dated 31st October, 2015 is not applicable to the Judicial
Officers in the State who were appointed on or after 1st
November 2005. The said officers will be entitled to the
same pensionary benefits which are available to the
judicial officers appointed before 1st November 2005.
However, the judicial officers who are appointed on or
after 1st November 2005 will have an option to continue
under the New Scheme;
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.188 OF 2015
Vihar Durve V The State of Maharashtra and Ors.
CORAM : A.S. OKA & A.K. MENON, JJ.
DATED: 11th AUGUST 2017
JUDGMENT (PER A.S. OKA, J.):
1 This Public Interest Litigation is preferred raising several
issues regarding the Judiciary in the State of Maharashtra in general. A
prayer is for setting up various additional Courts as set out in prayer
clauses (a) to (j). In the first paragraph of order dated 12th February,
2016, a bench of this Court of which one of us (A.S.Oka, J.) is a party,
passed the following order :
“Amongst various issues which are raised in this
petition, at present we are dealing with two issues. The
first issue is regarding the discontinuation of the
Pension Scheme to the judicial officers which was
applicable in terms of the recommendations of the
Shetty Commission. Now a Contributory Pension
Scheme is made applicable with effect from the year
2010 even to the judicial officers who will have to
contribute 10% of their salary to the said pension
scheme. The recommendations of the Shetty
Commission were accepted by the Apex Court. Even
the recommendations of the committee headed by
Justice Padmanabhan were accepted by the Apex
Court. Based on the said recommendations, a
Government Resolution dated 5th January 2011 was
issued by the State Government. Apart from the
binding recommendations of the Shetty Commission
and the Padmanabhan Commission, the question is
whether the judicial officers can be treated on par with
the officers of the State as far as pension is concerned.
Under the present Recruitment Rules, even a fresh law
graduate who is not having any experience of practice
can join the Judicial Service at the age of 25 years as a
Civil Judge, Junior Division. If such a fresh law
graduate after rendering service for 35 years retires, he
will not be entitled to the benefit of the Pension
Scheme which was available as per the
recommendations of the Shetty Commission and
Pension Scheme can be made applicable to the judicial
officers in the face of the recommendations which were
accepted by the Apex Court. The State Government will
have to treat the Judicial Officers differently from any
other officers on its establishment. This aspect was
brought to the notice of the learned Government
Pleader on the last occasion. Today, he states that the
issue is being considered by the State Government.”
2 On the basis of a prayer made by the learned counsel
appearing for the petitioner, a permission was granted on 9th August,
2016 to amend the petition for the purposes of incorporating a
challenge to the Government Resolution dated 31st October, 2005 which
introduces “Defined Contribution Pension Scheme (for short “the New
Scheme”) for the Government Servants who are recruited on or after 1st
November, 2005 in the Government service. The challenge to this
Government Resolution (for short “the impugned Government
Resolution”) is confined to its applicability to the Judicial Officers in the
State.
3 As far as the other issues involved in this Writ Petition are
concerned, several steps have been taken during the pendency of the
Petition for appointing additional Judges and for creating additional
Courts. By an order dated 27th October, 2016, a Bench of this Court
directed that the issue regarding pensionery benefits admissible to the
Judicial Officers deserves to be disposed of finally. Accordingly, the
State Government was permitted to file a reply. There are two affidavits
on record of Shri Neeraj Pradeep Dhote, Legal AdvisorcumJoint
Secretary of the Law and Judiciary Department which are dated 16th
June, 2016 and 19th July, 2016. There is also a reply filed on behalf of
the High Court Registry which does not deal with the issue of pension
to the Judicial Officers.
4 Before we come to the submissions made on the issue of
challenge to the impugned Government Resolution, we must make a
reference to the provisions relating to payment of pension to the
Judicial Officers in the State before the impugned communication came
into force. For that purpose, it will be necessary to make a reference to
the decision of the Apex Court in the case of All India Judges Association
and Ors. Vs. Union of India and Ors.1
. The Apex Court, in its earlier
order in the case of All India Judges Association and Ors. Vs. Union of
India2
, issued certain directions. The first direction was that steps
should be taken to bring about uniformity in the designations of the
Judicial Officers by March 31, 1993. Another direction was that as and
when Pay Commissions are set up in the Union Territories, the question
of appropriate pay scales of the Judicial Officers be specifically referred
and considered.
