High Court Judges Can't Be Discriminated Based On Source Of Appointment, All Entitled To Same Service Benefits: Supreme Court

The Supreme Court today (November 5) held that  High Court Judges elevated from the district judiciary would be entitled to service conditions at par with those judges appointed from the bar and that the Constitution does not differentiate between the High Court Judges on the basis of the source of their recruitment. 

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. 

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 New Pension Scheme (NPS) contributions to GPF accounts. 

The present challenge has been to the letter dated December 13, 2022 from the Under Secretary by GOI in Department of Union Ministry of Law and Justice which directed the withholding of the GPF accounts since the petitioners were borne under the NPS. During the last hearing, the Court was informed that 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 Court observed that no provision for differential treatment is meted out under Article 216 which provides that "Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint".

"High Courts are constitutional institutions recognised by Art. 216. Article 216 doesn't make any distinction between the source from which HC judges are recruited" 

The Court clarified that once appointed to the High Court, every judge ranks at par. The institution of the High Court comprises the totality of the CJ and all other judges appointed to the Court. Once appointed, no distinction can be made for the salaries and other allowances. It was stressed that all High Court Judges formed a single unified 'homogenous class'. 

"The sources from which HC judges are appointed have no bearing on the fact that once appointed to HC they constitute a homogenous class." 

Dissecting Article 221 of the Constitution, the Court noted that a conscious decision was made by the framers of the constitution to depart from the Government of India Act 1935 in which the salaries, and allowances were to be determined by the provincial legislature.

As per the original draft, the salaries and allowances were to be determined as per Schedule II, which was later changed during the course of discussion amongst the framers. The words - the legislature of the state- were substituted by "Parliament" as a consequence of this, the Constitution did not leave it to the wisdom of the state to determine the salaries of the HC judges.  

The Court thus held that "it is not within contemplation of the Constitution that the payment of salaries and pensions during and after service should be left at the vagueries of the States."

The Court, while holding above, quashed the impugned letter dated December 13, 2022  and passed the following directions : 

(i) The High Courts are constitutional institutions and upon appointment as judges of the High Court, all judges, irrespective of the source from which they are drawn, partake the character of holders of constitutional offices in equal measure;

(ii) Neither Article 221(1) of the Constitution which empowers Parliament to determine the salaries of the Judges of the High Court nor Article 221(2) which empowers Parliament to determine the allowances and rights in respect of the leave of absence and pension permits discrimination between judges of the High Court based on the source from which they are drawn;

(iii) Article 217 of the Constitution specifies distinct sources of recruitment for judges of the High Court from the district judiciary or, as the case may be, the Bar. But once appointed to the High Court, all judges form one homogenous class of constitutional office holders;

(iv) Judicial independence is a part of the basic structure of the Constitution and there is an intrinsic relationship between financial independence of judges and judicial independence;

(v) The significance of provisions pertaining to the guarantee of service conditions, while in service and post retiral benefits for judges is evidenced by the fact that the salaries and allowances of sitting judges and the pensions of retired judges are in the nature of a charge on the Consolidated Fund of the State and the Consolidated Fund of India respectively;

(vi) Any determination of the service benefits of sitting judges of the High Court and the retiral benefits which are payable to them including pension, must take place on the basis of the fundamental principle of non-discrimination between judges of the High Court who constitute one homogenous group; and

(vii) All judges of the High Court, irrespective of the source from which they are drawn, are entrusted with the same constitutional function of discharging duties of adjudication under the law. Once appointed as judges of the High Court, their birthmarks stand obliterated and any attempt to make a distinction between judges, either for the purpose of determining their conditions of service while in service or any form of retiral dues would be unconstitutional.

The bench also directed that all the GPF accounts for the petitioners be opened w.e.f the date of their appointments into which contributions shall be credited at par with all other High Court judges. It was clarified that presently, no direction is given for the transfer of the contributory fund under the NPS to GPF as sought by the petitioners. 

Interpreting The Proviso To S. 20 High Court Judges Salaries and Allowance Act 1954

The Court also held that the impugned letter by the Union misappreciated the scheme laid down in S. 20 of the High Court Judges Salaries and Allowance Act 1954 " which fundamentally accords with the constitutional status of all judges of the High Court irrespective of the source from which they are drawn." 

Notably, S. 20 of the Act reads : —Every Judge shall be entitled to subscribe to the General Provident Fund (Central Services):

Provided that a Judge who has held any other pensionable civil post under the Union or a State shall continue to subscribe to the Provident Fund to which he was subscribing before his appointment as a Judge. 

The Attorney General for India R Ventakaramani appearing for the Union, placed reliance upon the proviso to contend that the petitioners were elevated to the High Court under the NPS and thus a member of the district judiciary appointed as HC Judge will not be entitled to benefit of GPF which applies to judges who were a member of the bar. He stressed that there is no justification for the transfer of the contributory fund under the NPS to the GPF accounts.  

Senior Advocates K Parameshwar(Amicus Curiae) and Rakesh Dwivedi appearing for the petitioners however urged that (1) the issue of salary and allowances of HC judges must be construed from the financial independence perspective; (2) there must be uniformity in the service conditions of both sitting and retd High Court judges, distinction can not be made based on source of recruitment; (3) all HC Judges constitute one single class, irrespective of source of appointment; (4) it has been urged that principle of non-discrimination must apply. 

The Court observed that the Proviso to S.20 intended to deal with the pension of those High Court judges who held any other position in the State before elevation thus including district judges within its ambit. However, the proviso does not intend to restrict the salary and other benefits of the High Court judges from the district judiciary. It was analysed that the Proviso only expanded on the substantive part of S. 20 to ensure that the funds accumulated during the lower judicial service before elevation are not disturbed.

"This proviso was not intended to be restrictive in nature, it is well settled that the provisos can be read as an exception or in nature of explanation. The present proviso reads as an explanation so as to allow a judge who holds a pensionable post under the State and who is subscribing to a PF to continue to do so even after the appointment as the High Court Judge so as to ensure that the benefits already accrued would not be disrupted." 

The bench added that a strict reading of the proviso would be of no help in the facts of the present case. 

"The proviso to S.20 even if treated as an exception would have to be strictly construed, even if strictly construed would have no application in the present case. It is not in dispute that the members of the District Judiciary appointed after 1.04.2004 did not subscribe to any Provident Fund in which case there was no question of applying the proviso to deprive them of the benefit of the GPF which is available under the substantive part of S. 20." 

The court also clarified it was not dealing with the question of the applicability or validity of the NPS, which is already a matter sub-judice in another pending case before the Top Court. 

The petition was filed through AoR Prem Prakash.

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

Citation : 2024 LiveLaw (SC) 872

Click here to read the judgment

Related - Retired HC Judges Can't Be Discriminated Regarding Pension Based On Whether They're Elevated From Service Or Bar : Supreme Court