Georgetown: Former Judge, Jainarayan Singh who petitioned the High Court after he claimed that he was sacked without being paid his entitlements of gratuity, pension and other benefits upon reaching the age of retirement, which he contended was a breach of the Constitution had the matter dismissed.
In a ruling delivered earlier recently at the High Court in Georgetown, Justice Nareshwar Harnanan dismissed the lawsuit filed by the former Judge.
The reason for dismissal was that the former judge was acting in the office of a Puisne Judge and was never appointed to the substantive position upon retirement.
In this regard, the Judge dismissed the lawsuit and ordered that the parties bear their own costs.
According to court documents, the lawsuit was in relation to Articles 128, 197, 149B, 213, 214 and 215 of the Constitution. Jointly and severally named as the Respondents, were the Attorney General, then Chancellor of the Judiciary Carl Singh, the Accountant and Auditor General.
Singh, through his Attorneys-at-law, had asked the court for damages in excess of $50M for breach of the Constitution. The former judge had asked the court to declare that at all material times, he held the position as a puisne judge, with security of tenure guaranteed by the Constitution. He had further asked the court for, “A declaration that he is entitled on his retirement to all pension, gratuity and other benefits to which a puisne judge is entitled on reaching the mandatory retirement age of 62, whether under the Pensions Act or any other enactment. A declaration that unilateral declaration and refusal by the Accountant General, on the advice of the Auditor General to effuse the plaintiff’s benefits, are made in breach of articles 149B, 213 and 214 of the Constitution; An account of all monies as may be due to him as puisne judge on retirement, in particular pension and gratuity and payment of such sum as may be determined on the account or as the court decides.”
In his ruling, Justice Harnanan outlined that Singh was appointed under an instrument to act in office of Puisne Judge with effect from August 10, 2000, in accordance with Article 128 (2) of the Constitution; and not Article 128 (1), which provides that judges, other than the Chancellor and Chief Justice shall be appointed by the President, acting in accordance with advice from the Judicial Service Commission (JSC).
“Therefore, the contention by the Applicant (Singh), that he “enjoyed all of the emoluments 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,” Justice Harnanan noted.
The Judge held that, “A Judge appointed under Article 128(1), on the other hand, has full security of office as provided for in Article 197. Under Article 197, 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.”
According to Justice Harnanan, 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 Judge added, “This Court is of the view that such retirement cannot possibly serve to convert an acting appointment into a substantive appointment and automatically endow a person with all the benefits he would have obtained had he been appointed as the substantive holder of the office of a judge. It is also this Court’s 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 the evidence before the Court that he was at all times acting in the office of a Puisne Judge. He was never appointed and thus never held the substantive post of a Puisne Judge.”
Added to that, Justice Harnanan stated, “His (Singh) period of acting may have qualified as pensionable service if he had then been appointed to the substantive position prior to him retiring. Since he retired under his appointment to act, that period of service cannot qualify as pensionable service.”
The Judge said that if Singh was made to retire from his acting appointment otherwise than by a revocation of the appointment by the President in accordance with Article 128(3) of the Constitution, this may be subject to a claim for wrongful dismissal. However, the Judge noted that there was nothing before the court that suggests that this was the case, as Singh only says that, upon attaining the age of 62 years, “he vacated the office of Puisne Judge”. This appears to be tantamount to a resignation by Singh, and not a dismissal.”
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