"All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society" wrote Edmund Burke. This observation was quoted by the 21st Chief Justice of India Rangnath Mishra led bench in the judgment in first All India Judges Association (AIJA) case.
The bench of 50th Chief Justice of India Dr. D. Y. Chandrachud and Justices JB Pardiwala and Manoj Misra heard the issue of non-compliance with the directions of payment of arrears to judicial officers in terms of the Second National Judicial Pay Commission recommendations on August 27, 2024. It directed the States and Union Territories to disburse the funds within 4 weeks from the date of claims raised by Judicial Officers for clearance of arrears and allowances in terms of Court's previous directions. They had to comply till August 20, 2024. So far only Tamil Nadu, Himachal Pradesh, Meghalaya and Madhya Pradesh have complied with the directions. It is likely to be listed again on October 1, 2024.
On August 22, 2024, the 3-judge bench headed by 50th Chief Justice of India has recorded in its order that K Parameshar, amicus curiae has submitted that as per the responses received from the States/Union Territories, "the following States/UTs have still not complied with the orders of this Court dated 27 July 2022, 19 May 2023 and 4 January 2024:
(i) Tamil Nadu
(ii) Madhya Pradesh
(iii) Andhra Pradesh
(iv) West Bengal
(v) Chhattisgarh
4(vi) Delhi
(vii) Assam
(viii) Nagaland
(ix) Meghalaya
(x) Himachal Pradesh
(xi) J&K
(xii) Ladakh
(xiii) Jharkhand
(xiv) Kerala
(xv) Bihar
(xvi) Haryana
(xvii) Odisha"
The order reads: "We direct that, in terms of the previous directions, the Chief Secretaries and the Finance Secretaries of the aforesaid States shall remain personally present in Court on 27 August 2024 at 10.30 am."
All India Judges Association (AIJA) filed a fresh case in the Supreme Court on July 20, 2015. It was registered on September 7, 2015. It was "admitted" on September 6, 2022. It prayed for the formation of All India Judicial Commission "to review the service conditions of the judicial officers of subordinate judiciary in India including but not limited to Pay Scale, Retirement Age, Pension and other emoluments”. The I.As. in W.P.(C) No. 1022 of 1989, arising out of similar issue, is pending before the Court. It was filed on September 15, 1989. The first judgement in case was delivered November 13, 1991 by a 3-judge bench of 21st Chief Justice of India and Justices A M Ahmadi and P.B. Sawant. The judgement of the Court was delivered by Chief Justice Mishra. Its directions are as under:
(i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(ii) Steps should be taken to bring about uniformity in designation officers both in civil and the criminal side by 31.3.1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31.12. 1992.
(iv) As and when the Pay Commissions/Committees are set up in the States and Union Territories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to be provided by 30.6.1992. Provision for sumptuary allowance as stated has to be made.
(vi) Residential accommodation to every judicial officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them in the manner indicated by 31.12.1992. In providing residential accommodation, availability of an office room should be kept in view.
(vii) Every District Judge and Chief Judicial Magistrate should have a State Vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits as specified.
(viii)Inservice Institute should be set up within one year at the Central and State or Union Territory level.
Subsequently, a case by it was admitted on March 16, 2015. The show cause notice was issued to all 67 respondents by speed post on September 18, 2015. The Court's order dated March 8, 2017 underlined the need for collection of certain data from the States, Union of India and the High Courts by a Commission with a terms of reference which is competent to collect a data as was done earlier by the orders of the Court by appointing the Shetty Commission.
