Page 1 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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Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 “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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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Page 18 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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Page 19 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.

.…….…………………………CJI.

(P. SATHASIVAM)

………….…………………………J.

(RANJAN GOGOI)

………….…………………………J.

(N.V. RAMANA)

NEW DELHI;

MARCH 31, 2014.

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