# A ALL INDIA JUDGES ASSOCIATION AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2002] 2 S.C.R. 712
- **Court:** Supreme Court of India
- **Decided:** 2002-03-21
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-all-india-judges-association-and-ors-v-union-of-india-and-ors-18599
- **Pages:** 31

## Headnote

;A
ALL INDIA JUDGES ASSOCIATION AND ORS.
v.
UNION OF INDIA AND ORS.
MARCH 21, 2002
B
[B.N. KIRPAL, G.B. PATTANAIK AND V.N. KHARE, Jl]
Service Law:
Subordinate Judicial Service-Service conditions-Determination of by
C Shetty Commission Report-Writ for implementation of report-Held,
Commission's Report accepted subject to modifications in the judgment.
The question for consideration before this Court was whether the
recommendations of First National Judicial Pay Commission presided by _Mr.
D Justice K.J. Shetty (Shetty Commission) should be accepted.
This Court in All India Judges Association v. Union of India and Ors.,
(1992) 1 sec 119 (main case) had given certain directions with regard to
working conditions and certain benefits to be conferred on the members of
subordinate judiciary. In review against the same, the Court in All India Judges
E Association and Ors. etc. v. Union of India and Ors., [1993) 4 SCC 288 (review
case) maintained the directions given in the main judgment. However, in
addition to the directions, it recommended for setting up of an independent
Commission for reviewing service conditions of judicial officers. It also held
that the service conditions of the judges could not be compared with those of
administrative executive as the parity of status of judges could only be with
F
political executives.
G
The question with regard to pay scales of judicial officers was first
referred to Fifth Central Pay Commission but subsequently the reference was
withdrawn from the Commission and in pursuance ofrecommendation of the
Court in review case, Union of India constituted Shetty Commission.
The report of the Fifth Central Pay Commission was accepted by Union
of India and was made applicable w.e.f. 1.1.1996.
Shetty Commission granted interim relief to the judicial officers, in view
of the fact that report of Fifth Central Pay Commission had been accepted,
H
712
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A.
..
,
,..
...
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ALL INDIA JUDGES ASSOCIATION v. U.0.1.
713
but the same was subject to adjustment on the acceptance of the final report A
of the Commission.
The Commission made recommendation on the following points:-
1. Revision in scale of pay, monetary benefit with regard to which was
to be payable w.e.f. 1.7.1996.
B
2. Special allowances, including official accommodation and house rent
allowance, allowance of Rs. 2500 to retired Judicial Officers for domestic help,
50% concession in electricity and water charges, to be granted w.e.f. 1.11.1999.
3. Liability to bear 50% of the total expenditure incurred on subordinate c
judiciary fixed on Union of India .
4. Increase in the judges strength to 50 Judges per 10 lakh people as
recommended by 120th Law Commission Report
5. Increase in the retirement age of Judges from 60 years to 62 years. D
6. Method for recruitment to the posts in the cadre of Higher Judicial
Service, in the ratio of 75% appointment by promotion and 25% by direct
recruitment to be followed. Promotees to be given weightage for promotion
over direct recruits.
E
7. Post of Chief Judicial Magistrate to be placed in the cadre of Civil
Judge (Senior Division) and Chief Metropolitan Magistrate to be placed in
the cadre of District Judge.
8. Requirement of 3 years' standing as Advocate for entering judicial
service not mandatory .
F
9. Necessity for Assured Career Progression Scheme and Functional
scales.
10. Appropriate nomenclature to be given to the judicial officers.
G
11. Adoption of procedure for writing confidential report by self
assessment process.
12. Post of Civil Judge (Senior Division) only to be filled by promotion.
13. Steps for judicial education and training.
H
714
SUPREME COURT REPORTS
[2002) 2 S.C.R.
A
14. Establishment of All India Judicial Service.
--
Petitioner-Association filed writ petition for implementation of the
'
report of the Shetty Commission.
States accepted the recommendations provided Union oflndia bore 50%
B of the expenses. Union oflndia, however, evolved its own pay scale with regard
to Subordinate a

## Text

_Characters 0–39,942 of 74,895. This is a partial read: ask again with offset=39942 for what follows._

;A
ALL INDIA JUDGES ASSOCIATION AND ORS.
v.
UNION OF INDIA AND ORS.
