Holding

A High Court Judge does not hold a post under the Union or State; therefore, the pension of the respondent is fixed under Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954.

Summary

Pratibha Banerjee, a retired Judge of the Calcutta High Court, was appointed Vice‑Chairman of the Central Administrative Tribunal (CAT) and continued to draw her High Court pension. Upon retiring from the CAT, she claimed that her pension should be fixed under Part I of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954, whereas the Union of India contended that, because she held a pensionable post under the Union/State at the time of her CAT retirement, her pension fell under Part III. The Supreme Court examined whether a High Court Judge, even after retirement, holds a post under the Union or State, i.e., whether a master‑servant relationship exists. Relying on constitutional provisions guaranteeing judicial independence and earlier case law, the Court held that High Court Judges are holders of a constitutional office, not government servants, and therefore are not holding a post under the Union/State. Consequently, the respondent’s pension is governed by Part I of the First Schedule. The appeal was dismissed.

Issues considered

Whether a High Court Judge holds a post under the Union or State for purposes of pension provisions under the High Court Judges (Conditions of Service) Act, 1954.
Whether the Central Administrative Tribunal had jurisdiction to determine the pension claim (not decided).

Legislation cited

High Court Judges (Conditions of Service) Act, 1954s. 14, s. 15

Subjects

judicial independencepensionHigh Court JudgeCentral Administrative Tribunalmaster‑servant relationshipconstitutional office

Judgment

....
UNION OF INDIA A
v.
PRATIBHA BANERJEE AND ANR.

NOVEMBER 21, 1995

[A.M. AHMADI, CJ AND K.S. PARIPOORNAN, J.] B

Constitution of India-A1ts. 124(4), 219, 221-Judge of High Court:-
Appointment of-Powers of-Whether holds a post under the Union or a
State-Held, N~Relationship between Govemment and High Cowt Judge
is not of master and servant-He is the holder of a constitutional office. C
High Cowt Judges (Conditions of Service) Act, 1954-Pension admis-
sible to Vice-Chainnan of Central Administrative Tribunal-Detennination
of-Pensioner as High Court Judge appointed as Vice Chairman of
Tribunal-Retirement-Fixation of pension under Part I of the First Schedule
to the Act. D
The first respondent was appointed Judge of High Court of Calcutta.
She retired as such w.e.f. 16.2.1989 and was appointed as Vice-Chairman
of the Central Administrative Tribunal on 3.3.1989. On relinquishing that
post on 16.2.1992 on retirement, she claimed that her pension should be
fixed under Part-I of the First Schedule to the High Court Judges (Con- E
ditions of Service) Act, 1954. Her claim was disallowed holding that she
was entitled to pension admissible under Part-III of the First Scheduled
to the Act. She filed a petition in the Central Administrative Tribunal
which was allowed. Hence this appeal by special leave.
F
The appellant Union alleged that since the first respondent was
holding a pensionable post under the Union/State at the time when she
retired as the Vice-Chairman of the Tribunal, her case would be governed
by Part III and not Part I of the First Schedule.

The question raised for determination was whether a Judge of the G
High Court holds a post under the Union or State.

Dismissing the appeal, this Court

HELD : 1.1. Independence and impartiality are the two basic at-
tributes essential for a proper discharge of judicial functions. A Judge of H
511
512 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A a High Court is, therefore, required to discharge his duties consistently
with the conscience of the Constitution and the laws and according to the
dictates of his own conscience and he is not expected to take orders from
anyone. Since a substantial volume of litigation involves Government
interest, he is required to decide matters involving government interest day
in and day out. He has to decide such cases independently and impartially
B without in any manner being influenced by the fact that the Government
is a litigant before him. In order to preserve his independence his salary
is specified in the Second Schedule, vide Article 221 of the Constitution.
He, therefore, belongs to the third organ of the State which is independent
of the other two organs, the Executive and the Legislature. It is, therefore,
C plain that a person belonging to the judicial wing of the State can never
be subordinate to the other two wings of the State. A Judge of the High
Court, therefore, occupies a unique position under the Constitution. He
would not be able to discharge his duty without fear or favour, affection
or illwill, unless he is totally independent of the executive, which he would
D not be if he is regarded as a Government servant. He is clearly a holder
of a constitutional office and is able to function independently and impar-
tially because he is not a Government servant and does not take orders
from anyone. (517-B-F]

1.2. The entire procedure outlined for their appointment is totally
E different from that provided for other services. That is because the Con-
stitution-makers were conscious that the notion of judicial independence
must not be diluted. If the relationship between the Government and the
High Court Judge is of master and servant it would run counter to the
constitutional creed of independence for the obvious reason that the
F servant would have to carry out the directives of the master. Since a High
Court Judge has to decide cases brought by or against the Government
day in and day out, he would not be able to function without fear or favour
if he has to carry out the instructions or directives of his master. The whole
concept of judicial independence and separation of judiciary from the
executive would crumble to the ground if such a relationship is conceded.
G High Court Judges would not be true to their path if such a relationship
is accepted. That is why not only Judges but even the staff members are
insulated from executive influence. (518-D-F]

1.3. The relationship between the Government and High Court
H Judges is not of master and servant. They cannot· be said to be holding a
U.O.I. v. P. BANERJEE 513

post under the Union/State. [519-A-B] A
Union of India v. Sakal Chand Himat Lal Sheth, [1977] 4 SCC 193,
relied on.

