SC: Equal pension for Judges


Court :
Supreme Court of India

Brief :
The bench comprising of Justice P. Sathasivam. Justice Ranjan Gogoi and Justice N.V. Ramana held that for the purpose of determing pension, ten years practice as an Advocate should be added as a qualifying service for Judges elevated from the Bar. The Court observed that: "In the light of what is discussed, we accept the petitioners’ claim and declare that for pensionary benefits, ten years’ practice as an advocate be added as a qualifying service for Judges elevated from the Bar. Further, in order to remove arbitrariness in the matter of pension of the Judges of the High Courts elevated from the Bar, the reliefs, as mentioned above are to be reckoned from 01.04.2004, the date on which Section 13A was inserted by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2005 (46 of 2005). Requisite amendment be carried out in the High Court Judges Rules, 1956 with regard to post-retiral benefits as has been done in relation to the retired Judges of the Supreme Court in terms of amendment carried out by Rule 3B of the Supreme Court Judges Rules, 1959"

Citation :
Kuldip Singh vs. Union of India, (2002) 9 SCC 218 Govt. of NCT of Delhi & Ors. vs. All India Young Lawyers’ Association (Registered) And Another, (2009) 14 SCC 49 Union of India vs. Devki Nandan Agarwal, AIR 1992 SC 196 All India Judges Association vs. Union of India, AIR 1992 SC 165 All India Judges Association vs. Union of India, AIR 1993 SC 2493

        REPORTABLE

 

IN THE SUPREME COURT OF INDIA

 CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 521 OF 2002

 

P. Ramakrishnam Raju          .... Petitioner (s)

Versus

Union of India & Ors.                                    .... Respondent(s)

     

WITH 

WRIT PETITION (CIVIL) NO. 523 OF 2002

WRIT PETITION (CIVIL) NO. 524 OF 2002

WRIT PETITION (CIVIL) NO. 37 OF 2003

WRIT PETITION (CIVIL) NO. 38 OF 2003

WRIT PETITION (CIVIL) NO. 465 OF 2005

AND

CIVIL APPEAL NOS.4248-4249 OF 2014

(Arising out of S.L.P. (C) Nos. 9558-9559 of 2010)

J U D G M E N T

P.Sathasivam, CJI.

1) The  main  question  which  arises  for  consideration  is 

whether High Court Judges, who are appointed from the Bar 

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under  Article  217(2)(b)  of  the  Constitution  of  India,  on 

retirement,  are entitled for an addition of 10 years to their 

service for the purposes of their pension? 

2) The above petitions have been filed by former Judges of 

the various High Courts  of  the country as  well  as  by the 

Association of the Retired Judges of the Supreme Court and 

the High Courts elevated from the Bar.

3) The petitioners have prayed that the number of years 

practiced as an advocate  shall  be taken into account  and 

shall be added to the service as a Judge of the High Court for 

the  purpose  of  determining  the  maximum  pension 

permissible under  Part-I  of  the First  Schedule to  the High 

Court Judges (Salaries and Conditions of Service) Act,  1954 

(in short ‘the HCJ Act’).  It was further stated that in respect 

of Part-III of the First Schedule, which deals with the Judges 

elevated from the State Judicial Service, almost all the Judges 

get full pension even if they have worked as a Judge of the 

High Court for 2 or 3 years and their entire service is added 

to their service as a Judge of the High Court for computing 

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pension under this Part.  For this reason, the members of the 

subordinate  judiciary  get  more  pension  than  the  Judges 

elevated from the Bar on retirement.

4) In view of the above, the petitioners prayed that though 

Part-I and Part-III Judges hold equivalent posts, they are not 

similarly  situated  in  regard  to  pension  and  retirement 

benefits  which  is  breach  of  Articles  14  and  21  of  the 

Constitution of India and one rank one pension must be the 

norm in respect of a constitutional office.   It is further prayed 

that  the retired Judges  of  the High Courts  should also be 

given  enhanced  allowance  for  domestic  help/peon/driver, 

telephone expenses and other secretarial assistance.    

