Kerala High Court
The State Of Kerala vs K.Balakrishnan Nair on 22 October, 2020
Equivalent citations: AIRONLINE 2020 KER 1141
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942
WA.No.1008 OF 2020
AGAINST THE JUDGMENT DATED 7.1.2020 IN WP(C) 16604/2019(A) OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 2 & 3 IN WPC:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE ACCOUNTANT GENERAL (A&E),
POST BOX NO.5607, M.G.ROAD, THIRUVANANTHAPURAM-
695039.
BY SRI. ANTONY MUKKATH- SR., G.P.
RESPONDENTS/PETITIONER & 1ST RESPONDENT IN WPC:
1 K.BALAKRISHNAN NAIR
FORMER CHAIRMAN OF KERALA ADMINISTRATIVE TRIBUNAL,
KARTHIKA, ROSHAN LANE, BANERJI ROAD , COCHIN-
682018.
WA No.1008/2020
-:2:-
2 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT
OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING
IN THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS, LOK NAYAK BHAVAN, NEW DELHI-
110001.
R2 BY ADV. SRI.P.VIJAYAKUMAR, ASGI
SRI. P. GOPAL FOR R1
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-10-
2020, THE COURT ON 22-10-2020 DELIVERED THE FOLLOWING:
WA No.1008/2020
-:3:-
CR
JUDGMENT
Dated this the 22nd day of October, 2020 Shaffique, J.
The State of Kerala and the Accountant General (A & E) have preferred this appeal challenging the judgment dated 7/1/2020 in WP(C) No. 16604/2019. The writ petition was filed by a former Judge of the High Court of Kerala, who was later appointed as the Chairman of Kerala Administrative Tribunal (for short 'KAT'). After the tenure, as the Chairman of KAT, petitioner sought for a direction to the 2 nd respondent, the State of Kerala to grant pension and gratuity. The Government issued Ext.P5 order fixing the pension and gratuity for the said period, but imposed a condition that the total amount of pension and pre-pension shall not exceed 50% of the salary of the highest post held by the petitioner while in service. In respect of gratuity also, the Government took a view that DCRG for pre-service and current service together should be limited to the maximum DCRG of High Court Judges.
WA No.1008/2020-:4:-
2. The short facts of the case are as under and the parties are described as shown in the writ petition unless otherwise stated. Petitioner retired as Judge of the High Court on 11/4/2010, and thereafter he was appointed as Chairman of the KAT constituted u/s 4(2) of the Administrative Tribunals Act, 1985 (hereinafter referred to as 'AT Act') as per Government Order dated 25/8/2010. He took charge on 3/9/2010 and retired from service on completion of 5 years on 3/9/2015.
3. Petitioner contended that the pensionary benefits due to him for rendering the service as Chairman of KAT were not fixed. WP(C) No. 8416/2017 was filed by the petitioner seeking appropriate directions to the Government to fix the pensionary benefits. The writ petition was disposed of as per judgment dated 14/3/2017, and the Central Government was directed to consider the representation of the petitioner. The Government of India by a letter dated 11/5/2017 (Ext.P3) addressed to the Principal Secretary to Government of Kerala opined that on insertion of Sec.8(3) into the AT Act, service conditions of the Chairman and Members appointed on or after 19/2/2007 are made equivalent to those of the Judges of the High Court, and therefore, S.10 of the WA No.1008/2020 -:5:- AT Act does not apply. Further, pensionary benefits of Chairman and Members of the Central Administrative Tribunal and State Administrative Tribunals are to be fixed by the concerned authorities and not by the Central Government. The Government of Kerala was, therefore, requested to take necessary action to fix the pensionary benefits of the petitioner. Pursuant to Ext.P3, the Central Government issued Ext.P4 order dated 14/8/2018. Government of Kerala, therefore, as per Ext.P5 dated 18/1/2019 computed the pensionary benefits as per Clause 5(i) of Ext.P5 and fixed the pension at `40,218/- per month w.e.f. 1/1/2016 subject to the condition that the current pension and pre-pension taken together should not exceed 50% of the salary of the highest post held while in service. In respect of DCRG also, the same condition was incorporated. It is the aforesaid condition that was impugned.
4. A counter affidavit was filed on behalf of the State Government inter alia stating that the condition incorporated in Ext.P5 was in consonance with S.14 of the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short '1954 Act'). Further, it is stated that S.8(3) of the AT Act does not make WA No.1008/2020 -:6:- S.10 of the Act redundant.
