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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 521 OF 2002

 P. Ramakrishnam Raju          .... Petitioner (s)

Versus

Union of India & Ors.                                    .... Respondent(s)       

WITH  

WRIT PETITION (CIVIL) NO. 523 OF 2002 WRIT PETITION (CIVIL) NO. 524 OF 2002 WRIT PETITION (CIVIL) NO. 37 OF 2003 WRIT PETITION (CIVIL) NO. 38 OF 2003 WRIT PETITION (CIVIL) NO. 465 OF 2005

AND

CIVIL APPEAL NOS.4248-4249 OF 2014 (Arising out of S.L.P. (C) Nos. 9558-9559 of 2010)

J U D G M E N T

P.Sathasivam, CJI.

1) The  main  question  which  arises  for  consideration  is  

whether High Court Judges, who are appointed from the Bar  

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under  Article  217(2)(b)  of  the  Constitution  of  India,  on  

retirement, are entitled for an addition of 10 years to their  

service for the purposes of their pension?  

2) The above petitions have been filed by former Judges of  

the  various  High  Courts  of  the  country  as  well  as  by the  

Association of the Retired Judges of the Supreme Court and  

the High Courts elevated from the Bar.

3) The petitioners have prayed that the number of years  

practiced as an advocate shall  be taken into account and  

shall be added to the service as a Judge of the High Court for  

the  purpose  of  determining  the  maximum  pension  

permissible  under  Part-I  of  the  First  Schedule  to  the  High  

Court Judges (Salaries and Conditions of Service) Act, 1954  

(in short ‘the HCJ Act’).  It was further stated that in respect  

of Part-III of the First Schedule, which deals with the Judges  

elevated from the State Judicial Service, almost all the Judges  

get full pension even if they have worked as a Judge of the  

High Court for 2 or 3 years and their entire service is added  

to their service as a Judge of the High Court for computing  

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pension under this Part.  For this reason, the members of the  

subordinate  judiciary  get  more  pension  than  the  Judges  

elevated from the Bar on retirement.

4) In view of the above, the petitioners prayed that though  

Part-I and Part-III Judges hold equivalent posts, they are not  

similarly  situated  in  regard  to  pension  and  retirement  

benefits  which  is  breach  of  Articles  14  and  21  of  the  

Constitution of India and one rank one pension must be the  

norm in respect of a constitutional office.   It is further prayed  

that  the retired  Judges  of  the  High  Courts  should also be  

given  enhanced  allowance  for  domestic  help/peon/driver,  

telephone expenses and other secretarial assistance.     

5) We  have  heard  the  arguments  advanced  by  learned  

counsel for the parties and perused the records.

6) The Constitution of India provides for three-tier judicial  

system.  The Union Judiciary-Establishment and Constitution  

of Supreme Court  of India (Articles 124 to 147);  The High  

Courts in the States (Articles 214 to 231) and Subordinate  

Courts (Article 233 to 237).  The Constitution of India also  

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provides  for  appointment  of  Judges  from  amongst  the  

members of the Bar at all the three levels.   

7) The appointment of the Judges of the Supreme Court is  

governed  by  Article  124(3),(a),  (b)  and  (c)  of  the  

Constitution.  It envisages appointment from three sources:  

(i) from amongst the Judges of the High Court having service  

of at least five years; (ii) the members of the Bar having a  

standing of not less than 10 years; and (iii) any person, who  

is, in the opinion of the President, is a distinguished jurist.  

8) The  appointment  of  a  Judge  of  the  High  Court  is  

governed  by  Article  217(2)(a)  and  (b)  of  the  Constitution  

which envisages appointments  from two different  sources:  

(a)  from amongst  the  Judicial  officers  who  have  held  the  

office for at least 10 years; and (b) the members of the Bar,  

who have been Advocates of a  High Court  for at  least  10  

years.  

9) The  appointment  of  District  Judges  is  governed  by  

Article  233(2)  of  the  Constitution  which  provides  that  a  

person not already in the service of the Union or of the State  

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shall only be eligible to be appointed as a district judge if he  

has been for  not  less than seven years an advocate or a  

pleader  and  is  recommended  by  the  High  Court  for  

appointment.  