The order dated May 9, 2017 passed by Supreme Court's bench of Justices J. Chelameswar and Abdul Nazeer recorded that Government of India has since filed the draft Terms of Reference. The agreed Terms of Reference reads:-
a. To evolve the principles which should govern the structure of pay and other emoluments of Judicial Officers belonging to the sub-ordinate judiciary all over the country.
b. To examine the present structure of emoluments and conditions of service of Judicial Officers in the states and UT's taking into account the total packet of benefits available to them and make suitable recommendations including post retirement benefits such as pension etc. having regard among other relevant factors, to the existing relativities in the pay structure between the officers belonging to sub-ordinate judicial services vis-a-vis other civil servant and mechanism for redressal of grievances in this regard.
c. ... x x x x ...
d. To examine the work methods and work environment as also the variety of allowance and benefits in kind that are available in Judicial Officers in addition to pay and to suggest rationalization and simplification thereof with a view to promoting efficiency in Judicial Administration, optimizing the size of judiciary etc. and to remove anomalies created in implementation of earlier recommendations.
e. To consider and recommend such interim relief as it considers just and proper to all categories of Judicial Officers of all the States/Union Territories. The interim relief, if recommended, shall have to be fully adjusted against and included in the package which may become admissible to the Judicial Officers on the final recommendations of the Commission.
f. To recommend the mechanism for setting up of a permanent mechanism to review the pay and service conditions of members of sub-ordinate judiciary periodically by an independent commission exclusively constituted for the purpose and the composition of such commission should reflect adequate representation on behalf of the judiciary.
The Commission will make its recommendations as soon as feasible. It may consider, if necessary, sending reports on any of the matters as and when the recommendations are finalized. It shall make its recommendations to the State Governments. The Commission will devise its own procedure and may appoint such advisers, institutional consultants and experts as it may consider necessary for any particular purpose. It may call for such information and take such evidence as it may consider necessary. All State Governments, UT Administrations and the Ministries/Departments of the Central Government will furnish such information, documents and other assistance as required by the Commission.”
Taking not of the submission of the government, the Court appointed a Commission headed by Justice P. Venkatarama Reddi, a former Judge of the Supreme Court, who would act as a Chairman of the Commission, and Justice R. Basant, a former Judge of the Kerala High Court and a Senior Advocate of Supreme Court, to be the Member of the Commission. It requesedt the Commission to complete the collection of data and make appropriate recommendations and submit a copy of the same to the Court preferably within a period of 18 months. The Court's order reads: "As and when a copy of the report is submitted, the matter be listed for further orders."
On March 20, 2018, Supreme Court's bench of Justices J. Chelameswar and S. K. Kaul passed an order in Justice M. Vijayaraghavan vs. Union of India saying, "Our attention has been drawn to judicial pronouncements including of 3-Judges Bench qua issue of principles of equality for pension amongst Judges of the High Court. We are of the view that considering the importance of the matter as also some of the observations made in the judgments, it would be appropriate that this matter be examined by a larger Bench. Registry is directed to place the papers before Hon’ble the Chief Justice of India for constitution of a Bench of appropriate strength."
The order dated March 27, 2018 by bench of Justices Chelameswar and Kaul stated that the Committee appointed by this Court by the Orders of this Court dated 9.5.2017, submitted a report dated 9.3.2018 on Interim Relief(Pay) to the Judicial Officers. The summary of its recommendations reads:-
1. Interim relief to the extent of 30% of increase in basic pay with accrued increments shall be paid to all categories/ranks of Judicial Officers.
2. The said increased in Pay shall be treated as a separate component and no D.A. is payable thereon.
3. Arrears shall be worked out with effect from 01.01.2016 on the above basis. The details of calculations are set out in Annexure-I.
4. On the same basis, the interim relief shall be provided to the pensioners and family pensioners with effect from 01.01.2016 and the arrears to be paid accordingly.
5. Wherever the benefit of interim relief has already been granted, the Judicial Officers in those States/UTs can exercise their option to continue to be governed by such Orders.
6. The amounts payable by way of interim relief now proposed are liable to the adjusted against the future determination pursuant to the final report submitted by the Commission.
It recorded that none of the respondents raised any objection with respect to the recommendations made by the Committee regarding the interim relief(pay). "In the circumstances, we deem it appropriate to direct all the respondents to implement the recommendations of the Commission, the summary of which is already extracted above."