5. A reply has been filed by the petitioner inter alia stating that, on Section 8(3) of the AT Act being incorporated into the statute with effect from 19/2/2007, the conditions of service of the Chairman and Members of the Central and State Administrative Tribunals are the same as applicable to Judges of High Court. Pension of the petitioner is to be calculated by following the principle laid down in Clause 2 of Part I of First Schedule in terms of S.14 of the 1954 Act. It was also stated that the service of the petitioner as Judge of the High Court and as Chairman of KAT cannot be clubbed together to impose a condition limiting the pension.
6. The learned Single Judge after considering the respective contentions arrived at a conclusion that in so far as S.8(3) of the AT Act indicates that the service conditions of the Chairman shall be in accordance with the provisions of the 1954 Act, the pension payable to the Chairman of the Tribunal can only be in addition to the pension which the petitioner has been drawing by virtue of his service rendered as High Court Judge and therefore, it was held that the condition in Ext.P5 fixing a ceiling for pension is WA No.1008/2020 -:7:- without authority. A direction was therefore issued to the 2 nd respondent to fix the pension of the petitioner without reckoning the pension drawn by the petitioner as a Judge of the High Court.
7. While impugning the aforesaid judgment, learned Special Government Pleader Sri.Antony Mukkath submitted that there is no rule enabling the State Government to fix or pay pension for the service rendered by the petitioner as Chairman of the Kerala Administrative Tribunal. It is pointed out that salary and pension for High Court Judges are being paid from a consolidated fund maintained by the Government of India and in the absence of any rule which prescribe that pension has to be paid for the post retiral job undertaken by the petitioner, a demand for pension cannot be made. It is pointed out that as per Entry 42 to List II of the 7th Schedule to the Constitution of India, State Government has to make rules for State pension including the pension payable by the State out of the consolidated fund of the State. In the absence of any rules governing pension, executive orders can be issued by the Government. Ext.P5 order sanctioning pension to the petitioner is in the exercise of the power under Art.166 of the Constitution. He also placed reliance on the judgments of the WA No.1008/2020 -:8:- Apex Court in Justice P.Venugopal v. Union of India [(2003) 7 SCC 726] and Accountant General, State of Madhya Pradesh v. S.K.Dubey and Another [(2012) 4 SCC 578]. We have also called for the files and perused the same.
8. On the other hand, Adv.P.Gopal appearing on behalf of the writ petitioner/1st respondent herein would argue that on S.8(3) coming into force, there is no necessity to frame rules in terms of S.10 of the Act. When the conditions of service of Chairman and Members are the same as that of High Court Judges, they are to be governed by the 1954 Act, in which event, S.8(3) holds the field, and no other rules are required for the purpose of granting pension. Learned counsel also placed reliance on the judgment of the Apex Court in Bharat Cooking Coal Ltd v. State of Bihar and Others [(1990) 4 SCC 557]. This judgment is cited to emphasise the point that when a field is covered by Central law, the State Legislature is denuded of its power to make legislation or to issue executive orders. It is pointed out that Administrative Tribunals had been constituted pursuant to the constitutional provision under Art.323A. The provisions of Article 323A shall have effect notwithstanding WA No.1008/2020 -:9:- anything contained in any other provision of the Constitution or in any other law for the time being in force. It is therefore contended that when a special law had been enacted based on the constitutional mandate, the State Government cannot take a different view from what has already been taken by the Central Government. When the Central Government has specifically stated that S.8(3) holds the field and the service benefits are to be fixed by the State Government, there is no reason for the State Government to impose such conditions as mentioned in Ext.P5.
9. In Venugopal's case (supra) the facts disclose that a former Judge of the High Court was functioning as Commission of Inquiry, while he was still in service and he continued to occupy the said post even after the date of superannuation. The question considered was whether the period during which he continued as a Commission of Inquiry after his date of superannuation as a High Court Judge should be counted for fixing his pension which continued for a further period of 7 years. The Government of Madras issued an order on 28/12/1981 stating that the Judge was appointed as the Commission of Inquiry on a full-time basis and WA No.1008/2020 -:10:- he will draw the total emoluments last drawn by him as a Judge of the High Court, minus the pension to which he is eligible, excluding the pension commuted. The Apex Court observed that pension to a retired Judge is payable in terms of Art.221 of the Constitution of India. Sub clause (d)(iii) of Clause (3) of Art.112 provides that the pension payable to Judges of any High Court shall be charged to the consolidated fund of India. It was held that a High Court Judge is entitled to receive pensionary benefits only in terms of the 1954 Act and not otherwise as it is a self- contained code and it does not contemplate grant of pension to a retired High Court Judge for holding any other office of profit. It was therefore held that for the purpose of computation of pension, different services of the petitioner could not have been clubbed in terms of the 1954 Act. The pension payable to a High Court Judge would only be for the period rendered in that capacity which would constitute a charge to the consolidated fund of India and services rendered subsequent thereto in terms of the order made by State Government would not be charged to the consolidated fund. It was also held that the question, whether such a person would be entitled to pension from the State WA No.1008/2020 -:11:- concerned or not would depend upon the statute or the terms and conditions of appointment.