MARCH 21, 2002
B
[B.N. KIRPAL, G.B. PATTANAIK AND V.N. KHARE, Jl]
Service Law:
Subordinate Judicial Service-Service conditions-Determination of by
C Shetty Commission Report-Writ for implementation of report-Held,
Commission's Report accepted subject to modifications in the judgment.
The question for consideration before this Court was whether the
recommendations of First National Judicial Pay Commission presided by _Mr.
D Justice K.J. Shetty (Shetty Commission) should be accepted.
This Court in All India Judges Association v. Union of India and Ors.,
(1992) 1 sec 119 (main case) had given certain directions with regard to
working conditions and certain benefits to be conferred on the members of
subordinate judiciary. In review against the same, the Court in All India Judges
E Association and Ors. etc. v. Union of India and Ors., [1993) 4 SCC 288 (review
case) maintained the directions given in the main judgment. However, in
addition to the directions, it recommended for setting up of an independent
Commission for reviewing service conditions of judicial officers. It also held
that the service conditions of the judges could not be compared with those of
administrative executive as the parity of status of judges could only be with
F
political executives.
G
The question with regard to pay scales of judicial officers was first
referred to Fifth Central Pay Commission but subsequently the reference was
withdrawn from the Commission and in pursuance ofrecommendation of the
Court in review case, Union of India constituted Shetty Commission.
The report of the Fifth Central Pay Commission was accepted by Union
of India and was made applicable w.e.f. 1.1.1996.
Shetty Commission granted interim relief to the judicial officers, in view
of the fact that report of Fifth Central Pay Commission had been accepted,
H
712
'
-
A.
..
,
,..
...
'
' ..
-:
ALL INDIA JUDGES ASSOCIATION v. U.0.1.
713
but the same was subject to adjustment on the acceptance of the final report A
of the Commission.
The Commission made recommendation on the following points:-
1. Revision in scale of pay, monetary benefit with regard to which was
to be payable w.e.f. 1.7.1996.
B
2. Special allowances, including official accommodation and house rent
allowance, allowance of Rs. 2500 to retired Judicial Officers for domestic help,
50% concession in electricity and water charges, to be granted w.e.f. 1.11.1999.
3. Liability to bear 50% of the total expenditure incurred on subordinate c
judiciary fixed on Union of India .
4. Increase in the judges strength to 50 Judges per 10 lakh people as
recommended by 120th Law Commission Report
5. Increase in the retirement age of Judges from 60 years to 62 years. D
6. Method for recruitment to the posts in the cadre of Higher Judicial
Service, in the ratio of 75% appointment by promotion and 25% by direct
recruitment to be followed. Promotees to be given weightage for promotion
over direct recruits.
E
7. Post of Chief Judicial Magistrate to be placed in the cadre of Civil
Judge (Senior Division) and Chief Metropolitan Magistrate to be placed in
the cadre of District Judge.
8. Requirement of 3 years' standing as Advocate for entering judicial
service not mandatory .
F
9. Necessity for Assured Career Progression Scheme and Functional
scales.
10. Appropriate nomenclature to be given to the judicial officers.
G
11. Adoption of procedure for writing confidential report by self
assessment process.
12. Post of Civil Judge (Senior Division) only to be filled by promotion.
13. Steps for judicial education and training.
H
714
SUPREME COURT REPORTS
[2002) 2 S.C.R.
A
14. Establishment of All India Judicial Service.
--
Petitioner-Association filed writ petition for implementation of the
'
report of the Shetty Commission.
States accepted the recommendations provided Union oflndia bore 50%
B of the expenses. Union oflndia, however, evolved its own pay scale with regard
to Subordinate and Higher Judicial Service in the Union Territories, on the
basis of parity between the executive and judiciary.
'
Union of India contended that recommendation of placing the liability
;..
of bearing 50% of expenses on it, was inconsistent with constitutional set up;
c that the obligation to m.eet the expenses of judicial service, except courts in
Union Territories and Supreme Court was on the State Government; and that
._
the expenses for administration of justice is taken into consideration at the
time of allocation of funds between Union and the States.
