K. SREEDHAR RAO versus UNION OF INDIA THROUGH SECRETARY, MINISTRY OF LAW & JUSTICE, NEW DELHI on 6 September 2019

[2019] 12 S.C.R. 81

K. SREEDHAR RAO

v.

UNION OF INDIA THROUGH SECRETARY,MINISTRY OF LAW & JUSTICE, NEW DELHI

(Writ Petition (C ) No. 300 of 2016)

SEPTEMBER 06, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

High Court Judges (Salaries and Conditions of Service) Act,1954 – rr. 2 and 7 of Part-I of First Schedule – Pensionary benefitsof retired Acting Chief Justice of the High Court – Calculation of –Petitioner served as an Acting Chief Justice of the High Court for14 months and retired in that capacity – Petitioner claimed thepensionary benefits as available to the Chief Justice of the HighCourt – The said claim was declined by the Central Government –Writ petition before the Supreme Court – Held: There is a cleardistinction between a Judge appointed as an Acting Chief Justiceu/Art. 223 of the Constitution and a Chief Justice appointed u/Art.217 of the Constitution – It is only for the limited purpose of salary,such an Acting Chief Justice is treated at par with the Chief Justiceand not for any other purpose, more particularly the pension –However for the purposes of pension, r. 2 and r. 7 of Part I of theFirst Schedule of the 1954 Act are required to be read conjointlyand while making the computation of pension u/r. 2 of Part I of theFirst Schedule, the service rendered as an Acting Chief Justice isrequired to be considered as a Chief Justice and accordingly hispension is required to be counted and for that period his pension isrequired to be computed as if he has rendered service as Chief Justice– In the instant case, the services rendered by the petitioner as anActing Chief Justice was for a period of 14 months and the same isto be counted/calculated as that of the Chief Justice – Therefore,the petitioner is not entitled to the pensionary benefits includingthe ceiling in the pension which may be available to a retired ChiefJustice, but only for the period of service rendered by him as anActing Chief Justice is required to be considered as service renderedas a Chief Justice for the purpose of computation of pension –Constitution of India – Arts. 217 and 223 – Judiciary – ServiceLaw – Pension.

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ADismissing the writ petition, the CourtHELD: 1. It is required to be noted that there is a cleardistinction between a Judge appointed as an Acting Chief Justiceunder Article 223 of the Constitution of India and a Chief Justiceappointed under Article 217 of the Constitution. ConsideringBArticle 223 of the Constitution of India, it can be seen that aJudge of the High Court is appointed as an Acting Chief Justiceunder Article 223 of the Constitution for the purposes of theduties of the Chief Justice and the office of the Chief Justiceremains vacant. In a case where the office of the Chief Justice ofCthe High Court is vacant, the duties of the office of the ChiefJustice will be performed by any other Judge as Acting ChiefJustice. Therefore, only for the limited purpose of salary, suchan Acting Chief Justice is treated at par with the Chief Justiceand not for any other purpose, more particularly the pension.DFor the purposes of pension, the relevant provisions of the HighCourt Judges (Salaries and Conditions of Service) Act, 1954 areto be considered and while computing the pension as per Rule 2of Part I of the First Schedule of the 1954 Act, the servicerendered by a Judge as an Acting Chief Justice only is requiredEto be counted as a Chief Justice and his pension is required to becomputed accordingly as a Chief Justice for the service renderedas an Acting Chief Justice. Therefore, the services rendered bythe petitioner as an Acting Chief Justice, i.e., for a period of 14months, is to be counted/calculated as that of the Chief Justice,namely, Rs.1,21,575/- per annum, or as the case may be. Rule 7Fof Part I of the First Schedule cannot be read in isolation. EvenRule 7 specifically provides that for the purposes of this part –Part I, service as an Acting Chief Justice of a High Court shall betreated as though it were service rendered as Chief Justice of aHigh Court. Rule 2 and Rule 7 of Part I of the First Schedule ofGthe 1954 Act are required to be read conjointly and if are readconjointly, in that case, while making the computation of pensionunder Rule 2 of Part I of the First Schedule, the service renderedas an Acting Chief Justice is required to be considered as a ChiefJustice and accordingly his pension is required to be countedH

and for that period his pension is required to be computed as ifhe has rendered service as Chief Justice. [Para 6.3][93-B-H]

