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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: PRATIBHA BONNERJEA & ANR.

DATE OF JUDGMENT21/11/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR  693            1995 SCC  (6) 765  JT 1995 (8)   357        1995 SCALE  (6)573

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T AHMADI, CJI -----------      Two questions  are raised  in this  appeal, namely, (i) the Central  Administrative Tribunal  had no jurisdiction to entertain the application and (ii) the Tribunal was wrong in holding that  the pension  admissible to  the respondent  as Vice-Chairman of  the Tribunal  had to  be determined  under Part I  of the  First Schedule  to  the  High  Court  Judges (Conditions of  Service) Act,  1954, hereinafter called ’the Act’. The  brief facts  which we  are required notice run as follows:      The first  respondent was appointed a Judge of the High Court of  Calcutta on  13th January, 1978 and she retired as such with  effect from  16th February, 1989. Soon thereafter on 3rd  March, 1989 she was appointed a Vice-Chairman of the Tribunal which  post she relinquished on 16th February, 1992 on  retirement.   Admittedly  she  was  drawing  pension  on retirement as  High Court  Judge. For the period between 3rd March, 1989  and 16th February, 1992 she served as the Vice- Chairman and was entitled to pension. She contended that her pension should  be fixed  under Part  I whereas  the Union’s contention was  that she  was entitled to pension admissible under Part  III of  the First  Schedule to  the Act.  As her contention was  not conceded  she filed O.A. No. 513 of 1992 in the Central Administrative Tribunal for relief as per her point of  view. The  Union raised  a  preliminary  objection regarding jurisdiction  and  on  merit  contended  that  the department’s point  of view  is unassailable.  The  Tribunal upheld both the contentions of the respondent and hence this appeal by special leave.      We  do   not  propose   to  go  into  the  question  of jurisdiction as  we deem it proper to settle the question of fixation of  pension so  that the  first respondent  is  not driven from  pillar to  post. We  will,  therefore,  address

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ourselves to the question of pension admissible to the first respondent. We  may at  the outset  refer to Rule 15A of the Central Administrative Tribunal (Salaries and Allowances and Conditions  of   Service  of   Chairman,  Vice-Chairman  and Members) Rules, 1985. It reads as under:      "15-A.     Notwithstanding      anything      contained in  rules 4  to 15 of the said      rules, the  conditions  of  service  and      other  perquisites   available  to   the      Chairman  and   Vice-Chairman   of   the      Central Administrative Tribunal shall be      the same  as  admissible  to  a  serving      Judge of  a High  Court as  contained in      the High  Court  Judges  (Conditions  of      Service) Act, 1954 and High Court Judges      (Travelling Allowances) Rules, 1956." Thus  the   conditions  of  service  and  other  perquisites available  to   the  Vice-Chairman  shall  be  the  same  as admissible to  a ’serving  judge’ of a High Court. A serving judge of  a High  Court is entitled to pension under Chapter III of  the Act. Section 14 says that every Judge, shall, on retirement be  paid a  pension in  accordance with the scale and provisions  in Part I of the First Schedule, provided he is not  a member  of the  ICS or  has  not  held  any  other pensionable post  under  the  Union  or  State.  Section  15 provides that every Judge who is not a member of the ICS but has held any other pensionable civil post under the Union or the State,  shall,  on  retirement  be  paid  a  pension  in accordance with  the scale and provisions in Part III of the First Schedule.  The provisions  of Part  I apply to a Judge who is  not a  member of  the ICS  or has not held any other pensionable post  under the  Union or a State and also apply to a  Judge who,  being the member of ICS or having held any other pensionable civil post under the Union or a State, has elected to  receive the pension payable under the said Part. On the  other hand  the provisions  of Part  III apply  to a Judge who has held any pensionable post under the Union or a State but is not a member of the ICS and who has not elected to receive  the pension  payable under  Part  I.  The  first respondent was  a direct  recruit from  the Bar when she was appointed a  Judge of  the High Court and, therefore, on her retirement she  became entitled  to pension  under Part I of the First Schedule. There is no doubt, so far as this aspect is concerned.  When she was appointed a Vice-Chairman of the Tribunal she  was already  drawing pension as a retired High Court Judge.  Therefore, the  short question  is whether her case would  be governed  by Part  I or Part III of the First Schedule when  she retired as Vice-Chairman of the Tribunal. The submission  on behalf  of the  Appellant-Union  is  that since the  first respondent  was holding  a pensionable post under the  Union/State at  the time  when she retired as the Vice-Chairman of the Tribunal, her case would be governed by Part III  and not  Part I  of the  First Schedule. The first respondent was indisputably not a member of the ICS. Was she holding a pensionable post under the Union/State at the time when she  retired as  the Vice-Chairman  of the Tribunal? If she was  holding a  pensionable post  under the Union/State, there can  be no  doubt that  she would  not be  entitled to pension under  Part I but would be entitled to pension under Part III  of the  First Schedule.  That gives  rise  to  the question whether  a High  Court Judge who is drawing pension can be  said to be a person holding a pensionable post under the Union/State.  If the  answer is  in the  affirmative the first respondent  would be  entitled to  pension under  Part III, but  if the  answer is  in the  negative, she  would be