10) The  Supreme  Court  Judges  (Salaries  &  Conditions  of  

Service) Act, 1958, (in short ‘the SCJ Act’), the HCJ Act and  

the  Rules  made  thereunder,  regulate  their  salary  and  

conditions of service.   The provisions under  both the Acts  

were similar prior to the Amendment Act, 2005.  The service  

conditions  of  the  Judges  of  the  subordinate  courts  are  

governed by the Service Rules made under Article 309 of the  

Constitution of India.  

11) Section 13 of the SCJ Act read with Clause 2 of Part-I of  

the Schedule deals with the pension payable to the retired  

Judges of the Supreme Court.  Similarly, Section 14 of the HCJ  

Act read with Clause 2 of Part-I of the First Schedule deals  

with the pension payable to the retired Judges of the High  

Courts.  The provisions under both the Acts were similar prior  

to the Amendment Act, 2005.  Relevant portion of Section 14  

of the HCJ Act reads as follows:

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“14.   Pension  payable  to  Judges.- Subject  to  the  provisions of this Act, every Judge shall, on his retirement,  be  paid  a  pension  in  accordance  with  the  scale  and  provisions in Part 1 of the First Schedule:

Provided that no such pension shall be payable to a Judge  unless-

a) he has completed not less than twelve years of service  for pension; or

b) he has attained the age of sixty-two years; or

c) his retirement is medically certified to be necessitated  by ill-health;”

12) Clause 2 of Part-I to the First Schedule of the said Act  

deals  with  the  pension  for  the  retired  Judges  of  the  High  

Court, who are directly appointed from the Bar, which reads  

as under:-

“2. Subject to the other provisions of this part, the pension  payable to a Judge, to whom this part apply and who has  completed  not  less  than  7  years  of  service  for  pension  shall be  

(a) for  service  as  Chief  Justice  in  any  High  Court,  Rs.43,890/- per annum for each completed year of service;  (b)  for  service  as  any  other  Judge  in  any  High  Court  Rs.34,350/- per annum for each completed year of service.  

Provided that the pension under this paragraph shall in no  case exceed Rs.5,40,000/- per annum in the case of Chief  Justice and Rs.4,80,000/- per annum in case of any other  Judges.”

13) The  above-noted  Clause  (2)  of  Part  I  of  the  First  

Schedule implies that no pension is payable to the Judges  

having less than 7 years of service as a Judge.  The above  

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Section further shows that for a Judge of the High Court to  

receive full pension benefits, he should have completed 12  

years of service as a Judge of the High Court.  It is submitted  

that when members of the Bar are offered the post of High  

Court Judges, they are generally at the age of about 50 years  

or above and at the prime of their practice, which they have  

to give up to serve the system.  Therefore, many of them are  

reluctant to accept the offer as the post-retirement benefits  

are not attractive enough.  

14) Section 13 and Clause 2 of the Schedule to the SCJ Act  

earlier  contained  similar  prohibition  with  regard  to  the  

eligibility of pension to the Judges appointed from the Bar as  

contained in  the  HCJ  Act.   Both  the  Acts  provide  that  no  

pension shall  be  payable  to  a  Judge who has  less than 7  

years of service.  

15) In Kuldip Singh vs. Union of India, (2002) 9 SCC 218,  

the petitioner therein, who was appointed as a Judge of the  

Supreme Court from the Bar, on his retirement was denied  

the  benefit  of  pension  as  he  did  not  fulfill  the  requisite  

conditions.  Consequently, he filed a Writ Petition before this  

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Court praying, inter alia, (a) to take into account 10 years of  

practice at the Bar in addition to his service for the purposes  

of pension.  (b) In the alternative, prayed for a direction to  

treat the appointees under Article 124(3)(b) for the purposes  

of pension at par with the appointees under Article 124(3)(a).  

