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 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.
Parliament, acting under article 221 enacted the High Court Judges (Conditions of Service) Act, 1954 and the High Court, Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998 and the High Court and Supreme Court (Salaries and Conditions of Service) Amendment Act, 2005.
The Fifty-fourth Constitution Amendment of 1986 empowers Parliament to determine the salaries of High Court judges. The amendment, however, does not exempt salaries and allowances so determined by Parliament from the provisions of the Income Tax Act.
Salaries and allowances of judges have been charged on the Consolidated Fund of the State and hence are non-votable. Their pensions are charged on the Consolidated Fund of India. The High Court Judges (Conditions of Service) Act, 1954 determines matters relating to salaries and allowances of the High Court Judges. A Judge is entitled to a staff car. In case the State government fails to provide him staff car he is entitled to be compensated. The compensation is, however, only a short term measure and not a substitute for staff car.
The leave credited to the account of a judge under section 4 of the 1954 Act is conceptually ‘earned leave’ even though that expression is not used in the said statute. The entitlement to cash equivalent of leave salary by a retired High Court judge must be determined on the basis that Rule 20B of the 1955 Rules is made applicable by virtue of Rule 2 of the 1956 Rules. Rule 20B in no uncertain terms provides that while the cash equivalent of leave salary shall include dearness allowance it shall not include (i) city compensatory allowance and (ii) house rent allowance.
Article 221 clearly draws a distinction between salary and allowances and when section 9 speaks of salary the intention seems to omit allowances. But in the case of High Court judges by the introduction of section 22A in the 1954 Act with effect from 1 October, 1974, provision was made for the grant of rent free official residence in accordance with rules made from time to time. Sub-section (2) of that section provides that if a judge does not avail himself of use of an official residence, he may be paid every month an allowance of Rupees 2,500. This allowance clearly partakes the character of house rent allowance. Instead of giving the judge HRA, he is granted the benefit of rent free furnished official residence or a monthly allowance of Rs. 2,500 if he does not avail of it. If in the case of a member of the service HRA is not includible for computing cash equivalent of leave salary, it would be so in the case of the judge also since neither the 1954 Act nor the 1956 Rules provide for its inclusion.
The only right that could be protected under article 221(2) was to get the “pension expressed in sterling only” converted for payment in India “at such rate of exchange as the Governor-General may from time to time prescribe”. The High Court Judges under the 1954 Act have no right to have their pension expressed in sterling to be converted into rupees at the time of their retirement or of payment of pension to them.
