial statement
(3) The following expenditure shall be expenditure charged on the Consolidated Fund of India—
…
(d)(i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court,
(ii) the pensions payable to or in respect of Judges of the Federal Court,
(iii) the pensions payable to or in respect of Judges of any High Court which exercises jurisdiction in
relation to any area included in the territory of India or which at any time before the commencement of
this Constitution exercised jurisdiction in relation to any area included in a Governor’s Province of the
Dominion of India
9
14 At this stage, it would be material to note that Section 221 of the Government of
India Act 1935 contained the following provisions in regard to the payment of
salaries and allowances for Judges of the High Court :
“221. The judges of the several High Courts shall
of be entitled to such salaries and allowances,
including allowances for expenses in respect of
equipment and travelling upon appointment,
and to such rights in respect of leave and
pensions, as may from time to time be fixed by
His Majesty in Council:
Provided that neither the salary of a judge, nor
his rights in respect of leave of absence or
pension, shall be varied to his disadvantage
after his appointment.”
15 The draft framed by the Constitutional Adviser, Sir B N Rau, contained a stipulation in
draft Article 165 by virtue of which the salaries and allowances of Judges of the High
Courts and matters pertaining to leave and pension would be determined by or
under an Act of the provincial legislature. Article 165 was in the following terms :
“165. The judges of the several High Courts
shall be entitled to such salaries and
allowances, including allowances for expenses
in respect of equipment and travelling upon
appointment, and to such rights in respect of
leave and pension, as may be from time to
time be determined by or under Act of the
Provincial Legislature, and until they are so
determine, shall be entitled to such salaries,
allowances, and rights in respect of leave and
pension as are specified in the Second
Schedule to this Constitution :
Provided that neither the salary of a judge, nor
his rights in respect of leave of absence or
pension, shall be varied to his disadvantage
after his appointment.”
10
16 In the draft Constitution, draft Article 197 also contemplated that the salaries and
allowances and matters of leave and pension would be governed by a law
enacted by the Legislature of the State 7.
17 During the course of the deliberations in the Drafting Committee, the words “the
legislature of the State in which the Court has its principal seat” were substituted by
“Parliament”. As a consequence of this, the Constitution did not leave it to the
wisdom of the legislature of each State to determine the salaries and allowances
payable to judges of the High Court or for that matter, issues pertaining to their rights
in respect of leave of absence and pension.
18 The constitutional history is of significance because it indicates the careful manner in
which provisions pertaining to salaries, allowances and pensions of the Judges of the
High Courts were drafted so as to preserve the independence of the judiciary. It is in
this backdrop that it becomes necessary to consider the position of a Judge of the
district judiciary who is subsequently appointed as a Judge of the High Court.
19 This Court has, on several occasions underlined the importance of financial
independence, and financial dignity for serving and retired judges of the district
judiciary. In the decision of this Court in All India Judges Association Vs Union of
7 The judges of each High Court shall be entitled to such salaries and allowances, and to such rights in
respect of leave and pensions, as may from time to time be fixed by or under law made by the
Legislature of the State in which the Court has its principal seat, and until they are so fixed, shall be
entitled to such salaries, allowances and rights in respect of leave of absence or pension as are
specified in the Second Schedule:
Provided that the salary of the Chief Justice of a High Court shall not be less than four thousand
rupees per month and the salary of any other judge of a High Court shall not be less than three
thousand and five hundred rupees per month:
Provided further that neither the salary of a judge nor his rights in respect of leave of absence or
pension shall be varied to his disadvantage after his appointment.
