# \ ALL INDIA JUDGES, ASSOCIATION AND ORS. ETC. ETC v. UNION OF INDIA AND ORS. ETC. ETC

- **Citation:** [1993] Supp. 1 S.C.R. 749
- **Court:** Supreme Court of India
- **Decided:** 1993-08-24
- **Bench:** M. N. Venkatachaliah, A.M. Ahmadi, P.B. Sawant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/all-india-judges-association-and-ors-etc-etc-v-union-of-india-and-ors-etc-etc-11986
- **Pages:** 42

## Headnote

Service Law
Judiciary-Conditions of Se1vice-Setting up of all India Judicial Servic.,-.Unifomi hierarchy and designations, age of Superannuation-Vnifonn
pay scale and allowances-Conveyance-In-service training-Partial
modification of directions issued earlier.
B
c
· Status of Judges-Comparable with political executive and legislatu're.--Not with administrative executive--Hence .\'e]Jarate conditions of sen.:ice D,,
for members of judicial service could be prescribed-Not an encroachment
on executive and legislative powers in the context of A1t. 309 of the Constitution-Directions issued in furtherance of Law Con11nission 's reconunendarions and Independence of judiciary----Financial implication-Relevance of
Constitution of Independent Commission for laying down service conE
ditions for judicial officm;----avoured
Constitution of India, 1950
Articles 312, 233, 234-Subordinate judiciwy---Conditions of service-Improvement of----Direction5'-Modification of
F
Articles 50, 14, 16, 309, 312, 2.H; 234 & 235----Judicial Service-Nature
of-Not to be treated on par with administrative service-Status of
Judges---Comparable with political executive and legislato1:1-Not with adniinistralive executive--Presc1iption of separate conditions of se1vice for the G
judicial .wvice----Need for--:-Conditions of service of Subordinate judicimylmprovement of and formation of All India Judicial Se1vice-Whether
anzounts to encroaclunent on e:recutive and legi,slative powers in view of Art .
. ?09 to presc1ibe scIVice conditions.
A11ic/les 32 & 226----Writ Cowts competent to issue directions lo the H
749
750
SUPREME COURT REPORTS (1993] SUPP.1 S.C.R.
A Executive and Legislature to peifom1 their ob/igat01y duties.
The Union of India and various States preferred the present Review
Petitions raising objections to certain directions given by this Court in All
India Judge's Association v. Union of India, (1991] Suppl.2 SCR 206 for
improving the service conditions of the members of the subordinate
B judiciary in the country.
The thrust of the objections was that the power to prescribe service
conditions rested in the executive and the legislature; that the service
conditions being matters of policy, it was the exclusive function of the
C executive and the legislature, and the scheme of devolution of the power
envisaged by the Constitution had been deviated from to the extent this
Court has by its directions prescribed the conditions of service; that this
Court impinged upon the field exclusively assigned by the Constitution to
the executive and the legislature; that there was nothing distinguishable
about the judicial work, and if the directions were followed, the other
D services may demand similar service conditions and that would place a
very heavy financial burden on the public exchequer; and that the conditions of work and of employment of judicial officers differed from State to
State and so uniform conditions of service, particularly of pay- scales and
of retirement age were not warranted.
E
Disposing of the Review Petitions, this Court
HELD: 1.1. 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
F 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 democraq·
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 of them in turn represents the authority of the State. However, those
G 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 council or ministers or the political
executive is different from the secretarial staff or the adm

## Text

_Characters 0–39,959 of 105,092. This is a partial read: ask again with offset=39959 for what follows._

\
ALL INDIA JUDGES, ASSOCIATION AND ORS. ETC. ETC.
A
v.
UNION OF INDIA AND ORS. ETC. ETC.
AUGUST 24, 1993
[M. N. VENKATACHALIAH, CJ., A.M. AHMADI AND
P.B. SAWANT, JJ.]
Service Law
Judiciary-Conditions of Se1vice-Setting up of all India Judicial Servic.,-.Unifomi hierarchy and designations, age of Superannuation-Vnifonn
pay scale and allowances-Conveyance-In-service training-Partial
modification of directions issued earlier.
