@JUDGMENTTAG-ORDER
R. Jayasimha Babu, J.@mdashPetitioner is a former Judge of this Court. He was appointed as a Judge of this Court on 25.01.1979. After serving
for two years, 10 months and 14 days he retired on 07.12.1981.
2. On 29.07.1981, prior to retirement, he was requested by the President to function as a One Man Commission under the Commission of
Enquiries Act, 1952 to enquire into the incidents that took place in Coimbatore town on 23.07.1981 involving the officials and premises of two
Tamil newspapers ''Dinakaran'' and ''Malai Murasu''. That order of 29.07.1981 issued by the Department of Justice, Government of India
provided, inter alia, that,
The time spent by Shri Justice P. Venugopal in the performance of the said functions will count as ""Actual Service"" within the meaning of
paragraph 11(b)(i) of Part ''D'' of the Second Schedule to the Constitution of India read with Section 2(I)(c)i) of the High Court Judges
(Conditions of Service) Act, 1954. Shri Justice Venugopal will not be entitled to any extra remuneration for the above work except travelling
allowances and daily allowances as admissible under the High Court Judges (Travelling Allowance) Rules, 1956.
3. Part D of the Second Schedule to the Constitution of India is titled ""Provisions as to the Judges of the Supreme Court and of the High Courts"".
Paragraph 11 therein defines certain expressions used in that part:
11. In this Part, unless the context otherwise requires -
(a) the expression ''Chief Justice'' includes an acting Chief Justice, and a ''Judge'' includes an ad hoc Judge;
(b) ''actual services'' includes ---
(i)time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertake to
discharge;
(ii) vacations, excluding any time during which the Judge is absent on leave;
(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.
Paragraph 10 of that part provides for payment of salary to the Chief Justice and Judges of the High Court ""in respect of time spent on actual
service"".
4. The request by the President was necessary to enable the petitioner to draw salary as a Judge, even while being engaged in performance of duty
as a Commission of Inquiry, and not being engaged on duty as a Judge, while holding office as Judge of the High Court. That order was neither
intended to have nor had the effect of treating the time spent as Commission of Inquiry, after retirement from the High Court as ''actual service''
rendered as a Judge of the High Court.
5. After the petitioner''s retirement from the High Court, the State Government issued an order on 28.12.1981, wherein it was stated, inter alia, -
He has since retired on superannuation on 07.12.1981 AN and has requested that formal orders may be issued authorising him for the drawal of
the pay and allowances drawn by him as Judge of the High Court beyond 07.12.1981, as he is entitled for the last pay drawn by him as the
Commission of Inquiry.
Paragraph 2 of that order directed that,
Justice P. Venugopal (Retired) who has been appointed as the Commission of Inquiry on a full time basis will draw the total emoluments last
drawn by him as a Judge of the High Court, minus the pension to which he is eligible, excluding the pension commuted, if any, for the period he
functions as the Commission of Inquiry.
6. On 22.03.1982 he was concurrently appointed as a One Man Commission of Inquiry to inquire into the clashes that took place in March 1982
between Christians and Hindus in March 1982 in Kanyakumari District.
7. While those enquiries were progressing, on 22.04.1982 he was appointed as an ad hoc Judge of this Court for one year, and again for another
term of one year from 19.08.1983.
8. After he ceased to be an ad hoc Judge, he was appointed on 01.08.1986 as Commissioner of Payments under the Madras Race Club
(Acquisition and Transfer of Undertaking) Act, 1986.
9. Petitioner submitted his report on the enquiry into Hindu Christian Clash in Kanyakumari on 21.09.1985. The report on the enquiry into the
attack on the two Tamil newspapers was submitted on 30.04.1987. Petitioner relinquished the office of Commissioner of Payments on
31.12.1988.
10. For the period from 31.12.1981 to 31.12.1988 in addition to the pension drawn by him as a retired Judge, petitioner was paid the salary of a
High Court Judge minus the pension drawn by him.
11. The orders under which the petitioner was appointed as the Commission of Inquiry, as an ad hoc Judge of this Court, and later as
Commissioner of Payments, do not provide that the service so rendered by him will count towards pension, or that any enhanced or additional
pension would be paid after the completion of those assignments.
12. The relief sought in this petition is for issue of a direction to the respondents to ""refix the pension of the petitioner taking into account the period
of services from 01.08.1981 to 31.12.1988.
