K. SREEDHAR RAOversusUNION OF INDIA THROUGH SECRETARY, MINISTRY OF LAW & JUSTICE, NEW DELHI

                         [2019] 12 S.C.R. 81                              81


                       K. SREEDHAR RAO                                    A
                                  v.
          UNION OF INDIA THROUGH SECRETARY,
         MINISTRY OF LAW & JUSTICE, NEW DELHI
                 (Writ Petition (C ) No. 300 of 2016)                     B
                       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
                                                                          C
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           D
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       E
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      F
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      G
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.
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A          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
B    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
C    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.
D    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
E    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
F
     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
G    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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    K. SREEDHAR RAO v. UNION OF INDIA THROUGH                             83
  SECRETARY, MINISTRY OF LAW & JUSTICE, NEW DELHI

and for that period his pension is required to be computed as if          A
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,   B
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         C
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         D
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         E
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
                                                                          F
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             G
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.
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A                              Case Law Reference
     (1998) 9 SCC 426                    referred to                Para 3.4
           CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
     300 of 2016

B           [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
C    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
D    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
E    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.
F    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
G
            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
H           Court that the petitioner is not entitled to the higher pension ceiling
 K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,                              85
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]

      of Rs.5,40,000/- being the pension available to a Chief Justice and      A
      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    B
      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.                                                             C
      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        D
      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        E
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      F
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
                                                                               G
      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.
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86      SUPREME COURT REPORTS                           [2019] 12 S.C.R.


A    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
B
     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
C    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
D    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
E    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
F    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
G    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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 K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,                            87
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]

    3.5 It is further submitted by Shri Kailash Vasdev, learned Senior       A
    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
                                                                             B
    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        C
    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      D
    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           E
    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               F
    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              G
    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.

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88             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A          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
B    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
C    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
D          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
E          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
F          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
G          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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 K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,                           89
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]

    year either as a Judge/Acting Chief Justice/Chief Justice. It is        A
    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
                                                                            B
    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       C
    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       D
    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.
                                                                            E
    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      F
    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       G
    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
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A          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
B
           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.
C          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.

D          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
E          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
F          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
G          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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 K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,                            91
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]

      Act shall apply to a Judge who has held any pensionable post           A
      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
                                                                             B
      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   C
      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       D
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.
                                                                             E
      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        F
      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      G
      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:
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A               “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          (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.
C
            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,

D          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.”
E          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
F          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
G          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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 K. SREEDHAR RAO v. UNION OF INDIA THR.SECRETARY,                             93
MINISTRY OF LAW & JUSTICE, NEW DELHI [M. R. SHAH, J.]

    who is functioning as an Acting Chief Justice be paid the salary of       A
    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            B
    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             C
    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       D
    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
                                                                              E
    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            F
    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         G
    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.
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94                SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A           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
B
     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
C    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
D
     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
E    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
F
     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
G    petition fails and the same deserves to be dismissed and is accordingly
     dismissed.


     Ankit Gyan                                                    Petition dismissed.

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