2. Now so far as the reliance placed upon the decision ofthis Court in the case of Syad Sarwar Ali by the respondent isconcerned, the petitioner is right to some extent that the saiddecision is distinguishable on facts. It is true that in the said case,the respondent – Judge retired as a puisne Judge and not as anActing Chief Justice. However, in the said decision, it isspecifically observed that the substantive portion of Rule 2 readwith Rule 7 of the First Schedule deals with the calculation of thepension payable to a Judge during his judicial career and that incomputing the pension, the time which he had spent as a Judgeor Acting Chief Justice or Chief Justice is taken intoconsideration. It is further observed by this Court in the aforesaiddecision that the rules containing First Schedule are consciousof the fact that the retiring incumbent may be a Judge or a ChiefJustice or may have acted as an Acting Chief Justice for a periodof time where for the purpose of calculating the quantum ofpension, the period spent by a Judge as an Acting Chief Justiceis taken into consideration for the purpose of fixing the ceiling.It is further observed that however, an Acting Chief Justice, whois one appointed under Article 223 of the Constitution is notequated with the Chief Justice appointed under Article 217 ofthe Constitution. The above observations clinch the issue. Evenotherwise, this Court has considered the question posedindependently and are of the opinion that the petitioner is notentitled to the pensionary benefits including the ceiling in thepension which may be available to a retired Chief Justice and asobserved, only that period of service rendered by him as an ActingChief Justice, i.e., 14 months service as an Acting Chief Justiceis required to be considered as service rendered as a Chief Justicefor the purpose of computation of pension under Rule 2/as perRule 2 of the Part I of the First Schedule of the 1954 Act.[Para 7][94-A-F]

Union of India v. Syad Sarwar Ali (1998) 9 SCC 426 –referred to.

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ACase Law Reference

(1998) 9 SCC 426

referred toPara 3.4

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.300 of 2016

B[Under Article 32 of the Constitution of India]

Kailash Vasdev, Sr. Adv., Navin Prakash, Umrao Singh Rawat,Ms. Nayan Tara, A. Joseph, Advs. for the Petitioner.

Ms. V. Mohana, Sr. Adv., S. K. Singhania, D. L. Chidanand,Ms. Ankita Sharma, Ms. Nikita Kapoor, A. K. Sharma, Mukesh KumarCMaroria, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. By way of this petition filed under Article 32 of the ConstitutionDof India, the petitioner, who retired as Acting Chief Justice of the GauhatiHigh Court, has prayed for an appropriate writ, direction or order anddeclaration that the petitioner is entitled to pensionary benefits, applicableto a retired Chief Justice of a High Court.

2. That the petitioner joined services as a member of the KarnatakaJudicial Service in the year 1988. He was elevated to the High Court ofEKarnataka in the year 2000. Thereafter, he was transferred to the GauhatiHigh Court as a puisne Judge. That on 13.08.2014, in exercise of powersunder Article 223 of the Constitution of India, the petitioner was appointedas the Acting Chief Justice of the Gauhati High Court. He served in thatcapacity for 14 months and retired as Acting Chief Justice on 20.10.2015.FWhile serving as Acting Chief Justice, the petitioner was paid his salariesand allowances admissible to a Chief Justice, as contemplated in theSecond Schedule, Part-D, paragraphs 10 and 11 of the Constitution ofIndia and under the High Court Judges (Salaries and Conditions ofService) Act, 1954 (hereinafter referred to as the ‘1954 Act’).

2.1 That on 20.07.2015, when the petitioner was holding the postGof Acting Chief Justice, the Registry of the Gauhati High Courtsent the required documents for fixation of the petitioner’s pensionand gratuity to the Central Government. The petitioner claimedthe pensionary benefits as may be available to the Chief Justice.However, the Department of Law & Justice informed the HighHCourt that the petitioner is not entitled to the higher pension ceiling of Rs.5,40,000/- being the pension available to a Chief Justice andtherefore requested to furnish the revised pension report fixingthe pension at Rs.4,80,000/- annually. The Registry of the HighCourt wrote to the Department of Law & Justice that vide Rule 7of Part-I of the First Schedule to the 1954 Act, the petitioner wasentitled to pension admissible to the Chief Justice. At this stage, itis required to be noted that initially the petitioner elected to seekpension under Part-III of the First Schedule to the 1954 Act.However, it is the case on behalf of the petitioner that subsequentlyhe clarified that he is seeking pension under Part-I of the FirstSchedule to the 1954 Act. The aforesaid shall be dealt withhereinbelow.

