Writ Petition (Civil) 1022 of 1989

21st March 2002

Petitioner Counsel:
Respondent Counsel:

Cases Cited :

Paras 2, 3, 9, 16: AII India Judges' Association Vs. Union of India and Ors.[1992] l SCC 19, [1993] 4 SCC 288
Para 29: R. K. Sabharwal and Ors., Vs. State of Punjab reported in [1995] 2 SCC 745

JUDGEMENT

KIRPAL, J.:- This Writ Petition pertains to the working conditions of the members of the Subordinate Judiciary throughout the country. This is third round before this Court.
2. In a decision reported in [1992] l SCC 19 entitled AII India Judges' Association v. Union of India and Ors., directions were given by this Court in regard to the working conditions and some benefits which should be given to the members of the Subordinate Judiciary. The directions were as follows:
"63. We would now briefly indicate the directions we have given in the judgment:
(i) An AH India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(ii) Steps should be taken to bring about uniformity in designations of officers both in civil and the criminal side by March 31, 1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by December 31, 1992.
(iv) As and when the Pay Commissions/Committees are set up in the States and Union Territories, the question of appropriate. pay scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to be provided by June 30, 1992. Provision for sumptuary allowance as stated has to be made.
(vi) Residential accommodation to every judicial officer has to be provided and until State accommodation is available, government should provide requisitioned accommodation, for them in the manner indicated by December 31, 1992. in providing residential accommodation, availability of an office room should be kept in view.
(vii) Every District Judge and Chief Judicial Magistrate should have a State/vehicle, judicial officers in sets of five should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits as specified.
(viii) In-service Institute should be set up within one year at the Central and State or Union Territory level.
3. A number of directions which were given have been implemented. The Union of India, however, filed a review petition seeking certain modifications/ clarifications. This review petition was disposed of by the judgment reported in [1993] 4 SCC 288 entitled All India Judges' Association and Ors., etc. v. , Union of India and Ors., etc. The relevant findings in the said decision are as follows:
(i) Each of the general and special objections of Union of India and States/UTs was dealt with and rejected. The distinction between judicial and other service specifically emphasized, (paras 7 to 10).
(ii) "The service conditions of Judicial officers should be laid down and reviewed from time to time by an independent Commission exclusively constituted for the purpose, and the composition of such Commission should reflect adequate representation on behalf of the judiciary" (para) 11.
(iii) "By giving the directions in question, this Court has only called upon the executive and the legislature to implement their imperative duties. The courts do issue directions to the authorities to perform their obligatory duties whenever there is a failure on their part to discharge them...........The further directions given, therefore, should not be looked upon as an encroachment on the powers of the executive and the legislature to determine the service conditions of the judiciary. They are directions to perform the long overdue obligatory duties." (para 14).
"................The directions are essentially for the evolvement of a appropriate national policy by the Government in regard to the judiciary's conditions". The directions issued are mere aids and incidental to and supplemental of the main direction and intended as a transitional measure till comprehensive national policy is evolved. (para 15) (emphasis supplied)."
(iv) The question of financial burden likely to be imposed is misconceived and should not be raised of discharge mandatory duties:
"16. The contention with regard to the financial burden likely to be imposed by the directions in question, is equally misconceived. Firstly, the courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden.
Thirdly, compared to the other plan and non-plan expenditure, we find that the financial burden caused on account of the said directions is negligible. We should have thought that such plea was not raised to resist the discharge of the mandatory duties. The contention that the resources of all the States are not uniform has also to be rejected for the same reasons. The directions prescribe the minimum necessary service conditions and facilities for the proper administration of justice. We believe that the quality of justice administered and the calibre of the persons appointed to administer it are not of different grades in different States, Such contentions are ill-suited to the issues involved in the present case."
(v) The directions given in the main judgment dated 13.11.1991 were maintained except as regards the following:-
(a) Para 52 (a), page 314
"The legal practice of 3 years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy.
Further, wherever the recruitment of the judicial officers at the lowest rung is made through the Public Service Commission, a representative of the High Court should be associated with the selection process and his advice should prevail unless there are strong and cogent reasons for not accepting it, which reasons should be recorded in writing.
The rules for recruitment of the judicial officers should be amended forthwith to incorporate the above directions."
