Bombay High Court
Pushpa W/O Virendra Ganediwala vs High Court Of Judicature Of Bombay … on 13 March, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:11778-DB
15018.23-wp.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15018 OF 2023
BASAVRAJ
GURAPPA Pushpa w/o. Virendra Ganediwala ..... Petitioner
PATIL
Digitally signed by
BASAVRAJ GURAPPA
Vs.
PATIL
Date: 2025.03.13
15:45:12 +0530
High Court of Judicature of Bombay & Ors. ..... Respondents
Mr. Sunil Manohar, Senior Advocate with Mr. Nikhil
Sakhardande, Senior Advocate and Mr. Pralhad
Paranjape, Mr. Ankit B. Rathod, Mr. Onkar Bajaj, Mr.
Atharva S. Manohar i/b. Anshu Agrawal for the petitioner
Mr. Virendra Tulzapurkar, Senior Advocate a/w.Mr. Rahul
Nerlekar for respondent No.1 to 3
Mrs. Neha S. Bhide, Govt. Pleader with Mr. O. A.
Chandurkar, Additional Govt. Pleader and Mrs. G. R.
Raghuwanshi, AGP for respondent Nos.5 and 6 - State
CORAM: ALOK ARADHE, CJ. &
BHARATI DANGRE, J.
RESERVED ON : MARCH 7, 2025
PRONOUNCED ON : MARCH 13, 2025
JUDGMENT:
(PER : CHIEF JUSTICE)
1. Rule. Rule is made returnable forthwith. By consent of the
learned Counsel for the parties, the writ petition is heard finally.
2. In this petition, the petitioner has assailed the
communication dated 2nd November 2022 issued by the Registrar
(Original Side), High Court, Bombay, by which the petitioner, who
was a former Judge of this Court, has been informed that she is
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not eligible for pension. The petitioner also seeks a direction to
respondents to fix and grant pensionary benefits to the petitioner
w.e.f. 14.02.2022 along with interest.
(i) FACTS :-
3. Facts giving rise to this petition, in nutshell, are that the
petitioner was a practicing advocate. The petitioner, on 26th
October 2007 was appointed as a District Judge. The collegium of
the Supreme Court on 16.01.2019 recommended the name of the
petitioner for appointment as a Judge of Bombay High Court. On
the basis of the aforesaid recommendation, a Notification dated
8th February 2019 was issued under Article 224(1) of the
Constitution of India. The petitioner was elevated as an Additional
Judge of the Bombay High Court for a period of two years with
effect from the date she assumed charge. The petitioner assumed
charge as an Additional Judge of the High Court, Bombay on 13 th
February 2019. The Central Government issued a Notification
dated 12th February 2021 under Article 224(1) of the Constitution
of India by which the tenure of the petitioner as Additional Judge
of Bombay High Court was extended w.e.f. 13th February 2021 for
a period of one year. The tenure of the petitioner as Additional
Judge was to expire on 12th February 2022. The petitioner
tendered resignation on 11th February 2022. The Central
Government, Ministry of Law and Justice, Government of India,
by Notification dated 14th March 2023 notified the resignation of
the petitioner.
4. The petitioner submitted an application on 17 th February
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2022 to the Registry of this Court in which she claimed pension
on account of having rendered services as an Additional Judge of
this Court for a period of 2 years 11 months and 29 days and as
District Judge for a period of 11 years 3 months and 18 days. The
petitioner, by communication dated 2nd November 2022 was
informed by the Registry of this Court that she is not entitled to
claim pension on the basis of the opinions given by the following
namely (1) Under Secretary to the Government of India, Ministry
of Law & Justice, (Department of Justice), New Delhi, (2) Office of
the Principal Accountant General (A & E)-II Maharashtra, Nagpur
(3) Legal Advisor-And-Joint Secretary, Government of
Maharashtra, Law & Judiciary Department, Mantralaya, Mumbai
and (4) the Advocate General of Maharashtra State.