2.2 That thereafter the Ministry of Law & Justice, Governmentof India rejected the contention of the High Court that the petitionerwas entitled to receive his pension as a Chief Justice, the petitionerhas preferred the present petition under Article 32 of theConstitution of India for an appropriate writ, direction or orderand declaration that the petitioner is entitled to the pensionarybenefits as that of the Chief Justice.

3. Shri Kailash Vasdev, learned Senior Advocate appearing onbehalf of the petitioner has vehemently submitted that as per para 10 ofPart D of the Second Schedule of the Constitution of India, there shallbe paid to the Judges of the High Courts, in respect of time spent onactual service, salary at the rates mentioned therein. It is submitted thatas per para 11 of Part D of the Second Schedule of the Constitution ofIndia, the expression “Chief Justice” includes an Acting Chief Justice.It is submitted that therefore Part D of the Second Schedule of theConstitution of India, in the matter of pay and perks, equates the ActingChief Justice with the Chief Justice.

3.1 It is further submitted by Shri Kailash Vasdev, learned SeniorAdvocate appearing on behalf of the petitioner that as per Section2(1)(a) of the 1954 Act, “Acting Chief Justice” means a Judgeappointed under Article 223 of the Constitution to perform theduties of the Chief Justice. It is submitted that as per Section2(1)(g) of the 1954 Act, “Judge” means a Judge of a High Courtand includes the Chief Justice, Acting Chief Justice, an additionalJudge and Acting Judge of the High Court.

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3.2 It is further submitted by Shri Kailash Vasdev, learned SeniorAdvocate appearing on behalf of the petitioner that as per Rule 2of Part I of the First Schedule of the 1954 Act, the pension payableto a Judge to whom Part I applies for pension shall be for serviceas Chief Justice in any High Court – Rs.1,21,575/- per annum foreach completed year of service and the pension payable to a ChiefJustice shall in no case exceed Rs.15,00,000/- per annum. It issubmitted that as per Rule 7 of Part I of the First Schedule of the1954 Act, for the purposes of Part I, service as an Acting ChiefJustice of a High Court ……. shall be treated as though it wereservice rendered as Chief Justice of a High Court. It is submittedthat therefore the petitioner who retired as an Acting Chief Justiceshall be entitled to all pensionary benefits as may be available to aretired Chief Justice including the maximum limit of Rs.15,00,000/- per annum in the case of a Chief Justice.

3.3 Learned Senior Advocate appearing on behalf of the petitionerhas submitted that in fact the respondent rejected the claim of thepetitioner considering his application under Part III of the FirstSchedule of the 1954 Act. It is submitted that in fact subsequentlythe petitioner claimed the pension/pensionary benefits under PartI of the First Schedule of the 1954 Act, and therefore, his case isrequired to be considered under Part I of the First Schedule of the1954 Act.

3.4 Now so far as the reliance placed upon the decision of thisCourt in the case of Union of India v. Syad Sarwar Ali (1998)9 SCC 426 by the respondent is concerned, it is vehementlysubmitted by the learned Senior Advocate appearing on behalf ofthe petitioner that the said decision shall not be applicable at all tothe facts of the case on hand. It is submitted that the facts in thesaid case are distinguishable. It is submitted that the said judgmentdeals with a fact situation where the respondent discharged hisduties as Acting Chief Justice during his tenure as a Judge and assuch he retired as a Judge and not as an Acting Chief Justice. Itis submitted that observations of this Court in para 9 of theaforesaid judgment are obiter dicta. It is submitted that thereforethe decision in the case of Syad Sarwar Ali(supra) has noapplication to the facts of the case on hand.