10. In S.K.Dubey's case (supra) the question considered was whether a former High Court Judge appointed as President, State Consumer Disputes Redressal Commission was entitled to demand pension for the period of service rendered by him as President, State Commission. The Department of Food, Civil Supplies and Consumer Protection issued an order dated 5/4/2002 indicating that the services rendered by him in the post of President, State Consumer Disputes Redressal Commission shall count for pension, provided that the pension received earlier from the State Government or Central Government combined together shall not exceed the maximum of the pension prescribed for the Judges of the Hon'ble High Court. After referring to Justice P. Venugopal's case (supra), Justice Lodha opined that, for the purpose of computation of pension payable to the Judge, his different services, namely, service as a Judge of the High Court and service as President, State Commission cannot be clubbed. The respondent is entitled to pension as a High Court Judge only for the period rendered by him in that capacity. The subsequent WA No.1008/2020 -:12:- service rendered by him as President, State Commission cannot be charged to the Consolidated Fund of India. Justice Gokhale wrote a separate judgment disagreeing with one of the issues, but held that the subsequent period of his service as President of the State Commission cannot be clubbed with the service of a High Court Judge. The only divergence of opinion, was with reference to the question whether the State Government could issue an executive order to grant pension when the rule does not provide for the same. Though the matter was directed to be posted before an appropriate Bench to decide on the divergent views, it is submitted that, so far, the matter had not been listed for hearing.
11. Apparently, the aforementioned judgments did not consider the effect of S.8(3) to the AT Act. But the law is clear to the effect that service rendered by a High Court Judge cannot be clubbed with the service rendered after retirement unless otherwise stated by any Rules. It is also clear that the pension payable to a High Court Judge during the period of service in that capacity, would constitute a charge to the consolidated fund of India and services rendered subsequent thereto in terms of the WA No.1008/2020 -:13:- order made by State Government cannot be charged to the consolidated fund of India. The question, whether such a person would be entitled to pension or gratuity from the State concerned or not would depend upon the statute or the terms and conditions of appointment.
12. The Administrative Tribunal for a State is established as per S.4(2) of the AT Act, which reads as under:
"4(2). The Central Government may, on receipt of a request in this behalf from any State Government, establish, by notification, an Administrative Tribunal for the State to be known as the.................(name of the State) Administrative Tribunal to exercise the jurisdiction, powers and authority conferred on the Administrative Tribunal for the State by or under this Act."
The Chairman and the Members of the Tribunal are appointed by the President of India after consultation with the Governor of the State as laid down under section 6(4) of the AT Act.
13. S.8 of the AT Act reads as under:-
"8. Term of office.--(1) The Chairman shall hold office as such for a term of five years from the date on which he enters upon his office:Provided that no Chairman shall hold office as such after he has attained the age of sixty-eight years.
(2) A Member shall hold office as such for a term of five WA No.1008/2020 -:14:- years from the dale on which he enters upon his office extendable by one more term of five years:
Provided that no Member shall hold office as such after he has attained the age of sixty-five years. (3) The conditions of service of Chairman and Members shall be the same as applicable to Judges of the High Court."
14. Conditions of service of Judges of the High Court are governed by the provisions of the 1954 Act. Sections 14 and 15 of 1954 Act prior to Act 13/2016 reads as under:-
"14. Pension payable to Judges.--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:
Provided that no such pension shall be payable to a Judge unless--
(a) he has completed not less than twelve years of service for pension; or
(b) he has attained the age of sixty-two years, and, in the case of a Judge holding office on the 5 th day of October, 1963, sixty years; or
(c) his retirement is medically certified to be necessitated by ill-health:
Provided further that if a Judge at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service in the Union or a State, the pension payable under this Act shall be in lieu of, and not in addition to, that pension.
