1. INTRODUCTION

Prenatal History of the Commission :

1.1 Though there has been separation of judiciary from the executive, and though the powers and functions of Judicial Officers are quite different from powers and functions of the Executive Officers, the service conditions of Judicial Officers, however, have been tagged with those of the corresponding Executive Officers. Even the scales of pay of the Judicial Officers were related or made identical with the pay scales of the corresponding level of Executive Officers of the State Civil Service.

1.2 The repeated efforts of the Judicial Officers to get an improved service conditions and delink their pay scales from the corresponding Executive Cadres became successful. The State Governments did not accede to their request.

All India Judges’ Association v. Union of India1 :

1.3 In 1989, the All India Judges’ Association and its Working President, filed Writ Petition (Civil) No.1022 of 1989 before the Supreme Court of India under Article 32 of the Constitution seeking many reliefs as to improve the conditions of service of subordinate Judicial Officers all over the country. But during the hearing of the petition, only the following reliefs were highlighted:

( i ) Uniformity in the Judicial cadres in different States and Union Territories ;

( ii ) An appropriate enhanced uniform age of retirement for the Judicial Officers through-out the country;

( iii ) Uniform pay scales as far as possible to be fixed;

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1. All India Judges’ Association v. Union of India , AIR 1992 SC 165=(1992) 1 SCC 119.

 

( iv ) Residential accommodation to be provided to every Judicial Officer;

(v) Transport facility to be made available and conveyance allowance provided;

(vi) Adequate perks by way of Library Allowance, Residential Office Allowance, and Sumptuary Allowance to be provided;

and,

(vii) Provision for inservice training to be made.

The Judgment of the Supreme Court in the All India Judges’ Association Case :

1.4 A three Judge Bench of the Supreme Court, after hearing the representatives of the Union of India, all the States and Union Territories , disposed of the said Writ Petition by judgment dated 13 November 1991. Ranganatha Misra, Chief Justice, who spoke for the Bench observed:

(a) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.

(b) Steps should be taken to bring about uniformity in designation of Officers both in civil and the criminal side by 31-3-1993.

(c) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31-12-1992.

d.     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.

 

(e) The District Judge and Chief Judicial Magistrate should be given Rs.300/- and Rs.200/- respectively as Sumptuary Allowance per month.

(f) Government accommodation for residence to every judicial officer has to be provided and until State accommodation is available, the State at the instance of the High Court should provide requisitioned accommodation according to entitlement and the recovery of not more than 12 ½% of salary of the Officer towards rent should be made and the balance must be met by the Exchequer.

(g) The residential accommodation must be spacious enough to have a separate room for office purpose.

(h) Every Judicial Officer must be provided with uniform pattern of small library in his official residence and the District Judge should have provision made in his budget for the purpose.

(i) Every District Judge and Chief Judicial Magistrate should have a State vehicle. Judicial Officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time-limits as specified.

(j) Inservice Institute should be set up within one year at the Central and State or Union Territory level. 

Review filed :

1.5 The Union of India and some State Governments being aggrieved by the aforesaid judgment preferred Review Petitions raising several objections including Constitutional questions. The objections may be summarised as under:

(i) The power to prescribe service conditions is vested in the executive and the legislature. The Supreme Court by issuing the directions in question prescribing the separate conditions of service has impinged upon the field exclusively assigned by the Constitution to the Executive and the legislature.

(ii) The service conditions of the State employees and the Judicial Officers are periodically reviewed by independent Pay Commissions constituted for the purpose.

(iii) There is nothing distinguishable about the judicial work, and if the directions given by the Supreme Court are followed, the other services would also demand similar service conditions. That would place a very heavy financial burden on the public exchequer.

(iv) The financial resources of all the States are not equal and some of the States would be unable to bear the financial burden by giving higher pay scales and other perquisites to the Judicial Officers. 

Review Judgment of the Supreme Court2 :

1.6 Another three Judge Bench of the Supreme Court, Ranganatha Misra, Chief Justice, since retired, after carefully examining the contentions raised by the Review Petitioners, delivered the judgment on 24 August 1993 modifying some of the reliefs given in the original judgment, while giving additional reliefs, P.B. Sawant J., who spoke for the Bench, inter alia, observed:

"The Judicial Service is not service in the sense of ‘employment’. The judges are not employees. As members of the judiciary they exercise the sovereign judicial power of the State. They are holders of the public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions."

The learned Judge continued:

" The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally."

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2. All India Judges’ Association v. Union of India , AIR 1993 SC 2493=(1993) 4 SCC 288.

He went on:

"With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter."

He pertinently remarked:

" xxx xxx xxx

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."

He also observed:

" Further, since the work of the judicial officers throughout the country is of the some nature, the service conditions have to be uniform." 