11
India 8, the nature of the inter-relationship between judicial independence and
financial independence has been reiterated in the following terms:
“13. Judicial service is an integral and significant
component of the functions of the State
and contributes to the constitutional
obligation to sustain the rule of law. Judicial
service is distinct in its characteristics and in
terms of the responsibilities which are cast
upon the officers of the District Judiciary to
render objective dispensation of justice to
citizens. The State is duty bound to ensure
that the conditions of service, both during
the tenure of office and after retirement, are
commensurate with the need to maintain
dignified working conditions for serving
judicial officers and in the post-retirement
emoluments made available to former
members of the judicial service. Members of
the district judiciary are the first point of
engagement for citizens who are
confronted with the need for dispute
resolution. The conditions in which judicial
officers across the country are required to
work are arduous. The work of a judicial
officer is not confined merely to the working
hours rendered in the course of judicial
duties in the court. Every judicial officer is
required to work both before and after the
court working hours. The judicial work of
each day requires preparation before cases
are called out. A judicial officer continues to
work on cases which may have been dealt
with in court, in terms of preparing the
judgment and attending to other
administrative aspects of the judicial record.
That apart, members of the district judiciary
have wide ranging administrative functions
which take place beyond working hours,
especially on week-ends including the
discharge of numerous duties in relation to
prison establishments, juvenile justice
institutions, legal service camps and in
general, work associated with the Legal
Services Act 1987.
14. The work of a Judge cannot be assessed
solely in terms of their duties during court
8 2024 INSC 26
12
working hours. The State is under an
affirmative obligation to ensure dignified
conditions of work for its judicial officers and
it cannot raise the defense of an increase in
financial burden or expenditure. Judicial
officers spend the largest part of their
working life in service of the institution. The
nature of the office often renders the
incumbent incapacitated in availing of
opportunities for legal work which may
otherwise be available to a member of the
Bar. That furnishes an additional reason why
post-retirement, it is necessary for the State
to ensure that judicial officers are able to
live in conditions of human dignity. It needs
to be emphasized that providing for judges,
both during their tenure and upon
retirement, is correlated with the
independence of the judiciary. Judicial
independence, which is necessary to
preserve the faith and confidence of
common citizens in the rule of law, can be
ensured and enhanced only so long as
judges are able to lead their life with a sense
of financial dignity. The conditions of service
while a judge is in service must ensure a
dignified existence. The post-retirement
conditions of service have a crucial bearing
on the dignity and independence of the
office of a judge and how it is perceived by
the society. If the service of the judiciary is
to be a viable career option so as to attract
talent, conditions of service, both for
working and retired officers, must offer
security and dignity.”
(emphasis supplied)
20 Members of the Bar who are appointed to the High Court are entitled to subscribe to
the General Provident Fund in terms of Section 20 of the Act of 1954. The issue is
whether such a benefit can be denied to a Judge of the High Court who was a
member of the district judiciary prior to their appointment as a Judge of the High
Court.
13
21 The High Courts are constitutional institutions. Their status as constitutional institutions
is recognised by Article 216. Article 216 does not make any distinction between the
source through which judges of the High Court are recruited. It stipulates that a High
Court shall consist of a Chief Justice and such other judges as the President may
from time to time deem it necessary to appoint. In other words, once appointed to
the High Court, every Judge ranks at par. Once appointed, no distinction can be
made between judges for the purpose of the payment of salary and for extending
other service conditions both during and after they cease to be in service.
22 Article 217, which provides for the appointment and conditions of service of a Judge
of the High Court specifies the sources from which the judges are drawn, namely, the
district judiciary, and the Bar. The source from which the judges of the High Court are
appointed, however, has no bearing on the position that once appointed to the
High Court, all judges constitute a homogenous class without distinction. Making a
distinction between judges of the High Court based on whether they were drawn
from the Bar or, as the case may be, the district judiciary and to place judges drawn
from either of the sources at a relative disadvantage would fundamentally militate
against the sense of homogeneity which is envisaged by the constitutional
provisions, particularly, Article 216.
23 Apart from the principle underlying the creation of a homogenous class of judges
appointed to the High Courts, the Constitution has made specific provisions which
guarantee financial independence of judges. Financial independence for judges is
a necessary ingredient of maintaining judicial independence. The Constitution
made a departure from the provisions of the Government of India Act 1935 under
14
which the salaries and allowances as well as pension payable to judges of the High
Court were to be determined by an Act of the provincial legislature.
24 Though, initially, a similar provision was contained in the draft articles of the
Constitution, a conscious departure was made in the Constitution as it was framed.
