Whether a Judicial Member of CAT is entitled to get the Pension refixed reckoning 10 years of Bar Practice [Case Law]

Administrative Tribunals Act, 1985 - Central Administrative Tribunal (salaries and allowances and conditions of service of Chairman, Vice Chairman and Members) Rules, 1985 - Whether a Judicial Member of the Central Administrative Tribunal, who was appointed in the year 1989 and demitted office in the year 1994, is entitled to get the pension refixed reckoning 10 years of bar practice ?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.V. ASHA, J.

W.P(C) No.32047 of 2017-E

Dated this the 5th day of April, 2018

PETITIONER

N. DHARMADAN, RETD.JUDICIAL MEMBER, CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, SENIOR ADVOCATE, RESIDING AT 'REMA MAHAL', CHITTOOR ROAD, KOCHI-18.

BY ADVS.SRI.S.MUHAMMED HANEEFF SRI.M.H.ASIF ALI 

RESPONDENT(S)

1. UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PERSONAL PUBLIC GRIEVANCE AND PENSION, DEPARTMENT OF PERSONAL AND TRAINING (AT) DIVISION, IIIRD FLOOR, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110001.

2. PAY AND ACCOUNTS OFFICER, PAY AND ACCOUNTS OFFICE, CENTRAL ADMINISTRATIVE TRIBUNAL, M/O.PERONAL PUBLIC GRIEVANCES AND PENSION, C-1 HUTMENTS DALHOUSIE ROAD, NEW DELHI-110001.

3. DY. REGISTRAR, CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, 61/35, COPERNICUS MARG, NEW DELHI-110001.

BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

JUDGMENT

Whether a Judicial Member of the Central Administrative Tribunal, who was appointed in the year 1989 and demitted office in the year 1994, is eligible for the benefit of the judgment in Ramakrishna Raju v. Union of India 2014 (2) KLT 218(SC) and entitled to get the pension refixed reckoning 10 years of bar practice, is the issue which arises for consideration.

2. The petitioner was appointed as a Judicial Member of Central Administrative Tribunal on 10.7.1989, while he had been practising as an Advocate since 19.8.1959. The appointment of the Judicial Members of the Central Administrative Tribunal (hereinafter referred to as `CAT”) is governed by Section 6 of the Administrative Tribunals Act, 1985 (hereinafter referred to as 'the Act'). At the time of appointment of the petitioner, (prior to the amendment to the Act in 2007) Subsection 3 of Section 6 of the Act, which provided for the qualification of Judicial Member read as follows.

“6. Qualifications for appointment of Chairman, Vice-Chairman or other Members.— xxxx

(3) A person shall not be qualified for appointment as a Judicial Member unless he— 

a) is, or has been, or is qualified to be, a Judge of a High Court; or 

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.” 

As per Subsection 4 and 5, the appointment of a Judicial Member in CAT is to be made by the President after consultation with the Chief Justice of India. After the amendment to the Act by Act 1 of 2007, the qualification for appointment of a Judicial Member is governed by clause (b) of Subsection 2 of Section 6, which read as follows: 

“Section 6. Qualifications for appointment as Chairman, Vice-Chairman and other members: (1) xxx (2) A person shall not be qualified for appointment,— 

(a) xxxx 

(b) as a Judicial Member, unless he is or qualified to be a Judge of a High Court or he has for at least two years held the post of a Secretary to the Government of India in the Department of Legal Affairs or the Legislative Department including Member-Secretary, Law Commission of India or held a post of Additional Secretary to the Government of India in the Department of Legal Affairs and Legislative Department at least for a period of five years.

3. Even after the amendment in 2007, the qualification for those to be appointed from among the members of the Bar or from among the Judicial Officers continues to be the same; that is he should be or should be qualified to be a Judge of the High Court. In other words, for appointment as a Judicial Member of an Administrative Tribunal and for the appointment as a Judge of a High Court, from among members of the Bar, one should have not less than 10 years' practice as an Advocate. Under Section 8 of the Act, the term of appointment of a Member is for 5 years which can be extended by another 5 years, provided no member can continue beyond the age of 62 years. By Act 1 of 2007, subsection 3 was added to Section 8 by which the conditions of service of the Chairman and Members were made as applicable to the Judges of the High Court. Section 10 of the Act empowered the Central Government to make rules governing the conditions of service including pension, gratuity and other retirement benefits of the Chairman, Vice Chairman and Members of the Administrative Tribunals. Government framed the Central Administrative Tribunal (salaries and allowances and conditions of service of Chairman, Vice Chairman and Members) Rules, 1985 (hereinafter referred to as `1985 Rules' for short). Rule 8 which deals with pension read as follows: 

“8. Pension:--(1) Every person appointed to the Tribunal as the Chairman, a Vice-Chairman or a Member shall be entitled to pension provided that no such pension shall be payable: (i) if he has put in less than two years of service; (ii) if he has been removed from an office in the Tribunal under sub-section (2) of Sec.9 of the Act.

