All India Judges Association And

... vs Union Of India And Ors on 21

March, 2002
Supreme Court of India

All India Judges Association And ... vs Union Of India And Ors on 21
March, 2002

Bench: B.N. Kirpal, G.B. Pattanaik, V.N. Khare

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'

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 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
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 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.

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
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 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
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 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."
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 (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";
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 (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
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 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
recommendations having regard, among other relevant factors, to
the existing relativities in the pay structure between the officers
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 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
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 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
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 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
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 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

RS. 16750-400-19150-450-20500
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 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
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 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
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 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.

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.

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 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.
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 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 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
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 (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

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 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.

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
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 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
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 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 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
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 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
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 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 62 years if there are vacancies
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 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
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 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.
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 [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 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.
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 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
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 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, 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
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 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
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 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 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
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 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
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 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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