* Author
[2024] 3 S.C.R. 848 : 2024 INSC 219
Union of India, Ministry of Law & Justice
v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
(Civil Appeal No. 4272 of 2024)
15 March 2024
[Dr Dhananjaya Y Chandrachud, CJI,*
J B Pardiwala and Manoj Misra, JJ.]
Issue for Consideration
Whether gap between the retirement of a District Judge and her
subsequent appointment as the Judge of the High Court would
constitute ‘break in service’ adversely affecting her pensionary and
other retirement benefits.
Headnotes
The High Court Judges (Salaries and Conditions of Service)
Act, 1954 – s. 14, 15, Para 2, Part III of the First Schedule
– Entitlement of High Court Judge promoted from District
Judiciary to pension and retirement benefits despite break
in service – Break in service has no adverse implications in
computing pension since service upon appointment of a High
Court Judge is in pursuance a recommendation which was
made during her tenure as a Judge of the District Judiciary
The Respondent retired from District Judiciary on 31 July 2014
– Subsequently, she was promoted as High Court Judge and
appointed in the Punjab & Haryana High Court on 25 September
2014 – The Respondent retired on 4 July 2016 on attaining the age
of superannuation – The Appellant-Union of India contended that
her service as the High Court Judge ought not be taken to calculate
pensionary and retirement benefits as the break in service before
assuming the role of High Court Judge cannot be condoned – The
Appellant-Union of India contended that the Respondent has not
completed twelve years of pensionable service as a Judge of the
High Court to be eligible for the pension for High Court Judges
under s.14 of the High Court Judges (Salaries and Conditions of
Service) Act 1954 (hereinafter referred to as “the Act”)
Held: s.15(1)(b) of the Act indicates that a person who has held
a pensionable post under the Union or a State may elect to
[2024] 3 S.C.R. 849
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
receive the pension payable either under Part I or Part III of the
First Schedule of the Act – Service which is rendered as a High
Court Judge has to be cumulated with the service rendered as a
member of the District Judiciary by treating it as service therein
for computing the pension – s.14 not applicable as contended by
the Appellant-Union of India – Explanation to s. 14 is exhaustive
and it applies to a Judge who has not held any pensionable post
either in the Union or the State or a person who having held a
pensionable post has opted to receive the benefits of pension
under Part I of the First Schedule – The Respondent who has not
opted to receive the benefits of pension under Part I of the First
Schedule would fall outside the purview of Explanation to s. 14 –
Post-retiral pension to such a Judge would be governed by s.15
r/w Para 2 of the Part III of the First Schedule – Contention of the
Appellant-Union of India that the Respondent has not completed
twelve years as High Court Judge does not apply in view of s.14A
which entitles a member of the Bar elevated as High Court Judge
to the addition of ten years of service – A similar principle, as
applicable to Judges appointed from the Bar, must be applied for
computing the pension of a member of the District Judiciary, who
is appointed to the High Court – Any other interpretation would
result in plain discrimination between Judges of the High Court
based on the source from which they have been drawn – Break in
service must necessarily have no adverse implications in computing
the pension of the Respondent for the reason that her service
upon appointment as a High Court Judge was in pursuance of a
recommendation which was made during her tenure as a judge
of the District Judiciary. [Paras 22, 26, 27 & 30]
Judiciary – Retirement Benefits – Pensionary payments to
Judges constitute a vital element in the independence of the
judiciary
Held: As a consequence of long years of judicial office, Judges
on demitting office do not necessarily have the options which
are open to members from other services – The reason why the
State assumes the obligation to pay pension to the Judges is to
ensure that the protection of the benefits which are available after
retirement would ensure their ability to discharge their duties without
“fear or favour” – The purpose of creating dignified conditions of
existence for Judges both during their tenure as the Judges are
vital components of the rule of law – Independence of the judiciary
850 [2024] 3 S.C.R.
Digital Supreme Court Reports
is hence a vital doctrine which is recognized in the constitutional
scheme – Payment of salaries and dignified pensions serves
independence of judiciary. [Para 25]
Case Law Cited
Kuldip Singh v. Union of India [2002] 3 SCR 620 :
(2002) 9 SCC 218; Government of NCT of Delhi v. All
India Young Lawyers Association (Registered) [2009] 3
SCR 555 : (2009) 14 SCC 49; P Ramakrishnam Raju
v. Union of India [2014] 4 SCR 562 : (2014) 12 SCC
1; M L Jain v. Union of India [1985] 3 SCR 608 : 1985
2 SCC 355, 357 – referred to.
List of Acts
The High Court Judges (Salaries and Conditions of Service) Act,
1954; Constitution of India.
