Bombay High Court
Nandkishor Digambar Deshpande vs High Court Of Judicature Of Bombay ... on 15 November, 2017
Bench: B.R. Gavai
(908)-WPL-2030-17.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2030 OF 2017
Nandkishor Digambar Deshpande ]
(Former Judge of the Bombay High Court) ]
Age : 65 years, ]
Having address at : ]
Building No.56/A Wing/604, ]
Chintamani CHS, Opp. Bus Depot, ]
Pratiksha Nagar, Sion (E), ]
Mumbai 400 022. ]..Petitioner
Versus
1] High Court of Judicature of Bombay ]
Bombay ]
[Summons to be served on the ]
Registrar General, ]
High Court of Judicature of Bombay ]
Bombay.] ]
2] The Registrar General ]
High Court of Judicature of Bombay ]
Bombay. ]
3] The Prothonotary & Senior Master/ ]
Registrar Original Side, ]
High Court of Judicature of Bombay. ]
4] Registrar ]
(Administration) ]
High Court of Judicature of Bombay ]
Bench Aurangabad ]
Jalna Road, Aurangabad. ]
5] Union of India ]
[Summons to be served on the Learned ]
Government Pleader appearing for ]
Union of India under Order XXVII, ]
Rule 4, of the Code of Civil ]
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Procedure, 1908]. ]
6] The Secretary, ]
Law and Judiciary Department ]
Government of India ]
New Delhi. ]
[Summons to be served on the Learned ]
Government Pleader appearing for ]
Union of India under Order XXVII, ]
Rule 4, of the Code of Civil ]
Procedure, 1908]. ]
7] State of Maharashtra ]
[Summons to be served on the Learned ]
Government Pleader appearing for ]
State of Maharashtra under Order XXVII, ]
Rule 4, of the Code of Civil ]
Procedure, 1908]. ]
8] The Secretary ]
Law and Judiciary Department ]
Government of Maharashtra ]
Mantralaya, Mumbai 400 032. ]
[Summons to be served on the Learned ]
Government Pleader appearing for ]
State of Maharashtra under Order XXVII, ]
Rule 4, of the Code of Civil ]
Procedure, 1908]. ]
9] The Accountant General (A&E) ]
Office of Accountant General ]
Maharashtra I, Mumbai, ]
101, Maharshi Karve Road, ]
Mumbai 400 020. ]
10] The Account General (A&E) ]
Office of the Accountant General ]
Maharashtra II Nagpur ]
Nagpur 440001 ]
Having the address at : Nagpur ]..Respondents
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Mr. A. V. Anturkar, Senior Counsel a/w Mr. Manjiri S. Parasnis for the
Petitioner.
Mr. Rahul Nerlekar for the Respondent Nos.1 to 4.
Mr. R. S. Apte, Senior Counsel for the Respondent No.5.
Mr. Kedar Dighe, AGP for the Respondent Nos.7 & 8 - State.
Mr. Vinod Joshi for the Respondent Nos.9 & 10.
CORAM : B. R. GAVAI &
SANDEEP K. SHINDE, JJ.
DATE : 15th NOVEMBER, 2017
ORAL JUDGMENT :-(Per B. R. Gavai, J)
1] Rule. Rule made returnable forthwith. Heard by consent.
2] We are called upon to answer an unfortunate question as to
whether a person who had occupied the office of 'Additional Judge of this
Court' and who happens to be from the cadre of City Civil and Sessions
Judge/District and Sessions Judge, would be deemed to be retired as
High Court Judge or as a Judge of the City Civil and Sessions Court.
3] The facts in the present case are not in dispute. The
Petitioner came to be appointed directly as a Judge of the Bombay City
Civil and Sessions Court vide notification dated 11 th October 1991. He
served in that capacity for period of almost 17 years. Vide notification
issued by the Government of India dated 11 th April 2008, the Petitioner
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came to be appointed as an Additional Judge of the Bombay High Court
for a period of two years i.e. till 11 April 2010. The Petitioner accordingly
took oath as an Additional Judge of this Court on 16 th April 2008.
