# K. SREEDHAR RAO v. UNION OF INDIA THROUGH SECRETARY, MINISTRY OF LAW & JUSTICE, NEW DELHI

- **Citation:** [2019] 12 S.C.R. 81
- **Court:** Supreme Court of India
- **Decided:** 2019-09-06
- **Bench:** Arun Mishra, M. R. Shah, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-sreedhar-rao-v-union-of-india-through-secretary-ministry-of-law-justice-new-33142
- **Pages:** 14

## Headnote

High Court Judges (Salaries and Conditions of Service) Act,
1954 - rr. 2 and 7 of Part-I of First Schedule - Pensionary benefits
of retired Acting Chief Justice of the High Court - Calculation of -
Petitioner served as an Acting Chief Justice of the High Court for
14 months and retired in that capacity - Petitioner claimed the
pensionary benefits as available to the Chief Justice of the High
Court - The said claim was declined by the Central Government -
Writ petition before the Supreme Court - Held: There is a clear
distinction between a Judge appointed as an Acting Chief Justice
u/Art. 223 of the Constitution and a Chief Justice appointed u/Art.
217 of the Constitution - It is 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 -
However for the purposes of pension, r. 2 and r. 7 of Part I of the
First Schedule of the 1954 Act are required to be read conjointly
and while making the computation of pension u/r. 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
- In the instant case, the services rendered by the petitioner as an
Acting Chief Justice was for a period of 14 months and the same is
to be counted/calculated as that of the Chief Justice - Therefore,
the petitioner is not entitled to the pensionary benefits including
the ceiling in the pension which may be available to a retired Chief
Justice, but only for the period of service rendered by him as an
Acting Chief Justice is required to be considered as service rendered
as a Chief Justice for the purpose of computation of pension -
Constitution of India - Arts. 217 and 223 - Judiciary - Service
Law - Pension.
 [2019] 12 S.C.R. 81
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
Dismissing the writ petition, the Court
HELD: 1. 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 High
Court Judges (Salaries and Conditions of Service) Act, 1954 are
to be considered and 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 Schedu

## Text

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K. SREEDHAR RAO
v.
UNION OF INDIA THROUGH SECRETARY,
MINISTRY OF LAW & JUSTICE, NEW DELHI
 (Writ Petition (C ) No. 300 of 2016)
SEPTEMBER 06, 2019
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
High Court Judges (Salaries and Conditions of Service) Act,
1954 - rr. 2 and 7 of Part-I of First Schedule - Pensionary benefits
of retired Acting Chief Justice of the High Court - Calculation of -
Petitioner served as an Acting Chief Justice of the High Court for
14 months and retired in that capacity - Petitioner claimed the
pensionary benefits as available to the Chief Justice of the High
Court - The said claim was declined by the Central Government -
Writ petition before the Supreme Court - Held: There is a clear
distinction between a Judge appointed as an Acting Chief Justice
u/Art. 223 of the Constitution and a Chief Justice appointed u/Art.
217 of the Constitution - It is 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 -
However for the purposes of pension, r. 2 and r. 7 of Part I of the
First Schedule of the 1954 Act are required to be read conjointly
and while making the computation of pension u/r. 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
- In the instant case, the services rendered by the petitioner as an
Acting Chief Justice was for a period of 14 months and the same is
to be counted/calculated as that of the Chief Justice - Therefore,
the petitioner is not entitled to the pensionary benefits including
the ceiling in the pension which may be available to a retired Chief
Justice, but only for the period of service rendered by him as an
Acting Chief Justice is required to be considered as service rendered
as a Chief Justice for the purpose of computation of pension -
Constitution of India - Arts. 217 and 223 - Judiciary - Service
Law - Pension.
 [2019] 12 S.C.R. 81
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
Dismissing the writ petition, the Court
HELD: 1. 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 High
Court Judges (Salaries and Conditions of Service) Act, 1954 are
to be considered and 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
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and for that period his pension is required to be computed as if
he has rendered service as Chief Justice. [Para 6.3][93-B-H]
2. Now so far as the reliance placed upon the decision of
this Court in the case of Syad Sarwar Ali by the respondent is
concerned, 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, this Court has 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, 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.
