Equal Pension for Bar Judges and Service Judges; Provision for fixing higher pension to the Service Judges is Unconstitutional; SC [Read Judgment]

Supreme Court on Monday held that 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

A three Judge Bench of apex court comprising of Chief Justice P. Sathasivam, Justice Ranjan Gogoi and Justice N V Ramana was hearing seven petitions together 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. Petition mainly raised the question regarding the Constitutionality of Provision fixing higher pension to the Judges drawn from Subordinate Judiciary. It addressed the question whether High Court Judges, who are appointed from the Bar 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?

Petitioners contented 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. Presently the members from the subordinate judiciary get more pension than the Judges elevated from the Bar on retirement.  Petitioners further argued that Judges from the Bar are not similarly situated with Judges from Subordinate Judiciary 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.

Bench has referred to Chief Justices Conference held on April 5 and 6, 2013 which observed that "for pensionary benefits, ten years' practice as an advocate be added as a qualifying service, for Judges elevated from the Bar."

Court was of the view that 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. 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.

Court further observed as follows;

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.

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