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.

* 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.

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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.)

Service Law – Armed Forces – Discharge from service on the ground of the Appellant suffering from AIDS – Application of the Appellant for a reference to a fresh Medical Board rejected by Armed Forces Tribunal – Challenge to:

* Author

[2024] 3 S.C.R. 865 : 2024 INSC 236

Satyanand Singh

v.

Union of India & Ors.

(Civil Appeal No. 1666 of 2015)

20 March 2024

[Sanjiv Khanna & Dipankar Datta,* JJ.]

Issue for Consideration

The issue for consideration before this Hon’ble Court was a

challenge to a judgment of the Armed Forces Tribunal, which

rejected the Appellant’s prayer for a reference of his diagnosis of

AIDS, to a fresh Medical Board.

The matter arose out of the Appellant’s discharge from service

from the Indian Army under Rule 13(3), Item III (iii) of the Army

Rules, 1954 on the ground that he was suffering from AIDS. The

Appellant approached the Madhya Pradesh High Court challenging

the Order of discharge from service. A Single Judge of the High

Court allowed the Appellant’s writ petition, which was reversed

by the Division Bench. On a challenge made to the Supreme

Court, the Appellant was permitted to withdraw his appeal, and

avail statutory remedies. Accordingly, the Appellant approached

the Armed Forces Tribunal, which passed the Impugned Order.

Headnotes

Service Law – Armed Forces – Discharge from service on the

ground of the Appellant suffering from AIDS – Application of

the Appellant for a reference to a fresh Medical Board rejected

by Armed Forces Tribunal – Challenge to:

Held: The Armed Forces Tribunal referred to extensive medical

literature regarding hazards of HIV – However, the Armed Forces

Tribunal failed to observe that the Appellant was not diagnosed with

any such symptoms – Nothing was brought on record to indicate

that the Appellant was unfit to continue in service – This is a case

of wrong diagnosis and false alarm with imperilling consequences

for the Appellant – The contention of the Union of India that the

doctors in 2001 [relevant time of the medical test] used their best

professional judgment to conclude that the Appellant was HIV+ve

was rejected on the ground that there were no test results to 

866 [2024] 3 S.C.R.

Digital Supreme Court Reports

justify the diagnosis that the Appellant was suffering from AIDS.

[Paras 6 and 7]

Service Law – Armed Forces – Extreme caution and care to

ensure correct diagnosis required where Officer serving in

the army is prematurely discharged from service:

Held: The Appellant was diagnosed with neuro-tuberculosis, without

examination by a neurologist, whose opinion was elementary – The

Appellant, while serving in the army, was prematurely discharged;

thus, extreme caution and care in ensuring correct diagnoses was

required – The Union of India tried to cover up the wrong diagnosis,

in spite of the test reports of the Appellant, and the Guidelines for

Management and Prevention of HIV/AIDS Infection in the Armed

Forces, 2003 [which prescribed that for condition for invalidment

of an officer on the ground of suffering from AIDS as a CD4 Cell

Count below 200 cells/mm3] – The Medical Board arbitrarily

rejected the Appellant’s prayer for a Review Medical Board on

flimsy grounds. [Para 8]

Service Law – Armed Forces – Discharge from service –

Psychological trauma of displacement from service:

Held: The severance of the employer-employee relationship results

not only in the employee losing his livelihood, but also affects those

who depend on him for their survival – The Appellant, who was

trained to live a disciplined life since the tender age of 19, was

unnecessarily, and without cogent reason thrust into civilian life

with little warning or preparation – Such displacement also causes

psychological trauma. [Para 12]

Service Law – Armed Forces – Denial of disability status on

the ground of AIDS being a self-inflicted disease is arbitrary

and unreasonable – Systemic discriminatory practice – Deeprooted bias against individuals diagnosed as HIV+ve:

Held: The Court expressed its reservation with respect to a Policy

of the Army which determined AIDS as self-inflicted, and prescribed

a procedure for HIV+ve service personnel to be brought before the

Release Medical Board, on the ground that it reflected a systemic

discriminatory practice – Reliance placed on the Judgment in

CPL Ashish Kumar Chauhan v. Commanding Officer [2023]

14 S.C.R. 601 : 2023 INSC 857 to hold that AIDS is not always a

self-inflicted disease. [Paras 14 to 17]

[2024] 3 S.C.R. 867

Satyanand Singh v. Union of India & Ors.

Constitution of India – Compensatory jurisprudence – Just

compensation:

Held: The Constitution, through its Preamble, guarantees ‘Justice’

to all its people, in the deliverance of which, Courts have developed

a nuanced compensatory jurisprudence – Reliance was placed

on the Judgments in D.K. Basu v. State of West Bengal [1996]

Supp. (10) SCR 284 : 1996 INSC 1508 : (1997) 1 SCC 416; P.S.R.

Sadhanantham v. Arunachalam [1980] 2 SCR. 873 : 1980 INSC

16 : (1980) 3 SCC 141; and the judgment in K. Suresh v. New

India Assurance Co. Ltd. [2012] 11 SCR 414 : 2012 INSC 490:

(2012) 12 SCC 274, wherein it was held that, while determining

the quantum of compensation, the adjudicating authority has to

keep in view the sufferings of the injured person, which would

include his ability to lead a full life – Having considered the plight

of the Appellant and the social stigma attached to persons who are

diagnosed as HIV+ve patients, coupled with the position that the

Appellant’s reinstatement in service is not an available option, the

Court awarded additional monetary compensation to him. [Paras

18 to 21 and 23]

Human Immunodeficiency Virus and Acquired Immune

Deficiency Syndrome (Prevention and Control) Act, 2017 –

Stigma and discrimination of HIV+ve diagnosis :

Held: The stigma and discrimination which accompanies an HIV+ve

diagnosis is still an illness which afflicts the minds of society

today – The discriminatory sentiment of deeming persons who

are HIV+ve to be unfit for employment is evident from the way

in which the Appellant was treated by various authorities – The

Court awarded the Appellant a lumpsum compensation of Rs.50

Lacs towards compensation – In addition, the Appellant was held

to be entitled to pension, as if he had continued in service – The

compensation can, in no way, compensate for the ordeal faced

by the Appellant, but it may act as a balm to soothe the mind and

steady the future. [Paras 25, 26 and 28]

Case Law Cited

CPL Ashish Kumar Chauhan v. Commanding Officer

[2023] 14 SCR 601 : 2023 INSC 857; D.K. Basu v.