13. The High Court Judges (Salaries and Conditions of Service) Act, 1954 is the applicable law under which pension is paid to former Judges of
the High Court. That Act does not contemplate or provide for counting the service rendered in any capacity, after retirement as ''actual service'' for
purpose of calculating the pension.
14. The age of retirement for the Judges of the High Court is sixty two, as provided in Article 217(1) of the Constitution of India:
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, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and
shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two
years.
15. The age of retirement can be enhanced only by amending this Article by following the procedure prescribed in Article 368(2) by a Bill being
passed for this purpose by the two Houses of Parliament by a majority of their total membership and by a majority of not less than two thirds of
their members present and voting, such amendment being ratified by the legislature of not less than one half of the States, before the presentation of
the Bill to the President, and the President according assent to the Bill.
16. Even the service rendered by the retired Judge in the High court as an ad hoc Judge under Article 224A of the Constitution, is not treated as
service rendered as a Judge for determining the pensionary benefits of such retired Judge:
224A Appointment of retired Judges at sittings of High Courts-
Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the
President, request any person who has held the office of Judge of that Court or of any other High Court to sit and act as a Judge of the High Court
for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order
determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this Article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he
consents to do.
17. An ad hoc Judge, while sitting and acting as such, is entitled to only such allowances as the President may by order determine, and even while
being vested with all the jurisdiction, powers, and privileges of a Judge of the High Court, he "".... shall not otherwise be deemed to be a Judge of
the High Court.
18. Article 224A does not refer to pension and does not contemplate the payment of any pension for service rendered as ad hoc Judge. In
contrast Article 221(2) which deals with salaries of Judges, specifically provides for payment of pension to the Judges:
221 Salaries etc., of Judges --
(1) There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provisions in that
behalf is so made, such salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowance and to such rights in respect of leave of absence and pension as may from time to time be
determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule:
19. Service as ad hoc Judge, has not been treated as pensionable service in the Constitution or in the High Court Judges (Salaries and Conditions
of Service) Act, 1954.
20. Pension payable to retired Judges of any High Court under Article 221(2) constitutes under Article 112(3)(d) a charge on the Consolidated
Fund of India. So also the pension payable under Article 125(2) of the Constitution, to the retired Judges of the Supreme Court. Article 112(3)(d)
reads thus:
Article 112. Annual Financial Statement:
(1) .........................
(2) ........................
(3) The following expenditure shall be expenditure charged on the Consolidated Fund of India ---
(a) ....................
(b) ...................
(c) ...................
(d) (i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court,
(ii) the pension payable to or in respect of Judges of the Federal Court.
(iii) The pension payable to or in respect of Judges of any High Court which exercises jurisdiction in relation to any area included in the territory of
India or which at any time before the commencement of this Constitution exercises jurisdiction in relation to any area included in a Governor''s
Province of the Dominion of India.
21. The pension so charged to the Consolidated Fund of India is the pension referred in Article 221(2) of the Constitution for service rendered by
a Judge before attaining the age of sixty two years which is the age fixed in Article 217(1) of the Constitution, as the age upto which a Judge of a
High Court may hold that office.
22. The High Court Judges (Salaries and Conditions of Service) Act, 1954 (Act 28 of 1954) in sections 14, 15 and 16 deals with the pension
payable to Judges, special provisions for pension in respect of members of Service and the power of the President to add to the service for
pension:
14. Subject to the provisions of this Act, every Judge on his retirement, be paid a pension in accordance with the scale and provisions in Part I 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, and, in the case of a Judge holding office on the 5th day of October, 1963, sixty years, or
(c) his retirement is medically certified to be necessitated by ill-health.
Provided further that if a Judge at the time of his appointment is in receipt of a pension other than a disability or wound pension in respect of any
previous service in the Union or a State, the pension payable under this Act shall be in lieu of and not in addition to, that pension.
15. Every Judge
(1)(a) who is a member of the Indian Civil Service shall on his retirement, be paid a pension in accordance with the scale and provisions in Part-II
of the first schedule:
(b) who is not a member of the Indian civil Service but has held any other pensionable civil post under the Union or a State, shall, on his retirement,
be paid a pension in accordance with the scale and provisions in Part III of the first schedule;
provided that every such Judge shall elect to receive the pension payable to him either under Part I of the first schedule or, as the case may be, part
II or part III of the first schedule, and the pension payable to him shall be calculated accordingly.