Finally, the learned judge emphasised:

" 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 desirability of prescribing uniform pay scales to the judges 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."

 

1.7 For immediate reference, the views expressed in the aforesaid Review Judgment may briefly be summarised as follows:

(a) The legal practice of three years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy.

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.

a.      The Superannuation age of every subordinate judicial officer shall stand extended up to 60 years, but the respective High Courts should assess and evaluate the record of the judicial officer for his continued utility well within time before he attains the age of 58 years 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 58 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. Those judicial officers who are not desirous of availing of the superannuation age of 60 years, have the right to opt out at 58 years by proper intimation to the High Court before they attain 57 years.

(c) The direction for granting sumptuary allowance to the District Judges and Chief Judicial Magistrates stands withdrawn for the reasons given earlier.

(d) The direction with regard to the grant of residence-cum-library allowance will cease to operate when the respective State Governments / Union Territory Administrations start providing the Courts with the necessary law books and journals in consultation with the respective High Courts.

(e) The Principal District Judge or Principal Judge at each district headquarters or the metropolitan town and the Chief Judicial Magistrate and the Chief Metropolitan Magistrate will be entitled to independent vehicles with the free petrol subject to maximum of 100 litres per month in consultation with the High Courts. 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. Where pool vehicle cannot be provided or judges desire loan for purchasing two wheelers, they should be given loans on suitable terms and also the conveyance allowance.

(f) 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) There should be uniform pay scales to subordinate judges all over the country and such scales should be delinked to the pay scales of the Executive Officers.

(h) There should be separate Commission for determining the pay scales of the judicial officers.

(i) The States should not plead financial constraint if the pay scales of the judicial officers are enhanced delinking the same from that of the corresponding executive officers.

(j) The rest of the directions given in the original judgment are maintained.

Constitution of the Commission :

1.8 In pursuance of the above directions of the Supreme Court, the Government of India by Resolution dated 21 March 1996 constituted the FIRST NATIONAL JUDICIAL PAY COMMISSION for the Subordinate Judiciary all over the country with the following 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 and UTs taking into account the total packet of benefits available to them and make suitable recommendations having regard, among other relevant factors, to the existing relativities in the pay structure between the officers belonging to subordinate judicial service vis-a-vis other civil servants.

(c) To examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment etc., for Judicial Officers. In this context, the relevant provisions of the Constitution and direction of the Supreme Court in All India Judges’ Association Case and in 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 rationalisation and simplification thereof with a view to promoting efficiency in Judicial Administration, optimising the size of the Judiciary etc..

Composition of the Commission :

1.9

1. Chairman -                      Mr. Justice K. Jagannatha Shetty

                                         (Former Judge, Supreme Court)

2. Member -                      Mr. Justice P.K. Bahri

                                         (Former Judge, Delhi High Court)

3. Member-Secretary -     Mr. K.R. Chamayya

                                      (Rtd. Chairman of State Admistrative Tribunal)

 

1.10 On 2nd April 1996, Mr. K.R. Chamayya assumed office as Member Secretary of the Commission.

1.11 On 24th April 1996, Mr. Justice P.K. Bahri (Rtd.) assumed office as Member of the Commission.

 

1.12 On 1st June 1996, the Chairman of the Commission assumed office.

1.13 On 27th August 1996, Mr. K.R. Chamayya resigned as Member-Secretary and in his place, Mr. Justice A.B. Murgod, retired Judge of the Karnataka High Court was appointed, and he took charge on 28 August 1996, as Member-Secretary of the Commission.

The Commissioning of the Commission :

1.14 Though the Commission was constituted in March 1996, it could not be made immediately functional for want of office, finance and staff.

1.15 On 8 May 1996, the Chief Justice of the Karnataka High Court, at the personal request of the Chairman of the Commission, was pleased to make available the premises for establishing the office of the Commission in the newly built Annexe to the City Civil Court Complex at the heart of Bangalore City . The said premises were entrusted to the Central Public Works Department for alterations to make it suitable for Commission’s requirements. The C.P.W.D. finished their work and delivered the premises to the Commission in the middle of September 1996.

Procedure :

1.16 The Commission has been authorised to devise its own procedure and appoint such advisers, institutional consultants and experts as it may consider necessary for any particular purpose. The Commission may call for such information and take such evidence as it may consider necessary.

1.17 All State Governments, UT Administrations and the Ministries/ Departments of the Central Government are required to furnish such information, documents and other assistance as called for by the Commission.

Staff :

1.18 Regarding the staff, the Commission has not been given power to recruit them from open market. The Commission was asked to recruit personnel with the "Surplus Cell" of the Government of India. After protracted correspondence, the Commission found that there was no suitable person for its requirement in the "Surplus Cell".