State of West Bengal [1996] Supp. 10 SCR 284 : 1996

INSC 1508 : (1997) 1 SCC 416; P.S.R. Sadhanantham

v. Arunachalam [1980] 2 SCR 873 : (1980) 3 SCC 141 : 

868 [2024] 3 S.C.R.

Digital Supreme Court Reports

1980 INSC 16; K. Suresh v. New India Assurance Co.

Ltd. [2012] 11 SCR 414 : (2012) 12 SCC 274 : 2012

INSC 490 – relied on.

List of Acts

The Constitution of India, 1950; The Army Rules, 1954; The Army

Regulations 1987; The Guidelines for Prevention and Control

of HIV Infections in the Armed Forces, 1992; The Guidelines

for Management and Prevention of HIV/AIDS Infection in the

Armed Forces, 2003; The Armed Forces Tribunal Act, 2007; The

Human Immunodeficiency Virus and Acquired Immune Deficiency

Syndrome (Prevention and Control) Act, 2017.

List of Keywords

Discharge from service; Compensation for wrongful diagnosis;

Stigma against HIV.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1666 of 2015

From the Judgment and Order dated 05.09.2012 in O.A. No.89 of

2010 and dated 25.02.2013 in M.A. Nos.81-82 of 2013 of the Armed

Forces Tribunal, Principal Bench at New Delhi

Appearances for Parties

Satya Mitra, Ms. Kawalpreet Kaur, Nayab Gauhar, Advs. for the

Appellant.

R. Balasubramanian, Sr. Adv., Rajesh Kr. Singh, Debashish Mishra,

Mohan Prasad Gupta, Sanjay Kr. Tyagi, Ms. Sweksha, Dr. N.

Visakamurthy, Dr. Arun Kumar Yadav, Ishan Sharma, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Dipankar Datta, J.

THE CHALLENGE

1. The present civil appeal lays a challenge to the judgment and order

dated 05th September, 2012 (“impugned judgment”, hereafter) of the

Principal Bench of the Armed Forces Tribunal at New Delhi (“AFT”, 

[2024] 3 S.C.R. 869

Satyanand Singh v. Union of India & Ors.

hereafter), whereby the AFT rejected the appellant’s prayer seeking

reference of his diagnosis as AIDS inflicted, to a fresh Medical Board.

BRIEF RESUME OF FACTS

2. The factual matrix of the case, insofar as is relevant for the purpose

of a decision on this appeal, is noted hereinbelow:

(i) The appellant was enrolled in the Indian Army on 30th October,

1993 as a Havaldar. He continued discharging his duties on

a clerical post without impediment until the year 1999, when

he began suffering from fever, headache and vomiting. For

treatment he was referred to the Jabalpur Military Hospital.

Here, the appellant tested positive for HIV.

(ii) On 9th January, 2000, the Army Headquarters issued a Notice

(“Notice”, hereafter) stating that all persons who are HIV+ve and

are suffering from pulmonary or extrapulmonary tuberculosis,

would be considered as AIDS cases.

(iii) Thereafter, on 20th August, 2001, the appellant developed similar

symptoms yet again, for which he was referred to the Jabalpur

Military Hospital. The doctors there prescribed certain medicines

to the appellant, which he claims led to his developing double

vision. The appellant was referred to the Command Hospital

at Pune for further treatment.

(iv) In view of the appellant’s ocular afflictions, the doctors,

suspecting the same to be a symptom of neuro-tuberculosis,

began treating him for the same. Vide Medical Report dated 14th

September, 2001 (“Medical Report” hereafter), the appellant was

reported to be suffering from “AIDS defining illness in the form

of neuro-tuberculosis”, and thus was officially diagnosed with

AIDS. The appellant was then recommended to be invalided

out in the “P5” category. Per the medical categorisation of the

Army, “P5” referred to those persons who were suffering from

“gross limitations in physical capacity and stamina”.

(v) As a consequence of the report dated 14th September, 2001, the

appellant was referred to the Invaliding Medical Board (“IMB”

hereafter), which confirmed his diagnosis of suffering from AIDS.

(vi) On 26th December, 2001, after 8 years and 58 days of service, at

the young age of 27, the appellant was discharged from service 

870 [2024] 3 S.C.R.

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under Rule 13 (3), Item III(iii) of the Army Rules, 19541

 (“Rules”

hereafter) on the ground of having been found medically unfit

for further service.

(vii) On 23rd May 2003, the “Guidelines for Management and

Prevention of HIV/AIDS Infection in the Armed Forces” (“2003

Guidelines” hereafter) came into force. In a shift from the Notice,

the said policy included into its consideration the CD4 cell count

of the personnel, and that the condition for invalidment would

be, inter alia, a CD4 cell count below 200 cells/mm3.

(viii) The appellant approached the Madhya Pradesh High Court,

seeking quashing of the discharge order dated 26th December,

2001 and reinstatement with all consequential benefits. A

learned Judge of the High Court, vide order dated 20th April,

2006, allowed the appellant’s writ petition.

(ix) However, in exercise of intra-court appeal jurisdiction, an

Hon’ble Division Bench of the High Court vide its order dated

28th March, 2007 reversed the order under appeal. The Division

Bench observed that in accordance with Para 355 (f)2

 of the

Regulations for the Army, 1987 (“Regulations”, hereafter), the

appellant was not discharged solely on the ground of having

contracted a sexually transmitted disease. The appellant’s

discharge from service was held to be valid on the ground that

AIDS would incapacitate his physical capacity, thus coming

within the ambit of Rule 13 of the Rules. An application for

review of the said order was also dismissed vide order dated

27th August, 2007.

(x) The appellant challenged both the orders before the Supreme

Court. A 3-Judge Bench of this Court vide order dated 01st

April, 2009 allowed the appellant to withdraw his appeal,

1 An enrolled person under the Army Act who has been attested on the ground of being found medically

unfit for further service could be discharged by the Commanding Officer, to be carried out only on the

recommendation of an invaliding Board.

2 “355. Contraction of sexually transmitted disease - The following principles will be observed in dealing

with OR including reservists and non - combatants, who contracts sexually transmitted disease:

f) An OR is not to be discharged from service solely on account of his having contracted sexually

transmitted disease. If, however, he has been absent from duty on account of sexually transmitted

disease for a total period of four months, whether continuous or not, his case may be brought to the

notice of the authority empowered to order his discharge from the service, for consideration as to

whether he should be discharged from the service under the table annexed to Army Rule 13 item III if

attested, and under item IV if not attested.