[Para 7][94-A-F]
Union of India v. Syad Sarwar Ali (1998) 9 SCC 426 -
referred to.
K. SREEDHAR RAO v. UNION OF INDIA THROUGH
SECRETARY, MINISTRY OF LAW & JUSTICE, NEW DELHI
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SUPREME COURT REPORTS
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Case Law Reference
(1998) 9 SCC 426
 referred to
Para 3.4
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
300 of 2016
[Under Article 32 of the Constitution of India]
Kailash Vasdev, Sr. Adv., Navin Prakash, Umrao Singh Rawat,
Ms. Nayan Tara, A. Joseph, Advs. for the Petitioner.
Ms. V. Mohana, Sr. Adv., S. K. Singhania, D. L. Chidanand,
Ms. Ankita Sharma, Ms. Nikita Kapoor, A. K. Sharma, Mukesh Kumar
Maroria, Advs. for the Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. By way of this petition filed under Article 32 of the Constitution
of India, the petitioner, who retired as Acting Chief Justice of the Gauhati
High Court, has prayed for an appropriate writ, direction or order and
declaration that the petitioner is entitled to pensionary benefits, applicable
to a retired Chief Justice of a High Court.
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 '1954 Act').
2.1 That 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
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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 with
hereinbelow.
2.2 That 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.
3. Shri Kailash Vasdev, learned Senior Advocate appearing on
behalf of the petitioner has vehemently submitted that as per para 10 of
Part D of the Second Schedule of the Constitution of India, there shall
be paid to the Judges of the High Courts, in respect of time spent on
actual service, salary at the rates mentioned therein. It is submitted that
as per para 11 of Part D of the Second Schedule of the Constitution of
India, the expression "Chief Justice" includes an Acting Chief Justice.
It is submitted that therefore Part D of the Second Schedule of the
Constitution of India, in the matter of pay and perks, equates the Acting
Chief Justice with the Chief Justice.
3.1 It is further submitted by Shri Kailash Vasdev, learned Senior
Advocate appearing on behalf of the petitioner that as per Section
2(1)(a) of the 1954 Act, "Acting Chief Justice" means a Judge
appointed under Article 223 of the Constitution to perform the
duties of the Chief Justice. It is submitted that as per Section
2(1)(g) of the 1954 Act, "Judge" means a Judge of a High Court
and includes the Chief Justice, Acting Chief Justice, an additional
Judge and Acting Judge of the High Court.
K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]
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3.2 It is further submitted by Shri Kailash Vasdev, learned Senior
Advocate appearing on behalf of the petitioner that as per Rule 2
of Part I of the First Schedule of the 1954 Act, the pension payable
to a Judge to whom Part I applies for pension shall be for service
as Chief Justice in any High Court - Rs.1,21,575/- per annum for
each completed year of service and the pension payable to a Chief
Justice shall in no case exceed Rs.15,00,000/- per annum. It is
submitted that as per Rule 7 of Part I of the First Schedule of the
1954 Act, for the purposes of 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. It is submitted
that therefore the petitioner who retired as an Acting Chief Justice
shall be entitled to all pensionary benefits as may be available to a
retired Chief Justice including the maximum limit of Rs.15,00,000/
- per annum in the case of a Chief Justice.