D
Accepting the Shetty Commission Report with some modifications, the
Court
HELD : 1.1. Pay scales recommended by the Shetty Commission should
be accepted. Considering the years of service put in by the Judicial Officers
.....
at different stages, the parity in the scales of pay recommended by the Shetty
E Commission for the Judicial Office..S with the scales of pay of I.A.S. officers
is not, by and large, disturbed. In fact, the scales of pay recommended by the
Shetty Commission.appear to be somewhat lower, on the average, than the
scales of pay recommended for an l.A.S. officer if the number of years a
Judicial Officers has put in service is taken into consideration. Even though
in the earlier judgments, it has rightly been said that there should be no.
...,:..
F 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 Officers vis-a-vis the Executive, the recommendations
made by the Shetty Commission as just, fair and reasonable. (733-C-E]
G
1.2. The pay scales approved by the Court are with effect from 1st July,
..
1996. However, in view of the fact that 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
H or the States may make the payment by cr~diting the same in the Provident
ALL INDIA JUDGES ASSOCIATION v. U.O.l.
715
Fund Account of the respective Judicial Officers. [741-G-H; 742-A)
1.3. In calculating the arrears, the Government will take into account
the interim relief which had been granted and drawn by the Judicial Officers.
The amount to he credited in the Provident Fund Account would also he after
deducting the income tax payable. 1742-B)
2.1. The double benefit of official accommodation on payment of rent
at 12.5% of the salary, in addition to house rent allowance is uncalled for.
Free government accommodation should be made available to the judicial
Officers. In view of the fact that the accommodation which is made available
A
B
to the Judges of the Supreme Court as well as the High Courts is free of
charge, it is directed that the official accommodation allotted to the Judicial C
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 officers would be entitled to
get house rent allowance similar to that which has been as existing or as D
directed by the Shetty Commission whichever is higher. Once a government
or official accommodation is allotted to an officer and in pursuance thereof
r
he occupies such an accommodation, he would not be entitled to draw house
rent allowance. [740-G-H; 741-A-B-C)
2.2. With regard to other allowances referred to by the Commission, E
which have not been accepted by the Central Government the
recommendation for allowance of Rs. 2,500 to be paid to enable the
engagement of a servant by a Judicial Officer is not appropriate. It will not
be inappropriate that 50 per cent of the electricity and water charges should
be borne by the State Government (741-C-D-E)
3. It is States' responsibility to incur the entire expenses on the
administration of justice in the respective States. 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
F
on judiciary for discharging their constitutional obligations. Merely because G
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. Therefore, it is directed
that the entire expenditure on account of the recommendations of the Justice
Shelly 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 H
716
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A or the Union of India for more allocation of funds. They can also mobilise
their resources in order to meet the financial obligation. If such a need arises
and the States approach the Finance Commission or the '(Inion of India for
allocation of more funds, such a request shall be favourably considered.
[734-D-E-F}
B
4.1. 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 constitutional obligation of the Court to ensure that
the backlog of the cases is decreased and efforts are made to increase the
C disposal of cases. [735-B-D]
4.2. Apart from the steps which may be necessary for increasing the
efficiency of the Judicial Officers, Judge strength be increased from the
existing ratio of 10.5 or 13 per 10 lakhs people to 50 judges for 10 lakh people.
Therefore, it is directed that the existing vacancies jn the Subordinate courts
D at all levels should be filled, if possible latest by 31St March, 2003, in all the
States. The increase in the Judges strength to 50 judges per 10 lakhs 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, bu.t
this process should be completed and the increased vacancies and posts filled
E within a period of five years from the date of the judgment Increasing the
judge strength by 10per10 lakh people every year could be one of the methoos
which may be adopted thereby completing the first stage within five_ years
befo_re embarking on further increase if necessary. [735-D-E-F-G-H]
20th Law Commission Report and 85th Report of Standing, Committee of
F Parliament, referred to.
5.1. The recommendation of increase in retirement age from 60 to 62
years cannot be agreed to for the 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
G 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. (736-A-B)
H
5.2. In view of the backlog of vacancies has to be IDl~d and as the Judge
,.
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ALL INDIA JUDGES ASSOCIATION v. U.0.1.
