Delhi High Court
Shanker Raju vs Union Of India & Anr. on 23 January, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.01.2019
Pronounced on: 23.01.2019
+ W.P.(C) 3223/2018 & CM APPLN. 13994/2018 & 24073/2018
SHANKER RAJU ..... Petitioner
Through: Petitioner in person.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Abhay Prakash, CGSC for UOI.
Mr. Arun Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner seeks direction thereby
quashing and setting aside impugned orders dated 15.11.2017 and
13.09.2017. Consequently, declare the petitioner to be entitled to the benefit
of judgments in Government of Nct of Delhi and Ors. vs. All India Young
Lawyers Association (Registered) and another: (2009) 14 SCC 49 and P.
Ramakrishnam Raju vs. Union of India & Ors. decided in Supreme Court
in W.P.(C) 521/2002 and further direct the respondents to add ten years
practice of the petitioner as an Advocate at Bar, towards qualifying service.
Consequently, revised the Pension and Gratuity of the petitioner and arrears
be calculated and disbursed to the petitioner by issuing of a revised PPO,
including incorporation of Family Pension.
2. The brief facts of this case are that the petitioner is a Law Graduate
and was enrolled as an Advocate with Bar Counsel of Delhi on 12.10.1984.
The petitioner was appointed as Member (Judicial) in Central
Administrative Tribunal, Principal Bench on 12.10.2000. At the time of
appointment, the petitioner was governed by CAT (Salaries and Allowances
and Conditions of Service of Members) Rules, 1985. The petitioner was
treated at par with the Additional Secretary to the Government of India, but
in case of no express provision regarding conditions of service at par with
secretary to the Government of India. The formula for Pension on
completion of two years of service was at a rate of ₹4,716/- per annum for
each completed year of service and the Pension was fixed as per Part III of
Schedule of High Court Judges Conditions of Service Rules, 1954. The
Pension formula was amended on 22.07.2009 by replacement of per annum
amount for pension as ₹14,532/- per annum w.e.f. 01.01.2006. Copy of
Service Rules are at annexure P-3 (Colly).
3. Further case of the petitioner is that he was initially appointed for a
term of five years and was extended for another term of five years. The
petitioner demitted office on completion of his tenure on 10.12.2010. The
pension of the petitioner on the formula as per 2009 Rules was fixed as
₹12,110/- per month. In a PIL filed on behalf of the Bar regarding addition
of practice of ten years at Bar to the direct recruits to Delhi Higher Judicial
Service was laid at rest by the Hon'ble Supreme Court in case of All India
Young Lawyers Association (Supra) by holding that weightage of practice
at Bar while computing pension and other retiral benefits would attract the
best talent. Accordingly, ten years practice at Bar has been given weightage
to direct recruits in Judicial Service. In year 2006, an amendment was
carried out in A.T. Act, 1985 effective from 19.02.2007, whereby the service
conditions of members of the Central Administrative Tribunal were brought
at par with that of High Court Judges.
4. Mr. Shankar Raju, the petitioner in person submitted that the Hon'ble
Supreme Court in a Constitution Bench Judgment in L.Chandrakumar vs.
UOI: 1997 (3) SCC 261 held the status of Central Administrative Tribunal
as Court of first instance and also upheld the eligibility of an Advocate to be
appointed as Member (Judicial) to be same as eligibility to the High Court
Judge under Article 217 of the Constitution of India. This qualification of
ten years practice at Bar has not been altered as a qualification for a Member
(Judicial) under the A.T. Amended Act, 2006 i.e., post 19.02.2007.
5. The pension of a Member (Judicial), irrespective of the appointment
under Unamended or Amended A.T. Act, 1985 is fixed on the basis of a
common formula i.e., Under Part III of First Schedule of High Court Judges
(Salaries & Conditions of Service) Act, 1954. This has been admitted by the
DOPT in an information furnished to Ex-Judicial Member, CAT, Sh. J. K.
