Civil Writ Petition No. 16079 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 16079 of 2010 DATE OF DECISION: December 9, 2010 Justice N.K. Sud(Retd.) now Lokayukta, Government of Haryana .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. Sunish Bindlish, Advocate for the petitioner. Mr. Sunil Nehra, Sr. DAG, Haryana for the State. Mr. T.S. Dhindsa, Advocate, for respondent No.6. ***** RANJIT SINGH, J. It may not be very pleasant to notice that a person, who has retired as a Judge of High Court and is serving the Government as Lokayukta, is made to approach the Court for grant of pension. Pension is termed as deferred portion of compensation for a service rendered. It is a measure of socio-economic justice and is not a bounty as may have been the earlier view. Still the State is seen defending its cause with so much of vehemence by sticking to some technicalities and niceties of interpretation. That the pension is a condition of service is not under any serious dispute. It is also not in dispute in any manner that the petitioner was given the same salary, allowances and other Civil Writ Petition No. 16079 of 2010 -2- conditions of service as is of a sitting Judge of the Supreme Court or Chief Justice or a Judge of the High Court under the Haryana Lokayukta Act 2002 (for short 'the Lokayukta Act'). After conceding that pension is a condition of service, it is still maintained that pension would not be payable to the petitioner on the ground that he was only given those conditions of service as were applicable to a sitting Judge, and as such it would not include pension. The issue, which is holly debated thus would require consideration and adjudication. The facts giving rise to the issue as agitated, noticing in brief, are that the petitioner was appointed as a Judge of Punjab & Haryana High Court on 14.5.1999. He demitted his office on 14.1.2006 after putting 6 years, 8 months and 1 day service. The petitioner had joined as Lokayukta on 16.1.2006 before his due date of superannuation on 2.06.2006. Soon after the appointment of the petitioner as Lokayukta, the Deputy Secretary (Political) Government of Haryana, sought information from the Registrar General of the High Court regarding the pay and allowances and other perks, which were drawn by the petitioner at the time of his retirement as a Judge of the High Court. The said information was supplied by the Registrar General of the High Court on 1.2.2006. The Chief Secretary to the Haryana Government, thereafter, forwarded the information received from the Registrar of the High Court to the office of Lokayukta, Haryana, to take necessary action fo r fixing the salary and other allowances payable to the petitioner. As per the provisions of Lokayukta Act, the salary, allowances and other conditions of service of Lokayukta Civil Writ Petition No. 16079 of 2010 -3- were to be the same as may be available from time to time to a sitting judge of the Supreme Court or Chief Justice or a Judge of the High Court as the case may be. The relevant provision in this regard is Section 6 (4) of the Lokayukta Act. In fact, the entire submission by both the sides have been made on the basis of the provisions providing the condition of service. It will, therefore, be useful to reproduce Section 6 (4) of the Lokayukta Act for assimilation:- “6. (4) The salary, allowances payable to, and other conditions of service of Lokayukta shall be same as may be available from time to time to a sitting Judge of the Supreme Court or Chief Justice or Judge of the High Court, as the case may be, in accordance with office held by him:- Provided that the salary, allowances and other privileges available to the Lokayukta shall not be negotiable; Provided further that the allowances payable and other conditions of service of the Lokayukta shall not be varied to his disadvantage after his appointment. 6. (5) The salaries and allowances payable to, or in respect of, the Lokayukta shall be the expenditure charged on the Consolidated Fund of the State.” As can be seen, the relevant Section 6(4) of the Lokayukta Act, contains two provisos as well. First proviso says that the salary, allowances and other privileges available to the Lokayukta shall not be negotiable. The second proviso makes it clear that the allowances payable and the other condition of service of Lokayukta shall not be varied to his disadvantage after his appointment. Reference, thereafter, is made to the salary and other Civil Writ Petition No. 16079 of 2010 -4- conditions of the service of the High Court Judge as contained in the High Court Judges (Salaries and Conditions of Service) Act 1954 (hereinafter referred to as the '1954 Act') as amended from time to time. Section 14 of the said Act regulates the pension payable to the Judges and this provision reads as under:- “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 I of the First Schedule: Provided that no such pension shall be payable to a Judge unless- (a) he has completed not less than twelve years of service for pension: or (b) he has attained the age of *sixty two years, and in the case of a Judge holding Office on the 5th day of October, 1963, sixty years or; * Sub. by Act No.27 of 1964; sixty -two years, and,..............................sixty years. @ Provided further that if a Judge at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service in the Union or a State, the pension payable under this Act shall be in lieu of, and not in addition to, that pension. @ Ins. by Act No.27 of 1964; Provided further ........pension. Explanation:- In this section 'Judge' means a Civil Writ Petition No. 16079 of 2010 -5- Judge who is not a member of the Indian Civil Service or has not held any other * pensionable post under the Union or a State and includes a Judge who being a member of the Indian Civil Service or 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. *Sub. By Act No.57 of 1980; pensionable post.” The First Schedule appended to the said Act lays down the manner in which the amount of pension shall be calculated in respect of a person who has retired as a High Court Judge depending upon the source from which he has been appointed. The relevant provisions of the said schedule are reproduced herein below:- “THE FIRST SCHEDULE (See Sections 14 and 15) PENSIONS OF JUDGES PART I (1) The provisions of this part apply to a Judge who is not a member of the Indian Civil Service or has not held any other * pensionable post under the Union or a State and also apply to a Judge who, being a member of the Indian Civil Service or having held any other pensionable post under the Union or a State has elected to receive the pension payable under this Part. *Subs. by Act No.57 of 1980, pensionable post. Civil Writ Petition No. 16079 of 2010 -6- (2) Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be- *Subs. by Act No.20 of 1988, In the First Schedule in Part I in Para 2; subject to .... (a) for service as Chief Justice in any High Court, *Rs.43,890/- per annum for each completed year of service; *Subs. by Act No.23 of 2009, w.e.f. 1.1.2006. (b) for service as any other Judge in any High Court, *Rs.34,350/- per annum for each completed year of service. *Subs. by Act No.23 of 2009.., w.e.f. 1.1.2006. (C)Provided that the pension shall in no case exceed *Rs.5,40,000/- per annum in the case of a Chief Justice and ** Rs.4,80,000/- per annum in the case of any other Judge. *Subs. by Act No.23 of 2009., w.e.f. 1.1.2006. *Subs. by Act No.23 of 2009., w.e.f. 1.1.2006. (3) x x x (4) x x x (5) x x x (6) x x x (7) x x x Civil Writ Petition No. 16079 of 2010 -7- (8) x x x (9) Where a Judge to whom this part applies retires or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this part, then, notwithstanding any thing contained in the foregoing provisions, a pension of *Rs.1,57,670/- per annum shall be payable to such a Judge: *Subs. by Act No.23 of 2009., w.e.f. 1.1.2006. % Provided that nothing in this paragraph shall apply- % Added by Act No.46 of 1958; in the first Schedule, in Part I to para 9. (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous under the Union or a State.” Since the petitioner has rendered less than 7 years of service, the pension payable to him is to be regulated by Clause 9 of Part I of the 1st Schedule reproduced above. It is averred in the petition that the petitioner's pension for his service rendered as a Judge of the High Court has been worked out to Rs.13,140/- per month. He had got one half of this pension commuted and was accordingly, drawing a pension of Rs.6570/- per month as his pension upon his retirement as a Judge of the High Court w.e.f. 14.1.2006 upon being appointed as the Lokayukta. The petitioner Civil Writ Petition No. 16079 of 2010 -8- became eligible and entitled to receive salary and other allowances as payable to Lokayukta. The salary, allowances and other conditions of service being the same as a sitting Judge of the Supreme Court or Chief Justice or a Judge of the High Court, the petitioner started drawing salary and other allowances accordingly. The appointment of the petitioner as Lokayukta is for a period of 5 years and this period is to expire on 15.1.2011. Respondent No.4, accordingly, wrote a letter to the Chief Secretary of the State to know the amount of pension that will be payable to him. The petitioner claims that he is entitled to pension at par as payable to a High Court Judge, who has rendered service for 5 years. Respondent No.4,accordingly, requested the State Government to calculate the pension of the petitioner and also sought a clarification as to whether the service rendered by him as Lokayukata is to be clubbed with his service as a High Court Judge for the purpose of pension. In response, the petitioner received a communication from the Chief Secretary that there is no provision under the Lokayukta Act either for grant of pension or clubbing of the pension with his earlier service as a Judge. Finding this stand to be contrary to the provisions and otherwise also in violation of the legal principles, the petitioner approached the respondent- Government for reconsidering the matter. Copy of the communication is annexed as Annexure P-5. The respondent-State, however, has rejected this prayer through a letter dated 19.2.2010 (Annexure P-6). The petitioner, thereafter, has been constrained to file this writ petition, in which notice was issued and has now become ripe for consideration. Civil Writ Petition No. 16079 of 2010 -9- The respondents have filed written statement. As per the stand of the State the service of the petitioner is governed by the Lokayukta Act, which does not contain any provision for grant of pension. It is, accordingly, pleaded that in absence of any specific provision for pension in the Lokayukta Act, the question of grant of pension or clubbing thereof with the pension received by the petitioner as High Court Judge, would not arise. The respondents, thus, would justify their action in rejecting the prayer of the petitioner for grant of pension. The same has been conveyed and communicated to him accordingly. It is