Case: K. SREEDHAR RAO Vs. UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY

2. That the petitioner joined services as a member of the Karnataka Judicial Service in the year 1988. He was elevated to the High Court of Karnataka in the year 2000. Thereafter, he was transferred to the Gauhati High Court as a puisne Judge. That on 13.08.2014, in exercise of powers under Article 223 of the Constitution of India, the petitioner was appointed as the Acting Chief Justice of the Gauhati High Court. He served in that capacity for 14 months and retired as Acting Chief Justice on 20.10.2015. While serving as Acting Chief Justice, the petitioner was paid his salaries and allowances admissible to a Chief Justice, as contemplated in the Second Schedule, Part¬D, paragraphs 10 and 11 of the Constitution of India and under the High Court Judges (Salaries and Conditions of Service) Act, 1954 (hereinafter referred to as the ‘1954That on 20.07.2015, when the petitioner was holding the post of Acting Chief Justice, the Registry of the Gauhati High Court sent the required documents for fixation of the petitioner?s pension and gratuity to the Central Government. The petitioner claimed the pensionary benefits as may be available to the Chief Justice. However, the Department of Law & Justice informed the High Court that the petitioner is not entitled to the higher pension ceiling of Rs.5,40,000/¬ being the pension available to a Chief Justice and therefore requested to furnish the revised pension report fixing the pension at Rs.4,80,000/¬ annually. The Registry of the High Court wrote to the Department of Law & Justice that vide Rule 7 of Part-I of the First Schedule to the 1954 Act, the petitioner was entitled to pension admissible to the Chief Justice. At this stage, it is required to be noted that initially the petitioner elected to seek pension under Part¬III of the First Schedule to the 1954 Act. However, it is the case on behalf of the petitioner that subsequently he clarified that he is seeking pension under Part-I of the First Schedule to the 1954 Act. The aforesaid shall be dealt withThat thereafter the Ministry of Law & Justice, Government of India rejected the contention of the High Court that the petitioner was entitled to receive his pension as a Chief Justice, the petitioner has preferred the present petition under Article 32 of the Constitution of India for an appropriate writ, direction or order and declaration that the petitioner is entitled to the pensionary benefits as that of the Chief Justice.

Reasoning: 6.2 Now so far as the reliance placed upon para 11 Part D of the Second Schedule of the Constitution and Articles 127, 221 and 223 of the Constitution by the learned Senior Advocate appearing on behalf of the petitioner is concerned, on conjoint reading of the aforesaid provisions, we are of the opinion that so long as a Judge who is performing his duties as an Acting Chief Justice appointed under Article 223 of the Constitution, shall be entitled to the salary and other perks as that of the Chief Justice. Meaning thereby, what is contemplated by the aforesaid provisions is only payment of salary during the tenure while functioning as Acting Chief Justice as that of a Chief Justice. Even by virtue of the provisions of the 1954 Act, it is for the limited purpose for computation of the salary that Acting Chief Justice is treated as ChiefNow so far as the submission on behalf of the petitioner, relying upon para 11 Part D of the Second Schedule that the ?Chief Justice? includes an ?Acting Chief Justice? and that such a Judge who is functioning as an Acting Chief Justice be paid the salary of a Chief Justice and for all practical purposes he has performed the duties of a Chief Justice and therefore he shall be paid the pensionary benefits admissible to a retired Chief Justice is concerned, it is required to be noted that there is a clear distinction between a Judge appointed as an Acting Chief Justice under Article 223 of the Constitution of India and a Chief Justice appointed under Article 217 of the Constitution. Considering Article 223 of the Constitution of India, it can be seen that a Judge of the High Court is appointed as an Acting Chief Justice under Article 223 of the Constitution for the purposes of the duties of the Chief Justice and the office of the Chief Justice remains vacant. In a case where the office of the Chief Justice of the High Court is vacant, the duties of the office of the Chief Justice will be performed by any other Judge as Acting Chief Justice. Therefore, only for the limited purpose of salary, such an Acting Chief Justice is treated at par with the Chief Justice and not for any other purpose, more particularly the pension. For the purposes of pension, the relevant provisions of the 1954 Act are extracted hereinabove and as observed hereinabove while computing the pension as per Rule 2 of Part I of the First Schedule of the 1954 Act, the service rendered by a Judge as an Acting Chief Justice only is required to be counted as a Chief Justice and his pension is required to be computed accordingly as a Chief Justice for the service rendered as an Acting Chief Justice. Therefore, the services rendered by the petitioner as an Acting Chief Justice, i.e., for a period of 14 months, is to be counted/calculated as that of the Chief Justice, namely, Rs.1,21,575/- per annum, or as the case may be. Rule 7 of Part I of the First Schedule cannot be read in isolation. Even Rule 7 specifically provides that for the purposes of this part – Part I, service as an Acting Chief Justice of a High Court shall be treated as though it were service rendered as Chief Justice of a High Court. Rule 2 and Rule 7 of Part I of the First Schedule of the 1954 Act are required to be read conjointly and if are read conjointly, in that case, while making the computation of pension under Rule 2 of Part I of the First Schedule, the service rendered as an Acting Chief Justice is required to be considered as a Chief Justice and accordingly his pension is required to be counted and for that period his pension is required to be computed as if he has rendered service as Chief Justice.Now so far as the reliance placed upon the decision of this Court in the case of Syad Sarwar Ali(supra) by the learned counsel appearing on behalf of the respondent is concerned, learned counsel appearing on behalf of the petitioner is right to some extent that the said decision is distinguishable on facts. It is true that in the said case, the respondent – Judge retired as a puisne Judge and not as an Acting Chief Justice. However, in the said decision, it is specifically observed that the substantive portion of Rule 2 read with Rule 7 of the First Schedule deals with the calculation of the pension payable to a Judge during his judicial career and that in computing the pension, the time which he had spent as a Judge or Acting Chief Justice or Chief Justice is taken into consideration. It is further observed by this Court in the aforesaid decision that the rules containing First Schedule are conscious of the fact that the retiring incumbent may be a Judge or a Chief Justice or may have acted as an Acting Chief Justice for a period of time where for the purpose of calculating the quantum of pension, the period spent by a Judge as an Acting Chief Justice is taken into consideration for the purpose of fixing the ceiling. It is further observed that however, an Acting Chief Justice, who is one appointed under Article 223 of the Constitution is not equated with the Chief Justice appointed under Article 217 of the Constitution. The above observations clinch the issue. Even otherwise, we have considered the question posed independently and are of the opinion that the petitioner is not entitled to the pensionary benefits including the ceiling in the pension which may be available to a retired Chief Justice and as observed hereinabove, only that period of service rendered by him as an Acting Chief Justice, i.e., 14 months service as an Acting Chief Justice is required to be considered as service rendered as a Chief Justice for the purpose of computation of pension under Rule 2/as per Rule 2 of the Part I of the First Schedule of the 1954 Act.