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TMI Blog1995 (11) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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