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TMI Blog2014 (3) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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 - Writ Petition (Civil) No. 521, 523, 524 of 2002, Writ Petition (Civil) No. 37, 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) - - - Dated:- 31-3-2014 - P. Sathasivam (CJI), Ranjan Gogoi And N. V. Ramana, JJ. JUDGMENT P. Sathasivam, CJI. 1) The main question which arises for consideration is whether High Court Judges, who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervant 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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