High Court Chief Justices Have No Power To Frame Rules On Post-Retiral Benefits To Former Judges : Supreme Court

The Supreme Court on January 3, while setting aside the directions of the Allahabad High Court to take into custody two Secretaries of the Uttar Pradesh Government for alleged non-compliance of directions regarding the facilities to retired judges, expressly stated that the High Court Chief Justices acting on the administrative side do not have any powers to usurp the rulemaking responsibility of the executive.

The bench comprising the Chief Justice of India, DY Chandrachud and Justices JB Pardiwala and Manoj Misra observed that policymaking involves taking into consideration several factors including local and financial aspects. The High Court under the ambit of its judicial powers cannot “browbeat the State Government to notify Rules proposed by the Chief Justice”, the Top Court stated.

This decision comes as a consequence of two orders passed by the Division Bench of Allahabad High Court on April 4, 2023 and April 19, 2023. Through its order dated April 4, 2023, the Government of Uttar Pradesh was directed by the High Court to, among other things, notify rules proposed by the Chief Justice of the High Court regarding 'Domestic Help to Former Chief Justices and Former Judges of the Allahabad High Court' by the upcoming hearing date. Additionally, specific officials of the Government of Uttar Pradesh were instructed by the High Court to appear before the court on the following date if the order was not adhered to.

Subsequently, a recall application was moved by the State of Uttar Pradesh for the Order dated April 4, 2023. The High Court, however, on April 19, 2023, held the recall application to be 'contemptuous' and initiated criminal contempt proceedings against the state officials. The court detained the officials in attendance, such as the Secretary (Finance) and Special Secretary (Finance), while also issuing bailable warrants against the Chief Secretary and the Additional Chief Secretary (Finance).

The above orders were thereafter stayed by the Apex Court on April 20, 2023. The bench was tasked with answering three questions of law amongst which, the key issue pertained to the powers of the High Court to direct the State Government to notify rules proposed by the Chief Justice pertaining to post-retiral benefits for judges of the High Court.

Clarifying Article 229(2) of the Constitution :

The preamble of the Rules so proposed by the High Court Chief Justice borrows its mandate from Article 229 of the Constitution. Article 229(2) provides that the conditions of service of officers and servants of the High Court may be prescribed by the Chief Justice of the concerned High Court or any other judge or officer authorised by the Chief Justice for the purpose.

The Court, however, emphasized on the proviso to Article 229(2) which expressly states the requirement of Governor's approval for rules relating to salaries, allowances, leave or pensions of such officers and servants of the High Court. The Court therefore held that reliance by the High Court upon the said provision was misplaced, as “ Article 229(2) pertains only to the service conditions of 'officers and servants' of the High Courts and does not include Judges of the High Court (both sitting and retired judges). The Chief Justice does not have the power, under Article 229, to make rules pertaining to the post-retiral benefits payable to former Chief Justices and judges of the High Court.”

The High Court made an over-expansive interpretation of directions in P Ramakrishnan Raju vs. Union of India :

The bench observed that the High Court's impugned Orders placed a rather “erroneous and over-expansive interpretation of the directions of this Court” in P Ramakrishnan Raju vs. Union of India Writ Petition (Civil) No. 521/2002.

The Court explained that in P Ramakrishnan Raju, the Supreme Court dealt with a batch of petitions relating to the post-retiral benefits payable to former judges of the High Courts. The scheme formulated by the State of Andhra Pradesh was commended by the Court in its judgment dated 31 March 2014, and it was suggested that similar schemes be formulated by other States for post-retiral benefits to former judges of the High Courts, preferably within six months from the judgment.

Additionally, the contempt proceedings against the State of Uttar Pradesh were concluded by an Order dated 27 October 2015, known as Justice V.S. Dave, President, the Association of Retired Judges of Supreme Court and High Courts vs. Kusumjit Sidhu and Others (Contempt Petition (Civil) Nos. 425-426 of 2015), noting that the State had already formulated a scheme in line with the Court's directions. It was also stated that a slight deviation from the Andhra Pradesh scheme's standards is acceptable, considering local conditions. Additionally, states paying below the specified standard were directed to contemplate a potential increase at the 'appropriate stage and time.'

The Bench expressed that Allahabad High Court had wrongly interpreted the directions in the above matters which were given to State Governments for framing appropriate schemes for post-retiral benefits. The Court held,

“28… The above judgements of this Court did not grant the Chief Justices of High Courts, acting on the administrative side, the power to frame rules about post-retiral benefits for former judges that must mandatorily be notified by the State Governments…..

29…the High Court's conduct on the judicial side in the Impugned Orders was also erroneous. The High Court, acting under Article 226 of the Constitution, cannot usurp the functions of the executive and compel the executive to exercise its rule-making power in the manner directed by it. Compelling the State Government to mandatorily notify the Rules by the next date of hearing, in the First Impugned Order, virtually amounted to the High Court issuing a writ of mandamus to notify the Rules proposed by the Chief Justice. Such directions by the High Court are impermissible and contrary to the separation of powers envisaged by the Constitution. The High Court cannot direct the State Government to enact rules on a particular subject, by a writ of mandamus or otherwise.”

The Court concluded that since these rules were made beyond the competence of the Chief Justice of the High Court they can at maximum be considered as inputs to the State Government.

“The State Government was free to constructively consider the desirability of the Rules within its own decision-making apparatus”

Therefore, the Court held that the High Court in passing the impugned orders acted beyond its jurisdiction under Article 226. The judgment stated :

"29. Further, the High Court's conduct on the judicial side in the Impugned Orders was also erroneous. The High Court, acting under Article 226 of the Constitution, cannot usurp the functions of the executive and compel the executive to exercise its rule-making power in the manner directed by it. Compelling the State Government to mandatorily notify the Rules by the next date of hearing, in the First Impugned Order, virtually amounted to the High Court issuing a writ of mandamus to notify the Rules proposed by the Chief Justice. Such directions by the High Court are impermissible and contrary to the separation of powers envisaged by the Constitution. The High Court cannot direct the State Government to enact rules on a particular subject, by a writ of mandamus or otherwise.

30. The High Court, acting on the judicial side, could not compel the State Government to notify Rules proposed by the Chief Justice in the purported exercise of his administrative powers. Policymaking by the government envisages various steps and the consideration of various factors, including local conditions, financial considerations, and approval from various departments. The High Court cannot use its judicial powers to browbeat the State Government to notify the Rules proposed by the Chief Justice. As the Rules were promulgated by the Chief Justice without competence, at best, they amounted to inputs to the State Government. The State Government was free to constructively consider the desirability of the Rules within its own decision-making apparatus. Therefore, the High Court acted beyond its jurisdiction under Article 226 by frequently summoning officers to expedite the consideration of the Rules and issuing directions to notify the Rules by a fixed date, under the threat of criminal contempt."

Also from the judgment - Supreme Court Issues Guidelines To HCs On Summoning Govt Officials, Says Personal Presence Should Be Exceptional

Case Title : State of Uttar Pradesh v. Association of Retired Supreme Court and High Court Judges | SPECIAL LEAVE PETITION (CIVIL) Diary No.16613/2023

Citation : 2023 LiveLaw (SC) 3

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