1.4. The conditions of service and other perquisites available to the
Vice-Chairman of the Central Administrative Tribunal shall be the same B
as admissible to a serving Judge' of a High Court. A serving Judge of a
High Court is entitled to pension under Chapter III of the High Court
Judges (Conditions of service) Act, 1954. The provisions of Part-I apply to
a Judge who is not a member of the ICS or has not held any other
pensionable post under the Union or a State and also apply to a Judge
who, being the member of ICS or having held any other pensionable civil
c
post under the Union or a State, has elected to receive the pension payable
under the said part. The provisions of Part III apply to a Judge who has
held any pensionable post under the Union or a State but is not a member
of the ICS and who has not elected to receive the pension payable under
part-I. The first respondent was a direct recruit from the Bar when she D
was appointed a Judge of the High Court and, therefore, on her retirement
she became entitled to pension under part-I of the First Schedule. When
she was appointed a Vice-Chairman of the Tribunal she was already
drawing pension as a retired High Court Judge. [515-B-F]

1.5. The first respondent who was a pensioner as a retired High E
Court Judge could not be said to be a person holding a pensionable post
under the Union or State. Therefore, the Tribunal was right in holding that
the pension admissible to the respondent as Vice Chairman of the
Tribunal had to be determined under Part-I of the First Schedule to the
Act. [516-C] F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6020 of
1994.
\
From the Judgment and Order dated 8.4.94 of the Central Ad-
ministrative Tribunal, Calcutta Bench in 0.A. No. 513 of 1992. G
Altaf Ahmed, Additional Solicitor General and N.N. Goswamy, W.A.
Qadri, Y.P. Mahajan and Ms. Anil Katiyar for the Appellants.

Satish Chandra, H.K. Puri, Rajesh Srivastava and S.P. Lenka for the
H
' Respondents.
514 SUPREMECOURTREPORTS (1995]SUPP.5S.C.R.

A The Judgment of the Court was delivered by

AHMADI, CJ. Two questions are raised in this appeal, namely, (i)
the Central Administrative Tribunal had no jurisdiction to entertain the
application and (ii) the Tribunal was wrong in holding that the pension
admissible to the respondent as Vice-Chairman of the Tribunal had to be
B determined under Part I of the First Scheduled to the High Court Judges
(Conditions of Service) Act, 1954,.hereinafter called 'the Act'. The brief
facts which we are required notice run as follows :

The first respondent was appointed a Judge of the High Court of
C Calcutta on 13th January, 1978 and she retired as such with effect from
16th February, 1989. Soon thereafter on 3rd March, 1989 she was ap-
pointed a Vice-Chairman of the Trilmnal which post she relinquished on
16th February, 1992 on retirement. Admittedly she was drawing pension
on retirement as High Court Judge. For the period between 3rd March,
1989 and 16th February, 1992 she served.as the Vice-Chairman and was
D entitled to pension. She contended that her pension should be fixed under
Part I whereas the Union's contention was that she was entitled to pension
admissible under Part III of the First Schedule to the Act. As her conten-
tion was not conceded she filed O.A. No. 513 of 1992 in the Central
Administrative Tribunal for relief as per her point of view. The Union
E raised a preliminary objection regarding jurisdiction and on merit con-
tended that fhe department's point of view is unassailable. The Tribunal
upheld both the contentions of the respondent and hence this appeal by
special leave.

We do not propose to go into the question of jurisdiction as we deem
F it proper to settle the question of fixation of pension so that the first
respondent is not driven from pillar to post. We will, therefore, address
ourselves to the question of pension admissible to the first respondent. We
may at the outset refer to Rule 15a of the Central Administrative Tribunal
(Salaries and Allowances and Conditions of Service of Chairman, Vice-
G Chairman and Members) Rules, 1985. It reads as under:

"15-A. Notwithstanding anything contained in rules 4 to 15 of the
said rules, the conditions of service and other perquisites available
to the Chairman and Vice-Chairman of the Central Administrative
Tribunal shall be the. same as admissible to a serving Judge of a
H High Court as contained in the High Court Judges (Conditions of

'
-,

U.O.I. v. P. BANERJEE [AHMADI, CJ.] 515

Service) Act, 1954 and High Court Judges (Travelling Allowances) A
Rules, 1956."

