Punjab-Haryana High Court
Justice S.K.Jain vs State Of Haryana And Others on 5 March, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No. 10153 of 1995
Date of Decision: 5th March, 2013
Justice S.K.Jain ..Petitioner
Versus
State of Haryana and others ..Respondents
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Alok Jain, Advocate, for the petitioner.
Mr. Randhir Singh, Addl. Advocate General, Haryana.
Mr. K.S.Sidhu, Senior Advocate with
Mr. G.S.Sidhu, Advocate, for respondent No.2.
Mr. Tushar Sharma, Advocate, for respondent No.3.
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A.K.SIKRI, CHIEF JUSTICE The petitioner herein retired from Haryana Superior Judicial Services on 31.10.1991 on attaining the age of superannuation. Thereafter he was elevated as Judge of this Court on 18.03.1992 and transferred to High Court of judicature at Allahabad on 19.07.1992 and retired therefrom on 29.10.1995. Lis in this petition, filed by him, pertains to his service as judicial officer of the Haryana Superior Judicial Service (HSJS). He was appointed in the said service as a direct recruit from the bar. For the purpose of computing pension, the petitioner wants that 10 years weightage be given by adding these many number of years to the actual period of service rendered by him in the H.S.J.S.
2. In Punjab, judicial officers belonging to Superior Judicial Service are governed by Punjab Superior Judicial Service Rules, 1963 Civil Writ Petition No. 10153 of 1995 [2 ] (hereinafter referred to as 'the 1963 Rules'). These are adopted by the State of Haryana as well. The State of Punjab had amended the Rules, 1963 vide notification dated 22.02.1990. By this amendment, proviso to Rule 16 was added to the effect that in case of a direct recruit to the Superior Judicial Service, the actual period of practice at the Bar, not exceeding 10 years, shall be added to his service qualifying for superannuation pension and other retrial benefits. No corresponding amendment was made by the State of Haryana at that time or immediately thereafter. When the State of Punjab amended the Rules, direct recruits to the H.S.J.S. requested for similar provision for them as well. Full Court of the Punjab and Haryana High Court passed a resolution to this effect and memo dated 24.01.1990 was sent to the State of Haryana for making necessary amendment in Rule 16 of the 1963 Rules as applicable to the State of Haryana. The matter was considered by respondent No.1 and vide memo dated 15.10.1991 the respondent No.1 informed the High Court that the Government had tentatively decided to extend the benefit on the same lines as done by the Punjab Government. A draft notification amending Rules 13 and 16 of the 1963 Rules was also sent to the High Court for necessary comments. The matter was considered by the High Court on its administrative side. Full Court approved the proposed amendment and sent communication dated 08.12.1992 informing respondent No.1 that the proposed amendment was acceptable to the High Court.
However, for one reason or the other, the matter kept pending at the level of respondent No.1 and the amendment was effected in the Rules much later vide notification dated 28.05.2003. Thus almost 10 years were taken by the State of Haryana in carrying out necessary amendment. The amendment is made prospective i.e. from the date of issuance of the Notification. Because of this amendment, the petitioner has been deprived of the benefit of Civil Writ Petition No. 10153 of 1995 [3 ] aforesaid notification. Accordingly, the present petition is filed claiming retrospective effect of the amendment.
3. Submission of the petitioner is that respondent No.1 could not have withheld the issuance of formal notification of an amendment which had already been recommended and approved by the High Court, more so even when the respondent No.1 agreed to it in principle. Not granting the benefit to the petitioner, it is contended, amounts to discrimination and is, thus, violative of Articles 14 and 16 of the Constitution.
4. There is no dispute on facts which are taken note of above. The respondents have, however, submitted that the petitioner has no legal right to claim that the notification be given retrospective effect and it is argued that this issue is no more res-integra and stands concluded by the judgment of the Supreme Court in the case of State of Punjab Vs. Justice S.S.Dewan (Retired Chief Justice and others) 1997(4) Supreme Court Cases 569.
5. The question which arose before the Apex Court in the said case was precisely the same namely whether the amendment in Rule 16 which was made by the State of Punjab vide notification dated 22.02.1990 was retrospective or prospective in operation. The Apex Court negatived the plea of giving retrospective operation and the following discussion ensued in the process:-
"6. The change brought about by the amendment is that whereas in respect of death-cum-retirement benefits members of the Punjab Superior Judicial Service were earlier governed by the All India Service (death-cum-retirement benefits) Rules, now they are governed by the Punjab Civil Service Rules, Moreover, now in the case of a direct recruit to the Punjab Superior Judicial Service the actual period of practice at the Bar not exceeding 10 years has to be added to his service for the purpose of determining the qualifying Civil Writ Petition No. 10153 of 1995 [4 ] service. Formerly, that is, prior to 22.2.1990, qualifying service of a member of the Punjab Superior Judicial Service was the length of service rendered by him as a member of the Punjab Superior Judicial Service and also as a Judge of the High Court, if he was elevated to that position before retirement. Even in case of a direct recruit to that Service his standing at the Bar was irrelevant but now that period has to be added for determining the qualifying service. Obviously, this enlargement for the period of qualifying service would lead to an increase in the quantum of pension. This has been regarded by the High Court and as contended by the respondent, liberalisation of the pension scheme. For that reason, it further held that benefit of a rule liberalising pension cannot be restricted to persons retiring subsequently that is after the date of such liberalisation otherwise it would amount to vicious discrimination violative of Article 14 of the Constitution. The High Court has also held that there is nothing in the language of the Rule to suggest that the benefit conferred by it is confined to the persons retiring after February 22, 1990.