(b) Para 52(b), page 315
"The direction with regard to the enhancement of the superannuation age is modified as follows:
While the superannuation age of every subordinate judicial officer shall stand extended upto 60 years, the respective High Courts should, as stated above, assess and evaluate the record of the judicial officer for his continued utility well within time before he attained the age of 58 year by following the procedure for the compulsory retirement under the Service Rules applicable to him and give him the benefit of the extended superannuation age from as to 60 years only if he is found fit and eligible to continue in service. In case he is not found fit and eligible, he should be compulsorily retired on his attaining the age of 58 years.
The assessment in question should be done before the attainment of the age of 58 years even in cases where the earlier superannuation age was less than 58 years."
(c) Para 52 (c), page 316
"The direction for granting sumptuary allowance to the District Judges and Chief Judicial Magistrates stands withdrawn for the reasons given earlier."
(d) Para 52(d), page 316
"The direction with regard to the grant of residence-cum-library allowance will cease to operate when the respective State Government/ Union Territory Administration start providing the courts, as directed above, with the necessary law books and journals in consulation with the respective High Courts."
(e) Para 52(e), page 316
"The direction with regard to the conveyance to be provided to the District Judges and that with regard to the establishment of the training institution for the Judges have been clarified by us in paragraphs 45(vii) and 49 (viii) respectively. It is the Principal District Judge at each district headquarter or the metropolitan town as the case may be, who will be entitled to an independent vehicle this will equally apply to the Chief Judicial Magistrate and the Chief Metropolitan Magistrate. The rest of the Judges and Magistrates will be entitled to pool-vehicles-one for every five Judges for transport from residence to court and back-and when needed, loans for two wheeler automobiles and conveyance allowance. The State Govermments/Union Territory Administrations are directed to provides adequate quantity of free petrol for the vehicles, not exceeding 100 litres per month, in consulation with the High Court."
(O Para 52(f), page 316
"In view of the establishment of the National Judicial Academy, it is optional for the States to have their independent or joint training Judicial institutes."
(g) Para52(h), page 316
In view of the time taken to dispose of the Review Petitions, following orders were passed:
(i) "the time to comply with the direction for bringing about uniformity in hierarchy, designations and jurisdictions of Judicial officers on both civil and criminal sides is extended upto March 31, 1994";
(ii) "the time to comply with the directions to provide law books and law journals to all courts is extended up to December 31, 1993 failing which the library allowance should be paid to every judicial officer with effect from January l, 1994, if it is not paid already";
(iii) "the time to provide suitable residential accommodation, requisitioned of Government, to every judicial officer is extended up to March 31, 1994".
(iv) "the time to comply with the rest of the directions is maintained as it was directed by the judgment under review."
(v) Regarding uniform pay scales the Review Judgement emphasised the following:
"36. We have already discussed the need to make a distinction between the political and the administrative executive and to appreciate that parity in status can only be between Judges and the political executive and not between Judges and the administrative executive. Hence the earlier approach of comparison between the service conditions of the Judges and those of the administrative executive has to be abandoned and the service conditions of the Judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service, Further, since the work of the judicial officers throughout the country is of the same nature, the service conditions have to be uniform. We have also emphasised earlier the necessity of entrusting the work of prescribing the service conditions for the judicial officers to a separate Pay Commission exclusively set up for the purpose. Hence we reiterate. the importance of such separate Commission and also of the desirabiliry of prescribing uniform pay scales to the Judge all over the country. Since such pay scales will be the minimum deserved by the judicial officers, the argument that some of the States may not be able to bear the financial burden is irrelevant. The uniform service conditions as and when laid down would not, of course, affect any special or extra benefits which some States may be bestowing upon their judicial officers."
4. The question with regard to the pay scales in respect of the members of the Judicial Service was first referred to the Fifth Central Pay Commission. Subsequently by an amendment made on 24th October, 1996, the reference to the Fifth Central Pay Commission with regard to the fixation of the pay scales of the Judicial Officers was deleted. We may here note that the Fifth Central Pay Commission submitted its report on 30th January, 1997 which was accepted by the Government on 30th September, 1997. It became applicable with retrospective effect, that is to say, with effect from Ist January, 1996. This is relevant, when considering the question as to with effect from which date the Report of the Shetty Commission is to become effective.
