Ajit Kumar Pande v. Union of India

5. The aforesaid statutory provision makes it very clear that 10 years practice as an Advocate is a mandatory qualification and the petitioner/ appellant – as he was having 10 years of experience as a practicing Advocate, was appointed to the post of Member (Judicial) on 20.04.2015.

6. The appellant/ petitioner – after his retirement, made a claim for counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service rendered by him as Member (Judicial) of RCT. He placed reliance on the judgment delivered by a Division Bench of this Court in LPA 286/2019 titled Union of India & Another Vs. Shanker Raju; and a judgment delivered by the Hon’ble Digitaaly Supreme Court in Govt. of NCT of Delhi and Others Vs. All India Young Lawyers Association (Regd.) & Another, (2009) 14 SCC 49.

7. On 20.04.2020, the appellant/ petitioner submitted a representation to the Chairman of the RCT with a request to add 10 years practice as an Advocate towards qualifying service for the purpose of calculation of pension and gratuity. A request was made to issue the Pension Payment Order (PPO) only after adding 10 years practice as an Advocate at Bar. The request of the appellant/ petitioner was not accepted by the Chairman, RCT and the Chairman forwarded the representations of the appellant/ petitioner to the Railway Board. On 04.08.2020, the Joint Director, Railway Board informed the appellant/ petitioner that under the RCT Rules, there is no provision for payment of gratuity and also informed that 10 years of practice period cannot be taken into account for the purpose of calculating pension as there is no such Rule which entitles the appellant/ petitioner for taking into account the period of practice of 10 years for computing qualifying service. Meaning thereby, the request of the appellant was rejected by the respondents, and in those circumstances, the writ petition was preferred before the learned Single Judge.

8. The appellant/ petitioner contended before the learned Single Judge that he is entitled to pension and he is also entitled for taking into account 10 years of practice as an Advocate for computing the qualifying service. To bolster his contentions, the appellant/ petitioner stated before the learned Single Judge that Section 5(3)(a) of the Act of 1987 provides that a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be, a Judge of a High Court. The appellant/ Digitaaly petitioner also stated before the learned Single Judge that Article 217(2)(b) of the Constitution of India provides that a person can be appointed as a Judge of a High Court in case he is having 10 years of practice at Bar. Heavy reliance was placed upon the judgment in Shanker Raju (supra) and All India Young Lawyers Association (supra) for the purpose of taking into account 10 years of practice at Bar for calculation of qualifying service.

9. The respondents before the learned Single Judge have denied the claim of the appellant/ petitioner and the respondents submitted that the issue of pension vis-à-vis the appellant’s claim is specifically governed by Rule 8 of the Rules of 1989 and is subject to the terms & conditions of his appointment letter. Insofar as reliance placed on the judgments in Shanker Raju (supra) and All India Young Lawyers Association (supra) is concerned, it was contended that no relief can be granted to the appellant/ writ petitioner as the judgments were delivered in respect of separate class of persons/ officers, i.e. the Delhi Higher Judicial Service (DHJS) and the Judicial Members attaining superannuation after serving the Central Administrative Tribunal (CAT). It was argued before the learned Single Judge that Members of the CAT are governed by different set of Rules and the Members of the RCT are governed by different set of Rules.

10. The learned Single Judge did not agree with the contentions of the writ petitioner and the writ petition was dismissed by the learned Single Judge. The relevant extract of the order passed by the learned Single Judge – which is contained in paragraphs 14 to 21, read as under:

15. From the above, it is clear that the Supreme Court, while upholding the grant of benefit for counting the period of practice put in at the Bar by an Advocate has directed that 10 years of practice be given to a direct recruitee, who joins the service and has worked minimum for a period of 10 years in the Digitaaly service before retiring. I may state here that joining the service between the ages of 35 to 45 years, a DHJS Officer puts in at least 15 years of service before demitting the office, which is not the case here, since the appointment of the petitioner was only for a period of five years and upon completion of five years, he demitted the office. This plea, that he being qualified to be a High Court Judge, was appointed as Member (Judicial) and as such 10 years of practice at the Bar need to be counted for the pension is unmerited for the reason that the pension as a Member (Judicial) shall still be governed by the Rules of 1989 which have been implemented in his favour and he is drawing pension. In any case, the judgment of the Supreme Court was concerning Officers of the DHJS, which is not the case here.