Explanation. --In this section "Judge‟ means a Judge WA No.1008/2020 -:15:- who is not member of the Indian Civil Service or has not held any other pensionable post under the Union or a State and includes a Judge who being a member of the Indian Civil Service or having held any other pensionable post under the Union or a State has elected to receive the pension payable under Part I of the First Schedule. "
"15. Special provision of pension in respect of Judges who are members of service. (1) Every Judge:
(a) who is a member of the Indian Civil Service shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part II of the First Schedule;
(b) who is not a member of the Indian Civil Service but has held any other pensionable post under the Union or a State, shall on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule:
Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the First Schedule or, as the case may be, Part II or Part III of the First Schedule, and the pension payable to him shall be calculated accordingly.
(2) Notwithstanding anything contained in sub-section (1), any Judge to whom that sub-section applies and who is in service on or after the 1st day of October, 1974, may, if he has elected under the proviso to that sub-section to receive the pension payable to him under Part II or, as the case may be, Part III of the First Schedule before the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976 WA No.1008/2020 -:16:- (35 of 1976) receives the assent of the President, cancel such election and elect afresh to receive the pension payable to him under Part I of the First Schedule and any such Judge who dies before the date of such assent shall be deemed to have elected afresh to be governed by the provisions of the said Part I if the provisions of that Part are more favourable in his case."
15. S.10 of the AT Act relates to salaries and allowances and other terms and conditions of service of Chairman and other members which reads as under:-
"10. Salaries and allowances and other terms and conditions of service of Chairman, and other Members.--The salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairman, and other Members shall be such as may be prescribed by the Central Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman, or other Member shall be varied to his disadvantage after his appointment.
[Provided further that where a serving Government officer is appointed as a Member, he shall be deemed to have retired from the service to which he belonged on the date on which he assumed the charge of the Member but his subsequent service as Member shall, at his option, be reckoned as a post-retirement re-employment counting for pension and other retirement benefits in the service to which he belonged."WA No.1008/2020 -:17:-
It has been contended on behalf of the respondent that on incorporation of S.8(3) w.e.f. 19/2/2007, S.10 of the Act had become redundant. S.8 was substituted as per Act 1/2007 w.e.f. 19/02/2007. By the very same amendment, consequent amendment was made to S.10 deleting the word 'Vice Chairman'. Therefore, we have to proceed on the basis that the Central Government was conscious about the incorporation of S.8(3) as well as S.10. Incorporation of S.8(3) was to ensure that the applicable conditions of service as that of a High Court Judge shall be provided to the Chairman and Members even though a specific rule is not framed in terms of S.10.
16. In Union of India and Others v. Pratibha Bannerjea [(1995) 6 SCC 765], a retired Judge of the High Court was appointed as Vice Chairman of Central Administrative Tribunal. The Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice Chairman and Members) Rules, 1985 incorporated Rule 15A, which reads as under:-
"15A. Notwithstanding anything contained in rules 4 to 15 of the said rule, the conditions of service and other perquisites available to the Chairman and Vice-Chairman of the Central Administrative Tribunal shall be the same as WA No.1008/2020 -:18:- admissible to a serving Judge of a High Court as contained in the High Court Judges (Conditions of Service) Act, 1954, and High Court Judges (Travelling Allowances) Rules, 1956."
A contention was raised by the petitioner before the Central Administrative Tribunal that in the light of Rule 15A of the 1985 Rules, she was entitled for pension under Part I of 1954 Act. Union of India took up a contention that pension is payable to her only under Part III of the First Schedule. The Apex Court held that insofar as the Judge concerned was not drawing any pension in a pensionable post under the Union/State, she would be entitled to pension under Part 1 of First Schedule to the Act. That was a case in which Rule 15A clearly provided that the conditions of service shall be the same as a 'serving Judge' of High Court. However, while deciding Venugopal's case (supra), the 3 Judge Bench of the Apex Court did not approve the aforesaid judgment. It was held at paragraphs 20, 21 and 22 as under:-
"20. Ahmadi, C.J., speaking for the Bench in the aforementioned situation opined that as a Judge of the High Court is not a government servant but holder of a constitutional post and, thus, Part III of the First Schedule of the 1954 Act would not be applicable. Having regard to the constitutional scheme, it was held in Pratibha Bonnerjea [ CMWP No. 18496 of 1999 (All)] that Part I of WA No.1008/2020 -:19:- the Schedule appended to the 1954 Act would be applicable and not Part III thereof. Although the said case was decided on its own facts, the attention of the Court was not drawn to an earlier decision of this Court in Union of India v. K.B. Khare [1994 Supp (3) SCC 502 : 1995 SCC (L&S) 105 : (1994) 28 ATC 528] wherein the issue in question directly arose for consideration. Upon taking into consideration the provisions of the Administrative Tribunals Act and the rules framed under Section 35(2)(c) thereof and in particular Rules 8 and 16, it was held: (SCC pp. 508-09, paras 17-18)
"17. In our considered view, the High Court has gone wrong in considering the service in CAT as re-employment in connection with the affairs of the Union. On the contrary, an independent judicial service, the appointment in CAT is on tenure basis. The pension relating to such post is clearly governed by Rule 8 of the Rules quoted above and at the risk of repetition, we may state it exhaustive in nature. If that be so, there is no scope for resort to Rule 16 at all. If the first respondent had to resign from judicial service because of the statutory requirement under Rule 5 of the Rules (quoted above), we are unable to see as to how both the services, namely, Senior District Judge in the State Judicial Service and a Member in CAT could be clubbed. Such a clubbing is not contemplated at all. From this point of view, we find it difficult to accept the reasoning of the High Court that the matter of option to club the two services for pension is a subject on which the Rules are silent and the residuary provision in Rule 16 of the Rules intends to fill the gap by supplementing the Rules by rules applicable to the WA No.1008/2020 -:20:- Secretary to the Government of India.