5) We have  heard the  arguments  advanced by learned 

counsel for the parties and perused the records.

6) The Constitution of India provides for three-tier judicial 

system.  The Union Judiciary-Establishment and Constitution 

of  Supreme Court  of  India (Articles 124 to 147);  The High 

Courts in the States (Articles 214 to 231) and Subordinate 

Courts (Article 233 to 237).   The Constitution of India also 

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provides  for  appointment  of  Judges  from  amongst  the 

members of the Bar at all the three levels.  

7) The appointment of the Judges of the Supreme Court is 

governed  by  Article  124(3),(a),  (b)  and  (c)  of  the 

Constitution.  It envisages appointment from three sources: 

(i) from amongst the Judges of the High Court having service 

of at least five years; (ii) the members of the Bar having a 

standing of not less than 10 years; and (iii) any person, who 

is, in the opinion of the President, is a distinguished jurist. 

8) The  appointment  of  a  Judge  of  the  High  Court  is 

governed by  Article  217(2)(a)  and (b)  of  the  Constitution 

which envisages appointments  from two different  sources: 

(a)  from amongst  the  Judicial  officers  who have  held the 

office for at least 10 years; and (b) the members of the Bar, 

who have been Advocates of  a High Court  for  at  least  10 

years. 

9) The  appointment  of  District  Judges  is  governed  by 

Article  233(2)  of  the  Constitution  which  provides  that  a 

person not already in the service of the Union or of the State 

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shall only be eligible to be appointed as a district judge if he 

has been for  not  less than seven years an advocate  or  a 

pleader  and  is  recommended  by  the  High  Court  for 

appointment. 

10) The  Supreme  Court  Judges  (Salaries  & Conditions  of 

Service) Act, 1958, (in short ‘the SCJ Act’), the HCJ  Act and 

the  Rules  made  thereunder,  regulate  their  salary  and 

conditions of  service.   The provisions under  both the Acts 

were similar prior to the Amendment Act, 2005.  The service 

conditions  of  the  Judges  of  the  subordinate  courts  are 

governed by the Service Rules made under Article 309 of the 

Constitution of India. 

11) Section 13 of the SCJ Act read with Clause 2 of Part-I of 

the Schedule deals with the pension payable to the retired 

Judges of the Supreme Court.  Similarly, Section 14 of the HCJ 

Act read with Clause 2 of Part-I  of the First Schedule deals 

with the pension payable to the retired Judges of the High 

Courts.  The provisions under both the Acts were similar prior 

to the Amendment Act, 2005.  Relevant portion of Section 14 

of the HCJ Act reads as follows:

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“14.   Pension  payable  to  Judges.- Subject  to  the

provisions of this Act, every Judge shall, on his retirement,

be  paid  a  pension  in  accordance  with  the  scale  and

provisions in Part 1 of the First Schedule:

Provided that no such pension shall be payable to a Judge

unless-

a) he has completed not less than twelve years of service

for pension; or

b) he has attained the age of sixty-two years; or

c) his retirement is medically certified to be necessitated 

by ill-health;”

12) Clause 2 of Part-I to the First Schedule of the said Act 

deals  with the pension for  the retired Judges  of  the High 

Court, who are directly appointed from the Bar, which reads 

as under:-

“2. Subject to the other provisions of this part, the pension

payable to a Judge, to whom this part apply and who has

completed not  less  than 7 years  of  service  for  pension

shall be 

(a) for  service  as  Chief  Justice  in  any  High  Court,

Rs.43,890/- per annum for each completed year of service;

(b)  for  service  as  any  other  Judge  in  any  High  Court

Rs.34,350/- per annum for each completed year of service. 