1 (2002)4 SCC 247
2 1992(1) SCC 119
5 Union of India filed a Petition for review of the directions
issued by the Apex Court in the case of All India Judges' Association and
Ors. Vs. Union of India and Ors3
. The Judgment in Review contains a
direction that an independent Commission should be set up for
determining the service conditions of Judicial Officers. The Government
of India, by a resolution dated 21st March, 1993 constituted the first
National Judicial Pay Commission under the Chairmanship of the
Hon'ble Shri Justice K.J. Shetty. The report was submitted by Justice
Shetty on 11th November, 1999. Various recommendations were made
by Shetty Commission regarding various cadres in the Judiciary. By the
aforesaid decision in the case of All India Judges Association and Ors. Vs.
Union of India and Ors., the Apex Court accepted the recommendations
of the Shetty Commission except certain modifications made as set out
in the judgment. Clause 22.18 of the report contains the
recommendations of the Shetty Commission on the aspect of pension.
Relevant part of clause 22.18 reads thus :
“22.18
1. The Revised Pension of the Retired Judicial Officers should
be 50% of the minimum pay of the post held at the time of
retirement, as revised from time to time.
2. There should not be any ceiling limit on the maximum
pension payable.
3. The Pensioners should be given the benefit of full
3 1993(4) SCC 288
neutralisation of the cost of living in the same scale as is
being extended to the serving Judicial Officers.
4. A cash payment of Rs.1,250/ per month as 'Domestic Help
Allowance' to every retired Judicial Officer, which would be
paid upon producing a certificate to that effect.
5. All retired Judicial Officers should be given a fixed monthly
medical allowance of Rs.100/ to meet daytoday medical
expenses.
6. All the medical facilities that we have recommended to
serving Judicial Officers with regard to treatment and
reimbursement of expenditure etc. be made applicable to
retirees.”
6 The Apex Court accepted all the recommendations of the
Shetty Commission subject to the amendments made by the same
judgment of the Apex Court. Directions were issued under the said
judgment to the State Government to report compliance. By further
order dated 8th April 20043A passed in the same case, the Apex Court
directed all the State Governments to adopt Karnataka model in regard
to payment of pension to retired Judicial Officers.
7 There were directions issued by the Apex Court from time
to time to various State Governments to make compliance with the
recommendations of the Shetty Commission as approved by the Apex
Court. By another decision in the case of All India Judges and Ors. Vs.
Union of India and Ors.4
, the Apex Court directed that as the salary of
3A (2004)12 SCC 444
4 (2010) 4 SCC 730
the Judges of the High Court has been increased, it was necessary to
appoint a Commission to go into the question of salary payable to the
Judicial Officers. Accordingly, the following directions were issued by
the Apex Court :
“7. As salary of the High Court Judges had been increased,
this Court appointed Justice E. Padmanabhan, a retired
Judge of the High Court of Judicature at Madras, to go
into the question as to what extent salary, allowances
and perquisites of the judicial officers of the States can
be increased. Justice Padmanabhan Committee has
submitted Report suggesting various recommendations.
Copy of the Report was furnished to all the State
Governments and High Courts and opportunities were
given to them to furnish their objections. Some of the
States have filed their objections.
8. The main objection seems to be that some of the States
have financial difficulties and it would not be possible
for them to increase the salary of the Judges of the
subordinate judiciary. It was argued by some of the
States that they have implemented the Sixth Central Pay
Commission and the scale of pay of the judicial officers
had also been correspondingly increased. In these
States, rules applicable shall have to be amended to
give full effect to the Sixth Central Pay Commission, if
any of the judicial officers are getting higher salary or
perquisites, such State would be at liberty to give higher
salary, allowances and perquisites than what has
already been recommended by Justice Padmanabhan
Committee.”
8 Accordingly, Justice Padmanabhan Committee submitted
recommendations to the Apex Court. In the order dated 4th May, 2010
passed by the Apex Court in All India Judges Association and Ors. Vs.
Union of India and Ors.5
passed in the same case, the Apex Court
recorded that certain States including the State of Maharashtra and Goa
agreed to implement the recommendations made by Justice
Padmanabhan Committee Report. The Apex Court, while issuing
directions to implement Justice Padmanabhan Committee Report with
effect from 1st January, 2006 observed that if any 6th Pay Commission
recommendations are more beneficial to the Judicial Officers, they will
continue to be benefited to that effect.
9 The State Government issued Government Resolutions for
giving effect to the directions of the Apex Court. The Government
Resolution dated 28th September, 2005 was issued for giving effect to
the aforesaid order dated 8th April 2004 of the Apex Court for granting
benefits of pension to the Judicial Officers retired after 1st July, 1996
and the Judicial Officers retired prior to 1st July, 1996.