Kaushik on 08.04.2010 under RTI Act, 2005 which is at Annexure P-5
(Colly). The petitioner demitted office on completion of tenure of ten years
on 10.12.2010. The pension was fixed on the basis of formula adopted by
the DOPT reckoning only ten years service of the petitioner. Before the
Hon'ble Supreme Court in various Writ Petitions including of P. Rama
Krishnam Raju (supra), a question as to addition of ten years practice for the
purposes of pension to the High Court Judges appointed from Bar was
deliberated and adjudicated. The Hon'ble Supreme Court while discussing
various provisions of Conditions of Service also relied upon the decision in
All India Young Lawyer Association (Supra). In this furtherance, the
Hon'ble Court discussed three tier judicial system under the Constitution
and discussed the case of Advocates, being Members of the Bar to join
Higher Judicial Services and on retirement get benefit of ten years addition
to their service and observed the following in paras 19 and 24 of the
Judgment in P. Rama Krishna Raju (Supra):-
"19) The Explanation (aa) appended to Article 217(2) of
the Constitution of India envisages that, "in computing
the period during which a person has been an advocate of
a High Court, there shall be included any period during
which the person has held judicial office or the officer of
a member of a tribunal or any post, under the Union or a
State, requiring special knowledge of law after he became
an Advocate." The explanation thus treats the experience
of an Advocate at the Bar and the period of judicial office
held by him at par.
24) when persons who occupied the Constitutional Office
of Judge, High Court retire, there should not be any
discrimination with regard to the fixation of their
pension. Irrespective of the source from where the Judges
are drawn, they must be paid the same pension just as
they have been paid same salaries and allowances and
perks as serving Judges. Only practicing Advocates who
have attained eminence are invited to accept judgeship of
the High Court. Because of the status of the office of High
Court Judge, the responsibilities and duties attached to
the office, hardly any advocates of distinction declines the
offer. Though it may be a great financial sacrifice to a
successful lawyer to accept Judgeship, it is the desire to
serve the society and the high prestige attached to the
office and the respect the office commands that propel a
successful lawyer to accept judgeship. The experience
and knowledge gained by a successful lawyer at the Bar
can never be considered to be less important from any
point of view vis-a-vis the experience gained by a judicial
officer. If the service of a judicial officer is counter for
fixation of pension, there is no valid reason as to why the
experience at Bar cannot be treated as equivalent for the
same purpose.
6. Mr. Raju, further submitted that though the issue pertain to Judges
appointed in High Court from the Bar, the Question of Law i.e., ratio
decidendi was regarding counting of service of a Judicial Officer appointed
on direct recruitment basis and counting of experience at Bar, being
equivalent was found to be discriminatory in violation of Article 14 and 16
of the constitution. The concept of One Rank One Pension was treated as a
must norm.
7. The petitioner in person further submitted that the Central
Administrative Tribunal was constituted under Article 323A of the
Constitution of India. The eligibility of a Member (Judicial) appointed from
the Bar was Mutatis-Mutandis as laid down for High Court Judges under
Article 217 of the Constitution of India. The DOPT vide communication
dated 12.11.2015 addressed to CAT regarding pensionary benefits to
Members (Judicial) coming from Bar, in the light of judgment of the
Hon'ble Supreme Court consulted the Department of Expenditure and
Justice and forwarded comments to the CAT for furnishing requested
information. Copy of the communication is at Annexure P-7. The CAT
furnished information to the DOPT on 11.01.2016 inter alia, contending that
prior to the amendment of the A.T. Act, the pension was calculated under
CAT (Conditions of Service) Rules, 1985 and after the amendment, at par
with High Court Judges under Part III of the First Schedule of Act of 1954.
It was further informed that in 2009, CAT Act was further amended to raise
the amount of pension and recommended addition of ten years practice as
qualifying service, in case of Sh. N. Dharmadan, Retired Member (Judicial)
prior to 19.02.2007 vide Annexure P-8. The petitioner made a representation
to the DOPT on 15.02.2016 for fixation of pension reckoning Full Pension,
as per DOPT OM dated 10.12.2009 as per High Court judges Act, 1954 vide
Annexure P-9 (Colly). The petitioner, by way of a representation dated
07.03.2016 has sought extension of benefit of judgment in P. Rama Krishna
Raju and All India Young Lawyers Association's case on various legal
grounds vide Annexure P-10. The Family Pension was introduced in CAT
and accordingly, a revised PPO was issued to the petitioner on 06.06.2016
vide Annexure P-11. It is further submitted that the CAT forwarded the
representation of Member (Judicial) appointed from Bar for addition of ten
years service as qualifying service to the DOPT. An information sought by
the petitioner under RTI Act, 2005 divulged that a favourable note for
addition of ten years practice to the petitioner, being pre-appointee of
19.02.2007 was sent to DOPT. Since matter pertaining to the same issue was
sub-judice, before Hon'ble Kerala High Court, the DOPT informed the
petitioner on 06.09.2016 that the matter is under consideration in
consultation with Departments of Justice & Expenditure. The above
documents are at Annexure P-12 (Colly).