Thus the conditions of service and other perquisites available to the
Vice-Chairman shall be the same as admissible to a 'serving judge' of a
High Court. A serving judge of a High Court is entitled to pension under B
Chapter III of the Act. Section 14 says that every Judge, shall, on retire-
ment be paid a pension in accordance with the scale and provisions in Part
J of the First Schedule, provided he is not a member of the JCS or has not
held any other pensionable post under the Union or State. Section 15
provides that every Judge who is not a member of the JCS but has held
any other pensionable civil post under the Union or the State, shall, on c
retirement be paid a pension in accordance with the scale and provisions
in Part III of the First Schedule. The provisions of Part J apply to a Judge
who is not a member of the JCS or has not held any other pensionable post
under the Union or a State and also apply to a Judge who, being the
member of JCS or having held any other pensionable civil post under the D
Union or a State, has elected to receive the pension payable under the said
Part. On the other hand the provisions of Part III apply to a Judge who
has held any pensionable post under the Union or a State but is not a
member of the JCS and who has not elected to receive the pension payable
under Part I. The first respondent was a direct recruit from the Bar when
she was appointed a Judge of the High Court and, therefore, on her E
retirement she became entitled to pension under Part J of the First
Schedule. There is no doubt, so far as this aspect is concerned. When she
was appointed a Vice-Chairman of the tribunal she was already drawing
pension as a retired High Court Judge. Therefore, the short question is
whether her case would be governed by Part J or Part III of the First F
Schedule when she retired as Vice-Chairman of the Tribunal. The submis-
sion on behalf of the Appellant-Union is that since the first respondent was
holding a pensionable post under the Union/State at the time when she
retired as the Vice-Chairman of the Tribunal, her case would be governed
by Part III and not Part J of the First Schedule. The first respondent was
indisputably not a member of the ICS. Was she holding a pensionable post G
under the Union/State at the time when she retired as the Vice-Chairman
of the Tribunal? If she was holding a pensionable post under the
Union/State, there can be no doubt that she would not be entitled to
pension under Part I but would be entitled to pension under Part III of the
First Schedule. That gives rise to the question whether a High Court Judge H
516 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A who is drawing pension can be said to be a person holding a pensionable
post under the Union/State. If the answer is in the affirmative the first
respondent would be entitled to pension under Part III, but if the answer
is in the negative, she would be entitled to pension order Part I of the First
Schedule to the Act. That is the moot question for consideration under
Rule 15A, extracted earlier. The pension has to be the same as admissible
B to "a serving Judge of a High Court under the Act and the Rules made
thereunder".

Does a Judge of the High Court hold a post under the Union or a
State? If yes, the first respondent having retired as a Judge of the High
C Court and having been drawing pension at all material times would not be
entitled to fixation of pension under Part I of the First Schedule. If,
however, if is found that a High Court Judge does not hold a post under
the Union or a State, Part I would squarely be attracted as he or she would
be outside the scope of Part III. Therefore, what we have to determine is
D whether the first respondent who was admittedly a pensioner as a retired
High Court Judge could be said to be a person holding a pensionable post
under the Union or a State.

The question to be considered is whether under the Constitution
there is, strictly speaking, a relationship of master and servant between the
E Government and a High Court Judge? In order to answer this question a
few provisions of the Constitution need to be noticed. Firstly, Article 50
enjoins that the State should take steps to separate the judiciary from the
executive. Next, we may notice Chapter V in Part VI of the Constitution
which concerns High Courts in the States. Article 214 provides that there
p shall be a High Court for each State or a group of States. Article 217 posits
that every Judge of a High Court shall be appointed by the President by
warrant under his hand and seal after consultation with the Chief Justice
of India, etc. who shall hold office until he attains the age of 62 years. A
Judge once appointed can vacate office by tendering his resignation or on
his elevation to the Supreme Court or transfer to another High Court or
G on being removed from office by the President in the manner provided by
Article 124(4), i.e. after an address by each House of Parliament supported
by a majority of the total membership of that House and by majority of not
·less than two-thirds of the members present and voting has been presented
to th~ President. The removal can be on the ground of proved mis-
H behaviour or incapacity. Article 219 expects every person appointed to be
U.O.L v. P. BANERJEE [AHMADI, CJ.] 517

