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PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

PRATIBHA BONNERJEA & ANR.

DATE OF JUDGMENT21/11/1995

BENCH:

AHMADI A.M. (CJ)

BENCH:

AHMADI A.M. (CJ)

PARIPOORNAN, K.S.(J)

CITATION:

1996 AIR 693 1995 SCC (6) 765

JT 1995 (8) 357 1995 SCALE (6)573

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

AHMADI, CJI

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Two questions are raised in this appeal, namely, (i)

the Central Administrative Tribunal had no jurisdiction to

entertain the application and (ii) the Tribunal was wrong in

holding that the pension admissible to the respondent as

Vice-Chairman of the Tribunal had to be determined under

Part I of the First Schedule to the High Court Judges

(Conditions of Service) Act, 1954, hereinafter called 'the

Act'. The brief facts which we are required notice run as

follows:

The first respondent was appointed a Judge of the High

Court of Calcutta on 13th January, 1978 and she retired as

such with effect from 16th February, 1989. Soon thereafter

on 3rd March, 1989 she was appointed a Vice-Chairman of the

Tribunal which post she relinquished on 16th February, 1992

on retirement. Admittedly she was drawing pension on

retirement as High Court Judge. For the period between 3rd

March, 1989 and 16th February, 1992 she served as the Vice-

Chairman and was entitled to pension. She contended that her

pension should be fixed under Part I whereas the Union's

contention was that she was entitled to pension admissible

under Part III of the First Schedule to the Act. As her

contention was not conceded she filed O.A. No. 513 of 1992

in the Central Administrative Tribunal for relief as per her

point of view. The Union raised a preliminary objection

regarding jurisdiction and on merit contended that the

department's point of view is unassailable. The Tribunal

upheld both the contentions of the respondent and hence this

appeal by special leave.

We do not propose to go into the question of

jurisdiction as we deem it proper to settle the question of

fixation of pension so that the first respondent is not

driven from pillar to post. We will, therefore, address

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ourselves to the question of pension admissible to the first

respondent. We may at the outset refer to Rule 15A of the

Central Administrative Tribunal (Salaries and Allowances and

Conditions of Service of Chairman, Vice-Chairman and

Members) Rules, 1985. It reads as under:

"15-A. Notwithstanding anything

contained in rules 4 to 15 of the said

rules, the conditions of service and

other perquisites available to the

Chairman and Vice-Chairman of the

Central Administrative Tribunal shall be

the same as admissible to a serving

Judge of a High Court as contained in

the High Court Judges (Conditions of

Service) Act, 1954 and High Court Judges

(Travelling Allowances) Rules, 1956."

Thus the conditions of service and other perquisites

available to the Vice-Chairman shall be the same as

admissible to a 'serving judge' of a High Court. A serving

judge of a High Court is entitled to pension under Chapter

III of the Act. Section 14 says that every Judge, shall, on

retirement be paid a pension in accordance with the scale

and provisions in Part I of the First Schedule, provided he

is not a member of the ICS or has not held any other

pensionable post under the Union or State. Section 15

provides that every Judge who is not a member of the ICS but

has held any other pensionable civil post under the Union or

the State, shall, on retirement be paid a pension in

accordance with the scale and provisions in Part III of the

First Schedule. The provisions of Part I apply to a Judge

who is not a member of the ICS or has not held any other

pensionable post under the Union or a State and also apply

to a Judge who, being the member of ICS or having held any

other pensionable civil post under the Union or a State, has

elected to receive the pension payable under the said Part.

On the other hand the provisions of Part III apply to a

Judge who has held any pensionable post under the Union or a

State but is not a member of the ICS and who has not elected

to receive the pension payable under Part I. The first

respondent was a direct recruit from the Bar when she was

appointed a Judge of the High Court and, therefore, on her

retirement she became entitled to pension under Part I of

the First Schedule. There is no doubt, so far as this aspect

is concerned. When she was appointed a Vice-Chairman of the

Tribunal she was already drawing pension as a retired High

Court Judge. Therefore, the short question is whether her

case would be governed by Part I or Part III of the First

Schedule when she retired as Vice-Chairman of the Tribunal.

The submission on behalf of the Appellant-Union is that

since the first respondent was holding a pensionable post

under the Union/State at the time when she retired as the

Vice-Chairman of the Tribunal, her case would be governed by

Part III and not Part I of the First Schedule. The first

respondent was indisputably not a member of the ICS. Was she

holding a pensionable post under the Union/State at the time

when she retired as the Vice-Chairman of the Tribunal? If

she was holding a pensionable post under the Union/State,

there can be no doubt that she would not be entitled to

pension under Part I but would be entitled to pension under

Part III of the First Schedule. That gives rise to the

question whether a High Court Judge who is drawing pension

can be said to be a person holding a pensionable post under

the Union/State. If the answer is in the affirmative the

first respondent would be entitled to pension under Part

III, but if the answer is in the negative, she would be

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entitled to pension under Part I of the First Schedule to

the Act. That is the moot question for consideration under

Rule 15A, extracted earlier. The pension has to be the same

as admissible to "a serving Judge of a High Court under the

Act and the Rules made thereunder".

Does a Judge of the High Court hold a post under the

Union or a State? If yes, the first respondent having

retired as a Judge of the High Court and having been drawing

pension at all material times would not be entitled to

fixation of pension under Part I of the First Schedule. If,

however, it is found that a High Court Judge does not hold a

post under the Union or a State, Part I would squarely be

attracted as he or she would be outside thescope of Part

III. Therefore, what we have to determine is whether the

first respondent who was admittedly a pensioner as a retired

High Court Judge could be said to be a person holding a

pensionable post under the Union or a State.

