Himachal Pradesh High Court
Reserved On: 03.07.2025 vs State Of H.P. And Another on 23 July, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:23845
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.3193 of 2019
Reserved on: 03.07.2025
.
Date of Decision: 23.07.2025
__________________________________________________________
Justice (Retired) V.K. Sharma .......Petitioner
Versus
State of H.P. and Another ....Respondents
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner: Ms. Devyani Sharma, Senior Advocate, with
Mr. Anirudh Sharma, Advocate.
For the Respondent: Mr. Anup Rattan, Advocate General with Mr.
Rajan Kahol and Mr. B.C. Verma, Additional
Advocates General and Mr. Ravi Chauhan,
Deputy Advocate General, for respondent
No.1/State.
Mr. V.B. Verma, Central Government Standing
Counsel, for respondent No.2.
__________________________________________________________
Sandeep Sharma, Judge:
Precisely, the question, which needs to be determined in
the case at hand is, “whether pension of retired High Court Judge,
can be subsequently ordered to be deducted from salary, which
he/she may receive on his appointment as Chairman of State
Administrative Tribunal (for short, ‘SAT’), in terms of Section 10 of
Administrative Tribunals Act, 1985, (for short, ‘the Act’) or not?”
2. For having bird’s eye view, facts relevant for adjudication of
the case at hand and more particularly for question framed hereinabove
are that on the request of respondent/State, Himachal Pradesh
1
Whether the reporters of the local papers may be allowed to see the judgment? Yes.
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-2-Administrative Tribunal (for short, ‘HPAT’) came to be reestablished
under Sub-Section (2) of Section 4 of the Act by the Government of
.
India, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training (for short, ‘DoP&T) vide
Notification dated 29.12.2014, published in the Gazette of India
(Annexure P-1). HPAT was to be manned by Chairman, one Judicial
Member and two Administrative Members. Petitioner herein, who had
retired as Judge of the High Court of Himachal Pradesh, came to be
appointed as Chairman of HPAT, by His Excellency, the President of
India, vide order dated 29.12.2014 (Annexure P-2). In terms of afore
order, pay of the petitioner was determined at Rs.80,000/- (fixed), with
the further stipulation that conditions of service are to be governed by the
provisions of the Act, as amended by the Administrative Tribunals
(Amendment) Act, 2006. Since there was a minor discrepancy in
Paragraph 2 of the order, relating to the term of office of the petitioner,
afore order, appointing petitioner as Chairman of HPAT, was partly
modified, vide subsequent order dated 19.02.2015 (Annexure P-4),
thereby modifying Paragraph 2 of the order, but other terms & conditions
mentioned in the order, remained untouched.
3. Petitioner took charge as Chairman of HPAT on 27.02.2015
(Annexure P-6), whereafter Department of Personnel, Government of
Himachal Pradesh, vide communication dated 28.02.2015 (Annexure P-
5), addressed to Registrar, HPAT, inter alia, communicated that scale of
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-3-the petitioner would be “regulated as per the rules notified by the
Government of India”. On 13.04.2015, Department of Personnel,
.
Government of Himachal Pradesh, issued an office order (Annexure P-
7), stating therein that consequent upon the appointment of Mr. Justice
V.K. Sharma (Retd.) as Chairman in the HPAT in the scale of pay of
Rs.80,000/- (fixed), vide Government of India, Ministry of Personnel,
Public Grievances and Pensions, DoP&T, Order No.A-11014/404/2008-
AT dated 29.12.2014, his pay is hereby fixed in the pay scale of
Rs.80,000/- (fixed) in accordance with the provisions of Himachal
Pradesh Administrative Tribunals (Salaries and Allowances and
Conditions of Service of Chairman, Vice Chairman and Members) Rules,
1986 (as amended from time to time) as well as in terms of Government
of Himachal Pradesh, Department of Personnel letter No.Per(AP B)A(1)-
1/2013 dated 28.02.2015. Pursuant to afore order, though pay of
petitioner came to be fixed in the scale of pay of Rs.80,000/- (fixed), but
minus pension i.e. Rs.4,80,000/- per annum, being received by the
petitioner in lieu of service rendered by him as Judge of the High Court.
4. For completion of facts, it is important to take note of the
fact that Government of Himachal Pradesh, vide letter dated 13.01.2014,
while setting-up Administrative Tribunal for the State of Himachal
Pradesh, also forwarded draft rules of Himachal Pradesh Administrative
Tribunal (Financial and Administrative Powers) Rules, 2014 and the
Himachal Pradesh Administrative Tribunal (Staff) (Conditions of Service)
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Rules, 2014, to DoP&T. Though vide communication dated 14.02.2014
(Annexure P-8), DoP&T made some minor corrections with the pencil in
.
the afore draft rules, but specifically informed respondent/State that in
terms of Sub-Section (3) of Section 8 of the Act, the service conditions of
the Chairman and Members of the Administrative Tribunals shall be
same as applicable to the Judges of the High Courts. While apprising
aforesaid fact, DoP&T further apprised State of Himachal Pradesh that
Himachal Pradesh Administrative Tribunal (Salaries and Allowances &
Conditions of Service of Chairman & Members) Rules, are not required
to be framed and service conditions of the Chairman and Members of
the proposed HPAT be governed by the provisions of the High Court
Judges (Salaries and Conditions of Service) Act, 1954 and Rules framed
thereunder. However, respondent/State vide communication dated
13.04.2015, as taken note hereinabove, though fixed the pay of the
petitioner in the scale of Rs.80,000/-, but minus pension being received
by him, in the capacity of retired High Court Judge. Interestingly, vide
communication dated 07.09.2015 (Annexure P-9), office of Additional
Chief Secretary (Personnel) to the Government of Himachal Pradesh,
apprised Registrar, HPAT, in response to communication dated
01.09.2015, that as per Para 3 of DoP&T letter No.A-11014/4/2008-AT
dated 14.02.2014, the service conditions of the Chairman and Members
of the HPAT are to be governed by the provisions of the High Court
Judges (Salaries and Conditions of Service) Act, 1954 and the Rules
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framed thereunder, but yet fixed the pay of the petitioner in the scale of
Rs.80,000/- (fixed), in terms of Himachal Pradesh Administrative
.
Tribunals (Salaries and Allowances and conditions of service of
Chairman, Vice Chairman and Members) Rules, 1986, which otherwise
stood repealed, on the date, erstwhile HPAT was abolished in the year
2008.
5. Though after receipt of communication dated 14.02.2014,
Department of Personnel, Government of Himachal Pradesh, vide office
order dated 11.12.2015 (Annexure P-10), rectified the error committed
by it while issuing order dated 13.04.2015 (Annexure P-7), thereby fixing
the salary of the petitioner at the rate of Rs.80,000/- in terms of Himachal
Pradesh Administrative Tribunals (Salaries and Allowances and
conditions of service of Chairman, Vice Chairman and Members) Rules,
1986 and recorded that scale of pay of the petitioner would be governed
by the provisions of High Court Judges (Salaries and Conditions of
Service) Act, 1954 and Rules framed thereunder, but again recorded that
pay of the petitioner would be “basic pay” less “pension”, i.e.
Rs.40,000/-, contrary to the previous order. Subsequently, in view of the
amendment made to the High Court Judges (Salaries and Conditions of
Service) Act, 1954 in January 2018, the Additional Chief Secretary
(Personnel) to the Government of Himachal Pradesh issued
communication dated 30.10.2018 (Annexure P-11) to the Controller
(F&A), Department of Personnel, Government of Himachal Pradesh, with
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a copy to the Registry of HPAT, inter alia, communicating therein that in
light of above mentioned amendments, scale of pay of the petitioner
.
shall be as Rs.2,25,000/- (fixed) by the Government of India. Though it
never came to be mentioned in afore order that pension admissible to
the petitioner as former Judge of the High Court of Himachal Pradesh
shall be deductible from the fixed pay of the petitioner as Chairman of
the HPAT, so determined, but vide office order dated 19.12.2018, issued
by Department of Personnel, Government of Himachal Pradesh
(Annexure P-12), it again came to be recorded that scale of pay of the
petitioner has been determined as Rs.2,25,000/- (fixed) and the same
would be “basic pay” less “pension” i.e. Rs.1,12,500/-.