Another notification came to be issued on 8th March 2010 thereby further
appointing the Petitioner as an Additional Judge of this Court for a
further period of one year i.e. upto 15 th April 2011. However, it appears
that when the Petitioner was occupying the post of an Additional Judge
of this Court a notification came to be issued by the Government of
Maharashtra on 8th April 2011 under the provisions of Section 58 of the
Maharashtra Universities Act, 1994 appointing the Petitioner as Presiding
Officer of Mumbai University and College Tribunal (herein after referred
to as "said Tribunal"). The said appointment was tenure appointment for
a period of three years. The Petitioner accordingly assumed the office of
the Presiding Officer of the said Tribunal on 11 th April 2011. The
Petitioner continued to hold the said post till end of the tenure i.e. 10 th
April 2014.
4] It appears from the record that the Petitioner had filed a Writ
Petition (L) No.290 of 2013 under Article 32 of the Constitution of India
before the Hon'ble Supreme Court, seeking declaration that after 16th
April 2011 he ought to have been either granted further extension as
Additional Judge or confirmed as permanent Judge of this Court. The
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said Petition was dismissed in limine on 2nd July 2013.
5] The Petitioner ceased to hold the office as a Presiding Officer
of the said Tribunal from 10th April 2014, upon completion of three year
tenure. After that there was some dispute as to under what provisions the
pensionary and terminal benefits would be granted to the Petitioner.
6] The issue regarding fixation of pension and other retirement
benefits of Petitioner was considered in the meeting of Administrative
Judges Committee held on 10th April 2015, wherein it was resolved that,
the Petitioner stands retired on superannuation, as District Judge in
Maharashtra State Judicial Services with effect from 10 th April 2014. In
pursuance to the decision of the Hon'ble Administrative Judges
Committee, a notification came to be issued on 17 th April 2015 notifying
that the Petitioner stands retired on superannuation as a District Judge in
the Maharashtra State Judicial Service with effect from 10 th April 2014
(AOH). The perusal of the minutes of the Hon'ble Administrative Judges
Committee would reveal that since there was no confirmation or
extension beyond 15th April 2011, the Petitioner ceased to be a Judge of
the Bombay High Court with effect from 15th April 2011 and from that
date he went back to the cadre of District Judge in the Maharashtra State
Judicial Service. The minutes further reveal that though the Petitioner
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had completed 60 years of age, but in view of the notification dated 8 th
April 2011 notified by the State Government, he held the office of the
Presiding Officer of the Tribunal till 10th April 2014. The Administrative
Judges Committee resolved that for the purpose of fixation of pension
and other retiral benefits, the Petitioner is granted extension in service in
the cadre of District Judge upto 10th April 2014.
7] That being aggrieved by the notification dated 17th April
2015, the Petitioner had preferred a representation on 24 th April 2015
requesting the High Court to recall the notification for the reasons stated
therein. This representation was decided by the Committee of
Administrative Judges in its meeting dated 2nd May 2016, wherein it was
decided to reiterate and confirm the earlier decision of Administrative
Judges Committee that, the pension papers of the Petitioner shall be
processed and finalized by the office of City Civil and Sessions Court
Mumbai on the premise, that he stood retired on superannuation as a
District Judge with effect from 10th April 2014.
8] It appear that the Petitioner had addressed a letter to
Secretary, Government of India, Department of Justice, New Delhi on 6 th
February 2016, which was followed by another letter dated 31 st May
2016, whereby the Secretary, Government of India, Department of Justice
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was requested for taking early decision regarding the finalization of his
pension.
