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Synopsis

The Bombay High Court (HC) has granted pension benefits to former Additional Judge of the High Court, Pushpa Ganediwala, who resigned before completing her tenure.

A Division Bench comprising the Chief Justice Alok Aradhe and Justice Bharati Dangre, quashed the Bombay High Court Registry’s decision denying pension to the former judge/ petitioner, and held that resignation does not disentitle a judge from pension. “It is evident that the word ‘retirement’ is a word of wide import. The same means the conclusion of a career. One of the meanings of the word ‘retire’ is to ‘resign’,” the court observed.

The ex-judge was demoted to the position of District and Sessions Judge on February 12, 2022, at the conclusion of her tenure as an Additional Judge of the Bombay High Court following widespread criticism of a judgment she delivered on the interpretation of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. In her ruling, she held that an act would constitute sexual assault under the POCSO Act only if there was “skin-to-skin contact with sexual intent.” She further ruled that “holding the hands of a minor girl and opening the zip of the accused’s pants” did not meet the definition of sexual assault under the Act.

The petitioner was appointed as a District Judge on October 26, 2007, and later elevated as an Additional Judge of the Bombay High Court on February 13, 2019, for a two-year term. The Central Government extended her tenure until February 12, 2022, but she resigned on February 11, 2022. The Ministry of Law and Justice notified her resignation on March 14, 2023.

After resigning, Ganediwala applied for pension benefits, citing her total service tenure of 2 years, 11 months, and 29 days as an Additional Judge, along with 11 years, 3 months, and 18 days as a District Judge. However, the Registrar (Original Side) of the Bombay High Court rejected her claim, citing legal opinions from the Ministry of Law & Justice, Principal Accountant General, and Advocate General of Maharashtra, stating that resignation does not qualify as retirement under the 1954 Act.

Through a Right to Information (RTI) request, the petitioner discovered that five former judges who had also resigned were receiving pension benefits. Based on this information, she approached the Bombay High Court for relief.

The petitioner also relied on the Supreme Court’s ruling in D.S. Nakara v. Union of India, wherein it was held that the right to pension is an essential part of the right to life under Article 21 of the Constitution.

Examining the provisions of the High Court Judges (Salaries and Conditions of Services) Act, 1954 (1954 Act), pertaining to the grant of pensionary benefits, the court noted: “The resignation as well as the retirement, both result in the conclusion of the service career. In fact the resignation is one of the modes of retirement from service and is a voluntary act. In case the Legislature intended to confine the benefits of pension only to a Judge who has retired on superannuation, it would have expressly said so. The word ‘retirement’ in Sections 14 and 15 of 1954 Act has not been used in a restricted sense to mean retirement on superannuation only.”

“The criteria of entitlement to pension is retirement and mode of retirement for pension is irrelevant for the purpose of Section 14 and 15(1) of 1954 Act,” the court further explained.

The court also took note of the fact that other former judges who resigned were granted pensions, which established a precedent for equal treatment. In this regard, the court also relied on the ruling delivered by the division bench of the HC in Nandkishor Digambar Deshpande Vs High Court of Judicature of Bombay, which declared that “the Judge who demitted his office as an additional Judge of this Court is entitled to pension.”

In light of these findings, the court ruled, “The petitioner is held entitled to pension.” Additionally, it directed the respondents to grant the petitioner pension benefits with effect from February 14, 2022, along with interest at the rate of 6% per annum, payable within two months.

 

Cause Title: Pushpa w/o. Virendra Ganediwala v High Court of Judicature of Bombay & Ors. [WRIT PETITION NO.15018 OF 2023]

Appearance: Mr. Sunil Manohar, Senior Advocate with Mr. Nikhil Sakhardande, Senior Advocate and Mr. Pralhad Paranjape, Mr. Ankit B. Rathod, Mr. Onkar Bajaj, Mr. Atharva S. Manohar i/b. Anshu Agrawal for the petitioner; Mr. Virendra Tulzapurkar, Senior Advocate a/w.Mr. Rahul Nerlekar for respondent No.1 to 3 Mrs. Neha S. Bhide, Govt. Pleader with Mr. O. A. Chandurkar, Additional Govt. Pleader and Mrs. G. R. Raghuwanshi, AGP for respondent Nos.5 and 6 – State.