List of Keywords
High Court Judges; Pensionary and retiral benefits; Independence
of judiciary; Break in service
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4272 of 2024
From the Judgment and Order dated 14.08.2018 of the High Court of
Punjab and Haryana at Chandigarh in CWP No.6380 of 2018 (O&M)
Appearances for Parties
K.M. Nataraj, ASG, Gaurav Dhama, AAG, Ajay Kumar Misra, Adv.
Gen./Sr. Adv., Sanjay Parikh, Shailesh Madiyal, P.S. Patwalia,
Ajay Tiwari, Arijit Prasad, Manoj Goel, Sanjay R. Hegde, S.S.
Kulshrestha, Sr. Advs., B. Balaji, S. Arun Prakash, Ms. Aparna
Bhat, Ms. Karishma Maria, Shuvodeep Roy, Kabir Shankar Bose,
Saurabh Tripathi, Ms. Anisha Upadhyay, Arvind Kumar Sharma,
Nitin Singh, Ankur Yadav, Kuldeep Yadav, Shashank Shekhar,
Ms. Jannat, Vikrant Singh Bais, Ms. Mayuri Raghuvanshi, Vyom
Raghuvanshi, Ms. Akanksha Rathore, Noor Rampal, Rajan
Kumar Chourasia, Anmol Chandan, Sarad Kumar Singhania, T.S.
Sabarish, Divyakant Lahoti, Ms. Madhur Jhavar, Ms. Praveena
Bisht, Ms. Vindhya Mehra, Kartik Lahoti, Ms. Dilmrig Nayani,
Kumar Vinayakam Gupta, Ms. Mallika Luthra, Saksham Barsaiyan,
[2024] 3 S.C.R. 851
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
Mukesh Kumar Maroria, Vatsal Joshi, Anirudh Sharma, Sarthak
Karol, Ms. Indira Bhakar, Harish Pandey, Shashwat Parihar,
Rajesh Singh Chauhan, Kanu Agarwal, Varun Chugh, Tanmay
Mehta, Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi Agarwal,
Vinayak Mohan, Ms. K. Enatoli Sema, Abhinav Bajaj, Ms. Geetashi
Chandna, Ms. Limayinla Jamir, Amit Kumar Singh, Ms. Chubalemla
Chang, Prang Newmai, Mrs. Anil Katiyar, Raj Bahadur Yadav,
Mrs. Gargi Khanna, Shailesh Mandiyal, Sabrish Subramanium,
Prashant Singh Ii, Abhimanyu Tewari, Ms. Eliza Bar, P.I. Jose,
Chirag M. Shroff, Dhananjay Kataria, Ms. Diksha Rai, Arijit Dey,
Ishan Kapoor, Ms. Apurva Sachdev, Anandh Kannan N., Ms. Sujata
Kurdukar, Pratap Venugopal, Samar Vijay Singh, Keshav Mittal,
Ms. Sabarni Som, Fateh Singh, Manoj Gautam, Ms. Ankita Sharma,
Arjun Singh, Apoorv Kurup, Ratan Kumar Choudhuri, Barun
Kumar Sinha, Ms. Pallavi Langar, Kumar Anurag Singh, Abhay
Anil Anturkar, Dhruv Tank, Aniruddha Awalgaonkar, Ms. Vibha
Kapoor, Akshay Kapoor, M/s. Dr. R.R. Deshpande & Associates,
Ms. Mukti Chaudhry, Sandeep Sudhakar Deshmukh, Nishant
Sharma, G. Prakash, Ms. Deepanwita Priyanka, Ashutosh Dubey,
Malak Manish Bhatt, Siddhant Sharma, Nishant Ramakantrao
Katneshwarkar, Ms. Mrinal Gopal Elker, Gurmeet Singh Makker,
Avijit Mani Tripathi, Ms. Aakanksha Kaul, Ms. Garima Bajaj, Ms.