5. On 21 st March, 1996, pursuant to the directions issued by this Court in the review judgment, the Government of India by a Resolution constituted the First National Judicial Pay Commission under the Chairmanship of Mr. Justice K.J. Shetty. As per the said Resolution, the following were the terms of reference:
"(a) To evolve the principles which should govern the structure of pay and other emoluments of Judicial Officers belonging to the Subordinate Judiciary all over the country.
(b) To examine the present structure of emoluments and conditions of service of Judicial Officers in the States/UTs taking into account the total packet of benefits available to them and make suitable recommendations having regard, among other relevant factors, to the existing relativities in the pay structure between the officers belonging to subordinate Judicial service vis-a-vis other civil servants.
(c) To examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment., etc., for Judicial Officers. In this context, the relevant provisions of the Constitution and directions of the Supreme Court in All India Judges Association case and other cases may be kept in view.
(d) To examine the work methods and work environment as also the variety of allowances and benefits in kind that are available to Judicial Officers in addition to pay and to suggest rationalization and simplification there of with a view to promoting efficiency in Judicial Administration, optimising the size of the Judiciary etc."
6. As the Fifth Central Pay Commission Report had been accepted but no relief was available to the members of the Judicial Subordinate Service, a question arose that pending the recommendation of the Shetty Commission whether any interim orders can be passed giving some relief. Accordingly, on 16th December, 1997, another terms of reference was added according to which the Commission was empowered to consider and grant such interim relief as it may consider just and proper to all categories of Judicial Officers of all the States/Union Territories. It was made clear that the interim relief, if recommended, was to be adjusted against and included in the package which may become admissible to the Judicial Officers on the final recommendations of the Commission.
7. By a preliminary Report dated 31 st January, 1998, some interim relief was granted by Justice Shetty Commission. It is not necessary for our purpose to refer to the relief so granted, except to note that wherever the relief has been granted the same was subject to adjustment on the acceptance, with or without modification, of the final Report of Justice Shetty Commission. The Interim Report has been fully implemented by the Union of India in respect of Union Territotries and by the States.
8. After thorough deliberations, Justice Shetty Commission submitted its Report on 11th November, 1999. By order dated 14th December, 1999, the State Governments and the Union Territories were directed to send their responses to the Union of India so that it could correlate the responses and indicate its own stand on the recommendations of the Commission.
9. The recommendations of the Shetty Commission were in respect of the following topics:
(1) The High Courts were required to frame the rules specifying particular age of retirement and it was also recommended that the procedure prescribed for writing the confidential reports by the self-assessment process was better and more transparent and should be adopted by the High Court for Judicial Officers.
(2) The Commission recommended appropriate nomenclature to be given to the Judicial Officers. The recommendation was that they should be called "Civil Judge" in place of "Civil Judge (Junior Division)" and "Senior Civil Judge" in place of "Civil Judge (Senior Division)".
(3) It further gave recommendation with regard to equation of posts of the Chief Metropolitan Magistrate and Chief Judicial Magistrate. While it recommended that the Chief Judicial Magistrate should be in the cadre of Civil Judge (Senior Division), in respect of Chief Metropolitan Magistrate, it recommended that it should be placed in the cadre of District Judge. According to the learned Amicus Curiae, the Chief Metropolitan Magistrate and Chief Judicial Magistrate must be in the same cadre equivalent to Civil Judge (Senior Division) and that it should be at par with each other. We shall deal with this aspect slightly later.
(4) Recommendations were made with regard to recruitment to the cadre of Civil Judge (Junior Division) Cum-Magistrate First Class as well as recruitment to the post of Civil Judge (Senior Division). The recommendation in this regard was that the posts of Civil Judge (Senior Division) should only be filled by promotion.
(5) The commission also made recommendation with regard to appointment to
the post of District Judge which includes the Additional District Judge in the Higher Judicial Service. It pointed out some problems which had arisen as a result of direct recruitment to the post of District Judges, the problem really being with regard to the inter se seniority amongs them.
(6) The Commission also recommended that service Judges who were between 35 and 45 years of age should be made eligible for direct recruitment to the Higher Judicial Service which consists of the posts of District Judges and Additional District Judges and for this purpose', if necessary, there should be an amendment to Article 233(2) of the Constitution of India.