5. The petitioner, on 2nd January 2023 submitted an application
under the Right to Information Act, 2005 (2005 Act) seeking
copies of the information mentioned in the communication dated
2nd November 2022 sent by the registry of this Court. The Public
Information Officer of this Court, on 10 th January 2023 supplied
the copies of the information referred to in the application dated
2nd November 2022, to the petitioner. The petitioner also sought
an information under the 2005 Act seeking names of the former
Judges of this Court who were being paid pension despite having
tendered their resignation. The petitioner, thereupon, by a reply
dated 18th March 2023 was informed that five former Judges of
this Court, who had tendered resignation, are being paid pension.
In the aforesaid factual background the petitioner has approached
this Court seeking the relief as stated supra.
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(ii) SUBMISSIONS:-
6. Learned senior counsel for the petitioner submitted that a
Judge holds a constitutional office and not a post under the
Government and therefore, a claim for pension has to be decided
in the light of the constitutional as well as statutory provisions. It
is contended that the general principles of service jurisprudence
cannot be made applicable for deciding the claim of pension of a
former Judge of this Court. Our attention has been invited to
various provisions of the High Court Judges (Salaries and
Conditions of Services) Act, 1954 (1954 Act). It has been
contended that the expression “retirement” used in Section 14 and
15 of the Act of 1954 cannot be construed in a narrow and limited
sense so as to only mean retirement by way of superannuation
and in no other manner. It is further submitted that the
expression “retirement” in Sections 14 and 15 of the Act is used
broadly so as to enable all modes of retirement including
superannuation and resignation. It is contended that no
discrimination can be made between an additional Judge and a
permanent Judge of a High Court for payment of pension on the
basis of source of appointment. It is submitted that such a
distinction would be contrary to the express language of the Act,
in particular, Section 2(1)(g) of the 1954 Act. It is urged that the
opinion of the learned Advocate General is based on the decision
of the Supreme Court in UCO Bank & Ors. Vs. Sanwar Mal1 in
1 (2004) 4 SCC 412
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which service Rule contained a specific provision that past services
of the Government servant would stand forfeited in case he
resigns from the post. It is pointed out that opinion rendered by
learned Advocate General does not take into account the
provisions of the 1954 Act. In support of his submission that the
expression “retirement” includes “resignation”, reliance has been
placed on decisions of the Supreme Court in Sudhir Chandra
Sarkar v. Tata Iron and Steel Co. Ltd. 2, J.K. Cotton Spg. &
Wvg. Mills Ltd. v. State of U.P.3, Moti Ram v. Param
Dev4 ,Union of India and others Vs Pratibha Bonnerjea and
another5, Union of India v. Syad Sarwar Ali6, P.
Ramakrishnam Raju Vs Union of India and others 7, Union
of India, Ministry of Law & Justice Vs Justice (Retd) Raj
Rahul Garg (Raj Rani Jain) and others 8 and a division bench
of this Court in Commissioner of Income Tax, Bombay Vs. D.
P. Malhotra9.
7. On the other hand, learned Senior counsel for respondent
Nos.1 to 3 submitted that the resignation by a High Court Judge
results in forfeiture of claim of pension. It is submitted that the
expression “retirement” used in Section 14 and 15 of the Act of
1954 does not include resignation. It is contended that the word
2 (1984) 3 SCC 369
3 (1990) 4 SCC 27
4 (1993) 2 SCC 725
5
(1995) 6 SCC 765
6 (1998) 9 SCC 426
7
(2014) 12 SCC 1
8
2024 SCC OnLine SC 321
9 1997(3) Mah.LJ 903
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“resignation” connotes unwillingness to continue in employment
which cannot be equated with “retirement”. It is contended that
the decisions relied upon by the petitioner have no application to
the facts and circumstances of the case and that the decision in
Union of India Vs Raj Rahul Garg (supra) only deals with the
issue namely whether any distinction can be made between the
Judges of the High Court on the basis of source of recruitment.
8. Learned Government Pleader for respondent Nos.5 and 6
has adopted the opinion given by learned Advocate General for
the purpose of her submissions.
(iii) RELEVANT CONSTITUTIONAL AND STATUTORY
PROVISIONS:
9. Article 217 of the Constitution of India deals with
“Appointment and conditions of the office of a Judge of a High
Court” whereas Article 221 deals with “Salaries, etc., of Judges”.