1.19 There then, Government allowed the Commission to appoint the staff, either by deputation from other departments or re-employment of retired persons. The Commission, however, could not secure the services on deputation save in three cases. The Commission was left with no alternative except to appoint retired persons. Literally, the Commission had to chase the retired persons who are below 60 years since if they are above 60 years, the special permission has to be obtained from the Central Government. In view of this constraint, even-to-day some of the posts are lying vacant for want of such retired persons.

Finance :

1.20 Regarding finance, it was only on 22 August 1996, the first Letter of Credit was received from the Government for a sum of Rs.7.50 lakhs and the first cheque book was received for the disbursement of the said amount on 9 September 1996. But that amount was hardly sufficient for payment of the bill of C.P.W.D. and to purchase necessary office equipments.

1.21 After recruiting the skeleton staff in the aforesaid manner, the Commission became partially functional at the fag end of December 1996.

1.22 The Main Office of the Commission is located at Bangalore , while a small Branch Office with the Member Mr. Justice P.K. Bahri (Rtd.) is based at New Delhi for co-ordinating and interacting with the Judicial Officers of the Northern States.

The Task of the COMMISSION :

1.23 The terms of reference to the Commission are all embracing. It is just not determining the pay scales of and conferring certain financial benefits to Judicial Officers as the name of the Commission purports to indicate. The work includes, among others, the restructuring the multiple judicial cadres into three uniform cadres, prescribing uniform jurisdictions, determining uniform pay scales. The Commission is also concerned with Recruitment, Training, Work Methods and Work Environment of Judicial Officers etc.

Collection of Material :

1.24 The Commission is not on the trodden ground but on the virgin field. It has no material to fall back upon. Since it is a first of its kind, even preliminary particulars have to be gathered for preparing the Questionnaire. Even before establishing the Commission’s office, the Chairman addressed a circular letter dated 31 July 1996 to all the Chief Justices of the High Courts requesting them to furnish certain information pertaining to their Judicial Officers in the prescribed format. The information started trickling from September 1996 right upto the end of February 1997. In the meanwhile, the Chairman visited New Delhi , Madras , Mumbai and Pune and had personal discussion with the Judicial Officers on their problems and requirements.

Questionnaire :

1.25 After collecting preliminary material, a comprehensive Questionnaire covering the terms of reference was prepared. On 15 March 1997, the Questionnaire was released by Mr. Justice R.P. Sethi, Chief Justice of the Karnataka High Court. The Questionnaire has been given wide publicity in print and electronic media so that it may come to the notice of all the Judicial Officers all over the country. The Questionnaire was also sent to all High Courts, State Governments, Judicial Officers’ Associations, Bar Associations, Bar Council of India, Jurists and Others, seeking their views.

 

Replies to the Questionnaire :

1.26 Almost all the Associations of Judicial Officers have promptly responded to the Questionnaire during the period from 4 June 1997 to 29 December 1997.

1.27 But the High Courts took their own time to express their views on the Questionnaire. The High Courts of Himachal Pradesh, Madhya Pradesh , Sikkim , Kerala, Bihar and Jammu &Kashmir sent their replies in 1997. The High Courts of Karnataka, Uttar Pradesh, Tamil Nadu and Assam sent their replies in the beginning of 1998.

1.28 The remaining 8 High Courts namely, Calcutta , Gujarat, Mumbai, Rajasthan, Andhra Pradesh, Delhi , Punjab & Haryana and Orissa delayed their replies in spite of repeated requests and reminders from the Commission.

1.29 Most of the State Governments were also not active in responding to the Questionnaire. In 1997, only the State Governments of Goa and Mizoram and Union Territory Administrations of Lakshadweep, Diu & Daman and Dadra & Nagar Haveli have sent their replies. The State Governments of Manipur and Assam sent their replies in February 1998 and March 1998 respectively.

1.30 On 15 July 1998, the Supreme Court came to the rescue of the Commission by directing the Registrars of the High Courts and also the State Governments and Union Territory Administrations who have not responded to the Questionnaire to send their replies to the Commission within 8 weeks of the receipt of the order of the Supreme Court.

1.31 Accordingly, the said High Courts, State Governments and Union Territory Administrations replied to the Questionnaire.

1.32 The All India Judges’ Association submitted a preliminary reply to the Questionnaire during May 1998 and final reply was received on 5 August 1998.

Consultants :

1.33 The Commission engaged different Consultants for different work: (i) Indian Institute of Public Administration, New Delhi, was entrusted with the task of rationalizing and suggesting uniform pay structures and other benefits for the proposed three cadres; (ii) Indian Institute of Management, Bangalore, was engaged for preparing a report on Case Management and Court Management; (iii) The National Law School of India University, Bangalore, was requested to collect and compile the history of State Judiciary and advise the Commission generally; (iv) Dr. N.R. Madhava Menon, Former Director of National Law School of India University, Bangalore, agreed to prepare a report on the Judicial Training Institute with the syllabus and course of training for Judicial Officers; and (v) Sri K.R. Chamayya, former Law Secretary / Legislative Draftsman and Chairman of the Karnataka Administrative Tribunal, was requested to prepare a model Civil Courts Act, Small Causes Court Act and draft Uniform Rules for Recruitment of Judges of Family Courts.