a Judge of the High Court to make and subscribe an oath or affirmation A
according to the form set out is the Third Schedule. That form is Form
VIII which inter alia requires the Judge to swear in the name of God or to
solemnly affirm that he would truly and faithfully and to the best of his
ability and judgment perform his duti.es without fear or favour, affection or
illwill. These words clearly indicate that the judicial function must be
B
discharged without being influenced by extraneous considerations. Inde-
pendence and impartiality are the. two basic attributes essential for a
proper discharge of judicial functions. A Judge of a High Court is, there-
fore, required to discharge his duties consistently with the conscience of
the constitution and the laws and according to the dictates of his own
conscience and he is not expected to take orders from anyone. Since a c
substantial volume of litigation involves Government interest, he is required
to decide matters involving Government interest day in and day out. He
has to decide such cases independently and impartially without in any
manner being influenced by the fact that the Government is a litigant
before him. In order to preserve his independence his salary is specified D
in the Second Schedule, vide Article 221 of the Constitution. He, therefore,
belongs to the third organ of the State which is independent of the other
I\
two organs, the Executive and the Legislature. It is, therefore, plain that a
person belonging to the judicial wing of the State can never be subordinate
to the other two wings of the State. A judge of the High Court, therefore,
occupies a unique position under the Constitution. He would not be able E
to discharge his duty without fear or favour, affection or illwill, unless he
is totally independent of the executive, which he would not be if he is
regarded as a Government servant. He is clearly a holder of a constitutional
office and is able to function independently and impartially because he is
not a Government servant and does not take orders from anyone. That is F
why in Union of India v. Sakal Chand Himatlal Sheth, [1977] 4 SCC 193
Chandrachud J ., said in paragraph 32 at page 224 'the rejection of Mr.
Seervai's argument... ........ should not be read as a negation of his argument
that there is no master and servant relationship between the Government
and High Court Judges." Bhagwati J. in his separate judgment said the
same thing in paragraph 49 when he observed; 'a Judge of the High Court G
' is not a Government servant, but he is the holder of a constitutional office'.

From the scheme of the Constitution to which we have adverted
briefly it is obvious that the Constitution-makers were evidently keen to
ensure that the judiciary was independent of the executive. An inde- H
518 SUPREME COURT REPORTS [1995] SUPP.SS.C.R.

A pendent, impartial and fearless judiciary is our constitutional creed. The
Constitution has tried to insulate the judiciary from outside influence both
from the Executive and the Legislature. The provisions of Chapter VI in
Part V of the Constitution dealing with Courts below the State High Court
also show that the Constitution-makers were equally keen to insulate even
B the subordinate judiciary. Articles 233 to 237 have, therefore, provided a
wholly different mode of selection and appointment of Judicial Officers at
the grass roots level and upto the District Courts from the one provided
for other civil posts. No doubt the initial appointment has to be made by
the Governor of the State, albeit after selection as provided in that
chapter, but thereafter the posting and promotion, grant of leave, etc., is
c with the High Court and not the Government. Thus the Judicial Officers
belonging to the subordinate Courts are placed under the protective um-
beralla of the High Court. We have already pointed out the provisions
dealing with the appointment of High Court Judges. The entire procedure
outlined for their appointment is totally different from that provided for
D other services. That is because the Constitution-makers were conscious that
the notion of judicial independence must not be diluted. If the relationship
between the Government and the High Court Judge is of master and
servant it would run counter to the constitutional creed of independence
for the obvious reason that the servant would have to carry out the
E directives of the master. Since a High Court Judge has to decide cases
brought by or against the Government day in and day out, he would not
be able to function without fear or favour if he has to carry out the
instructions o'r directives of his master. The whole concept of judicial
independence and separation of judiciary from the executive would
crumble to the ground if such a relationship is conceded. High Court
F Judges would not be true to their oath if such a relationship is accepted.
That is why not only Judges but even the staff members are insulted from
executive influence. Article 229 clearly provides that appointments of
officers and servants of a High Court shall be made by the Chief Justice
of the Court or such other Judge or officer as he may direct. Even the
G conditions of service of officers and servants shall be such as may be
prescribed by the Chief Justice or his nominee authorised by him to make
rules; the approval of the Governor is necessary only if the rules relate to
salaries, allowances, leave or pension. This provision also shows that of-
ficers and servants of the High Court are also under the exclusive control
H of the Chief Justice and not the Government. If that be the relationship
U.0.1. v. P. BANERJEE [AHMADI, CJ.j 519

between the officers and servants of the High Court vis-a-vis the Govern- A
ment, it is difficult to imagine a master and servant relationship between
the Government and Judges of the High Court. We have, therefore, no
hesitation in coming to the conclusion that the relationship between the
Government and High Court Judges is not of master and servant. They
cannot be said to be holding a post under the Union/State.
B
For the above reasons we are of the view that the Central Ad-
ministration Tribunal was right in the view it took in this behalf. We,
therefore, dismiss this appeal with costs.

R.A. Appeal dismissed.