B
c
· Status of Judges-Comparable with political executive and legislatu're.--Not with administrative executive--Hence .\'e]Jarate conditions of sen.:ice D,,
for members of judicial service could be prescribed-Not an encroachment
on executive and legislative powers in the context of A1t. 309 of the Constitution-Directions issued in furtherance of Law Con11nission 's reconunendarions and Independence of judiciary----Financial implication-Relevance of
Constitution of Independent Commission for laying down service conE
ditions for judicial officm;----avoured
Constitution of India, 1950
Articles 312, 233, 234-Subordinate judiciwy---Conditions of service-Improvement of----Direction5'-Modification of
F
Articles 50, 14, 16, 309, 312, 2.H; 234 & 235----Judicial Service-Nature
of-Not to be treated on par with administrative service-Status of
Judges---Comparable with political executive and legislato1:1-Not with adniinistralive executive--Presc1iption of separate conditions of se1vice for the G
judicial .wvice----Need for--:-Conditions of service of Subordinate judicimylmprovement of and formation of All India Judicial Se1vice-Whether
anzounts to encroaclunent on e:recutive and legi,slative powers in view of Art .
. ?09 to presc1ibe scIVice conditions.
A11ic/les 32 & 226----Writ Cowts competent to issue directions lo the H
749
750
SUPREME COURT REPORTS (1993] SUPP.1 S.C.R.
A Executive and Legislature to peifom1 their ob/igat01y duties.
The Union of India and various States preferred the present Review
Petitions raising objections to certain directions given by this Court in All
India Judge's Association v. Union of India, (1991] Suppl.2 SCR 206 for
improving the service conditions of the members of the subordinate
B judiciary in the country.
The thrust of the objections was that the power to prescribe service
conditions rested in the executive and the legislature; that the service
conditions being matters of policy, it was the exclusive function of the
C executive and the legislature, and the scheme of devolution of the power
envisaged by the Constitution had been deviated from to the extent this
Court has by its directions prescribed the conditions of service; that this
Court impinged upon the field exclusively assigned by the Constitution to
the executive and the legislature; that there was nothing distinguishable
about the judicial work, and if the directions were followed, the other
D services may demand similar service conditions and that would place a
very heavy financial burden on the public exchequer; and that the conditions of work and of employment of judicial officers differed from State to
State and so uniform conditions of service, particularly of pay- scales and
of retirement age were not warranted.
E
Disposing of the Review Petitions, this Court
HELD: 1.1. 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
F 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 democraq·
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 of them in turn represents the authority of the State. However, those
G 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 council or ministers or the political
executive is different from the secretarial staff or the administrative
executive which carries out the decisions of the political executive. SimilarH ly, the legislators are different from the legislative staff. So also the Judge'
I
ALL INDIA JUDGES ASSN. v. U.0.1.
751
from the judicial staff. The parity is between the political executive, the A
legislators and the Judges and not between the judges and the administrative executive. 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 B
or functionally. [764-F-H; 765-A-B]
1.2. Judicial independence cannot be secured by making mere solemn
proclamations about it. It has to be secured both in substance and in
practice. It is trite to say that those who are in want cannot be free.
Self-reliance is the foundation of independence. The society has a stake in C
ensuring the independence of the judiciary, and no price is too heavy to
secure, it. To keep the judges in want of the essential accoutrements and
thns to impede them in the proper discharge of their duties is to impair
and whittle away justice itself. [765-C-E]
13. In view of the separation of the powers under the Constitution, D
and the need to maintain the independence of the judiciary to protect and
promote democracy and the rule oflaw, it would have been ideal if the most
dominant power of the executive and the legislature over the judiciary, viz.,
that of determining it s,ervice conditions had been subjected to some
desirable checks and balances. But' the mere fact that Article 309 of the
Constitution gives power to the executive and the legislature to prescribe E
the service conditions of the judiciary, does not mean that the judiciary
should have no say in the matter. It would be against the spirit of the
Constitution to deny any role to the judiciary in that behalf, for theoretically it would not be impossible for the executive or the legislature to turn
and twist the tail of the judiciary by using the said power. Such a conseF
quence would be against one of the seminal mandates of the Constitution,
namely, to maintain independence of the judiciary.