Radhika Gautam, Anando Mukherjee, Shwetank Singh, Ms. Ekta
Bharati, Raghvendra Kumar, Anand Kumar Dubey, Maneesh
Pathak, Devvrat Singh, Nishe Rajen Shonker, Mrs. Anu K Joy,
Alim Anvar, Vishwa Pal Singh, Adesh Kr. Gill, Ashutosh Bhardwaj,
Dr. Nitin Sharma, Abhinav Kumar Garg, Anurag Pandey, Satyam
Pehal, Ms. Anvita Dwivedi, Ms. Astha Sharma, T.G. Narayanan
Nair, Ms. Swathi H Prasad, Ms. Samyuktha H Nair, Shreekant
Neelappa Terdal, Arjun Garg, Aakash Nandolia, Ms. Sagun
Srivastava, Ms. Kriti Gupta, Gopal Singh, Aravindh S., Ms. Ekta
Muyal, Bharat Bagla, Siddharth Dharmadhikari, Aaditya Aniruddha
Pande, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh
Dubey, Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupam
Ngangom, Ms. Rajkumari Divyasana, R. Rajaselvan, Ahantham
Henry, Ahantham Rohen Singh, Mohan Singh, Kumar Mihir, Sanjai
Kumar Pathak, Arvind Kumar Tripathi, Mrs. Shashi Pathak, Purvish
Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar, Kush
Goel, Ms. Deepa Gorasia, Nirnimesh Dube, Shibashish Misra,
Niranjan Sahu, Ketan Paul, Mukul Kumar, Sameer Abhyankar,
852 [2024] 3 S.C.R.
Digital Supreme Court Reports
Aakash Thakur, Mrs. Nishi Sangtani, Ms. Zinnea Mehta, Anurag
Kaushik, Shreya Kumar, Rahul Kumar, Ashok Mathur, Sabarish
Subramanian, V Balachandran, Siddharth Naidu, M/s. KSN & Co.,
Sravan Kumar Karanam, Pusa Mallesh, Ms. Shireesh Tyagi, Ms.
Tayade Pranali Gowardhan, P. Santhosh Kumar, Abhishek Vedika
Jain, Vinayak Goel, Ms. Vanshaja Shukla, Ms. Ankeeta Appanna,
Sanjay Kumar Tyagi, Prabhat Kumar Rai, Abhishek Tyagi, Ms. Shivi
Bhatnagar, Sunil Kumar Tomar, Ms. Preetika Dwivedi, Abhisek
Mohanty, Ms. Madhumita Bhattacharjee, Ms. Srija Choudhury, Ms.
Osheen Bhat, Ms. Nitipriya Kar, Kunal Chatterji, Ms. Maitrayee
Banerjee, Rohit Bansal, Ms. Kshitij Singh, Gautam Narayan, Ms.
Asmita Singh, Harshit Goel, Sujay Jain, K.V. Vibu Prasad, Anupam
Raina, Sunando Raha, Nishant Kumar, Ms. Sampriti Baksi, Ms.
Hemantika Wahi, P.S. Sudheer, Rohit K. Singh, Farrukh Rasheed,
T.V. Ratnam, Krishnanand Pandeya, Yash Kirti Kumar Bharti, V.N.
Raghupathy, Manendra Pal Gupta, Shovan Mishra, Ms. Bipasa
Tripathy, M/s. Arputham Aruna & Co., Vinay Arora, D. Kumanan,
Mrs. Deepa. S, Sheikh F. Kalia, Veshal Tyagi, Danish Zubair
Khan, Aviral Saxena, Ms. Enakshi Mukhopadhyay Siddhanta,
Sovon Siddhanta, K.G. Kannan, Vedhagiri Chalka. A, Advs. for
the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
1. Leave granted.
2. This appeal arises from a judgment dated 14 August 2018 of a
Division Bench of the High Court of Punjab and Haryana.
3. The first respondent was appointed as a Judicial Magistrate in
the State of Haryana on 11 May 1981. She was appointed as an
Additional District Judge on 26 August 1997 and later, as a District
Judge on 19 July 2010. In December 2013, she was recommended
for appointment as a Judge of the High Court. Sometime before her
appointment as a Judge of the High Court, she retired as a District
Judge on 31 July 2014. On 25 September 2014, the first respondent
assumed office as a Judge of the Punjab and Haryana High Court.
