UNION OF INDIA Vs. PRATIBHA BONNERJEA

JUDGEMENT

(1.) Two questions are raised in this appeal, namely, (i) the Central Administrative Tribunal had no jurisdiction to entertain the application and (ii) the Tribunal was wrong in holding that the pension admissible to the respondent as Vice-Chairman of the Tribunal had to be determined under Part I of the First Schedule to the High Court Judge (Conditions of Service) Act, 1954, hereinafter called 'the Act'. The brief facts which we are required to notice run as follows :

(2.) We do not propose to go into the question of jurisdiction as we deem it proper to settle the question of fixation of pension so that the first respondent is not driven from pillar to post. We will therefore, address ourselves to the question of pension admissible to the first respondent. We may at the outset refer to Rule 15 A of the Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairman and Members) Rules, 1985. It reads as under :

(3.) Thus the conditions of service and other perquisites available to the Vice-Chairman shall be the same as admissible to a 'serving judge' of a High Court. A serving judge of a High Court is entitled to pension under Chapter III of the Act. Section 14 says that every Judge, shall on retirement be paid a pension in accordance with the scale and provision in Part I of the First Schedule, provided he is not a member of the ICS or has not held any other pensionable post under the Union or State. Section 15 provides that every Judge who is not a member of the ICS but has held any other pensionable civil post under the Union or the State, shall on retirement be paid a pension in accordance with the scale and provision in Part III of the first Schedule. The provisions of Part I apply to a Judge who is not a member of the ICS or has not held any other pensionable civil post under the Union or a State and also apply to a Judge who, being the member of ICS or having held any other pensionable civil post under the Union or a State, has elected to receive the pension payable under the said Part. On the other hand the provisions of Part III apply to a Judge who has held any pensionable post under the Union or a State but is not a member of the ICS and who has not elected to receive the pension payable under Part I. The first respondent was a direct recruit from the Bar when she was appointed a Judge of the High Court and, therefore, on her retirement she became entitled to pension under Part I of the First Schedule. There is no doubt, so far as this aspect is concerned. When she was appointed a Vic-Chairman of the Tribunal she was already drawing pension as a retired High Court Judge. Therefore, the short question is whether her case would be governed by Part I or Part III of the First Schedule when she retired as Vice-Chairman of the Tribunal, The submission on behalf of the Appellant-Union is that since the first respondent was holding a pensionable post under the Union/State at the time when she retired as the Vice-Chairman of the Tribunal, her case would be governed by Part III and not Part I of the First Schedule. The first respondent was indisputably not a member of the ICS. Was he holding a pensionable post under the Union/State at the time when she retired as the Vice-Chairman of the Tribunal If she was holding a pensionable post under the Union/State, there can be no doubt that she would not be entitled to pension under Part I but would be entitled to pension under Part III of the First Schedule. That gives rise to the question whether a High Court Judge who is drawing pension can be said to be a person holding a pensionable post under the Union/State. If the answer is in the affirmative the first respondent would be entitled to pension under Part III, but if the answer is in the negative, she would be entitled to pension under Part I of the First Schedule to the Act. That is the moot question for consideration under Rule 15 A, extracted earlier. The pension has to be the same as admissible to "a serving Judge of a High court under. the Act and the Rules made thereunder".