[2024] 3 S.C.R. 871

Satyanand Singh v. Union of India & Ors.

while directing that he could avail of the available statutory

remedies.

(xi) The appellant availed of his statutory remedy by making an

application to the Director General Armed Forces Medical Service

(“DGAFMS” hereafter) seeking a Review Medical Board. The

DGAFMS, vide order dated 20th October, 2009, rejected the

appellant’s prayer on the ground that the criteria for discharge

was satisfied in terms of the Army’s prevailing policy at the time,

i.e., the “Guidelines for Prevention and Control of HIV Infections in

the Armed Forces” dated 30th November, 1992 (“1992 Guidelines”

hereafter). Furthermore, the appellant was also denied disability

pension, AIDS being categorised as a self-inflicted condition.

(xii) The order passed by the DGAFMS was subjected to challenge

by the appellant before the AFT which, vide the impugned

judgment, rejected his prayer on the ground that the Medical

Report had concluded after sufficient investigation and detail

that he was suffering from (i) CNS Tuberculosis and (ii) Immune

Surveillance for HIV. The IMB, which confirmed the findings of

the Medical Report, was held to have been rightly constituted

with the required experts. The appellant argued that he was

misdiagnosed with AIDS, his CD4 cell count being 379 cells/

mm3

 till as late as 05.08.2012 as opposed to the benchmark

of 200 cells/mm3 set by the World Health Organisation. The

AFT rejected this argument on the ground that such a CD4 cell

count was marginal and would not entitle the appellant to be

declared AIDS free, thus obviating the need for referring him

to a Review Medical Board.

CONTENTIONS OF THE PARTIES

3. Learned counsel for the appellant, Ms. Kawalpreet Kaur, relied on

the 1992 Guidelines to argue that in terms thereof, all personnel

with HIV infection were to be retained in service, the only restriction

on their employment being, inter alia, that they would not be posted

to high altitude areas. Ms. Kaur further contended that there had

been an error in diagnosis in the Medical Report itself, since the

appellant never suffered from tuberculosis which was taken as a

defining illness for AIDS. It was urged that the appellant was merely

suffering from double vision, which cleared up by 15th November,

2001. However, the doctors misdiagnosed the appellant’s double 

872 [2024] 3 S.C.R.

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vision for a tuberculosis related symptom of blindness. Consequently,

in view of the Notice, the appellant having been found to be both

HIV+ve and suffering from tuberculosis, was invalided from service.

Ms. Kaul further argued that as per the Army’s 2003 Guidelines,

the appellant was fit for service since his CD4 cell count remained

above 200/mm3

 till as late as 2012. This defining indicator for AIDS

was argued to have been erroneously disregarded by both, the

IMB and the AFT. In support of the same, it was further argued that

the appellant was asymptomatic till date, without undergoing any

anti-retro viral therapy as would have been prescribed for a person

suffering from AIDS; thus, establishing without a doubt, that the

appellant never developed AIDS to begin with. Ms. Kaur concluded

by arguing that the appellant’s case was one of wrongful discharge,

based on a wrong diagnosis.

4. Per contra, Mr. Balasubramanian, learned senior counsel for

the respondents contended that the appellant had never been

discharged solely on the basis of his HIV+ve status, the same being

evident from his uninterrupted service from 1999 till April 2001. The

doctors at the time, on the basis of their best professional judgment

and giving due regard to the medical knowledge prevalent in 2001,

diagnosed the appellant with neuro-tuberculosis, which led to a

change in status of the appellant from HIV+ve to “AIDS related

complex”. It was further argued that the appellant responded well

to anti-tuberculosis treatment, thus confirming the diagnosis of

the time. It was further contended that his survival ought to be

attributed to be a natural variation in the course of the disease

rather than a misdiagnosis on the part of the medical professionals.

With respect to the appellant’s allegation that his double vision

was mistaken for blindness, Mr. Balasubramanian further argued

that the appellant had placed no documents on record to prove

such a claim, and that the tuberculosis diagnosis was made only

after detailed investigations. It was also argued that AIDS would

expectedly lead to a deterioration in the health of the appellant,

which is why he was discharged under the P5 category, having

been found grossly unfit for medical service.

ANALYSIS

5. We have heard learned counsel for the parties and perused the

impugned judgment as well as the other materials on record.

[2024] 3 S.C.R. 873

Satyanand Singh v. Union of India & Ors.

6. The AFT, in the impugned judgment, has referred to extensive

medical literature citing the hazards of HIV and how it can lead to a

deterioration in the physical condition of those who get detected as

HIV+ve. However, while the medical literature contemplates myriad

infirmities which accompany such a disease and consequently render

an individual unfit for military service, the AFT failed to observe that

the appellant in the present case was not diagnosed with any such

symptoms. The appellant was treated by the Command Hospital

at Pune in 2001, and by the respondents’ admission, successfully

responded to the treatment administered. Nothing has been brought

on record to indicate that the appellant was thereafter unfit to continue

in service as a Clerk.

7. We have no doubt in our mind that this is a case of wrong diagnosis

and false alarm with imperilling consequences for the appellant.

The respondents’ contention that doctors in 2001 have used their

best professional judgment to opine that the appellant was HIV+ve,

in our opinion, should be rejected, in the absence of any medical

literature to show that the test results as per then prevailing medical

standards justify the diagnosis that the appellant was suffering from

AIDS defining illness. On the other hand, there are lapses galore on

the part of the respondents. They were, in spite of being aware of

the adverse and pernicious impact on the appellant, grossly careless

and negligent.

8. The appellant was diagnosed with neuro tuberculosis, which diagnosis

was without examination by a neurologist whose opinion, according

to us, would seem to be elementary. The AFT’s opinion that the

need of the medical specialist was fulfilled by placing an oncologist

on Board is something with which we cannot agree. The appellant

while serving in the army was being prematurely discharged; thus

extreme caution and care in ensuring correct diagnoses was required.