[766-G, H; 767-A.Bl
2. The directions issued by this Court are essentiaily for the evolvement of an appropriate n~tional policy by the Government in regard to the G
jndiciary's condition. The directions issued are mere aids and incidental to
and supplemental of the main direction and as a transitional measure till
a comprehensive national policy is evolved. [768-F-G]
3. The Courts do from time to time hand down decisions which have
financial implications and the Government is obligated to loosen its purse H
752
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A recurrently pursuant to such decisions. When the duties are obligatory, no
grievance can be heard that they cast financial burden. Compared to the
other plan and non-plan expenditure, the financial burden caused on
account of the said directions is negligible. The directions prescribe thei
minimum necessary service conditions and facilities for the proper adB ministration of justice. The quality of justice administered and the calibre
of the persons appointed to administer it are not of difterent grades in
different States. (768-H; 769-A-B-C]
4. It is for the Union of India if it is so advised to take the initiative
in the matter in the light of the discussion and recommendations of the
C Law Commission where all the objections which are now taken in the
review petition have been fully dealt with by the Commission. If and when
the Union of India takes such an initiative, the procedure for the formation
of the All India Service as provided in Article 312 of the Co~stitution will
have to be followed. The objections now taken would be of no relevance if
I) the Council of States by resolution supported by no Jess than two-thirds
of its members present and voting declares that such a service should be
created, it being necessary and expedient in the national interest to do so.
In that case, the Parliament will have to provide for the creation of such
service. The law creating the service will also regulate the recruitment and
the service conditions of the persons appointed to the service. The service,
E however, will provide for the post not inferior to that of the District )udge
as defined under Article 236. Hence the judges holding posts below that of ·
the District Judge would not be members of such All Indja Service and the
service conditions of the said judges will continue to be determined as
before, by the State executive and the legislature. [769-H; 770-A-D)
F
5.1. Considering the fact that from the first day of his assuming
office, the judge has to decide, among others, questions of life, liberty,
property and reputation of the litigants, to induct graduates fresh from
the Universities to occupy seats of such vital powers is neither prudent nor
desirable. Neither knowledge derived from books nor pre-service training
G can be an adequate substitute for the first-hand experience of the working
of the court-system and the administration of justice begotten through
legal practice. The practice involves much more than mere advocacy. A
lawYer has to interact \lith several components of the administration of
justice. Unless the judicial officer is familiar with the working of the said
H components, his education and equipment as a judge is likely to remain
'
ALL INDIA JUDGES ASSN. v. U.OJ.
753
incom]Jlete. The experience as a la\\-yer is, therefore, essential to enable the A
judge to discharge his duties and functions clliciently and with confidence
and circumspection. All the States should take immediate steps to
prescribe three years' practice as lawyer as one of the essential qualifications for recruitment as the judicial ollicer at the lowest rung. [771-D-F]
5.2. To ensure uniform practice in selecting judicial ollicers, in all B
cases, where the selection of the judicial officers is made by the Public
Service Commission, the representative of the High Court should be one
of the members of the Selection Committee and the opinion given by him
with regard to the suitability of the candidate should not be disregarded
unless there are so strong and cogent reasons (to be recorded in writing)
C
. for not accepting his opinion. [773-F]
6.1. Even after the acquisition of the relevant academic qualifications, a minimum practice at the Bar is a pr~-requisite for recruitment to
the post of the judge even at the lowest level. There is no such waiting
period for the candidates of the other services afier the acquisition of the D
academic. qualifications. Thus, the judicial ollicer enters the service at a
relatively higher age than the member of the other services. Further, the
judicial service stands by itself in the matter of the age of retirement by
reason of the great importance of a long experienc~_ and a mature mind in
the judicial office. Hence, the tenure and other terms and conditions of E
service of the Supreme Court and the High Court Judges stand out from
those relating to the administrative service. On account of the sizeable
earnings at the Bar, many times out of proportion to the skill and the
labour put in, the competent lawyers are reluctant to accept the judicial
posts, and this has resulted in a dearth of proper talent available to man
the judicial service. It is, therefore, for the healthy administration of F
justice, that attractive service conditions including a higher retirement
age, are prescribed for the members of the judiciary. For the same reason,
it is necessary that whatever trained talent is available is utilised for as
· long a period as is feasible. [774-E-H; 775-A-B]
Law Commission 14th Rep011, referred to.
