STATEMENT OF FACTS

The case is regarding the addition of services for the purpose of pension on
retirement for the judges, who are appointed from the Bar. The petitioners are
the former Judges of the various High Courts and also from Association of the
Retired Judges of the Supreme Court and the High Courts elevated from the Bar.
When persons who occupied the Constitutional Office of Judge, High Court retire,
there should not be any discrimination with regard to the fixation of their
pension. Irrespective of the source from where the Judges are drawn, they must
be paid the same pension. The appointment of a Judge of the High Court is from
two different sources: (a) from amongst the Judicial officers who have held the
office for at least 10 years; and (b) the members of the Bar, who have been
Advocates of a High Court for at least 10 years. Judges appointed from Judicial
Service get full pension even if they have worked as a Judge of the High Court for
2 or 3 years and their entire service is added to their service as a Judge of the High
Court for computing pension and for the Judges who are directly appointed from
the bar have to complete 7 years of service to receive full pension benefits,
Mostly members of the Bar are selected to the post of Judges at the age of 50-
55years so by this reason they cannot fulfill the criteria of pension benefits and
also they have given up their service. The members of judicial service get more
pension than the Judges elevated from the Bar on retirement. For these reasons,
many of them are reluctant to accept the offer as the post-retirement benefits are
not attractive enough. So the fixation of higher pension benefits to High Court
Judges appointed from Judicial service who served a shorter period is highly
discriminatory and violative of Article 14, 16(1) and 21 of the Indian Constitution.
STATEMENT OF JURISDICTION
THE RESPONDENT HEREBY SUBMITS THIS MEMORANDUM BEFORE THE

HONOURABLE SUPREME COURT OF INDIA UNDER ARTICLE 32 OF CONSTITUTION

OF INDIA

QUESTIONS PRESENTED
A. Whether the Writ Petition is maintainable or not?

B. Whether High Court Judges, who are appointed from the Bar under Article
217(2)(b) of the Constitution of India, on retirement, are entitled for an addition
of 10 years to their service for the purpose of pension?

C. Whether Part-I and Part-III Judges who hold equivalent posts, are not similarly
situated in regard to pension and retirement benefits? Whether that is breach of
Articles 14,16(1) and 21 of the Constitution of the India?
SUMMARY OF ARGUMENTS
C. Whether Part-I and Part-III Judges who hold equivalent posts, are not similarly
situated in regard to pension and retirement benefits? Whether that is breach of
Articles 14, 16(1) and 21 of the Constitution of the India?

C.1. Pension and retirement benefits granted to part I and part III judges of
highcourt can be considered to be just.

C.2. Pension granted to High Court judges on the basis of source from which they
were drawn cannot be considered to be discriminatory and violative of article 14.

C.3.One Rank One Pension is not applicable in the case of determination of

pension of High Court judges.

C.4. Difference in the amount of pension granted to part I and part III judges are
not violative of Article 16(1) and Article 21 of the constitution.

C.5. Addition of ten years of service shall not be made to the service of part I
judges for the computation of pension benefits.
ARGUMENTS ADVANCED
C.1. Pension and retirement benefits granted to part I and partIII judges of
highcourt can be considered to be just.

The appointment of a judges of the high court is governed by Article 217(2)(a) &
217(2)(b) of the constitution which envisages appointment from two different
sources (a) from amongst the judicial officers who held the office for at least 10
years and (b) the members of the bar who have been advocates of high court for
at least 10 years. In Chandra Mohan v. State of U.P 1 it was held that “judicial
office” as used in A.217(2)(a) must be a part of judicial service of the state.

Part I of the HCJ Act deals with the pension for retired judges of the high court
who are directly appointed from the bar wheras Part III deals with the judges
elevated from the state judicial service.

Section 14 of High Court Judges (salaries and conditions of service) Act,1954

provides that Subject to the provisions of this Act, every Judge payable 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 for pension; or

(b) he has attained the age of sixty-two years; or

(c) his retirement is medically certified to be necessitated by ill-health.

Clause 2 of part I to the first schedule of the act deals with pension for retired
judges of High Court , who are directly appointed from the bar which provides
that no pension is payable to the judges having less than 7 years of service as a
judge. This section further shows that a judge of the High Court to receive full
pension benefits he should have completed 12 years of service as a judge of High
Court .

1.AIR 1966 SC
Section 15 of the HCJ Act provides that every judge who has held any other
pensionable post under the union or a state shall on his retirement be paid a
pension in accordance with the scale and provisions in part III of the first
schedule.