6. In the afore background, petitioner made a detailed
representation (Annexure P-13) on 28.03.2019 to respondent No.1
through Registrar, HPAT, but the same was rejected on 05.09.2019
(Annexure P-15) vide communication dated 13.09.2019 (Annexure P-
14). Perusal of aforesaid communication reveals that reason for rejection
was the Rules of the Himachal Pradesh Administrative Tribunals
(Salaries and Allowances and Conditions of Service of Chairman, Vice
Chairman and Members) Rules, 1986 (Annexure P-16), wherein it was
provided that Chairman/Vice Chairman or a Member shall receive salary
as determined, but after deducting pension received by him from
previous office. In afore communication, it also came to be recorded that
appointment of petitioner as Chairman of HPAT is a case of
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reemployment and as such, he is not entitled to pension, being received
by him, on account of his having retired as Judge of the High Court, in
.
addition to salary, attached to the post of Chairman. Before controversy
inter se petitioner and State of Himachal Pradesh could be resolved,
HPAT was abolished vide notification dated 26.07.2019 (Annexure P-
19). In afore background, petitioner has approached this Court in the
instant proceedings filed under Article 226 of the Constitution of India,
praying therein for following main reliefs:
“(I) That a writ in the nature of certiorari may kindly be issued
thereby quashing and setting aside Annexure P-7 (Colly) dated13.4.2015, 13.5.2015, 2.9.2015, 16.12.2015, 2.6.2016, 24.6.2017,
13.12, 2018 and 22.7.2019, Annexure P-10 dated 11.12.2015,
Annexure P-12, dated 19.12.2018, Annexure P-15, dated 5.9.2019
and Annexure P-17 dated 30.8.2019.
(II) That a writ in the nature of writ of mandamus may kindly be
issued thereby directing the Respondent to strictly implementAnnexure P-2, appointment order dated 29.12.2014, issued by His
Excellency, the President of India, read with communication dated
30.10.2018, Annexure P-11, and thereafter make the entire
payment of arrears to the petitioner alongwith interest at the rate of12% per annum and same legal position be held with respect to
payment of pension, gratuity, leave encashment, etc. etc.admissible to the Petitioner in relation to the independent service as
the Chairman, Himachal Pradesh Administrative Tribunal.”
7. Pursuant to notices issued in the instant proceedings,
respondent No.1 and 2 have filed replies, perusal whereof reveals that
facts, as have been noticed hereinabove, are not in dispute. Attempt has
been made to defeat the claim of the petitioner as put forth hereinabove
through petition at hand on the ground that pay & allowances of the
petitioner pursuant to his appointment as Chairman of HPAT are to be
governed by the provisions contained under Himachal Pradesh State
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Administrative Tribunal Act, Section 10 of the Act and Himachal Pradesh
Administrative Tribunals (Salaries and Allowances and conditions of
.
service of Chairman, Vice Chairman and Members) Rules, 1986.
Besides above, ground of delay and laches has been also raised at the
behest of respondent/State. In nutshell, it has been stated at the behest
of respondents that pay of the petitioner has been rightly fixed after
following the general principle of “pay minus pension” in case of
reemployed pensioners. While refuting the claim of the petitioner, that his
pay has been wrongly fixed by reducing the amount of pension from the
last pay drawn, it has been stated at the behest of respondents that in
view of provisions of fixation of pay of Re-employed Pensioners-Central
Civil Services (Fixation of Pay of Reemployed Pensioners) Orders, 1986
and Para 4 and 8(iv) of the Government of India, Office Memorandum
dated 01.05.2017 (Annexure R/II), no illegality can be said to have been
committed by the respondents while deducting pension from the salary
received by the petitioner in the capacity of Chairman of HPAT. Lastly, it
has been submitted that petitioner could have refused to accept the offer
of appointment to this position in case the service conditions were not
acceptable to him, however, petitioner has approached this Court, after
his term of office was over and as such, plea raised by him otherwise
deserves to be rejected on the ground of delay and laches.
8. Reply filed on behalf of respondent No.2 i.e. Union of India,
if perused in its entirety, suggests that conditions of service of
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Chairman/Members appointed on or after 19.02.2007 were governed by
Sub-Section (3) of Section 8 of the Administrative Tribunal (Amendment)
.
Act, 2006. It is further averred in the reply of respondent-Union of India
that there is no provision in the High Court Judges Rules, 1956 (as on
01.02.2015), as to how the pay of a retired Judge will be determined on
accepting a new appointment/assignment under Central/State
Government. However, Rule 2 of High Court Judges Rules, 1956, states
that the conditions of service of a Judge of a High Court for which no
express provision has been made in the High Court Judges (Condition of
Service) Act, 1954, shall be deemed to have been determined by the
Rules for the time being applicable to a member of an IAS holding the
rank of Secretary to the Government of the State in which the principal
seat of the High Court is situated. It is further averred in the reply of
respondent-Union of India that pay of the reemployed pensioners who
are reemployed in civil services and posts in connection with the affairs
of Union Government after retirement, is governed by the Central Civil
Services (Fixation of Pay of Reemployed Pensioners) Orders, 1986
(Annexure R-2/1), issued vide DoP&T OM dated 31.07.1986 (as revised
from time to time). As per reply of respondent-Union of India, pay of the
reemployed pensioners who are reemployed in civil services and posts
in connection with the affairs of Union Government after retirement, is to
be fixed by reducing the gross amount of pension drawn by him as per
Para 4(ii) of Order, 1986. It has been further submitted by respondent-
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Union of India that Central Administrative Tribunal (CAT) vide letter
dated 27.01.2020 (Annexure R-2/2), has informed that it has been in the
.
practice of fixing the pay of retired High Court Judges, when appointed
as Chairman/Members in CAT, in terms of Section 10 (Salaries and
Allowances and Other terms of Conditions of Services of Chairman,
Vice-Chairman and Members) of the Administrative Tribunals Act, 1985,
read with the provisions of CCS (Fixation of Pay of Reemployed
Pensioners) Orders, 1986, after reducing the gross amount of pension,
drawn by him. r
9. I have heard the parties and gone through the record of the
case, as well as law cited by learned counsel representing the parties,
which shall be discussed in later part of the judgment.
10. Before ascertaining the correctness of rival submissions
made at the behest of parties to the lis, this Court finds it necessary to
take note of relevant provisions of the Act as well as certain
communications, exchanged inter se State of Himachal Pradesh and
Government of India, thereby clarifying that which of rules, shall be
applicable in the case of retired High Court Judge, who subsequently
came to be appointed as Chairman of HPAT, for his pay and other
allowances. At this stage, it would be apt to take note of Sections 6, 8
and 10 of the Act, which reads as under:
“6. Qualifications for appointment as Chairman, Vice-Chairman
and other members.–
(1) A person shall not be qualified for appointment as the Chairman
unless he is, or has been, a Judge of a High Court:
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-11-Provided that a person appointed as Vice-Chairman before the
commencement of this Act shall be qualified for appointment as
Chairman if such person has held the office of the Vice-Chairman at
least for a period of two years.
.
(2) A person shall not be qualified for appointment,–
(a) as an Administrative Member, unless he has held for at least two
years the post of Secretary to the Government of India or any other
post under the Central or State Government and carrying the scale of
pay which is not less than that of a Secretary to the Government ofIndia for at least two years or held a post of Additional Secretary to the
Government of India for at least five years or any other post under the
Central or State Government carrying the scale of pay which is not less
than that of Additional Secretary to the Government of India at least for
a period of five years:
Provided that the officers belonging to All-India services who were or
are on Central deputation to a lower post shall be deemed to have held
the post of Secretary or Additional Secretary, as the case may be, from
the date such officers were granted proforma promotion or actual
promotion whichever is earlier to the level of Secretary or AdditionalSecretary, as the case may be, and the period spent on Central
deputation after such date shall count for qualifying service for the
purposes of this clause;
(b) as a Judicial Member, unless he is or qualified to be a Judge of a
High Court or he has for at least two years held the post of a Secretary
to the Government of India in the Department of Legal Affairs or theLegislative Department including Member-Secretary, Law Commission
of India or held a post of Additional Secretary to the Government of
India in the Department of Legal Affairs and Legislative Department atleast for a period of five years.
(3) The Chairman and every other Member of the Central
Administrative Tribunal shall be appointed after consultation with theChief Justice of India by the President.
(4) Subject to the provision of sub-section (3), the Chairman and every
other Member of an Administrative Tribunal for a State shall beappointed by the President after consultation with the Governor of the
concerned State.
(5) The Chairman and every other Member of a Joint Administrative
Tribunal shall, subject to the provisions of sub-section (3) and subject
to the terms of the agreement between the participating State
Governments published under sub-section (3) of section 4 of the
principal Act, be appointed by the President after consultation with the
Governors of the concerned States.
Explanation.–In computing for the purpose of this section, the period
during which a person has held any post under the Central or State
Government, there shall be included the period during which he has
held any other post under the Central or State Government (including
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an office under this Act) carrying the same scale of pay as that of first
mentioned post on a higher scale of pay.”
8. Term of office.–
.
(1) The Chairman shall hold office as such for a term of five years from
the date on which he enters upon his office:
Provided that no Chairman shall hold office as such after he has
attained the age of sixty-eight years.
(2) A Member shall hold office as such for a term of five years from the
dale on which he enters upon his office extendable by one more term of
five years:
Provided that no Member shall hold office as such after he has attained
the age of sixty-five years.
(3) The conditions of service of Chairman and Members shall be the
same as applicable to Judges of the High Court.