Before the 54th Amendment, the Constitution provided that the salaries of judges
would be such as are specified in the Second Schedule. After the said Constitutional
amendment which was brought into force on 1 April 1986, the salaries of judges of
the High Court are determined by Parliament by law. Likewise, matters pertaining to
allowances, leave of absence and pension are governed by Parliamentary
enactments. The object of providing for a Parliamentary determination of service
conditions, in particular, the salary, allowances and pension was to bring about
national uniformity in the conditions of service both of sitting and former judges of
High Courts.
25 Clearly, therefore, it is not within the contemplation of the Constitution that the
payment of salaries and the extension of other benefits both during and after service
should be left to the vagaries of determination by individual States and the schemes
which are applicable to civil service officers discharging duties in each State. The
payment of salaries and allowances to sitting judges is charged to the Consolidated
Fund of every State in terms of Article 202(3)(d). The importance which was
attached to the payment of pension is clear from the fact that pensionary payments
are charged on the Consolidated Fund of India under Article 112(d)(3).
26 These provisions of the Constitution have been curated with care, based on the
overarching need to preserve judicial independence.
15
27 The principle of non-discrimination which animates Article 14 of the Constitution
applies a fortiori to the manner in which sitting and former judges of the High Court
are to be treated, irrespective of the source from which they are drawn. This
principle of non-discrimination was underscored in the decision of this Court in P
Ramakrishnam Raju Vs Union of India 9, where the Court held :
“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….
20. 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.
22. 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
a discrimination in the fixation of their pensions
depending upon the source from which they
were appointed is in breach of Articles 14 and
9(2014) 12 SCC 1
16
16(1) of the Constitution. One rank one pension
must be the norm in respect of a constitutional
office.”
28 This was reiterated recently in a decision of this Court in Union of India Vs Justice
(Retd) Raj Rahul Garg 10, where the Court held:
“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.”
emphasis supplied102024 INSC 219
17
29 This leaves the Court with the task of interpreting the provisions of Section 20 of the
Act of 1954. The substantive part of Section 20 stipulates that every Judge shall be
entitled to subscribe to the General Provident Fund (Services). The expression ‘every’
coupled with the expression ‘shall’ underlines the mandatory character of the
provision which does not brook any exception. However, what the proviso does is to
deal with the case of a Judge who has held any other pensionable civil post under
the State or Union. In terms of the proviso, such a Judge shall continue to subscribe
to the provident fund to which the Judge was subscribing before appointment as a
Judge. Properly construed, the proviso was not intended to be restrictive in nature.
Provisos can either be treated as exceptions or in the nature of an explanation to
the main provision. The proviso, in the present case, is more in the nature of an
explanation so as to allow a Judge who holds a pensionable post under the Union or
a State and who is subscribing to provident fund to continue to do so even after
appointment as a Judge of the High Court so as to ensure that the benefits which
have already accrued would not be disrupted.
30 The Attorney General placed reliance on the proviso to contend that Judges of the
district judiciary who are appointed after 1 April 2004, are governed by the New
Pension Scheme.
31 At this stage, it would be necessary to clarify that in the course of these proceedings,
we are not adjudicating on any issue pertaining to the applicability or the validity of
the New Pension Scheme since that issue is pending before this Court in
independent proceedings.
18
32 The simple issue before this Court is whether a member of the district judiciary, upon
appointment as a Judge of the High Court, would be entitled to the benefit of the
General Provident Fund which is available to all High Court judges under Section 20.
33 Unlike the payment of pensions where, as already noticed, there are different
provisions in Sections 14 and 15 of Chapter III of the Act of 1954, there is only one
specific provision in regard to the payment of provident fund which is contained in
Section 20. The proviso to Section 20 would have to be strictly construed and so
construed, it would have no application to the facts of the present situation. It is not
in dispute that members of the district judiciary appointed after 1 April 2004 did not
subscribe to any provident fund, in which event there was no question of applying
the proviso to deprive them of the benefit of the General Provident Fund which is
available under the substantive part of Section 20.