7. Therefore, what we have to consider is : What is the nature of the change made by the amendment? Is it by way of upward revision of the existing pension scheme? Then obviously the ratio of the decision in D.S. Nakara's case would apply. If it is held to be a new retiral benefit or a new scheme then the benefit of it cannot be extended to those who retired earlier.
8. Conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of pension. In D.S. Nakara's case (supra) the change in the formula of determining average emoluments by reducing 36 months' service to 10 months' Service as measure of pension, made with a view to giving a higher average, Civil Writ Petition No. 10153 of 1995 [5 ] was regarded as liberalisation or upward revision of the existing pension scheme. On the basis of same reasoning it may be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make it more beneficial in terms of quantum of pension can also be regarded as liberalisation or upward revision of the existing pension scheme. If, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service then it would assume a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit. What has been done by amending Rule 16 is to make the period of practice at the Bar, which was otherwise irrelevant for determining the qualifying service, also relevant for that purpose. It is a new concept and a new retrial benefit. The object of the amendment does not appear to be to go for liberalisation. The purpose for which it appears to have been made is to make it more attractive for those who are already in service so that they may not leave it and for new entrants so that they may be tempted to join it. Though Rule 16 does not specifically state that the amended rule will apply only to those who retired after 22.2.90, the intention behind it clearly appears to be to extend the new benefit to those only who retired after that date. For these reasons the principle laid down in D.S. Nakara's case (supra) that if pensioners form a class computation of their pension cannot be by different formula affording unequal treatment merely on the ground that some retired earlier and some retired later, will have no application to a case of this type. Therefore, on both the grounds the High Court was in error in applying the ratio of the decision in D.S. Nakara's case (supra) to this case. As rightly contended on behalf of the State, benefit of the amendment would be available to only those direct recruits who retired after it has come into force.
Civil Writ Petition No. 10153 of 1995 [6 ]
6. Faced with the aforesaid situation, the argument of learned counsel for the petitioner was that once the High Court had recommended retrospective operation to the amended Rules, such an opinion of the High Court was binding on the State Government in view of the provisions of Article 235 of the Constitution. It was submitted that this provision was interpreted by the Apex Court in number of judgments holding that the opinion of the High Court has to be accepted.
7. Answer to this arguments is provided by the judgment of Delhi High Court in case of All India Young Lawyers Association (Regd.) Vs. Govt. of NCT of Delhi and others 2006(128) Delhi Law Times 29. That writ petition was filed in public interest seeking mandamus to the Government of NCT of Delhi for adding the actual period of practice at bar subject to minimum of 15 years while computing pensionary and other retrial benefits of a direct recruit of Delhi Higher Judicial Service as there was no such provision in the Service Rules of the higher Judicial Service in Delhi. While allowing the writ petition and issuing a writ of mandamus directing the State to amend the Rule, the Court specifically held that the benefit of the Rules cannot be given retrospectively. It would be pertinent to notice that in that case as well, the Full Court of Delhi High Court had proposed the Rules recommending giving retrospective effect to such a provision. Notwithstanding the same, the High Court followed the dictum laid down in Justice S.S.Dewan's case (supra) and denied retrospectivity. It would be apposite to reproduce para No. 9 of the said judgment in this behalf:-
"9. Even otherwise, Delhi High Court which exercises control, superintendence over the subordinate courts and its officers and the judicial Civil Writ Petition No. 10153 of 1995 [7 ] staff is the best judge with regard to laying down the conditions of service or pensionary benefits so as to lure good lawyers from the Bar. This function cannot be delegated to any State functionary of the executive. That is why Supreme Court in State of Haryana Vs. Inder Prakash Anand & Ors. AIR 1976 SC1841 laid down that the control vested in the High Court is that if the High Court is of the opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the mandate of the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the subordinate judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. The Government will act on the recommendation of the High Court. Therefore, when the Full Court of the Delhi High Court has recommended to the respondent nos. 1 & 2 in 1987 at the first instance for amendment of Delhi Higher Judicial Service Rules by inserting Rule 26 (B) which inter alias allowed the period of practice at the Bar before joining of service or a period of fifteen years whichever is less, we fail to understand why the State Government kept quiet from 1987 for almost 20 years. The Full Court of Delhi High Court, we were told by respondent/Delhi High Court, again in 2005 has recommended to the respondent for insertion of Rule 26 (B), which is reproduced below :-
Rule 26 (B) (1) In the computation of the total period of his service qualifying for pension and other retirement benefits, as member of the service directly recruited from the Bar shall be entitled to add, to his actual Civil Writ Petition No. 10153 of 1995 [8 ] period of service, the period of his practice at the Bar before joining the service of a period of 15 years whichever is less.
(2) This rule shall have retrospective effect and shall be applicable also to the officers of the service who have retired before it comes into operation.
In view of the judgment of the Supreme Court in Justice S.C. Dewan's case (supra), we are not inclined to grant the benefit of Rule 26 (B) retrospectively. However, having regard to the above, we hereby issue a writ of mandamus to the respondents to issue necessary notification keeping in view the resolution of the Delhi High Court inserting Rule 26 (B) and giving weightage of fifteen years of practice or such other number of years of practice at the Bar whichever is less to the direct recruits while computing their pensionary and other retiral benefits. We make it clear that the notification to be issued by the Govt. of NCT shall have prospective application."
8. As the judgment in Justice S.S.Dewan's case (supra) is a binding precedent which is followed by the Delhi High Court in the manner stated above, agreeing with the interpretation given by the Delhi High Court, we have no option but to dismiss this writ petition as devoid of any merits.
Accordingly, the writ petition is dismissed. However, there shall be no order as to costs.
(A.K.SIKRI)
CHIEF JUSTICE
5th March, 2013 (RAKESH KUMAR JAIN)
'ravinder' JUDGE