18. Merely because while the first respondent was a Member of the State Judicial Service, he was governed by DCRB Rules of 1958, that cannot be pressed into service in view of the specific Rule 8 of the Rules. Consequently, the provisions relating to pensioners retired on invalid pension is not applicable. The Rules being unambiguous cannot be construed to confer better pensionary benefits. It is no argument to hold that had the first respondent continued in the State Judicial Service, he would have got a higher pension. There is no escape from Rule 8 of the Rules with regard to the grant of pension of Chairman, Vice-Chairman or the Members of the Tribunal. That being so, the question of liberally construing pension rules does not arise. On the same reasoning, the principle laid down in D.S. Nakara case [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] is not applicable."
21. We may further notice that a three-Judge Bench of this Court in Pashupati Nath Sukul v. Nem Chandra Jain [(1984) 2 SCC 404] while considering the question as to who would constitute a government servant, upon referring to the decision of this Court in Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta High Court [AIR 1956 SC 285 : (1955) 2 SCR 1331] held that the holders of a constitutional post are not eligible to contest election to Parliament and the State Legislature in view of Article 102(1)(a) and Article 191(1)(a) of the Constitution, as the case may be, because they are serving in connection with affairs of the Union and, therefore, are holding an office of profit under the Central Government.
WA No.1008/2020-:21:-
22. The said question came up for consideration again before a three-Judge Bench of this Court in V.S. Mallimath v. Union of India [(2001) 4 SCC 31 : 2001 SCC (L&S) 629] . The petitioner therein after his retirement as a Chief Justice of the Kerala High Court was appointed as a Chairman of the Central Administrative Tribunal and upon retirement from the said office he was appointed as a Member of the National Human Rights Commission, wherein he continued till he attained the age of 70 years. One of the contentions advanced on behalf of the petitioner was that he was entitled to full salary and the benefit of gratuity for the period he rendered his service in the National Human Rights Commission. Strong reliance in support of the aforementioned contention was placed on Pratibha Bonnerjea [ CMWP No. 18496 of 1999 (All)] . Pattanaik, J. (as the learned Chief Justice then was) speaking for the Bench referred to Pashupati Nath Sukul [D.S. Nakara v. Union of India, (1983) 1 SCC 305 :
1983 SCC (L&S) 145] and approved the ratio laid down therein and rejected the contention that full salary or gratuity would be payable to the petitioner."
Finally it was held at paragraph 26 as under:-
"26. 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 WA No.1008/2020 -:22:- 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.
17. In V.S. Mallimath v. Union of India [(2001) 4 SCC 31], the Apex Court was considering the case whether, Sri.V.S.Mallimath, who retired as Chief Justice of the Kerala High Court was entitled to receive full salary during his tenure as Chairman of the Human Rights Commission, in addition to the pension drawn by him. The proviso to Rule 3 of National Human Rights Commission Chairperson and Members (Salaries, Allowances and Other Conditions of Service) Rules, 1993, came up for consideration. As per Rule 3, a Member, shall be paid salary equal to the salary of a Judge of the Supreme Court.