The question to be considered is whether under the

Constitution there is, strictly speaking, a relationship of

master and servant between the Government and a High Court

Judge? In order to answer this question a few provisions of

the Constitution need to be noticed. Firstly, Article 50

enjoins that the State should take steps to separate the

judiciary from the executive. Next, we may notice Chapter V

in Part VI of the Constitution which concerns High Courts in

the States. Article 214 provides that there shall be a High

Court for each State or a group of States. Article 217

posits that every Judge of a High Court shall be appointed

by the President by warrant under his hand and seal after

consultation with the Chief Justice of India, etc., who

shall hold office until he attains the age of 62 years. A

Judge once appointed can vacate office by tendering his

resignation or on his elevation to the Supreme Court or

transfer to another High Court or on being removed from

office by the President in the manner provided by Article

124(4), i.e. after an address by each House of Parliament

supported by a majority of the total membership of that

House and by majority of not less than two-thirds of the

members present and voting has been presented to the

President. The removal can be on the ground of proved

misbehaviour or incapacity. Article 219 expects every person

appointed to be a Judge of the High Court to make and

subscribe an oath or affirmation according to the form set

out in the Third Schedule. That form is Form VIII which

inter alia requires the Judge to swear in the name of God or

to solemnly affirm that he would truly and faithfully and to

the best of his ability and judgment perform his duties

without fear or favour, affection or illwill. These words

clearly indicate that the judicial function must be

discharged without being influenced by extraneous

considerations. Independence and impartiality are the two

basic attributes essential for a proper discharge of

judicial functions. A Judge of a High Court is, therefore,

required to discharge his duties consistently with the

conscience of the Constitution and the laws and according to

the dictates of his own conscience and he is not expected to

take orders from anyone. Since a substantial volume of

litigation involves Government interest, he is required to

decide matters involving Government interest day in and day

out. He has to decide such cases independently and

impartially without in any manner being influenced by the

fact that the Government is a litigant before him. In order

to preserve his independence his salary is specified in the

Second Schedule, vide Article 221 of the Constitution. He,

therefore, belongs to the third organ of the State which is

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independent of the other two organs, the Executive and the

Legislature. It is, therefore, plain that a person belonging

to the judicial wing of the State can never be subordinate

to the other two wings of the State. A Judge of the High

Court, therefore, occupies a unique position under the

Constitution. He would not be able to discharge his duty

without fear or favour, affection or illwill, unless he is

totally independent of the executive, which he would not be

if he is regarded as a Government servant. He is clearly a

holder of a constitutional office and is able to function

independently and impartially because he is not a Government

servant and does not take orders from anyone. That is why in

Union of India Vs. Sakalchand Himatlal Sheth (1977) 4 SCC

193 Chandrachud J., said in paragraph 32 at page 224 'the

rejection of Mr. Seervai's argument........ should not be

read as a negation of his argument that there is no master

and servant relationship between the Government and High

Court Judges." Bhagwati J. in his separate judgment said the

same thing in paragraph 49 when he observed: 'a Judge of the

High Court is not a Government servant, but he is the holder

of a constitutional office'.

From the scheme of the Constitution to which we have

adverted briefly it is obvious that the Constitution-makers

were evidently keen to ensure that the judiciary was

independent of the executive. An independent, impartial and

fearless judiciary is our constitutional creed. The

Constitution has tried to insulate the judiciary from

outside influence both from the Executive and the

Legislature. The provisions of Chapter VI in Part V of the

Constitution dealing with courts below the State High Court

also show that the constitution-makers were equally keen to

insulate even the subordinate judiciary. Articles 233 to 237

have, therefore, provided a wholly different mode of

selection and appointment of Judicial Officers at the grass

roots level and upto the District Courts from the one

provided for other civil posts. No doubt the initial

appointment has to be made by the Governor of the State,

albeit after selection as provided in that chapter, but

thereafter the posting and promotion, grant of leave, etc.,

is with the High Court and not the Government. Thus the

Judicial Officers belonging to the subordinate courts are

placed under the protective umbrella of the High Court. We

have already pointed out the provisions dealing with the

appointment of High Court Judges. The entire procedure

outlined for their appointment is totally different from

that provided for other services. That is because the

constitution-makers were conscious that the notion of

judicial independence must not be diluted. If the

relationship between the Government and the High Court Judge

is of master and servant it would run counter to the

constitutional creed of independence for the obvious reason

that the servant would have to carry out the directives of

the master. Since a High Court Judge has to decide cases

brought by or against the Government day in and out, he

would not be able to function without fear or favour if he

has to carry out the instructions or directives of his

master. The whole concept of judicial independence and

separation of judiciary from the executive would crumble to

the ground if such a relationship is conceded. High Court

Judges would not be true to their oath if such a

relationship is accepted. That is why not only Judges but

even the staff members are insulated from executive

influence. Article 229 clearly provides that appointments of

officers and servants of a High Court shall be made by the

Chief Justice of the Court or such other Judge or officer as

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he may direct. Even the conditions of service of officers

and servants shall be such as may be prescribed by the Chief

Justice or his nominee authorised by him to make rules; the

approval of the Governor is necessary only if the rules

relate to salaries, allowances, leave or pension. This

provision also shows that officers and servants of the High

Court are also under the exclusive control of the Chief

Justice and not the Government. If that be the relationship

between the officers and servants of the High Court vis-a-

vis the Government, it is difficult to imagine a master and

servant relationship between the Government and Judges of

the High Court. We have, therefore, no hesitation in coming

to the conclusion that the relationship between the

Government and High Court Judges is not of master and

servant. They cannot be said to be holding a post under the

Union/State.

For the above reasons we are of the view that the

Central Administrative Tribunal was right in the view it

took in this behalf. We, therefore, dismiss this appeal with

costs.