Articles 217 and 221 of the Constitution of India are extracted
below for the facility of reference.
“217. Appointment and conditions of the office of
a Judge of a High Court. –
(1) Every Judge of a High Court shall be appointed by the
President by warrant under his hand and seal on the
recommendation of the National Judicial Appointments
Commission referred to in article 124-A and shall hold office,
in the case of an additional or acting Judge, as provided in
article 224, and in any other case, until he attains the age of
sixty-two years:
Provided that-
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(a) A Judge may, by writing under his hand
addressed to the President, resign his office;
(b) A Judge maybe removed from his office by the
President in the manner provided in clause (4) of article
124 for the removal of a Judge of the Supreme Court;
(c) The office of a Judge shall be vacated by his being
appointed by the President to be a Judge of the
Supreme Court or by his being transferred by the
President to any other High Court within the territory
of India.
(2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India and-
(a) has for at least ten years held a judicial office in
the territory of India; or
(b) has for at least ten years been an advocate of a
High Court or of two or more such Courts in succession;
Explanation. – For the purposes of this clause-
(a) In computing the period during which a person
has held judicial office in the territory of India, there shall be
included any period, after he has held any judicial office,
during which the person has been an advocate of a High
Court or has held the office of a member of a tribunal or any
post, under the Union or a State, requiring special knowledge
of law;
(aa) In computing the period during which a person
has been an advocate of a High Court, there shall be included
any period during which the person has held judicial office
or the office of a member of a tribunal or any post, under
the Union or a State, requiring special knowledge of law after
he became an advocate
(b) in computing the period during which a person
has held judicial office in the territory of India or been an
advocate of a High Court, there shall be included any period
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before the commencement of this Constitution during which
he has held judicial office in any area which was comprised
before the fifteenth day of August, 1947, within India as
defined by the Government of India Act, 1935, or has been
an advocate of any High Court in any such area, as the case
may be.
(3) If any question arises as to the age of a Judge of
a High Court, the question shall be decided by the President
after consultation with the Chief Justice of India and the
decision of the President shall be final.”
221. Salaries, etc., of Judges.-
(1) There shall be paid to the Judges of each High Court such
salaries as may be determined by Parliament by law and,
until provision in that behalf is so made, such salaries as are
specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowances and to
such rights in respect of leave of absence and pension as
may from time to time be determined by or under law made
by Parliament and, until so determined, to such allowances
and rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his rights
in respect of leave of absence or pension shall be varied to
his disadvantage after his appointment.”
10. The 1954 Act is an Act enacted by the Parliament to regulate
salaries and certain conditions of service of the Judges of High
Courts. Section 2(b) defines expression “Acting Judge”, Section
2(d) defines the expression “Additional Judge”, Section 2(g)
defines the expression “Judge” whereas Section 2(gg) defines the
word “Pension”. The aforesaid Sections 2(b), 2(d), 2(g) and 2(gg)
are extracted below for the facility of reference:
2. Definition: – (1) In this Act, unless the context
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(a) ….
(b) “Acting Judge” means a person appointed to act as a
Judge under clause (2) of Article 224 of the Constitution.
(c) ….
(d) “Additional Judge” means a person appointed as an
additional Judge under clause (1) of Article 224 of the
Constitution.
(e) ….
(f) ….
(g) “Judge” means a Judge of a High Court and includes the
Chief Justice, an acting Chief Justice, an additional Judge and
an acting Judge of the High Court.
(gg) “Pension” means a pension of any kind whatsoever
payable to or in respect of a Judge, and includes any gratuity
or other sum or sums so payable by way of death or
retirement benefits;
11. Section 14 of the 1954 Act deals with “Pension payable to
Judges” whereas Section 15 deals with “Special provision for
pension in respect of Judges who are members of service”. Section
14 and 15 are extracted below for the facility of reference:
“14. Pension payable to Judges: – Subject to the
provisions of this Act, every Judge shall, on his retirement,
be paid a pension in accordance with the scale and provisions
in Part I of the First Schedule:
Provided that no such pension shall be payable to a Judge
unless-
(a) he has completed not less than twelve years of service
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(b) he has attained the age of sixty two years, or and, in
the case of a Judge holding Office on the 5th day of October,
1963, sixty years or;
(c) his retirement is medically certified to be necessitated
by ill-health.
