Former judge Jainarayan Singh Jr has lost a $50 million lawsuit that was initiated under the former government for pension, gratuity and other benefits that he said had been owed to him.
In a recent High Court ruling, however, Justice Nareshwar Harnanan found that Singh was not entitled to the benefits he sought, as he acted in a temporary capacity and, therefore, could not enjoy the same security of tenure as afforded to permanent judges.
In his action, which has engaged the attention of the court since 2011, the retired judge had said that after vacating office in 2008, he received none of the benefits that he contends were constitutionally owed to him.
The former judge retired at age 62, after eight years of service as a puisne judge at the Supreme Court of Judicature, having served from August 10th, 2000 to September 30th, 2008.
In his action, he sought, among other things, a declaration that he, at all material times, held the position as a puisne judge, which attracted security of tenure as guaranteed by the constitution.
Against this background, he argued that he was entitled on retirement to all pension, gratuity and other benefits to which a puisne judge is entitled, having attained the mandatory retirement age of 62.
However, Justice Harnanan, in his ruling, said Singh only acted in the position and, therefore, was not entitled to the benefits claimed.
He said Singh (the plaintiff) was appointed under an “instrument to act in the office of
puisne judge” made under Seal No. 184 of 2000 by the then President. The instrument, the trial judge said, states that the President acted under Article 128(2) (a) of the Constitution by which Singh was appointed.
Article 128, the judge noted, was amended by Act No. 6 of 2001, by the Constitution (Amendment) (No. 4) Act 2001 and that thus it was under the previous Article 128 that the President acted.
According to Justice Harnanan’s ruling, Article 128(2) (a) of that Article provides that, if the office of any such judge, as mentioned in Article 128(1), is vacant, the president, acting in accordance with the advice of the Judicial Service Commission (JSC), may appoint a person to act in the office of justice of appeal or puisne judge, as the case may require: provided that a person may be so appointed, notwithstanding that he has attained the age at which that office is required to be vacated by a holder thereof.
According to the judge, it was evident that an appointment made under Article 128(2) is different from an appointment made under Article 128(1), which provides that judges, other than the Chancellor and the Chief Justice, shall be appointed by the president, acting in accordance with the advice of the JSC.
While judges are appointed under Article 128(1), persons may be appointed to act in the office of a judge under Article 128(2), Justice Harnanan reasoned.
He said that Article 128(3) highlights the difference in appointments made under those two provisions, where it provides that a person appointed under Article 128(2) to act in the office of a judge shall continue to have effect until it is revoked by the president, acting in accordance with the advice of the JSC.
The judge, therefore, said the contention by Singh, that he enjoyed all the benefits and privileges of judges, inclusive of security of tenure under Article 197, “is misconceived, as a person appointed under Article 128(2) can have that appointment revoked at any time by the President.”
“A judge appointed under Article 128(1), on the other hand, has full security of office as provided for in Article 197,” Justice Harnanan noted.
He then pointed out that under that latter article a puisne judge must vacate the office upon attaining a particular age [Article 197(2)] but may only be removed from office for inability to perform the functions of his office or misbehaviour, and such removal must be in accordance with the provisions of Article 197.
Justice Harnanan, therefore, said, while a judge appointed under Article 128(2) was not limited by the age restrictions in Article 197, and their appointment may be revoked by the President in accordance with the advice of the JSC [Article 128(3)], a judge appointed under Article 128(1) is subject to the age restrictions in Article 197 and may only be removed from office in accordance with that Article.
Article 197(8) specifically provides that the provisions of that Article shall be without prejudice to the provisions of Article 128(3), Justice Harnanan noted.
He then reasoned that in light of the various provisions cited, and the instrument by which the Singh was appointed, it is clear that he “was not appointed as a puisne judge under Article 128(1) but was appointed to act in the office of a puisne judge under Article 128(2).”
