S S SANDHAWALIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a former Chief Justice of this Court and later of Patna High Court. He retired from there on July 27, 1987. Having settled all matters that appeared before him during his illustrious career of about two decades (May, 1968 to July 27, 1987) as a Judge, he himself is pushed into the area of litigation more on account of don't care attitude of the authorities concerned than any thing else. He is aggrieved by the actions of the respondents in- i) not releasing the full amount of gratuity due to him; ii) not including various allowances that he was drawing just prior to his retirement while computing the cash equivalent of leave due to him; iii) not paying the amount payable to him under S.22-B of the High Court Judges (Conditions of Service) Act, 1954 (for short, the 1954 Act); and iv) not deciding or sanctioning his case for reimbursement of medical charges. It may, however, be stated here that since the filing of this petition, the grievances specified at (i) and (iv) above have been settled and the respondents have almost discharged their liability. The marginal reliefs that are still being claimed in this regard would be discussed towards the end of this judgment, i.e., after the conclusion of the other two much debated issues specified at (ii) and (iii) above.

(2.) What is payable to a Judge of the High Court is specified in Art.221 of the Constitution of India which reads as under:-

(3.) Further what is of still greater significance in this proviso is that these rights as provided for by the Parliament are not only to be determined in the light of his date of retirement but in the light of the date of appointment also. This is so because of the last words of the proviso, i.e., "after his appointment". It may be that subsequent to his appointment as a Judge some more rights or benefits are made available to him by the Parliament, yet once these are so allowed, cannot be varied or altered to his disadvantage under any circumstances. This proviso immunises these rights against any Government direction that may be to the disadvantage of a Judge. The right to pension or allowances obviously includes not only their quantum but also their mode of payment, time of payment, place of payment and the remedies for the enforcement of these rights within the territory of India. The words "right in respect of" clearly bear out this inclusiveness of the expression. This is more so in the case of the petitioner who initially was elevated to the Bench of this Court and then appointed as Chief Justice of this Court before his transfer as such to the Patna High Court. By then he had concededly earned the statutory right to full pension and other ancillary benefits including medical facilities, etc. on account of his long tenure of 151/2 years in this Court. He cannot possibly be divested of these vested rights merely on account of the fortuitous circumstance of his transfer to Patna. The factum of his permanent Judgeship in this Court cannot possibly be obliterated by an order of compulsory transfer under Art.222 of the Constitution. As a matter of fact it is not even the case of the respondents that this transfer disturbed his original seniority or other rights in any manner. Rather this transfer was ordered after taking into account the service rendered by him in this Court. That is how he was appointed as Chief Justice of that Court. Further, the ordinary dictionary meaning of the word 'disadvantage' occurring in this proviso, is detriment or the loss or injury to 'interest'. It is, therefore, patent that no authority can alter or change these rights vested in a Judge at any time subsequent to his appointment or after the date of the grant or the vesting of these rights. A similar interpretation was put on this proviso by a Full Bench of Allahabad High Court in B. Malik v. Union of India, AIR 1970 All 268. We respectfully follow the rationale adopted in that judgment. As has been pointed out therein, this proviso has to be given a broad construction not merely because it is part of the constitution but because it is designed to secure a historic social interest in a democratic society. The social interest lies in the independence of Judges from men and their government so that they may dispense with fearless and favourless justice between man and man and between man and the government. It need hardly be emphasised that to achieve this objective they have to be granted complete economic security. This proviso fixes these rights definitely at the time of the appointment of a Judge and insulates the same from subsequent impairment.