8. It is further submitted that Retired Member (Judicial) from Bar Sh. N.
Dharmadan filed W.P.(C) 30170/2014 before the Hon'ble High Court of
Kerala at Ernakulam. The said petition was disposed of vide order dated
26.10.2016 on the statement of Central Government that the grievance of the
petitioner therein, is being considered, to pass orders on the claim of the
petitioner and other similarly situated persons. The said order is at annexure
P-13.
9. The CAT in various communications to the DOPT forwarded the
representation for Member (Judicial) appointed from Bar. DOPT vide its
communication dated 02.06.2017 asked for particulars of Member appointed
from Bar post 19.02.2007 only and this information was sent by the CAT,
including the name of the petitioner. A communication from CAT dated
10.07.2017 and 25.08.2017 included the name of the petitioner in the list on
the ground that though the DOPT has sought information regarding
Members appointed from 19.02.2007 to 31.05.2017, but the petitioner is also
entitled to addition of ten years practice, as they are drawing Pension as per
High Court Judges (Service Condition) Rules. The copy of the above
referred documents are at Annexure P-14 (Colly).
10. The petitioner with a reference to DOPT letter dated 23.08.2017,
whereby for addition of ten years service, only particulars of Members
appointed from Bar post 19.02.2007 were called from CAT, made a
representation to DOPT on 14.09.2017 taking number of legal grounds and
referring to the discrimination meted out to the petitioner vide Annexure
P-15. However, by an impugned order dated 13.09.2017 issued in reference
to Sh. N. Dharmadan pursuant upon the judgment of Hon'ble High Court of
Kerala to State that only Members who have been appointed from Bar on or
after 19.02.2007 are being considered for addition of ten years practice for
pension, pursuant upon judgment of the Supreme Court.
11. The petitioner submitted that it was on an irrational and arbitrary
ground that the petitioner and other identical situated were appointed as
Judicial (Member) under the Conditions of Service of 1985 and those
Members appointed post 19.02.2007 had service conditions at par with High
Court Judge. In this decision, the DOPT has violated Article 14 of the
Constitution of India and in oblivion of the fact that the petitioner's Pension
was also determined under High Court Rules and that addition of ten years
practice has nothing to do that High Court Judge or Conditions of Service.
The discriminatory attitude and misinterpretation of judgment of Hon'ble
Supreme Court resulted in denial of Fundamental Right of the petitioner.
Copy of the impugned order is at Annexure P-2.
12. The petitioner further submitted that by another impugned
communication/order addressed to Central Administrative Tribunal (CAT)
by DOPT dated 15.11.2017, the earlier stand taken in order dated 13.9.2017
has been reiterated and only 17 members (Judicial) appointed from bar, post
19.2.2007 have been made entitled to the benefit vide Annexure P-1.
13. The petitioner pursuant upon decision of the DOPT dated 15.11.2017
made a representation for reconsideration of the issue vide representation
dated 8.1.2018 which is at Annexure P-16. The said representation was
favorably recommended by the CAT to the DOPT to take a decision vide
communication dated 17.1.2018 vide Annexure P-17.
14. It is further submitted by the petitioner that in the relevant truncated
High Court Judges, Conditions of Service Act, 1954, whereby in First
Schedule Part III, the formula for determination of Pension meant for High
Court Judges is mutatis mutandis adopted by DOPT for fixing and revising
the pension of the petitioner which is at Annexure P-18.
15. Pursuant upon the judgment of Hon'ble the Supreme Court in
Ramakrishnam Raju vs. Union of India: 2014 (2) KLT 218 (Supra), an
amendment has been carried out in the High Court Judges Act, whereby in
Schedule I part III, the minimum pension has undergone and upward
revision to ₹45,016/- per completed year of service. The petitioner made a
representation to the CAT for revising the pension of the petitioner in
accordance with the amendment, which is pending implementation. The
copy and Notification and request of the petitioner is at Annexure P-19
(Colly).
16. The petitioner further submitted that right to pension is a fundamental
right of the petitioner under the Constitution of India. Above all, entitlement
for correct and appropriate pension without any discrimination is also an
important legal right of the petitioner. The respondents have misinterpreted
and misunderstood the judgment of Hon'ble Supreme Court in P
Ramakrishnam Raju (Supra). The respondents have taken the ratio of this
judgment as to applicability only to High Court Judges. In this
misconceived stand, the respondents have taken stand that Judicial Members
appointed from Bar, post 19.2.2007 are entitled for addition of ten years
practice towards qualifying service. It is pertinent to note that after
19.2.2007, the service conditions of a member was brought at par with a
High Court Judge. However the amendment has not bestowed a status of
High Court Judge to the Judicial Members appointed on or after 19.2.2007.