(7) With regard to inter se seniority between direct recruits and promotees, the Commission recommended that the promotees be given weightage of one year for every five years of Judicial Service rendered by them subject to a maximum of three years.
(8) The Report also recommended steps being taken for Judicial education and training.
(9) With regard to pay scales, the Shetty Commission set out the principles governing the pay structure of the Subordinate Judiciary. It referred to the All India Judges' Association case (supra) wherein it had been observed that the parity in status should be between the political Executive, the Legislatures and the Judges and not between the Judges and the Administrative Executive.
After taking into consideration the recommendations which had been made by the Fifth Central Pay Commission and the pivotal role of the subordinate Judiciary and the essential characteristics of a Judicial officer, the Shetty Commission evolved a Master Pay scale. It came to the conclusion that the number of pay scales should be equal to the number of clearly identifiable levels of responsibility. Scope for promotional avenues must also be taken into consideration. After considering all the relevant circumstances the Commission recommended the following scales of pay :
(1) Civil Judges (Jr. Divn.) Rs. 9000-250-10750-300-13150-350-14530
(2) Civil Judges (Jr. Divn.) (I stage ACP Scale)
(3) Civil Judges (Sr. Divn.) (II Stage ACP Scale for Civl Judge) (Jr.Divn.)
(4) Civil Judge (Sr. Divn.) (I Stage ACP Scale)
(5) District Judges Entry Level + (II Stage ACP for Civil Judges (Sr. Divn.)
(6) District Judges (Selection Grade)
(7) District Judges (Supertime Scale)
Rs.10750-300-13150-350-14900
Rs.12850-300-13 150-350-15950-400-17550
RS. 14200-350-15950-400-18350
RS. 16750-400-19150-450-20500
Rs. 18750-400-19150-21850-500-22850
Rs. 22850-500-24850
In arriving at the aforesaid pay scales, the Commission noted that while fixing the maximum of the master pay scale it had been constrained by the vertical cap of the salaries of the High Court Judges. In other words, the District Judges could not get more salary than a High Court Judge whose salary was statutorily fixed. It, however, recommended that as and when the salary of a High Court Judge is raised, then the salary of the Judicial Officers should also be increased by maintaining the ratio which it had recommended. According to the Commission, the pay scales recommended by it should be deemed to come into force with affect from 1st January, 1996, but the monetary benefit was to be payable with effect from 1st July, 1996.
Other allowances, which the Commission had recommended, were to be given affect to from 1st November, 1999. Taking into consideration that there were at present 12771 posts on regular pay scales, the estimated impact of the introduction of the new pay scales was stated to be of the order of Rs. 95.71 crores for one year.
(10) The Commission recommended that administration of justice in the States should be the joint responsibility of the Centre and the States. It noted that the expenditure on the judiciary in India in terms of Gross National Product was relatively low : it was not more than 0.2%. The main recommendation of the Shetty Commission was that the Central Government must, in every States, share half of the annual expenditure on subordinate courts and quarters for Judicial Officers. This was to be without prejudice to the rights and privileges of the north-eastern States and State of Sikkim wherein about 90-92% of the expenditure of the States was to be made by the Central Government under the provisions for special category of States.
(11) The Commission also recommended Assured Career Progression Scheme and functional scales. Recommendations were also made with regard to dearness allowance, allowances for electricity and water charges, home orderly allowances, newspaper allowances, city compensatory allowance, robe allowance, conveyance allowance, sumptuary allowance, hill allowance and further recommended provisions with regard to medical facilities, leave travel concession, special pay, concurrent charge allowance, encashment of leave and level salary, composite transfer grant allowance, housing and house rent allowance, telephone facilities and advances of loans to the Judicial Officers.
(12) The Report also made recommendation to the effect that there should be an increase in the retirement, age of the Judicial Officers from 60 to 62 years and recommendations were also made with regard to retirement benefits.
(13) One more recommendation which was made for retired Judicial Officers was that cash payment of Rs. 1,250 per month should be given as domestic help allowance to enable the retired Judicial Officer to engage a. Servant.
(14) Another recommendation which was made was for the establishment of an AH India Judicial Service.