10. Salaries and allowances and other terms and conditions of
service of Chairman, and other Members.–The salaries and
allowances payable to, and the other terms and conditions of service
(including pension, gratuity and other retirement benefits) of, the
Chairman, *** and other Members shall be such as may be prescribed
by the Central Government:
Provided that neither the salary and allowances nor the other terms and
conditions of service of the Chairman, *** or other Member shall be
varied to his disadvantage after his appointment.
[Provided further that where a serving Government officer is appointed
as a Member, he shall be deemed to have retired from the service to
which he belonged on the date on which he assumed the charge of theMember but his subsequent service as Member shall, at his option, be
reckoned as a post-retirement re-employment counting for pension and
other retirement benefits in the service to which he belonged.][10A. Saving terms and conditions of service of Vice-Chairman.–The
Chairman, Vice-Chairman and Member of a Tribunal appointed before
the commencement of the Administrative Tribunals (Amendment) Act,2006 (1 of 2007) shall continue to be governed by the provisions of the
Act, and the rules made thereunder as if the Administrative Tribunals
(Amendment) Act, 2006 had not come into force:
Provided that, however, such Chairman and the Members appointed
before the coming into force of Administrative Tribunals (Amendment)
Act, 2006 (1 of 2007), may on completion of their term or attainment of
the age of sixty-five or sixty-two years, as the case may be, whichever
is earlier may, if eligible in terms of section 8 as amended by the
Administrative Tribunals (Amendment) Act, 2006 be considered for a
fresh appointment in accordance with the selection procedure laid
down for such appointments subject to the condition that the total term
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-13-[10B. Qualifications, terms and conditions of service of Chairman and
Member.–Notwithstanding anything contained in this Act, the
qualifications, appointment, term of office, salaries and allowances,
resignation, removal and the other terms and conditions of service of.
the Chairman and other Members of the Tribunal appointed after the
commencement of 3[the Tribunals Reforms Act, 2021, shall be
governed by the provisions of Chapter II of the said Act]:
Provided that the Chairman and Member appointed before the
commencement of Part XIV of Chapter VI of the Finance Act, 2017,shall continue to be governed by the provisions of this Act, and the
rules made thereunder as if the provisions of section 184 of the
Finance Act, 2017 had not come into force.”
11. As per Sub-Section (1) of Section 6 of the Act, as
reproduced hereinabove, only sitting or retired Judge of High Court shall
be qualified for appointment as Chairman of the Administrative Tribunal.
Sub-Section (3) of Section 8 of the Act provides that conditions of
service of Chairman and Members of the Administrative Tribunal shall be
the same as applicable to Judges of the High Court. As per Section 10 of
the Act, the salaries and allowances payable to, and the other terms and
conditions of service (including pension, gratuity and other retirement
benefits) of the Chairman and other Members shall be such as may be
prescribed by the Central Government. Most importantly, proviso (1) to
aforesaid provision clearly provides that neither the salary and
allowances nor the other terms and conditions of service of the
Chairman or other Member shall be varied to his disadvantage after his
appointment.
12. At this stage, it would be also apt to take note of Article 221
of the Constitution of India, which reads as under:
“221. Salaries etc., of Judges
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-14-(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 norhis rights in respect of leave of absence or pension shall be varied to
his disadvantage after his appointment.”
13. Bare perusal of aforesaid provision of the Constitution
suggests that neither the allowances of Judge of the High Court nor his
rights in respect of leave of absence or pension shall be varied to his
disadvantage after his appointment. Precisely the aforesaid provision
contained in the Constitution of India is pari materia to proviso (1) to
Section 10 of the Act.
14. Now being guided by law laid down by Hon’ble Apex Court
as well as other Constitutional Courts and afore provisions contained in
the Act, this Court would make an endeavour to ascertain the
correctness of the claim put forth by the petitioner.
15. In nutshell, case of the petitioner, as has been highlighted in
the petition and further canvassed by Ms. Devyani Sharma, learned
Senior Counsel representing the petitioner is that since petitioner was
appointed by His Excellency, the President of India, vide order dated
29.12.2014 (Annexure P-2), specifically providing therein that scale of
pay of the petitioner shall be Rs.80,000/- (fixed), there was no occasion,
if any, for respondents to reduce the same by deducting the pension
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received by him, in lieu of service rendered by him as a Judge of High
Court of Himachal Pradesh.
.
16. It is not in dispute that petitioner was appointed as
Chairman of the HPAT pursuant to the order dated 29.12.2014 passed
by His Excellency, the President of India. Careful perusal of order clearly
reveals that scale of pay of the petitioner was determined at Rs.80,000/-
(fixed). If the aforesaid order is read in its entirety, there appears to be
merit in the contention of Ms. Devyani, learned Senior Counsel
representing the petitioner that scale of pay so determined was fixed and
no deduction in relation to the same was contemplated. Though, it came
to be argued by Mr. Anup Rattan, learned Advocate General that order
dated 29.12.2014 issued by His Excellency, the President of India, itself
provides for governing of condition of service of petitioner as Chairman
of HPAT by the provisions of the Administrative Tribunal Act, 1985, as
amended by the Administrative Tribunals (Amendment) Act, 2006 i.e.
Section 10, but careful perusal of aforesaid provision of Act suggests
that salaries and allowances payable to, Chairman and other Members
shall be such as may be prescribed by the Central Government.
17. In the case at hand, salary and allowances payable to
Chairman and other Members never came to be prescribed by the
Central Government. Vide notification dated 13.12.1989, DoP&T, in
exercise of powers conferred by Sub-Section (1) read with Clause (c) of
Sub-Section (2) of Section 36 of the Act, whereby Central Government
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promulgated Rules to amend the Himachal Pradesh Administrative
Tribunal (Salaries and Allowances and Conditions of Service of
.
Chairman and Members) Rules, 1986, namely, Himachal Pradesh
Administrative Tribunal (Salaries and Allowances and Conditions of
Service of Chairman and Member) Amendment Rules, 1989, providing
therein that in case of appointment as a Chairman or a Member, a
person who has retired as a Judge of a High Court or who has retired
from service under the Central Government or a State Government and
who is in receipt of or has received or has become entitled to receive any
retirement benefits by way of pension and or gratuity, employer’s
contribution to the Contributory Provident Fund or other forms of
retirement benefits, the pay shall be reduced by the gross amount of
pension equivalent of service gratuity or employer’s contribution to
Contributory Provident Fund or any other form of retirement benefits, if
any, but excluding pension equivalent of retirement gratuity, drawn or to
be drawn by him. Subsequently Rule 15A came to be inserted, providing
therein that notwithstanding anything contained in the Rules 4 to 15 of
the Central Rules, the condition of service and other perquisites
available to the Chairman of the HPAT shall be the same as admissible
to serving Judge of High Court as contained in High Court Judges
(Salaries and Conditions of Service) Act, 1954 (28 of 1954) and High
Court Judge (Travelling Allowances) Rules, 1956 (Annexure P-16).
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18. Though while placing reliance upon afore Rules, Mr. Anup
Rattan, learned Advocate General attempted to argue that since in the
.
appointment letter of petitioner, it was stipulated that his salary and
allowances shall be governed under the Act, no illegality can be said to
have been committed by the respondents while ordering deduction of
pension from the salary received by the petitioner on account of his
being Chairman of HPAT. However, this Court having carefully perused
Section 10, which has otherwise been reproduced hereinabove, is not
persuaded to agree with learned Advocate General for the reason that
notification dated 13.12.1989 (Annexure P-16), whereby Himachal
Pradesh Administrative Tribunal (Salaries and Allowances and
Conditions of Service of Chairman and Members) Rules, 1986, came to
be formulated, otherwise could not have been made applicable in the
case of the petitioner as afore Rules stood repealed on the date,
erstwhile HPAT was abolished, in the year 2008, whereafter
communication dated 14.02.2014 (Annexure P-8) was sent by DoP&T,
thereby communicating to Department of Personnel to the Government
of Himachal Pradesh, that service conditions of the petitioner would be
governed by High Court Judges (Salaries and Conditions of Service) Act,
1954 and Rules framed thereunder. Afore communication was
subsequently communicated to Registry of HPAT by the Department of
Personnel vide communication dated 07.09.2015 (Annexure P-9), but
yet, Government of Himachal Pradesh, again recorded that pay of the
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petitioner would be “basic pay” less “pension”, i.e. Rs.40,000/- contrary
to the appointment order (Annexure P-2), whereby scale of pay of the
.
petitioner was fixed at Rs.80,000/- (fixed).