She attained the age of superannuation and retired from service on
4 July 2016.
[2024] 3 S.C.R. 853
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
4. As a former Judge of the High Court, the first respondent instituted
proceedings under Article 226 of the Constitution, aggrieved by
the determination of her pensionary benefits. She sought that
notwithstanding the gap between her superannuation as a District
judge and appointment as a Judge of the High Court, the entire
period of service as from 11 May 1981 to 31 July 2014 as well
as service rendered from 25 September 2014 to 04 July 2016, be
reckoned for pensionary and other retirement benefits. The Union
of India contested the petition on the ground that the gap ought to
be considered as a break in service.
5. By its judgment dated 14 August 2018, the Division Bench of the
High Court held that the entire period of service rendered by the first
respondent from 25 September 2014 to 4 July 2016 as a Judge of
the High Court shall be blended with the years of her service from 11
May 1981 till 31 July 2014 as a Judge of the district judiciary for the
purpose of computing her pension as a Judge of the High Court. The
Union of India is in appeal against the judgment of the High Court.
Constitutional and Statutory Framework
6. Article 217 of the Constitution provides for the appointment and
conditions of the office of a Judge of a High Court. Clause (2) of Article
217 stipulates that a person shall not be qualified for appointment
as a Judge of a High Court unless such a person has:
(a) held a judicial office for a period of ten years in the territory of
India; and
(b) been an Advocate of a High Court or of two or more such Courts
in succession for at least ten years.
7. Sub-clause (a) of clause (2) of Article 217 deals with persons who
have held judicial office before appointment as a Judge of the High
Court, while clause (b) essentially sets out conditions of eligibility
for the appointment of Advocates to the Bench of the High Court.
8. Article 221 of the Constitution provides for salaries, allowances and
pensions to be paid to the Judges of the High Courts. Clause 2 of
Article 221 states that
“(2) Every Judge shall be entitled to such allowances and
to such rights in respect of leave of absence and pension
as may be from time to time be determined by or under
854 [2024] 3 S.C.R.
Digital Supreme Court Reports
law made by Parliament and, until so determined, to such
allowances and rights as are specified in the Second
Schedule.”
9. The High Court Judges (Salaries and Conditions of Service) Act
19541
has been enacted by Parliament “to regulate salaries and
certain conditions of service of the Judges of the High Court”.
Section 2(1)(g) of the Act defines the expression ‘Judge’ to mean
a Judge of a High Court and to include the Chief Justice, an acting
Chief Justice, an Additional Judge and an acting Judge of the High
Court. Chapter III of the statute deals with salaries and pensions.
Section 14 stipulates that subject to the provisions of the Act, every
Judge would, on retirement be paid a pension in accordance with
the scale and provisions in Part I of the Schedule. The proviso,
however, qualifies the entitlement to pension by stipulating 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 superannuation; or
(c) his retirement is medically certified to be necessitated by ill
health.
10. The proviso to Section 14 stipulates that if a Judge is in receipt of a
pension at the time of their appointment in respect of any previous
service in the Union or a State, other than a disability or wound
pension, the pension payable under the Act shall be in lieu of and not
in addition to that pension. The Explanation to Section 14, however,
is in the following terms:
“Explanation.— In this section “Judge” means a Judge
who has not held any other pensionable post under the
Union or a State and includes a Judge who having held
any other pensionable post under the Union or a State
has elected to receive the pension payable under Part I
of the First Schedule.”
11. In terms of the Explanation, an artificial meaning is ascribed to the
expression ‘Judge’ for the purpose of Section 14. The meaning
1 ‘The Act’
[2024] 3 S.C.R. 855
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
ascribed to the expression, for the purposes of Section 14, is a
Judge who has not held any other pensionable post under the
Union or a State and includes a Judge who, having held any other
pensionable post under the Union or a State, elects to receive
the pension payable under Part I of the First Schedule. At this
stage, it would be, therefore, material to emphasize that while
Section 2(1)(g) contains a broad and all-encompassing definition
of the expression ‘Judge’, the same expression for the purposes
of Section 14 has a more restricted meaning as described in the
Explanation.
