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CASE NO.:

Writ Petition (civil) 1022 of 1989

PETITIONER:

ALL INDIA JUDGES ASSOCIATION AND ORS.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 21/03/2002

BENCH:

B.N. KIRPAL & G.B. PATTANAIK & V.N. KHARE

JUDGMENT:

JUDGMENT

2002 (2) SCR 712

The Judgment of the Court was delivered by

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.

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.

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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

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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:

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(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."

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.

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

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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."

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.

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.

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.

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.

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(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

S. 14200-350-15950-400-18350

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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.

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

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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.

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.

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)

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.

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.

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.

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

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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.

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)

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

scale approved is Rs. 15100-400-18300. We, however, find that an I.A.S.

officer enters the Selection Grade after having put in approximately 14

years of service. On the other hand, Civil Judge would normally enter the

level of the District Judge, and is appointed first as an Additional

District Judge, after having put in 18 to 20 years of service. As far as

the I.A.S. Officers are concerned, after 17 years of service, an I.A.S.

officer would normally enter the Super Time Scale of Rs. 18400-500-22400.

If the number of years which are put in service, is a measure to be adopted

in determining as to what should be the pay scales, we find that the

Government of India has erred in equating the District Judge at the entry

level with the scale of pay of a Selection Grade I.A.S. Officer. The proper

equation should have been between the District Judge at the entry level

with a Super Time Scale of an I.A.S. Officer. It is on that basis that the

scale of pay should have been determined upwards and downwards.

The Shetty Commission has trifurcated the scales of pay as far as the

District Judges are concerned. It has recommended scales of pay of a

District Judge at the entry level at Rs. 16750-20500, District Judge

(Selection Grade) at Rs. 18750-22850 and District Judge (Super Time Scale)

at Rs. 22850-24850. As we have already noted, a Judicial Officer would

enter the District Judge (Entry Level) after having put in 18-20 years of

service. The scale of pay of Rs. 16750-20500 recommended by the Shetty

Commission is lower than the Super Time Scale for an I.A.S. Officer of Rs.

18400-22400, when such an officer enters the Super Time Scale after 17

years of service. A Judicial Officer enters the Selection Grade of a

District Judge after having put in 21 to 25 years of service. The pay scale

recommended by the Shetty Commission is Rs. 18750-22850. This is less than

the scale above ST Scale recommended for an I.A.S. officer which is of Rs.

22400-24500 even though an I.A.S. officer enters that scale after having

put in 25 years of service which is at par with the number of years put in

by a Judicial Officer on his entry into Selection Grade. It is only the

District Judge (Super Time Scale) as recommended by the Shetty Commission

which is comparable with the last scale of an I.A.S. Officer.

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From the aforesaid, it is clear, and it is so mentioned in the Shetty

Commission Report, that the said Commission has taken into consideration

the recommendation of the Fifth Central Pay Commission while determining

the pay scales for the Judicial Officers. In our opinion, the pay scales

recommended by the Shetty Commission are just and reasonable. Considering

the years of service put in by the Judicial Officer at different stages,

the parity in the scale of pay recommended by the Shetty Commission for the

Judicial Officers with the scales of pay of I.A.S. officers is not, by and

large, disturbed. In fact, the scale of pay recommended by the Shetty

Commission appear to us to be somewhat lower, on the average, than the

scales of pay recommended for an I.A.S. officer is we take into

consideration, as we must do, the number of years a Judicial officer has

put in service. We are therefore, of the opinion that the pay scales

recommended by the Shetty Commission should be accepted. We wish to

emphasise that even though in the earlier judgments, is has rightly been

said that there should be no equation or parity between the Judicial

Service and the Executive Service, nevertheless even on the basis that

there should not be great distortion in the pay scales of the Judicial

Officer vis-a-vis the Executive, we find the recommendations made by the

Shetty Commission as just, fair and reasonable.

The next question which arose for consideration is whether the Shetty

Commission was justified in recommending that 50 per cent of the expense

should be borne by the Central Government. It has been contended by the

learned Advocate General for the State of Karnataka as well as on behalf of

the other States that the Judicial Officers working in the States deal not

only with the State laws but also with the federal laws. They, therefore,

submitted that, in fairness of things, the Central Government should bear

half of the expense of the Judiciary.