19. Though Mr. Anup Rattan, learned Advocate General argued
that Notification dated 13.12.1986 (Annexure P-16) was never withdrawn
at the time of abolishment of HPAT vide Notification dated 08.07.2008,
rather, same was in operation at the time of appointment of the petitioner
as Chairman of HPAT, but such plea of learned Advocate General is
without any merit. Once HPAT was abolished vide Notification dated
08.07.2008, Notification dated 13.12.1986 stood ipso facto rescinded, if it
is so, same otherwise could not be made applicable to govern the salary
and allowances to the petitioner against the post of Chairman, HPAT, in
the year 2014. There is nothing to suggest that after petitioner’s
appointment, Rules of 1986 were ever revived or reframed. Vide
communication dated 13.01.2014, Government of Himachal Pradesh,
forwarded draft rules of Himachal Pradesh Administrative Tribunal
(Financial and Administrative Powers) Rules, 2014 and the Himachal
Pradesh Administrative Tribunal (Staff) (Conditions of Service) Rules,
2014, to Government of India, Ministry of Personnel, Public Grievances
and Pensions, DoP&T. Careful perusal of communication 14.02.2014
(Annexure P-8) reveals that some minor corrections were made with the
pencil in the afore draft rules by the DoP&T, but vide afore
communication, it specifically apprised State Government that in terms of
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Sub-Section (3) of Section 8 of the Act, the service conditions of the
Chairman and Members of the Administrative Tribunals shall be same as
.
applicable to the Judges of the High Courts and as such, Rules of 2014
are not required to be framed and service conditions of the Chairman
and Members of the proposed HPAT be governed by the provisions of
the High Court Judges (Salaries and Conditions of Service) Act, 1954
and Rules framed thereunder. Interestingly, though after receipt of afore
communication, Joint Secretary (Personnel) to the Government of
Himachal Pradesh, vide communication dated 07.07.2015, apprised
Registrar, HPAT, that service conditions of the Chairman and Members
of HPAT are to be governed by the provisions of the High Court Judges
(Salaries and Conditions of Service) Act, 1954, but yet vide order dated
13.04.2015, fixed the pay of the petitioner in the scale of pay of
Rs.80,000/- in accordance with High Court Judges (Salaries and
Conditions of Service) Act, 1954, but “minus pension”. Though for the
reasons stated hereinabove, Section 10 of Act, otherwise sought to be
applied in the case of the petitioner cannot be made applicable, but even
otherwise, if it is presumed that the same is applicable, proviso (1) to
afore Section comes to the rescue of the petitioner. Proviso (1) to
Section 10 clearly provides that neither the salary and allowances nor
the other terms and conditions of service of the Chairman or other
Member shall be varied to his disadvantage after his appointment.
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20. Since in the case at hand, His Excellency, the President of
India, while appointing petitioner as Chairman of HPAT, vide order dated
.
29.12.2014 (Annexure P-2) had fixed his salary to the tune of
Rs.80,000/- (fixed), same could not have been varied/reduced to his
disadvantage after his appointment, that too on the basis of order
passed by Secretary (Personnel) to the Government of Himachal
Pradesh. Though repeatedly State Government came to be apprised by
Government of India that salary and other allowances of the Chairman
and other Members of the HPAT are to be governed by the provisions of
the High Court Judges (Salaries and Conditions of Service) Act, 1954
and the Rules framed thereunder, but yet it repeatedly proceeded to
pass the same order, thereby fixing the pay of the petitioner in the scale
of Rs.80,000/- (fixed), but minus pension being received by him as
retired Judge of the High Court. Reliance in this regard, is placed upon
judgment of Hon’ble Apex Court in B. Rajagopala Vs. STA Tribunal,
AIR 1964 SC 1573, wherein it has been held that administrative orders
and directions do not have the force of statutory provisions and cannot
partake of the character of provisions of law. Hon’ble Apex Court held
that what the law and provisions of law could legitimately do cannot be
permitted to be done by executive or administrative orders.
21. Hon’ble Apex Court in K. Kuppusamy Vs. State of Tamil
Nadu, (1998) 8 SCC 469, has opined that statutory provisions cannot be
overridden by executive orders or executive practice.
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22. Similar view was taken by the Hon’ble Apex Court in State
of Madhya Pradesh Vs. G.S. Dall and Flour Mills, AIR 1991 SC 772,
.
wherein it came to be held that executive instructions cannot run
contrary to statutory provisions or whittle down their effect.
23. Though Mr. Anup Rattan, learned Advocate General
attempted to argue that since petitioner after his being retired as High
Court Judge was reemployed as Chairman of HPAT and as per the Act,
his salary and allowances and other terms and conditions of service
were to be governed in terms of Section 10 of the Act, no illegality can
be said to have been committed by the respondents while issuing office
order dated 13.04.2015, thereby providing that Chairman of HPAT shall
receive fix salary of Rs.80,000/- minus pension, being received by him
from his previous office, however, having taken note of law laid down by
Hon’ble Apex Court as well as Constitutional Courts in catena of cases,
as reproduced hereinbelow, this Court is not persuade to agree with
learned Advocate General for the reason that appointment of the
petitioner to the post of Chairman after his being retired as High Court
cannot be termed as reemployment. Reliance in this regard it placed
upon the judgment of Hon’ble Apex Court in All India Judges’
Association and Others Vs. Union of India and Others, (1993) 4 SCC
288, wherein it has been categorically held that judicial service is not
service in the sense of ’employment’. The Judges are not employees,
they exercise the sovereign judicial power of the State. Hon’ble Apex
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Court in afore judgment further held that Judges are holders of public
offices in the same way as the members of the Council of Ministers and
.
the Members of the Legislature. Those who exercise the State power are
the Ministers, the Legislatures and the Judges, and not the Member of
their staff who implement or assist in implementing their decisions. Most
importantly, in afore judgment, Hon’ble Apex Court while holding that
society has a stake in ensuring the independence of the judiciary, held
that distinction between the Judges and the members of the other
services has to be constantly kept in mind. Judicial independence cannot
be secured by making mere solemn proclamations about it, but it is to be
secured both in substance and in practice. Relevant Para of afore
judgment reads as under:
“7. It is not necessary to repeat here what has been stated in the
judgment under review while dealing with the same contentions raised
there. We cannot however, help observing that the failure to realize the
distinction between the judicial service and the other services is at thebottom of the hostility displayed by the review petitioners to the
directions given in the judgment. The judicial service is not service inthe sense of ’employment’. The Judges are not employees. As
members of the judiciary, they exercise the sovereign judicial power of
the State. They are holders of public offices in the same way as themembers of the council of ministers and the members of the legislature.
When it is said that in a democracy such as ours, the executive, the
legislature and the judiciary constitute the three pillars of the State,
what is intended to be conveyed is that the three essential functions of
the State are entrusted to the three organs of the State and each one of
them in turn represents the authority of the State. However, those who
exercise the State power are the Ministers, the Legislators and the
Judges, and not the members of their staff who implement or assist in
implementing their decisions. The council of ministers or the political
executive is different from the secretarial staff or the administrative
executive which carries out the decisions of the political executive.
Similarly, the Legislators are different from the legislative staff. So also
the Judges from the judicial staff. The parity is between the political
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-23-and the administrative executive. In some democracies like the USA,
members of some State judiciaries are elected as much as the
members of the legislature and the heads of the State. The Judges, at
whatever level they may be, represent the State and its authority unlike.
the administrative executive or the members of the other services. The
members of the other services, therefore, cannot be placed on a par
with the members of the judiciary, either constitutionally or functionally.
8. This distinction between the Judges and the members of the other
services has to be constantly kept in mind for yet another importantreason. Judicial independence cannot be secured by making mere
solemn proclamations about it. It has to be secured both in substance
and in practice. It is trite to say that those who are in want cannot be
free. Self-reliance is the foundation of independence. The society has a
stake in ensuring the independence of the judiciary, and no price is tooheavy to secure it. To keep the Judges in want of essential
accoutrements and thus to impede them in the proper discharge of their
duties, is to impair and whittle away justice itself.
*** *** *** ***
10. This leaves us with the contention of the review petitioners that by
the directions in question, this Court has encroached upon the powers
of the executive and the legislature under Article 309 to prescribe the
service conditions for the members of the Judicial Service. In view of
the separation of the powers under the Constitution, and the need to
maintain the independence of the judiciary to protect and promote
democracy and the rule of law, it would have been ideal if the mostdominant power of the executive and the legislature over the judiciary,
viz., that of determining its service conditions had been subjected to
some desirable checks and balances. This is so even if ultimately, theservice conditions of the judiciary have to be incorporated in and
declared by the legislative enactments. But the mere fact that Article
309 gives power to the executive and the legislature to prescribe theservice conditions of the judiciary, does not mean that the judiciary
should have no say in the matter. It would be against the spirit of the
Constitution to deny any role to the judiciary in that behalf, fortheoretically it would not be impossible for the executive or the
legislature to turn and twist the tail of the judiciary by using the said
power. Such a consequence would be against one of the seminal
mandates of the Constitution, namely, to maintain the independence of
the judiciary”
24. Reliance is also placed upon judgment passed by Hon’ble
Apex Court in Union of India Vs. K.B. Khare and Others, 1994 Supp.