3.3 Learned Senior Advocate appearing on behalf of the petitioner
has submitted that in fact the respondent rejected the claim of the
petitioner considering his application under Part III of the First
Schedule of the 1954 Act. It is submitted that in fact subsequently
the petitioner claimed the pension/pensionary benefits under Part
I of the First Schedule of the 1954 Act, and therefore, his case is
required to be considered under Part I of the First Schedule of the
1954 Act.
3.4 Now so far as the reliance placed upon the decision of this
Court in the case of Union of India v. Syad Sarwar Ali (1998)
9 SCC 426 by the respondent is concerned, it is vehemently
submitted by the learned Senior Advocate appearing on behalf of
the petitioner that the said decision shall not be applicable at all to
the facts of the case on hand. It is submitted that the facts in the
said case are distinguishable. It is submitted that the said judgment
deals with a fact situation where the respondent discharged his
duties as Acting Chief Justice during his tenure as a Judge and as
such he retired as a Judge and not as an Acting Chief Justice. It
is submitted that observations of this Court in para 9 of the
aforesaid judgment are obiter dicta. It is submitted that therefore
the decision in the case of Syad Sarwar Ali(supra) has no
application to the facts of the case on hand.
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3.5 It is further submitted by Shri Kailash Vasdev, learned Senior
Advocate appearing on behalf of the petitioner that para 11 of
Part D of the Second Schedule of the Constitution of India
specifically provides the expression "Chief Justice" includes an
Acting Chief Justice. It is submitted that Rule 7 of Part I of the
First Schedule of the 1954 Act reiterates that "for the purposes of
this Part, 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". It is submitted that the Acting Chief Justice
discharges the same duties, obligations and functions as the Chief
Justice. It is submitted therefore that the petitioner, who retired as
an Acting Chief Justice, for all practical purposes, retired as a
Chief Justice and therefore he is entitled to the pensionary benefits
as may be available to the Chief Justice.
3.6 It is further submitted by Shri Kailash Vasdev, learned Senior
Advocate appearing on behalf of the petitioner that as such Part
III of the First Schedule of the 1954 Act shall not be applied to a
Judge who retires as an Acting Chief Justice. It is submitted that
Part III of the First Schedule of the 1954 Act applies to a Judge
who has held any pensionable post under the Union or a State
...... and who has not elected to receive the pension payable
under Part I. It is submitted that Part III deals with pension payable
to such a Judge and it does not deal with pension payable to a
Judge who retires as an Acting Chief Justice.
3.7 It is further submitted by Shri Kailash Vasdev, learned Senior
Advocate appearing on behalf of the petitioner that Section 14 of
the 1954 Act provides that "subject to the provisions of this Act,
every Judge shall, on his retirement, be paid a pension in
accordance with the scale and provisions in Part I of the First
Schedule". It is submitted that Rule 7 of the First Schedule equates
the service of an Acting Chief Justice as service rendered as a
Chief Justice of the High Court for the purposes of Part I. It is
submitted that therefore when on the date of retirement the
petitioner retired as an Acting Chief Justice after rendering service
as an Acting Chief Justice for 14 months, the petitioner shall be
entitled to the pensionary benefits which may be available to a
Chief Justice.
K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]
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3.8 Making the above submissions, it is prayed to allow the present
petition.
4. The present petition is vehemently opposed by Ms. V. Mohana,
learned Senior Advocate appearing on behalf of the respondent. It is
vehemently submitted that the petitioner being a promotee Judge and
retired as an Acting Chief Justice from the High Court, Part III of the
First Schedule of the 1954 Act only shall be applicable. It is submitted
that even otherwise as such the petitioner submitted the application for
pension under Part III only and therefore his application was processed
under Part III only. It is submitted that only before this Court subsequently
as an afterthought the petitioner is claiming the pension/pensionary
benefits under Part I. It is submitted that as there was no upper limit so
far as the pension payable under Part III is concerned, the petitioner
applied for pension under Part III only.
4.1 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that para 11 of
Part D of the Second Schedule of the Constitution read with Article
221 shows that the said provisions prescribe entitlement of salaries
alone of a Judge/Chief Justice of a High Court and the same is
made applicable to an ad-hoc or an Acting Judge/Chief Justice of
the High Court. It is submitted that therefore an Acting Chief
Justice of a High Court is equated to a Chief Justice for the limited
purpose of salary only and not otherwise.
4.2 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that by virtue of
the 1954 Act, it is for the limited purpose of computation of salary
that the Acting Chief Justice is treated as Chief Justice.