9] It appears that in response to the representation made by the
Petitioner, Hon'ble Minister of Law and Justice, Government of India
addressed a communication to the Hon'ble the Chief Justice of this Court
dated 4th July 2016. A perusal of the letter would reveal that in response
to the earlier communication of the Petitioner, a communication was
addressed to the Accountant General (Pension) of Maharashtra and to the
Registrar General of this Court for taking further action. It would further
reveal that Accountant General (Pension) of Maharashtra vide
communication dated 18th March 2016 had informed that the issues
relating to pension eligibility of the Petitioner are to be sorted out by the
administrative authority of the Bombay High Court and the case will be
finalized after getting complete proposal from the pension sanctioning
authority which is the Registry of this Court. It was further informed that
the Department of Law and Justice has not received response from the
Bombay High Court nor the pension papers were received. The Hon'ble
Minister for Law and Justice by the said letter requested the Hon'ble the
Chief Justice, for forwarding the pension admissibility papers
expeditiously to the appropriate authority. This letter was replied by the
High Court through Registrar General vide letter dated 16 th July 2016
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inter-alia informing that the High Court on Administrative Side
considered issue of pension of the Petitioner in its meeting held on 10 th
April 2015. It was also informed that the representation against the
decision dated 10th April 2015, was decided on 2 nd May 2016. It was
brought to the notice of Secretary, Ministry of Law and Justice that
inspite of communication of the decision dated 2 nd May 2016 Petitioner
was not turning up to the City Civil and Sessions Court, Mumbai for
finalization of pension papers and consequently these could not be
forwarded to the office of Accountant General.
10] After receipt of the communication dated 16 th July 2016
from the Registrar General of this Court, the Director, Government of
India, Ministry of Law and Justice again addressed communication to the
Registrar General of this Court on 14 th October 2016. It was specifically
mentioned in the said letter that under Section 2(g) of the High Court
Judges (Salaries and Conditions of Services) Act, 1954 (hereinafter
referred to as "the said Act"), 'Judge' means, 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. It was also stated that according
to Section 2(gg) of the said Act, 'Pension' means a pension of any kind
whatsoever payable to or in respect of a Judge and includes any gratuity
or other sum or sums so payable by way of of death or retirement
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benefits. The Registrar General was therefore requested to consider as to
how pension in respect of period served by the Petitioner as an Additional
Judge of the Bombay High Court will be regulated as per the provisions
of Part III of the said Act.
11] It appears that, pursuant to the communication dated 14 th
October 2016, the Hon'ble the Chief Justice had referred the matter to a
Special Committee of two Hon'ble Judges of this Court. The said
Committee of Hon'ble Judges in its meeting dated 8 th December 2016
found that the pension papers of the Petitioner would have to be
processed considering him as superannuated as a Judge of City Civil and
Sessions Court and the Registry of the City Civil and Sessions Court
should take necessary action.
12] It appears that pursuant to the decision of the Special
Committee, the Registrar General of this Court addressed a letter dated
23rd December 2016, to the Director (Ministry of Law and Justice) stating
therein that the Petitioner ceased to be Judge of High Court with effect
from 15th April 2011. It was also informed that, with effect from that date
he went back to his substantive cadre of District Judge in the
Maharashtra State Judicial Service and therefore, the said Act had no
application to the pension case of the Petitioner. It was further informed
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that from the language of Section 14 and definition of the term 'Judge'
appearing in Section 2 clause (g) r/w Section 2(gg) of the said Act
defining the term 'Pension', it was apparent that the Act is applicable to a
Judge of High Court including Chief Justice, Acting Chief Justice and
Additional Judge and Acting Judge of the High Court and Petitioner was
not a Judge of this Court. It was further stated that he was appointed as a
Presiding Officer of the said Tribunal with effect from 11 th April 2011 and
therefore, he ceased to be governed by the said Act and attained the age
of superannuation as a District Judge. In the letter a reference has also
been made to the judgment of the Hon'ble Supreme Court in N.
Kannadasan Vs. Ajoy Khose and others reported in (2009) 7 SCC 1.
13] Being aggrieved by the decision of this Court on
Administrative side as is reflected in the letter dated 23 rd December 2016
addressed by the Registrar General of this Court to the Director (Justice),
Ministry of Law and Justice declaring that the Petitioner has retired as
District Judge and not as Judge of this Court, the Petitioner has
approached this Court by way of the above Writ Petition.