The learned Solicitor General, however, submitted that the recommendation

of the Shetty Commission that the Union of India should bear 50 per cent of

the total expense was inconsistent with the Constitutional set-up. Had

there been an AII India Judicial Service, then the Union of India may have

been under an obligation to bear the expense, but as the State Govermments

had not agreed to the establishment of the AU India Judicial Service and no

legislation had been passed under Entry 11A of List III by the Parliament,

therefore it will not be correct to direct the Central Government to bear

50 per cent of the expense on the Judicial system. The learned Solicitor

General submitted that the obligation to meet the expenses of the Judicial

Service, except for the Supreme Court and the Courts, in the Union

Territories, was on the State Governments. He contended that when

allocation of funds between the Centre and the States takes place the

expenses which the States are required to meet in connection with the

administration of justice is a factor which is taken into consideration.

The provision for devolution of funds from the Union to the States is

either by assignment of taxes or distribution of taxes or by grants-in-aid.

As and when the need arises, either the Finance Commission or the Union of

India allocates more funds to the States.

It has not been disputed that at present the -entire expense on the

administration of justice in the States is incurred by the respective

States. It is their responsibility and they discharge the same. Logically,

if there is to be any increase in the expenditure on Judiciary, then it

would be for the States to mobilise the resources in such a way whereby

they can meet expenditure on Judiciary for discharging their constitutional

obligations. Merely because there is an increase in the financial burden as

a result of the Shetty Commission Report being accepted, can be no ground

for fastening liability on the Union of India when none exists at present.

Accordingly, disagreeing on this point with Justice Shetty Commission

recommendations, we direct that the entire expenditure on account of the

recommendations of the Justice Shetty Commission as accepted be borne by

the respective States. It is for the States to increase the court fee or to

approach the Finance Commission or the Union of India for more allocation

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of funds. They can also mobilies their resources in order to meet the

financial obligation. If such a need arises and the States approach the

Finance Commission or the Union of India for allocation of more funds, we

have no doubt that such a request shall be favourably considered.

Mr. F.S. Nariman has drawn our attention to yet another important aspect

with regard to dispensation of justice, namely, the huge backlog of

undecided cases. One of the reasons which has been indicated even in the

120th Law Commission Report was the inadeuquate strength of Judges compared

to the population of the country. Even the Standing Committee of Parliament

headed by Shri Pranab Mukherjee in its 85th Report, submitted in February,

2002, to Parliament, has recommended that there should be an increase in

the number of Judges. The said committee has noted the Judge-population

ratio in different countries and has adversely commented on the judge-

population ratio of 10.5 judges per 10 lakh people in India. The Report

recommends the acceptance, in the first instance, of increasing the judge

strength to 50 judges per 10 lakh people as was recommended by the 120th

Law Commission Report.

An independent and efficient judicial system is one of the basic structures

of our Constitution. If sufficient number of judges are not appointed,

justice would not be available to the people, thereby undermining the basic

structure. It is well known that justice delayed is justice denied. Time

and again the inadequacy in the number of judges has adversely been

commented upon. Not only have the Law Commission and the Standing Committee

of Parliament made observations in this regard but even the Head of the

Judiciary, namely, the Chief Justice of India has had more occasioned than

once to make observations in regard thereto. Under the circumstances, we

feel it is our constitutional obligation to ensure that the backlog of the

cases is decreased and efforts are made to increase the disposal of cases.

Apart from the steps which may be necessary for increasing the efficiency

of the Judicial officers, we are of the opinion that time has now come for

protecting one of the pillars of the Constitution, namely, the judicial

system, by directing increase, in the first instance, in the Judge strength

from the existing ratio of 10.5 or 13 per 10 lakhs people to 50 judges for

10 lakh people. We are conscious of the fact that overnight these vacancies

cannot be filled. In order to have additional judges, not only will the

posts have to be created but infrastructure required in the form of

additional court rooms, buildings, staff, etc., would also have to be made

available. We are also aware of the fact that a large number of vacancies

as of today from amongst the sanctioned strength remain to be filled. We,

therefore, first direct that the existing vacancies in the Subordinate

Courts at all levels should be filled, if possible latest by 31 st March,

2003, in all the States. The increase in the Judge strength to 50 judges

per 10 lakh people should be effected and implemented with the filling up

of the posts in a phased manner to be determined and directed by the Union

Ministry of Law, but, this process should be completed and the increased

vacancies and posts filled within a period of five years from today.