The respondents have deliberately tried to cover up the wrong

diagnosis in spite of the 2003 Guidelines and the test reports of the

appellant. The respondents had the opportunity from 2007 onwards

to rectify and correct themselves after the order of the single Judge

of the High Court dated 20th April, 2006. The Medical Board, which

was constituted upon the appellant availing the statutory remedy,

arbitrarily, wrongly and in our opinion deliberately vide order dated

20th October, 2009 rejected the appellant’s prayer on flimsy and wrong

grounds by applying the 1992 Guidelines. Even disability pension 

874 [2024] 3 S.C.R.

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was denied by categorising the appellant as suffering from AIDS, a

self-inflicted condition.

9. Significantly, the appellant had submitted between the period of 2007

and 2012, as many as four diagnostic reports, showing that his CD4

cell count was above 300 cells/mm3

, as opposed to the respondents’

2003 Guidelines defining an AIDS illness to be one where the CD4

cell count is below 200 cells/mm3.

10. The apathetic attitude of the respondents to the appellant’s plight is

evident in the repeated submission that has been made before all

fora, i.e., the appellant’s case had been re-examined several times

and thus did not merit another look. It is borne out from the record

that other than the Medical Report, which the appellant alleges was

made by a doctor who did not treat him, and the review of such report

by the IMB, his case was never again considered on its merits. The

dismissal of the appellant’s application by the DGAFMS vide order

dated 20th October, 2009 can only be called perfunctory at best,

since it did not take into account any of the material subsequently

produced by the appellant.

11. The respondents’ submissions, as elaborate as they may be, in

defence of the AIDS diagnosis which was used to discharge the

appellant from service, are rendered unworthy of acceptance on the

face of his existence today, as an asymptomatic HIV+ve individual

without the intervention of any anti-retroviral therapy.

12. The severance of the employer – employee relationship can never

be said to be an easy choice, for it not only results in the employee

losing his livelihood, but also affects those who depend on him for

their survival. And if the employer happens to be the Indian Army,

the loss is even greater, since it has the effect of suddenly displacing

a soldier from the regimented lifestyle of the military. The appellant,

who was trained to live a disciplined life since the tender age of 19,

was unnecessarily and without cogent reason thrust into civilian life

with little warning or preparation. The psychological trauma that such

displacement can bring about needs no elaboration. However, the

cruel passage of time has unfortunately rendered the appellant’s

original hopes of reinstatement an unrealised dream.

13. The appellant, as an alternative relief, has consistently prayed for

disability pension but was denied the same on the ground that the

disease is self-inflicted. 

[2024] 3 S.C.R. 875

Satyanand Singh v. Union of India & Ors.

14. At this juncture, we consider it apposite to refer to certain provisions

of the Notice published by the Army:

“4. Pulmonary Tuberculosis and HIV infection will not be

assessed separately for attributability / aggravation. HIV

aggravation is a ‘STD’ and hence AIDS is self-inflicted,

neither attributable nor aggravated.

5. The policy on awarding longevity and percentage of

disability for HIV+ve service personnel brought before

release medical Board is as follows :-

‘As per existing instructions, JCOs/ORs or their

equivalent in the Navy/Air Force placed in permanent

low Medical category are permitted to continue in

service only in case the Unit COs render a certificate

to the effect that sheltered appointment shall be

provided. Otherwise such individuals are brought

before Release Medical Board for releasing from

service. It is unlikely that HIV positive cases in perm

low Medical Category would be given sheltered

appointment and recommended for retention in

service by unit cos’.

6. Following procedure will be followed in HIV+ve service

personnel brought before Release Medical Board.

a) Longevity: By the time HIV+ve case is brought before

Release Medical Board, it is likely that he had acquired

the infection about 1-2 years earlier. Therefore, it is likely

that he would develop AIDS within next 6-8 years. After

development of AIDS the average life span is only 1-2

years. Therefore loading of age by 2 years at the time

of Release Medical Board is considered appropriate.

b) Percentage of disability: In fact viral multiplication

during this period is average and the immune system

being systematically destroyed. Apart from infection,

HIV+ve cases will suffer emotionally, psychologically

and socially. Taking all these factors in consideration,

40% disability for asymptomatic cases and upto 100%

for symptomatic cases will be awarded.”

876 [2024] 3 S.C.R.

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15. A perusal of the Notice reveals that in terms of Para 6A, a person who

has been diagnosed as HIV+ve was expected to develop AIDS within

6-8 years, and thereafter, have a limited lifespan of only 1-2 years. We

cannot help but record reservation as the policy reflects the systemic

discriminatory practice and predisposition treating HIV as aggravation

of STD and AIDS is self-inflicted. In arguendo, even going by the

respondents’ own policy, the appellant could not be said to be suffering

from AIDS since, in flagrant defiance of the policy assessment, the

appellant is reportedly still alive and suffering from no serious ailment.

16. A further examination of the respondents’ policy reveals that though

AIDS was always deemed to be a self-inflicted disease, there was still a

provision for conferring disability status to those afflicted with the same.

Yet, time and again, we find the respondents here have mechanically

denied the appellant’s request for disability status in a most arbitrary and

unreasonable manner. It is pertinent to note that in yet another instance

of the deep-rooted bias against individuals diagnosed as HIV+ve, the

Notice allows for sheltered appointments to those diagnosed with such

a condition, while in the same breath stating that the provision of such

sheltered appointments is an unlikely possibility.

17. We may note here that in CPL Ashish Kumar Chauhan v.

Commanding Officer3

, the concerned member of the Air Force

was diagnosed as HIV+ve because of a blood transfusion that did

not proceed along laid down protocol and went awfully wrong for

which this Court had to award appropriate quantum of compensation.

Reference is made to the said decision at this stage only to highlight

that AIDS is not always a self-inflicted disease and there appears

to have been no worthy attempt on the part of the respondents to

ascertain the root cause of the appellant’s physical distress.

18. The Constitution, through its Preamble, guarantees to all its people

‘Justice’, in the deliverance of which, the Courts of the land have

developed a nuanced compensatory jurisprudence through a catena

of judgments, for a wide compass of situations.

19. This Court, towards the end of the last century held in D.K. Basu

v. State of West Bengal4

 that:

3 [2023] 14 SCR 601 : 2023 SCC OnLine SC 1220

4 [1996] Supp. 10 SCR 284 : (1997) 1 SCC 416

[2024] 3 S.C.R. 877

Satyanand Singh v. Union of India & Ors.

“54. Thus, to sum up, it is now a well-accepted proposition

in most of the jurisdictions, that monetary or pecuniary

compensation is an appropriate and indeed an effective and

sometimes perhaps the only suitable remedy for redressal

of the established infringement of the fundamental right

to life of a citizen by the public servants and the State is

vicariously liable for their acts.”