G
6.2. The judge has constantly to be a creative artist. His work,
therefore, requires constant thinking and display of talent. The exertions
involved in the duties of the judge cannot be compared with the .duties of
other services. Thus, looked at from any angle, there is need to increase H
754
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A
the superannuation age of the judges as compared to that of the members
of the other services. [775-D]
6.3 The age of retirement in different States varies from 55 to 60
years. The age of retirement for the High Court Judges was in the
meanwhile increased from 60 to 62 years. The age of' retirement of the
B Supreme Court Judges is 65 years. If the nature and the magnitude of work
done by the judicial officers all over the country is the same and if, further,
the members of the higher judiciary, who have to discharge more onerous
workload, do it efficiently even at the still higher age, there is no reason
why in view of the shortage of the proper talent, the age of retirement of
C the members of the subordinate judiciary should not be increased to 60
years. The said retirement age is prevalent in some of the States for some
of the judicial posts. The only reason why the age of superannuation of
the judicial officer is at present kept at SS or 58 is the misconceived
requirement of the parity of service conditions between those of the judicial
D
officers and the members of the other services. That consideration, being
both irrelevant and erroneous must fail. (775-G, H; 776-A]
6.4. The benefit of the increase of the retirement age to 60 years, shall
not be available automatically to all judicial officers irrespective of their
past record of service and evidence of their continued utility to the judicial
E system. The benefit will be available to those who, in the opinion of the
respective High Courts, have a potential for continued useful service. It is
not intended as a windfall for the indolent, the infirm and those of doubtful
integrity, reputation and utility. The potential for continued utility should
be assessed and evaluated by appropriate Committees of Judges of the
F respective High Courts constituted and l•eaded by the Chief Justices of the
High Courts and the evaluation should be made on the basis of the judicial
officers' past record of service, character rolls, quality of judgments and
other relevant matters. The High Court should undertake and complete
the exercise in case of officers about to attain the age of S8 years well within
time by following the procedure for compulsory retirement as laid down
G in the respective Service Rules applicable to the judicial officers. Those
not found fit and eligible by this standard should not be given the benefit
of the higher retirement age and should be compulsorily retired at the age
of SS by following the said procedure for compulsory retirement. The
exercise should be undertaken before the attainment of the age of 58 years
H even in cases where earlier the age of superannuation was less than S8
ALL INDIA JUDGES ASSN. v. U.0.1.
755
years. It is in addition to the assessment to be undertaken for compulsory A
retirement and the compulsory retirement at the earlier stages under the
respective Service Rules. The officers concerned should intimate in writing
their desire to retire at the age of 58 years well in advance and in any case
before they attain the age of 57 years. Those who do not do so will be
deemed to have exercised their option to Cfn1tinue in service till they attain B
60 years of age subject to the liability of being retired compulsorily at the
age of 58 years according to the procedure for compulsory retirement laid
down in the Service Rules. Those who have already crossed the age of 57
years and those who will cross the age of 58 years soon after the date of
this decision, \viii exercise their option within one month from the date of
this decision. If they do not do so, they will be deemed to have opted for
C
continuing in service till the age of 60 years. Since those who have already
crossed the age of 58 years have had no benefit 'of exercising their option
to retire earlier and the point of time at which their assessment could be
undertaken for compulsory retirement, if any, has also passed, it is not
considered proper to subject them to the review for compulsory retirement D
at this stage. They may, therefore, be given the benefit of the enhanced
superannuation age of 60 years without subjecting them for so.ch review.
[776-F-H; 777-A-H; 778-A-C]
7. The earlier approach of comparison between the service conditions of the judges and those of the administrative executive has to be
abandoned and the present practice of entrusting the work of recommending the service conditions of the members of the subordinate jndicary to
E
the same Pay Commissions which recommend the service conditions of the
other services requires reconsideration. Since the work of the judicial
officers throughout the country is of the same nature, the service condiF
!ions have to be uniform. 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 has already been emphasised. The importance of such a separate Commission and also the
desirability of prescribing uniform pay scales to the judges all over the
country is reiterated. Since such pay scales will be the minimum deserved G
by the judicial officers, it cannot be said that some of the States may not
be able to bear the financial burden. The service conditions of the 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 a Commission should reflect adequate representation H
on behalf of the judiciary. The uniform service conditions as and when laid
756
SUPREME COURT REPORTS [ l993] SUPP. l S.C.R.
