Union of India & Ors Vs. Pratibha Bonnerjea
& Anr [1995] INSC 719 (21 November 1995)
Ahmadi
A.M. (Cj) Ahmadi A.M. (Cj) Paripoornan, K.S.(J) Ahmadi, Cji
CITATION:
1996 AIR 693 1995 SCC (6) 765 JT 1995 (8) 357 1995 SCALE (6)573
ACT:
HEAD NOTE:
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 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 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 the scope 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 ill will. 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 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 ill will, 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 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 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.
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