5 (2010) 14 SCC 720
10 The State Government issued a notification dated 5th
January, 2011 (as amended on 30th March 2011) by which
recommendations of Padmanabhan Committee were accepted. The said
Government Resolution gives effect to the recommendations of
Padmanabhan Committee regarding the pension payable to the Judicial
Officers in the State. The said GR specifically deals with pension
payable to Judicial Officers who retired on 1st January, 2006 or
thereafter. By a Government Resolution dated 25th July 2011, the
benefits of the Government Resolutions were extended to the judicial
officers who retired prior to 1st January 2006. Clause 2 of the aforesaid
Resolution dated 5th January 2011 provides that the pension shall be
computed in accordance with the Pension Rules of the State
Government. The said Rules are the Maharashtra Civil Services
(Pension) Rules,1982 (for short “the Pension Rules”).
11 The impugned Government Resolution dated 31st October,
2005 reads thus :
“INTRODUCTION
Government of India vide Notification, Ministry
of Finance, Department of Economic Affairs, dated 22nd
December 2003 introduced a new Contribution Pension
Scheme i.e. “Defined Contribution Pension System” for
the employees who are recruited on or after 1st January
2004 in Central Government Service. Government of
India has also declared that the option of joining the
aforesaid new Contribution Pension Scheme would also
be available to the State Government. Besides, under
this scheme Government of India have Constituted an
independent “Pension Fund Regulatory and
Development Authority (PFRDA)” for the management
and regulation of the pension fund.
The question of introduction of New Contribution
Pension Scheme, on the lines of Government of India,
for new recruits in State Government was under
consideration of this Government.
RESOLUTIONS
2. (a) Government has now decided that a new "Defined
Contribution Pension Scheme", on the lines of
Government of India, replacing the existing pension
scheme, as detailed below, would be made
applicable to the Government servants who are
recruited on or after 1st November 2005 in State
Government Service,
(b) Government is also pleased to decide that for the
purpose of implementation of the above new Defined
Contribution Pension Scheme, this State Government
would join the aforesaid, new defined contribution
pension system introduced by Government of India.
(c) The Government is also pleased to decide that the
provisions of,
(i) the existing pension scheme (i.e. Maharashtra Civil
Services (Pension) Rules, 1982 and Maharashtra Civil
Services (Commutation of Pension) Rules, 1984 and
(ii) the existing General Provident Fund Scheme (GPF)
would not be applicable to the Government servants
who are recruited on or after 1st November 2005 in
State Government service.
SALIENT FEATURES OF THE NEW PENSION SCHEME
3. The salient features of the new pension scheme are as
under:
(a) This scheme shall be called as "Defined Contribution
Pension Scheme".
(b) This scheme will come into force with effect from 1st
November 2005.
(c) The New Contribution Pension Scheme will be
mandatory for all the Government servants who are
recruited on or after 1st November 2005 in State
Government service.
(d) The new contribution pension Scheme will be based on
defined contribution and will have two tiers, i.e. TierI
& TierII.
TierI will be mandatory for all the Government
servants who will be recruited on or after 1st November
2005 in State Government service whereas TierII will
be optional for them and at their discretion.
(e) Under TierI, every Government servant will have to
make a monthly contribution at 10% of his "Basic
Pay plus Dearness Pay (if any) plus Dearness
Allowance", which will be deducted from his salary
bill every month. The State Government will make
an equal matching contribution. The contributions
and the investment returns will be kept in a nonwithdrawable
"Pension TierI Account."
(f) Under TierII, each Government servant, in addition
to the above mentioned Pension TierI Account, will
also have a "Voluntary Tier II withdrawable
Account" at his option. Contribution made by the
Government servant will be kept in such separate
account and that will be withdrawable at the option
of the Government servant. However, Government
will not make any contribution in this account.
(g) A Government servant can normally exit at or after
attaining the age of superannuation (i.e. 58 years/60
years, as the case may be) from the TierI of the new
pension scheme. However, at exit, it would be
mandatory for him to invest 40% of the total
accumulated pension wealth to purchase an annuity
(from Life Insurance Company regulated by Pension
Fund Regulatory and Development Authority).
In the case of Government servant, the annuity
should provide for pension for the life time of the
Government servant and his dependent parents and his
spouse at the time of retirement.
The Government servant would receive a lumpsum
of the remaining pension wealth, which he would
be free to utilise in any manner.
A Government servant would have the flexibility
to leave the pension scheme prior to age of
superannuation (i.e. 58 years/60 years, as the case may
be). However, in this case, the mandatory annuitisation
would be 80% of the pension wealth.