717
strength has to be increased it would be appropriate for the States in A
consolation 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 in the cadre of the District Judge. [736-B-C]
6. With regard to the method of recruitment to the posts in the cadre
of Higher Judicial Service the ratio of 75 per cent appointment by promotion B
and 25 per cent by direct recruitment to the Higher Judicial Service is
maintained. But it is directed that recruitment to the Higher Judicial Service
i.e. the cadre of District Judges will be : (a) 50 per cent by promotion from
amongst the Civil Judges (senior Division) on the basis of principle of meritcum-seniority and passing a suitability test; (b) 25 per cent by promotion C
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 voce test
conducted by respective High Courts. Appropriate rules shall be framed as
above by the High Courts as early as possible. [737-A, D, E, F, G]
D
7.1. One of the methods of avoiding disputes regarding interse seniority
I'
between direct recruits and promotees in Higher Judicial Service, is by
specifying quotas in relation to posts and not in relation to the vacancies.
Therefore, High Court are directed to suitably amend and promulgate
Seniority Rules on the basis of the roster principle as early as possible. This E
system can only apply prospectively except where under the relevant Rules
seniority is to be determined on the basis of quota and rational system.
...
.....
[738-C-D-E]
R.K Sabharwal and Ors., v. State of Punjab, [1995] 2 SCC 745, relied F
on.
7.2. 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 is
disapproved. The roster system will ensure fair play to all while improving G
efficiency ;u the service. [738-F-G]
•
8. It is neither proper nor practical to place the Chief Metropolitan
Magistrate in the cadre of District Judges. The appeals from orders passed
by the Chief Metropolitan Magistrates under the provisions of the Code of
Crimi~al Procedure are required to be heard by the Additional Sessions Judge H
718
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A 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. Considering the nature and duties of the Chief Judicial
Magistrates and the Chief Metropolitan Magistrates, the only difference being
B 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). [738-H; 739-A, C, D]
9. The recommendation of the Commission that it should be no longer .
mandatory for an applicant desirous of entering the Judicial Service to be an
C advocate of at least three years' standing is accepted. Accordingly, High
Courts and the States Governments are directed 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. However,
it is recommended that a fresh recruit into the Judicial Service should be
imparted with training of not less than one year, preferably two years.
D
[739-F-G-H]
All India Judges Association and Ors., etc. v. Union of India and Ors.,
[1993) 4 sec 288, referred to.
10. The recommendation of Assured Career Progressive Scheme and
E Functional scales is accepted. In respect of each pay 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 movement within the service. [740-A-F]
11. Subject to the above modifications, all other recommendations of
F the Shetty Commission are accepted. [741-F]
G
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 1022 of
1989.
(Under Article 32 of the Constitution of India.)·
Harish N. Salve, Solicitor General, Kirit N. Raval, Mukul Rohtagi,
Additional Solicitor Generals, F.C. Nariman, Sri Ramulu, Mahendra Anand,
V.N. Ganpule, T.L. Vishwanatha Iyer, Tapash Ray, F.S. Nariman, (AC), Ms.
K. Amareswari, S. Ganesh, R.K. Jain, Y ogeshwar Prasad, K. Sukumaran,
H Subhash C. Sharma, A.T.M. Sampath, (AC), V. Balaji, Chaturvedi; Ms.
ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.]
719
Kamakshi S. Mehlwal, B.B. Singh, Ms. Sunita R. Singh, A. Subha Rao, P. A
Parmeswaran, A.N. Jayaram, Genl. Ashok K. Srivastava, Ms. Asha G. Nair,
Ms. Krishna Sanna, V.K. Sidharthan, Ashok Bhan, Ms. Sunita Sharma, D.S.
Mahra, Ms. Varuna Bhandari Gugnani, M.M Banerjee, General, Ms. Geetanjali
Mohan, Prakash Shrivastava, D.N. Goburdhun, Ms. Pinky Anand, Ms. Geeta
Luthra, Ms. A. Subhashini Ms. Hemantika Wahi, Ms. Anu Sawhney, ·Ms. B
Puja Sharma, Rajan Narain, J.P. Dhanda, Ms. Raj Rani Dhanda, Naresh K.
Shrama, M.M. Banerjee, Prem Prakash, Rajesh Pathak, Ashok Mathur, Anis
Suhrawardy, Md. Ehraz Zafar, Ramesh Babu M.R., Sanjay R. Hegde, Satya
Mitra, Rajan Mukherjee, S.S. Shinde, S.V. Deshpande, Kh. Nobin Singh, M.