On 24.09.2002, while issuing notice, this Court passed the  

following order:-

“1. In  this  writ  petition,  the  question  which  arises  for  consideration  relates  to  pension  which  is  payable  to  a  Judge  who  retires  from  this  Court  after  having  been  appointed  directly  from  the  Bar.  Similar  question  also  arises with regard to Bar appointees to the High Courts.

2. Experience  has  shown  that  the  Bar  appointees  especially, if they are appointed at the age of 50 years and  above,  get  lesser  pension  than  the  Service  Judge  appointees. It is to be seen that as far as the Constitution  of  India  is  concerned,  it  stipulates  the  manner  of  appointment  of  the  Judges  and  provides  what  may  be  termed as the qualification required for their appointment.  The  Constitution  contemplates  appointment  to  the  High  Courts from amongst members of the Bar as well as from  amongst  the  judicial  officers.  The  Constitution  does  not  provide  for  any  specific  quota.  Till  a  few  years  ago  in  practice 66 2/3% of  vacancies were filled  from amongst  members  of  the  Bar  and  33  1/3%  from  the  judicial  services. It is only in the Conference of 4-12-1993 of the  Chief Ministers and the Chief Justices that it was decided  that  the number  of  vacancies from amongst  the judicial  officers “might go up to 40%”. The decision of 4-12-1993,  cannot mean that the number of Judges from the services  has  to  be  40%.  The  normal  practice  which  has  been  followed was 2/3rds and 1/3rd from amongst members of  the Bar and judicial services respectively and it is only on  a rare occasion that the Chief Justice of a High Court can  

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propose more Service Judges being appointed if  suitable  members of the Bar are not available. But this cannot be  more than 40% in any case. It may here also be noted that  in  the  Chief  Justices’  Conference  held  in  1999,  it  was  unanimously resolved that the quota should normally be  66  2/3%  and  33  1/3%  and  it  is  on  this  basis  the   Government  should  determine  the  likely  number  of  Bar   Judges and then consider whether the High Court Judges   who are appointed from amongst the members of the Bar   should not be given the same weightage as is now sought   to be given to the members of the Bar who are appointed   to this Court as far as pension is concerned.”  

     (Emphasis  supplied)

 16) The Government, vide Amendment Act, 2005 (46/2005),  

added Section 13A to the SCJ Act which reads as under:

“Subject to the provision of this Act, a period of ten years  shall be added to the service of a Judge for the purpose of  his pension, who qualified for appointment as such Judge  under  sub-clause (b)  of  Clause (3)  of  Article  124 of  the  Constitution.”

Therefore, the condition of minimum 7 years of service as a  

Judge to become eligible for pension was omitted from the  

Section as well as from Clause 2 of its Schedule.  In view of  

the  amendment,  the  said  writ  petition  was  dismissed  as  

withdrawn on 06.12.2005.  However, petitioner’s writ petition  

and other connected matters remained pending.  

17) In Govt. of NCT of Delhi & Ors. vs. All India Young  

Lawyers’ Association (Registered) And Another, (2009)  

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14 SCC 49, a Lawyers’ Association filed a writ petition in the  

High Court  of Delhi  praying therein that  the benefit  of 15  

years  addition  of  service  be  given  to  the  Judge,  who  is  

directly appointed from the Bar to the Higher Judicial Service  

for the purposes of pension.  The writ petition was allowed  

and Rule 26B was ordered to be added to the Delhi Higher  

Judicial  Service  Rules,  1970.   The  Govt.  of  NCT,  Delhi  

challenged  the  said  judgment  and  order  and  this  Court  

upheld the validity of Rule 26B, however, the period to be  

added  to  the  service  for  the  purposes  of  pension,  was  

reduced to 10 years or actual practice at the Bar whichever  

is less.   

18) In  the  three-tier  judicial  system  provided  by  the  

Constitution, members of the Bar, who join the Higher Judicial  

Service at the District Judges level, on retirement,  get the  

benefit of 10 years addition to their service for the purposes  

of  pension  (Rule  26B  of  the  DHJS  Rules).   Judges  of  the  

Supreme  Court,  who are  appointed  from the  Bar  given  a  

period of 10 years to their service for the purposes of pension  

(Section 13A of the Amendment Act, 2005).  However, the  

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benefit of 10 years addition to their service for the purposes  

of pension is being denied to the Judges of the High court  

appointed from the Bar, which is arbitrary and violative of  

Article 14 of the Constitution of India.  