20. In P.S.R. Sadhanantham v. Arunachalam5, this Court while

emphasising its power to do full and complete justice, ruminated:

“6. The jural reach and plural range of that judicial process

to remove injustice in a given society is a sure index of

the versatile genius of law-inaction as a delivery system

of social justice. By this standard, our constitutional order

vests in the summit Court of jurisdiction to do justice, at

once omnipresent and omnipotent but controlled and

guided by that refined yet flexible censor called judicial

discretion. This nidus of power and process, which masterminds the broad observance throughout the Republic of

justice according to law, is Article 136.”

21. While discussing award of ‘just compensation’ in a personal injury

case, this Court in K. Suresh v. New India Assurance Co. Ltd.6

had the occasion to observe that:

“10. It is noteworthy to state that an adjudicating authority,

while determining the quantum of compensation, has to

keep in view the sufferings of the injured person which

would include his inability to lead a full life, his incapacity to

enjoy the normal amenities which he would have enjoyed

but for the injuries and his ability to earn as much as he

used to earn or could have earned. Hence, while computing

compensation the approach of the Tribunal or a court

has to be broad based. Needless to say, it would involve

some guesswork as there cannot be any mathematical

exactitude or a precise formula to determine the quantum

of compensation. In determination of compensation the

5 [1980] 2 SCR 873 : (1980) 3 SCC 141

6 [2012] 11 SCR 414 : (2012) 12 SCC 274

878 [2024] 3 S.C.R.

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fundamental criterion of “just compensation” should be

inhered.”

22. Not too long ago, in CPL Ashish Kumar Chauhan (supra), this

Court while awarding compensation to a person discharged from

the Indian Air Force, ruled:

“103. ***People sign up to join the armed forces with

considerable enthusiasm and a sense of patriotic duty.

This entails a conscious decision to put their lives on the

line and be prepared for the ultimate sacrifice of their lives.

A corresponding duty is cast upon all state functionaries,

including echelons of power within the armed forces to

ensure that the highest standards of safety (physical/

mental wellbeing, medical fitness as well as wellness) are

maintained. This is absolutely the minimum required of the

military/air force employer for not only assuring the morale

of the forces but also showing the sense of how such

personnel matter and their lives count, which reinforces

their commitment and confidence. Any flagging from

these standards - as the multiple instances in the present

case have established, only entails a loss of confidence

in the personnel, undermines their morale and injects a

sense of bitterness and despair not only to the individual

concerned but to the entire force, leaving a sense of

injustice. When a young person, from either sex (as is

now a days the case) enrols or joins any armed forces,

at all times, their expectation is to be treated with dignity

and honour. The present case has demonstrated again

and again how dignity, honour and compassion towards

the appellant were completely lacking in behaviour by

the respondent employer. Repeatedly the record displays

a sense of disdain, and discrimination, even a hint of

stigma, attached to the appellant, in the attitude of the

respondent employer. Although this court has attempted

to give tangible relief, at the end of the day it realizes

that no amount of compensation in monetary terms can

undo the harm caused by such behaviour which has

shaken the foundation of the appellant›s dignity, robbed

him of honour and rendered him not only desperate

even cynical.”

[2024] 3 S.C.R. 879

Satyanand Singh v. Union of India & Ors.

23. It has been submitted by the counsel for the appellant that he is

presently aged 50 years and is into a small business of his own.

Having considered the plight of the appellant, which his employer

failed to address, as well as the social stigma attached to persons

who are diagnosed as HIV+ve patients, coupled with the position

that the appellant’s reinstatement in service is not an available option

now and also that direction for grant of pension, which we propose

to make, cannot be considered an equitable restitution of what the

appellant has suffered by reason of psychological, financial and

physical trauma, we deem it fit to additionally award him monetary

compensation.

24. Having been discharged from the services of the Indian Army at

the prime age of 27, the appellant was robbed of the opportunity of

further serving the nation for many more years on account of a most

unfortunate turn of events, the responsibility for which can lie on no

shoulders other than the respondents 2 to 4. It is also borne from

the record that the appellant neither received his leave encashment,

nor received reimbursement for the expenses incurred by him in

medical tests.

25. We would be remiss in not recognising the particular circumstances of

the appellant’s discharge from service which compounded the agony

of the process, i.e., a wrongful diagnosis of AIDS and subsequent

termination of services on the same ground. It is no secret that despite

the enactment of the Human Immunodeficiency Virus and Acquired

Immune Deficiency Syndrome (Prevention and Control) Act, 2017,

and the slew of awareness measures taken by Governments in recent

times, the stigma and discrimination which lamentably accompanies

an HIV+ve diagnosis is still an illness that afflicts the minds of society

today. The discriminatory sentiment of deeming persons who are

HIV+ve to be unfit for employment, is starkly evident from the way

in which the appellant has been responded to and treated by the

various authorities. By misdiagnosing the appellant with AIDS, the

respondents indubitably subjected the appellant to further misery

in not only combating social stigma against a disease which the

appellant never suffered from but also from the dreadful thought of

an imminent death resulting from an incurable disease.

26. In view of the extreme mental agony thus undergone by the appellant,

in not only facing the apathetic attitude of the respondents 2 to 4 but 

880 [2024] 3 S.C.R.

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in facing the concomitant social stigma and the looming large death

scare that accompanied such a discharge from the armed forces,

we deem it fit to award a lumpsum compensation of Rs.50,00,000/-

(Rupees fifty lakh only) towards compensation on account of wrongful

termination of services, leave encashment dues, non-reimbursement

of medical expenses and the social stigma faced, to be paid by

the respondents 2 – 4 to the appellant within eight weeks from

the date of this judgment without fail. In addition to the above, the

appellant shall be entitled to pension in accordance with law as if

he had continued in service as Havaldar and on completion of the

required years of service retired as such, without being invalided.

We make it clear that since the appellant had not continued in

service beyond 26th December, 2001 and there was no occasion to

assess his performance for securing a promotion, he shall not be

entitled to raise any plea in relation thereto. However, in computing

the quantum of pension payable to the appellant, the respondents

shall take into account allowances / increments that the appellant

would have been entitled to, had he continued in service till the date

of his retirement as Havaldar.

27. For the reasons aforesaid, the impugned judgment is set aside and

the civil appeal stands allowed.