Perhaps increasing the Judge strength by 10 per 10 lakh people every year

could be one of the methods which may be adopted thereby completing the

first stage within five years before embarking on further increase if

necessary. The Shetty Commission had recommended that there should be an

increase in retirement age from 60 to 62 years. In our opinion, this cannot

be done for the simple reason that the age of retirement of a High Court

Judge is constitutionally fixed at 62 years. It will not be appropriate,

seeing the Constitutional framework with regard to the Judiciary, to have

an identical age of retirement between the members of the Subordinate

Judicial Service and a High Court, As of today, the age of retirement of a

Supreme Court Judge is 65 years, of a High Court Judge it is 62 years and

logically the age of retirement of a Judicial Officer is 60 years. This

difference is appropriate and has to be maintained. However, as there is a

backlog of vacancies which has to be filled and as the Judge strength has

to be increased, as directed by us, it would be appropriate for the States

in consulation with the High Court to amend the service rules and to

provide for re-employment of the retiring Judicial Officers till the age of

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62 years if there are vacancies in the cadre of the District Judge. We

direct this to be done as early as possible.

Another question which falls for consideration is the method of recruitment

to the posts in the cadre of Higher Judicial Service i.e. District Judges

and Additional District Judges. At the present moment, there are two

sources for recruitment to Higher Judicial Service, namely, by promotion

from amongst the members of the Subordinate Judicial Service and by direct

recruitment. The Subordinate Judiciary is the foundation of the edifice of

the Judicial system. It is, therefore, imperative, like any other

foundation, that it should become as strong as possible. The weight on the

Judicial system essentially rests on the Subordinate Judiciary. While we

have accepted the recommendation of the Shetty Commission which will result

in the increase in the pay scale of the Subordinate Judiciary, it is at the

same time necessary that the Judicial officers, hard-working as they are,

become more efficient. It is imperative that they keep abreast of knowledge

of law and the latest pronouncements, and it is for this reason that the

Shetty Commission has recommended the establishment of a Judicial Academy

which is very necessary. At the same time, we are of the opinion that there

has to be certain minimum standards, objectively adjudged, for officers who

are to enter the Higher Judicial Service as Additional District Judges and

District Judges. While we agree with the Shetty Commission that the

recruitment to the Higher Judicial Service i.e. the District Judge Cadre

from amongst the advocate should be 25 per cent and the process of

recruitment is to be by a competitive examination, both written and viva

voce, we are of the opinion that there should be an objective method of

testing the suitability of the Subordinate Judicial officers for promotion

to the Higher Judicial Service. Furthermore, there should also be an

incentive amongst the relatively junior and other officers to improve and

to compete with each other so as to excel and get quicker promotion. In

this way, we expect that the calibre of the members of the Higher Judicial

Service will further improve. In order to achieve this, while the ratio of

75 per cent appointment by promotion and 25 per cent by direct recruitment

to the Higher Judicial Service is maintained, we are, however, of the

opinion that there should be two methods as far as appointment by promotion

is concerned: 50 per cent of the total posts in the Higher Judicial Service

must be filled by promotion on the basis of principle of merit-cum-

seniority. For this purpose, the High Courts should devise and evolve a

test in order to ascertain and examine the legal knowledge of those

candidates and to assess their continued efficiency with adequate knowledge

of case law. The remaining 25 per cent of the posts in the Service shall be

filled by promotion strictly on the basis of merit through the limited

departmental competitive examination for which the qualifying service as a

Civil Judge (Senior Division) should be not less than five years. The High

Courts will have to frame a rule in this regard.

As a result of the aforesaid, to recapitulate, we direct that recruitment

to the Higher Judicial Service i.e. the cadre of District Judges will be:

[1] (a) 50 per cent by promotion from amongst the Civil Judges (Senior

Division) on the basis of principle of merit-cum-seniority and passing a

suitability test;

(b) 25 per cent by promotion strictly on the basis of merit through

limited competitive examination of Civil Judges (Senior Division) having

not less than five years' qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitment from

amongst the eligible Advocates on the basis of the written and viva voca

test conducted by respective High Courts.

[2] Appropriate rules shall be framed as above by the High Courts as early

as possible.

Experience has shown that there has been a constant discontentment amongst

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the members of the Higher Judicial Service in regard to their seniority in

service. For over three decades large number of cases have been instituted

in order to decided the relative seniority from the officers recruited from

the two different sources, namely, promotees and direct recruits. As a

result of the decision today, there will, in a way, be three ways of

recruitment to Higher Judicial Service. The quota for promotion which we

have prescribed is 50 per cent by following the principle "merit-cum-

seniority", 25 per cent strictly on merit by limited departmental

competitive examination and 25 per cent by direct recruitment. Experience

has also shown that the least amount of litigation in the country, where

quota system in recruitment exists, in so far as seniority is concerned, is

where a roster system is followed. For example, there is, as per the Rules

of the Central Government, a 40-point roster which has been prescribed

which deals with the quotas for Scheduled Castes and Scheduled Tribes.