14] Mr. A. V. Anturkar, learned senior counsel appearing for the
Petitioner has made various submissions in support of the Petition.
However, we do not find it necessary to refer to all the submissions made
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by Mr. A. V. Anturkar.
15] Mr. Rahul Nerlekar, learned counsel appearing on behalf of
the High Court would submit that in paragraph 20 of the judgment of the
Apex Court in the case of N. Kannadasan, it has categorically been held
that an Additional Judge who holds a tenure post indisputably would not
get any pensionary benefit, and therefore no error could be found with
the decision taken by the High Court on the administrative side.
16] As already discussed hereinabove, though Mr. A. V. Anturkar
has made various submissions, we do not find it necessary to refer to
them, in as much as, we are of the considered view that the Petition
deserves to be allowed on the basis of interpretation on the provisions of
the said Act. It will be relevant to refer to clause (d) and clause (g) of Sub
Section (1) of Section 2 of the said Act which read thus :-
"2. Definition :- (1) In this Act, unless the context
otherwise requires -
(a) ............
(b) ...............
(c) ...............
(d) Additional Judge' means a person appointed as an
additional Judge under clause (1) of Article 224 of the
Constitution;
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(e) ................
(f) .................
(g) '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];"
17] The perusal of the aforesaid provisions would reveal that
clause (d) defines that an additional Judge means a person appointed as
an additional Judge under clause (1) of article 224 of the Constitution of
India. Clause (g) 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]. Section 15 of the said Act reads thus :-
"15. Special provision of pension in respect of Judges
who are members of service.- (1) Every Judge-
(a) (...............)
(b) who (.............) has held any other pensionable civil
post under the Union or State, shall, on his retirement, be
paid a pension in accordance with the scale and provisions
in Part III of the First Schedule;
Provided that every such Judge shall elect to receive
the pension payable to him either under Part I or the First
Schedule or, (...........) Part III of the First Schedule, and the
pension payable to him shall be calculated accordingly."
18] The perusal of clause (b) of Sub Section (1) of Section 15
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would reveal that every Judge who has held any other pensionable civil
post under the Union or State, shall on his retirement, be paid a pension
in accordance with the scale and provisions of Part III in the First
Schedule of the said Act. The proviso thereto provides that every such
Judge shall elect to receive the pension payable to him either under Part I
of the First Schedule or, Part III of the First Schedule and the pension
payable to him shall be calculated accordingly.
19] It will not be necessary to refer to Part I of the First Schedule
of the said Act since the Petitioner would not be governed by the same.
Undisputedly, the case of the Petitioner would be governed by Part III. It
will be relevant to refer to the following provisions as are contained in
Part III of the said Act:-
"1. The provisions of this Part apply to a Judge who has
held any pensionable post under the Union or a State but is
not a member of the Indian Civil Service and who has not
elected to receive the pension payable under Part I.
2. The pension payable to such a Jude shall be -
(a) the pension to which he is entitled under the
ordinary rules of his service if he had not been
appointed a Judge, his service as a Judge being
treated as service therein for the purpose of a
calculating that pension; and
(b) a special additional pension of Rs.16,020/- per
annum in respect of each completed year of service for
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pension.
Provided that the pension under clause (a) and the
additional pension under clause (b) together shall in no
case exceed Rs.5,40,000/- per annum in the case of a Chief
Justice and Rs.4,80,000/- per annum in the case of any
other Judges."