19) The Explanation (aa) appended to Article 217(2) of the  

Constitution of India envisages that, “in computing the period  

during which a person has been an advocate of a High Court,  

there shall be included any period during which the person  

has held judicial office or the office of a member of a tribunal  

or  any post,  under  the Union or a  State,  requiring special  

knowledge  of  law  after  he  became  an  advocate.”   The  

explanation thus treats the experience of an Advocate at the  

Bar and the period of judicial office held by him at par.

20) The Judges, who are appointed under Article 217(2)(a)  

being members of the Judicial Service, even if they serve as a  

Judge of the High Court for only one or two years, get full  

pension benefits because of the applicability of Rule 26B or  

because of their earlier entry into judicial service.  However,  

the Judges of the High Court, who are appointed from the Bar  

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do not get similar benefit of full pension, which is arbitrary  

and discriminatory.  

21) Section 14 of the HCJ Act and Clause 2 of Part I of the  

First Schedule which governs the pension payable to Judges  

gives rise to unequal consequences.  The existing scheme  

treats unequally the equals, which is violative of Articles 14  

and 21 of the Constitution of India.  

22) To  remove  the  above  discrimination,  in  the  Chief  

Justices Conference held on April 5 and 6, 2013, it was, inter  

alia,  resolved  that,  “for  pensionary  benefits,  ten  years’  

practice as an advocate be added as a qualifying service, for  

Judges elevated from the Bar.” (Resolution No.18 (viii).   It  

fully supports the petitioner’s submission.   

23) The  ratio  of  the  decision  cited  by  the  respondent  in  

Union of India vs.  Devki Nandan Agarwal, AIR 1992 SC  

196 is not applicable because the reliefs prayed therein were  

entirely different and also because it is per incuriam in view  

of the subsequent decisions of this Court of equal strength in  

All India Judges Association vs. Union of India, AIR 1992  

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SC 165;  and  All India Judges Association vs.  Union of  

India,  AIR  1993  SC  2493  wherein  the  requirement  of  

independence of the judiciary have been underlined as also  

two decisions cited above i.e. Kuldip Singh (supra) and All  

India Young Lawyers’ Association (supra).   

24) 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 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  practicing  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  

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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-a-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.

25) 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.

26) The meager pension for Judges drawn from the Bar and  

served for less than 12 years on the Bench adversely affects  

the  image  of  the  Judiciary.   When  pensions  are  meager  

because of the shorter service, lawyers who attain distinction  

in the profession may not, because of this anomaly, accept  

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the office of Judgeship.  When capable lawyers do not show  

inclination towards Judgeship, the quality of justice declines.

27) In most of the States, the Judgeship of the High Court is  

offered  to  advocates  who  are  in  the  age  group  of  50-55  

years, since pre-eminence at the Bar is achieved normally at  

that  age.   After  remaining  at  the  top  for  a  few years,  a  

successful lawyer may show inclination to accept Judgeship,  

since that is the culmination of the desire and objective of  

most of the lawyers.   When persons holding constitutional  

office  retire  from  service,  making  discrimination  in  the  

fixation of their  pensions depending upon the source from  

which they were appointed is in breach of Articles 14 and  

16(1) of the Constitution.  One rank one pension must be the  

norm in respect of a Constitutional Office.

28) When a  Civil  Servant  retires  from service,  the  family  

pension  is  fixed  at  a  higher  rate  whereas  in  the  case  of  

Judges  of  the  High  Court,  it  is  fixed  at  a  lower  rate.   No  

discrimination  can  be  made  in  the  matter  of  payment  of  

family  pension.   The  expenditure  for  pension  to  the  High  

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Court Judges is charged on the Consolidated Fund of India  

under Article 112(3)(d)(iii) of the Constitution.