Hardly, if ever, there has been a litigation amongst the members of the

Service after their recruitment as per the quotas, the seniority is fixed

by the roster points and irrespective of the fact as to when a person is

recruited. When roster system is followed, there is no question of any

dispute arising. The 40-point roster has been considered and approved by

this Court in R. K. Sabharwal and Ors., v. State of Punjab reported in

[1995] 2 SCC 745. One of the methods of avoiding any litigation and

bringing about certainty in this regard is by specifying quotas in relation

to posts and not in relation to the vacancies. This is the basic principle

on the basis of which the 40 point roster works. We direct the High Courts

to suitably amend and promulgate Seniority Rules on the basis of the roster

principle as approved by this Court in R.K. Sabharwal 's case (supra) as

early as possible. We hope that as a result thereof there would be no

further dispute in the fixation of seniority. It is obvious that this

system can only apply prospectively except where under the relevant Rules

seniority is to be determined on the basis of quota and rotational system.

The existing relative seniority of the members of the Higher Judicial

Service has to be protected but the roster has to be evolved for the

future. Appropriate rules and methods will be adopted by the High Courts

and approved by the States, wherever necessary by 31 st March, 2003.

We disapprove the recommendation of giving any weightage to the members of

the Subordinate Judicial Service in their promotion to the Higher Judicial

Service in determining seniority vis-a-vis direct recruits and the

promotees. The roster system will ensure fair play to all while improving

efficiency in the service.

As we have already mentioned, the Shetty Commission had recommended that

Chief Metropolitan Magistrates should be in the cadre of District Judges.

In our opinion, this is neither proper nor practical. The appeals from

orders passed by the Chief Metropolitan Magistrates under the provisions of

the Code of Criminal Procedure are required to be heard by the Additional

Sessions Judge or the Sessions Judge. If both the Additional Sessions Judge

and the Chief Metropolitan Magistrate belong to the same cadre, it will be

paradoxical that any appeal from one officer in the cadre should go to

another officer in the same cadre. If they belong to the same cadre, as

recommended by the Shetty Commission, then it would be possible that the

junior officer would be acting as an Additional Sessions Judge while a

senior may be holding the post of Chief Metropolitan Magistrate. It cannot

be that against the orders passed by the senior officer it is the junior

officer who hears the appeal. There is no reason given by the Shetty

Commission as to why the post of the Chief Metropolitan Magistrate be

manned by the District Judge, especially when as far as the posts of the

Chief Judicial Magistrate are concerned, whose duties are at par with that

of the Chief Metropolitan Magistrate, the Shetty Commission has

recommended, and in our opinion rightly, that they should be filled from

amongst Civil Judges (Senior Division). Considering the nature and duties

of the Chief Judicial Magistrate and the Chief Metropolitan Magistrates,

the only difference being their location, the posts of Chief Judicial

Magistrate and Chief Metropolitan Magistrate have to be equated and they

have to be placed in the cadre of Civil Judge (Senior Division). We order,

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accordingly.

In the All India Judges's case [1993] 4 SCC 288 at p. 314; this Court has

observed that in order to enter the Judicial Service, an applicant must be

an Advocate of at least three year's standing. Rules were amended

accordingly. With the passage of time, experience has shown that the best

talent which is available is not attracted to the Judicial Service. A

bright young law graduate after 3 year of practice finds the Judicial

Service not attractive enough. It has been recommended by the Shetty

Commission after taking into consideration the views expressed before it by

various authorities, that the need for an applicant to have been an

Advocate for at least 3 years should be done away with. After taking all

the circumstances into consideration, we accept this recommendation of the

Shetty Commission and the argument of the learned Amicus Curiae that it

should be no longer mandatory for an applicant desirous of entering the

Judicial Service to be an Advocate of at least three years' standing we

accordingly, in the light of experience gained after the judgment in All

India Judges' cases direct to the High Courts and to the State Governments

to amend their rules so as to enable a fresh law graduate who may not even

have put in even three years of practice, to be eligible to compete and

enter the Judicial Service. We, however, recommend that a fresh recruit

into the Judicial Service should be imparted with training of not less than

one years, preferably two years. The Shetty Commission has recommended

Assured Career Progessive Scheme and Functional Scales. We have accepted

the said recommendation and a suggestion was mooted to the effect that in

order that a Judicial Officer does not feel that he is stagnated there

should be a change in the nomenclature with the change of the pay scale. A

suggestion has been moted by Shri F.S. Nariman, the learned Amicus Curiae

that the nomenclature in each cadre should be as follows:

