Karnataka HIgh Court has held that 'New Pension Scheme' for judicial officers appointed post April 1, 2006, cannot be made mandatory by the government and it will be optional for the state cadre judicial officers to opt for the same.
A bench of Chief Justice Abhay Oka and Justice Mohammad Nawaz while deciding bunch of petitona filed by the Karnataka State Judicial Officers Association and 87 judicial officers, challenging the Notification, dated March 31, 2006 issued by the State Government for introducing 'New Defined Contributory Pension Scheme' (for short, 'the New Pension Scheme') with effect from 1st April 2006 and the said scheme is made operational from April 1, 2010. The scheme provided for employees' contribution of 10% of the basic pay and dearness allowance (DA) with the matching contribution from the State Government. The new pension scheme is sought to be applied to the Judicial Officers, appointed on or after 1st April 2006.
It has restrain the State Government from applying the said the new pension scheme to the Judicial Officers without their consent in writing. No deductions from the salaries of the Judicial Officers shall be made on the basis of the aforesaid Government Orders. Further directed that the State Government, through its Law and Justice Department, shall call upon all the Judicial Officers who have been appointed on or after 1st April, 2006 to submit their option/consent in writing to opt for 'the new pension scheme' as per Government Order dated 31st March 2006. Such option shall be invited within a period of four weeks, by granting time to the Judicial Officers to exercise their option by 31st January 2020.
In case of Judicial Officers who do not opt for the new pension scheme, the State Government shall refund the amount already deducted from their respective salaries, refund shall be made on or before end of February 2020.
Senior advocate K. Shashi Kiran Shetty argued for the petitioners:
The pay of the Judicial Officers is governed by the Orders of the Apex Court accepting both the reports with modifications and therefore, the act of applying the new pension scheme which requires 10% deduction from the salary of the Judicial Officers is completely in gross violation of the directions issued by the Apex Court. Moreover, by erroneously equating the services of the Judicial Officers with that of civil servants, the new pension scheme was applied to the Judicial Officers by the State Government. It is also pointed out that the payment of pension to the Judicial Officers is strictly governed by the Judicial Pay Commissions' recommendations and therefore, introducing the new pension scheme and applying the same to the Judicial Officers is contrary to the directions issued by the Apex Court and it is completely illegal.
Additional Advocate General R. Subramanya argued:
The payment of pension is concerned, the Judicial Officers are equivalent to the Government Servants except to an extent of certain modifications made by the first and second National Judicial Pay Commissions. He submitted that the recommendations of the second National Judicial Pay Commission were made after introduction of the new pension scheme by the State Government. However, the Pay Commissions report is silent about the applicability of the new pension scheme to the Judicial Officers. His submission is that as the Karnataka Judicial Service (Recruitment) Rules, 2004 were made in exercise of powers under Article 309 read with 233, 234 and 235 of the Constitution of India, the Judicial Officers are civil servants. He submitted that in the said Rules 2004, the word 'service' has been defined as 'Karnataka State Judicial Services' and, therefore, all the rules regulating conditions of service of the members of the State Civil Service are applicable to the Judicial Officers as well. He pointed out that the new Defined Contributory Pension Scheme was introduced by the Central Government after considering the reports from the experts and in terms of the said scheme, the State of Karnataka has framed the new pension scheme.
Rejected the primary argument that the State Government is that the Judicial Service is also a civil service. By relying on the decision of The Apex Court, in the case of All India Judges' Association and others –vs- Union of India and others. In which it is held that "The judicial service is not service in the sense of 'employment'. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature."
In regards to the argument that "As the recommendations of Justice Padmanabhan Commission were accepted long after the decision of the State Government of introducing the new pension scheme made applicable to the government servants appointed after 1st April 2006, and as the Apex Court has not said anything about the applicability of the scheme, the same remains unaffected.
Justice Oka said "This contention is fallacious. The State of Karnataka which was before the Apex Court ought to have raised such a contention before the Apex Court. If really the State of Karnataka intended to apply the said new pension scheme even to the Judicial Officers, there was no legal impediment in the way the State Government raising such contention before the Apex Court. On the contrary, the order dated 26th July 2010 which records acceptance of the recommendations of the Second Pay Commission including the recommendations in respect of pension, notes that none of the States had any objection for passing the said order. Therefore, applying the different yardsticks for payment of pension to the Judicial Officers appointed on or after 1st April 2006 will be directly contrary to and in breach of the directions of the Apex Court. The State Government, without seeking the permission of the Apex Court, has no power to tinkle with the quantum of the salaries and pension payable to the Judicial Officers."
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