20] Clause (1) of Part III of the First Schedule would reveal that
the provisions of this Part shall apply to a Judge who has held any
pensionable post under the Union or a State (but is not a member of the
Indian Civil Service) and who has not elected to receive the pension
payable under Part I. Undisputedly, the Petitioner has not elected to
receive the pension payable under Part I. Clause (2) of Part III of the First
Schedule provides that the pension payable to such a Judge shall be the
pension to a Judge under the ordinary rules of his service, if he had not
been appointed a Judge, his service as a Judge being treated as service
therein for the purpose of calculating that pension. Sub clause (b)
provides that a special additional pension of Rs.16,020/- per annum in
respect of each completed year of service for pension would be payable to
such a person. The proviso thereof provides that the pension under clause
(a) and the additional pension under clause (b) together shall in no case
exceed Rs.5,40,000/- per annum in the case of a Chief Justice and
Rs.4,80,000/- per annum in the case of any other Judge. Undisputedly,
the Petitioner would be governed by the Maharashtra Civil Services
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(Pension Rules) 1982 in so far as the pension to be granted to him as
Judicial Officer under the Maharashtra Judicial Officers cadre is
concerned. Under Rule 53 of the Maharashtra Civil Services (Pension
Rules) 1982, the Petitioner who is directly recruited from the Bar for the
post of a Judge of the Bombay City Civil and Session Court and since his
age on the date of initial appointment was 38 years, he would be entitled
for 8 years additional qualifying service, in addition to the services
already rendered by him.
21] The factual scenario thus that would emerge is that the
Petitioner has completed services as a Judicial Officer in the cadre of City
Civil and Sessions Judge for a period of 16 years and 6 months. In view
of Rule 53(b) of the Maharashtra Civil Services (Pension) Rules, 1982, he
would be entitled to 8 more years of qualifying service. In view of the
provisions of Section 15 r/w Part III of Schedule I of the said Act, the
period during which the Petitioner has worked as a Judge will have to be
added to his pensionary service for calculating his pension.
22] However, the crux of the dispute lies on this point. It is the
contention of the Respondent - High Court that the 3 years period during
which the Petitioner has actually worked as an Additional Judge of this
Court cannot be treated as a period for qualifying him to the pensionable
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services of a High Court Judge, since according to the High Court he was
not confirmed as a Judge of this Court. A strong reliance is placed in this
respect on the judgment of the Apex Court in the case of N. Kannadasan.
23] Per contra, it is the contention of the Petitioner that the
Petitioner has actually worked as an Additional Judge of this Court and
that as a matter of fact, when he assumed office as the Presiding Officer
of the said Tribunal, he was still an Additional Judge of this Court. It is
not in dispute that, the services rendered by a person as a Presiding
Officer of the said Tribunal are not pensionable and as such those services
cannot be counted for a pensionary benefit.
24] As already discussed hereinabove, under clause (g) of Sub
Section (1) of Section 2 of the said Act, the Judge also includes
Additional Judge. Undisputedly, the Petitioner has been appointed as an
Additional Judge for the first time vide notification dated 11 th April 2008.
He took oath on 16th April 2008. Undisputedly, vide second notification
dated 8th March 2010, the Petitioner was further appointed as an
Additional Judge for a period of one year with effect from 16 th April
2010. As such, under the notification dated 8th March 2010, the Petitioner
was entitled to be continued as an Additional Judge of this Court till 15 th
April 2011. Undisputedly, even prior to the completion of the said period,
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a notification was issued appointing the Petitioner as a Presiding Officer
of the said Tribunal on 8th April 2011 and the Petitioner assumed the said
office on 11th April 2011. It could thus be seen that, the Petitioner
continued to be an Additional Judge of this Court till the date he
assumed the office as Presiding Officer of the said Tribunal. As a matter
of fact, the Petitioner could have also continued as an Additional Judge of
this Court till 15th April 2011. We do not wish to go into further
controversy as to whether the Petitioner should have been continued
thereafter or as to whether he should have been confirmed or not. The
Petitioner has restricted his claim only for the purpose of a direction that
he is entitled for pensionary benefits under the provisions of the said Act
and that his services as an Additional Judge of this Court should be
counted while calculating the pensionary benefits, to which he is entitled.