APPLICABILITY OF THE SCHEME
4.(a) As mentioned above, new defined contribution pension
scheme will be applicable to Government servants who
are recruited on or after 1st November 2005 in State
Government service.
(b) Government is also pleased to direct that the above
decision should, mutatismutandis, apply to the
employees, who are recruited on or after 1st November
2005, in the services of the Recognized and Aided
Educational Institutions, NonAgricultural Universities
and affiliated NonGovernment Colleges and
Agricultural Universities etc., to whom the existing
pension scheme and General Provident Fund Scheme is
applicable.
(c) In exercise of the powers conferred by the proviso to
Section 248 of the Maharashtra Zilla Parishads and
Panchayat Samiti’s Act 1961 (Mah.V of 1962) and of all
the other powers enabling it in that behalf, Government
is further pleased to decide that the above decision
shall apply to the employees, who are recruited on or
after 1st November 2005 in the services of Zilla
Parishads.
IMPORTANT INSTRUCTIONS TO ADMINISTRATIVE
DEPARTMENTS/ APPOINTING AUTHORITIES
5. Consequent to the above decision,
a) Government is pleased to direct that General
Administration Department and all concerned
administrative departments in Mantralaya, should take
immediate steps to notify appropriate amendments to
all concerned "Recruitment Rules".
b) Government is also pleased to direct that General
Administration Department, all other concerned
administrative departments in Mantralaya, all Selection
Boards in the State, Maharashtra Public Service
Commission and all appointing authorities should
immediately bring in writing to the notice of all the
candidates who are to be recruited on various
Government establishments, on or after 1st November
2005 that,
"On their appointment to the Government Service
on or after 1st November 2005, they would be covered
under New "Defined Contribution Pension Scheme" and
that the existing pension scheme (i.e. Maharashtra Civil
Services (Pension)Rules, 1982 and Maharashtra Civil
Services (Commutation of Pension) Rules, 1984) and
General Provident Fund Scheme will not be applicable
to them."
6. Detailed instructions regarding the procedure to be
adopted by Heads of Department/Offices/Drawing and
Disbursing Officers in respect of drawal of bills,
recovery of contribution from Government employees,
payment of Government contribution, etc., as well as
the instructions regarding the accounting procedure,
arrangement regarding fund management and record
keeping etc., will be issued shortly.
7. Formal amendment to the Maharashtra Civil Services
(Pension) Rules, 1982 and Maharashtra Civil Services
(Commutation) Rules, 1984 and General Provident
Fund Rules, in terms of the decision contained in this
order are being made separately.
8. This order will be available on the following Web Sites
of Government :
(i) finance.mah.nic.in
(ii) www.maharashtra.gov.in
By order and in the name of the Governor of Maharashtra,
NASIMA M. SHAIKH,
Deputy Secretary to Government”
(emphasis added)
12 The stand of the State Government as reflected from the
affidavit of Shri Neeraj P. Dhote, Joint Secretary of Law and Judiciary
Department is that the New Scheme is being made mandatory to all
Government Servants who retire on or after 1st November, 2005.
Reliance is placed on amendment to the Maharashtra Civil Services
(Pension) Rules, 1992 by incorporating SubRule (2) in Rule 2 which
provides that these Rules shall not apply to the Government Servants
who are recruited on or after 1st November, 2005. The stand taken in
paragraph 9 is that in the appointment letters issued to the Judicial
Officers after 1st November, 2005 it has been specifically mentioned that
they will be governed by the New Scheme. By way of illustration,
reliance is placed on a letter of appointment issued to a Judicial Officer
on 7th June, 2016.
13 The learned Counsel for the Petitioner submitted that the
Pensionary benefits payable to the Judicial Officers of the State are
governed by the aforesaid directions issued from time to time and the
Government Resolutions issued from time to time on the basis of the
orders of the Apex Court. Therefore, the action of applying the New
Scheme under the impugned Government Resolution without seeking
modification of the orders of the Apex Court is illegal. The learned
Advocate General defended the impugned Government Resolution. The
learned senior counsel representing the Maharashtra State Judges
Association supported the stand taken by the Petitioner. The learned
counsel for the High Court administration has assisted the Court by
pointing out various directions of the Apex Court.
14 We have considered the submissions. There is a fallacy in the
stand taken by the State Government. In fact, the State Government
accepted the recommendations of Padmanabhan Committee appointed
under the orders of the Apex Court. The Apex Court by an order dated
26th July, 2010 directed that the benefits recommended by the
Padmanabhan Committee should be applied with effect from 1st
January, 2006. As per the orders of the Apex Court, service conditions
of the Judicial Officers in the State including pensionary benefits shall
be in terms of recommendations of Padmanabhan Committee which are
accepted by the Supreme Court. As far as pensionary benefits to the
Judicial Officers are concerned what operates is the Government
Resolution dated 5th January, 2011 (as modified on 30th March 2011.
