The Supreme Court today (November 5) ruled that Supreme Court Judges promoted from the district judiciary will have equal terms of service with judges appointed from the bar and that the Constitution does not discriminate between High Court Judges on the basis of office. source of their recruitment.

Workbench including Chief Justice, DY Chandrachud and Justices JB Pardiwala and Manoj Misra He was hearing a series of matters related to the pending salaries of Patna High Court Judges.

Some High Court Judges approached the Supreme Court over non-payment of salaries due to closure of General Provident Fund (GPF) accounts. The issue arose after NPS contributions were transferred to the GPF accounts given to them after they were appointed as Supreme Court judges. The accountant general has sought clarification from the Ministry of Law and Justice on the legality of transferring New Pension Scheme (NPS) contributions to GPF accounts.

The present objection relates to the letter dated December 13, 2022, sent by the Under Secretary, GOI, Department of Union Ministry of Law and Justice, directing suspension of GPF accounts due to coverage of the petitioners under NPS. At the last hearing, The Court was informed that under the New Pension Scheme, High Court judges promoted from the district judiciary would receive lesser pension and provident fund benefits than their colleagues promoted from the bar.

The Court observed that no provision for differential treatment has been made under Article 216, which provides that “Every High Court shall consist of a Chief Justice and such other judges as the President may from time to time think necessary to appoint.”

“High Courts are constitutional institutions recognized by Article 216. Article 216 does not make any distinction between the source from which SC judges are appointed.”

The court declared that every judge is of equal standing once appointed to the Supreme Court. The institution of the Supreme Court consists of the CJ and all other judges appointed to the Court. After appointment, no discrimination can be made in salaries and other allowances. It was emphasized that all Supreme Court Judges formed a single unified ‘homogeneous class’.

“The sources from which HC judges are appointed have nothing to do with the fact that they form a homogeneous class when appointed to HC.”

Analyzing Article 221 of the Constitution, the Court noted that the framers of the constitution had taken a conscious decision to depart from the Government of India Act, 1935, under which salaries and allowances would be determined by the state legislature.

According to the original draft, salaries and allowances were to be determined according to Annex II, which was later amended during discussions among the framers. As a result, the term “Parliament” was replaced with the term “legislative body of the state”, and the Constitution did not leave it to the state to determine the salaries of the Supreme Court judges.

Therefore, the Court held that: “Leaving the payment of salaries and pensions to the uncertainty of the States during and after service is not in line with the Constitutional idea.”

Taking into account the above, the court quashed the disputed letter dated 13 December 2022 and gave the following orders:

(1) Supreme Courts are constitutional institutions and all judges, when appointed to the Supreme Court, possess the constitutional character of that office;

(2) Neither Article 221(1), which empowers Parliament to determine the salaries of individual Supreme Court judges, nor Article 221(2) provides for discrimination between High Court judges on the basis of the source of their appointment. from;

(3) Once appointed to the Supreme Court, all justices form a homogeneous class of constitutional office holders;

(4) Judicial independence follows from the logic that there is an essential relationship between judicial independence and financial independence;

(5) The provisions regarding Guarantee of the conditions of service and post-retirement rights of judges have been strengthened by the inclusion of salaries and allowances of sitting judges and pensions of retired judges as remuneration in the consolidated fund of India;

(6) Any determination regarding the service rights and retirement rights of sitting Supreme Court judges must be made in accordance with the principle of non-discrimination among judges forming a homogeneous group;

(7) All HC judges, regardless of their source, have the same constitutional function to perform the same judicial duties under the law. Once appointed, birthmarks are erased and any attempt to discriminate between judges for the purpose of determining their conditions of service or any retirement dues would be unconstitutional.

The Bench also directed that all GPF accounts of the petitioners should be opened by the date of appointment and the contributions should be deposited into the account at par with that of all other High Court judges. It was clarified that currently no instructions have been given regarding transfer of contribution fund under NPS to GPF as requested by the petitioners.

S.20 Interpretation of the Requirement to the Salaries and Allowances of High Court Judges Act, 1954

The Court also held that the impugned letter of the Union misjudged the scheme laid down in S. 20 of the Supreme Court Judges’ Salaries and Allowances Act, 1954. “This is fundamentally consistent with the constitutional status of all justices on the Supreme Court, regardless of the source.”

Specifically, S. 20 of the Act reads as follows:-Every Judge shall have the right to subscribe to the General Provident Fund (Central Services):

Provided that a Judge holding any other civil post subject to retirement in the Union or a State shall continue to subscribe to the Provident Fund to which he was subscribed before his appointment as a Judge.

Attorney General of India R Ventakaramani Appearing on behalf of the Union, the court relied on the proviso to argue that the petitioners have been elevated to the High Court under the NPS and therefore the member of the district judiciary appointed as HC Judge would not be entitled to benefit of GPF applicable to judges appointed as a member of the bar. He emphasized that there was no justification for transferring the contribution fund under NPS to GPF accounts.

Senior Advocates K Parameshwar and Rakesh Dwivedi However, those appearing on behalf of the petitioners argued that (1) the issue of salaries and allowances of HC judges should be interpreted from the perspective of financial independence; (2) there should be uniformity in the conditions of service for both sitting and retired Supreme Court judges, with no discrimination based on source of recruitment; (3) all HC Arbitrators constitute a single class regardless of source of appointment; (4) It was argued that the principle of non-discrimination should be applied.

The court observed that the proviso to S.20 was intended to deal with the pensions of High Court judges who held another post in the state before promotion, thus bringing district judges within its purview. However, this provision does not aim to restrict the salaries and other benefits that Supreme Court judges receive from the district judiciary. It was analyzed that the proviso was extended only in the substantive part of S.20, thus ensuring that funds accumulated during sub-judicial service before elevation remain intact.

“This provision is not intended to be restrictive in nature; it is established that the provisions can be read as exceptions or as clarification. The present provision is in the nature of a clarification to allow a judge holding a post subject to retirement to be kept in check. He must continue to do so even after appointment as a High Court Judge to ensure that his benefits are not interrupted.”

The bench added that a strict reading of the judgment would not help in the facts of the present case.

“The provision in S.20, even if taken as an exception, would have to be interpreted strictly, even if interpreted strictly, it would have no application in the present case. There is no dispute that the members of the District Court were appointed after 1.04.2004 and were not subscribed to any Provident Fund ; in this case, there is no application of the provision which would deprive them of the benefits of GPF available under the substantive part of S. 20.”

The court also clarified that it was not dealing with the question of applicability or validity of the NPS, which is a sub-judicial issue in another case pending before the Supreme Court.

Case Title: Justice Shailendra Singh and Ors. v. UoI and Ors. WP(C) no. 232/2023 and related matters

Relating to – Retired HC Judges cannot be discriminated against in case of retirement based on their promotion from service or the bar: Supreme Court of Appeals