16. The reliance placed by the petitioner on the judgment of Shankar Raju (supra) is also of no help to the petitioner. Mr. Jagjit Singh is right in contending that the Administrative Tribunals Act, 1985 was amended to bring the conditions of service for Member (Judicial) in CAT at par with the Judges of the High Court. The issue before the Division Bench of this Court in Shankar Raju (supra) was whether the benefit of the amendment which was brought about on February 19, 2007, should also be given to the Member (Judicial), who was appointed before that date from the Bar. The argument on behalf of the Union of India was that there are two classes of Member (Judicial) in the CAT, those appointed prior to February 19, 2007, and those appointed thereafter, and therefore they cannot be treated at par for grant of pension. This plea was negated by this Court in paragraphs 21 and 22 wherein the Court has held as under:-

17. Finally, this Court in paras 29 and 30 has held as under:-

18. In view of the aforesaid conclusion of the High Court, the petitioner cannot seek the benefit of the judgment in the case of Shankar Raju (supra).

19. That apart, Mr. Jagjit Singh has, during his submissions drawn my attention to the judgment of the Supreme Court in Madras Bar Association v. Union of India, W.P.(C) NO. 804/2020, rendered on November 27, 2020, wherein the Supreme Court while considering the Tribunal Rules of 2020, which were notified on February 12, 2020, held Chairpersons, Vice-Chairpersons and Members of the Tribunals appointed prior to February 12, 2020, shall be governed by the parent Statutes and Rules as per which, they were appointed. Digitaaly

20. It is an admitted case of the petitioner that he was appointed prior to February 12, 2020. If that be so, the terms and conditions of appointment of the petitioner as Member (Judicial) RCT shall necessarily be governed under the Rules of 1989 which have been implemented in his favour.

21. In view of my above discussion, the petitioner is not entitled to any relief. The petition is dismissed. No costs.”

11. This Court has carefully gone through the statutory provisions as contained in the Act of 1987 and the Rules framed thereunder as well as the judgments in the cases of Shanker Raju (supra) and All India Young Lawyers Association (supra).

12. This Court has also heard learned counsel for the parties at length on the grounds raised in the present appeal.

13. The undisputed facts of the case reveal that the limited controversy which requires consideration of this Court is: “whether the period of 10 years at Bar preceding the appellant’s appointment as a Member (Judicial) of the RCT, is to be calculated for the purpose of payment of pension to the appellant, or not”.

14. The learned Single Judge has dismissed the writ petition holding that the pensionary provisions applicable to the appellant/ petitioner are governed by the Rules of 1989. The substance and essence of the impugned judgment is that in the presence of specific Rules to this effect, the appellant/ petitioner cannot seek payment of pension in the manner which is different from the one prescribed by the Rules of 1989.

15. This Court has carefully gone through the judgments in Shanker Raju (supra) and All India Young Lawyers Association (supra). Insofar as Shanker Raju (supra) is concerned, the Hon’ble Court had adjudicated the Digitaaly matter in the context of Judicial Members of the CAT. The issue in that matter had been “whether adding of 10 years of experience at Bar for computation of pension for Judicial Members of the CAT after a cut-off date was reasonable”. The Hon’ble Court had held that the Judicial Members of the CAT being a class in itself, by introducing a cut-off date, two classes were being formed within a class, which was impermissible. The issue is not at all related to the issue in hand, and in any event, Members of the CAT are governed by a different set of Rules specifically applicable to them.

16. So far as the judgment delivered in All India Young Lawyers Association (supra) is concerned, the judgment was delivered by the Hon’ble Supreme Court in the context of the DHJS which is governed by a specific set of Rules. In the present case, the learned Single Judge has rightly differentiated between DHJS and RCT as two separate class of service. In All India Young Lawyers Association (supra), the Hon’ble Supreme Court upheld the benefit of adding practice years to a direct recruitee, who joins the service and has worked minimum for a period of 10 years in the service before retiring. The appellant’s appointment in the present case was for a limited period of 5 years, and after completion of 5 years, the appellant demitted the office.

17. The appellant/ petitioner has placed reliance on a judgment in Madras Bar Association Vs. Union of India, W.P.(C.) No. 804/2022 decided by Hon’ble Supreme Court on 27.11.2020. The Hon’ble Supreme Court was dealing with the Tribunal Rules, 2020 which were notified on 12.02.2020. The Hon’ble Supreme Court in the said case has held that Chairpersons, Vice-Chairpersons and Members of the Tribunal appointed prior to Digitaaly 12.02.2020 shall be governed by the parents Statutes and Rules as per which they were appointed. In the present case, the appellant/ writ petitioner was appointed prior to 12.02.2020, and therefore, the terms & conditions of appointment of the appellant/ petitioner as Member (Judicial) of RCT shall certainly be governed under the Rules of 1989 and the same has already been implemented in his favour.

18. In the considered opinion of this Court, the learned Single Judge was justified in holding that the appellant/ petitioner shall not be entitled for adding 10 years of practice period as an Advocate as there is no such provision under the Act of 1987 and the Rules framed thereunder in 1989.

19. This Court does not find any reason to interfere with the impugned order, and therefore, the appeal is devoid of any merit. The same is dismissed accordingly. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE (SUBRAMONIUM PRASAD)