10. Pursuant to the order which was passed by this Court requiring the response of the various States to be given to the Union of India, it was noted in this Court's order of 27th August, 2001 that six States, namely, those of West Bengal, Assam, Karnataka, Manipur, Kerala and Mizoram had accepted the recommendations of the Shetty Commission and had agreed to implement the same subject to the Union of India bearing 50 percent of the expenditure as envisaged in the Report. The States of Bihar and Jharkhand had also conveyed that they were accepting the Shetty Commission Report subject to the Union of India bearing 50 per cent of the expenditure and the Report being further modified and scaled down. Affidavits have also been filed by the States of Andhra Pradesh and Haryana with regard to the scales of pay accepted by them.
11. From the various affidavits which have been filed and the responses given to the Union of India, we find that none of the States has accepted the recommendation of the Shetty Commission with regard to the pay scales in toto.
12. Pursuant to an order dated 27th August, 2001, an affidavit has also been filed by Shri Kamal Pande, Secretary, Government of India, Department of Justice detailing the decisions taken by the Central Government with regard to the Judicial Officers in the Union Territories. According to this affidavit, with regard to the Union Territory of Delhi the pay scales which have been accepted by the Union of India are as follows :
Civil Judge (Jr. Division) -Rs. 8000-275-13500
Civil Judge (Senior Time Scale) -Rs.10650-325-15850
Senior Civil Judge -Rs.
12750-375-16500
District Judge (Entry Level) -Rs.15100-400-18300
District Judge (Selection Grade) Rs. 18400-500-22400
(20% of the posts of District Judges)
13. We have heard the learned Amicus Curiae as well as the learned Solicitor General and the Advocates General for the State of Karnataka and other learned counsel. We will first deal with some of the contentious issues on which arguments have been addressed and also deal with the recommendations of the Shetty Commission which, in our opinion, need modification or cannot be accepted as such.
14. The most important point in these proceedings appears to us to be as to whether the recommendation of the Shetty Commission laying down different scales of pay should be accepted or not. It is to be borne in mind that pursuant to the judgment in the review case [1983] 4 SCC 288 the Central Government had accepted the recommendation and had constituted the Shetty Commission. Correspondingly, it had deleted from the terms of reference of the Fifth Central Pay Commission the consideration in respect of the pay scales of the Judicial Officers. Therefore, it can safely be concluded that the Central Government had agreed to set up a Pay Commission specifically for Judicial Officers and normally the recommendations made in that behalf should be accepted unless for some specific and valid reason a departure was required to be made. We may here bear in mind that the Fifth Central Pay Commission Report which was submitted has been largely accepted by the Government of India with little or no modification. It was, therefore, rightly urged by Shri F.S. Nariman that there must be good and compelling reason for the States and the Central government in not accepting the recommendations of the Shetty Commission.
15. From the facts narrated hereinabove, it is clear that atleast eight of the States nave accepted the recommendations of the Shetty Commission provided the Central Government bears 50 percent of the expense. This means that in principle there is acceptance of the pay scales as determined by the Shetty Commission.
16. The Central Government, however, has evolved its own pay scales with regard to the Subordinate and the Higher Judicial Service in the Union Territories, including the Union Territory of Delhi. The pay scales which have now been approved by the Government of India had been formulated on the basis that there should be a parity between the Executive and the Judiciary. Mr. Nariman rightly contended that this basis is contrary to the decision of this Court in the AII India Judges' Association case (supra) as well as in the review judgment. It was stated in no uncertain terms that the Judiciary could not be equated with the Executive and it must have its own pay structure.
17. Even if we were to examine the two scales of pay, one for the I.A.S. officers after the Fifth Central Pay Commission Report and the scales of pay recommended for the Judicial Service, we find that there is a fundamental error which has been committed by the Union of India. Then scales of pay approved for the I.A.S. officers are as follows :
Junior Scale -Rs.. 8000-275-13500
Senior Scale : (i) Time Scale -Rs.
10650-325-15850
(ii) Jr. Admn. Grade -Rs. 12750-375-16500
(iii) Selection Grade -Rs. 15100-400-18300
(iv) Super Time Scale -Rs. 18400-500-22400
(v) Above ST Scale -Rs. 22400-525-24500
Secretary to Govt. of India -Rs. 26000 (fixed)
Cabinet Secretary -Rs. 30000 (fixed)
18. What the Union of India has done is that it equated the District Judge at this entry level with the Selection Grade for the I.A.S. officers. The pay scal