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entitled to  pension under  Part I  of the First Schedule to the Act.  That is  the moot question for consideration under Rule 15A,  extracted earlier. The pension has to be the same as admissible  to "a serving Judge of a High Court under the Act and the Rules made thereunder".      Does a  Judge of  the High  Court hold a post under the Union or  a State?  If  yes,  the  first  respondent  having retired as a Judge of the High Court and having been drawing pension at  all material  times would  not  be  entitled  to fixation of  pension under Part I of the First Schedule. If, however, it is found that a High Court Judge does not hold a post under  the Union  or a  State, Part I would squarely be attracted as  he or  she would  be outside  thescope of Part III. Therefore,  what we  have to  determine is  whether the first respondent who was admittedly a pensioner as a retired High Court  Judge could  be said  to be  a person  holding a pensionable post under the Union or a State.      The question  to be  considered is  whether  under  the Constitution there  is, strictly speaking, a relationship of master and  servant between  the Government and a High Court Judge? In  order to answer this question a few provisions of the Constitution  need to  be noticed.  Firstly, Article  50 enjoins that  the State  should take  steps to  separate the judiciary from  the executive. Next, we may notice Chapter V in Part VI of the Constitution which concerns High Courts in the States.  Article 214 provides that there shall be a High Court for  each State  or a  group of  States.  Article  217 posits that  every Judge  of a High Court shall be appointed by the  President by  warrant under  his hand and seal after consultation with  the Chief  Justice of  India,  etc.,  who shall hold  office until  he attains  the age of 62 years. A Judge once  appointed can  vacate office  by  tendering  his resignation or  on his  elevation to  the Supreme  Court  or transfer to  another High  Court or  on being  removed  from office by  the President  in the  manner provided by Article 124(4), i.e.  after an  address by  each House of Parliament supported by  a majority  of the  total membership  of  that House and  by majority  of not  less than  two-thirds of the members  present  and  voting  has  been  presented  to  the President. The  removal can  be  on  the  ground  of  proved misbehaviour or incapacity. Article 219 expects every person appointed to  be a  Judge of  the High  Court  to  make  and subscribe an  oath or  affirmation according to the form set out in  the Third  Schedule. That  form is  Form VIII  which inter alia requires the Judge to swear in the name of God or to solemnly affirm that he would truly and faithfully and to the best  of his  ability and  judgment perform  his  duties without fear  or favour,  affection or  illwill. These words clearly  indicate   that  the   judicial  function  must  be discharged   without    being   influenced   by   extraneous considerations. Independence  and impartiality  are the  two basic  attributes   essential  for  a  proper  discharge  of judicial functions.  A Judge  of a High Court is, therefore, required to  discharge  his  duties  consistently  with  the conscience of the Constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders  from anyone.  Since  a  substantial  volume  of litigation involves  Government interest,  he is required to decide matters  involving Government interest day in and day out.  He   has  to   decide  such  cases  independently  and impartially without  in any  manner being  influenced by the fact that  the Government is a litigant before him. In order to preserve  his independence his salary is specified in the Second Schedule,  vide Article  221 of the Constitution. He, therefore, belongs  to the third organ of the State which is