A. Civil Judge (Junior Division Cadre) at entry level:

1. Civil Judge

2. Civil Judge, Grade-II

3. Civil Judge, Grade-I

B. Civil Judge (Senior Division Cadre) at intermediary level;

1. Senior Civil Judge

2. Upper Senior Judge

3. Superior Senior Judge

These are only suggestions which are made and it will be more appropriate

for each State, taking into consideration the local requirements, to adopt

appropriate nomenclatures. It would be appropriate to mention at this stage

that in some States, the entry point to the Judicial was at the level of a

Munsiff or a Subordinate Judge. Those are nomenclature which are also to be

considered but what is important is that in respect of each scale the

nomenclature should be different. In this way a Judicial Officer will get a

feeling that he has made progress in his Judicial career with his

nomenclature or designation changing with an upward movcment within the

Service,

One of the recommendations of the Shetty Commission is in relation to the

grant of the house rent allowance. The recommendation is that official

accommodation should be made available to the members of the Judicial

Service who should pay 12.5% of the salary as rent. The Commission further

recommends that in addition to the allotment of the said premises, the

Judicial Officer should also get house rent allowance. In our opinion, this

double benefit is uncalled for. It is most desirable and imperative that

free Government accommodation should be made available to the Judicial

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officers. Taking into consideration, the fact that the accommodation which

is made ayailable to the Judges of the Supreme Court as well as the High

Courts is free of charge, we direct that the official accommodation which

is allotted to the Judicial Officers should likewise be free of charge but

no house rent allowance will be payable on such an allotment being made.

If, however, the Government for any reason is unable to make allotment, or

make available official accommodation, then in that event the Judicial

Officer would be entitled to get house rent allowance similar to that which

has been as existing or as directed by the Shetty Commission whichever is

higher. However it is made clear that once a Government or official

accommodation is allotted to an officer and in pursuance thereof he

occupies such an accommodation, ne would not be entitled to draw house rent

allowance.

There are a number of other allowances which nave been referred to by the

Shetty Commission, some of which have not been accepted by the Central

Government. For example, allowance of Rs. 2,500 to be paid to enable the

engagement of a servant by a Judicial Officer. We do not think such a

suggestion made by the Shetty Commission to be appropriate and the Central

Government has rightly not accepted the same. Another suggestion which has

been made by the Shetty Commission is that 50 per cent of the electricity

and water charges of the residences of the Judicial Officers should be

reimbursed by the Government. There is merit in this suggestion subject to

a cap being placed so that the 50 per cent expense does not become very

exorbitant. This allowance should be paid, inasmuch as Judicial Officers do

and are required to work at their residence in discharge of their Judicial

duties. Therefore, it will not be inappropriate that 50 per cent of the

electricity and water charges should be borne by the State Government.

Subject to the various modifications in this Judgment, all other

recommendations of the Shetty Commission are accepted.

We are aware that it will become necessary for service and other rules to

be amended so as to implement this judgment. Firstly, with regard to the

pay scales the Shetty Commission has approved the pay scales with effect

from Ist January, 1996 but has directed the same to be paid with effect

from Ist July, 1996. The pay scales as so approved by us are with effect

from Ist July, 1996. However, it will take some time for the States to make

necessary financial arrangements for the implementation of the revised pay

scales. The Judicial officers shall be paid the salary in the revised pay

scales as approved by this Court with effect from 1st July, 2002. The

arrears of salary between 1st July, 1996 to 30th June 2002, will either be

paid in cash or the State may make the payment by crediting the same in the

Provident Fund Account of the respective Judicial Officers. Furthermore,

the payment by credit or otherwise should be spread over between the years

1st July, 1996 to 30th June, 2002 so as to minimise the income tax

liability which may be payable thereon. In calculating the arrears, the

Government will, pf course, take into account the interim relief which had

been granted and drawn by the Judicial Officers. The amount to be credited

in the Provident Fund Account would also be after deducting the income tax

payable.

The States as well as the Union of India shall submit their compliance

report by 30th September, 2002. Case be listed thereafter for further

orders.

Any clarification that may be required in respect of any matter arising out

of this decision will be sought only from this Court. The proceedings if

any, for implementation of the directions given in this judgment shall be

filed only in this Court and no other Court shall entertain them.

Before concluding, we record our high appreciation for the assistance

rendered by the learned Amicus Curiae-Shri F. S. Nariman, Shri Subhash

Sharma, Shri C.S. Ramulu, Shri A.T.M. Sampath and all other learned

counsel.

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