Gireesh Kumar, B.S. Banthia, Satish K. Agnihotri, K.N. Madhusoodhanan,
G. Sivabalamrugan, Rajeev Sharma, R.S. Suri, Ms. Jayshree Anand, Addi C
General Punjab. V.G. Pragasam, Ranji Thomas, Ms. K.V. Bharati Upadhyay,
Javed M. Rao, A. Mariarputham, Ms. Aruna Mathur, Anurag D. Mathur,
Gopal Singh, Rahul Singh, Ms. Revathy Raghavan, Ms. Rachana Srivastava,
T.N. Singh, S. Sukumaran, Ms. Divya Nair, Dipak Bhattacharya, Prabir
Choudhary, Ms. Seema Sharma, C.L. Kalia, Dilip Sinha, J.R. Das, Ms. R.
Mahavilatha, Ms. Anjani Aiyagiri, Sanjay Parikh, Abinash K. Misra, R.R. D
Chandrachud, Rajesh K. Sharma, Ms. Shalu Sharma, Goodwill Indeevar,
U.A. Rama, Prashant Bezboruah, Rakesh K. Khanna, Reetesh Singh, Surya
Kant, Joseph Pookkatt, Prashant Kumar, Ms. Rachna Gupta, Himinder Lal,
D.V. Deepak, Radha Shyam Jene, Jitendra Mohan Sharma, Pramod Swarup,
Ajit Pudussery, B. Partha Sarthy, (NP), T.T. Kunhikannan, (NP), M. Veerappa, E
(NP), Anip Sachthey, (NP), Rakesh K. Sharma, (NP), T.L. Garg, (NP), L.K.
Pandey, (NP), S.K. Bhattacharya, (NP) B.D. Sharma, (NP), RN. Keshwani,
(NP), Guntur Prabhakar, (NP), R. Sathish, (NP), N. Sudhakaran, (NP), Ms.
S. Janani, (NP), C.N. Sree Kumar, (NP). K.R. Nagaraja, Aruneshwar Gupta,
(NP), S.R. Setia, (NP), J.S. Attri, (NP), Vimal Chandra S Dave, (NP), K. Ram
Kumar, (NP), G. Prakash, (NP), K.K. Rai, (NP), Gopal Balwant Sathe, (NP), F
Praveen Swarup, (NP), Subrarnonium Prasad, (NP), Dr. K.S. Chauhan, (NP),
Prashant Bhushan, (NP) for the the appearing parties.
The Judgment of the Court was delivered by
KIRPAL, J. This Writ Petition pertains to the working conditions of G
the members of the Subordinate Judiciary throughout the country. This is
third round before this Court.
In a decision reported in [1992] 1 SCC 19 entitled A/I India Judges'
Association v. Union of India and Ors., directions were given by this Court
in regard to the working conditions and some b.enefits which should be given H
720
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A to the members of the Subordinate Judiciary. The directions wei:e as follows:
B
c
D
E
F
"63. We would now briefly indicate the directions we have given
in the judgment:
(i) An All 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 unifonnity 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
L
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 sho'uld be kept in
view.
(vii) Every District Judge and Chlef 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.
A number of directions which were given have been implemented. The
G Union of India, however, filed a review petition seeking certain modifications/
clarifications. This review petition was disposed of by the judgment reported
r
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:
H
(i) Each of the general and special objections of Union of India and
ALL INDIA JUDGES ASSOCIAT!ONv. U.0.l. [K!RPAL, J.]
721
-'
States/UTs was dealt with and rejected. The distinction between judicial A
'
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 B
judiciary" (para) 11.
(iii) "By giving the directions in question, this Court has only called
...I.
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 c
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).
D
" ................ 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. E
(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. F
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, G
~ •
we find that the financiaf 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 H
722
A
SUPREME COURT REPORTS
[2002] 2 S.C.R.
administration of justice. We believe that the quality of justice
administered and the calibre of the persons appointed to administer
it are not ofdifferent 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
B
maintained except as regards the following:-
c
(a) Para 52 (a), page 314
"The legal practice of 3 years should be made one of the essential
qualifications for recruitment to the judicial posts at the lowest rung
in the judicial hierarchy.
Further, wherever the recruitment of the judicial officers at the
lowest rung is made through the Public Service Commission, a
representative of the High Court should be associated with the selection
process and his advice should prevail unless there are strong and
D
cogent reasons for not accepting it, which reasons should berecorded
in writing.
The rules for recruitment of the judicial officers should be amended
forthwith to incorporate the above directions."