28. We are conscious that whatever amount by way of compensation

has been directed to be paid to the appellant, by the respondents

2 to 4, can in no manner compensate for the ordeal he had to face

over the years; there could never be an appropriate substitute for

such adversity but such financial compensation might act as a balm

to soothe the mind and steady the future. Now that we have been

informed that the appellant is active and involved in a business of

his own, our prayers are with him to lead a long and healthy life.

Headnotes prepared by: Result of the case:

Vidhi Thaker, Hony. Associate Editor Appeal allowed.

(Verified by: Liz Mathew, Sr. Adv.) 

Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 – s. 7(1) – Applications for stay of selection and appointment of the Election Commissioners in a writ petition challenging vires of s. 7(1) that substituted the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee for the post of the Chief Election Commissioner and the ECs:

[2024] 3 S.C.R. 881 : 2024 INSC 246

Dr. Jaya Thakur & Ors.

v.

Union of India & Anr.

(Writ Petition (Civil) No. 14 of 2024)

22 March 2024

[Sanjiv Khanna and Dipankar Datta, JJ.]

Issue for Consideration

Matter pertains to applications for stay of selection and appointment

of the Election Commissioners.

Headnotes

Chief Election Commissioner and other Election Commissioners

(Appointment, Conditions of Service, and Term of Office)

Act, 2023 – s. 7(1) – Applications for stay of selection and

appointment of the Election Commissioners in a writ petition

challenging vires of s. 7(1) that substituted the Chief Justice

of India with a Union Cabinet Minister nominated by the Prime

Minister in the Selection Committee for the post of the Chief

Election Commissioner and the ECs:

Held: Grant of stay of selection and appointment of the Election

Commissioners would lead to chaos and virtual constitutional

breakdown – In matters involving constitutionality of legislations,

courts are cautious and show judicial restraint in granting interim

orders – Unless the provision is ex facie unconstitutional or

manifestly violates fundamental rights, the statutory provision

cannot be stultified by granting an interim order – Stay is not

ipso facto granted for mere examination or even when some

cogent contention is raised – Suspension of legislation pending

consideration is an exception and not the rule – Submission that

this Court may by an interim order direct fresh selection with the

CJI as a member of the Selection Committee, would be plainly

impermissible, without declaring s. 7(1) as unconstitutional – If

such submission is accepted, it would be enacting or writing

a new law replacing or modifying s. 7(1), as enacted by the

Parliament – Given the humongous task undertaken by the

Election Commission of India, presence of two more ECs brings

about a balance and check – Concept of plurality in Art. 324, 

882 [2024] 3 S.C.R.

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is necessary and desirable – Furthermore, keeping in view the

timelines for the upcoming 18th General Elections for the Lok

Sabha, it is not appropriate to pass any interim order or direction

– Also, EC being a constitutional post, once a constitutional post

holder is selected, they are duty bound to act in accordance

with the letter and spirit of the Constitution – In view thereof,

prayer for grant of stay cannot be accepted and said applications

dismissed. [Paras 10-16]

Case Law Cited

Anoop Baranwal v. Union of India [2023] 9 SCR 1 :

(2023) 6 SCC 161 – explained.

Health for Millions v. Union of India (2014) 14 SCC 496;

T.N. Seshan v. Union of India [1995] Suppl. 2 SCR

106; (1995) 4 SCC 611 – referred to.

List of Acts

Constitution of India; Chief Election Commissioner and other

Election Commissioners (Appointment, Conditions of Service, and

Term of Office) Act, 2023.

List of Keywords

Election Commissioners; Stay of selection and appointment of

the Election Commissioners; Constitutionality of legislations;

Judicial restraint; Interim orders; Suspension of legislation pending

consideration; Violation of Fundamental Rights; CJI as a member

of the Selection Committee for the post of the Chief Election

Commissioner and the ECs; Election Commission of India; Concept

of plurality; 18th General Elections for the Lok Sabha; Balance of

convenience; Prima facie case; Irreparable injury; Stay or injunction;

Interlocutory remedy; Constitutional post; Judicial review; Principle

of proportionality.

Case Arising From

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.14 of 2024

(Under Article 32 of the Constitution of India)

With

W.P.(C) Nos. 13, 11, 87 and 191 of 2024

[2024] 3 S.C.R. 883

Dr. Jaya Thakur & Ors. v. Union of India & Anr.

Appearances for Parties

Gopal Sankarnarayanan, Vikas Singh, Sanjay Parikh, Sr. Advs.,

Prashant Bhushan, Mrs. Cheryl Dsouza, Mrs. Suroor Mander, Ms.

Ria Yadav, Rahul Gupta, Pawan Reley, Gaurav Kumar, Vishal Sinha,

Akshay Lodhi, Shrutanjaya Bharadwaj, Ms. Simran Singh, Sajal

Awashti, Ms. Deepeika Kalia, Keshav Khandelwal, Ms. Vasudha

Singh, Varun Thakur, Ramkaran, Ms. Dolly Deka, Deepak Goel, Mrs.

Tanuj Bagga Sharma, Dr. M.K. Ravi, Denson Joseph, M/s. Varun

Thakur & Associates, Pradeep Kumar Yadav, Vishal Thakre, Gopal

Singh, Aryan P Nanda, Aditya Yadav, Sunil Kumar Srivastava, Tota

Ram, Sanjeev Malhotra, Ms. Ananya Kumar, Ms. Aparna Bhat, Ms.

Karishma Maria, Advs. for the Petitioners.

Tushar Mehta, SG, Aaditya Shankar Dixit, Gaurang Bhushan, Kanu

Agarwal, Devashish Bharukha, Arvind Kumar Sharma, Ankit Agarwal,

Atul Raj, Ashish Shukla, Mohammed Sadique T.A., Kaleeswaram Raj,

Ms. Thulasi K Raj, Ms. Aparna Menon, Ms. Chinnu Maria Antony,

R.P. Gupta, Prashant Padmanabhan, Advs. for the Respondents.