12. Section 15 contains a special provision for the payment of pension
to Judges who are members of the service. Section 15 is in the
following terms:
“15. Special provision for pension in respect of Judges
who are members of service.—[(1)] Every Judge—
(a) * * * *
(b) who * * * has held any other pensionable 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, * * * 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 applies 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 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
856 [2024] 3 S.C.R.
Digital Supreme Court Reports
provisions of the said Part I if the provisions of that Part
are more favourable in his case.]”
13. Clause (b) of sub-section (1) of Section 15 indicates that every
Judge who has held any other pensionable post under the Union
or a State would be paid a pension in terms of Part III of the First
Schedule, subject to the condition (set out in the proviso) that the
Judge elects to receive the pension payable either under Part I or,
as the case may be, Part III of the First Schedule. Under Section
15(1)(b), upon electing for the payment of a pension under Part III
of the First Schedule, the Judge would be entitled to pensionary
benefits in the terms set out in Part III. Part III of the First Schedule
is in the following terms:
“Part III
1. The provisions of this Part apply to a Judge who has
held any pensionable post under the Union or a State
(but is not a member of the Indian Civil Service) and
who has not elected to receive the pension payable
under Part I.
2. The pension payable to such a Judge shall be—
(a) the pension to which he is entitled under the
ordinary rules of his service if he had not been
appointed a Judge, his service as a Judge being
treated as service therein for the purpose of
calculating that pension; and
(b) a special additional pension of [Rs.45,016] per
annum in respect of each completed year of
service for pension, * * *
[Provided that the pension under clause (a) and the
additional pension under (b) together shall in no case
exceed [Rs. 15,00,000] per annum in the case of a Chief
Justice and [Rs. 13,50,000] per annum in the case of any
other Judge.]”
Decision of the High Court
14. In the present case a communication dated 04 May 2016 addressed
by the Under Secretary to the Government of India to the Deputy
Accountant General (Pension) stated that since there was a break
[2024] 3 S.C.R. 857
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
in the service of the first respondent, and the same could not be
condoned and the period of her service as a Judge of the High Court
could not be considered for calculating her pension.
15. The High Court noted that paragraph 2 of Part III was applicable
to the first respondent. The High Court held that reading paragraph
2 harmoniously would entail a ‘blending of the period of both the
services’; and that if the services were not so blended, the service
of the first respondent as a Judge of the High Court would slip into
oblivion. Hence, it was held that in accordance with the definition
of ‘service’ in Section 2(1)(h) of the 1954 Act, the first respondent’s
service as a Judge of the High Court was ‘actual service’:. The High
Court observed:
“To conclude, it is manifestly clear that what is to be
blended is the ‘actual service’ rendered as a Judge of
the High Court to the service rendered by the petitioner
from 1981 till 31 July 2014 as service, for pension and
accordingly, the pension will have to be calculated as
judge of High Court”
16. The High Court directed that the service of the first respondent as
a Judge of the High Court had to be blended with her services as
a Judge of the District Judiciary and pension was to be calculated
as for a Judge of the High Court.
Submissions
17. The Union of India has adopted the position that:
(i) The computation of the retiral benefits has been done correctly,
taking into account the thirty-three years of her service as a
member of the District Judiciary and the special additional
pension. The High Court has erred in including her service as
a Judge of the High Court, condoning the break in service of
54 days;
(ii) The first respondent had not completed twelve years of
pensionable service as a Judge of the High Court within the
meaning of Section 14;
(iii) There was a break in service between the date on which the
first respondent retired as a District Judge (31 July 2014) and
assumed the office of a Judge of the High Court (25 September
858 [2024] 3 S.C.R.
Digital Supreme Court Reports
2014). This break could not be condoned under the 1954 Act
by the High Court or by this Court;
(iv) The first respondent having opted to receive her pensionary
payments under Part III of the First Schedule, the years of
service which were rendered by her as a Judge of the High
Court would be cumulated with her service as a member of
the district judiciary;
(v) The pension payable to the first respondent would then be
computed on the basis of last drawn salary as a District Judge;
and
(vi) Since paragraph 2(b) of Part III of the First Schedule provides
for a special additional pension in respect of each completed
year of service, the first respondent would be entitled to that
as well.
18. The essence of the contest in these proceedings relates to the
correctness of the interpretation which has been placed by the
Union of India.