A drrwn \\'cndd not, of course, affect any special or extra benefits n·hich some
States may be bestowing upon their judicial oflicers. 1779-C, D]
8. It is diflicult to understand the attitude of' the State Governments
towards the provision of the facility oflaw books and journals to the judges
B when the Judges' whole duty consists ol'interpreting the law and applying it
to tht: facts before them. It is like asking the artisans to work without their
tools. The law books, not to speak of the other books, are the essential tools
of the Judges. The minimum that is expected of the State is to provide every
court with the up-to-date tests of, and commentaries on, the relevant
statutes and law journals which report decisions of the High Courts and the
C Supreme Court, for the exclusive use of the judges. Since the Governments
consistently failed to 1irovide this primary facility to the Courts, it became
necessary to direct the payment of Rs. 250 per month to Civil Judge (Junior
Division) and Civil Judge (Senior Division) and Rs. 300 per month to
o!licers of the higher category as residential oflice-cum-library allowance.
The only alternatiYe to the grant of the allowance in question is for the
D Governments tl1emselves to supply to eve)-y court the necessary books and
journals. If more than one Court is located~! the same place, one set of such
books and' journals, depending upon the number of Courts, may be sufficient. The books and journals to be supplied to the Court may be determined in consultation with the respective High Courts. The books and
E j<1urnals will _then remain in the concerned Courts instead of travelling with
the jud1;:es; (779-G, H; 780-A-D]
9. The- direction to give sumptuary allowance to the District Judge
in his capacity as the principal judicial oflicer of the concerned district
F' and to the Chief Judicial Magistrates at the rate of Rs. 300 and Rs. 200
per monih respectively was in consideration of the fact that they had to
·hold monthly meetings \\1th the Collector, District Magistrate and Superintendent of Police etc., and also to meet the judicial officers, working
under them as well as the members ot' the Bar, occasionally. Jn such
meetings, they are expected to extend small courtesies. It is now repreG sented that whenever otlicial meetings are held, there is a provision which
enables the District Judge as well as the Chief Judicial Magistrate to spend
from the amounts at the disposal of the Court .. In view of this, the said
·directions are rescinded. It is clarified that the sumptuary allowance, if
already paid to the Dis.Irie! Judges and the Chief Judicial Magistrates,
H should not be recovered from them. (780-F-Gj
'
j
'"\
--l
ALLINDIAHJDGESASSN. v. U.0.1.
757
10.1 Admittedly, ahout 50 per cent of the judicial officers are !'acing A
trials and tribulations for \Vant of proper accommodation at rentals within
their means. It is understood that the judiciary has been included as a
plan subject by the Planning Commission. If this is so, the construction of
adequate number of houses with the necessary facilities should be given
the top priority being the most primary requirement of the judges at any
place. The provision of house rent allowance ~s not an answer much less a
substitute for the adequate housing facility. [781-D-G)
B
10.2. In the judgment under review, it has been specifically emphasised that the provision of a separate and exclusive office room is an
indispensable component of the official accommodation allotted to the C
judicial officer. In order to ensure that the quarters constructed for the
judicial officers are of proper dimension and with adequate number of
rooms, their future construction should be made in consultation with and
under the supervision of the respective High Court and the High Court
should take adequate interest in their construction. The direction is not to
provide rent~free housing accorn1nodation, but accommcu1ation at a rental
not exceeding 12-1/2 per cent of the salary of the occupant. Hence the said
direction is reiterated. [781-G-H; 782-A-B)
11.i. There is a need to minimise the contact between the judges and
D
the public and particularly to avoid their being exposed to physical risks E
at the hands of the dissatisfied litigants; their travelling by the same public
conveyance by 'l'hich the litigants and their \vitnesses travel, has to be
avoided. f]ence, the direction given is also for a pool vehicle for other
judicial officers in sets of S and failing that, for a loan on suitable terms
to enable the judges to acc1uire at least two \\'heeler auto1nobiles. In this
context, the direction to construct oflicial residence for Judges at one 11lace
f
becomes more relevant. The judges cau then travel by the same vehicle
from and to the Court. The provision of the conve)'ance allon·ance is no
substit_ute for an independent conveyance. It is clarified that the direction
given in the judg1nent under review is for providing vehicle to the Principal
District Judge at the district headc1uarters including the metropolitan G
tomis. The provision for an independent vehicle to such principal officer
is linked with the inspection work which he has to carry out. Hence,
\\-'hether it is at the district headquarters or in the metropolitan to\\-11, it is
only the Principal District Judge or lhe principal Judge as the case may
be, who would be entitled to such independent conveyance. All other
District Judges whether at the district Headc1uarters or in the H
758
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A metropolitan town would be entitled to the pool vehicle on the basis of one
vehicle for 5 Judges for their conveyance form their residences to Court
and back. (782-G-H; 783-B-D]
11.2. It is directed that the State Governments should make arrangements to provide adequate quantity of free petrol subject tn the maxiB mum of 100 litres per month depending upon the distance from the court
to the residence in respect of the pool vehicles and the vehicles provided
for the principal Judges of City Civil Courts and the size of the district
and the distance of the courts to be inspected by the District Judges and
the Chief Judicial Magistrates in respect of the cars provided to them. The
C State Governments should fix the quantum of petrol to be provided in
consultation with the respective High Court. [783-G-H]
12. Subsequent to the hearing of the main petitions, the Union
Government has announced the establishment of a National Judicial
Academy for comprehensive training of judicial personnel. A Committee
D under the Chairmanship of the Chief Justice of India has been constituted.