(2) Pension under sub-rule (1) shall be calculated at the rate of rupees one thousand four hundred and fifty per annum for each completed year of service: Provided that the aggregate amount of pension payable under this rule together with the amount of any pension including commuted portion of pension, if any, drawn or entitled to be drawn while holding office in the Tribunal shall not exceed the maximum amount of pension prescribed for a Judge of the High Court.” 

Under Rules 15 and 15A of the 1985 Rules, the conditions of service and other perquisites of Chairman and Vice Chairman of CAT were the same as admissible to a serving Judge of a High Court as contained in the High Court Judge (Conditions of Service) Act, 1954 and High Court Judges (Travelling Allowances) Rules. Rule 15 and 15A do not deal with the conditions of service of the Members. Rule 16 provided the following: 

“16. Residuary Provisions: The conditions of service of Chairman, Vice Chairman and other Members for which no express provision is available in these Rules shall be determined by the rules and orders for the time being applicable to a Secretary to government of India belonging to the Indian Administrative Service.” 

4. The appointments are made in consultation with the Chief Justice of India by the President. Section 8 was also substituted and as per sub section 3 of Section 8 it was provided that the conditions of service of Chairman and members shall be the same as applicable to Judges of the High Court. Section 8 prior to and subsequent to the Amendment Act, 2006 are as follows: Section 8 before substitution: 

“Term of office:-- The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five yaers: 

Provided that no Chairman, Vice-Chairman or other Member shall hold office as such after he has attained,-- 

(a) in the case of the Chairman or Vice-Chairman, the age of sixtyfive years, and 

(b) in the case of any other Member, the age of sixty-two years.” 

Section 8 after substitution: 

“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 years from the date 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.” 

Consequent to this the Rules were amended by notification issued on 22.7.2009 revising the pension from Rs.7074 per annum as 14,530 per annum w.e.f 1.1.2006. The amendment came into force on 19.2.2007 on publication in gazette dt.19.2.2007. The said amendment was introduced with a view to implement the recommendations of the 6th pay commission regarding the Central Government Employees' pension as the Central Government decided to revise the pension of the Chairman, Vice Chairman and members who were appointed before 19.2.2007 w.e.f 1.1.2006.

5. The petitioner submits that he has been getting pension as in the case of High Court Judges.

6. In the case of High Court Judges, the Apex Court in Ramakrishna Raju's case (supra ) held that the High Court Judges who are appointed from the Bar under Article 217 (2)(b), on retirement would be entitled for an addition of 10 years to their service for the purpose of their pension. The Apex Court was considering a case filed by former Judges of High Courts seeking directions to take into account the number of years of their practice as Advocate for the purpose of determining maximum pension under Part 1 of First Schedule to the High Court Judges (Salaries and Conditions of service) Act, 1954. In the case of Judges elevated from the State Judicial service they are getting full pension despite the fact that their service as High Court Judges was limited to two or three years as the entire service rendered by them before their elevation is added to their service. The Apex Court found that the High Court Judges are appointed from among members of the Bar who have held the office as Advocates at least for 10 years. A District Judge is appointed from the Bar when he has not less than 7 years practice as Advocate. Under the Rules relating to payment of pension to High Court Judges , in order to receive full pension he should have completed 12 years of service as a Judge of a High Court. Seeing that generally members of the Bar are offered the post of High Court Judge at the age of and above 50 years at the prime of their practice it was held that the restriction of pension without referring to the number of years of practice would amount to discrimination. In para.24 it was held that when persons who occupy the constitutional office of the Judge retire there should not be any discrimination with regard to fixation of pension and that irrespective of the source from which the Judges are drawn they must be paid the same pension as they have been paid same salary and allowances and perks as serving Judges, observing that only eminent Advocates are offered Judgeship and the financial sacrifice which would be faced by a successful lawyer while accepting Judgeship it was found that it would only be reasonable to reckon their experience at the Bar for the purpose of pension. It was declared that for pensionary benefits 10 years' practice as an Advocate be added as their qualifying service for Judges elevated from the Bar. It was further directed in para.29 that in order to remove arbitrariness in the matter of pension of the Judges elevated from the Bar, the 10 years' experience shall be reckoned w.e.f 1.4.2004, the date on which Section 13A was inserted, of the High Court and Supreme Court.