19. Mr Shailesh Madiyal, senior counsel appearing on behalf of the Union
of India has adopted the above submissions. It has been urged
that though the first respondent had not completed twelve years
as a Judge of the High Court for the eligibility for pension in terms
of Section 14, in view of the provisions of Section 15, she would
be entitled to the computation of pension in terms of Part III of the
First Schedule. Mr Madiyal urged that in terms of paragraph 2(a) of
Part III, the total length of service rendered as a Judge of the High
Court would have to be added to the length of service as a Judge of
the district judiciary, to which a special additional pension would be
added. Hence, it is urged that the Union was correct in computing
the pensionary payment on the basis of the salary last drawn by the
first respondent as a Judge of the High Court.
20. Mr P S Patwalia, senior counsel appearing on behalf of the
respondent, has, on the other hand, urged that the Division Bench
of the High Court was justified in holding that the years of service
as a member of the district judiciary would have to be blended with
the years of service as a Judge of the High Court. Adverting to the
provisions of Section 14A of the Act, which were introduced to provide
an addition of ten years of service to a member of the Bar who is
[2024] 3 S.C.R. 859
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
appointed as a Judge of the High Court, it was urged that it would
be entirely discriminatory if a similar principle were not applied to the
members of district judiciary appointed as a Judge of the High Court.
Analysis
21. Section 14(1) of the Act provides that the pension payable to a
Judge shall be computed in accordance with Part I of the First
Schedule. Among the three conditions prescribed for eligibility to
receive pension, is the requirement of completing twelve years of
service for pension. At the same time, the Explanation to Section
14 which was inserted by Act 13 of 2016, provides meaning to the
expression ‘Judge’ for the purposes of Section 14. In its first part,
the Explanation indicates that the expression means a Judge who
has not held any other pensionable post either under the Union or
a State. In the second part, the expression includes a Judge who
has held a pensionable post under the Union or a State and has
elected to receive pension under Part I of the First Schedule. The
first part of the Explanation would encompass members of the Bar
who would not have held any other pensionable post under the
Union or a State. The latter part encompasses Judges falling within
the description contained in Article 217(2)(a) of the Constitution,
who have held a pensionable post under the Union or the State and
who have opted to receive pension under Part I of the Schedule.
The latter part thus covers only a person who has opted for pension
under Part I of the First Schedule.
22. Section 15, on the other hand, is a special provision as its marginal
note indicates, for Judges who are members of the service meaning
the judicial service. Clause (b) of Section 15(1) indicates that a
person who has held a pensionable post under the Union or a
State may elect to receive the pension payable either under Part
I or Part III. In the case of a Judge, such as the first respondent,
who elects to receive pension under Part III of the First Schedule,
the pension payable has to be computed in terms of the provisions
contained in paragraph 2 of Part III. . For the purpose of clause (a),
the pension which is payable to the Judge is the pension to which
they are entitled under the ordinary rules of service if they had not
been appointed as a Judge and their service as a Judge is treated
“as service therein for the purpose of calculating that pension”. In
other words, the service which is rendered as a Judge of the High
860 [2024] 3 S.C.R.
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Court has to be cumulated with the service rendered as a member
of the district judiciary by treating it as service therein for computing
the pension. To this, would be added a special additional pension in
terms of clause (b) of paragraph 2.