Conclusion
34 For the above reasons, we hold that:
(i) The High Courts are constitutional institutions and upon appointment as judges
of the High Court, all judges, irrespective of the source from which they are
drawn, partake the character of holders of constitutional offices in equal
measure;
(ii) Neither Article 221(1) of the Constitution which empowers Parliament to
determine the salaries of the Judges of the High Court nor Article 221(2) which
empowers Parliament to determine the allowances and rights in respect of
19the leave of absence and pension permits discrimination between judges of
the High Court based on the source from which they are drawn;
(iii) Article 217 of the Constitution specifies distinct sources of recruitment for
judges of the High Court from the district judiciary or, as the case may be, the
Bar. But once appointed to the High Court, all judges form one homogenous
class of constitutional office holders;
(iv) Judicial independence is a part of the basic structure of the Constitution and
there is an intrinsic relationship between financial independence of judges
and judicial independence;
(v) The significance of provisions pertaining to the guarantee of service
conditions, while in service and post retiral benefits for judges is evidenced by
the fact that the salaries and allowances of sitting judges and the pensions of
retired judges are in the nature of a charge on the Consolidated Fund of the
State and the Consolidated Fund of India respectively;
(vi) Any determination of the service benefits of sitting judges of the High Court
and the retiral benefits which are payable to them including pension, must
take place on the basis of the fundamental principle of non-discrimination
between judges of the High Court who constitute one homogenous group;
and
(vii) All judges of the High Court, irrespective of the source from which they are
drawn, are entrusted with the same constitutional function of discharging
duties of adjudication under the law. Once appointed as judges of the High
Court, their birthmarks stand obliterated and any attempt to make a
20
distinction between judges, either for the purpose of determining their
conditions of service while in service or any form of retiral dues would be
unconstitutional.
35 The communication which was addressed by the Under Secretary to the
Government of India in the Department of Law and Justice purportedly stated that
as judges appointed by direct recruitment to the State Judicial Service after the
adoption of the New Pension Scheme by the State Governments and subsequently
appointed as High Court Judges are covered by the Contributory Provident Scheme
of the State Government, they would not be eligible to subscribe to the General
Provident Fund. The letter is not only based on a mis-appreciation of the statutory
scheme underlying Section 20 of the Act of 1954 but is fundamentally at odds with
the constitutional status of judges of the High Court as a homogenous class.
36 The letter dated 30 December 2022 shall accordingly stand quashed and set aside.
In consequence, we allow the petitions by directing that a General Provident Fund
account shall be opened with effect from the date of appointment of every one of
the petitioners into which contributions shall be credited at par with all other judges
of the High Court irrespective of the source from which they were drawn.
37 The amounts which are lying to the credit of the petitioners in the New Pension
Scheme shall be returned to them within a period of four weeks from the date of this
judgment.
21
38 Pending applications, if any, stand disposed of.
………………….………………….…CJI.
[Dr Dhananjaya Y Chandrachud]
………………….………………….…..J.
[J B Pardiwala]
………………….………………….…..J.
[Manoj Misra]
New Delhi;
November 05, 2024
GKA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO 232 OF 2023
Justice Shailendra Singh & Ors … Petitioners
Versus
Union of India & Ors … Respondents
WITH
WRIT PETITION (CIVIL) NO 3 OF 2024
WRIT PETITION (CIVIL) NO 1262 OF 2021
ORDER
Writ Petition (Civil) No 1262 of 2021
1 The petitioner practiced as an advocate for about fourteen years and eight
months before joining the Uttar Pradesh Higher Judicial Service as an Additional
District and Sessions Judge on 8 September 1977. He was elevated as a
permanent Judge of the High Court of Judicature at Allahabad on 22 March
1996, after serving the district judiciary for eighteen years and six months. He
attained the age of superannuation on 26 August 2002 after serving for six years,
five months and six days as a Judge of the High Court.
1
2 A Pension Payment Order (PPO) was issued by the Office of the Accountant
General (A&E)-II U.P., Allahabad, by which his pensionary payments were
computed.
3 The grievance of the petitioner is that his pensionary payment has been
computed at a rate lower than those Judges who were elevated to the High
Court from the Bar.