29) In  the  light  of  what  is  discussed,  we  accept  the  

petitioners’ claim and declare that for pensionary benefits,  

ten years’ practice as an advocate be added as a qualifying  

service for Judges elevated from the Bar.  Further, in order to  

remove arbitrariness in the matter of pension of the Judges  

of  the  High  Courts  elevated  from the  Bar,  the  reliefs,  as  

mentioned above are to be reckoned from 01.04.2004, the  

date on which Section 13A was inserted by the High Court  

and  Supreme  Court  Judges  (Salaries  and  Conditions  of  

Service)  Amendment  Act,  2005  (46  of  2005).   Requisite  

amendment be carried out in the High Court Judges Rules,  

1956 with regard to post-retiral benefits as has been done in  

relation to the retired Judges of the Supreme Court in terms  

of amendment carried out by Rule 3B of the Supreme Court  

Judges Rules, 1959.

Civil Appeal Nos.4248-4249 of 2014 (Arising out of S.L.P. (C) Nos. 9558-9559 of 2010

30) Leave granted.

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31) At the instance of the Association of retired Judges of  

the Supreme Court and High Courts, the Division Bench of  

the  High  Court  of  Rajasthan  at  Jaipur  directed  the  State  

Government  to  pay  a  sum  of  Rs.9,000/-  per  month  to  a  

retired Chief Justice of the High Court to meet expenses of  

domestic  help/peon/driver/telephone  expenses  and  

secretarial  assistance etc.  and Rs. 7,500/-  per  month to a  

retired Judge of the High Court for the same purposes.  The  

said order shall be effective from 01.02.2010.  Questioning  

the same, the State of Rajasthan has filed the above appeal.  

32) With reference to the above claim and the order of the  

High Court, in the Conference of Chief Ministers and Chief  

Justices of the High Courts held on 18.09.2004, the following  

Resolution was passed:  

“18. Augmenting of post-retiral benefits of Judges.    

Xxx xxxxx

[vi] As regards post-retiral benefits to the retired Judges of  the High Courts,  the scheme sanctioned by the State of  Andhra Pradesh be adopted and followed in all the States,  except where better benefits are already available.”

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33) It is brought to our notice that in pursuance of the said  

Resolution, most of the States in the country have extended  

various post-retiral benefits to the retired Chief Justices and  

retired Judges of the respective High Courts.  By G.O.Ms.No.  

28  dated  16.03.2012  issued  by  Law  Department,  

Government  of  Andhra  Pradesh  sanctioned  an  amount  of  

Rs.14,000/-  per  month  to  the  retired  Chief  Justices  of  the  

High Court of Andhra Pradesh and an amount of Rs.12,000/-  

per month to the retired Judges of the High Court of Andhra  

Pradesh  for  defraying  the  services  of  an  orderly,  driver,  

security  guard  etc.  and  for  meeting  expenses  incurred  

towards  secretarial  assistance  on  contract  basis  and  a  

residential telephone free of cost with number of free calls to  

the extent of 1500 per month over and above the number of  

free calls per month allowed by the telephone authorities to  

both the retired Chief Justices and Judges of the High Court of  

Andhra Pradesh w.e.f. 01.04.2012.   

34) While appreciating the steps taken by the Government  

of  Andhra  Pradesh  and  other  States  who  have  already  

formulated such scheme, by this order, we hope and trust  

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that the States who have not so far framed such scheme will  

formulate the same, depending on the local conditions, for  

the benefit of the retired Chief Justices and retired Judges of  

the respective High Courts  as  early as  possible preferably  

within a period of six months from the date of receipt of copy  

of this order.  

35) All the Writ Petitions and the appeals are disposed of on  

the above terms. In view of the disposal of the writ petitions,  

no orders are required in the intervention application.              

.…….…………………………CJI.                      (P. SATHASIVAM)                                  

       ………….…………………………J.                   (RANJAN GOGOI)                                   

………….…………………………J.                  (N.V. RAMANA)                                   

NEW DELHI; MARCH 31, 2014.

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