4.3 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that Rule 7 of
Part I of the First Schedule of the 1954 Act is required to be read
with Rule 2 of Part I. It is submitted that Rule 7 of Part I also
speaks about computation and not grant of equal pension.
4.4 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that Rule 7 of
Part I of the First Schedule of the 1954 Act when read with Rule
2 of Part I, it can be seen what is contemplated in Part I is only
computation as far as the position held by them during a particular
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year either as a Judge/Acting Chief Justice/Chief Justice. It is
submitted that in any event, Rule 7 only counts the length of service
of a Judge being ad-hoc Judge under Article 127 of the Constitution
or one under Article 223 of the Constitution. It is submitted that
therefore the prayer of the petitioner for pension as Chief Justice
is not sustainable and the petitioner is not entitled to pensionary
benefits applicable to a retired Chief Justice of the High Court
and is not eligible for consideration to the all statutory posts and
assignments for which a retired Chief Justice is eligible.
4.5 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that the Acting
Chief Justice of a High Court, who is one appointed under Article
223 of the Constitution of India, may not be equated with the
Chief Justice of the High Court who is appointed under Article
217 of the Constitution of India. It is submitted that in the case of
Syad Sarwar Ali (supra), this Court had categorically held that
the Acting Chief Justice is different from Chief Justice. Relying
upon paragraphs 10 and 11 of the aforesaid decision, it is submitted
by the learned Senior Advocate that an Acting Chief Justice who
is one appointed under Article 223 of the Constitution of India
may not be equated with a Chief Justice appointed under Article
217 of the Constitution of India.
4.6 It is further submitted by Ms. V. Mohana, learned Senior
Advocate appearing on behalf of the respondent that there is a
clear distinction between a Chief Justice appointed under Article
217 of the Constitution of India and Acting Chief Justice appointed
under Article 223 of the Constitution of India. It is submitted that
when an Acting Chief Justice is appointed, the office of the Chief
Justice remains vacant. It is submitted that under Article 223 of
the Constitution, an Acting Chief Justice is merely appointed by
the President to perform the functions of the Chief Justice while
the office of the Chief Justice remains vacant. It is submitted that
Schedule 3 Para VIII of the Constitution of India provides for an
oath for the Chief Justice and other Judges, but not for an Acting
Chief Justice. It is submitted that Acting Chief Justice never takes
the oath of office. It is submitted that any puisne Judge can be
appointed as Acting Chief Justice. It is submitted therefore that
there is a material distinction between the Chief Justice appointed
K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]
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under Article 217 of the Constitution and an Acting Chief Justice
appointed under Article 223 of the Constitution. It is submitted
that only during the period a Judge is appointed and functioning as
an Acting Chief Justice and considering para 11 of the Second
Schedule of the Constitution read with Article 221 of the
Constitution, such an Acting Chief Justice is entitled to the salaries
of a Chief Justice of the High Court. It is submitted therefore that
the petitioner shall not be entitled to the pensionary benefits as
may be available to a retired Chief Justice and therefore is rightly
denied the pension/pensionary benefits as may be available to a
retired Chief Justice.
4.7 Making the above submissions, it is prayed to dismiss the
present petition.
5. We have heard the learned counsel for the respective parties
at length.
5.1 The short question which is posed for the consideration of this
Court is, whether the petitioner who retired as an Acting Chief
Justice is entitled to the pensionary benefits which may be available
to a retired Chief Justice?
5.2 Section 14 of the 1954 Act provides for pension payable to
Judges. It provides that subject to the provisions of the 1954 Act,
every Judge shall, on his retirement, be paid a pension in
accordance with the scale and provisions in Part I of the First
Schedule. It further provides that no such pension shall be payable
to a Judge unless (a) he has completed not less than twelve years
of service for pension; or (b) he has attained the age of sixty-two
years; or (c) his retirement is medically certified to be necessitated
by ill-health. "Judge" is defined under Section 2(1)(g) of the 1954
Act. According to Section 2(1)(g) of the 1954 Act, "Judge" means
a Judge of a High Court and includes the Chief Justice, an Acting
Chief Justice, an additional Judge and an Acting Judge of the
High Court.