(2) Notwithstanding anything contained in sub-section (1) any Judge to whom that sub-section applied and who is in service on or after the 1st day
of October, 1974, may if he has elected under the proviso to that sub-section to receive the pension payable to him under part II or, as the case
may be, part III of the first schedule before the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976, receives the
assent of the President cancel such election and elect afresh to receive the pension payable to him under part I of the first schedule and any such
Judge who dies before the date of such assent shall be deemed to have elected afresh to be governed by the provisions of the said part I, if the
provisions of that part are more favourable in his case.
16. The President of India for special reasons direct that any period not exceeding three months shall be added to the service for pension of a
Judge.
Provided that the period so added shall be disregarded in calculating any additional pension under part-I or part-II or part-III of the first schedule.
23. The First Schedule to that Act (28 of 1954) sets out the scale of pension to the Judges on their retirement. Part I is applicable to those
appointed from the Bar. Part II is applicable to those who were members of the Indian Civil Service and who had not elected to receive the
pension under Part I. Part III applies to those who held any pensionable post under the Union or a State, but who was not a member of the Indian
Civil Service and who has not elected to receive the pension payable under Part I.
24. On and after 01.01.1996, the minimum pension payable to a retired Judge of the High Court is Rs. 51,100/- per annum, as provided in Rule 9
of Part I of the First Schedule:
Where a Judge to whom this part applies retires or has retired at any time after the 26th January, 1950, without being eligible for a pension under
any other provisions of this part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs. 51,000/- per annum shall be
payable to such a Judge.
Provided that nothing in this paragraph shall apply:-
(a) to an additional Judge or acting Judge; or
(b) to a Judge who at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous
service under the Union or a State.
The maximum pension of Rs. 1,80,000/- is payable to a Judge who has served for 14 years including not less than six years of service as Chief
Justice of one or more High Courts, as provided in Rule 8 of Part I:
Notwithstanding anything contained in the foregoing provisions of this part, the pension payable to a Judge who has completed fourteen years of
service for pension for pension, including not less than six years of service as Chief Justice of one or more of the High Courts, shall be Rs.
1,80,000/- per annum.
The rate at which pension is payable under that Part is set out in Rule 2:
Subject to the other provisions of this Part, the pension payable to a Judge to whom this part applies and who has completed not less than seven
years of service for pension shall be:
(a) for service as Chief Justice in any High Court Rs. 14,630/- per annum for each completed year of service;
(b) for service as any other Judge in any High Court Rs. 11,150/- per annum for each completed year of service.
Provided that the pension shall in no case exceed Rs. 1,80,000/- per annum in the case of a Chief Justice and Rs. 1,56,000/- per annum in the
case of any other Judge.
25. Post retirement service whether in the High Court itself as an ad hoc Judge or elsewhere as a Commissioner, or as Chairman, Vice Chairman,
or Member of any statutory Tribunal, or even as holder of another Constitutional office as Governor of a State, does not and cannot count as
actual service rendered as a Judge or Chief Justice of the High Court for purpose of determining the amount of pension payable to a Judge or
Chief Justice on his or her retirement from the High Court.
26. Pension payable under any law other than the High Court Judges (Salaries and Conditions of service) Act, 1954, to a retired High Court Judge
or Chief Justice appointed to an office with a pensionable tenure, such as the office of Chairman or Vice Chairman of Central Administrative
Tribunal under the Administrative Tribunals Act, will only be payable separately in terms of that enactment.
27. The pension, if any, payable for post-retirement service will not be a charge on the Consolidated Fund of India under Article 112 of the
Constitution.
28. In the case of Union of India Vs. K.B. Khare and others, , the Supreme Court rejected the claim of a District Judge who had as required by
the Rules under the Administrative Tribunals Act taken voluntary retirement, on his appointment as a Member of Central Administrative Tribunal,
for clubbing his service as a Member of the Tribunal with his service as a District Judge, for purpose of drawing a single consolidated pension, as
the Rules did not envisage linking up the service as a District Judge with service as a Member of the Tribunal.
29. In the case of Union of India vs. Pratibha Bonnerjea (1996) 6 SCC 765 the Court considered the Central Administrative Tribunals (Salaries
and Allowances and Conditions of Services of Chairman, Vice Chairman, and Members) Rules, 1985 which in Rule 15-A provided that the
conditions of services and other perquisites available to the Chairman and Vice Chairman of the 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, (Act 28 of 1954) and High Court Judges
(Travelling Allowances) Rules, 1956.
