HC Judges Elevated From Service & Governed By NPS To Get Lesser Pension & PF Than Judges From Bar : Amicus Tells Supreme Court

The Supreme Court today (November 4) was informed that those High Court judges elevated from the district judiciary under the New Pension Scheme were to get less pension and provident fund benefits compared to their colleagues who are elevated from the bar. 

The bench comprising the Chief Justice, DY Chandrachud and Justices JB Pardiwala and Manoj Misra was hearing the batch of matters relating to the pending release of salaries of Patna High Court Judges as well as the issue on the fixation of pensions for judicial officers. 

Some sitting High Court Judges have approached the Top Court as their salary has not been released due to the closure of the General Provident Fund (GPF) accounts. The complication arose after the NPS contributions were transferred to the GPF accounts given to them after they were appointed High Court judges. The accountant general sought clarification from the Ministry of Law and Justice regarding the legality of transferring NPS contributions to GPF accounts. 

Senior Advocate K Parameshwar, the amicus curiae in the matter, submitted that as per the Union's affidavit, there are two categories of judges created in the Patna High Court, (1) those elevated from the bar who will receive the benefit of the Provident Fund (PF) and other benefits as per the High Court Judges Salaries & Pensions Act and (2) Judges from the District Court elevated to High Court who would not be entitled to the PF. 

He explained that the aggrieved judges were borne under the New Pension Scheme (NPS). When the NPS was adopted for district judiciary, two consequences followed (1) the provident fund was done away with; (2) instead of an assured pension, the scheme shifted to a contributory pension scheme - where the judge and government both contributed to the pension. He raised that the issue has a far-reaching impact on the pensions of these judges as they would not be getting a full pension like those elevated from the bar but only as per the contributory scheme. 

"My concern here is this - these are the first set of district judges elevated to the High Court who has gone into the NPS....you will not be entitled to a pension at the same rate as your colleagues from the bar, but whatever you have contributed is what you will get." 

He also stressed that several judges from the district courts had gone on to become Chief Justices, so should it be the case that such Chief Justices in the High Courts retire without pensions and PFs? 

CJI responded, "Because the members of the district judiciary who come to the High court, they were not subscribing to the contributory provident fund, therefore they are worse off from the members of the bar who become High Court judges. So the years of service which they render before the appointment as judges of the High Court acts then as a lacunae on the entitlement which otherwise goes to every other judge of the High Court."

Attorney General for India R Venkataramani appearing for the Union, submitted that these judges are governed by the NPS when they were appointed. However, he stressed that in light of the changes brought in by the Unified Pension Scheme, it would be incorrect to draw a comparison or classification between High Court Judges. Notably, the Unified Pension Scheme was notified by the Union on August 24. 

"In order to address all the concerns in the NPS, certain changes are inserted now in the unified pension scheme ....don't think there should be a comparison between a district judge and judge elevated from the bar, there cannot be a comparison"

The Amicus mainly contended that (1) the Constitution does not contemplate two classes of judges. He pointed out that Article 221 only deals with providing High Court judges for salaries and pensions as determined by the Parliament without any specificity to PF 

"that is an effectuative reading of Articles 216 and 221...Article 221 literally does not use the word 'Provident Fund'"

Secondly, it was argued that the constitutional position of a judge requires a holistic consideration from the standpoint of financial independence which gets diluted when only focusing on the procedural technicalities. 

" The point is that it is (judgeship) a constitutional institution, it is not just about an ordinary technical interpretation of law or doctrine of equal pay for equal work...I am not undermining the doctrine but there must be something larger at play when we are talking about the financial independence of the judges.. its the question of office, not the person"

Senior Advocate Rakesh Dwivedi appearing for one of the petitioners, in brief, submitted three key aspects : (1) class of judges is created by the constitution and article 14 cannot be invoked by the Parliament to make a law distinguishing between a common class, he explained - " While making the law it is not permissible for the parliament to differentiate, whatever has to be prescribed will be prescribed across the board to all judges"

(2) close reading of art. 221(1) provides that the domain of the law of making is limited to the amount of  salary but not to differentiate between judges, it is only the quantum of the salary; 

(3) Proviso in Article 221 indicates that ordinarily, everything has to be equal but where a judge is drawing a pension which is higher than others it will not be to his disadvantage.

 "Sometimes it happens that district judges after long years of service get elevated to HC get higher pensions- you cannot vary to his disadvantage"

Notably, the proviso reads - "Provided that neither the allowances of a Judge nor his rights in respect of leave of absence shall be varied to his disadvantage after his appointment."

The hearing will continue tomorrow.

Background

In March 2023, the Apex Court directed the release of the salaries of seven judges of the Patna High Court which had been withheld following the closing of their GPF accounts. The plea claiming that the General Provident Fund accounts of the seven judges had been closed was heard by a bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala.

The petitioners, whose GPF accounts have been stopped are seven judges of the Patna High Court. The High Court judges include Justices Shailendra Singh, Arun Kumar Jha, Jitendra Kumar, Alok Kumar, Sunil Dutta Mishra, Chandra Prakash Singh and Chandra Shekhar Jha. Before their elevation to the High Court from the State Judicial Service, they were covered by the National Pension Scheme. The complication arose after the NPS contributions were transferred to the GPF accounts given to them after they were appointed High Court judges. The accountant general sought clarification from the Ministry of Law and Justice regarding the legality of transferring NPS contributions to GPF accounts. 

In September, the Court directed the State of Bihar to immediately release the salary of sitting Patna High Court Judge, Justice RP Mishra, who had pending arrears since the date of his elevation to the High Court.

The Court passed the interim order considering the urgency as "no judge should be expected to work without a salary.." 

Case Title: Justice Shailendra Singh And Ors. v. UoI And Ors. WP(C) No. 232/2023 and connected matters