(3) SCC 502, wherein it came to be held that service in Administrative
Tribunals is not reemployment in connection with the affairs of the Union
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-24-
or the State and same is an independent judicial service, and therefore,
linking of past service, with the service in the Administrative Tribunals is
.
impermissible. Relevant Para of afore judgment reads as under:
“16. A careful reading of the above provisions clearly establishes that
they do not envisage linking of past service with a service in the
Tribunal which is a quasi-judicial body. In this connection, it is useful torefer to S.P. Sampath Kumar v. Union of India [(1987) 1 SCC 124 :
(1987) 2 ATC 82 : AIR 1987 SC 386] , in answering the question
whether the Administrative Tribunal could be regarded as equally
effective and efficacious in exercising the power of judicial review as
the High Court acting under Articles 226 and 227 of the Constitution. Itwas held as under: (SCC p. 131, para 5)
“It is necessary to bear in mind that service matters which are
removed from the jurisdiction of the High Court under Articles
226 and 227 of the Constitution and entrusted to theAdministrative Tribunal set up under the impugned Act for
adjudication involve questions of interpretation and applicabilityof Articles 14, 15, 16 and 311 in quite a large number of cases.
These questions require for their determination not only judicial
approach but also knowledge and expertise in this particular
branch of constitutional law. It is necessary that those who
adjudicate upon these questions should have same modicum of
legal training and judicial experience because we find that some
of these questions are so difficult and complex that they baffle
the minds of even trained Judges in the High Courts and the
Supreme Court.”
Therefore, the service is of judicial nature.
17. In our considered view, the High Court has gone wrong in
considering the service in CAT as re-employment in connection with
the affairs of the Union. On the contrary, an independent judicial
service, the appointment in the CAT is on tenure basis. The pension
relating to such post is clearly governed by Rule 8 of the Rules quoted
above and at the risk of repetition, we may state it exhaustive in nature.
If that be so, there is no scope for resort to Rule 16 at all. If the first
respondent had to resign from Judicial Service because of the statutory
requirement under Rule 5 of the Rules (quoted above), we are unable
to see as to how both the services namely senior District Judge in the
State Judicial Service and a Member in the CAT could be clubbed.
Such a clubbing is not contemplated at all. From this point of view, we
find it difficult to accept the reasoning of the High Court that the matter
of option to club the two services for pension is a subject on which the
Rules are silent and the residuary provision in Rule 16 of the Rules
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-25-
intends to fill the gap by supplementing the Rules by rules applicable to
the Secretary to the Government of India.
19. In view of the conclusion that the first respondent is not a person re-
.
employed on a post in connection with the affairs of Union Government,
we see no scope whatever for applying Central Civil Service (Fixation
of Pay of Re-employed Pensioners) Order, 1986.”
25. It has been categorically held that by no stretch of
imagination, Judges can be said to be employees of State or Union,
rather, they stand in different category, which cannot be equated with
other “services”. Hon’ble Apex Court has held that though for
convenience certain rules applicable to the latter may, within limits, apply
to the former, but issue of Judge’s leave and pension cannot be left
dependent on the Executive’s pleasure. In S.P. Sampath Kumar Vs.
Union of India and Others, (1987) 1 SCC 124, Hon’ble Apex Court held
that Administrative Tribunal is created in substitution of the High Court
and the jurisdiction of the High Court under Articles 226 and 227 is taken
away and vested in the Administrative Tribunal, the same independence
from possibility of executive pressure or influence must also be ensured
to the Chairman, Vice-Chairman and Members of the Administrative
Tribunal, lest Administrative Tribunal would cease to be an equally
effective and efficacious substitute for the High Court. While ruling that
Member of judiciary exercise the sovereign judicial power of the State,
Hon’ble Apex Court has held that Judges are not employees, rather, they
are holders of public offices in the same way as the members of the
Council of Ministers and the Members of the Legislature. While holding
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-26-
that High Court Judges occupies a unique position under the
Constitution, Hon’ble Apex Court has held that Judge of High Court is
.
not a Government servant and he cannot be said to be holding a post
under the Union or the State.
26. In S.P. Sampath Kumar (supra), Hon’ble Apex Court while
holding that Chairman of the Administrative Tribunal is equivalent to the
office of Chief Justice of a High Court, has held as under:
“7. That takes me to another serious infirmity in the provisions of the
impugned Act in regard to the mode of appointment of the Chairman,
Vice-Chairman and members of the Administrative Tribunal. So far as
the appointment of judicial members of the Administrative Tribunal isconcerned, there is a provision introduced in the impugned Act by way
of amendment that the judicial members shall be appointed by thegovernment concerned in consultation with the Chief Justice of India.
Obviously no exception can be taken to this provision, because even so
far as Judges of the High Court are concerned, their appointment is
required to be made by the President inter alia in consultation with theChief Justice of India. But so far as the appointment of Chairman, Vice-
Chairmen and administrative members is concerned, the sole and
exclusive power to make such appointment is conferred on the
government under the impugned Act. There is no obligation cast on thegovernment to consult the Chief Justice of India or to follow any
particular selection procedure in this behalf. The result is that it is left tothe absolute unfettered discretion of the government to appoint such
person or persons as it likes as Chairman, Vice-Chairman and
administrative members of the Administrative Tribunal. Now it may be
noted that almost all cases in regard to service matters which comebefore the Administrative Tribunal would be against the Government or
any of its officers and it would not at all be conducive to judicial
independence to leave unfettered and unrestricted discretion in the
executive to appoint the Chairman, Vice-Chairmen and administrative
members, if a judicial member or an administrative member is looking
forward to promotion as Vice-Chairman or Chairman, he would have to
depend on the goodwill and favourable stance of the executive and that
would be likely to affect the independence and impartiality of the
members of the Tribunal. The same would be the position vis-Ã -vis
promotion to the office of Chairman of the Administrative Tribunal. The
administrative members would also be likely to carry a sense of
obligation to the executive for having been appointed members of the
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-27-independence and objectivity of the members of the Tribunal. There
can be no doubt that the power of appointment and promotion vested in
the executive can have prejudicial effect on the independence of the
Chairman, Vice-Chairmen and members of the Administrative Tribunal,.
if such power is absolute and unfettered. If the members have to look to
the executive for advancement, it may tend, directly or indirectly, to
influence their decision-making process particularly since the
government would be a litigant in most of the cases coming before the
Administrative Tribunal and it is the action of the Government whichwould be challenged in such cases. That is the reason why in case of
appointment of High Court Judges, the power of appointment vested in
the executive is not an absolute unfettered power but it is hedged in by
a wholesome check and safeguard and the President cannot make an
appointment of a High Court Judge without consultation with the ChiefJustice of the High Court and the Chief Justice of India and a healthy
convention has grown up that no appointment would be made by the
government which is not approved by the Chief Justice of India. This
check or safeguard is totally absent in the case of appointment of the
Chairman, Vice-Chairmen and administrative members of theAdministrative Tribunal and the possibility cannot be ruled out —
indeed the litigating public would certainly carry a feeling — that the
decision-making process of the Chairman, Vice-Chairmen and
members of the Administrative Tribunal might be likely to be affected by
reason of dependence on the executive for appointment and promotion.
It can no longer be disputed that total insulation of the judiciary from allforms of interference from the coordinate branches of government is a
basic essential feature of the Constitution. The Constitution-makers
have made anxious provision to secure total independence of thejudiciary from executive pressure or influence. Obviously, therefore, if
the Administrative Tribunal is created in substitution of the High Court
and the jurisdiction of the High Court under Articles 226 and 227 istaken away and vested in the Administrative Tribunal, the same
independence from possibility of executive pressure or influence must
also be ensured to the Chairman, Vice-Chairmen and members of theAdministrative Tribunal. Or else the Administrative Tribunal would
cease to be an equally effective and efficacious substitute for the High
Court and the provisions of the impugned Act would be rendered
invalid. I am, therefore, of the view that the appointment of Chairman,
Vice-Chairmen and administrative members should be made by the
concerned government only after consultation with the Chief Justice of
India and such consultation must be meaningful and effective and
ordinarily the recommendation of the Chief Justice of India must be
accepted unless there are cogent reasons, in which event the reasons
must be disclosed to the Chief Justice of India and his response must
be invited to such reasons. There is also another alternative which may
be adopted by the Government for making appointments of Chairman,
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-28-Powered Selection Committee headed by the Chief Justice of India or a
sitting Judge of the Supreme Court or concerned High Court nominated
by the Chief Justice of India. Both these modes of appointment will
ensure selection of proper and competent persons to man the.