30. The issue before the Court in that case was as to whether Part I or Part III of the First Schedule to Act 28 of 1954 was to govern the
determination of quantum of pension payable under the Administrative Tribunals Act, for service rendered by the retired Judge as Vice-Chairman
of the Tribunal.
31. The Court held that Part III being applicable to those who had held a pensionable post under a Union or State prior to the appointment to the
High Court, and the petitioner before the Court not having held any office under the Union or the state prior to her appointment to the High Court,
pension payable for service in the Tribunal should be calculated in accordance with Part I of the first schedule to the Act. The Court rejected the
contention put-forth by the State that the services rendered as a Judge should be regarded as services rendered under the Union or State, and held
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.
32. The petitioner therein had not put-forth the claim as has now been made by the petitioner herein, that the service rendered subsequent to
retirement, in the office held after retirement should be clubbed with service as a High Court Judge. The pension payable for service as the Vice
Chairman of the Tribunal in that case had been claimed separately, apart from the pension payable for services as a High Court Judge, the claim so
made being based on the Rules framed under the Administrative Tribunals Act.
33. Where in terms of the appointment as a Commission of Inquiry under the Commission of Enquiries Act, no provision is made for payment of
pension, no pension will be payable for service rendered in that capacity by the retired High Court Judge.
34. Though in the case of Smt. Pratibha, a two Judge Bench of the Court had held that the High Court Judge does not hold the post under the
Union or a State, a three Judge Bench of the Court in the later ruling in V.S. Mallimath Vs. Union of India and Another, , while considering the law
laid down by the Court in Smt. Pratibha''s case, reiterated the earlier decision of the Court in the case of Pashupati Nath Sukul and Others Vs.
Nem Chandra Jain and Others, , wherein the Court had observed that all three organs - the legislature, the executive and the judiciary - are
concerned with the governance of the country, and in that sense all the three organs together constitute the Government at their respective levels. It
had also been observed in that case that the Comptroller and Auditor-General of India and the Judges of the Supreme Court and of High Courts
are not eligible to contest elections to Parliament and the State Legislatures in view of Article 102(1)(a) and Article 191(1)(a) of the Constitution,
as the case may be, because they are serving in connection with the affairs of the Union and are, therefore, holding offices of profit under the
Central Government.
35. In the case of Sri Mallimath, the Court held that the words ''previous service under the Government'' in the proviso to Rule 3(b) of the National
Human Rights Commission Chairperson and Members (Salaries, Allowances and Other Conditions of Service) Rules, 1993, which refers to
......receipt of the pension other than disability or wound pension, in respect of any previous service under the Government of the Union or the
Government of a State, ......"" was required to be construed in the wider sense, and, held that the services rendered as a Judge or Chief Justice of a
High Court was service under the Government of the Union, for the purpose of that Rule.
36. Learned Senior Counsel for the petitioner Mr. Padmanabhan placed strong reliance on an unreported decision of the Allahabad High Court in
the case of Justice Nand Lal Ganguly vs. State of Uttar Pradesh, Civil Miscellaneous Petition No. 18496 of 1999 decided on 12.08.1999 wherein
it was held by the Court that the services rendered by a retired Judge as a Presiding Officer of the Industrial Tribunal should be added to service as
a High Court Judge, by placing reliance on a letter of the Government, wherein it was stated that he would get the same salary and benefits as were
available to him before retirement as a High Court Judge. For so holding, the Court relied upon the decision of the apex Court in the case of Union
of India and others Vs. Pratibha Bonnerjea and another, . While referring to that judgment the Division Bench of the Allahabad High Court
observed, ""It was held by the Supreme Court that her service in the Tribunal will be added to her service as Judge of the High Court for calculating
pension."" The Supreme Court on 05.01.2001 declined to grant special leave to appeal against the judgment stating that, in the peculiar facts and
circumstances of the case, the Court was not inclined to interfere with that order.
37. Learned counsel submitted that the order of the High Court merged with the order of the Supreme Court consequent to the refusal to grant of
leave, and therefore the ratio of the High Court''s judgment should be regarded as binding under Article 141 of the Constitution of India.