In M. Vijayaraghavan vs. Union of India and other cases, the Supreme Court's bench of 46th Chief Justice Ranjan Gogoi and Justices L. Nageswara Rao and S. K. Kaul passed an order on January 9, 2019 saying, "these petitions highlight the perceived inequalities in the matter of payment of pension to Service Judges as compared to Bar Judges following the decision of this Court in P.Ramakrishnam Raju vs. Union of India and Others (2014) 12 SCC 1. Before we examine the contentions advanced, we would like the Department of Justice, Government of India, to examine the matter and place its views before us. The other connected aspect that may be considered by the Department of Justice is the difference in pension paid to Service Judges appointed to the High Court who come from two different streams i.e. direct recruit District Judges and promotee District Judges. All the above will be done within a period of six weeks when the matter will be listed for hearing again."
On October 18, 2019, in The State of Rajasthan vs. Rajasthan Judicial Employees Association, Justices N.V. Ramana and Saniv Khanna passed an order saying, "To give a last chance to the State Governments to report about the compliance of the Shetty Commission’s Report, list on 19.11.2019." On November 19, 2019, the order of 3- judge bench of Justices Ramana, R. Subhash Reddy and B.R. Gavai recorded that "the petitioner-State submits that the State has considered the judgments of the learned Single Judge as also the Division Bench of the High Court. Learned counsel further submits that the State has also considered the Shetty Commission’s Report and it is going to implement all the recommendations except classification and a Notification, in this regard, is also going to be issued."
On December 13, 2019, the bench of Justices Ramana and V. Ramasubramanian recorded:"At the commencement of hearing, learned senior counsel for the petitioners submits that the assurance given to this Court on 19.11.2019 shall be fulfilled and the necessary Notification/Order in this regard shall be issued by 12.00 Noon today. Taking note of the assurance given today by the learned senior counsel for the petitioners to the Court, we adjourn the matter to 16.12.2019, on which date, the Notification/Order issued by the petitioner-State shall be placed before us."
On December 16, 2019, the bench of Justices Ramana, Ajay Rastogi and V. Ramasubramanian recorded: "During the course of hearing, learned Senior counsel appearing for the petitioners produced two copies of Orders dated 13-12-2018 issued by the Government of Rajasthan which are extracted below:-
I. 'As per the recommendation of the Committee, the employees of Subordinate Courts are entitled to fixed
medical allowance under Order dated 04.03.11 of Rs.100/- per month, is to be allowed in addition to the medical attendance including hospitalization and outdoor treatment they are presently getting. This order will be effective from the date of issuance which is 13.12.2019.”
II. “As per the recommendation of the Committee, the employees of Subordinate Courts are entitled to Robe allowance of Rs.4000/- to IV class employee, Driver, Process Server, Bailiffs annually instead of existing Robe Allowance of Rs.3600/- biennially and Rs.6000/- to Stenographers and Readers annually instead of existing Robe Allowance of Rs.4500 biennially. This order will be effective from the date of issuance which is 13.12.2019.'
The Court observed that "the above orders show that these orders are prospective in nature". Sanjay Parikh, Senior Advocate appearing for Rajasthan Judicial Employees Association objected to it. The Court the parties to place the material before the Court "to show whether any State has extended the said benefits to its employees from the date of recommendations of the Shetty Commission i.e. 1.04.2003."