However according to section 16 of HCJ Act the president of India may for special
reasons direct that any period not exceeding three months shall be added to the
service for pension of a judge .

As the judges of HC are drawn from two different sources the pension granted to
them should differ and it can be considered to be just. Because the ability of
judges elevated from judicial service will be different as that of the judges
elevated from bar i.e. they have more experience than part I judges. A lawyer is
capable of earning several times more than any judge . A lawyer of certain
standing , i.e., the ones capable of being considered for appointment as judge
can earn far more as lawyers than they can even earn as judges. Becoming a judge
brings with it a significant reduction of earnings . Whereas a lawyer from bar
appointed as high court judge are lawyers who are generally at the age of about
50 or above thus till that age they had enjoyed a total freedom of practice at any
court in the country according to their wish.There is no limit of remuneration that
they can receive from their client which is much more that they can earn even if
they becomes supreme court judge. Whereas judges drawn from judicial service
were dependent on the service conditions and regulations. His salary and benefits
are dictated by the government rules. Their movements or liberty are subjected
to rules and regulations. And if they want to go out of station from posting station
they have to get permission.they have myriad responsibilities inside and outside
court room. There may be limitation as to what he can or cannot practice i.e., in
respect to engage in any business practices etc. So hence they may be prevented
from getting such benefits of a lawyer . So as because of these differences the
difference in pension must be provided to part I and Part III judges as it is just and
fair.
B. Malik v. Union Of India & Another. 2 It was held that under A.221 of the
constitution 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 shall be varied
to his disadvantage after his appointment.

2.AIR 1970 All. 268

C.2. Pension granted to high court judges on the basis of source from which they
were drawn cannot be considered to be discriminative and volative of article 14.

Discrimination occurs only when you are less favourably than another person in a
similar situation and this treatment cannot be objectively and reasonably
justified.

Article 14 of the Constitution of India provides for equality before the law or equal
protection of the laws within the territory of India. It states:

"The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India."

The phase “ equality to the law “ find a place in all written constitutions that
guarantees fundamental rights. “All citizens irrespective of birth, religion, sex, or
race are equal before law ; that is to say, there Shall not be any arbitrary
discrimination between one citizen or class of citizens and another.” “All citizens
shall, as human persons he held equal before law.” “All inhabitants of the republic
are assured equality before the laws.”” equal protection of the law” which implies
"Equal Treatment in Equal Circumstances".

Article14 permits classification, so long as it is reasonable , but forbids class

legislation. A classification of group of people is considered to be reasonable
when3

1.The classification is based upon intelligible differentia that distinguishes person

or things that are grouped from others that are left out of the group and,

2.The differential has a rational relation with the objective of the act.

For the first the word reasonable classification or intelligible differentia was used
in the case of Chiranjitlal v. Union Of India4

3.Ram Krishna dalmia v. justice S.R Tendolkar(1958 AIR 538)

3. 1951 AIR 41
Article 14 uses two expressions equality before law and equal protection of law
which means like should be treated alike and equal protection of law which
implies equal treatment in equal circumstances means unlike should not be
treated alike . But here judges are drawn from two different sources so
eventhough they are similarly ranked source from which they are chosen are
different so they cannot be considered to be like and no necessity for equal
treatment as the circumstance are not equal. Hence A.14 is not violative and the
pension given to judges on this basis cannot be considered to be discriminatory.

In Ramesh Prasad v. state of Bihar 5.,it is to be noted that the aim of both the
concept equality before law and equal protection of law is the equal justice. This
concept implied equality for equals and aims at striking down hostile
discrimination and oppression of inequality . As here there is no discrimination
and its not violative od article 14. If equal pension is given to high court judges
irrespective of the fact from where they are drawn it would result in injustice as
they are unlike.

5. AIR 1978 SC 327

C.3. One Rank One Pension is not applicable in the case of determination of
pension of high court judges.

One Rank One Pension (OROP), or "same pension, for same rank, for same length
of service, irrespective of the date of retirement", is a longstanding demand of the
Indian armed forces and veterans.

OROP is used till now for deciding pension of Indian Armed forces personnel and
it cannot be made applicable to determine the pension of retired judges of high
court and also the norm provides for same length of service. Eventhough both
part I and part III are similarly ranked and render sevice for equal period in high
court part III judges have more lenth of judicial service and hence this cannot be
applied.

In the case of retired judicial officers Rules regarding pension and commutation
thereof have been specifically set forth in the report of pay commission as well as
in the order of respective governments accepting the same 6 . As far as the report
doesn’t provides for such a change in the pension to part I and part III judges and
also there is no order with regard to OROP we cannot consider OROP AS norm
and thus its not applicable.