also disclosed that on a request made by the petitioner, the case was re-examined by the Government, but his request has again been rejected in view of the absence of provision regulating the grant of pension in the Lokayukta Act. The action of the respondent-Government in rejecting the claim, thus, is justified. Mr. Rajiv Atma Ram, learned Senior counsel was at his best in substantiating his submission to show that the action of the respondent-Government is unjustified, unreasonable and unfair. The counsel has raised multi-prong attack to the stand taken by the State. The counsel would first submit that as per the settled position of law, pension is a condition of service. Highlighting Section 6 (4) of the Lokayukta Act, the counsel submits that not only the same salary and allowances are payable to the petitioner as he was receiving as Judge, but his conditions of service are the same as are of a sitting Judge of the Supreme Court/Chief Justice/High Court. Counsel appearing for the High Court as well as the State would not seriously join the issues with the counsel for the petitioner Civil Writ Petition No. 16079 of 2010 -10- in this regard and would concede that conditions of service would include pension as well. Mr. Nehra, however, points out that the pension would be a condition of service, where the service is pensionable. This issue can not be a matter of serious dispute in view of settled position of law as would emerge from various judgments referred to and relied upon before me. Reference in this regard is made to Syed Khalid Razvi Versus Union of India, 1993(2) SCT 236, The State of Punjab Versus Kailash Nath, 1989 (1) SLR 12 and State of Madhya Pradesh and others Versus Shardul Singh, 1970 (1)SCC 108. In Syed Khalid Razvi’s case(supra), it was held that once a promotee has been duly recruited by promotion, the conditions thereafter like pay and allowances, pension etc. are conditions of service. Thus, pension was taken to be apart of condition of service. In Kailash Nath’s case(supra), the Court has observed that in normal course what falls within the purview of the term “condition of service” may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave, Provident Fund, gratuity, confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation, deputation and disciplinary proceedings. Even in Shardul Singh’s case(supra), expression condition of service was held to mean all those conditions, which regulate the holding of a post by a person right from the time of his appointment till his retirement an event beyond it matters like pension etc. Thus, it is consistently held that the pension is a condition of service and hence, Civil Writ Petition No. 16079 of 2010 -11- it can be so taken as such. This being the position, it is to be seen whether the pension would be payable to the petitioner on the ground that the same is payable to a Judge of this Court, which would be the condition covenanted between him and the State in this regard when he was appointed as Lokayukta. The Court has required of the counsel to submit as to what is the other enactment where a Judge is appointed on any appointment after his retirement. The counsel for the petitioner, thus, has made reference to number of enactments and a few judgments, where such issues have been considered. As per the counsel various enactments governing the appointment of retired Judge, make a specific provision for grant of pension for the service rendered upon his appointment. In this regard, the counsel would make reference to provisions of the Armed Forces Tribunal Act, 2007 and to Section 10 thereof, which is as under:- “10. Salaries, allowance and other terms and conditions of Chairperson and other Members- the salaries and allowances payable to and the other terms and conditions of service( including pension gratuity and other retrial benefits) of, the Chairperson and other Members shall be such as may be prescribed by the Central Government. Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson and other Members shall be varied to their disadvantage after their appointment.” Civil Writ Petition No. 16079 of 2010 -12- As per Section 8 of the Administrative Tribunals Act, 1985, the conditions of service of Chairperson and other Members of Administrative Tribunal are the same as applicable to a Judge of the High Court. Counsel would also refer to provisions of Section 10, which regulates the grant of salary, allowances and other terms and conditions of service of the Chairperson and other Members. This Section specifically provides that the salary, allowances and other terms and conditions (including pension, gratuity and retrial benefits) of the Chairman/Member shall be the same as may be prescribed by the Central Government. From this, the counsel would urge that the pension is included as a condition of service. Reference is then made to the Central Administrative Tribunal (Salaries and Allowances & conditions of Service of Chairman, Vice-Chairman and other Members) Rules, 1985, which have made a provision for commuting the pension i.e. payable to each completed year, subject to the condition that aggregate pension including pension drawn or entitled to be drawn while holding office in Tribunal should not exceed maximum amount of pension prescribed for a judge of a High Court. Similar is the position under the Railway Claims Tribunal Act, 1987. Section 9 of this Act makes a similar provision in regard to condition of salary, allowances and other condition of service including the pension. Punjab Lokpal Act, 