4 The PPO dated 13 July 2018 contains the following tabulation.
5. Revised Pension with effect from 01-01-2016 : Pay Fixation/2.57 factor (Whichever is
beneficial)
(a) Basic Pension Rs.107735/-
(b) Commuted Pension Rs.6224/-
(c) Reduced Pension (a-b) Rs.101511/-
(d) Family Pension (Enhanced Rate) N.A.
(e) Family Pension (Normal Rate) Rs.67500/-
(f) Additional Pension As applicable from time to time
6. Disbursing Bank
(a) Name of the Bank UNION BANK OF INDIA
(b) Paying Branch (BSR Code) UBIN 059856 BSR - 0290985
(c) Account No. 398502010101352
(d) Address Noida Main Branch Sector 29 B.P. Noida
2
5 Section 15 of the High Court Judges (Salaries and Conditions of Service) Act
1954 1 contains a special provision for the grant of pension to Judges who are
members of service. Section 15(1) is in the following terms:
“15. Special provision for pension in respect of Judges who are
members of service.— (1) Every Judge—* * * *
(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.”
6 The petitioner elected for pensionary payments under Part III of the First
Schedule, which is set out below:
“1. The provisions of this Part apply to a Judge who has held any
pensionable post under the Union or a State (but is not a member
of the Indian Civil Service) and who has not elected to receive
the pension payable under Part I.
2. The pension payable to such a Judge shall be—
(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]1Act No 28 of 1954
3
per annum in the case of a Chief Justice and [Rs. 13,50,000] per
annum in the case of any other Judge.”
7 In terms of clause (2) of Part III, the petitioner has to be paid (a) the pension to
which he would be entitled under the Rules of service if he were not appointed
as a Judge of the High Court; and (b) a special additional pension of Rs 45,016
per annum in respect of each completed year of service for pension.
8 Section 14A of Act 28 of 1954 provides for the addition of a period of ten years
with effect from 1 April 2004 for the purpose of pension to the service of a Judge
who is appointed as a Judge of the High Court under Article 217(2)(b) of the
Constitution. Article 217(2) provides for the qualifications for appointment as a
Judge of the High Court 2. Clause (a) provides for the appointment of a person
who has held judicial office for a period of at least ten years, while clause (b)
provides for an Advocate who has been an Advocate of a High Court for at
least ten years. Section 14A provides for an addition of a period of ten years for
the purpose of pension to persons who fall under Article 217(2)(b).
9 The issue is as to whether the petitioner would be entitled to the addition of a
similar benefit. In this context, it would be necessary to refer to the judgment of
this Court in Union of India vs Justice (Retd) Raj Rahul Garg 3, wherein it was held
thus:
2
217 Appointment and conditions of the office of a Judge of a High Court
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India
and—
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in
succession
3 2024 INSC 20094
““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.”(emphasis supplied)
10 The petitioner qualified for appointment as a Judge of the High Court since he
had held judicial office for at least ten years within the meaning of Article
217(2)(a). However, the petitioner was also a member of the Bar for over
fourteen years and eight months prior to his appointment as a Judge of the High
Court.
11 In this backdrop, we are of the view that it would be appropriate, particularly
having regard to the law which has been enunciated in the above decision, to
direct that the pensionary payments due to the petitioner be recomputed after
giving him the benefit of an addition of ten years of service. However, it is
5
clarified that the maximum basic pension which is payable to a Judge of the
High Court of Rs 13,50,000 per annum shall continue to apply to the petitioner.
The petitioner retired from service on 26 August 2002. The difference in
pensionary payments payable to the petitioner shall be computed with effect
from the date of his retirement within a period of three months and the arrears
that are due and payable in terms of the present order shall be paid over by 31
March 2025.
12 The petition is allowed in the above terms.
13 Pending applications, if any, stand disposed of.
………………….………………….…CJI.
[Dr Dhananjaya Y Chandrachud]
..………………….………………….…..J.
[J B Pardiwala]
………………….………………….…..J.
[Manoj Misra]
New Delhi;
November 5, 2024
CKB
6