UNION OF INDIA versus PRATIBHA BANERJEE AND ANR.

Citation: [1995] SUPP. 5 S.C.R. 511 · Decided: 21-11-1995 · Supreme Court of India · Bench: A.M. AHMADI, K.S. PARIPOORNAN · Disposal: Dismissed

Judgment (excerpt)

.... 
UNION OF INDIA 
A 
v. 
PRATIBHA BANERJEE AND ANR. 
NOVEMBER 21, 1995 
[A.M. AHMADI, CJ AND K.S. PARIPOORNAN, J.] 
B 
Constitution of India-A1ts. 124(4), 219, 221-Judge of High Court:-
Appointment of-Powers of-Whether holds a post under the Union or a 
State-Held, N~Relationship between Govemment and High Cowt Judge 
is not of master and servant-He is the holder of a constitutional office. 
C 
High Cowt Judges (Conditions of Service) Act, 1954-Pension admis-
sible to Vice-Chainnan of Central Administrative Tribunal-Detennination 
of-Pensioner as High Court Judge appointed as Vice Chairman of 
Tribunal-Retirement-Fixation of pension under Part I of the First Schedule 
to the Act. 
D 
The first respondent was appointed Judge of High Court of Calcutta. 
She retired as such w.e.f. 16.2.1989 and was appointed as Vice-Chairman 
of the Central Administrative Tribunal on 3.3.1989. On relinquishing that 
post on 16.2.1992 on retirement, she claimed that her pension should be 
fixed under Part-I of the First Schedule to the High Court Judges (Con-
E 
ditions of Service) Act, 1954. Her claim was disallowed holding that she 
was entitled to pension admissible under Part-III of the First Scheduled 
to the Act. She filed a petition in the Central Administrative Tribunal 
which was allowed. Hence this appeal by special leave. 
The appellant Union alleged 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. 
F 
The question raised for determination was whether a Judge of the G 
High Court holds a post under the Union or State. 
Dismissing the appeal, this Court 
HELD : 1.1. Independence and impartiality are the two basic at-
tributes essential for a proper discharge of judicial functions. A Judge of H 
511 
512 
SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R. 
A 
a High Court is, therefore, required to discharge his duties consistently 
with the conscience of the Constitution and the laws and according to the 
dictates of his own conscience and he is not expected to take orders from 
anyone. Since a substantial volume of litigation involves Government 
interest, he is required to decide matters involving government interest day 
B 
in and day out. He has to decide such cases independently and impartially 
without in any manner being influenced by the fact that the Government 
is a litigant before him. In order to preserve his independence his salary 
is specified in the Second Schedule, vide Article 221 of the Constitution. 
He, therefore, belongs to the third organ of the State which is independent 
of the other two organs, the Executive and the Legislature. It is, therefore, 
C 
plain that a person belonging to the judicial wing of the State can never 
be subordinate to the other two wings of the State. A Judge of the High 
Court, therefore, occupies a unique position under the Constitution. He 
would not be able to discharge his duty without fear or favour, affection 
or illwill, unless he is totally independent of the executive, which he would 
D 
not be if he is regarded as a Government servant. He is clearly a holder 
of a constitutional office and is able to function independently and impar-
tially because he is not a Government servant and does not take orders 
from anyone. (517-B-F] 
1.2. The entire procedure outlined for their appointment is totally 
E 
different from that provided for other services. That is because the Con-
stitution-makers were conscious that the notion of judicial independence 
must not be diluted. If the relationship between the Government and the 
High Court Judge is of master and servant it would run counter to the 
constitutional creed of independence for the obvious reason that the 
F 
servant would have to carry out the directives of the master. Since a High 
Court Judge has to decide cases brought by or against the Government 
day in and day out, he would not be able to function without fear or favour 
if he has to carry out the instructions or directives of his master. The whole 
concept of judicial independence and separation of judiciary from the 
executive would crumble to the ground if such a relationship is conceded. 
G 
High Court Judges would not be true to their path if such a relationship 
is accepted. That is why not only Judges but even the staff members are 
insulated from executive influence. (518-D-F] 
1

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