In Indian ex-services leagues and others v. Union Of India 7 it was held that all
pensioners governed by the 1972 rules and army pension regulations shall be
entitled to pension as computed under the liberalized pension scheme and the
principle of OROP cannot apply earlier.

6.Cherian vargheese v. State Of Kerala(2015 4KLT 895)

7.1991 AIR 1182

C.4. Not giving same amount of pension to part I and part III judges are not
violative if Article 16(1) and article 21 of the constitution.

Article 16(1) provides that there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State. It
gives the right only to equal opportunity in the case of employment.

In State Of Kerala and another v. N M Thomas and others 8 it was held that Article
16(1) permits equal opportunity for all citizens. But, by the classification, there
can be no discrimination on the ground only of race, caste and other factor
mentioned in Art. 16(2). A valid classification is truly a valid discrimination.
Article 16 of the constitution of India permits a valid classification which is so held
in State Of Kerala V. N M Thomas 9.Therfore the classification made as Part I and
Part III is valid.

The employment opportunity is given to lawyers as well as judicial officers so

there is no violation of Article 16and also eventhough the constitution doesn’t
provides for a quota in practice 2/3% of vacancies were filled from amongst
members of the bar and 1/3% from the judicial services however the chief justice
of High Court can propose more service judges being appointed if suitable
members of the bar are not available. But this cannot be more than 40% in any
case . Hence more opportunity is provided to judges from the bar its not violative
of article 16(1) .

Article 21 of the constitution deals with Protection of life and personal liberty
which provides that.,No person shall be deprived of his life or personal liberty
except according to procedure established by law.

8. 1976 AIR 490

9.1976 AIR SCR(1) 906

Pension is the living need of elderly person. It is important that record of their
dues should be considered as “life and liberty”. In this case no one is dfeprived of
pension. So the claim that present pension scheme violates Article 21 is pointless.
A Bench comprising of Madan B Locker, Deepak Gupta JJ issued certain direction
for enforcing elderly peoples right under Article 21 of the constitution.

In this case there is no violation of Article 21 because according to HCJ Act

pension is given under section 14(2) to every judges. Denial of pension will only
amounts to violation of Article and the pension is given according to the statute
following the reasonable classification mentioned in the said Act as part I and part
III.

In E Arumugham(Retd) v. The Government of India 10 it was held that the

principles of legitimate expectation has no application to the facts of the present
case and there is no violation of Article 21 of the constitution of India . So hence
even if they have legitimate expectation to get equal amount of pension it cannot
be so done as the statute doesn’t contains such provision and also the pension is
granted to part I and part III judges respectively. Thus there is no violation of
article 21.

10.2015 Madras HC
C.5. Addition of 10 years shall not be made to the sevice of part I judges for the
computation of pension benefits.

Section 14 of the HCJ Act read with clause 2 of part-I of the first schedule deals
with pension payable to the retired judges of the high courts. 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 for pension; or

(b) he has attained the age of sixty-two years; or;

(c) his retirement is medically certified to be necessitated by ill-health

As 12years minimum service is provided in the statute for pension the addition of
ten years to the service shall not be made. Service of a person who served as
judge can only be considered and if the ten years service at the bar is added it
would be against statute. So hence unless and until the statute is amended the
pension scheme should be in accordance with the provisions of the statute and
therefore at present such an addition is not valid .And also service as a judge and
as an advocate is entirely different so both of them cannot be equated for
determining the pension of judges of High Court.

Section 14 of HCJ Act deals with pension payable to retired judges so payment
should be made to part I and PartIII judges in accordance with the provisions of
the Act till its amended and such a payment would not be considered to be
violative of Article 14,16(1) and 21 of the constitution of India.
 MEMORIAL FOR MOOT COURT-I
P. Ramakrishna Raju v. Union Of India

KAREESHMA B SUNIL

X th sem B.B.A LL.B

Roll No:26

SNGCLS,Kollam

PRAYER
In the light of issues raised, arguments advanced, it is most humbly and
respectfully prayed that before this hon’ble court to kindly adjudge and declare
that:

1. Writ Petition filed before the Hon’ble Court is not Maintainable.

2. The Judges appointed from Bar on retirement are not entitled for an addition of
10 years to their service for the purpose of pension.

3.Eventhough Part I and Part III Judges who hold equivalent posts are not similarly
situated in regards to pension and retirement benefits there is no violation of
Article 14 and 21 of the Constitution of India

The court may also be pleased to pass any order as the court may deem fit in the
interest of justice equality and good conscience.

Sd/

Counsel for Respondents