23. As a result of Section 14A, a period of ten years is added and is
deemed to have been added from 1 April 2004 for the purpose of
pension to the service of a Judge who is appointed under clause (2)
(b) of Article 217. Section 14A, is in other words, a special provision
which was introduced for Judges of the High Court who have been
appointed from the Bar. The introduction of Section 14A in 2016
was preceded by three judgments of this Court. The first of them
in Kuldip Singh vs Union of India,
2 dealt with the appointment
of a Judge of the Supreme Court from the Bar. This Court held
that a member of the Bar who was appointed as a Judge of the
Supreme Court would be entitled to the addition of ten years of
service for the purpose of computing pension. This principle was
similarly applied in Government of NCT of Delhi vs All India
Young Lawyers Association (Registered)3
in the case of the district
judges. Eventually, the same principle was extended by this Court
in P Ramakrishnam Raju vs Union of India4
in dealing with the
pension payable to High Court Judges who are appointed from the
Bar under Article 217(2)(b) of the Constitution. A three-Judge Bench of
this Court, speaking through Sathasivam, CJ noted that Judges who
are appointed under Article 217(2)(a) being members of the judicial
service obtain full pensionary benefits even if they serve as a Judge
of the High Court for a bare period of a year or two because of their
earlier entry into judicial service, but such a benefit is not extended
to members of the Bar who become Judges of the High Court. This
Court while laying down the principle of non-discrimination between
High Court judges elevated from the bar on the one hand and from
the district judiciary on the other, observed:
“19. 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
2 [2002] 3 SCR 620 : (2002) 9 SCC 218
3 [2009] 3 SCR 555 : (2009) 14 SCC 49
4 [2014] 4 SCR 562 : (2014) 12 SCC 1
[2024] 3 S.C.R. 861
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
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
practising advocates who have attained eminence are
invited to accept Judgeship of the High Court. Because
of the status of the office of High Court Judge, the
responsibilities and duties attached to the office, hardly
any advocate of distinction declines the offer.
Though it may be a great financial sacrifice to a successful
lawyer to accept Judgeship, it is the desire to serve the
society and the high prestige attached to the office and
the respect the office commands that propel a successful
lawyer to accept Judgeship. The experience and knowledge
gained by a successful lawyer at the Bar can never be
considered to be less important from any point of view
vis-à-vis the experience gained by a judicial officer. If
the service of a judicial officer is counted for fixation
of pension, there is no valid reason as to why the
experience at Bar cannot be treated as equivalent for
the same purpose.
20. The fixation of higher pension to the Judges drawn from
the subordinate judiciary who have served for shorter period
in contradistinction to Judges drawn from the Bar who
have served for longer period with less pension is highly
discriminatory and breach of Article 14 of the Constitution.
The classification itself is unreasonable without any legally
acceptable nexus with the object sought to be achieved.”
(emphasis supplied)
24. The principles which have been laid down by the three-Judge Bench
decision in P Ramakrishnam Raju (supra) provide guidance to this
Court in resolving the controversy in the present case.
25. Pensionary payments to Judges constitute a vital element in the
independence of the judiciary. As a consequence of long years of
judicial office, Judges on demitting office do not necessarily have the
options which are open to members from other services. The reason
why the State assumes the obligation to pay pension to Judges is
to ensure that the protection of the benefits which are available after
retirement would ensure their ability to discharge their duties without
862 [2024] 3 S.C.R.
Digital Supreme Court Reports
“fear or favour” during the years of judgeship. The purpose of creating
dignified conditions of existence for Judges both during their tenure
as Judges and thereafter has, therefore, a vital element of public
interest. Courts and the Judges are vital components of the rule of
law. Independence of the judiciary is hence a vital doctrine which is
recognized in the constitutional scheme. The payment of salaries
and dignified pensions serves precisely that purpose. Hence, any
interpretation which is placed on the provisions of the Act must comport
with the object and purpose underlying the enactment of the provision.
26. The contention of the Union of India is that the first respondent
did not fulfill the requirement of twelve years of service and was,
therefore, not entitled to the benefit of Section 14. This submission
clearly misses the plain consequence of the Explanation to Section
14. The Explanation is exhaustive in terms of the categories of Judges
to which it applies since it uses both the expression ‘means’ and
‘includes’. In other words, Section 14 applies to a Judge who has
not held any pensionable post either in the Union or the State or a
person who having held a pensionable post has opted to receive
pension under Part I of the Schedule. A Judge such as the first
respondent who has not opted to receive the benefits of pension
under Part I of the First Schedule would fall outside the purview of
the Explanation and, hence Section 14 would have no application.
27. The post-retiral pension to such a Judge would, therefore, be governed
by Section 15 read with paragraph 2 of Part III of the Act. Upon
electing to receive pension under Part III of the First Schedule, the
first respondent was entitled to have the years of service which were
rendered by her as a Judge of the High Court cumulated with the
years of service rendered as a member of the district judiciary. This
is in accordance with clause (a) which stipulates that the pension
payable to a Judge shall be first, the pension they would be entitled
to under the ordinary rules of ‘service’ if they had not been appointed
as a Judge of the High Court, that is if they continued their service as
a District Judge; second, their service as a Judge of the High Court
would be treated as service therein for the purpose of calculating
their pension. Paragraph 2 (a) or any other provision of the Act
does not indicate that a break in service such as the one in the
service of the first respondent would make paragraph 2 inapplicable
and disentitle such a Judge from adding their service as a High
Court Judge to their service as a District Judge for the purpose of
[2024] 3 S.C.R. 863
Union of India, Ministry of Law & Justice v.