7. According to the petitioner, the salary of a judicial member was equal to that of a High Court Judge. He was also getting pension as admissible to a High Court Judge eversince the retirement. In the light of the judgement in Ramakrishna Raju's case (supra) the petitioner submitted a representation seeking the benefit of the said judgment requesting to fix his pension after adding 10 years' of practice treating his total service as 15 years and to grant him the arrears from 9.9.1994. W.P(c)No.30170/2014 was filed thereafter which was disposed of as per Ext.P2 judgment with a direction to consider the representation. But as per Ext.P6 letter, the request was rejected on the ground that the petitioner's tenure as Judicial Member in CAT was from 10.7.89 to 9.7.1994 and during that period his service conditions were covered by the Rules 1985. It was further stated that the service conditions of the members of CAT were made equivalent to Judges of High Court only w.e.f 19.2.2007 as per the amendment Act, 2006. Therefore, the Judicial Members appointed from the Bar on or after 19.02.2007 can only be considered for grant of pensionary benefit in the light of the judgment in Ramakrishna Raju's case. The petitioner submits that in fact a clarification was sought by the Government of India from the Principal Bench of CAT in respect of the application of the judgment in Ramakrishna Raju's case regarding the addition of 10 years qualifying service. A number of clarifications were sought in the matter for consideration as contained in Ext.P3 letter dt.12.11.2015. The CAT as per Ext.P4 furnished certain clarifications to the Government. However, as per the clarifications it was stated that the pension in the case of the judicial members appointed from the Bar was calculated according to the qualifying service as per Section 9 of the First Schedule of High Court Judges (Conditions of Service) Act, 1954. However, prior to the amendment in the case of the members retired from the CAT, pension was calculated as per the provisions of the 1985 Act and after the 2006 amendment w.e.f 19.2.2007 the pension of the Chairman and members are calculated as per the First Schedule of Act, 1954. The benefits which would be available to the petitioner on addition of 10 years of service towards pension was furnished in Ext.P4 letter. As per the notification issued in 2009 amending the 1985 Rules, the pension of the members was revised to Rs.14532/-. The petitioner therefore submits that even as per the clarification given in Ext.P5(a), he is eligible for the pension as applicable to the High Court Judges. It is also his case that there cannot be any classification on the basis of the date of appointment as judicial member for the purpose of pension.

8. The respondents have filed a statement. According to which, the conditions of service of the judicial members appointed before 19.2.2007 were not made applicable to the High Court Judges. Since the petitioner's appointment was between 1989 and 1994, his request for pension adding bar practice cannot be accepted. It is further stated that the Rules 1985 would be revised in due course as it was revised in the year 2009. As at present Section 8(3) of the Act made the conditions of service of the members of CAT as applicable to Judges of the High Court and members appointed after 19.2.2007 are covered under the 1954 Act, the petitioner being a member appointed before 19.2.2007 is not eligible for the benefits admissible to those appointed after 19.2.2007. It is stated that as per Section 10 of the Act the salaries and allowances including pension, gratuity and other retirement benefits of the Chairman and other members shall be as prescribed by the Central Government. As per Section 10A, the Chairman, Vice Chairman and Member of the Tribunal appointed before commencement of the Amendment Act, 2006 shall continue to be governed by the provisions of the Act, and the rules made thereunder, as if the amended rules had not come into force. Therefore, it is stated that the service conditions of the petitioner would continue to be governed by the provisions which existed prior to the amended Act, 2006 and therefore the petitioner is not entitled to the benefit of Ramakrishna Raju's case.

9. The question to be considered is whether there can be a classification between the members for the purpose of pension reckoning the bar service. It is settled law in the light of D.S.Nakara v. Union of India [AIR 1982 SC 130] that there cannot be any invidious classification, on the basis of a cut off date. Though the Rules were applicable at the time of the appointment of the petitioner and till his demitting of office, the qualification prescribed for appointment of judicial member continues to be the same ever since the administrative Tribunals were established under the 1985 Act. Section 10 A cannot stand in the way of extending the benefit of the judgment in Ramakrishna Raju's case. The insertion of Section 10A can only be to protect the service conditions of those who were appointed before the insertion. It cannot be interpreted to deny a benefit which is available to the Members who got appointment from the bar as in the case of High Court Judges. Even though the salary was prescribed as per different rules the petitioner continues to get the pension and pensionary benefits as applicable to High Court Judges. In the case of applicability of the judgment in Ramakrishna Raju's case when all the High Court Judges are eligible to get their pension fixed from 1.4.2004, it cannot be said that that benefit cannot be extended in the case of the petitioner just because he happened to be appointed before 19.2.2007. The cut off date fixed for the purpose of the extension of the benefit of the judgment is therefore unreasonable and arbitrary.

Ext.P6 order is therefore set aside. It is declared that the petitioner would be entitled to get 10 years of his Bar practice along with his service as Judicial Member for the purpose of pension w.e.f 1.4.2004, as in the case of those judicial members appointed after 19.2.2007 and in the case of High Court Judges. The respondents shall take steps to revise the pension due to the petitioner accordingly, within four months.

The writ petition is accordingly allowed.