Administrative Tribunal and give it prestige and reputation which would
inspire confidence in the public mind in regard to the competence,
objectivity and impartiality of those manning the Administrative
Tribunal. If either of these two modes of appointment is adopted, it
would save the impugned Act from invalidation. Otherwise, it will beoutside the scope of the power conferred on Parliament under Article
323-A. I would, however, hasten to add that this judgment will operate
only prospectively and will not invalidate appointments already made to
the Administrative Tribunal. But if any appointments of Vice-Chairmen
or administrative members are to be made hereafter, the same shall bemade by the Government in accordance with either of the aforesaid two
modes of appointment.
*** *** *** ***
17. What, however, has to be kept in view is that the Tribunal should be
a real substitute for the High Court — not only in form and de jure but incontent and de facto. As was pointed out in Minerva Mills [(1980) 3
SCC 625 : AIR 1980 SC 1789 : (1981) 1 SCR 206] the alternative
arrangement has to be effective and efficient as also capable of
upholding the constitutional limitations. Article 16 of the Constitution
guarantees equality of opportunity in matters of public employment.
Article 15 bars discrimination on grounds of religion, race, caste, sex orplace of birth. The touchstone of equality enshrined in Article 14 is the
greatest of guarantees for the citizen. Centring around these articles in
the Constitution a service jurisprudence has already grown in thiscountry. Under Sections 14 and 15 of the Act all the powers of the
courts except those of this Court in regard to matters specified therein
vest in the Tribunal — either Central or State. Thus the Tribunal is thesubstitute of the High Court and is entitled to exercise the powers
thereof.
18. The High Courts have been functioning over a century and a
quarter and until the Federal Court was established under the
Government of India Act, 1935, used to be the highest courts within
their respective jurisdictions subject to an appeal to the Privy Council in
a limited category of cases. In this long period of about six scores of
years, the High Courts have played their role effectively, efficiently as
also satisfactorily. The litigant in this country has seasoned himself to
look up to the High Court as the unfailing protector of his person,
property and honour. The institution has served its purpose very well
and the common man has thus come to repose great confidence
therein. Disciplined, independent and trained Judges well versed in law
and working with all openness in an unattached and objective manner
have ensured dispensation of justice over the years. Aggrieved people
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-29-under legal obligation but under the belief and faith that justice shall be
done to them and the State’s authorities would implement the decision
of the court. It is, therefore, of paramount importance that the substitute
institution — the Tribunal — must be a worthy successor of the High.
Court in all respects. That is exactly what this Court intended to convey
when it spoke of an alternative mechanism in Minerva Mills case.
[(1980) 3 SCC 625 : AIR 1980 SC 1789 : (1981) 1 SCR 206]
27. In case tilted as Union of India Vs. Sankalchand Himtala
Sheth, AIR 1977 SC 2328, Hon’ble Apex Court while interpreting Clause
(2) of Article 221 of the Constitution of India, held that Judges have been
assigned, by the suprema lex, an independent sentinel’s duty and he/she
cannot be considered to be a Government servant, but a constitutional
functionary. He being constitutional authority cannot be equated with
other “services” although for convenience certain rules applicable to the
latter may, within limits, apply to the former, but issue of Judge’s leave
and pension cannot be left dependent on the Executive’s pleasure.
Relevant Para of afore judgment, reads as under:
“94. It was right of Sri Seervai to have spread the canvas wide since
the appreciation of this pivotal issue of the Judge’s metier and methodsdemands acceptance of the broader bearings and constitutional
culture. We here construe not merely Article 222 but lay down the
larger law of the Constitution. We must first understand that Judges
have been assigned, by the suprema lex, an independent sentinel’sduty. To defeat this role subtly or crudely is to rob the Constitution of a
vital value. So it is that we must emphatically state a Judge is not a
government servant but a constitutional functionary. He stands in a
different category. He cannot be equated with other “services” although
for convenience certain rules applicable to the latter may, within limits,
apply to the former. Imagine a Judge’s leave and pension being made
precariously dependent on the executive’s pleasure ! To make the
government — not the State — the employer of a superior court Judge
is to unwrite the Constitution. To conclude on this branch, we cannot
tear off the text of Article 222 and put it under a microscope but must
master the scheme and setting and descry the meaning beyond the
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-30-quiet and spiritual quest of the Judge’s toils lies here. We may listen to
Chief Justice Hidayatullah’s chastening words:
“One must, of course, take note of the synthesised authoritative
content or the moral meaning of the underlying principle of the.
prescriptions of law, but not ignore the historic evolution of the law
itself or how it was connected in its changing moods with the social
requirements of a particular age. [ Judicial Methods by M.
Hidayatullah, C.J. at p. 45]”
28. In K.B. Khare (supra), Hon’ble Apex Court has held that
service in Administrative Tribunals is not reemployment in connection
with the affairs of the Union or the State and same is an independent
judicial service, and therefore, linking of past service, with the service in
the Administrative Tribunals is impressible. Similarly, Hon’ble Apex Court
in Union of India and Others Vs. Pratibha Bonnerjea and Another,
(1995) 6 SCC 765, held that Judge of the High Court occupies a unique
position under the Constitution and for him to discharge his duties in an
independent manner, total independence from executive is imperative
and he cannot be said to be holding a post under the Union or the State.
Relevant Para of afore judgment, reads as under:
“4. The question to be considered is whether under the Constitution
there is, strictly speaking, a relationship of master and servant between
the Government and a High Court Judge? In order to answer thisquestion a few provisions of the Constitution need to be noticed. Firstly,
Article 50 enjoins that the State should take steps to separate the
Judiciary from the Executive. Next, we may notice Chapter V in Part VI
of the Constitution which concerns High Courts in the States. Article
214 provides that there shall be a High Court for each State or a group
of States. Article 217 posits that every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, etc., who shall hold office
until he attains the age of 62 years. A Judge once appointed can
vacate office by tendering his resignation or on his elevation to the
Supreme Court or transfer to another High Court or on being removed
from office by the President in the manner provided by Article 124(4),
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-31-majority of the total membership of that House and by majority of not
less than two-thirds of the members present and voting has been
presented to the President. The removal can be on the ground of
proved misbehaviour or incapacity. Article 219 expects every person.
appointed to be a Judge of the High Court to make and subscribe an
oath or affirmation according to the form set out in the Third Schedule.
That form is Form VIII which inter alia requires the Judge to swear in
the name of God or to solemnly affirm that he would truly and faithfully
and to the best of his ability and judgment perform his duties withoutfear or favour, affection or ill will. These words clearly indicate that the
judicial function must be discharged without being influenced by
extraneous considerations. Independence and impartiality are the two
basic attributes essential for a proper discharge of judicial functions. A
Judge of a High Court is, therefore, required to discharge his dutiesconsistently 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 in and day out. He has to decide such casesindependently 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, plain that aperson 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. Hewould not be able to discharge his duty without fear or favour, affection
or ill will, unless he is totally independent of the Executive, which he
would not be if he is regarded as a government servant. He is clearly aholder of a constitutional office and is able to function independently
and impartially because he is not a government servant and does not
take orders from anyone. That is why in Union of India v. SankalchandHimatlal Sheth [(1977) 4 SCC 193 : 1977 SCC (L&S) 435]
Chandrachud, J. said in paragraph 32 at p. 224:
“… the rejection of Mr Seervai’s argument … should not be
read as a negation of his argument that there is no master and
servant relationship between the Government and High Court
Judges”.
Bhagwati, J. in his separate judgment said the same thing in
paragraph 49 when he observed: “a Judge of the High Court
is not a government servant, but he is the holder of a
constitutional office”
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29. Since Hon’ble Apex Court in catena of judgments, as have
been reproduced hereinabove, has held that Judges cannot be
.
considered as a Government employee, coupled with the fact that Sub-
Section (3) of Section 8 of the Act clearly provides that service conditions
of the Chairman and Members of the Administrative Tribunals shall be
same as applicable to the Judges of the High Courts, argument
advanced by Mr. Anup Rattan, learned Advocate General that
petitioner’s appointment as Chairman of the HPAT, after his being retired
as High Court Judge, is a case of reemployment, deserves outright
rejection.
30. At the cost of repetition, it is stated that otherwise also, in
terms of Proviso (1) to Section 10 of the Act, salary and allowances of
the Chairman or other Member fixed at the time of appointment could not
have been varied or reduced to his disadvantage. Admittedly in
appointment letter of the petitioner, his salary was fixed at Rs.80,000/-,
which was subsequently revised to Rs.2,25,000/- and same could not
have been varied or reduced to his disadvantage, that too under the garb
of Section 10 of the Act, which empowers Central Government to
prescribe salaries and allowances payable to Chairman and other
Members. As has been noticed hereinabove, Government of India itself
vide communication dated 14.02.2014 (Annexure P-8) advised State
Government to apply provisions of High Court Judges (Salaries and
Conditions of Service) Act, 1954 and Rules framed thereunder, for
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prescribing conditions of service as well as salary and allowances
attached to the office of Chairman and Member.
.