3.5 It is further submitted by Shri Kailash Vasdev, learned SeniorAdvocate appearing on behalf of the petitioner that para 11 ofPart D of the Second Schedule of the Constitution of Indiaspecifically provides the expression “Chief Justice” includes anActing Chief Justice. It is submitted that Rule 7 of Part I of theFirst Schedule of the 1954 Act reiterates that “for the purposes ofthis Part, service as an Acting Chief Justice of a High Court ……shall be treated as though it were service rendered as Chief Justiceof a High Court”. It is submitted that the Acting Chief Justicedischarges the same duties, obligations and functions as the ChiefJustice. It is submitted therefore that the petitioner, who retired asan Acting Chief Justice, for all practical purposes, retired as aChief Justice and therefore he is entitled to the pensionary benefitsas may be available to the Chief Justice.

3.6 It is further submitted by Shri Kailash Vasdev, learned SeniorAdvocate appearing on behalf of the petitioner that as such PartIII of the First Schedule of the 1954 Act shall not be applied to aJudge who retires as an Acting Chief Justice. It is submitted thatPart III of the First Schedule of the 1954 Act applies to a Judgewho has held any pensionable post under the Union or a State…… and who has not elected to receive the pension payableunder Part I. It is submitted that Part III deals with pension payableto such a Judge and it does not deal with pension payable to aJudge who retires as an Acting Chief Justice.

3.7 It is further submitted by Shri Kailash Vasdev, learned SeniorAdvocate appearing on behalf of the petitioner that Section 14 ofthe 1954 Act provides that “subject to the provisions of this Act,every Judge shall, on his retirement, be paid a pension inaccordance with the scale and provisions in Part I of the FirstSchedule”. It is submitted that Rule 7 of the First Schedule equatesthe service of an Acting Chief Justice as service rendered as aChief Justice of the High Court for the purposes of Part I. It issubmitted that therefore when on the date of retirement thepetitioner retired as an Acting Chief Justice after rendering serviceas an Acting Chief Justice for 14 months, the petitioner shall beentitled to the pensionary benefits which may be available to aChief Justice.

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88SUPREME COURT REPORTS

A3.8 Making the above submissions, it is prayed to allow the presentpetition.

4. The present petition is vehemently opposed by Ms. V. Mohana,learned Senior Advocate appearing on behalf of the respondent. It isvehemently submitted that the petitioner being a promotee Judge andBretired as an Acting Chief Justice from the High Court, Part III of theFirst Schedule of the 1954 Act only shall be applicable. It is submittedthat even otherwise as such the petitioner submitted the application forpension under Part III only and therefore his application was processedunder Part III only. It is submitted that only before this Court subsequentlyas an afterthought the petitioner is claiming the pension/pensionaryCbenefits under Part I. It is submitted that as there was no upper limit sofar as the pension payable under Part III is concerned, the petitionerapplied for pension under Part III only.

4.1 It is further submitted by Ms. V. Mohana, learned SeniorAdvocate appearing on behalf of the respondent that para 11 ofDPart D of the Second Schedule of the Constitution read with Article221 shows that the said provisions prescribe entitlement of salariesalone of a Judge/Chief Justice of a High Court and the same ismade applicable to an ad-hoc or an Acting Judge/Chief Justice ofthe High Court. It is submitted that therefore an Acting ChiefEJustice of a High Court is equated to a Chief Justice for the limitedpurpose of salary only and not otherwise.

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4.2 It is further submitted by Ms. V. Mohana, learned SeniorAdvocate appearing on behalf of the respondent that by virtue ofthe 1954 Act, it is for the limited purpose of computation of salarythat the Acting Chief Justice is treated as Chief Justice.

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4.3 It is further submitted by Ms. V. Mohana, learned SeniorAdvocate appearing on behalf of the respondent that Rule 7 ofPart I of the First Schedule of the 1954 Act is required to be readwith Rule 2 of Part I. It is submitted that Rule 7 of Part I alsospeaks about computation and not grant of equal pension.

