2025 Supreme(Online)(HP) 9094

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sandeep Sharma, J
V.K. Sharma – Appellant
Versus
State Of H.P. – Respondent
CWP No.3193 of 2019

A retired judge appointed to a judicial tribunal holds a constitutional office, not a reemployment position. Pension being a vested property right for past service cannot be deducted from the fixed salary of such independent judicial appointments, as this would violate the prohibition against prejudicial change of service conditions.

Headnote:(A) Administrative Tribunals Act, 1985 - Section 10 - Proviso (1) - Constitution of India - Articles 221 and 309 - Appointment of retired Judge of High Court as Chairman of Tribunal - Whether pension could be deducted from fixed salary - Held, appointment to judicial office of such stature is not “reemployment” under Government but independent judicial service - Proviso (1) to Section 10 prohibits variation of service conditions to disadvantage of appointee after appointment - Executive orders cannot override statutory protections or constitutional status - Pension is a vested property right and remuneration for past service, not to be linked with salary of subsequent judicial office. (Paras 11, 13, 16, 23, 24, 30, 32)

(B) Judicial Independence - Conceptual distinction - Judges are not employees in traditional sense but holders of constitutional office - Executive control over pension or salary of judicial functionaries jeopardizes judicial independence and separation of powers which are essential features of constitutional framework. (Paras 23, 25, 27, 28)

Facts of the case:
Petitioner, a retired Judge of a Higher Court, was appointed as Chairman of a Tribunal by the executive head of the nation. The appointment letter fixed a specific salary. However, authorities repeatedly deducted the pension received by the petitioner from his previous service as a Judge, treating the new assignment as “reemployment.” The petitioner challenged these deductions and the underlying administrative orders as being contrary to the terms of appointment and the statutory framework.

Findings of Court:
The court observed that the petitioner was not a Government employee but a holder of a constitutional office. The executive’s practice of treating this judicial appointment as “reemployment” to justify pension deduction was held to be legally flawed. It was concluded that the salary fixed at the time of appointment could not be reduced to the disadvantage of the appointee, as mandated by the governing Act.

Issues: Whether the pension of a retired High Court Judge can be deducted from the salary attached to his subsequent appointment as Chairman of a Tribunal; whether such an appointment constitutes “reemployment” subject to executive pension deduction rules.

Ratio Decidendi: Service in a judicial Tribunal is an independent judicial tenure, not a master-servant “reemployment” within the Government. Because pension is a vested right earned for past services that cannot be treated as a bounty or subject to executive discretion, and since proviso (1) to Section 10 of the Act expressly forbids the diminution of salary/conditions of service post-appointment, the deductions were illegal.

Result: Petition allowed; impugned orders and salary deductions quashed with directions to pay arrears with 9% interest.