Petitioner-in-person

Judgment / Order of the Supreme Court

Order

1. This order records reasons and decides the applications for stay

of selection and appointment of the Election Commissioners1

, in

the writ petitions filed under Article 32 of the Constitution of India2

,

inter alia, challenging the vires of Section 7(1) of the Chief Election

Commissioner and other Election Commissioners (Appointment,

Conditions of Service, and Term of Office) Act, 2023.3

2. The primary grounds of challenge are twofold. First, Section 7(1)

of the 2023 Act dilutes, if not amends or modifies, the judgment

of this Court’s Constitution Bench in Anoop Baranwal v. Union

of India4

, by substituting the Chief Justice of India5

 with a Union

1 For short, “EC”.

2 For short, “Constitution”.

3 For short, “2023 Act”.

4 [2023] 9 SCR 1 : (2023) 6 SCC 161.

5 For short, “CJI”.

884 [2024] 3 S.C.R.

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Cabinet Minister nominated by the Prime Minister in the Selection

Committee for the post of the Chief Election Commissioner6

 and

the ECs. Secondly, the provision has a direct and potential impact

on the conduct of transparent, free and fair elections, one of the

foundational requirements of democracy.

3. That apart, the selection process of the ECs, as adopted in the

present case, has been challenged on the ground of procedural

irregularity, affecting the fairness, transparency and objectivity in

the selection process in question. The Leader of Opposition in the

House of the People7

 was not furnished necessary details of the

six shortlisted candidates in advance to effectively participate in the

selection process8

. The names and details were statedly furnished

minutes before the meeting for the selection of the ECs was held on

14.03.20249

. Thus, he has been denied the opportunity to choose

and have his voice heard. Further, the writ petition challenging

the vires of the 2023 Act was sub-judice before this Court since

02.01.2024, and therefore soon after the resignation of one of the

ECs, applications for stay were filed, mentioned and directed to be

listed for hearing before this Court on 15.03.2024. However, the

selection and appointment of two ECs was made on 14.03.2024.10

4. The Union of India has filed a conjoint reply to the applications for

stay inter alia, stating that: -

a) The 2023 Act has been enacted as contemplated by Article

324(2) of the Constitution and was brought into effect on

02.01.2024.

b) On 01.02.2024, the Selection Committee, under Section 7(1)

of the 2023 Act, was constituted, and consists of the Prime

Minister, the Home Minister and the LoP.

6 For short, “CEC”.

7 For short, “LoP”. As per Explanation to Section 7(1) of the 2023 Act the leader of the single largest party

in opposition of the Government in the House of the People shall be deemed to be the LoP, in case where

the LoP has not been recognized.

8 Reliance is placed on the letter dated 12.03.2024 of Mr. Adhir Ranjan Chowdhury requesting for bioprofiles of the persons short-listed by the Search Committee well before the meeting of the Selection

Committee.

9 Reliance is placed on the report dated 14.03.2024 published in the Indian Express quoting Mr Adhir

Ranjan Chowdhury.

10 An earlier vacancy to the post of EC was created by virtue of EC – Mr. Anup Chandra Pandey demitting

office on 14.02.2024. The second vacancy to the post of EC occured by virtue of the resignation of EC –

Mr. Arun Goel on 09.03.2024.

[2024] 3 S.C.R. 885

Dr. Jaya Thakur & Ors. v. Union of India & Anr.

c) On 01.02.2024, the Search Committee, under Section 6 of

the 2023 Act, was constituted, and is chaired by Minister of

State, Law and Justice, Government of India11 with the Home

Secretary, GoI and Secretary, Department of Personnel and

Training, GoI as members.

d) On 04.02.2024, notice was issued for convening meeting of the

Selection Committee on 07.02.2024 for filling one vacancy to

the post of EC, as an EC had demitted office.12 However, the

meeting was postponed on 07.02.2024.

e) On 09.03.2024, notice was issued for meeting of the Selection

Committee to be held on 15.03.2024.

f) On 09.03.2024, Mr. Arun Goel, EC, tendered his resignation,

which was accepted w.e.f. 09.03.2024, thereby resulting in the

second vacancy.

g) In view of the second vacancy, a revised note dated 09.03.2024

was issued for the meeting of the Selection Committee to be

held on 14.03.2024 for filling up the two vacant posts of EC.

It is highlighted by the respondent – Union of India that the meeting

fixed for 15.03.2024 was preponed to 14.03.2024 on 09.03.2024, prior

to the listing of the stay applications by this Court on 15.03.2024.

5. However, it is to be noted that I.A. No. 63879/2024 in Writ Petition (C)

No. 87 of 2024 was filed on 12.03.202413 and I.A. No. 66382/2024

in W.P. (C) 11/2024 was filed on 14.03.202414.

6. Mr. Adhir Ranjan Chowdhury, Member of the Selection Committee15,

on 12.03.2024 had requested the Secretary, Legislative Department,

GoI to share details of the shortlisted names. On 13.03.2024, the

Secretary, Legislative Department, GoI, had sent a list of eligible

persons, more than 200 in number, being considered by the Search

11 For short, “GoI”.

12 See supra note 10.

13 Application filed by Association of Democratic Reforms praying, inter alia, for the stay of implementation

of Section 7 of the 2023 Act.

14 Application filed by Naman Sherstra praying, inter alia, for stay of the effect of the 2023 Act. Earlier I.A.

No. 4223/2024 in W.P. (C) 13/2024 was filed on 05.01.2024, I.A. No. 30286/2024 in W.P. (C) No. 87 of

2024 was filed on 05.02.2024, albeit stay was not granted by this court.

15 Being the leader of the single largest party in opposition in the House of the People.

886 [2024] 3 S.C.R.

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Committee to Mr. Adhir Ranjan Chowdhury. The Search Committee

had not carried out the shortlisting exercise by then.

7. The Search Committee, in its meeting on 13.03.2024, could not

finalise and shortlist the names. In the meeting held on 14.03.2024,

the Search Committee recommended a panel of six names for

consideration of the Selection Committee, which were then circulated

and forwarded to the members of the Selection Committee, including

Mr. Adhir Ranjan Chowdhury.

8. On 14.03.2024 the Selection Committee met and recommended

the names of Mr. Gyanesh Kumar and Dr. Sukhbir Singh Sandhu

to the President of India for appointment as ECs. The President of

India had thereupon approved the recommendation on 14.03.2024.