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4.4 It is further submitted by Ms. V. Mohana, learned SeniorAdvocate appearing on behalf of the respondent that Rule 7 ofPart I of the First Schedule of the 1954 Act when read with Rule2 of Part I, it can be seen what is contemplated in Part I is onlycomputation as far as the position held by them during a particular H

year either as a Judge/Acting Chief Justice/Chief Justice. It issubmitted that in any event, Rule 7 only counts the length of serviceof a Judge being ad-hoc Judge under Article 127 of the Constitutionor one under Article 223 of the Constitution. It is submitted thattherefore the prayer of the petitioner for pension as Chief Justiceis not sustainable and the petitioner is not entitled to pensionarybenefits applicable to a retired Chief Justice of the High Courtand is not eligible for consideration to the all statutory posts andassignments for which a retired Chief Justice is eligible.

4.5 It is further submitted by Ms. V. Mohana, learned SeniorAdvocate appearing on behalf of the respondent that the ActingChief Justice of a High Court, who is one appointed under Article223 of the Constitution of India, may not be equated with theChief Justice of the High Court who is appointed under Article217 of the Constitution of India. It is submitted that in the case ofSyad Sarwar Ali (supra), this Court had categorically held thatthe Acting Chief Justice is different from Chief Justice. Relyingupon paragraphs 10 and 11 of the aforesaid decision, it is submittedby the learned Senior Advocate that an Acting Chief Justice whois one appointed under Article 223 of the Constitution of Indiamay not be equated with a Chief Justice appointed under Article217 of the Constitution of India.

4.6 It is further submitted by Ms. V. Mohana, learned SeniorAdvocate appearing on behalf of the respondent that there is aclear distinction between a Chief Justice appointed under Article217 of the Constitution of India and Acting Chief Justice appointedunder Article 223 of the Constitution of India. It is submitted thatwhen an Acting Chief Justice is appointed, the office of the ChiefJustice remains vacant. It is submitted that under Article 223 ofthe Constitution, an Acting Chief Justice is merely appointed bythe President to perform the functions of the Chief Justice whilethe office of the Chief Justice remains vacant. It is submitted thatSchedule 3 Para VIII of the Constitution of India provides for anoath for the Chief Justice and other Judges, but not for an ActingChief Justice. It is submitted that Acting Chief Justice never takesthe oath of office. It is submitted that any puisne Judge can beappointed as Acting Chief Justice. It is submitted therefore thatthere is a material distinction between the Chief Justice appointed A

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Aunder Article 217 of the Constitution and an Acting Chief Justiceappointed under Article 223 of the Constitution. It is submittedthat only during the period a Judge is appointed and functioning asan Acting Chief Justice and considering para 11 of the SecondSchedule of the Constitution read with Article 221 of theConstitution, such an Acting Chief Justice is entitled to the salariesBof a Chief Justice of the High Court. It is submitted therefore thatthe petitioner shall not be entitled to the pensionary benefits asmay be available to a retired Chief Justice and therefore is rightlydenied the pension/pensionary benefits as may be available to aretired Chief Justice.

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4.7 Making the above submissions, it is prayed to dismiss thepresent petition.

5. We have heard the learned counsel for the respective partiesat length.

5.1 The short question which is posed for the consideration of thisCourt is, whether the petitioner who retired as an Acting ChiefJustice is entitled to the pensionary benefits which may be availableto a retired Chief Justice?

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5.2 Section 14 of the 1954 Act provides for pension payable toJudges. It provides that subject to the provisions of the 1954 Act,every Judge shall, on his retirement, be paid a pension inaccordance with the scale and provisions in Part I of the FirstSchedule. It further provides that no such pension shall be payableto a Judge unless (a) he has completed not less than twelve yearsof service for pension; or (b) he has attained the age of sixty-twoyears; or (c) his retirement is medically certified to be necessitatedby ill-health. “Judge” is defined under Section 2(1)(g) of the 1954Act. According to Section 2(1)(g) of the 1954 Act, “Judge” meansa Judge of a High Court and includes the Chief Justice, an ActingChief Justice, an additional Judge and an Acting Judge of theHigh Court.