Provided that the pension under this paragraph shall in no

case exceed Rs.5,40,000/- per annum in the case of Chief

Justice and Rs.4,80,000/- per annum in case of any other

Judges.”

13) The  above-noted  Clause  (2)  of  Part  I  of  the  First 

Schedule implies that  no pension is payable to the Judges 

having less than 7 years of service as a Judge.  The above 

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Section further shows that for a Judge of the High Court to 

receive full  pension benefits, he should have completed 12 

years of service as a Judge of the High Court.  It is submitted 

that when members of the Bar are offered the post of High 

Court Judges, they are generally at the age of about 50 years 

or above and at the prime of their practice, which they have 

to give up to serve the system.  Therefore, many of them are 

reluctant to accept the offer as the post-retirement benefits 

are not attractive enough. 

14) Section 13 and Clause 2 of the Schedule to the SCJ Act 

earlier  contained  similar  prohibition  with  regard  to  the 

eligibility of pension to the Judges appointed from the Bar as 

contained in the HCJ  Act.   Both the Acts  provide that  no 

pension shall  be payable to a Judge who has  less than 7 

years of service. 

15) In Kuldip Singh vs. Union of India, (2002) 9 SCC 218, 

the petitioner therein, who was appointed as a Judge of the 

Supreme Court from the Bar, on his retirement was denied 

the  benefit  of  pension  as  he  did  not  fulfill  the  requisite 

conditions.  Consequently, he filed a Writ Petition before this 

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Court praying, inter alia, (a) to take into account 10 years of 

practice at the Bar in addition to his service for the purposes 

of pension.  (b) In the alternative, prayed for a direction to 

treat the appointees under Article 124(3)(b) for the purposes 

of pension at par with the appointees under Article 124(3)(a). 

On 24.09.2002, while issuing notice,  this Court  passed the 

following order:-

“1. In  this  writ  petition,  the  question  which  arises  for

consideration  relates  to  pension  which  is  payable  to  a

Judge  who  retires  from  this  Court  after  having  been

appointed  directly  from the  Bar.  Similar  question  also

arises with regard to Bar appointees to the High Courts.

2. Experience  has  shown  that  the  Bar  appointees

especially, if they are appointed at the age of 50 years and

above,  get  lesser  pension  than  the  Service  Judge

appointees. It is to be seen that as far as the Constitution

of  India  is  concerned,  it  stipulates  the  manner  of

appointment  of  the  Judges  and  provides  what  may  be

termed as the qualification required for their appointment.

The  Constitution  contemplates  appointment  to  the High

Courts from amongst members of the Bar as well as from

amongst  the judicial  officers.  The  Constitution  does  not

provide  for  any  specific  quota.  Till  a  few years  ago  in

practice 66 2/3% of  vacancies were filled from amongst

members  of  the  Bar  and  33  1/3%  from  the  judicial

services.  It is only in the Conference of  4-12-1993 of  the

Chief  Ministers and the Chief Justices that it was decided

that  the number  of  vacancies from amongst  the judicial

officers “might go up to 40%”. The decision of 4-12-1993, 

cannot mean that the number of Judges from the services 

has  to  be  40%.  The  normal  practice  which  has  been 

followed was 2/3rds and 1/3rd from amongst members of

the Bar and judicial services respectively and it is only on

a rare occasion that the Chief Justice of a High Court can 

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propose more Service Judges being appointed if  suitable

members of the Bar are not available. But this cannot be

more than 40% in any case. It may here also be noted that

in  the  Chief  Justices’  Conference  held  in  1999,  it  was

unanimously resolved that  the quota should normally be

66  2/3%  and  33  1/3%  and  it  is  on  this  basis  the

Government  should determine the  likely  number  of  Bar 

Judges and then consider whether the High Court  Judges 

who are appointed from amongst the members of the Bar 

should not be given the same weightage as is now sought 

to be given to the members of the Bar who are appointed 

to this Court as far as pension is concerned.” 