On February 28, 2020, in All India Judges Association vs. Union of India, the bench of 47th Chief Justice o India S.A. Bobde and Justices B.R. Gavai and Surya Kant observed" The Constitution envisages a unified judicial system in this country against the backdrop of a federal system of governance in relation to the legislature and executive. Given that the Constitution in Chapter VI, Part VI largely vests the appointment and service conditions of the subordinate judiciary with the Governor, in consultation with the High Court of the respective states, conditions of service were often found to be asymmetrical within the country. This prompted the All India Judges Association to approach this Court by filing a writ petition." It recalled the Court's decision in All India Judges Association v. Union of India (1992) 1 SCC 119, wherein it considered questions as to pay scales and service conditions of the members of the subordinate judiciary. It directed the states and the union territories to separately examine and review the pay structure of judicial officers as and when the states constitute pay commissions for its employees. Various states and the Union of India filed review petitions against the directions given in the aforesaid judgment and these objections were disposed of by judgment reported as All India Judges Association v. Union of India (1993) 4 SCC 288. The Court held that "judicial service is not a service in the sense of ‘employment’ and judges are not employees. It held that parity in terms of conditions of service is to be maintained between the political executive, the legislators and the judges and between the judges and the administrative staff." It also held that "although service conditions were to be regulated by Rules made under Art. 309 to 312 of the Constitution, it does not mean that the judiciary will not have any say with respect to its service conditions."
The Court, speaking through Justice Sawant, held, “8. This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the Judges in want of essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself.”
Therefore, the Court had recommended that the service conditions of the judicial officers should be laid down and reviewed from time to time by an independent Commission exclusively constituted for the purpose, and the composition of such Commission should reflect adequate representation on behalf of the judiciary. Pursuant to the directions of the Court, the Union of India appointed the first National Judicial Pay Commission on March 21, 1996, under the chairmanship of Justice K. J. Shetty. The Justice Shetty Commission submitted a preliminary report on January 31, 1998 and a final report on January 11, 1999.
In All India Judges Association v. Union of India (2002) 4 SCC 247, the Court accepted the recommendations made by the Shetty Commission with modifications made in the judgment. It also directed the Union of India and the states to implement the judgment and report compliance.
The Court was impelled to intervene and set up a Pay Commission under Justice E Padmanabhan, a retired High Court Judge in All India Judges Association v. Union of India (2011) 12 SCC 677. This was followed by a similar set of orders and judgments attempting to implement the recommendations of the report submitted by the Commission.
The petitioner approached the Court again by filing the writ petition seeking the appointment of another Pay Commission. By order dated May 9, 2017, a Pay Commission was constituted under the chairmanship of Justice P Venkatarama Reddi. The Commission submitted its interim report on March 9, 2018. By order dated March 27, 2018, the Court had directed the official Respondents to implement the recommendations of the Commission with regard to interim relief. The Commission submitted its report with respect to the pay, pension and allowances of the Judicial Officers to the Court on January 29, 2020. The Court directed state governments and Union Territories to file their responses with respect to each recommendation of the Second National Judicial Pay Commission. The respective , if any, within a period of four weeks. It hoped that "the recommendations of the Commission will be implemented proactively" in its order dated February 28, 2020. The bench comprised of 47th Chief Justice of India S.A. Bobde and Justices B.R. Gavai and Suryakant.
On August 11, 2020, the bench of Justices R F Nariman, Navin Sinha and Indira Banerjee observed: "we find that in Writ Petition (C)No. 643 of 2015, which is the All India Judges Association case, a series of questions have been posed by the Court and the question relating to pay pension and allowances of judicial officers has come up before this Court and is awaiting decision."
On November 4, 2020, the 3-judge bench headed by 47th Chief Justice observed: "We are surprised that 18 States/UTs have not filed their responses. The said States/UTs are as follows: (1) Kerala, (2) Andhra Pradesh, (3) Telangana, (4)Maharashtra, (5) Jharkhand, (6) Odisha, (7) West Bengal, (8) Assam, (9) Rajasthan, (10) Punjab, (11)Jammu & Kashmir, (12) Ladakh, (13) Delhi, (14) Haryana, (15) Nagaland, (16) Manipur, (17) Sikkim, and (18) Goa. The matter is of seminal importance particularly for the sub-ordinate judiciary in the country." It extended the term of the Commission upto January 31, 2021.