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5.3 Part I of the First Schedule of the 1954 Act shall apply to aJudge who has not held any other pensionable post under theUnion or a State or a Judge who having held any other pensionablepost under the Union or a State has elected to receive the pensionpayable under Part I. Part III of the First Schedule of the 1954

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Act shall apply to a Judge who has held any pensionable postunder the Union or a State and who has not elected to receive thepension payable under Part I. In the present case, as such, thepetitioner was a promotee Judge and therefore Part III of theFirst Schedule may be applicable. It is required to be noted that assuch the petitioner applied for pension under Part III. However, itis the case on behalf of the petitioner that subsequently havingrealised the mistake he had applied for pension under Part I of theFirst Schedule of the 1954 Act. Without entering into the question,whether the petitioner can be permitted to subsequently switchover to Part I of the First Schedule of the 1954 Act, we shallconsider the case of the petitioner as if he had applied for pensionunder Part I of the First Schedule.

6. Rule 2 of Part I of the First Schedule of the 1954 Act providesthat subject to the other provisions of Part I, the pension payable to aJudge to whom Part I applies, pension shall be (a) for service as ChiefJustice in any High Court – Rs.1,21,575/- per annum for each completedyears of service; (b) for service as any other Judge in any High Court –Rs. 96,524/- per annum for each completed years of service. It furtherprovides that the pension under this paragraph shall in no case exceedRs.15,00,000/- per annum in the case of a Chief Justice and Rs.13,50,000/- per annum in the case of any other Judge.

6.1 Rule 7 of Part I of the First Schedule of the 1954 Act, uponwhich much reliance has been placed by the learned SeniorAdvocate appearing on behalf of the petitioner, provides that forthe purposes of Part I, service as an Acting Chief Justice of aHigh Court …. shall be treated as though it were service renderedas Chief Justice of a High Court. Therefore, for the purpose ofcomputation of the pension as per Rule 2, the service rendered bya Judge as an Acting Chief Justice shall be treated as a servicerendered as Chief Justice, i.e., Rs.1,21,575/- per annum. Forexample, like in the present case, for the services rendered by thepetitioner as Acting Chief Justice for 14 months, while computingthe pension for that 14 months, his pension shall be counted asChief Justice, i.e., Rs.1,21,575/- per annum and for rest of thecompleted years of service his pension is to be computed as Judgeof the High Court. Rules 2 and 7 of Part I of the First Schedule ofthe 1954 Act read as under:

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A “2. Subject to the other provisions of this Part, the pensionpayable to a Judge to whom this Part applies for pension shallbe, __

(a) for service as Chief Justice in any High Court, Rs.1,21,575/-per annum for each completed year of service;B

(b) for service as any other Judge in any High Court,Rs.96,524/- per annum for each completed year of service:

provided that the pension under this paragraph shall in no caseexceed Rs.15,00,000/- per annum in the case of a Chief Justiceand Rs.13,50,000/- per annum in the case of any other Judge.

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7. For the purposes of this Part, service as an acting Chief Justiceof a High Court or as an ad hoc Judge of the Supreme Court, shall betreated as though it were service rendered as Chief Justice of a HighCourt, DProvided that nothing in this paragraph shall apply—

(a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appointment is in receipt ofa pension (other than a disability or wound pension) in respectof any previous service under the Union or a State.”

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6.2 Now so far as the reliance placed upon para 11 Part D of theSecond Schedule of the Constitution and Articles 127, 221 and223 of the Constitution by the learned Senior Advocate appearingon behalf of the petitioner is concerned, on conjoint reading of theaforesaid provisions, we are of the opinion that so long as a JudgeFwho is performing his duties as an Acting Chief Justice appointedunder Article 223 of the Constitution, shall be entitled to the salaryand other perks as that of the Chief Justice. Meaning thereby,what is contemplated by the aforesaid provisions is only paymentof salary during the tenure while functioning as Acting Chief Justiceas that of a Chief Justice. Even by virtue of the provisions of theG1954 Act, it is for the limited purpose for computation of the salarythat Acting Chief Justice is treated as Chief Justice.