E
(b) Para 52(b ), page 3 15
F
G
"The direction with regard to the enhancement of the
1
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 bene~~
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
H
age was less than 58 years."
ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.]
723
-
(c) Para 52 (c), page 316
A
-
"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
B
"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."
c
(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
D
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 E
from residence to court and back-and when needed, loans for two
wheeler automobiles and conveyance allowance. The State
Governments/Onion Territory Administrations are directed to provides
adequate quantity of free petrol for the vehicles, not exceeding l 00
litres per month, in consulation with the High Court."
F
(f) Para 52(1), 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) Para 52(h), page 316
G
~
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, de,signations and jurisdictions of judicial officers on H
724
A
B
SUPREME COURT REPORTS
[2002] 2 S.C.R.
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
C
as it was directed by the judgment under review."
D
E
F
G
(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 th,ose 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 desirability
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 ill respect of the members
H of the Judicial Service was first referred to the Fifth Central Pay Commission.
,/
ALL INDIA JUDGES ASSOCIATION v. U.O.l. [KIRPAL, J.]
725
.,.·
Subsequently by an amendment made on 24th October, 1996, the reference A
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 lst January,
1996. This is relevant, when considering the question as to with effect from B
which date the Report of the Shetty Commission is to become effective.
- -
On 2 lst 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. C
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.
D
(b) To examine the present structure of emoluments and conditions
of service of Judicial Officers in the States/UTs taking into account
the total packet of benefits available to them and make suitable
recommendations having regard, among other relevant factors, to the
existing relativities in the pay structure between the officers belonging E
to subordinate judicial service vis-a-vis other civil servants.
( c) To examine and recommend in respect of minimum qualifications,
age ofrecruitment, method ofrecruitment., 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 F
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 thereof with a view to promoting efficiency in Judicial G
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 H
726
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A 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
B recommendations of the Commission.
By a preliminary Report dated 31st 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
C 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
, D 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
E following topics:
(I) 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
F Judicial Officers.
G
(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
Judg~" 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
H recommended that it should be pl~ced in the cadre of District Judge.
i'.
'-L
,,.
-
ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.]
727
According to the learned Amicus Curiae, the Chief Metropolitan A
Magistrate and Chief Judicial Magistrate must be in the same cadre equivalent
·to Civil Judge (Senior Division) and that it should be at par with each other.
We shall deal with this aspect slightly later.
(4) Recommendations were made with regard to recruitment to the
cadre of Civil Judge (Junior Division) Cum-Magistrate First Class as well as B
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 C
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 D
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 E
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 Al/ India Judges' Association case (supra) wherein it had been observed
F
that the parity in status should be between the po_litical Executive, the
Legislatures and the Judges and not between the Judges and the Administrative G
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 H
728
SUPREME COURT REPORTS
[2002) 2 S.C.R.
· · A 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.)
B (2) Civil Judges (Jr. Divn.)
(I stage ACP Scale)
Rs. 9000-250-10750-300-13l50-350-14530
Rs. l 0750-300-13 l 50-350-l 4900
(3) Civil
Judges
(Sr.
Rs. 12850-300-13150-350-15950-400-17550
Divn.) (II Stage ACP
C
Scale for Civl Judge)
(Jr.Divn.)
(4) Civil Judge (Sr. Divn.)
Rs. 14200-350-15950-400-18350
(I Stage ACP Scale)
D (5) District Judges Entry
Rs. 16750-400-19150-450-20500
Level+ (II Stage ACP
for Civil Judges (Sr.
Divn.)
(6) District
Judges
Rs. 18750-400-19150-21850-500-22850
E
(Selection Grade)
(7) District
Judges
Rs. 22850-500-24850
(Supertime Scale)
In arriving at the aforesaid pay scales, the Commission noted that while
F 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 0th.er 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
G should also be increased by maintaining the ~atio which it had recommended.
According to the Commission, the pay scales recommended by it should be
deemed to come into force with affect from l st January, 1996, but the monetary
be!Jefit 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
H posts on regular pay scales, the estimated impact of the introduction of the
----
..,
-
'
-
•
ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.]
729
q1ew pay scales was stated to be of the order of Rs. 95.71 crores for one year. A
(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 Shelly Commission was that the Central Government B
must, in every States, share half of the annual expenditure on subordinate
courts and quarters for Judicial Officers.