On January 6, 2022, the 3-judge bench headed by 48th Chief Justice N. V. Ramana observed: "We find that it would be appropriate for us to decide the first two issues on priority basis, i.e., one relating to Pay Scales to the subordinate Judiciary and the other relating to pensionary/retiral benefits, keeping in mind the long pendency of these two issues."
On July 27, 2022, the 3-judge bench headed by 49th Chief Justice Uday Umesh Lalit made the following order: "1. In All India Judges’ Association vs. Union of India1, (All India Judges’ Association Case I) , this Court had issued a slew of directions, which included (i) the setting up of an All India Judicial Service; (ii) bringing about uniformity in the designation of officers; (iii) raising of the age of retirement to 60 years; (iv) provision of residential accommodation to judicial officers etc. One of the directions so issued, which is relevant for our present purpose, reads as follows:
“63(iv) As and when the Pay Commissions/Committees are set up in the States and Union Territories, the question of appropriate pay scales of judicial officers be specifically referred and considered.”
2. Petitions for reviewing the aforesaid Judgment were filed by the Union of India as well as by various States, objecting to certain specific directions contained therein. These review petitions were disposed of by this Court by an Order dated 24.08.1993 in All India Judges’ Association vs. Union of India2, which came to be referred to as All India Judges’ Association Case.
II. Though certain directions issued in All India Judges’ AssociationI were modified in the judgment in All India Judges’ Association CaseII, the above direction contained in paragraph 63(iv) of the original judgment was not modified.
3. In All India Judges’ Association CaseII, the necessity to maintain parity in status between the Judges and the Political Executive, and not between the Judges and the Administrative Executive, was highlighted. It will be appropriate to quote the first part of paragraph 36 of the decision in All India Judges Association CaseII:“we have already discussed the need to make a distinction between the political and the administrative executive and to appreciate that parity in status can only be between Judges and the political executive and not between Judges and the Administrative executive. Hence the earlier approach of comparison between the service conditions of the Judges and those of the administrative executive has to be abandoned and the service conditions of the Judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service.”
4. Moreover, this Court highlighted in All India Judges’ Association CaseII, the need to keep Judges above their essential wants, considering the distinct nature of Judges’ duties, the society’s expectations, the lifestyle of the Judge and the occupational hazards to which he is exposed.
5. Subsequently the Government of India constituted the First National Judicial Pay Commission (FNJPC) under the Chairmanship of Mr. Justice K.J. Shetty. As a consequence, the reference to the 5th Central Pay Commission, of the question of revision of pay scales of judicial officers was dropped.
6. The FNJPC submitted its Report on 11.11.1999 recommending adoption of what is known as `Master Pay Scales’ comprising of 44 stages. The Commission recommended fixed quantum increments with six incremental rates from Rs.250 to Rs.500, spanning over 44 specified stages.
7. By a judgment dated 21.03.2002 passed in All India Judges’ Association vs. Union of India3, (All India Judges’ Association caseIII), this Court recommended the implementation of the revised scales of pay with effect from 1.07.1996. However, it was directed that the judicial officers shall be paid salary in revised pay scales with effect from 1.07.2002 and the arrears of salary for the period from 1.07.1996 to 30.06.2002 was directed to be paid either in cash or by crediting the same into the provident fund accounts of the officers.
8. After the constitution of the 6th Central Pay Commission, the question of revision of the scales of pay of judicial officers came up once again before this Court in All India Judges’ Association vs. Union of India4, (All India Judges’ Association CaseIV). By an order dated 28.04.2009 this Court appointed Mr. Justice E. Padmanabhan, a retired Judge of the High Court of Madras as a One man Committee, to make suitable recommendations. This Committee submitted a report on 17.07.2009.
9. Thereafter, this Court passed an Order on 4.05.2010 recording that most of the States have accepted the recommendations, though there was a dispute about the date of implementation. Moreover, this Court directed the States to implement Justice E. Padmanabhan Committee’s recommendations with effect from 01.01.2006.