38. The effect of an order of the Supreme Court refusing to grant leave was considered by a three Judge Bench of the apex Court in the case of
Kunhayammed and Others Vs. State of Kerala and Another, . The Court, after cataloging and dealing with all the available decisions of the Court
on this issue brought to it''s notice, summed up it''s conclusions at paragraph 43. The conclusion set out in sub paragraphs (iv) and (v) which are
relevant here read as under :
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of
merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the
Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications.
Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which
would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has
stood merged in the order of the Supreme Court rejecting the SLP or that the order of the Supreme Court is the only order binding as res judicata
in subsequent proceedings between the parties.
39. The order made by the Supreme Court refusing to grant leave to appeal, read as under:
Equity reforms and moderates rigour hardness and edge of the law. It has ''not passed the age of child bearing''. It appears that these principles
influenced the High Court in deciding the petition in favour of the respondent.
It is not disputed before us that so far as other conditions of service of the respondent are concerned, he has been given the benefit of guidelines
issued by the Union of India on 8th October, 1987 through the Ministry of Law, Justice and Company Affairs, which guidelines were adopted by
the State Government on 2nd December, 1988 and those are in tune with the status of a High Court Judge (Retired).
Keeping in view all these factors and the peculiar facts and circumstances of this case, we are not inclined to interfere with the impugned order.
The SLP therefore fails and is dismissed.
40. That order binds the parties thereto. However, that order cannot be regarded as a declaration of law under Article 141 of the Constitution that
post retirement service in a judicial or quasi judicial office, should be clubbed with the actual service rendered by a Judge during his tenure as a
Judge of the High Court and his pension as a retired Judge revised upward on that basis.
41. The High Court of Allahabad construed the case of Smt. Pratibha as having laid down that service as a member of the Tribunal is to be
''added'' to service as a Judge of the High Court. Question of clubbing was neither raised, nor considered in that judgment. On the facts of that
case that question did not arise for consideration. The only issue before the Court in Smt. Pratibha''s case was as to whether for the purpose of
determining the quantum of pension for services rendered as the Vice Chairman of the Tribunal - Part I or Part III of the First Schedule to the Act
28 of 1954 was required to be considered, as the calculation of the pension for such service was, under the Rules framed under the Administrative
Tribunals Act, to be made in accordance with the First Schedule to Act 28 of 1954. The consideration of Act 28 of 1954 by the Court therefore
was not for the purpose of clubbing the services, but only for ascertaining the quantum of pension separately payable for the period of service
rendered as Vice Chairman of the Tribunal. The order of the Supreme Court declining to grant special leave cannot be read as having laid down
that in the case of Smt. Pratibha the Court had held that there should be clubbing of the services rendered after retirement by a High Court Judge
with the services as a High Court Judge, even when no such law had been laid down in the case of Smt. Pratibha.
42. As noticed already, it is only the pension payable for the services rendered as a High Court Judge that constitutes a charge to the Consolidated
Fund of India. Services rendered subsequent to retirement to a State Government, cannot be charged on the Consolidated Fund of India. The
liability for the pension, if any, for the services rendered to the State subsequent to the retirement can only be on the State Government and would
be payable separately and apart from the pension payable to the retired Judge for services rendered as a Judge of the High Court. However in this
case the State had not undertaken to pay any pension for the service rendered by the Petitioner as Commission of Inquiry or as Commissioner of
Payments.
43. Learned counsel also invited our attention to the decision of the Division Bench of the Andhra Pradesh High Court in the case of O. Chinnappa
Reddy vs. The Government of India, Writ Petition No. 14804 of 1999 on 04.01.2001. The question for decision in that case was as to whether
the payment of family pension at thirty per cent of the annual pension payable to the family of a retired Judge of the Supreme Court was
discriminatory, when the family pension payable to the family of a retired Cabinet Secretary whose salary was the same as that of a Judge of the
Supreme Court, was fixed at thirty per cent of his pay last drawn, particularly when the fifth Central Pay Commission had opined that no
discrimination can be made between the Supreme Court Judge vis-a-vis a cabinet secretary. The Court held that there was discrimination. That
judgment is not of any assistance here, as the issue in this case is different.
44. The petitioner''s pension, therefore, cannot be enhanced by treating the service rendered by him as a Commissioner of Inquiry or as
Commissioner of Payment after his retirement from the High Court, as ''actual service'' rendered by him as a Judge of the High Court.
45. The petition is dismissed.
