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2011 DIGILAW 1192 (RAJ)

State of Rajasthan v. High Court of Rajasthan

2011-05-31

ALOK SHARMA, ARUN MISHRA

body2011
Hon'ble SHARMA, J.—This D.B. Special Appeal has been filed by the State of Rajasthan aggrieved firstly of the order dated 7.11.2006 passed by learned Single Judge, inter alia directing that a sum of Rs. 10 lacs be paid to the family of late Hon'ble Mr. Justice R.P. Vyas as interim compensation within a period of 30 days through his wife and secondly, also aggrieved by the order dated 11.7.2007, whereby an application filed by the State for suspending the operation of the interim order dated 11.1.2007 came to be dismissed. 2. The grounds of the appeal are that the learned Single Judge had no jurisdiction for taking suo motu cognizance of the unfortunate said demise of the sitting Judge Hon'ble Mr. Justice R.P. Vyas on or about on 7.11.2006 and thereupon issuing a direction for payment of interim compensation to the family of the deceased. It has been also submitted that alternatively, in any event of the matter, while the issue with regard to payment of compensation in the event of untimely death was under consideration of the Hon'ble Court, interim relief so granted could tantamount to final relief. 3. It has been further submitted that the learned Single Judge failed to consider that the matter relating to grant of retrial benefits and/or death-cum-gratuity benefits and other rights of the Judges of the Hon'ble High Curt is fully covered by the provisions of Constitution of India as well as the terms and conditions of the High Court Judges (Salaries and Conditions of Service) ct, 1954, read with the High Court Judges Rules, 1956. It was submitted that the State had no liability/obligation of any kind until such burden has been imposed by operating law. 4. Vide order dated 3.4.2007, the Hon'ble Division Bench of this Court directed that the order dated 7.11.2006, whereby directions for grant of interim compensation to the family of late Hon'ble Mr. Justice R.P. Vyas were given, shall remain in abeyance and the matter was directed to be tagged with D.B. Civil Writ Petition No. 8727/2006, wherein issues with regard to the benefits to retired Judges of this Hon'ble Court were under consideration. 5. Justice R.P. Vyas were given, shall remain in abeyance and the matter was directed to be tagged with D.B. Civil Writ Petition No. 8727/2006, wherein issues with regard to the benefits to retired Judges of this Hon'ble Court were under consideration. 5. It would be, in order at the very out set to record the fact that in D.B. Civil Writ Petition No. 8727/2006, this Court vide its orders dated 12.1.2010 and 19.1.2010, has already issued directions with regard to medical benefits and the procedure for the availment thereof by he retired Judges of Hon'ble this Court and also their family and further directed the State Govt. to pay a sum, of Rs. 9,000/- p.m. to a retired Chief Justice of the High Court to meet expenses of domestic help/peon, driver, telephone expenses and secretarial assistance etc. and to the retired Judge of the High Court Rs. 7,500/- p.m. for the same purpose with effect from 1.2.2010. 6. As far as the issue of adequate compensation to the family of the Hon'ble Judges is concerned, it is a well established state of law that every judicial order is to be rooted in legal foundation. The rights of the family of Hon'ble Judge/s to interim or compensation in the event of untimely death of a Hon'ble Judge are to be determined with reference to the provisions of the Constitution of India, the High Court Judges (Salaries and Conditions of Service) Act, 1954 and the High Court Judges Rules, 1956. A bare perusal of the aforesaid provisions of law indicates that there is no provision for interim compensation or compensation to the family of a Hon'ble sitting Judge resulting from an untimely and unfortunate early demise. 7. It is noticeable in the present case that neither the wife of Hon'ble the then Vyas, J. nor any other family member approached this Court and rightly so in view of the fact that the unfortunate demise entailed no legal liability on the state or corresponding right to the family of the deceased Hon'ble Justice R.P. Vyas. 8. Reference can be made to Art. 221 of the Constitution of India, which states as under : "221. Salaries etc. 8. Reference can be made to Art. 221 of the Constitution of India, which states as under : "221. Salaries etc. of Judges.—(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 a 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 or pension shall be varied to his disadvantage after his appointment." 