Mohinder Verma
JAMMU, Apr 2: Bringing end to the discrimination with the Judges elevated from the Bar, the Supreme Court of India has issued directions for adding 10 years’ practice of an advocate as a qualifying service for the pensionary benefits of the Judges elevated from the Bar. The Apex Court has also issued directions for carrying out requisite amendments in the High Court Judges Rules with regard to post-retiral benefits as has been done in relation to the retired Judges of the Supreme Court.
Deciding bunch of writ petitions filed by former Judges of the various High Courts of the country as well as by the Association of Retired Judges of the Supreme Court and the High Courts elevated from the Bar, Supreme Court Bench comprising Chief Justice of India, P Sathasivam, Justice Ranjan Gogoi and Justice N V Ramana observed, “the main question, which arises for consideration is whether High Court Judges, who are appointed from the Bar under Article 217(2)(b) of the Constitution of India, on retirement, are entitled for an addition of 10 years to their service for the purpose of their pension”.
“The petitioners have prayed that the number of years practiced as an advocate shall be taken into account and added to the service as a Judge of the High Court for the purpose of determining the maximum pension permissible under Part-I of the First Schedule to the High Court Judges (Salaries and Conditions of Service) Act, 1954”, the SC Bench said.
In respect of Part-III of the First Schedule, which deals with the Judges elevated from the State Judicial Service, almost all the Judges get full pension even if they have worked as a Judge of the High Court for two or three years and their entire service is added to their service as a Judge of the High Court for computing pension under this Part. Due to this, the members of the Subordinate Judiciary get more pension than the Judges elevated from the Bar on retirement.
“The petitioners have prayed that though Part-I and Part-III Judges hold equivalent posts, they are not similarly situated in regard to pension and retirement benefits which is the breach of Articles 14 and 21 of the Constitution of India and one rank one pension must be the norm in respect of a constitutional office”, the Supreme Court observed.
In the detailed judgment written by the Chief Justice of India, it has been mentioned that the appointment of a Judge of the High Court is governed by Article 217(2)(a) and (b) of the Constitution, which envisages appointments from two different sources—from amongst the Judicial Officers, who have held the office for at least 10 years, and the members of the Bar, who have been Advocates of a High Court for at least 10 years.
“It is submitted that when the members of the Bar are offered the post of High Court Judges, they are generally at the age of about 50 years or above and at the prime of their practice, which they have to give up to serve the system. Therefore, many of them are reluctant to accept the offer as the post-retirement benefits are not attractive enough”, the Supreme Court said.
The Supreme Court observed that in the three-tier judicial system provided by the Constitution, members of the Bar, who join the Higher Judicial Service at the District Judges level, on retirement, get the benefit of 10 years addition to their service for the purposes of pension. Similarly, Judges of the Supreme Court, who are appointed from the Bar given a period of 10 years to their service for the purposes of pension. However, the benefit of 10 years addition to their service for the purposes of pension is being denied to the Judges of the High Court appointed from the Bar, which is arbitrary and violative of Article 14 of the Constitution of India.
It is pertinent to mention here that to remove this discrimination, it was resolved in the Chief Justices Conference held in April 2013 that for pensionary benefits, 10 years’ practice as an advocate be added as a qualifying service, for Judges elevated from the Bar.
“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, allowances and perks as serving Judges”, the Supreme Court Bench said, adding “the experience and knowledge gained by a successful lawyer at the Bar can never be considered to be less important from any point of view vis-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”.
With these observations, the Supreme Court declared that for pensionary benefits, 10 years’ practice as an advocate shall be added as a qualifying service for Judges elevated from the Bar. “In order to remove arbitrariness in the matter of pension of the Judges of the High Court elevated from the Bar, the reliefs are to be reckoned from April 1, 2004, the date on which Section 13A was inserted by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2005.
The Supreme Court directed that the requisite amendment be carried out in the High Court Judges Rules, 1956 with regard to post-retiral benefits as has been done in relation to the retired Judges of the Supreme Court in terms of amendment carried out by Rule 3B of the Supreme Court Judges Rules, 1959.
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