17. In this view of the matter, if the interpretation and understanding of
DOPT is accepted, then even the Judicial Members appointed after
19.2.2007 are not entitled to count ten years practice as they are not High
Court Judges. What went in oblivion of DOPT is a fact that the question of
law decided by the Hon'ble Supreme Court was not directed towards only
High Court Judges, but has uniform and universal application to an advocate
appointed on a judicial post directly with more than ten years practice at
Bar. Accordingly, the Hon'ble Supreme Court has referred to the decision
pertaining to higher judiciary in the judgment of P Ramakrishnam Raju.
What is required for addition of ten years practice to a Member (Judicial)
appointed on direct recruitment basis towards qualifying service is that he
should have been appointed on a judicial post. In fact, there is virtually no
difference between a member (Judicial) appointed from Bar pre or post
19.2.2007. Both categories hold a judicial post of court of first instance
under the constitution of India. The eligibility conditions for appointment
are identical. The pension of pre 19.2.2007 appointee Member (Judicial)
from bar is fixed under High Court Act and Rules.
18. It is further submitted that the judgment in P Ramakrkrishnam Raju
has laid down the ratio decidendi to the above effect. However, the
respondents in understanding the judgment arbitrarily discriminated the
petitioner on the facts of the case by misconstruing it in oblivion of
judgments of Hon'ble Supreme Court in L Chandrakumar and All India
Young Lawyers Association (Supra). This has prejudiced the petitioner and
deprived him of Rightful Pension as compared to post 19.2.2007 appointees.
Thus, the present petition deserves to be allowed.
19. On the other hand, Mr. Abhay Prakash, learned standing counsel for
the Central Government submitted that the conditions of service of
Chairmen and members of CAT were made equivalent to those applicable to
Judges of the High Court pursuant to the amendment Act, 2006. Provisions
of said amendment Act of 2006 came into force with effect from 19.2.2007.
Before this amendment of 2006, the conditions of service of the Chairmen
and members were regulated by the CAT (Service and allowances and
conditions of service and chairman, vice chairman and members), Rules,
1985. The conditions of service of Chairman and Members of the Central
Administrative Tribunal (CAT) have been amended and made equivalent to
those applicable to Central Group A officers, under Finance Act, 2017 and
under the new rules notified on 1.6.2017 are under judicial review before the
Hon'ble Supreme Court of India.
20. Pursuant to the judgment of the Hon'ble Supreme Court, in WP (C)
No. 521/2002 for reckoning 10 years' practice as an advocate for qualifying
service for pensions of Judges of High Courts elevated from the Bar, the
respondents have received representations from Judicial Members of CAT
(appointed from Bar), with a request to grant similar benefits as they have
also been practicing as an Advocate before the appointment to the post of
Judicial Members in CAT and their service conditions were the same as
applicable to Judges of the High Court.
21. Learned counsel further submitted that the matter was considered by
the respondents in consultation with the Department of Legal Affairs and
Department of Expenditure. As per rules dated 1.6.2017, service conditions
of the Chairman and Members of CAT were amended and the conditions as
applicable to Central Group A officers were made applicable to the
Chairman and Members of CAT.
22. Therefore, in the light of the Supreme Court's order in P
Ramakrishna Raju vs. UOI & Ors. (Supra), it was decided that only those
Judicial Members of CAT, who were appointed from Bar between 19.2.2007
to 31.5.2017, are to be considered eligible for grant of pensionary benefits.
23. Accordingly, the Judicial Members including the applicant, (petitioner
herein), who was appointed before 19.2.2007 and therefore, are covered by
the Central Administrative Tribunal (Salaries and Allowances and
Conditions of Service of Chairman, Vice-Chairman and Members) Rules,
1985 were intimated of the respondent's decision. The true copy of the
intimation to the Judicial Members is annexed as Annexure A-1.
24. Accordingly, the present petition deserves to be dismissed.
25. I have heard learned counsel for the parties.
26. The pension payable to the Members of CAT is linked with the
Pension of High Court Judges under Part III of 1 st Schedule of High Court
Judges (Salaries and Conditions of Service) Act, 1954. Since the status of
the Member (Judicial) appointed before 19.02.2007 is equal to the
Additional Secretary to the Government of India, the Pension is to be fixed
proportionally to the Pension per annum payable to the Judge of High Court
under Part III of Schedule 1. This fact has been admitted by the DOPT while
answering information sought by Ex-Member (Judicial) Sh. J.K.Kaushik
under RTI Act, 2005 on 8.4.2010.