10. Nearly 5 years after the order passed in All India Judges’ Association CaseIV, the present writ petition came to be filed by the All India Judges’ Association in the year 2015, seeking various reliefs including constitution of All India Judicial Commission to review the service conditions of judicial officers. In this writ petition, an order was passed on 09.05.2017, appointing the Second National Judicial Pay Commission (SNJPC), with Mr. Justice P. Venkatarama Reddy, a former Judge of this Court as its Chairman and Mr. R. Basant, a former Judge of the Kerala High Court as its member. The terms of reference of the Commission, as agreed to by all parties, were extracted in the Order dated 09.05.2017.
11. Accordingly a notification was issued on 16.11.2017 constituting the Second National Judicial Pay Commission. Some of the terms of reference of the Commission were as follows: (i) to evolve the principles which should govern the structure of pay and other emoluments of Judicial Officers.
(ii) to examine the existing structure of emoluments and conditions of service and to make recommendations including post retirement benefits.
(iii) to examine the work methods and work environment as also the variety of allowances and benefits and to suggest rationalization.
12. In January 2020, the Commission submitted its Report in five volumes, namely Volume I, IA, II, III and IV....
13. Though the recommendations of SNJPC covers various aspects, for the present, we propose to deal only with the revision of the pay structure. This is for the reason that after the implementation of the recommendations of Justice E. Padmanabhan Committee, with effect from 01.01.2006, a period of 16 years have passed without any revision of the same. In contrast, the 7th Central Pay Commission has already been implemented with effect from 01.01.2016. Therefore, there is a need to atleast implement the revised pay structure immediately so as to alleviate the sufferings of the judicial officers.
14. As a matter of fact, the scales of pay of Government servants are raised in some States once in five years/six years and by the Central Government once in 10 years. Judicial Officers are not covered by the Pay Commissions constituted by the Central or State Governments. Therefore, there is an imperative need to revise the pay structure immediately.
15. One of the main objections to the revision of pay structure as proposed by SNJPC, is the application of the multiplier of 2.81 and above. But this objection has already been taken by some of the States and is liable to be rejected for the two reasons, namely,
(i) that the 7th Central Pay Commission has applied a multiplier of 2.81 in respect of certain categories of All India Service Officers; and (ii) that Justice Padmanabhan Committee actually applied a multiplier of 3.07.
16. As a matter of fact, SNJPC, before making its recommendations, considered three modules, i.e., (1) Master Pay Scale Method; (2) Pay Matrix Method; and (3) Fixed Pay Method. After examining the advantages and disadvantages of all the three modules, the SNJPC has adopted Pay Matrix Method, as it had already been adopted by the 7th Central Pay Commission. A fourth module, namely, Fixed Pay Pattern was also examined but was not accepted, as it was a new concept and had not been tested anywhere else.
17. Having considered the Report of the SNJPC, the objections of the Union and the State Governments and the submissions of the learned amicus, we are of the view that the revision of pay structure as recommended by SNJPC, indicated in table1 appended, hereto shall be accepted.
18. This will lead us to two ancillary issues, namely (i) effective date; and (ii) arrears.
19. Since implementation of the recommendations of Justice E. Padmanabhan Committee was with effect from 01.01.2006, the revision of pay structure as recommended by SNJPC shall be implemented with effect from 01.01.2016.
20. Insofar as arrears are concerned, it is noticed that the judicial officers were provided interim relief @ 30% of the basic pay, vide order dated 27.03.2018. Therefore, the arrears shall be computed with effect from 01.01.2016 and after adjusting the interim relief already paid, the balance amount shall be paid in stages in the following manner: I 25% in cash within a period of 3 months; II Another 25% to be paid in cash within 3 months thereafter; and III the balance 50% has to be paid on or before the end of June, 2023.
