MUMBAI: The Bombay High Court has ruled that the term ‘retirement’ is of wide import and includes ‘resignation’ and not merely ‘superannuation’ under the law governing High Court Judges’ salaries. Consequently, the court directed that former High Court Judge Pushpa Ganediwala is entitled to her pension.
Notably, five other High Court judges who tendered their resignations were also receiving a pension, stated High Court Chief Justice Alok Aradhe and Justice Bharati Dangre. The bench quashed and set aside a November 2022 order of the High Court registry that held ex-Justice Ganediwala disentitled from claiming a pension for her services as an additional High Court Judge for almost three years and 11 years as a district judge.
“The expression ‘retirement’ used in sections 14 and 15(1) (provisions governing pension for Judges) of the High Court Judges (Salaries and Conditions of Services) Act, 1954, includes resignation as well,” the High Court held after an analysis of the law.
An order passed in January 2021 by the former Judge under the POCSO Act, when presiding as a Judge in the Nagpur bench of the High Court, came under controversy. Her petition stated she was appointed as a High Court additional Judge in 2019 for two years. While in January 2021, the Supreme Court collegium approved her appointment as a permanent Judge, it withdrew that recommendation and recommended her extension as an additional Judge for two more years.
The Centre, her petition said, extended her tenure for a year from February 13, 2021. Her petition stated she was “required to resign” as an additional Judge from February 11, 2022, and applied for her pension.
In 2023, she petitioned the High Court for her pension after being informed she was not eligible to claim it. Senior counsel Sunil Manohar, appearing for Ganediwala, argued that a Judge holds a constitutional office and not a post under the govt, and therefore, a claim for pension has to be decided in light of the constitutional as well as statutory provisions. He contended that the word ‘retirement’ under the Act cannot be construed narrowly and that “general principles of service jurisprudence cannot be made applicable” when deciding pension claims of a former High Court Judge.
Senior counsel Virendra Tulzapurkar, for the High Court on its administrative side, argued that a “resignation by a High Court Judge results in forfeiture of pension claim.” He contended that ‘retirement’ used in the High Court Judges Act does not include ‘resignation’. “Resignation” connotes unwillingness to continue in employment, which cannot be equated with “retirement,” Tulzapurkar submitted. The High Court said such contention doesn’t deserve acceptance.
The High Court noted the expression ‘retirement’ is not defined under the Act and invoked Black’s Law Dictionary and the Legal Thesaurus by William Burton to determine its meaning. Black’s Law says ‘retirement may be voluntary or involuntary’ and the High Court said it thus means “conclusion of a career” and “one of the meanings of the word ‘retire’ is to ‘resign.’
The High Court judgment held, “From careful scrutiny of Section 14 and 15 of the 1954 Act, it is evident that the entitlement of a judge to pension is on his retirement and the same includes an involuntary act as well, inasmuch as retirement on account of ill-health, as contemplated by clause 14(c) of the 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 the 1954 Act has not been used in a restricted sense to mean retirement on superannuation only.”
The High Court said “no explanation worth (its) name has been offered” by the department for taking a different stand in former Judge Ganediwala’s case alone, when paying pension for five others who resigned. The High Court, in its March 13 ruling, held the former Judge entitled to pension with effect from February 14, 2022. The High Court directed its registry to fix and grant her pensionary benefits within two months, along with a yearly six percent interest from February 2022.