27. The Hon'ble Supreme Court while dealing with the case of a direct
recruit to Delhi Higher Judicial Service in All India Young Lawyers
Association Case referred to in Ramakrishnam Raju's case, held that 10
years practice at the Bar should be added for computing Pension. The said
case did not pertain to a High Court Judge, but concerned higher judicial
services at District Judge level. The Supreme Court in a subsequent
judgement of P. Ramakrishnam Raju (Supra) upheld and reiterated the
judgement in All India Young Lawyers Association and directed addition of
10 years service in view of Part I and III of the Judges conditions of service
by holding as under:
"25) The fixation of higher pension to the Judges drawn from the
Subordinate Judiciary who have served for shorter period in
contradistinction to Judges drawn from the Bar who have served
for longer period with less pension is highly discriminatory and
breach of Article 14 of the Constitution. The classification itself is
unreasonable without any legally acceptable nexus with the object
sought to be achieved.
26) The meager pension for Judges drawn from the Bar and
served for less than 12 years on the Bench adversely affects the
image of the Judiciary. When pensions are meager because of the
shorter service, lawyers who attain distinction in the profession
may not, because of this anomaly, accept the office of Judgeship.
When capable lawyers do not show inclination towards Judgeship,
the quality of justice declines.
27) In most of the States, the Judgeship of the High Court is
offered to advocates who are in the age group of 50-55 years,
since pre-eminence at the Bar is achieved normally at that age.
After remaining at the top for a few years, a successful lawyer
may show inclination to accept Judgeship, since that is the
culmination of the desire and objective of most of the lawyers.
When persons holding constitutional office retire from service,
making discrimination in the fixation of their pensions depending
upon the source from which they were appointed is in breach of
Articles 14 and 16(1) of the Constitution. One rank one pension
must be the norm in respect of a Constitutional Office.
28) When a Civil Servant retires from service, the family pension
is fixed at a higher rate whereas in the case of Judges of the High
Court, it is fixed at a lower rate. No discrimination can be made in
the matter of payment of family pension. The expenditure for
pension to the High Court Judges is charged on the Consolidated
Fund of India under Article 112(3)(d)(iii) of the Constitution."
28. The Constitution Bench of the Hon'ble Supreme Court in L.
Chandrakumar Vs. UOI & Ors.: 1997 (3) SCC 261 regarding status of the
Central Administrative Tribunal observed as under:
"99. In view of the reasoning adopted by us, we hold
that Clause 2(d) of Article 323A and Clause 3(d) of
Article 323B, to the extent they exclude the jurisdiction of
the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional.
Section 28 of the Act and the "exclusion of jurisdiction"
clauses in all other legislations enacted under the aegis
of Articles 323A and 323B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the
High Courts under Articles 226/227 and upon the
Supreme Court under Article 32 of the Constitution is
part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in
discharging the powers conferred by Articles 226/227
and 32 of the Constitution. The Tribunals created under
Article 323A and Article 323B of the Constitution are
possessed of the competence to test the constitutional
validity of statutory provisions and rules. All decisions of
these Tribunals will, however, be subject to scrutiny
before a Division Bench of the High Court within whose
jurisdiction the concerned Tribunal falls. The Tribunals
will, nevertheless, continue to act like Courts of first
instance in respect of the areas of law for which they
have been constituted. It will not, therefore, be open for
litigants to directly approach the High Courts even in
cases where they question the vires of statutory
legislations (except where the legislation which creates
the particular Tribunal is challenged) by overlooking the
jurisdiction of the concerned Tribunal. Section 5(6) of the
Act is valid and constitutional and is to be interpreted in
the manner we have indicated."
29. The above observations clearly establishes that, the Central
Administrative Tribunal has been a creation under Articles 323-A and 323-B
of the Constitution of India. The Tribunal has been treated as a Court of First
Instance in respect of Service Law. Moreover, the Tribunal has not been
considered as a subordinate Court under the Jurisdiction of High Court as
provided under Article 227 of the Constitution of India. The High Court has
no power of superintendence over the Tribunal, but the jurisdiction of
scrutiny has been allowed. Thus, the Tribunal has been treated mutatis
mutandis a District Court for the purposes of dispensation of justice as Court
of First Instance though, the Tribunal has been treated at par with the High
Court.