      (Emphasis

supplied)

16) The Government, vide Amendment Act, 2005 (46/2005), 

added Section 13A to the SCJ Act which reads as under:

“Subject to the provision of this Act, a period of ten years

shall be added to the service of a Judge for the purpose of 

his pension, who qualified for appointment as such Judge

under  sub-clause (b)  of  Clause (3)  of  Article 124 of  the

Constitution.”

Therefore, the condition of minimum 7 years of service as a 

Judge to become eligible for pension was omitted from the 

Section as well as from Clause 2 of its Schedule.  In view of 

the  amendment,  the  said  writ  petition  was  dismissed  as 

withdrawn on 06.12.2005.  However, petitioner’s writ petition 

and other connected matters remained pending. 

17) In Govt. of NCT of Delhi & Ors. vs. All India Young 

Lawyers’ Association (Registered) And Another, (2009) 

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14 SCC 49, a Lawyers’ Association filed a writ petition in the 

High Court  of  Delhi  praying therein that  the benefit  of  15 

years  addition  of  service  be  given  to  the  Judge,  who  is 

directly appointed from the Bar to the Higher Judicial Service 

for the purposes of pension.  The writ petition was allowed 

and Rule 26B was ordered to be added to the Delhi Higher 

Judicial  Service  Rules,  1970.   The  Govt.  of  NCT,  Delhi 

challenged  the  said  judgment  and  order  and  this  Court 

upheld the validity of Rule 26B,  however,  the period to be 

added  to  the  service  for  the  purposes  of  pension,  was 

reduced to 10 years or actual practice at the Bar whichever 

is less.  

18) In  the  three-tier  judicial  system  provided  by  the 

Constitution, members of the Bar, who join the Higher Judicial 

Service at  the District Judges level,  on retirement,  get  the 

benefit of 10 years addition to their service for the purposes 

of  pension  (Rule  26B of  the  DHJS  Rules).   Judges  of  the 

Supreme  Court,  who are  appointed from the  Bar  given a 

period of 10 years to their service for the purposes of pension 

(Section 13A of the Amendment  Act,  2005).   However,  the 

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benefit of 10 years addition to their service for the purposes 

of pension is being denied to the Judges of the High court 

appointed from the Bar,  which is arbitrary and violative of 

Article 14 of the Constitution of India. 

19) The Explanation (aa) appended to Article 217(2) of the 

Constitution of India envisages that, “in computing the period 

during which a person has been an advocate of a High Court, 

there shall  be included any period during which the person 

has held judicial office or the office of a member of a tribunal 

or  any post,  under  the Union or  a State,  requiring special 

knowledge  of  law after  he  became  an  advocate.”   The 

explanation thus treats the experience of an Advocate at the 

Bar and the period of judicial office held by him at par.

20) The Judges, who are appointed under Article 217(2)(a) 

being members of the Judicial Service, even if they serve as a 

Judge of the High Court for only one or two years,  get  full 

pension benefits because of the applicability of Rule 26B or 

because of their earlier entry into judicial service.  However, 

the Judges of the High Court, who are appointed from the Bar 

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do not get similar benefit of full  pension, which is arbitrary 

and discriminatory. 

21) Section 14 of the HCJ Act and Clause 2 of Part I of the 

First Schedule which governs the pension payable to Judges 

gives rise to unequal  consequences.  The existing scheme 

treats unequally the equals, which is violative of Articles 14 

and 21 of the Constitution of India. 

22) To  remove  the  above  discrimination,  in  the  Chief 

Justices Conference held on April 5 and 6, 2013, it was, inter 

alia,  resolved  that,  “for  pensionary  benefits,  ten  years’ 

practice as an advocate be added as a qualifying service, for 

Judges elevated from the Bar.” (Resolution No.18 (viii).   It 

fully supports the petitioner’s submission.  