Proviso to Rule 3 stipulated that if the said Member, is in receipt of the pension other than disability or wound pension, in respect of any previous service under the Government of the Union or the Government of a State, then his salary in respect of a service as a Member shall be reduced. Question arose whether his service as Chief Justice of a High Court was a service under the WA No.1008/2020 -:23:- Government or not. Though Pratibha Bannerjea's case (supra) was cited on behalf of the appellant to contend that Chief Justice of a High Court being a constitutional functionary, it is not a service under the Government, the Apex Court did not agree with the said proposition and held as under:
"The expression "Government" used in proviso to Rule 3(b) has, therefore, to be construed in the wider sense and the services rendered by a Judge or Chief Justice of a High Court must be held to be a service in connection with the affairs of the Union and as such the proviso to Rule 3(b) of the Rules would govern the case of such retired Judge or Chief Justice in determining the salary, which he would be entitled to, on being appointed as a Member of the Human Rights Commission."
18. Central and State Tribunals are constituted by a law made under Article 323A of the Constitution of India. Article 323A reads as under:
"323A. Administrative tribunals.- (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (1) may--WA No.1008/2020 -:24:-
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3) of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this WA No.1008/2020 -:25:- Constitution or in any other law for the time being in force."
The AT Act has been enacted, to give effect to the constitutional mandate under Article 323A. As already stated, the Chairman and Members of the State Administrative Tribunal is appointed by the President of India, after consultation with the Governor of the State. As far as service conditions of the Chairman and Members are concerned, S.8(3) provides that it shall be the same as applicable to Judges of the High Court. Section 10 of course is an independent provision enabling the Central Government to frame Rules relating to salaries and allowances and other terms and conditions of service, including pension and gratuity. Though the Central Government has framed the Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice Chairman and Members) Rules, 1985, no such rules have been framed by the Central Government at the instance of State Government. There cannot be any quarrel with the proposition that, salary and other allowances and other benefits including pension and gratuity, if any, has to be paid to the Chairman and Members of the State Administrative Tribunal from the consolidated fund of the State and not from the WA No.1008/2020 -:26:- consolidated fund of India. In fact, Central Government has framed Rules prescribing the Salaries and Allowances and Conditions of service of Chairman, Vice Chairman and Members of Karnataka Administrative Tribunal.
19. Pension is a benefit, which is granted by the respective States for rendering State service. Apparently, State Government is vested with the power to make law for the same under Entry 42 of List II of Schedule VII of the Constitution which reads as under:
"42. State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State."
20. It is not in dispute that the State Government has not approached the Central Government to frame Rules enabling the Chairman of KAT to receive pension. The learned counsel for the respondent, however has placed reliance on the judgment in Bharat Cooking Coal Ltd (supra) to contend that when a field is covered by Central law, the State Legislature is denuded of its power to make legislation or to issue executive orders. The question involved in the above case was whether the State of Bihar had legal authority to execute leases for collection of slurry on payment of royalty to it. It was observed that certain matters WA No.1008/2020 -:27:- of legislation were overlapping which presents difficulty. The subject matter of legislation with respect to regulation of mines and mineral development came under Entry 23 of List II and Entry 54 of List I of Schedule VII of the Constitution, which read as under:
"23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union."
"54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest."
After considering the respective contentions, the Apex Court held as under:
"17. The aforesaid analysis of the provisions of the Act makes the extent of Parliamentary declaration clear that the disposal and discharge of sludge or slurry emanating or coming from the washery of a coal mine is exclusively within the legislative power of Parliament. The Act further provides that the Central Government has exclusive power to frame any rule either under Section 13(2)(o) or under the amended Section 18(2)(k) of the Act regulating disposal of slurry. The effect of the Parliamentary declaration as contained in the Act is that the matters referred to in the declaration, stand abstracted from List II and those become matters of legislation in List I of the Seventh Schedule. As a result of the declaration made by Parliament, under Section 2 of the Act, the State legislature is WA No.1008/2020 -:28:- denuded of its legislative power with respect to the regulation of mines and mineral development and the entire legislative field has been taken over by Parliament."
But the above judgment has been explained in Monnet Ispat & Energy Ltd. v. Union of India [(2012) 11 SCC 1] and it was held that in the case of a declaration under Entry 54, the legislative power of the State Legislatures is eroded only to the extent control is assumed by the Union pursuant to such declaration as spelt out by the legislative enactment which makes the declaration. Further the Apex Court, in Bharat Cooking Coal Ltd (supra), while considering the question whether the State can exercise its executive power under Article 162 of the Constitution held as under:
"Since State legislature's power to make law with respect to the matter enumerated in Entry 23 of List II has been taken away by the Parliamentary declaration, the State Government ceased to have any executive power in the matter relating to regulation of mines and mineral development."