Prior to acceptance of the report of the Padmanabhan Committee, the
service conditions were governed by the Report of Justice Shetty
Commission as modified by the Apex Court. The recommendations as
amended by the order of the Apex Court were in operation. Therefore,
when the impugned Government Resolution was issued, the order of
the Apex Court directing that service conditions of the Judicial Officers
shall be governed by the Shetty Commission Report was in force.
Therefore, the action of applying the impugned Government Resolution
to the Judicial Officers is completely contrary to the directions of the
Apex Court. In fact, the impugned Government Resolution is not at all
applicable to the Judicial Officers who are appointed from 1st
November, 2005. The terms and conditions of service of Judicial
Officers including the grant of pensionary benefits are governed by the
directions of the Apex Court. Therefore, even if the letters of
appointment issued to the Judicial Officers appointed after 1st January,
2005 contain a clause that the pension will be governed by the
impugned Government Resolution, the same will not be binding on the
Judicial Officers.
15 As per the New Scheme introduced by the impugned
Government Resolution, a government servant is required to make
contribution equivalent to 10% of his basic salary plus dearness pay and
the said amount will be deducted from his salary. The salary payable to
the Judicial Officers is determined firstly by recommendations of Shetty
Commission and secondly by recommendations of Padmanabhan
Committee as accepted by the Apex Court. The State Government
cannot affect the quantum of salary of Judicial Officers in this fashion
by providing for a deduction of 10% of basic salary plus dearness pay
from the salary of a Judicial Officer. The orders of the Apex Court do
not permit such a deduction to be made. Making of such deduction
from the salary of a Judicial Officer will be a breach of the orders of the
Apex Court.
16 Therefore, in our considered view, the impugned
Government Resolution could not have been applied to the Judicial
Officers appointed after 31st October 2005 and the action of
Government of Maharashtra of applying the same to the Judicial
Officers is completely in breach of the orders of the Apex Court.
17 Certain amounts have been deducted by way of
contribution to the Pension Scheme from the salary payable to the
Judicial Officers appointed on or after 1st November, 2005. It goes
without saying that if some of the Judicial Officers who have been
appointed after 31st October, 2005 have no objection for continuing
with the New Scheme under the impugned Government Resolution,
they will be entitled to continue under the New Scheme. The State
Government will have to give time of two months from today to all the
Judicial Officers appointed on or after 1st November 2005 to exercise
option of continuing under the New Scheme. However, those who do
not opt for the Scheme, will be entitled to refund. After deducting
matching contribution made by the Government with interest/ return, if
any, thereon, the entire amount in “Pension Tier – I” account of the
Judicial Officers who do not opt to continue shall be transferred to
“Pension Tier – II withdrawable account”.
18 Accordingly, we hold that :
(i) We hold that the impugned Government Resolution
dated 31st October, 2015 is not applicable to the Judicial
Officers in the State who were appointed on or after 1st
November 2005. The said officers will be entitled to the
same pensionary benefits which are available to the
judicial officers appointed before 1st November 2005.
However, the judicial officers who are appointed on or
after 1st November 2005 will have an option to continue
under the New Scheme;
(ii) The State Government shall give an option to the
Judicial Officers appointed after cutoff date (31st
October 2005) to continue under the New Scheme
under the impugned Government Resolution. The
option shall be exercised within a period of two months
from today. The judicial officers who fail to exercise the
option will be governed by Pension Scheme which is
applicable to all Judicial Officers appointed before 1st
November, 2005.
(iii) In case of those Judicial Officers who do not opt to
continue with the New Scheme under the impugned
Government Resolution, the entire contribution
deducted from their salary along with the
return/interest accrued thereon shall be transferred
from their respective “Pension TierI account” to their
“Voluntary TierII withdrawable Account” within a
period of three months from today. We make it clear
that the State Government's Matching Contribution with
interest/ return accrued thereon shall not be transferred
as aforesaid and the State Government shall be entitled
to withdraw the same from Tier – I account. The
Judicial Officers will be entitled to withdraw the
amounts as and when the same are transferred to
“Voluntary Tier – II withdrawable Account”.
(iv) Now this Petition shall be placed before the appropriate
Bench on 14th August 2017 for directions.
(A.K. MENON, J ) (A.S. OKA, J )
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