31. Division Bench of High Court of Andhra Pradesh in
Government of Andhra Pradesh Vs. K.A. Ansari, 1996(8) SLR 461,
while interpreting Section 10 of the Act, has held that the Central
Government alone is competent to decide about the salary and
allowances payable to, and other terms and conditions of service,
including pension, gratuity and other retirement benefits, admissible to
the Chairman of the Administrative Tribunal, and the State Government
is not competent to vary the conditions of service. Relevant Para of afore
judgment reads as under:
“3. It is not in dispute, before us, that the service conditions applicable
to all serving High Court Judges, including medical allowance, areapplicable to the Vice-Chairman of the Andhra Pradesh Administrative
Tribunal, Section 10 of the Administrative Tribunals Act, 1985 provides
that–
“The salaries and allowances payable to and the other terms
and conditions of service (including pension, gratuity and
other retirement benefits) of the Chairman, Vice-Chairmanand other Members shall be such as may be prescribed by the
Central Government:
Provided that neither the salary and allowances nor the other
terms and conditions of service of the Chairman, Vice-
Chairman or other Members shall be varied to his
disadvantage after his appointment.
4. Once the Central Government has treated the conditions of
service of the Chairman and Vice-Chairman of the Administrative
Tribunals on par with that of the serving Judges of the High Court,
the said conditions have to be continued. It is to be seen that when
the Central Government is alone competent to decide about the
salary and allowances payable to and the other terms and
conditions of service, including pension, gratuity and other
retirement benefits of the Chairman, Vice-Chairman and other
Members of the Tribunal, the State Government is not competent to
vary the conditions of service.”
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32. Mr. Anup Rattan, learned Advocate General, argued that
petitioner herein has been given pay of High Court Judge, but provision
.
contained in High Court Judges (Salaries and Conditions of Service) Act,
1954, nowhere suggests that after retirement of the High Court Judge,
amount of pension being received by him in capacity of High Court
Judge shall not be deducted on his reemployment. He further submitted
that in case pension being received by the petitioner is not deducted
from his salary, fixed at the time of his appointment, he would end-up
getting more salary than sitting Judge of High Court, which would be in
violation of High Court Judges (Salaries and Conditions of Service) Act,
1954. However, this Court is not persuaded to accept the aforesaid
submissions of learned Advocate General for the reason that
appointment of the petitioner to the post of Chairman, after his retirement
as High Court Judge, is not a case of reemployment, which fact is
otherwise evident from his appointment order dated 29.12.2014, issued
by His Excellency, the President of India. Once it is settled that
appointment of the petitioner is not reemployment, Central Civil Services
(Fixation of Pay of Reemployed Pensioners) Orders, 1986 (Annexure R-
2/1) annexed with the reply of respondent No.2, sought to be applied in
the case of the petitioner, are not applicable.
33. As per reply filed by respondent No.2, conditions of service
of Chairman/Members appointed on or after 19.02.2007 were governed
by Sub-Section (3) of Section 8 of the Administrative Tribunal
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(Amendment) Act, 2006. As per Sub-Section (3) of Section 8 of the
Administrative Tribunal (Amendment) Act, 2006, the service conditions
.
of the Chairman and Members of the Administrative Tribunals shall be
same as applicable to the Judges of the High Courts. There is no
provision in the High Court Judges Rules, 1956, as to how the pay of a
retired Judge will be determined on accepting a new
appointment/assignment under Central/State Government. However,
Rule 2 of High Court Judges Rules, 1956, provides that conditions of
service of a Judge of a High Court for which no express provision has
been made in the High Court Judges (Condition of Service) Act, 1954,
shall be deemed to have been determined by the Rules for the time
being applicable to a member of the IAS holding the rank of Secretary to
the Government of the State in which the principal seat of the High Court
is situated. It has been attempted to argue on behalf of respondents that
pay of the reemployed pensioners who are reemployed in civil services
and posts in connection with the affairs of Union Government after
retirement, are governed by the Central Civil Services (Fixation of pay of
re-employed pensioners) Orders, 1986, issued vide DoP&T OM dated
31.07.1986 (as revised from time to time). Since the pay of reemployed
pensioner who are reemployed in civil services and posts in connection
with the affairs of Union Government after retirement is to be fixed by
reducing the gross amount of pension drawn by him as per Para 4(ii) of
Order, 1986, aforesaid argument pressed into service at the behest of
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respondents cannot be accepted for the reason that petitioner is not
reemployed with Union of India, rather he has been appointed afresh as
.
Chairman of HPAT, established under the Act, that too vide appointment
order issued by His Excellency, the President of India.
34. Rule 2 of High Court Judges Rules, 1956, as taken note
hereinabove, cannot be pressed into service to defeat the claim of the
petitioner for the reason that there was no occasion, if any, to provide in
afore Rules, service conditions of retired High Court Judge, who may
after his/her retirement accept other judicial appointment and as such,
Rule 2 of High Court Judges Rules, 1956, cannot be pressed into service
to claim that condition of service of Judge of High Court, for which no
express provision has been made in the High Court Judges (Condition of
Service) Act, 1954, shall be deemed to have been determined by the
Rules for the time being applicable to a member of the IAS holding the
rank of Secretary to the Government of the State.
35. Otherwise also, Section 8(3) of the Act only states that
conditions of service of Chairman and Members of the Administrative
Tribunals shall be same as applicable to the Judges of the High Courts,
meaning thereby, Chairman and Member of the SAT, besides getting
facilities provided to High Court Judge shall also get salary and
allowances as are received by sitting High Court Judge. Since at the
time of appointment of the petitioner, sitting High Court Judge was in
receipt of basic pay of Rs.80,000/-, which was subsequently revised to
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Rs.2,25,000/- (fixed), petitioner herein rightly came to be allowed afore
fixed pay, as was being received by the High Court Judge, but question
.
with regard to deduction of pension received by him in lieu of service
rendered by him in the capacity of High Court Judge cannot be attached
with the provisions contained in the High Court Judges (Condition of
Service) Act, 1954 as well as Rules framed thereunder, which only deals
with the service conditions of sitting High Court Judges. Since proviso (1)
to Section 10 of the Act clearly provides that salary and allowances of
Chairman and other Members shall not be varied/reduced to his
disadvantage after his appointment, coupled with the fact that conditions
of service of Chairman and other Member shall be same as applicable to
Judges of the High Court, there was no authority, if any, with the
respondents to deduct the pension received by the petitioner in lieu of
service rendered by him as High Court Judge.
36. Hon’ble Apex Court in judgments, as have been taken note
hereinafter, has categorically held that pension is neither a bounty nor a
matter of grace dependent upon the sweet will of the employer, rather
same being earned by an employee on account of his having served the
State or the Union is a vested right. Since the petitioner before his
appointment as Chairman of HPAT rendered valuable services as High
Court Judge, he came to be granted pension, which in no way, can be
linked to his subsequent appointment as Chairman of HPAT. Pension is
earned by the employee for service rendered to fall back, after retirement
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and has a nexus, with the salary payable as on the date of retirement,
but certainly cannot be linked with the salary, if any, received by High
.
Court Judge, after his fresh appointment to a Tribunal or any other
judicial office.
37. Constitution Bench of the Hon’ble Apex Court in D.S.
Nakara and Others Vs. Union of India and Others, (1983) 1 SCC 305,
held that pension is neither a bounty, nor a matter of grace, dependent
upon the sweet will of the employer. It is a payment of past service
rendered. Most importantly in afore judgment, Hon’ble Apex Court held
that pension as a retirement benefit is in consonance with, and
furtherance, of the goals of the Constitution, and it creates a vested right.
Relevant Para of afore judgment, reads as under:
“31. From the discussion three things emerge: (i) that pension is neither
a bounty nor a matter of grace depending upon the sweet will of the
employer and that it creates a vested right subject to 1972 Rules which
are statutory in character because they are enacted in exercise ofpowers conferred by the proviso to Article 309 and clause (5) of Article
148 of the Constitution; (ii) that the pension is not an ex gratia paymentbut it is a payment for the past service rendered; and (iii) it is a social
welfare measure rendering socio-economic justice to those who in the
hey-day of their life ceaselessly toiled for the employer on anassurance that in their old age they would not be left in lurch. It must
also be noticed that the quantum of pension is a certain percentage
correlated to the average emoluments drawn during last three years of
service reduced to 10 months under liberalised pension scheme. Its
payment is dependent upon an additional condition of impeccable
behaviour even subsequent to retirement, that is, since the cessation of
the contract of service and that it can be reduced or withdrawn as a
disciplinary measure”
38. Similar view came to be taken by the Hon’ble Apex Court in
U.P. Raghavendra Acharya and Others Vs. State of Karnataka and
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Others, (2006) 9 SCC 630, that pension is deferred salary. It is akin to
right of property and is correlated, and has a nexus, with the salary
.
payable as on the date of retirement. Para 25 of afore judgment reads as
under:
“25. Pension, as is well known, is not a bounty. It is treated to be a
deferred salary. It is akin to right of property. It is correlated and has a
nexus with the salary payable to the employees as on the date of
retirement”
39. Though at this stage, Mr. Anup Rattan, learned Advocate
General placed heavy reliance upon judgment passed by Division Bench
of this Court in Justice Arun Kumar Goel (Retd.) (supra), but having
carefully perused afore judgment in its entirety, this Court finds no
application of the same in the case at hand. In afore case, retired High
Court Judge, after his having demitted the office of Judge, was
appointed as President of H.P. State Consumer Disputes Redressal
Commission, vide notification dated 12.07.2005 issued by State of
Himachal Pradesh. Two years after his being appointed as President of
the State Commission, petitioner in that case represented to State of
Himachal Pradesh against the terms of his appointment denying him
pension as a High Court Judge during the currency of his tenure as
President of the State Commission, but same was rejected, as such, he
approached High Court of Himachal Pradesh, by way of Civil Writ
Petition, which though at first instance was allowed by learned Single
Judge, but subsequently appeal preferred by State of Himachal Pradesh
against the judgment of learned Single Judge was allowed.
