Calcutta High Court
Sohan Lal Saraf (Retired Judge Of The ... vs Union Of India & Ors on 17 September, 2008
Author: Indira Banerjee
Bench: Indira Banerjee
Order Sheet Serial No........
W.P. 105 of 2003
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
In the matter of :
SOHAN LAL SARAF (Retired Judge of the High Court)
Vs
UNION OF INDIA & ORS.
Before:
The Hon'ble Justice
INDIRA BANERJEE
Date: 17.09.2008.
JUDGMENT
The Court: The petitioner, appointed a Judge of this Court on 9th December, 1994, was transferred as a Judge of the High Court at Gauhati on 9 th January, 1995 and thereafter as a Judge of the Allahabad High Court on 3rd March, 1997.
The petitioner retired from service as a Judge of Allahabad High Court on 3rd June, 1999, on attaining the age of 62 years. On 8 th June, 1999, the petitioner was appointed Executive Chairman of the State Legal Services Authority, West Bengal. The petitioner stepped down from the post of Chairman of the State Legal Services Authority on 7 th June, 2002.
The terms and conditions of service of the Executive Chairman of the State Legal Services Authority are governed by the West Bengal State Legal Services (Salaries and Allowances and Other Terms and Conditions of the Executive Chairman of the State Authority) Rules, 1998 framed under Section 2B of the Legal Services Authorities Act, 1987. Some of the relevant provisions of the Rules are extracted hereinbelow for convenience:
"4. Salary. - There shall be paid to the Executive Chairman & Salary which is equal to the Salary of a serving Judge of a High Court:
Provided that in the case of appointment as an Executive Chairman, a person who has retired as a Judge of a High Court and who is in receipt of, or has received, or has become entitled to receive, any retirement benefits by way of pension, the salary as aforesaid shall be reduced by the gross amount of pension drawn or to be drawn by him.
5. Dearness Allowance. - The Executive Chairman shall receive dearness allowance appropriate to his pay at the rate admissible to a serving High Court Judge.
6. City Compensatory Allowance. - The Executive Chairman shall receive city compensatory allowance appropriate to his pay at the rate admissible to a serving High Court Judge.
7. Retirement. - The Executive Chairman, if he is a serving Judge of a High Court, on his retirement,-
(i) shall be entitled to receive pension and gratuity in accordance with the retirement rules applicable to him;
(ii) shall not be allowed to carry forward his earned leave but shall be entitled to receive cash equivalent to leave salary, if any, in accordance with the rules applicable to him prior to his retirement.
10. Provident Fund. - The Executive Chairman shall be entitled to subscribe to the Provident Fund at his option and, in the case of his so opting, shall be governed by the provisions of the General Provident Fund (Central Services) Rules, 1960:
Provided that if the Executive Chairman was the Judge of a High Court before his joining the State Authority, he shall be governed by the rules which were applicable to him immediately before joining the State Authority.
11. Travelling Allowance. - The Executive Chairman, while on tour or on transfer (including the journey undertaken to join the State Authority or on the expiry of his term as Executive Chairman, to proceed to his home town) shall be entitled to the travelling allowances, daily allowances, transportation of personal effects and other similar matters at the same scales and at the same rates as are prescribed in the High Court Judges (Travelling Allowance) Rules, 1956.
12. Leave Travel Concession. - The Executive Chairman shall be entitled to leave travel concession at the same rate and scale, as on the same conditions, as are applicable to a serving Judge of a High Court.
14. Facility of Conveyance. - The Executive Chairman shall be entitled to such facility of conveyance as is applicable to a serving Judge of a High Court.
15. Facilities for medical treatment. - The Executive Chairman shall be entitled to medical treatment and hospital facilities as are admissible to a serving Judge of a High Court.
16. Conditions of service of sitting Judge of a High Court appointed as Executive Chairman. - Notwithstanding anything contained in these rules, where a sitting Judge of a High Court is appointed as the Executive Chairman, the conditions of service as contained in the High Court Judges (Conditions of Service) Act, 1954 (28 of 1954) and the rules made thereunder shall apply to him upto the date of his superannuation as a sitting Judge of the High Court. Thereafter, he shall be governed by these rules for the remaining period of his tenure as Executive Chairman.
17. Conditions of service etcetera at par with those Judge of High Court. - Notwithstanding anything contained in Rules 4 to 16, the conditions of service and other perquisites available to the Executive Chairman shall be the same as admissible to a serving Judge of a High Court under the High Court Judges (Conditions of Service) Act, 1954 (28 of 1954) and the High Court Judges (Travelling Allowance) Rules, 1956.
18. Residuary Provision. - The conditions of service of the Executive Chairman, for which no express provision is made in these rules, shall be determined by the rules and orders of the time being applicable to a serving Judge of a High Court." The petitioner is being paid pension for the period of his service as a High Court Judge from 19 th December, 1994 till 3 rd June, 1999.
Relying on the provisions of the Rules referred to above, and in particular Rule 17, the petitioner filed this writ petition claiming that the petitioner is entitled to have his services as Executive Chairman of the State Legal Services Authority reckoned as qualifying service for the purpose of pensionary benefits.
In support of the claim, the petitioner relied on the judgment of the Supreme Court in Union of India vs. Pratibha Bonnerjea reported in 1995 (6) SCC 765.
Subsequently, however, in Justice P. Venugopal vs. Union of India & Ors. reported in (2003) 7 SCC 726, the Supreme Court held as follows:
"We, therefore, in agreement with the judgment of the Madras High Court are of the opinion that for the purpose of computation of pension, different services of the petitioner could not have been clubbed in terms of Act 28 of 1954. The pension payable to a High Court Judge would be only for the period rendered in that capacity which would constitute charge to the Consolidated Fund of India and services rendered subsequent thereto in terms of the order made by a State Government would not be charged to the Consolidated Fund. The question as to whether such a person would be entitled to pension from the State concerned or not would depend upon the statute or the terms and conditions of appointment."
Under Rule 17 of the Rules, the conditions and perquisites available to the Executive Chairman, are similar as admissible to a serving Judge of a High Court under the High Court Judges (Conditions of Service) Act, 1954 and the High Court Judges (Travelling Allowance) Rules, 1956.
While service as a High Court Judge, cannot be clubbed with service as Executive Chairman of the State Legal Services Authority, in view of the law laid down by the Supreme Court in the case of Justice P. Venugopal (supra), the petitioner would be entitled to pension as per the conditions of his appointment as Executive Chairman of the State Legal Services Authority.
The learned Advocate General appearing on behalf of the State, very fairly conceded that the petitioner would be entitled to separate pension from the State for the period of his service as Executive Chairman of the State Legal Services Authority. Such pension would be the same as admissible to a serving Judge of the High Court under the High Court Judges (Conditions of Service) Act, 1954.
The writ application is disposed of by directing the respondent Nos.2 and 3 to forthwith compute the pension payable to the petitioner and to release the same to the petitioner within six months from date.
The petitioner shall be entitled to interest on arrears of pension at the rate of 9% per annum from the first day of the month following the month for which the pension is due and payable.
(Indira Banerjee, J.)