6.3 Now so far as the submission on behalf of the petitioner, relyingupon para 11 Part D of the Second Schedule that the “ChiefJustice” includes an “Acting Chief Justice” and that such a Judge H

who is functioning as an Acting Chief Justice be paid the salary ofa Chief Justice and for all practical purposes he has performedthe duties of a Chief Justice and therefore he shall be paid thepensionary benefits admissible to a retired Chief Justice isconcerned, it is required to be noted that there is a clear distinctionbetween a Judge appointed as an Acting Chief Justice under Article223 of the Constitution of India and a Chief Justice appointedunder Article 217 of the Constitution. Considering Article 223 ofthe Constitution of India, it can be seen that a Judge of the HighCourt is appointed as an Acting Chief Justice under Article 223 ofthe Constitution for the purposes of the duties of the Chief Justiceand the office of the Chief Justice remains vacant. In a casewhere the office of the Chief Justice of the High Court is vacant,the duties of the office of the Chief Justice will be performed byany other Judge as Acting Chief Justice. Therefore, only for thelimited purpose of salary, such an Acting Chief Justice is treatedat par with the Chief Justice and not for any other purpose, moreparticularly the pension. For the purposes of pension, the relevantprovisions of the 1954 Act are extracted hereinabove and asobserved hereinabove while computing the pension as per Rule 2of Part I of the First Schedule of the 1954 Act, the service renderedby a Judge as an Acting Chief Justice only is required to be countedas a Chief Justice and his pension is required to be computedaccordingly as a Chief Justice for the service rendered as anActing Chief Justice. Therefore, the services rendered by thepetitioner as an Acting Chief Justice, i.e., for a period of 14 months,is to be counted/calculated as that of the Chief Justice, namely,Rs.1,21,575/- per annum, or as the case may be. Rule 7 of Part Iof the First Schedule cannot be read in isolation. Even Rule 7specifically provides that for the purposes of this part – Part I,service as an Acting Chief Justice of a High Court shall be treatedas though it were service rendered as Chief Justice of a HighCourt. Rule 2 and Rule 7 of Part I of the First Schedule of the1954 Act are required to be read conjointly and if are readconjointly, in that case, while making the computation of pensionunder Rule 2 of Part I of the First Schedule, the service renderedas an Acting Chief Justice is required to be considered as a ChiefJustice and accordingly his pension is required to be counted andfor that period his pension is required to be computed as if he hasrendered service as Chief Justice.

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A7. Now so far as the reliance placed upon the decision of thisCourt in the case of Syad Sarwar Ali(supra) by the learned counselappearing on behalf of the respondent is concerned, learned counselappearing on behalf of the petitioner is right to some extent that the saiddecision is distinguishable on facts. It is true that in the said case, therespondent – Judge retired as a puisne Judge and not as an Acting ChiefBJustice. However, in the said decision, it is specifically observed that thesubstantive portion of Rule 2 read with Rule 7 of the First Scheduledeals with the calculation of the pension payable to a Judge during hisjudicial career and that in computing the pension, the time which he hadspent as a Judge or Acting Chief Justice or Chief Justice is taken intoCconsideration. It is further observed by this Court in the aforesaid decisionthat the rules containing First Schedule are conscious of the fact that theretiring incumbent may be a Judge or a Chief Justice or may have actedas an Acting Chief Justice for a period of time where for the purpose ofcalculating the quantum of pension, the period spent by a Judge as anActing Chief Justice is taken into consideration for the purpose of fixingDthe ceiling. It is further observed that however, an Acting Chief Justice,who is one appointed under Article 223 of the Constitution is not equatedwith the Chief Justice appointed under Article 217 of the Constitution.The above observations clinch the issue. Even otherwise, we haveconsidered the question posed independently and are of the opinion thatEthe petitioner is not entitled to the pensionary benefits including the ceilingin the pension which may be available to a retired Chief Justice and asobserved hereinabove, only that period of service rendered by him as anActing Chief Justice, i.e., 14 months service as an Acting Chief Justiceis required to be considered as service rendered as a Chief Justice forthe purpose of computation of pension under Rule 2/as per Rule 2 of theFPart I of the First Schedule of the 1954 Act.

8. In view of the above and for the reasons stated above, thepetitioner is not entitled to the relief and the declaration as prayed. Thepetitioner is not entitled to the pensionary benefits including the ceiling inthe pension as may be available to a retired Chief Justice. The instantGpetition fails and the same deserves to be dismissed and is accordinglydismissed.

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Ankit Gyan