Provided further that if a Judge at the time of his
appointment is in receipt of a pension (other than a disability
or wound pension) in respect of any previous service in the
Union or a State, the pension payable under this Act shall be
in lieu of, and not in addition to, that pension.
Explanation – In the section “Judge” means a Judge
who has not held any other pensionable post under the Union
or a State and includes a Judge who having held any other
pensionable post under the Union or a State has elected to
receive the pension payable under part I of the First
Schedule.
15. Special provision for pension in respect of Judges
who are members of service: –
(1) Every Judge.
(a) (Omitted by Act No. 13 of 2016)
(b) Who has held any other pensionable civil post
under the Union or State, shall, on his retirement, be
paid a pension in accordance with the scale and
provisions in Part II of the First Schedule;
Provided that every such Judge shall elect to receive
the pension payable to him either under Part I of the
First Schedule or, Part III of the First Schedule, and the
pension payable to him shall be calculated accordingly.
(2) Notwithstanding anything contained in sub-section (1),
any Judge to whom that sub-section applies and who is in
service on or after the 1st day of October, 1974, may, if he
has elected under the proviso to that sub-section to receive
the pension payable to him under Part III of the First
Schedule before the date on which the High Court Judges
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(Conditions of Service) Amendment Act, 1976, receives the
assent of the President cancel such election and elect a fresh
to receive the pension payable to him under Part I of the
First Schedule and any such Judge who dies before the date
of such assent shall be deemed to have elected afresh to be
governed by the provisions of the said Part I if the provisions
of that Part are more favourable in his case.”
12. Thus, on perusal of Section 14 it is evident that a Judge on
his retirement is entitled to pension subject to following
conditions:
(a) he has completed not less than twelve years of service
for pension; or
(b) he has attained the age of sixty two years, or and, in
the case of a Judge holding Office on the 5th day of October,
1963, sixty years or;
(c) his retirement is medically certified to be necessitated
by ill-health.
13. Section 15 deals with special provision for pension in respect
of Judges who are members of service. Section 15 provides that
every Judge who has held any other pensionable civil post under
the Union or State, shall on his retirement, be paid a pension in
accordance with the scale and provisions in Part III of the First
Schedule.
(iv) ANALYSIS:-
14. The solitary issue which arises for consideration in this
petition is whether the expression “retirement” used in Section 14
and 15(1) of the 1954 Act includes resignation as well. The
expression ‘retirement’ has not been defined under the 1954 Act.
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It is well settled that when a word is not defined in the Act, it may
be permissible to refer to the dictionary to find out the meaning
of the word as is understood in common parlance. (See CIT Vs
Venkateswara Hatcheries Pvt. Ltd. [1999(3) SCC 632]).
Therefore, the meaning of expression ‘retirement’ as understood
in common parlance has to be taken into account while
ascertaining its meaning and it is permissible to refer to the
dictionary. The expression ‘retirement’ has been defined in Black’s
Law Dictionary (Ninth Edition Pg.1431) as follows:
‘Retirement’- 1. Termination of one’s own employment or
career, esp. upon reaching a certain age or for health
reasons; retirement may be voluntary or involuntary. 2.
Withdrawal from action or for privacy <Carol’s retirement
to her house by the lake>. 3. Withdrawal from
circulation; payment of a debt<retirement of a series of
bonds>.
The expression ‘retire’ has been defined in Legal Thesaurus
by William C. Burton (Regular Edition Pg 453) in the context of
employment to mean to ‘conclude a career’. It has the following
other meanings:
“Abdicate, demit, drop out, give notice, give up office, give
up work, leave, quit, relinquish, resign, stand aside, take leave,
tender one’s resignation, vacate”.
Similarly, in the same Thesaurus the following meanings
appear of the word ‘resign’:
“abandon, abdicate, abire, abjure, capitulate, cease work,
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divest oneself of, drop out, forgo, forsake, give notice, give up,
leave, quit, reject, relinquish, renounce, repudiate, retreat, stand
aside, step down, surrender, tender one’s resignation, vacate,
withdraw, yield.”
