M.R. Shah, J. - (1.) By way of this petition filed under Article 32 of the Constitution 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 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. 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 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 Court that the petitioner is not entitled to the higher pension ceiling of Rs.5,40,000/- being the pension available to a Chief Justice and 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 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. 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 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 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 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 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. 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 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 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 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 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 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 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. 3.5 It is further submitted by Shri Kailash Vasdev, learned Senior 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 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 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 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 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 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 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. 3.8 Making the above submissions, it is prayed to allow the present petition.;