25] As already discussed hereinabove, a Judge also includes an
Additional Judge. The provisions of Section 15 of the said Act are
applicable to the Judge who has held any other pensionable civil post
under the Union or State. Undisputedly, under clause (1) of Part III of the
First Schedule of the said Act, a Judge who has held any pensionable post
and who has not elected to receive pension payable under Part I, would
receive his pension under the ordinary rules of his service, if he had not
been appointed a Judge, his service as a Judge being treated as service
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therein for the purpose of a calculating that pension. However, a special
additional pension of Rs.16,020/- per annum is payable to a Judge in
respect of each completed year of service for pension. It could further be
seen that in case of a Judge, the pension under both the provisions shall
in no case exceed Rs.4,80,000/- per annum. We are therefore of the
considered view that since the Petitioner in fact occupied the post of an
Additional Judge of this Court, his case would be governed by the
definition of Judge as provided under Section 2(g) of the said Act and
therefore he would be entitled to a pension as a Judge of the High Court
under the provisions of Section 15 of the said Act r/w Part III of the First
Schedule.
26] That leads to us to the question as to whether the reliance
placed by the High Court on the case of N. Kannadasan is well placed or
not. Firstly, the judgment in the case of the N. Kannadasan, is totally on
different facts. In the said case, a person who was appointed as an
Additional Judge of the Madras High Court was not found to be
continued as an Additional Judge or confirmed as permanent Judge.
After he ceased to hold the post of Additional Judge, he came to be
appointed as a President of the Consumer Forum. In that premise, the
Hon'ble Supreme Court was required to decide the issue as to whether
the person who was not found to be fit to be continued as an Additional
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Judge, could be appointed as the Chairman of the Consumer Forum,
wherein the qualification required for that post was that a person should
be qualified to be judge of the High Court.
27] It is further to be noted that in the said case, the person so
appointed was a lawyer who was directly elevated to the High Court. As
such, the question as to whether the period during which a person who
had held any pensionable post under the Union or State could be treated
as a service therein for the purpose of calculating the pension would not
arise for consideration in the said case.
28] Apart from that it is further to be noted that the appointment
of the Petitioner as a Presiding Officer of the said Tribunal was also
challenged before this Court by a PIL seeking reliance on the judgment of
the Apex Court in the case of N. Kannadasan. The Division Bench of this
Court consisting of Smt. Ranjana Desai and Dr. D. Y. Chandrachud, JJ (As
Her Ladyship and His Lordship then were) considered the challenge
raised in the said Petition. The judgment in the case of N. Kannadasan,
was considered by Their Lordships. The Petitioner herein was Respondent
No.1 in the said Petition. It will be relevant to refer to paragraph 10 of
the said judgment which read thus :-
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"10. In this case, respondent 1 worked as a judge of the
City Civil and Sessions Court from 11 October 1991 to 16
April 2008 on which day he was appointed judge of this
court. He was a judge of this court from 16 April 2008 till
11 April 2011 when he was appointed as Presiding Officer
of the College Tribunal There are no allegations of lack of
probity against him. His integrity and character is not in
doubt. Moreover, unlike the appellant in Kannadasan, the
first respondent had not demitted office. When respondent
1 was appointed as a Presiding Officer of the College
Tribunal, he was a judge of this court. His case is, therefore,
covered by Section 58(4)(a) of the Maharashtra
Universities Act, Kannadasan is not applicable to this case."
(emphasis supplied)
29] It could thus be seen that Their Lordships have specifically
observed that the Respondent No.1 worked as a Judge of City Civil and
Sessions Court from 11th October 1991 to 16th April 2008 on which day
he was appointed as a Judge of this Court. It has further been observed
that the Petitioner was a Judge of this Court from 16 th April 2008 till 11th
April 2011, when he was appointed as Presiding Officer of the said
Tribunal. Their Lordships further observed that there are no allegations of
lack of probity against him. His integrity and character is not in doubt. It
has further been observed that unlike the appellant in the case of N.
Kannadasan, the present Petitioner had not demitted the office. Their
Lordships further observed that when the Petitioner was appointed as a
Presiding Officer of the said Tribunal, he was a Judge of this Court.