30. Accordingly, as per Section 6 of A.T.Act, 1985 as amended till
date, the qualification for appointment of a Judicial Member is sina qua non
of qualification of a Judge of a High Court laid down under Article 217 of
the Constitution of India. All Members (Judicial) appointed from the Bar are
eligible to be appointed as High Court Judges. Irrespective of the
amendment of A.T.Act 1985 in 2006 w.e.f. 19.02.2007, the qualification for
a Judge of the High Court has not been altered. In such view of the matter,
the observation of the Hon'ble Supreme Court in Ramakrishnam Raju's
case (supra) with a reference to the judgement in All India Young Lawyers
Association's case makes alternatively, a Judicial member appointed prior to
19.02.2007 at par with a District Judge as the CAT being treated as Court of
First Instance. Addition of ten years of practice to such Member as an
Advocate, towards qualifying service, is also admissible to these Members.
The stand of the DOPT contained in their communication dated 23.08.2017
to restrict the addition of ten years practice to only those Members (Judicial)
appointed from Bar w.e.f. 19.902.2007 is without any logic, rationale and is
rather goes against the dicta in Ramakrishnam Raju's case. The stand
brings inequality among equals and amounts to hostile discrimination
violative of Articles 14 and 16 of the Constitution of India. The purported
stand of DOPT appears to be cantered around amendment of A.T.Act, 1985
w.e.f. 19.02.2007 by which, the conditions of service of Member (Judicial)
has been treated at par with a High Court Judge. However, the fact remains
that Judicial Members appointed from the Bar are not High Court Judges
but, by virtue of similarity in Service Conditions, are treated at par with the
High Court Judges. This analogy is palpably arbitrary and promotes
discrimination on the basis of cut-off date of 19.2.2007 without any
reasonable nexus with the object sought to be achieved. In fact, the Hon'ble
Supreme Court both in the case of subordinate Judiciary and High Court
Judges, directed addition of ten years practice of an officer appointed from
the Bar towards qualifying service computation of Pension on the ground
that, the maximum age for an entry in service is 45 years and since the
retirement age is 60 years, the incumbent would not be able to get Pension.
The service of a Judicial Member appointed from Bar could not exceed 10
years both under Old and New A.T. Act. In such an event, the benefit of
maximum pension is denied and accordingly, the addition of 10 years
practice to a direct recruit Advocate as Judicial Member in the Tribunal
towards qualifying service of pension is implied and is a discerned principle
on the basis of Ratio decidendi of Hon'ble Supreme Court in P.
Ramakrishnam Raju's case.
31. Accordingly, the DOPT has to follow the dicta of the Hon'ble
Supreme Court. The judgement in Ramakrishnam Raju's case cannot be
interpreted otherwise. The Ratio decidendi is to give added year of
qualifying service of 10 years to an Advocate, as his practice on his being
appointed to a subordinate higher judiciary or High Court. Since the
Members (Judicial) appointed prior to 19.02.2007 fulfil the above criteria
and in all respects including eligibility, discharge of functions and duties are
at par with the Judicial Members appointed post 19.2.2007, no hostility or
invidious discrimination could be meted out to them. In such view of the
matter, the communication of DOPT dated 23.08.2017 does not stand
scrutiny of law and is rather in violation of Articles 14 and 16 of the
Constitution of India.
32. The RTI received by the petitioner also disclosed a communication
dated 11.1.2016 sent by the Principal Bench of the Tribunal to the DOPT
regarding pensionary benefits to the Judicial members of CAT coming from
Bar, in the backdrop of judgment in P.Ramakrishnam Raju. In this
information, the CAT has referred to an amendment under Rule 8 of the
CAT (Salaries & Allowances) Rules, amended on 22.7.2009. In this
amendment, there has been a substitution in Sub-Rule 2 of Rule A whereby,
the minimum pension has been increased from ₹7,074/- per annum to
₹14,532/- per annum w.e.f. 1.1.2006.
33. It is pertinent to mention here that, the pension is at par with pension
of High Court judges' payable under Part III of 1st Schedule under High
Court Judges Service Conditions Act of 1954. This shows that, the Judicial
Members from Bar appointed prior to 19.2.2007 are also entitled to the same
pension.