1996, also contains a specific provision for grant of pension to those, who are appointed as Lokpal. Section 6 (5) of this Act reads as under:- “(5) The allowances and pension payable, to and other conditions of service of the Lokpal shall be Civil Writ Petition No. 16079 of 2010 -13- such as may be determined by the Governor having regard to the allowances and pension payable to and other conditions of service of the Judge of the Supreme Court, Chief Justice or Judge of the High Court and these shall not be varied to his disadvantage after his appointment.” Even in the Lokayukta Acts legislated by the States of Rajasthan, Bihar, Orissa and Andhra Pradesh, are having provision for grant of pension to Lokpal/Lokayukta. Question may arise if there is or could be any purpose of declining pension to Lokayukta or is just a miss. As per the counsel for the petitioner, mere absence of a provision cannot lead to denial of pension on the ground that there is no provision made. Counsel submits that if intention was to deny or decline pension to Lokayukta, the State was required so specifically provide in this regard by laying down that pension would not be payable. In support of his submission, the counsel has referred to The State of Punjab and another Versus D.N. Rampal, Deputy Advocate General Punjab, Chandigarh, RSJ (1950-1988)1, 171. It is observed that no order or Government order has been brought to notice to suggest that the posts of Assistant Advocate General are non-pensionable. The Court then went on to hold that the point, which still remains to be seen is whether the claims of pension are dead for the petitioners in the said case under the initial terms of appointment and can their service be treated as one under an agreement or contract excluding the applicability of the Civil Writ Petition No. 16079 of 2010 -14- Punjab Civil Services. In this regard, this Court held as under:- “In the alternative, even if it was not so, we see no reason why a liberal construction to his appointment letter be not made. Mention therein of the applicability of the Punjab Civil Services Rules regarding leave and traveling allowance etc., illustratively, was comprehensive enough to include pension as permissible under the Rules. In no way, could a restricted construction be put to such a term unless it was specifically stipulated therein that he was not entitled to claim pension.” The Court has further held :- “These requirements of the Rules reinforce our view that, in the absence of negative clause in the terms of employment, specially saying that the Civil Services Rules would not be applicable, we can and should liberally construe the contractual letter to spell that the Civil Services Rules were applicable and, hence, claim for pension by Gill as maintainable.” Reference is also made to Lakshmipathi Versus Karnataka Legal Aid Board, (Karnataka)1996(3) SCT 514. As is observed by this Court, in the absence of any Rule, the petitioner therein could not be prejudiced nor could he be deprived of what the law normally entitles him to. In this regard, it is further observed that it could well be argued that if the petitioner has been informed honestly by the concerned authority that he would not be entitled to claim benefit of the service, he would never have agreed for being relieved of his parent Department. Accordingly, counsel would contend that the submission made regarding the absence of specific provision Civil Writ Petition No. 16079 of 2010 -15- denying the pension, cannot be denied by implication as is being urged by the State. Mr. Nehra, on the other hand, has made reference to the provisions of Section 6(4) of the Lokayukta Act with specific emphasis to the word ‘Sitting Judge’ used in the Section to submit that the terms and conditions, which are offered to the petitioner, were those as of a sitting Judge of the Supreme Court or Chief Justice or Judge of the High Court. Since the pension is not payable to sitting Judge, the counsel contends that even the pension could not be included as terms and conditions that are allowed to the petitioner in view of the legal position. State counsel also contends that there is no provision made for grant of pension and accordingly, it cannot be allowed by reading the provision regarding terms and conditions of service. Provision of Section 14 of the 1954 Act is highlighting to urge that pension payable is on the basis of number of years completed as a service, which would be rendered by a Judge while being a sitting Judge. In that context, the counsel submits that word ‘Sitting Judge’ cannot be read to mean that pension would not be included in terms of conditions of service as per Section 6 of the Lokayukta Act on the ground that word used is ‘Sitting Judge’. Counsel for the petitioner has placed some judgment before me to say that in case intention was to decline the pension to the petitioner, there was need to make a specific provision in this regard and the pension cannot be declined by implication as is being urged. Prime facie I find that there is no justifiable or a valid Civil Writ Petition No. 16079 of 2010 -16- reason to deny pension to the petitioner. A detailed reference has been made to various provisions of different Acts, where sitting or retired Judges are offered appointments as per the requirement of law. In none of these enactments there is a provision for excluding the pension. The High Court Judge appointed on this post is held entitled to grant of pension for the service rendered on all such appointments as can be seen