15. Thus, it is evident that the word ‘retirement’ is a word of
wide import. The same means the conclusion of a career. One of
the meanings of the word ‘retire’ is to ‘resign’.
16. It is a well settled rule of construction that to ascertain
Legislative intent, all the constituent parts of the statute are to be
taken together and each word, phrase and sentence is to be
considered in the light of the general purpose and object of the
Act itself. (See Poppatlal Shah Vs State of Madras [AIR 1953
SC 274]). It is equally well settled rule of statutory interpretation
that the interpretation of the provisions must depend on the text
and context, as the same word may mean one thing in one context
and another in different context. (See Renaissance Hotel
Holdings Vs B. Vijay Sai and others [ 2022 (5) SCC 1]).
17. In D. S. Nakara Vs Union of India10 the Supreme Court
has held that the right to pension is included in right to life under
Article 21 of the Constitution of India.
18. From careful scrutiny of Section 14 and 15 of 1954 Act, it is
evident that the entitlement of a judge to pension is on his
10
AIR 1983 SC 130
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retirement and the same includes an involuntary act as well
inasmuch as retirement on account of ill-health is as contemplated
by clause 14(c) of 1956 Act is an involuntary act. The resignation
as well as the retirement, both result in the conclusion of the
service career. In fact the resignation is one of the modes of
retirement from service and is a voluntary act. In case the
Legislature intended to confine the benefits of pension only to a
Judge who has retired on superannuation, it would have expressly
said so. The word ‘retirement’ in Sections 14 and 15 of 1954 Act
has not been used in a restricted sense to mean retirement on
superannuation only.
19. Thus, by taking into account the meaning of expression
‘retirement’ in common parlance, as well as text and context in
which expression ‘retirement’ is used in Section 14 and Section
15(1) and the object of 1954 Act it is evident that the expression
‘retirement’ in Section 14 and 15(1) of 1954 Act has been used in
a broad sense and it includes the case of retirement on resignation
as well. The criteria of entitlement to pension is retirement and
mode of retirement for pension is irrelevant for the purpose of
Section 14 and 15(1) of 1954 Act.
20. In so far as the reliance placed by the State Government on
the opinion of learned Advocate General is concerned, suffice it to
say that the opinion of the learned Advocate General is based on
the decision of Supreme Court in UCO Bank Vs Sanwar Mal
(supra) in which service rule contained a specific provision that
past services of the employee would stand forfeited in case he
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resigns from the post. In 1954 Act, there is no such provision. It
is noteworthy that the learned Advocate General has not taken
into account the provisions of 1954 Act. Therefore, the opinion
rendered by the learned Advocate General is of no assistance to
the State Government in the facts and circumstances of the case.
Similarly, the contention urged on the behalf of the other
respondents that the expression ‘retirement’ does not include the
resignation for the reasons mentioned in preceding paragraphs
does not deserve acceptance.
21. It is also pertinent to note that five former Judges of this
Court who had tendered their resignations are being paid the
pension. However, no explanation worth name has been offered
on behalf of the respondents for taking a different stand in the
case of the petitioner alone. It is also pertinent to note that the
division bench of this Court in Nandkishor Digambar Deshpande
Vs High Court of Judicature of Bombay11 though did not expressly
deal with the issue involved in the writ petition, yet concluded that
the Judge who demitted his office as an additional Judge of this
Court is entitled to pension.
22. In view of the preceding analysis, the inevitable conclusion
is that the expression ‘retirement’ used in Section 14 and 15(1) of
1954 Act includes resignation as well.
23. In the result, the impugned order dated 02.11.2022 passed
by the Registrar (Original Side), High Court, Bombay is quashed
and set aside. The petitioner is held entitled to pension w.e.f.
14.02.2022. The respondents are directed to fix and grant
11
2017 SCC Online Bom 9686
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pensionary benefits to the petitioner from 14.02.2022 within a
period of two months from today along with interest at the rate of
6% per annum.
24. In the result, the petition is allowed.
(BHARATI DANGRE, J.) (CHIEF JUSTICE)
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