23) The ratio of  the  decision cited by the respondent  in 

Union of India vs.  Devki Nandan Agarwal, AIR 1992 SC 

196 is not applicable because the reliefs prayed therein were 

entirely different and also because it is per incuriam in view 

of the subsequent decisions of this Court of equal strength in 

All India Judges Association vs. Union of India, AIR 1992 

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SC 165; and  All  India Judges Association vs.  Union of 

India,  AIR  1993  SC  2493  wherein  the  requirement  of 

independence of the judiciary have been underlined as also 

two decisions cited above i.e. Kuldip Singh (supra) and All  

India Young Lawyers’ Association (supra).  

24) When persons who occupied the Constitutional Office of 

Judge,  High  Court  retire,  there  should  not  be  any 

discrimination with regard to the fixation of  their  pension. 

Irrespective of the source from where the Judges are drawn, 

they must be paid the same pension just as they have been 

paid  same  salaries  and  allowances  and  perks  as  serving 

Judges.   Only  practicing  Advocates  who  have  attained 

eminence are invited to accept Judgeship of the High Court. 

Because of the status of the office of High Court Judge, the 

responsibilities and duties attached to the office, hardly any 

advocate of distinction declines the offer.  Though it may be 

a great  financial  sacrifice to a successful  lawyer  to accept 

Judgeship, it is the desire to serve the society and the high 

prestige attached to  the office and the respect  the office 

commands  that  propel  a  successful  lawyer  to  accept 

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Judgeship.   The  experience  and  knowledge  gained  by  a 

successful lawyer at the Bar can never be considered to be 

less important from any point of view vis-a-vis the experience 

gained by a judicial officer.  If the service of a judicial officer 

is counted for fixation of pension, there is no valid reason as 

to why the experience at Bar cannot be treated as equivalent 

for the same purpose.

25) The fixation of higher pension to the Judges drawn from 

the Subordinate Judiciary who have served for shorter period 

in contradistinction to Judges drawn from the Bar who have 

served  for  longer  period  with  less  pension  is  highly 

discriminatory and breach of Article 14 of the Constitution. 

The classification itself  is unreasonable without  any legally 

acceptable nexus with the object sought to be achieved.

26) The meager pension for Judges drawn from the Bar and 

served for less than 12 years on the Bench adversely affects 

the  image  of  the  Judiciary.   When  pensions  are  meager 

because of the shorter service, lawyers who attain distinction 

in the profession may not, because of this anomaly, accept 

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the office of Judgeship.  When capable lawyers do not show 

inclination towards Judgeship, the quality of justice declines.

27) In most of the States, the Judgeship of the High Court is 

offered  to advocates  who are  in  the  age  group of  50-55 

years, since pre-eminence at the Bar is achieved normally at 

that  age.   After  remaining at  the  top for  a  few years,  a 

successful lawyer may show inclination to accept Judgeship, 

since that is the culmination of the desire and objective of 

most  of  the lawyers.   When persons holding constitutional 

office  retire  from  service,  making  discrimination  in  the 

fixation of  their  pensions depending upon the source from 

which they were appointed is in breach of  Articles 14 and 

16(1) of the Constitution.  One rank one pension must be the 

norm in respect of a Constitutional Office.

28) When a Civil  Servant  retires  from service,  the family 

pension is  fixed at  a  higher  rate  whereas  in the  case  of 

Judges  of  the High Court,  it  is  fixed at  a lower  rate.   No 

discrimination can be  made  in the  matter  of  payment  of 

family pension.   The expenditure for  pension to  the High 

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Court  Judges is charged on the Consolidated Fund of India 

under Article 112(3)(d)(iii) of the Constitution.