5.3 Part I of the First Schedule of the 1954 Act shall apply to a
Judge who has not held any other pensionable post under the
Union or a State or a Judge who having held any other pensionable
post under the Union or a State has elected to receive the pension
payable under Part I. Part III of the First Schedule of the 1954
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Act shall apply to a Judge who has held any pensionable post
under the Union or a State and who has not elected to receive the
pension payable under Part I. In the present case, as such, the
petitioner was a promotee Judge and therefore Part III of the
First Schedule may be applicable. It is required to be noted that as
such the petitioner applied for pension under Part III. However, it
is the case on behalf of the petitioner that subsequently having
realised the mistake he had applied for pension under Part I of the
First Schedule of the 1954 Act. Without entering into the question,
whether the petitioner can be permitted to subsequently switch
over to Part I of the First Schedule of the 1954 Act, we shall
consider the case of the petitioner as if he had applied for pension
under Part I of the First Schedule.
6. Rule 2 of Part I of the First Schedule of the 1954 Act provides
that subject to the other provisions of Part I, the pension payable to a
Judge to whom Part I applies, pension shall be (a) for service as Chief
Justice in any High Court - Rs.1,21,575/- per annum for each completed
years of service; (b) for service as any other Judge in any High Court -
Rs. 96,524/- per annum for each completed years of service. It further
provides that the pension under this paragraph shall in no case exceed
Rs.15,00,000/- per annum in the case of a Chief Justice and Rs.13,50,000/
- per annum in the case of any other Judge.
6.1 Rule 7 of Part I of the First Schedule of the 1954 Act, upon
which much reliance has been placed by the learned Senior
Advocate appearing on behalf of the petitioner, provides that for
the purposes of 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. Therefore, for the purpose of
computation of the pension as per Rule 2, the service rendered by
a Judge as an Acting Chief Justice shall be treated as a service
rendered as Chief Justice, i.e., Rs.1,21,575/- per annum. For
example, like in the present case, for the services rendered by the
petitioner as Acting Chief Justice for 14 months, while computing
the pension for that 14 months, his pension shall be counted as
Chief Justice, i.e., Rs.1,21,575/- per annum and for rest of the
completed years of service his pension is to be computed as Judge
of the High Court. Rules 2 and 7 of Part I of the First Schedule of
the 1954 Act read as under:
K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]
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 "2. Subject to the other provisions of this Part, the pension
payable to a Judge to whom this Part applies for pension shall
be, __
(a) for service as Chief Justice in any High Court, Rs.1,21,575/-
per annum for each completed year of service;
(b) for service as any other Judge in any High Court,
Rs.96,524/- per annum for each completed year of service:
provided that the pension under this paragraph shall in no case
exceed Rs.15,00,000/- per annum in the case of a Chief Justice
and Rs.13,50,000/- per annum in the case of any other Judge.
7. For the purposes of this Part, service as an acting Chief Justice
of a High Court or as an ad hoc Judge of the Supreme Court, shall be
treated as though it were service rendered as Chief Justice of a High
Court,
Provided that nothing in this paragraph shall apply-
(a) to an additional Judge or acting Judge; or
(b) to a Judge who at the time of his appointment is in receipt of
a pension (other than a disability or wound pension) in respect
of any previous service under the Union or a State."
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 Chief Justice.
6.3 Now 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
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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.
K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
7. 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.
8. In view of the above and for the reasons stated above, the
petitioner is not entitled to the relief and the declaration as prayed. The
petitioner is not entitled to the pensionary benefits including the ceiling in
the pension as may be available to a retired Chief Justice. The instant
petition fails and the same deserves to be dismissed and is accordingly
dismissed.
Ankit Gyan
Petition dismissed.