‘Not entitled’
The trial judge further went on to reason that since the plaintiff was only appointed once, by instrument, the only other means by which he may have held the substantive post of puisne judge was if that initial appointment to act was converted to a substantive appointment to hold that office.
Justice Harnanan said there is no provision that enables a person who has been appointed to act in the office of a judge, having the status and authority of a judge, to convert himself into the position of holding the office of a judge, by retiring in the manner, or at the time, as a person appointed to hold the office of a judge.
The trial judge expressed the view that such retirement cannot possibly serve to convert an acting appointment into a substantive one to automatically endow a person with all the benefits he would have obtained, had he been appointed as the substantive office holder.
The court said it was also of the view that Singh’s claim that he was at all material times holding the position of a substantively appointed puisne judge, “must fail,” as it is clear from evidence that he was only an acting judge.
“He was never appointed and thus never held the substantive post of a puisne judge,” Justice Harnanan said.
Singh had also sought declarations that the unilateral decision by the Accountant General, on the advice of the Auditor General, to refuse his benefits, was made in breach of Articles 149B, 213 and 214 of the constitution.
He also wanted an account of all monies which he said were due to him, in particular pension and gratuity and payment of such sum as may be determined on the account, or as the court decided.
Finally, he was also seeking the award of damages for breach of the constitution.
It had been the contention of the defendants—the Attorney General, Accountant General and the Auditor General—that since Singh never held the substantive position, he was not entitled to pension and benefits pursuant to Regulation 11 (Part II) of the Pension Regulations, appended to the Pensions Act.
The court noted that Regulation 11 provides that where an officer has performed acting service in the public service, the period of such service may be taken into account as qualifying or pensionable service, provided that that period of service is immediately succeeded by service in a substantive capacity in the public service.
Justice Harnanan noted that the challenge by the plaintiff, however, is that he was not in public service. Singh, the judge said, contended that the service of a judge is not public service for several reasons but concluded by stating that he [Singh] took “solace in article 232(5) of the constitution, which provides that references in the constitution to public service does not include the office of any judge of the Supreme Court.”
The judge said, however, that it is clear that the limitations on the references to public service in the constitution are not adopted by the Pensions Act, which actually expands the meaning of public service to capture “any other service” that the Minister has determined to be public service for the purposes of that Act.
Justice Harnanan, however, noted that since the Pensions Act does make provision for computation of the pension of a judge under its regulations, upon which the plaintiff relies, the claim that the service of a judge is not public service could not be sustained.
The court concluded that in light of all the circumstances outlined, and taking into account the provisions of Regulation 11, Singh was at all times acting in the post he held and, therefore, could not be taken to be entitled to any pension or gratuity under the Pensions Act.
The judge said his period of acting may have qualified as pensionable service if he had then been appointed to the substantive position prior to him retiring, but stated that since he retired under his appointment to act, that period of service cannot qualify as pensionable service.
In the circumstances, Justice Harnanan dismissed Singh’s case.
All parties were ordered to bear their own costs.
Also listed as defendants in Singh’s action were the JSC and then Chancellor of Judiciary (Ag) Carl A Singh, in his capacity as Chairman and Member of the JSC.
Singh’s case initially commenced in 2011. After pending for almost three years, however, it recommenced before Justice Harnanan. It was first being heard by former acting Chief Justice Ian Chang, who had recused himself, citing a conflict of interest.
Speaking to the press back in September 2009, Singh expressed the view that his reputation of making rulings not in favour of the then government had a lot to do with the way he has been treated. He, however, had said he had no regrets about his service to the judiciary.
Singh was the judge who granted an order awarding the owner of Toucan Suites apartment building $125 million in October of 2008. He had found that the joint services were hasty in their 11-hour siege of the apartment building to flush out the notorious Linden ‘Blackie’ London.
In that 2009 interview with reporters, the former judge said he was certain that this decision, among others made against government, had a lot to do with the way he is being treated.
