High Court Judges Can't Be Discriminated Based On Source Of Appointment, All Entitled To Same Service Benefits: Supreme Court

The Supreme Court today (November 5) held that High Court Judges elevated from the district judiciary would be entitled to service conditions at par with those judges appointed from the bar and that the Constitution does not differentiate between the High Court Judges on the basis of the source of their recruitment. The bench comprising the Chief Justice, DY Chandrachud and Justices JB Pardiwala and Manoj Misra was hearing the batch of matters relating to the pending release of salaries of Patna High Court Judges. Some sitting High Court Judges have approached the Top Court as their salary has not been released due to the closure of the General Provident Fund (GPF) accounts. The complication arose after the NPS contributions were transferred to the GPF accounts given to them after they were appointed High Court judges. The accountant general sought clarification from the Ministry of Law and Justice regarding the legality of transferring New Pension Scheme (NPS) contributions to GPF accounts. The present challenge has been to the letter dated December 13, 2022 from the Under Secretary by GOI in Department of Union Ministry of Law and Justice which directed the withholding of the GPF accounts since the petitioners were borne under the NPS. During the last hearing, the Court was informed that High Court judges elevated from the district judiciary under the New Pension Scheme were to get less pension and provident fund benefits compared to their colleagues who are elevated from the bar.The Court observed that no provision for differential treatment is meted out 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 deem it necessary to appoint"."High Courts are constitutional institutions recognised by Art. 216. Article 216 doesn't make any distinction between the source from which HC judges are recruited" The Court clarified that once appointed to the High Court, every judge ranks at par. The institution of the High Court comprises the totality of the CJ and all other judges appointed to the Court. Once appointed, no distinction can be made for the salaries and other allowances. It was stressed that all High Court Judges formed a single unified 'homogenous class'. "The sources from which HC judges are appointed have no bearing on the fact that once appointed to HC they constitute a homogenous class." Dissecting Article 221 of the Constitution, the Court noted that a conscious decision was made by the framers of the constitution to depart from the Government of India Act 1935 in which the salaries, and allowances were to be determined by the provincial legislature. As per the original draft, the salaries and allowances were to be determined as per Schedule II, which was later changed during the course of discussion amongst the framers. The words - the legislature of the state- were substituted by "Parliament" as a consequence of this, the Constitution did not leave it to the wisdom of the state to determine the salaries of the HC judges. The Court thus held that "it is not within contemplation of the Constitution that the payment of salaries and pensions during and after service should be left at the vagueries of the States."The Court, while holding above, quashed the impugned letter dated December 13, 2022 and passed the following directions : (i) The High Courts are constitutional institutions and upon appointment as judges of the High Court, all judges, irrespective of the source from which they are drawn, partake the character of holders of constitutional offices in equal measure;(ii) Neither Article 221(1) of the Constitution which empowers Parliament to determine the salaries of the Judges of the High Court nor Article 221(2) which empowers Parliament to determine the allowances and rights in respect of the leave of absence and pension permits discrimination between judges of the High Court based on the source from which they are drawn;(iii) Article 217 of the Constitution specifies distinct sources of recruitment for judges of the High Court from the district judiciary or, as the case may be, the Bar. But once appointed to the High Court, all judges form one homogenous class of constitutional office holders;(iv) Judicial independence is a part of the basic structure of the Constitution and there is an intrinsic relationship between financial independence of judges and judicial independence;(v) The significance of provisions pertaining to the guarantee of service conditions, while in service and post retiral benefits for judges is evidenced by the fact that the salaries and allowances of sitting judges and the pensions of retired judges are in the nature of a charge on the Consolidated Fund of the State and the Consolidated Fund of India respectively;(vi) Any determination of the service benefits of sitting judges of the High Court and the retiral benefits which are payable to them including pension, must...

High Court Judges Can't Be Discriminated Based On Source Of Appointment, All Entitled To Same Service Benefits: Supreme Court

Anmol Kaur Bawa

Once appointed to the High Court, all judges constitute a homogenous class of constitutional officeholders, the Supreme Court held.

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