34. It is further pertinent to mention here that an order dated 15.11.2017
addressed to the Joint Registrar, CAT by the DOPT, a reference has been
made to Section 8(3) of A.T. Amendment Act 2006 to contend that
conditions of service of Members appointed post 19.2.2007 shall be at par
with High Court Judges. It was further stated that 17 Members appointed
post 19.2.2007 being eligible are being considered for benefit of addition of
10 years practice as qualifying service, as per the judgement of Hon'ble
Supreme Court referred above. In this communication, CAT, Principal
Bench has been requested to redress the representation received on the
subject which also includes the representation of the petitioner. The stand
taken by the DOPT in its communication dated 15.11.2017 as to non-
applicability of judgement in P. Ramakrishnam Raju (supra) is both
factually and legally incorrect. The DOPT consistently in response to an
information sought by former Member (Judicial) Sh. J.K. Kaushik, vide its
communications dated 28.1.2010, 4.3.2010 and 8.4.2010 have accepted that
the pension payable to the Members of CAT appointed before 19.2.2007 has
been in proportion to the pension per annum payable to a Judge of High
Court and also that the pension payable to the Members of CAT is being
linked with the pension of High Court Judges payable under the provisions
of Par III of First Schedule of the High Court Judges (Salaries & Conditions
of Service) Act, 1954. It was also admitted that as per the above provisions
of the High Court Act, the pension of Members of CAT appointed before
19.2.2007 has been revised from ₹7,074/- to ₹14,032/- w.e.f. 1.1.2006.
35. Pursuant upon judgment of Ramakrishnam Raju, representation has
been made by the petitioner to the Tribunal as well as DOPT for addition of
10 years practice as qualifying service and grant of revised pension and
arrears of retiral benefits w.e.f. 1.1.2011. The CAT has taken up the cases of
Members, including the petitioner with the DOPT for addition of 10 years
practice for pension vide communication dated 10.07.2017. A letter from
DOPT dated 23.8.2017 called for only particulars of Members appointed
from 19.2.2007 to 31.5.2017 for extending the benefit of judgment of
Supreme Court. The Principal Bench of CAT in its communication dated
25.8.2017 addressed to DOPT also recommended for incorporation of the
name of the petitioner and other similarly situated, for extending the benefit
of Hon'ble Supreme Court judgments by addition of 10 years practice
towards qualifying service. In this communication, the Ld. Tribunal had
written that the petitioner and others are also entitled to the benefit of
judgment of P. Ramakrishnam Raju (supra), as they are entitled to draw
pension as per High Court Judges Act. However, the DOPT did not consider
its earlier stand treating the Judicial Member appointed from Bar at par with
Members appointed post 19.2.2007 for the purpose of calculation and
drawal of Pension, in accordance with High Court Judges conditions of
service. In this furtherance, the latest communication of DOPT dated
15.11.2017 addressed to the petitioner and also Principal Bench is silent and
there has been no consideration thereof, of the aforesaid fact.
36. It is pertinent to mention here that Unamended A.T.Act prior to 2006
and also post 2006 does not discriminate between the members Judicial
appointed from the Bar, as the eligibility qualifications are identical i.e. 10
years practice as an Advocate. Moreover, in the judgment of P.
Ramakrishnam Raju (surpa), the issue as laid down by way of ratio
decidendi is that the service of a Judicial Officer is to be counted for fixation
of pension and there was no valid reason as to why the experience at Bar
cannot be treated as equivalent for that purpose. In this furtherance, the
Hon'ble Supreme Court not only allowed addition of 10 years practice for
an Advocate appointed from the Bar on a judicial post as qualifying service
for determination of pension, but also applied uniformly to an Additional
District Judge, High Court Judge as well as Supreme Court Judge. The
petitioner being an appointee, even before 19.2.2007 was an Advocate with
10 years practice at Bar and was appointed on a judicial post under Article
323A of the Constitution of India. Thus, the stand taken by the DOPT in its
communication dated 15.11.2007 is without consideration of the above facts
and documentary proof and admissions. Mere reliance on Clause 8(3) of
A.T. Amended Act, 2006 in inconsequential.
37. The stand of the respondent DOPT is that only those advocates who
have been appointed under the AT Act of 2006 post 19.2.2007 are only
entitled to addition of 10 years Bar practice for pension, is a misconceived
misinterpretation of the judgment of Supreme Court in P. Ramakrishnam
Raju (supra). In the said judgment another judgement of the Supreme Court
pertaining to District Judges appointed from Bar in Delhi was also involved,
titled Govt. of NCT of Delhi Vs. All India Young Lawyer Association,
whereby a claim for addition of 15 years service was sought for pension by
the District Judges. The Supreme Court in P. Ramakrishnam Raju taking
the logic that the lawyers directly appointed to judicial post from Bar have
few years in judiciary as such the calculated pension is too meagre,
accordingly maximum of 10 years the practice at Bar has been added to as
qualifying service for pension to the District Judges appointed from Bar. In
compliance of the judgement, the Delhi Higher Judicial Service Rules 1970
under Rule 26B proviso by an amendment dated 6.11.2009 effective from
24.2.2006, allowed addition of 10 years practice at Bar as qualifying service
for pension.