21. We are informed that a few States have given revised pay structures to the Judicial Officers on the basis of the recommendations of the State Pay Commissions. Wherever the judicial officers have been given benefits under the respective Pay Commissions with effect from 01.01.2016, those judicial officers shall also be brought within the ambit of the pay structure, as recommended by SNJPC and the arrears shall be calculated after adjusting the amounts they have already received with effect from 01.01.2016. In case the arrears calculated on the basis of this order is less than the amount already disbursed, no recovery need be effected.
22. During the course of hearing, it was brought to our notice by the learned Amicus Curiae that on earlier occasions, though directions were issued by this Court, several States have not implemented the pay scales, as approved by this Court and there was undue delay.
23. Taking into consideration the said fact, we direct the State Governments/Union Territories to file affidavits of compliance of this Order after each stage as indicated above, with the first compliance affidavit being filed within a period of three months from today."
Therefore, the aspects to be taken note of heretofore are:
(i) Other aspects related to pay and allowances not covered by the Order dated 27.07.2022;
(ii) Recommendations relating to pension and family pension;
(iii) Revival of old pension scheme;
(iv) Premature retirement, commutation of pension, etc.;
(v) Ombudsman;
(vi) Permanent mechanism for the periodical revision of pay and allowances
and conditions of service; and
(vii) Work environment.
2 The note submitted by the learned amicus also contains a tabular chart giving details of the States and Union Territories which have complied with the order dated 27.07.2022 and the States and Union Territories which have either sought extension of time or a review of the order passed on 27.07.2022.
3 The chart indicates that out of the 29 States, 17 have filed affidavits of compliance, one State has filed an application for extension of time, two States have filed applications for review; and nine States have not chosen to file any response.
4 Out of the seven Union Territories, three have not filed any responses, one has filed an affidavit of compliance and one has filed an application seeking extension of time.
5 Out of the States which have complied with the order dated 27.07.2022, a few appear to have taken an undertaking from the Judicial Officers that they have no objection to the recovery of any excess pay that they have already received, on account of the respective State Governments having already given higher pay scales than what is recommended by SNJPC.
6 Taking into account all the above, we pass the following order :
(i) The affidavits of compliance filed by the States and Union Territories which have complied with the Order dated 27.07.2022 are taken on record.
(ii) States such as Assam, Gujarat and Karnataka which have taken undertakings from the Judicial Officers for recovery of the excess pay, shall not enforce the recovery, in view of the categorical direction issued by this Court in the Order dated 27.07.2022.
(iii) All the States/Union Territories which have made payment of only the first installment or the first two installments and the States and Union Territories which have come up with applications for extension of time, are permitted to make payment of arrears, at least within the time indicated in this order. The States and Union Territories which have not yet made payment of the first installment, shall make payment of the first installment by 31.03.2023. These States and Union Territories, as well as those who have already made payment of the first installment, shall make payment of the second installment by 30.04.2023. The third and final installment shall be made by 30.06.2023.
6. All the review applications are directed to be listed before the appropriate bench. The contempt petitions shall stand adjourned, to enable the States and Union Territories to comply with this Order.
7. For consideration of the remaining recommendations of the SNJPC, the matter shall stand adjourned to 25.01.2023."
3 List the matters on 17 July 2023 at 3 pm for further compliance on pay and pension on which date this Court will take up the recommendations on allowances."
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.
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 allowances 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 Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule.”
9 The High Court Judges (Salaries and Conditions of Service) Act 1954 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
(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 1st 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 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] per annum in the case of a Chief Justice and [Rs. 13,50,000] per annum in the case of any other Judge.]”
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 service, 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 including 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 under 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 accumulated with her service as a member 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 additional pension in respect of each completed year of service, the first respondent 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.
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, 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) in the case of the district judges. Eventually, the same principle was extended by this Court in P Ramakrishnam Raju vs Union of India 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 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 less important from any point of view vis-Ã -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.
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.”
(emphasis supplied)
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.
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, 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 (Conditions 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 calculating 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.”
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.
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." The judgement was authored by Dr. Dhananjaya Y Chandrachud.