9. The allowances and other rights of Judges of Hon'ble High Courts are to be determined in terms of Articles 221(2) of the Constitution of India with reference to the law of Parliament. Parliament on its part has enacted the High Courts Judges (Salaries and Conditions of Service) Act, 1954 ("the Act of 1954", for short). The Preamble of the Act states that the Act seeks to regulate the salaries and other conditions of the services of he Judges of a High Court and thus, the Act occupies the whole field on any issue pertaining to the salaries or allowances or other rights of the Hon'ble Judges of the High Court. 10. It is evident from the Act of 1954 that Section 17A deals with family pensions gratuities and thus, the Parliament was clearly conscious of and reckoned the possibility of a Hon'ble Judge dying in service and has provided that in such an event family pension calculated at the rate of set out in Section 17A would be payable to the person or persons entitled to such family pension. Section 20A of the Act of 1954 deals with Deposit Linked Insurance Scheme which applies to every Judge whether he subscribes to the General Provident Fund (Central Services) or any other Provident Fund referred to in Section 20. Parliament has, however, not provided for any compensation interim or otherwise by the State concerned in the event of untimely death of a sitting Judge. Parliament has, however, not provided for any compensation interim or otherwise by the State concerned in the event of untimely death of a sitting Judge. The High Court Judges Rules, 1956 enacted under the Act of 1954 also do not make any provision for compensation to the family of a sitting Judge in the event of his untimely demise. 11. In the aforesaid circumstances, however, sympathetic this Court may be as a result of the unquestionably sad and untimely demise of Hon'ble Mr. Justice Vyas, yet this Court feels constrained by the extant law and it is out considered view that the order dated 7.11.2006 passed by the learned Single Judge directing payment of interim compensation is without statutory foundation and therefore unsustainable in law. 12. The Hon'ble Supreme Court has held that writs of mandamus and/or writs of similar nature cannot be based on generosity or sympathy and such orders made or writs issued would be unsustainable in law. 13. The above principle has been espoused in different factual contexts such as in matters of imposition of punishment in disciplinary proceeding as in the case of Chairman & Managing Director, V.S.P. & Ors. vs. Goparaju Sri Prabhakara Hari Babu ( (2008) 5 SCC 569 ), wherein the Hon'ble Supreme Court held that : "The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order." 14. Further in the case of Life Insurance Corporation of India vs. Asha Ramchhandra Ambekar (Mrs) & Anr. ( (1994) 2 SCC 718 ), the Hon'ble Supreme Court has held that : "10.... The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. ... Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that 'law is the embodiment of all wisdom'. Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be." 15 . ... Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that 'law is the embodiment of all wisdom'. Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be." 15 . It is yet true that the Hon'ble Apex Court has indeed granted compensation in the absence of statutory provisions, but the difference to be noted here is that the Hon'ble Supreme Court appears to have invoked its power under Article 142 of Constitution of India in cases of man made disasters occasioning humongous violation of human rights of the victims of torts and violation of their fundamental rights. Such a situation does not attract in the facts of the case. 16. We are of the firm view that absent statutory provision or a binding legal precedent, this Court in the exercise of its extra ordinary jurisdiction cannot grant compensation interim or otherwise even occasioned by the untimely death of a sitting Judge on any ground whatsoever. It is trite that the courts of law including High Courts cannot legislate and are to ordinarily exercise their adjudicatory powers for stating the law and determining disputes with reference to the rights and obligations of the contesting parties. 17. For the reasons aforesaid, in our view the order dated 7.11.2006 as also to further order dated 11.7.2007 passed by the learned Single Judge dismissing the application for keeping the order dated 3.4.2007 in abeyance deserve to be quashed and set aside. Consequently, the D.B. Special Appeal deserves to be allowed.