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40. Since in afore case, terms and conditions of appointment to
the office of President, State Commission, was in accordance with Rule
.
13(1) of the Himachal Pradesh Consumer Protection Rules, 2003, and
one of the condition enumerated therein was that petitioner shall not be
entitled to pension as a retired High Court Judge during currency of his
tenure as President of the State Commission, Division Bench of this
Court rightly held that appellant-State is not liable to pay more to the writ
petitioner than what is admissible to a sitting Judge of the High Court. Rule
13(1) of the Himachal Pradesh Consumer Protection Rules, 2003, which
was applicable in the case of the petitioner in afore case stood amended
prior to appointment of the petitioner as President of the State Commission.
Afore Rule clearly provided that as a President of the State Commission,
person concerned shall be entitled to salary, allowances and other
perquisites as are available to sitting Judge of the High Court. Division
Bench taking note in afore judgment that sitting Judge of High Court
does not get any pension held that petitioner is not entitled to pens ion
during the currency of his tenure as President of the State Commission.
41. Proviso (1) to Rule 13 of 2003 Rules provided that a
member shall be eligible to any pension granted to him by the
Government or any authority but honorarium plus pension shall not
exceed the last pay drawn by him. Since it never came to be disputed at
the end of petitioner in that case that on payment of pension of High
Court Judge along with his salary and allowances and perquisites as
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President of the State Commission, his total salary would exceed the last
pay drawn by him, Division Bench while setting aside the judgment
.
passed by learned Single Judge held that in order to draw pension, in
addition to salary being received by him, as a President of the State
Commission, would be contrary to Rule 13(1) of the Himachal Pradesh
Consumer Protection Rules, 2003. Moreover, in afore case, notification
dated 12.07.2005, appointing petitioner as President of the State
Commission itself provided that he shall be entitled to salary, allowances
and other perquisites, as available to Judge of the High Court (last pay
drawn minus pension). However, in the case at hand, as has been taken
note hereinabove, at the time of appointment of the petitioner as
Chairman of HPAT, no such condition was ever imposed, rather his
salary was fixed at Rs.80,000/- which subsequently came to be revised
to Rs.2,25,000/- for the reason that salary of Judge of High Court was
enhanced, pursuant to amendment made to the High Court Judges
(Salaries and Conditions of Service) Act, 1954 in January 2018. In
similar facts and circumstances, Division Bench of this Court in LPA
No.83 of 2013, titled State of H.P. Vs. Lt. General (Retd.) B.S. Thakur
and Others, along with connected matters, decided on 10.01.2023,
rejected the argument raised by learned Advocate General that judgment
passed by Division Bench of this Court in Justice Arun Kumar Goel
(Retd.) (supra) is liable to be followed in the case of Chairman and
Member of Public Service Commission, who had approached this Court
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by way of Civil Writ Petition, laying therein challenge to action of
respondents/State inasmuch as pension being received by them in lieu
.
of their past service, sought to be deducted from the salary being
received by them in the capacity of Chairman and Member of the Public
Service Commission. In afore case, Division Bench of this Court
categorically held that so far as appointment of President of H.P. State
Consumer Disputes Redressal Commission is concerned, the same is
made under statute enacted by the State, whereas Chairman and
Member of the Public Service Commission are concerned, they occupy a
constitutional post and cannot be said to be Government servant, as has
been held in State of Punjab Vs. Salil Sabhlok and Others, (2013) 5
SCC 1. Relevant Para of judgment passed in Lt. General (Retd.) B.S.
Thakur (supra) reads as under:
“9. So far as the judgement given in Ram Phal Singh’s case supra is
concerned the same has attained finality. The argument raised by thelearned Advocate General to the effect that the judgement given by this
Court in Justice Arun Kumar Goel (Retd.)’s case supra was liable to befollowed is without any merit. So far as the appointment of President of
Himachal Pradesh State Consumer Disputes Redressal Commission is
concerned the same is made under a statute enacted by the State. Inthe said case the State can frame its own Rules and Regulations. So
far as the Chairman and Members of the Public Service Commission
are concerned they occupy a constitutional post and cannot be said to
be government servant, as has been held in Salil Sabhlok‘s case
supra . Hence, the decision of this Court in Justice Arun Kumar Goel
(Retd.)’s case supra has no bearing on the facts of the present case.
The controversy involved in the present case has already been settled
in Ram Phal Singh’s case supra and the learned Single Judge by
rightly basing reliance on the said decision had allowed the writ petition
filed by the respondents in the LPA.”
42. Since in the case at hand, petitioner never came to be
appointed as Chairman, under any statute enacted by the State,
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rather, he was appointed as Chairman of HPAT by His Excellency, the
President of India after the establishment of HPAT under Sub-Section 2
.
of Section 4 of the Administrative Tribunals Act, 1985, coupled with the
fact that Section 8(3) of the Act clearly provides that service condition of
the Chairman and Member of the HPAT shall be governed by the High
Court Judges (Salaries and Conditions of Service) Act, 1954, no parity
can be drawn inter se President of State Consumer Disputes Redressal
Commission and Chairman of HPAT and as such, judgment of Justice
Arun Kumar Goel (Retd.) (supra), cannot be made applicable in the
case at hand.
43. Similarly, other submission made by learned Advocate
General that in the event of grant of full pension to the petitioner, his
salary would become higher than the sitting High Court is of no
relevance for the reason that pension being received by the petitioner in
lieu of service rendered by him as High Court Judge has no connection
with his salary being received by him in the capacity of Chairman of
HPAT, which was otherwise at a fixed salary of Rs.80,000/- (further
revised to Rs.2,25,000/-). There was no condition in the appointment
letter that pay fixed at Rs.80,000/- shall be minus pension, if any,
received by the petitioner in the capacity of High Court Judge. Though
respondent/State may have to pay pension to the petitioner in lieu of
service rendered as Judge of the High Court, but definitely same cannot
be said to have any connection with the subsequent service rendered by
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him as Chairman of Tribunal. Though it repeatedly came to be clarified
by the Government of India to the State of Himachal Pradesh that draft
.
Himachal Pradesh Administrative Tribunals (Salaries and Allowances
and conditions of service of Chairman, Vice Chairman and Members)
Rules are not required to be framed and their service conditions are
required to be governed by the provisions of High Court Judges (Salaries
and Conditions of Service) Act, 1954, but respondents while wrongly
considering the appointment of the petitioner as a reemployment,
deducted the pension being received by him in the capacity of retired
High Court, which for the discussion made hereinabove as well as law
taken into consideration, is/was wholly impermissible.
44. Consequently, in view of detailed discussion made
hereinabove as well as law taken into consideration, this Court finds
merit in the present petition and accordingly the same is allowed.
Impugned order dated 13.04.2015, salary slips dated 13.05.2015,
02.09.2015, 16.12.2015, 02.06.2016, 24.06.2017, 13.12.2018 and
22.07.2019 (Annexure P-7 Colly), order dated 11.12.2015 (Annexure P-
10), order dated 19.12.2018 (Annexure P-12), communication dated
05.09.2019 (Annexure P-15) and salary slip dated 30.08.2019 (Annexure
P-17) are quashed and set-aside with the direction to respondents to
strictly implement appointment order dated 29.12.2014 (Annexure P-2),
issued in the name of His Excellency, the President of India, read with
communication dated 30.10.2018 (Annexure P-11) and thereafter make
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the entire payment of arrears to the petitioner along with interest at the
rate of 9% per annum, from the date same fell due till the date of actual
.
payment.
45. Since petitioner has been fighting for his rightful claim for
years together, this Court hopes and trusts that needful in terms of
instant judgment shall be done, expeditiously, preferably, within a period
of three months from today.
The present petition is disposed in the above terms, so also
the pending miscellaneous application(s), if any.
(Sandeep Sharma),
Judge
July 23, 2025
(Rajeev Raturi)
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