29) In  the  light  of  what  is  discussed,  we  accept  the 

petitioners’  claim and declare that  for pensionary benefits, 

ten years’ practice as an advocate be added as a qualifying 

service for Judges elevated from the Bar.  Further, in order to 

remove arbitrariness in the matter of pension of the Judges 

of  the  High Courts  elevated from the  Bar,  the  reliefs,  as 

mentioned above are to be reckoned from 01.04.2004, the 

date on which Section 13A was inserted by the High Court 

and  Supreme  Court  Judges  (Salaries  and  Conditions  of 

Service)  Amendment  Act,  2005  (46  of  2005).   Requisite 

amendment  be carried out in the High Court Judges Rules, 

1956 with regard to post-retiral benefits as has been done in 

relation to the retired Judges of the Supreme Court in terms 

of amendment carried out by Rule 3B of the Supreme Court 

Judges Rules, 1959.

Civil Appeal Nos.4248-4249 of 2014

(Arising out of S.L.P. (C) Nos. 9558-9559 of 2010

30) Leave granted.

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31) At  the instance of the Association of retired Judges of 

the Supreme Court and High Courts,  the Division Bench of 

the  High  Court  of  Rajasthan  at  Jaipur  directed  the  State 

Government  to  pay  a  sum of  Rs.9,000/-  per  month  to  a 

retired Chief Justice of the High Court to meet expenses of 

domestic  help/peon/driver/telephone  expenses  and 

secretarial  assistance etc.  and Rs.  7,500/-  per  month to a 

retired Judge of the High Court for the same purposes.  The 

said order shall  be effective from 01.02.2010.  Questioning 

the same, the State of Rajasthan has filed the above appeal. 

32) With reference to the above claim and the order of the 

High Court,  in the Conference of  Chief  Ministers and Chief 

Justices of the High Courts held on 18.09.2004, the following 

Resolution was passed: 

“18. Augmenting of post-retiral benefits of Judges.  

Xxx xxxxx

[vi] As regards post-retiral benefits to the retired Judges of 

the High Courts,  the scheme sanctioned by the State of

Andhra Pradesh be adopted and followed in all the States,

except where better benefits are already available.”

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33) It is brought to our notice that in pursuance of the said 

Resolution, most of the States in the country have extended 

various post-retiral benefits to the retired Chief Justices and 

retired Judges of the respective High Courts.  By G.O.Ms.No. 

28  dated  16.03.2012  issued  by  Law  Department, 

Government  of  Andhra  Pradesh  sanctioned  an  amount  of 

Rs.14,000/-  per  month  to the retired Chief  Justices  of  the 

High Court of Andhra Pradesh and an amount of Rs.12,000/- 

per month to the retired Judges of the High Court of Andhra 

Pradesh  for  defraying  the  services  of  an  orderly,  driver, 

security  guard  etc.  and  for  meeting  expenses  incurred 

towards  secretarial  assistance  on  contract  basis  and  a 

residential telephone free of cost with number of free calls to 

the extent of 1500 per month over and above the number of 

free calls per month allowed by the telephone authorities to 

both the retired Chief Justices and Judges of the High Court of 

Andhra Pradesh w.e.f. 01.04.2012.  

34) While appreciating the steps taken by the Government 

of  Andhra  Pradesh  and  other  States  who  have  already 

formulated such scheme,  by this order,  we hope and trust 

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that the States who have not so far framed such scheme will 

formulate the same,  depending on the local  conditions,  for 

the benefit of the retired Chief Justices and retired Judges of 

the respective High Courts  as early as possible preferably 

within a period of six months from the date of receipt of copy 

of this order. 

35) All the Writ Petitions and the appeals are disposed of on 

the above terms. In view of the disposal of the writ petitions, 

no orders are required in the intervention application.       

    

NEW DELHI;

MARCH 31, 2014.

.…….…………………………CJI.    

                (P. SATHASIVAM)                                 

        ………….…………………………J.  

               (RANJAN GOGOI)                                  

………….…………………………J. 

               (N.V. RAMANA)                                  

19

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Vineet Kumar
on 02 April 2014
Published in Constitutional Law
Views : 1123


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