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30] It is further relevant to refer to paragraph 13 of the said
judgment, which is reproduced herein under :-
"13. There are no allegations in the petition that
respondent 1 lacks probity. In the additional affidavit of Mr.
Patil, however, it is stated that I.B. Report is considered
while making a judge permanent and, therefore, the
Central Government should have filed an affidavit. Mr. Patil
had at the outset informed us that he did not wish to see
the record and that we should peruse it. We have
accordingly, perused it. There is no adverse report of any
agency against respondent 1. After a careful perusal of the
record, we are of the opinion that there is no need to direct
the respondents to file affidavits in reply as the petition
deserves to be dismissed in limine."
(emphasis supplied)
31] It is observed by Their Lordships that there are no allegations
against the Petitioner/Respondent No.1 of lack of probity. However, in the
additional affidavit of Mr. Patil, it is stated that the I.B. Report is
considered while making a judge permanent and, therefore, the Central
Government should have filed an affidavit. Their Lordships further
observed that they have perused the record and no adverse report has
been found against the present Petitioner.
32] In that view of the matter, it could be clearly seen that the
case of the present Petitioner by no stretch of imagination can be equated
with the case of N. Kannadasan. In any case, the Division Bench of this
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Court on a judicial side has, in unequivocal terms, held that the N.
Kannadan's case is not applicable to the case of the present Petitioner.
33] We are of the considered view that since the Petitioner was
entitled to continue as an Additional Judge of this Court till 15 th April
2011 in view of notification issued by Union of India dated 8 th March
2010, he would be deemed to have retired as a Judge of this Court with
effect from 15th April 2011. It is to be noted that the Petitioner assumed
the office of University and College Tribunal on 11 th April 2011, in
pursuance to the notification issued by the State Government on 8 th April
2011. However, as already discussed hereinabove the services as
Presiding Officer of the University and College Tribunal are not
pensionable.
34] In that view of the matter, we are of the considered view that
since the Petitioner was holding office of a Judge of this Court on the
date on which he assumed the office of the Presiding Officer of the said
Tribunal, he will have to be construed to be a Judge for the purposes of
the said Act and the pensionary benefits that would follow from then. In
the result, the Petition is allowed.
I) It is held and declared that the Petitioner has retired as
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a Judge of this Court on 15th April 2011. It is further
held and declared that the Petitioner is entitled to
receive the pension under the provisions of the High
Court Judges (Salaries and Conditions of Services)
Act, 1954 and specifically Section 15(1)(b) r/w Part III
of First Schedule thereof.
II) The Registrar General is directed to submit the papers
for making applicable Pensionary and terminal benefits
to the Petitioner in the light of the aforesaid
observations to the Respondent Nos.9 and 10 within a
period of one month from today.
III) The Petitioner shall render necessary co-operation
including signing of documents etc. for the said
purpose.
IV) The Respondent Nos.9 and 10 are directed to process
the said papers and ensure that the pensionary and
terminal benefits are made applicable to the Petitioner
within a period of three months from today.
V) All the arrears shall be paid to the Petitioner within a
BGP. 23 of 24
(908)-WPL-2030-17.doc.
period of six months from today.
35] At this stage, the learned counsel for the High Court Mr.
Rahul Nerlekar prays for stay of the order passed by us.
36] It is unfortunate that a person who has occupied the office of
the Additional Judge of this Court for a period of three years and the
office of Judge of the City Civil and Sessions Court for a period of more
than 16 years, has to run from pillar to post for a period of three and half
years for getting his terminal and pensionary benefits. The Apex Court in
the case of D. S. Nakra Vs. Union of India 1 has held that right to pension
is included in right to life under Article 21 of the Constitution of India. In
that view of the matter, the prayer is rejected.
[SANDEEP K. SHINDE, J.] [B. R. GAVAI, J.]
1 AIR 1983 SC 130.
BGP. 24 of 24