38. It is also observed by the Supreme Court in P. Ramakrishnam Raju
(supra) that in the three-tier judicial system provided by the Constitution,
members of the Bar, who join the Higher Judicial Service at the District
Judges level, on retirement, get the befit of 10 years addition to their service
of the purposes of pension (Rule 26B of the DHJS Rules). Judges of the
Supreme Court, who are appointed from the Bar given a period of 10 years
to their service for the purposes of pension (Section 13A of the Amendment
Act, 2005). However, the benefit of 10 years addition to their service for the
purposes of pension is being denied to the Judges of the High Court
appointed from the Bar, which is arbitrary and violative of Article 14 of the
Constitution of India.
39. The Explanation (aa) appended to Article 217 (2) of the Constitution
of India envisages that, "in computing the period during which a person has
been an advocate of a High Court, there shall be included any period during
which the person has held judicial office or the office of a member of a
tribunal or any post, under the Union or State, requiring special knowledge
of law after he became an advocate." Thus, treats the experience of an
Advocate at the Bar the period of judicial office held by him at par.
40. The above ratio of the Supreme Court is clear that the Principle
enunciated to count 10 years Bar practice of an advocate has not been
restricted to only High Court Judges but is applicable qua an advocate
having 10 years practice appointed on direct recruitment basis to a Judicial
Post. Once it includes the post of ADJ, it cannot exclude the Judicial
Members appointed from the Bar in the tribunal even before 19.2.2007. This
cut off date has no reasonable nexus with the object of redeeming an
advocate a right of respectable pension in case of less service by addition of
10 years practice at bar as a qualifying service.
41. A similar issue came before High Court of Kerala at Ernakulam in
WP(C) No. 32047 of 2017 in case of N. Dharmadan v. Union of India and
Ors. decided on 5.4.2018 whereby the above mentioned High Court has held
as under:
"9. The question to be considered is whether there can be
a classification between the members for the purpose of
pension reckoning the bar service. It is settled law in the
light of D.S.Nakara v. Union of India [AIR 1982 SC 130]
that there cannot be any invidious classification, on the
basis of a cut off date. Though the Rules were applicable
at the time of the appointment of the petitioner and till his
demitting of office, the qualification prescribed for
appointment of judicial member continues to be the same
ever since the administrative Tribunals were established
under the 1985 Act. Section 10 A cannot stand in the way
of extending the benefit of the judgment in Ramakrishna
Raju's case. The insertion of Section 10A can only be to
protect the service conditions of those who were
appointed before the insertion. It cannot be interpreted to
deny a benefit which is available to the Members who got
appointment from the bar as in the case of High Court
Judges. Even though the salary was prescribed as per
different rules the petitioner continues to get the pension
and pensionary benefits as applicable to High Court
Judges. In the case of applicability of the judgment in
Ramakrishna Raju's case when all the High Court Judges
are eligible to get their pension fixed from 1.4.2004, it
cannot be said that that benefit cannot be extended in the
case of the petitioner just because he happened to be
appointed before 19.2.2007. The cut off date fixed for the
purpose of the extension of the benefit of the judgment is
therefore unreasonable and arbitrary."
42. Accordingly, in view of the above discussion and the settled legal
position impugned orders dated 15.11.2017 (Annexure P-1) dated
13.09.2018 (Annexure P-2) are hereby set aside. Consequently, it is declared
that the petitioner is entitled to get 10 years of his Bar practice along with
his service as Judicial Member for the purpose of pension, as in the case of
those Judicial Members appointed after 19.2.2007 and in case of High Court
Judges. Consequently, the respondents are directed to add 10 years practice
of the petitioner as an Advocate at Bar towards qualifying service and
consequently revise the pension and gratuity of the petitioner and arrears to
be calculated and disbursed to the petitioner by issuing of a revised PPO
including incorporation of pension. The respondent shall take steps to revise
the pension due to the petitioner within two months.
43. The writ petition is, accordingly, allowed.
CM APPL. Nos. 13994/2018 & 24073/2018
44. In view of the order passed in the present writ petition, these
applications have been rendered infructuous and are accordingly, disposed
of such.
(SURESH KUMAR KAIT)
JUDGE
JANUARY 23, 2019
rd/p/gb
