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Synopsis

The Supreme Court has recently said all the judges of the High Courts, whether appointed from district judiciary or from the Bar, discharge the constitutional function and duties of adjudication under the law, and any attempt to make a distinction among them for determining their service condition while in service or any form of retiral dues would be unconstitutional.

"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," a bench of former Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said.

The court quashed and set aside a letter of December 30, 2022, by the Under Secretary to the Government of India in the Department of Law and Justice purportedly stating that as judges appointed by direct recruitment to the State Judicial Service after the adoption of the New Pension Scheme in 2004 by the State Governments and subsequently appointed as High Court Judges are covered by the Contributory Provident Scheme of the State Government, they would not be eligible to subscribe to the General Provident Fund. 

"The letter is not only based on a mis-appreciation of the statutory scheme underlying Section 20 of the the High Court Judges (Salaries and Conditions of Service) Act 1954 but is fundamentally at odds with the constitutional status of judges of the High Court as a homogenous class," the bench said.

The court emphasised that 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.

The court allowed petitions filed by Justice Shailendra Singh, and others, eight judges of the Patna High Court by directing that a General Provident Fund account should be opened with effect from the date of appointment of every one of them into which contributions would be credited at par with all other judges of the High Court irrespective of the source from which they were drawn.

The bench ordered that the amounts that are lying to the credit of the petitioners in the New Pension Scheme would be returned to them within a period of four weeks from the date of this judgment.

The bench dealt with the issue of whether a member of the district judiciary, upon appointment as a Judge of the High Court, would be entitled to the benefit of the General Provident Fund which is available to all High Court judges under Section 20.

The bench said, "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."

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, it pointed out.

"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," the court said.

It also pointed out that 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.

"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 said.

The court also pointed out that the object of providing for a Parliamentary determination of service conditions, in particular, the salary, allowances and pension was to bring about national uniformity in the conditions of service both of sitting and former judges of High Courts.

"Clearly, therefore, it is not within the contemplation of the Constitution that the payment of salaries and the extension of other benefits both during and after service should be left to the vagaries of determination by individual States and the schemes which are applicable to civil service officers discharging duties in each State," the bench said.

The court also noted that the payment of salaries and allowances to sitting judges is charged to the Consolidated Fund of every State in terms of Article 202(3)(d) of the Constitution.

"The importance which was attached to the payment of pension is clear from the fact that pensionary payments are charged on the Consolidated Fund of India under Article 112(d)(3)," it said.

Case Title: Justice Shailendra Singh & Ors Vs Union of India & Ors