21. Insofar as pension payable from the consolidated fund of India is concerned, the field is covered by Entry 71 of List I of Schedule VII of the Constitution and pension payable from the consolidated fund of State is covered by Entry 42 of List II of WA No.1008/2020 -:29:- Schedule VII of the Constitution . As such, there is no overlapping of the entries as observed in Bharat Cooking Coal Ltd (supra) and therefore, the said judgment has no application to the facts of the present case.
22. However, Sri.Gopal, learned counsel for the respondent further argued that when the AT Act has incorporated a provision like S.8(3), the field is covered by the Central enactment, and therefore State cannot take a different view. Service conditions of course includes various components, like salary and allowances, leave, leave surrender encashment, medical reimbursement, pension, gratuity etc., which is evident from S.10 of the AT Act itself. S.10 of the Act still remains in the statute, dehors the incorporation of S.8(3), only to ensure that the parliamentary legislation has not entrenched upon the field governed by the State List. This is further apparent from the fact that clauses (a) to (g) of Article 323A(2) do not in any way permit the Central Government to frame a law governing the service conditions of the Chairman and Members of the State Tribunals and the said power is seen incorporated only under S.10 of the AT Act, which could be exercised only at the instance of the respective State WA No.1008/2020 -:30:- Governments. Therefore, we are of the view that unless, at the instance of the State Government, the Central Government frames a rule in exercise of their power under S.35(2)(c) of the AT Act, enabling the Chairman or Members to receive pension or gratuity, State Government cannot be mulcted with such a liability.
23. We have still to consider the effect of S.8(3) of the AT Act. First of all, the conditions of service as applicable to Judges of the High Court in S.8(3) do not necessarily mean retirement benefits. We are constrained to take such a view on account of the following factors:-
a) In Venugopal's case (supra), it is held that the service of a High Court Judge cannot be clubbed with another post retirement service.
b) The pension payable to a High Court Judge is charged to the Consolidated Fund of India and services rendered subsequent thereto as Chairman of KAT can be charged only to the Consolidated Fund of the State.
c) The order of appointment, only states that the conditions of service shall be in accordance with the provisions of the AT Act WA No.1008/2020 -:31:- as amended by the AT (Amendment) Act, 2006. The order of appointment does not make any specific mention about pension or gratuity.
d) The 1954 Act, does not contemplate grant of pension to a retired High Court Judge for holding any other post retirement office or post. Sections 14 and 15 of the Act, do not apply to post retirement job in any other service.
e) From S.8(1) of AT Act, it is rather clear that the term of appointment of the Chairman is for five years from the date on which he enters upon his office and the proviso indicates that he shall not hold office after he has attained the age of 68 years.
Apparently, this is a tenure appointment either for a period of 5 years or until the age of 68 years as held by the Apex Court in Union of India v. K.B.Khare [1994 Supp (3) SCC 502]. The opening words of S.14 of the 1954 Act itself is an answer to the claim made by the petitioner. The right to receive pension of a Judge is "on his retirement", which is at the age of 62 years. Entitlement for pension arises on retirement, which is not the case of a Chairman of KAT appointed under the AT Act, as it is a post retiral tenure appointment. What is claimed by the petitioner WA No.1008/2020 -:32:- is the post retirement pension, for rendering service as Chairman of the KAT, which is not contemplated under S.14 of the 1954 Act. The provision under Part I of the First Schedule is only for calculation purposes and does not render any right to receive pension.
24. Now, even if we are to hold that S.8(3) contemplated that the Chairman of the KAT is entitled for pension, a claim for pension cannot be made under S.14, but could be made only under S.15. Though in Pratibha Bannerjea's case (supra), it was held that a High Court being a constitutional functionary, it is not a service under the Government, the Apex Court in Mallimath's case (supra) did not agree with the said proposition and held that the expression "Government" used in proviso to Rule 3(b) has, therefore, to be construed in the wider sense and the services rendered by a Judge or Chief Justice of a High Court must be held to be a service in connection with the affairs of the Union. Mallimath's judgment (supra) has been followed by the Apex Court in Johnson's case (supra), and therefore the law laid down in Pratibha Bannerjea (supra) though not specifically overruled, cannot be applied as laying down the correct WA No.1008/2020 -:33:- proposition of law in the light of the later judgments in Mallimath (supra) and Johnson (supra). Once we have come to the conclusion that a retired High Court Judge was holding a pensionable post under the Union, as held in Mallimath's case (supra), S.15(b) of the 1954 Act shall apply to the fact situation, in which event, Part III of the First Schedule would apply, which reads as under:
"1. The provisions of this Part apply to a Judge who has held any pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I.