1.34 The Consultants, namely, the Indian Institute of Public Administration, New Delhi , the Indian Institute of Management, Bangalore and Dr. Madhava Menon, after discussion with the Commission, prepared separate Questionnaires in respect of subjects assigned to them. They sent the Questionnaires to all the High Courts, Judicial Officers’ Associations, State Governments and other concerned persons and Institutions, seeking their views thereon. After examining the response received, they have prepared the reports.

1.35 The National Law School of India University , Bangalore has collected and compiled a lot of material relating to the history of the judiciary in some of the States and Union Territories .

Amendment to the Terms of Reference :

1.36 The original terms of reference did not empower the Commission to declare any interim relief. The Commission, therefore, requested the Government to appropriately enlarge the terms of reference to recommend interim relief as there were repeated demands from the judicial officers of every State. The Government of India vide Resolution No.15014/1/97-Jus dated 16-12-1997 amended / enlarged the original terms of reference by inserting a new para as under:

" The Commission may consider and grant such interim relief as it considers just and proper to all categories of Judicial Officers of all the States / Union Territories . The interim relief, if recommended shall have to be fully adjusted against and included in the package which may become admissible to the Judicial Officers on the final recommendations of the Commission".

Interim Relief :

1.37 The existing pay scales of Judicial Officers vary from State to State. To rationalise their pay structure by giving uniform pay scales is one of the objects of the Commission. As a preliminary to achieve that object, the Commission, on 31 July 1998 granted Interim Relief to the Judicial Officers of States and Union Territories where the benefits of the V Pay Commission of the Central Government were not extended. The Interim Relief was granted on varying terms like 35% to 75% of basic pay with admissible Dearness Allowance of Judicial Officers as on 1.1.1996. The Commission also granted certain Interim Relief to the retired Judicial Officers. The Interim Relief was given effect from 1st July 1996.

1.38 Some State Governments promptly implemented the Interim Relief, but others did not. Taking note of this anomaly, the Supreme Court made an Order on 27th April 1998 as follows:

"We direct the other State Governments to take appropriate decision whether to give the interim relief or the benefits under the Fifth Central Pay Commission’s Report to the Judicial Officers in the States / UTs and make payment within four weeks from today, and report compliance to this Court."

1.39 Pursuant to the aforesaid direction, all the States have since implemented the Interim Relief.

Oral hearing :

1.40 The Commission afforded an opportunity of being heard to the representatives of all the Judicial Officers’ Associations, High Courts, State Governments / Union Territory Administrations etc., Hearing commenced on 2 November 1998 and concluded on 24 February 1999..

National Level Consultative Meeting on 12th & 13th December 1998 :

1.41 The Commission thought that the reports prepared by the Indian Institute of Management and Dr. Madhava Menon should be discussed by the judicial fraternity, and other concerned authorities, before they are finalised by the Commission. Accordingly, the Commission convened a National Consultative Meeting in Indian Institute of Management, Bangalore on 12 and 13 December 1998. The meeting was convened with the collaboration of said Institute of Management . Mr. Justice B.N. Kirpal. Judge of the Supreme Court inaugurated the Meeting which was presided by the Chairman of the Commission, Mr. Justice R.P. Sethi, Chief Justice of the Karnataka High Court was the Chief Guest. In the Meeting the draft report prepared by the Institute of Management on introduction of IT in Court work and the report by Dr. Madhava Menon on judicial training and Institute were thoroughly discussed. Dr. Madhava Menon and Dr. Rammohan Rao, Sri Vaidyanathan & Prof. Krishna of IIM played a prominent part in the two days discussion.

1.42 The Acting Chief Justice of Rajasthan High Court, Nominee Judges of the High Courts of Allahabad, Andhra Pradesh, Delhi , Gujarat, Guwahati, Jammu & Kashmir, Karnataka, Kerala, Madras and Mumbai participated in the deliberations and gave their valuable suggestions. Besides, the Directors of Judicial Training Institutes at Lucknow , Nagpur , Jabalpur and Ahmedabad and the Director of Sardar Vallabhbhai Patel Police Academy at Hyderabad were also present and took part in the discussion giving their views and suggestions. The representatives of some of the Judicial Officers’ Associations and other eminent persons also shared their views on both the said reports.

Reports of the Commission :

1.43 The Commission, after due deliberations and taking into consideration every aspect, has prepared the Report in three Volumes. We trust and hope that all the State Governments / Union Territory Administrations would implement the recommendations made in the Report at the earliest.

 

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