9. We would not, at this stage, go into the depth and details of the

challenge to the vires of Section 7(1) of the 2023 Act. The judgment

in Anoop Baranwal (supra) notices the appointments of the CEC and

ECs made from the 1950s till 2023,16 but this Court intervened in the

absence of any legislation. Article 324(2) postulates the appointment

of the CEC and ECs by the President of India in the absence of any

law made by the Parliament. The judgment in Anoop Baranwal (supra)

records that there was a legislative vacuum as the Parliament had

not made any enactment as contemplated in Article 324(2). Given

the unique nature of the provision and absence of an enactment, this

Court had issued directions constituting the Selection Committee as

a pro-tem measure. This is clear from the judgment, which states that

the direction shall hold good till a law is made by the Parliament. It

is also observed that the Court is neither invited, nor if invited, would

issue a mandamus to the legislature to make a law. We would also

add that the Court would not ‘invite’ the legislature to make a law

in a particular manner. However, the Constitutional Court within the

framework of the Constitution exercises the power of judicial review

and can invalidate a law when it is violative of the Fundamental

Rights, on application of the principle of proportionality, etc.

10. It is well-settled position of law that in matters involving constitutionality

of legislations, courts are cautious and show judicial restraint in granting

interim orders. Unless the provision is ex facie unconstitutional or

16 See paragraphs 63-72, Anoop Baranwal (supra).

[2024] 3 S.C.R. 887

Dr. Jaya Thakur & Ors. v. Union of India & Anr.

manifestly violates fundamental rights, the statutory provision cannot

be stultified by granting an interim order.17 Stay is not ipso facto

granted for mere examination or even when some cogent contention

is raised. Suspension of legislation pending consideration is an

exception and not the rule. The said principle keeps in mind the

presumption regarding constitutionality of legislation as well as the fact

that the constitutional challenge when made may or may not result in

success. The courts do not, unless eminently necessary to deal with

the crises situation and quell disquiet, keep the statutory provision in

abeyance or direct that the same be not made operational. However,

it would not be appropriate to pen down all situations as sometimes

even gross or egregious violation of individual Fundamental Rights

may on balance of convenience warrant an interim order. The Courts

strike a delicate balance to step-in in rare and exceptional cases,

being mindful of the immediate need, and the consequences as to

not cause confusion and disarray.

11. The applicant-petitioners urge that this court may by an interim

order direct fresh selection with the CJI as a member of the

Selection Committee. This would be plainly impermissible, without

declaring Section 7(1) as unconstitutional. Further, we would be

enacting or writing a new law replacing or modifying Section 7(1)

of the Act, as enacted by the Parliament, if such a contention

were accepted.

12. Moreover, any interjection or stay by this Court will be highly

inappropriate and improper as it would disturb the 18th General

Election for the Lok Sabha which has been scheduled and is now

fixed to take place from 19.04.2024 till 01.06.2024. Balance of

convenience, apart from prima facie case and irreparable injury, is

one of the considerations which the court must keep in mind while

considering any application for grant of stay or injunction. Interlocutory

remedy is normally intended to preserve status quo unless there

are exceptional circumstances which tilt the scales and balance of

convenience on account of any resultant injury. In our opinion, grant

of stay would lead to uncertainty and confusion, if not chaos. That

apart, even when the matter had come up earlier and the applications

for stay were pressed, we had refused to grant stay.

17 Health for Millions v. Union of India, (2014) 14 SCC 496.

888 [2024] 3 S.C.R.

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13. Given the importance and humongous task undertaken by the

Election Commission of India, presence of two more ECs brings

about a balance and check. The concept of plurality in Article 324

of the Constitution, which has been noticed and approved by this

Court in T.N. Seshan v. Union of India18, is necessary and desirable.

14. We must, however express our concern on the procedure adopted

for selection of the incumbents to the two vacant posts of ECs, a

significant constitutional post. Such selections should be made with

full details and particulars of the candidates being circulated to all

members of the Selection Committee. Section 6 of the 2023 Act

postulates five prospective candidates which, prima facie, appears

to mean that for two vacant posts ten prospective candidates

should have been shortlisted. Procedural sanctity of the selection

process requires fair deliberation with examination of background

and merits of the candidate. The sanctity of the process should not

be affected. Nevertheless, in spite of the said shortcoming, we do

not deem it appropriate at this stage, keeping in view the timelines

for the upcoming 18th General Elections for the Lok Sabha, to pass

any interim order or direction. As indicated above, this would lead

to chaos and virtual constitutional breakdown. Remand at this stage

would not resolve the matter. It may also be relevant to state that

the petitioners have not commented or questioned the merits of the

persons selected/appointed as Ecs.

15. Further, EC being a constitutional post, it is wise to remind ourselves

that once a constitutional post holder is selected, they are duty bound

to act in accordance with the letter and spirit of the Constitution.

The assumption is that they shall adhere to constitutional role and

propriety in their functioning. To borrow from Dr. B.R. Ambedkar,

Chairman, Drafting Committee of the Constituent Assembly of India:

“However good a Constitution may be, if those who are

implementing it are not good, it will prove to be bad.

However bad a Constitution may be, if those implementing

it are good, it will prove to be good.”

16. Having regard to the aforesaid position, we are not inclined to accept

the prayer for grant of stay. Accordingly, the applications seeking stay

18 [1995] Suppl. 2 SCR 106 : (1995) 4 SCC 611.

[2024] 3 S.C.R. 889

Dr. Jaya Thakur & Ors. v. Union of India & Anr.

are dismissed. We would clarify that the observations in this order

are tentative and are not to be treated as final and binding, as the

matter is sub-judice.

17. Recording the aforesaid, applications seeking stay in I.A. No.

66382/2024 in W.P. (C) 11/2024, I.A. No. 4223/2024 in W.P. (C)

13/2024, I.A. No. 62608/2024 in W.P.(C) No. 14/2024, I.A. No.

68091/2024 in W.P. (C) 87/2024, I.A. No. 30286/2024 in W.P. (C)

87/2024, I.A. No. 63879 of 2024 in W.P. (C) No. 87 of 2024 and I.A.

No. 69713/2024 in W.P. (C) 191/2024 are dismissed.

18. Applications seeking intervention in I.A. No. 64017/2024 in W.P.(C)

14/2024 and I.A. No. 66282/2024 in W.P. (C) 87/2024 are dismissed.

19. Learned counsel for the intervenor in I.A. No. 71728/2024 in W.P.

(C) 14/2024 prays for and is granted the permission to withdraw the

intervention application. Accordingly, I.A. No. 71728/2024 in W.P. (C)

14/2024 is dismissed as withdrawn.

Headnotes prepared by: Nidhi Jain Result of the case:

IAs dismissed.