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independent of  the other  two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the  judicial wing  of the State can never be subordinate to the  other two  wings of  the State.  A Judge of the High Court, therefore,  occupies  a  unique  position  under  the Constitution. He  would not  be able  to discharge  his duty without fear  or favour,  affection or illwill, unless he is totally independent  of the executive, which he would not be if he  is regarded  as a Government servant. He is clearly a holder of  a constitutional  office and  is able to function independently and impartially because he is not a Government servant and does not take orders from anyone. That is why in Union of  India Vs.  Sakalchand Himatlal  Sheth (1977) 4 SCC 193 Chandrachud  J., said  in paragraph  32 at page 224 ’the rejection of  Mr. Seervai’s  argument........ should  not be read as  a negation  of his argument that there is no master and servant  relationship between  the Government  and  High Court Judges." Bhagwati J. in his separate judgment said the same thing in paragraph 49 when he observed: ’a Judge of the High Court is not a Government servant, but he is the holder of a constitutional office’.      From the  scheme of  the Constitution  to which we have adverted briefly  it is obvious that the Constitution-makers were  evidently  keen  to  ensure  that  the  judiciary  was independent of  the executive. An independent, impartial and fearless  judiciary   is  our   constitutional  creed.   The Constitution  has  tried  to  insulate  the  judiciary  from outside  influence   both  from   the  Executive   and   the Legislature. The  provisions of  Chapter VI in Part V of the Constitution dealing  with courts below the State High Court also show  that the constitution-makers were equally keen to insulate even the subordinate judiciary. Articles 233 to 237 have,  therefore,   provided  a  wholly  different  mode  of selection and  appointment of Judicial Officers at the grass roots level  and upto  the  District  Courts  from  the  one provided  for  other  civil  posts.  No  doubt  the  initial appointment has  to be  made by  the Governor  of the State, albeit after  selection as  provided in  that  chapter,  but thereafter the  posting and promotion, grant of leave, etc., is with  the High  Court and  not the  Government. Thus  the Judicial Officers  belonging to  the subordinate  courts are placed under  the protective  umbrella of the High Court. We have already  pointed out  the provisions  dealing with  the appointment of  High  Court  Judges.  The  entire  procedure outlined for  their appointment  is totally  different  from that provided  for  other  services.  That  is  because  the constitution-makers  were   conscious  that  the  notion  of judicial  independence   must  not   be  diluted.   If   the relationship between the Government and the High Court Judge is of  master and  servant  it  would  run  counter  to  the constitutional creed  of independence for the obvious reason that the  servant would  have to carry out the directives of the master.  Since a  High Court  Judge has  to decide cases brought by  or against  the Government  day in  and out,  he would not  be able  to function without fear or favour if he has to  carry out  the instructions  or  directives  of  his master. The  whole  concept  of  judicial  independence  and separation of  judiciary from the executive would crumble to the ground  if such  a relationship  is conceded. High Court Judges  would   not  be   true  to  their  oath  if  such  a relationship is  accepted. That  is why  not only Judges but even  the   staff  members   are  insulated  from  executive influence. Article 229 clearly provides that appointments of officers and  servants of  a High Court shall be made by the Chief Justice of the Court or such other Judge or officer as

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he may  direct. Even  the conditions  of service of officers and servants shall be such as may be prescribed by the Chief Justice or  his nominee authorised by him to make rules; the approval of  the Governor  is necessary  only if  the  rules relate to  salaries,  allowances,  leave  or  pension.  This provision also  shows that officers and servants of the High Court are  also under  the exclusive  control of  the  Chief Justice and  not the Government. If that be the relationship between the  officers and  servants of the High Court vis-a- vis the  Government, it is difficult to imagine a master and servant relationship  between the  Government and  Judges of the High  Court. We have, therefore, no hesitation in coming to  the   conclusion  that   the  relationship  between  the Government and  High Court  Judges  is  not  of  master  and servant. They  cannot be said to be holding a post under the Union/State.      For the  above reasons  we are  of the  view  that  the Central Administrative  Tribunal was  right in  the view  it took in this behalf. We, therefore, dismiss this appeal with costs.