Justice (Retd) Raj Rahul Garg (Raj Rani Jain) and Others
calculating their pension. The Union of India has failed to establish
such a disentitlement. Further, the break in service was attributable
to the time taken in processing the recommendation made in her
favor. In any case, it was not attributable to anything that the first
respondent had done, and it could not be used to prejudice her by
rendering her service as a Judge of the High Court inconsequential
to the calculation of pension.
28. The Union has sought to urge that the pension was correctly calculated
on the basis of the last drawn salary as a District Judge. To accept
this position would be contrary to established precedent and would
result in a clear discrimination between a member of the Bar who
becomes a Judge of the High Court and a member of the district
judiciary who is appointed as a Judge of the High Court.
29. In M L Jain vs Union of India,
5 this Court was deciding upon the
validity of a letter issued by Ministry of Law and Justice which stated
that the pension under para 2(a) of Schedule I of the 1954 Act would
be in accordance with the pay that they drew in the parent department,
preceding their elevation to the High Court. Quashing the said letter
as contrary to the para 2(a) of Schedule I of the Act, a three-judge
bench of this Court, speaking through Justice O Chinnappa Reddy,
observed as follows:
“We are of the opinion that para 2(ii) of the letter dated
September 19, 1984 is a clear departure from para 2 clause
(a) of Schedule I to the High Courts Judges (Conditions of
Service) Act. Under clause (a) of para 2 of the Schedule
I to the High Courts Judges’ (Conditions of Service)
Act the retiring Judge’s entire service as a Judge
has to be reckoned for the purpose of calculating his
pension and for that purpose the last pay drawn by
him has to be the pay drawn by him as a Judge of
the High Court and not the pay that would have been
drawn by him as a District Judge , had he not been
appointed a High Court Judge.”
30. Acceptance of the submission of the Union of India would discriminate
against Judges of the High Court based on the source from which they
5 [1985] 3 SCR 608 : 1985 2 SCC 355, 357
864 [2024] 3 S.C.R.
Digital Supreme Court Reports
are drawn. A member of the Bar is entitled to the addition of ten years
of service by virtue of the provisions of Section 14A. On the addition
of the years of service, their pensionary benefits would be computed
on the basis of the last drawn salary as a Judge of the High Court.
However, if the argument of the Union of India is accepted, the pension
of a Judge who was a former District Judge would be computed on the
basis of their salary as a District Judge. A similar principle, as applicable
to Judges appointed from the Bar, must be applied for computing the
pension of a member of the district judiciary who is appointed to the
High Court. Any other interpretation would result in a plain discrimination
between the Judges of the High Court based on the source from which
they have been drawn. Such an interpretation would do disservice to
the importance of the district judiciary in contributing to the judiciary of
the nation, and would be contrary to the overall scheme and intendment
of Chapter III of the statute. It would go against the anti-discriminatory
principles stipulated by this Court in so far as Judges drawn from
various sources are concerned.
Conclusion
31. We are, therefore, clearly of the view that the first respondent was
entitled to the addition of the period during which she served as a
Judge of the High Court to be added to the length of her service
as a member of the district judiciary from 11 May 1981 to 31 July
2014. The break in her service must necessarily have no adverse
implications in computing her pension for the simple reason that her
service upon appointment as a High Court Judge was in pursuance
of a recommendation which was made during her tenure as a Judge
of the district judiciary.
32. The pensionary payments shall be computed on the basis of her last
drawn salary as a Judge of the High Court. The arrears of pension
shall be payable to the first respondent on or before 31 March 2024
together with interest at the rate of 6% per annum.
33. The appeal is accordingly disposed of.
34. Pending applications, if any, stand disposed of.
Headnotes prepared by: Result of the case:
Mukund P Unny, Hony. Associate Editor Appeal disposed of.
(Verified by: Liz Mathew, Sr. Adv.)