2. The pension payable to such a Judge shall be--
(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of a calculating that pension; and
(b) a special additional pension of 2 [Rs. 16,020] per annum in respect of each completed year of service for pension;
Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed `5,40, 000 per annum in the case of a Chief Justice and `4,80,000 per annum in the case of any other Judge."
Apparently, the proviso limits the pension to a particular level, which alone had been stated by the State in Ext.P5. WA No.1008/2020 -:34:-
25. As far as gratuity is concerned, S.17(3) of the 1954 Act, provides that the rules, notifications and orders in relation to an Officer of Central Civil Services Class I shall apply to a Judge of the High Court. The same controversy had arisen in the case of Mallimath (supra). The relevant portion is extracted hereunder:
"Though the conditions of Service Rules has no provision for payment of gratuity, but under Rule 10, the conditions of service of the Chairperson and Members for which no express provision is made in the Rules has to be determined by Rules and Orders for the time being applicable to the Secretary to the Government of India belonging to the Indian Administrative Service. By the aforesaid provision the All India Services (Death-cum- Retirement Benefits) Rules, 1958 applies also to the Members of the Commission in respect of matters for which there is no provision in the Conditions of Service Rules. Under the All India Service Rules, though it has been provided for payment of gratuity for the services rendered, but it has also been stated that no gratuity would be payable on re-employment, as provided under the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986. The stand of the petitioner is that the appointment as a Member in the National Human Rights Commission cannot be termed as re-employment, and therefore, he would be entitled to the gratuity for the period of service rendered by him as a Member, Human Rights Commission." ..................."The relevant provision of the said Death-cum-Retirement Benefits Rules is WA No.1008/2020 -:35:- extracted below:
"17. (1) Retiring pension and gratuity.--A retiring pension and death-cum-retirement gratuity shall be granted to a member of the service who retires or is required to retire under Rule 16."
* * * "Rule 14 of the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986 is quoted hereinbelow:
"14. Gratuity/Death/Retirement Gratuity.--Re-employed
officers shall not be eligible for any
gratuity/death/retirement gratuity for the period of re- employment except in those cases covered in Rules 18 and 19 of the Central Civil Services (Pension) Rules, 1972, and corresponding Rules of the Defence Services Regulations."
And the Apex Court held as under:
"The enabling provisions contained in Rules 16, 17 and 18 do not provide for payment of gratuity for a re-employed person. The President of India, however in supersession of all the earlier orders in relation to fixation of pay of re- employed pensioners, promulgated an order called the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986. The aforesaid Order applies to all the persons who are re-employed in civil services and posts in connection with the affairs of the Union Government, after retirement on getting pension, gratuity and/or contributory provident fund benefits. Rule 14 of the aforesaid Order, stipulates that re-employed officers shall not be eligible for any gratuity/death/retirement gratuity, for the period of re-WA No.1008/2020 -:36:-
employment, except in those cases covered in Rules 18 and 19 of the Central Civil Services (Pension) Rules, 1972. The petitioner's case is not covered under the aforesaid provisions of the Central Civil Services (Pension) Rules, 1972. Therefore, the question for consideration is whether the appointment of the petitioner as a Member of the Human Rights Commission would tantamount to re-employment. In the absence of any definition of the expression "re- employment" and applying the common parlance theory, the conclusion is irresistible that the said appointment would tantamount to "re-employment" and, therefore, for such period of service as Member of the Human Rights Commission, no gratuity would be payable."
26. In the case of the writ petitioner also, the post of Chairman of KAT is also a re-employment and the 1954 Act or any rules framed under the AT Act, does not contemplate payment of separate gratuity for a re-employed person.
27. In the light of the aforesaid discussion, we are of the view that the learned Single Judge was not justified in arriving at a conclusion that the Chairman and Members of the Tribunals both in the Central and State Administrative Tribunals are fully governed by the conditions of service mentioned under the 1954 Act, for the purpose of pension and gratuity. The Government was therefore justified in arriving at a conclusion that the current pension and pre-pension taken together should not exceed 50% WA No.1008/2020 -:37:- of the salary of the highest post the petitioner had held while in service, and the gratuity cannot exceed the maximum payable for the High Court Judges.
In the light of the aforesaid discussion, the appeal is only to be allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp True copy JUDGE
P.S. To Judge