It is hoped that the National Judicial Academy :when constituted, will take
over in a comprehensive way all aspects of the training of judicial officers
at all stages. In this_ view of the matter, the directions issued to the States
for the establishment of Training Institutes and make it_ optional for the
E States to have such Training Institutes either independently or jointly with
other States, if they find it necessary, is deleted. [784·A·B)
,.,11 India Judges Association & Ors. v. Union of India & Ors., (1991)
Suppl. 2 S.C.R., reviewed and directions partially modified and D.R.
Chaudha1y & 01'. v.Ashok Kumar Yadav and Others, [1985) 4 S.f:.C. 417,
F relied on.
G
S.L. Sachdev & Ors. v. _Union of India & Ors., A.I.R. (1981) S.C. 411
and Synthetics Chemicals Ltd., etc. v. State of U.P. & Ors., A.l.R. (1990) S.C.
1927, referred to.
CIVIL ORIGINAL/APPELLATE JURISDICTION : Review Petition No. 249 of 1992.
IN
Writ Petition No. 1022/1989.
...
' '
ALL INDIA JUDGES ASSN. v. U.0.1. [SA WANT, J.]
759
(Under Article 32 of the Constitution of India.)
WITH
Review petition Nos. 9, 319-21, 423, 592-93, 753/92 & I.A. No. 2 & 4
in Review Petition No. 249/1992, SLP(Civil) No. 14505/1992 and Writ
Petition No. 71/1993.
Sri Ramlu in person, N.S. Saini in person, M.J. Vijaya Vandhana Rao
in person, V. Bhaskar Rao, Chairman Tribunal for Disciplinary Proceedings, Nampally Hyderabad in person, Ms. Nirjana Singh, Ms. A. Subhashini
(NP) B.K. Prasad, AK. Srivastava and M. Vecrappa for the appearing
parties.
Dr. Neelima Shangla intervener in person.
The Judgment of the Court was delivered by:
A
B
c
SAWANT, J. These review petitions have been filed by the Union of D
India and various states raising general objections as well as objections to
the specific directions given by this Court vide our judgment dated 13th
November, 1991 to improve the service conditions of the members of the
subordinate judiciary in the country. The general objections which are
common in all the petitions may be summarised as follows:
E
[a]
As per Articles 233 and 234 of the Constitution, the appointment to the posts of District Judges as well as to the posts
other than those of the District Judges under the Judicial
Service of the State are made by the Governor of the State.
The power to regulate their conditions of service belongs to
F
the executive subject to the legislative control. It is entirely in
the purview of the respective State legislature/Government to
determine the conditions of service and as such this Pov.1er
given to the State legislature and the State Government is
whittled down or curtailed by issuance of the specific direc- G
tions in this regard by this Court.
[b]
In SL Sachdev & On. v. Union of India & Ors., AIR (1981)
SC 411 para' 13, this Court has laid down that the Court
cannot interfere with or change the administrative policy of
the Government unless it violates some provisions of the H
760
SUPREME C,OURT REPORTS [1993) SUPP. 1 S.C.R.
A
Constitution such as Article 14 which requires that even an
adn1inistrative authority must act fairly and treat its
employees equally. No such ground was raised in the writ
petition.
( c]
The respective State Subordinate Judicial Services have serB
vice conditions that have been gradually developed and
evolved over long years along with ~he service conditions of
other Government services in the States(Union Territories.
Any change in the service conditions of the Subordinate
Judiciary in isolation, is bound to generate some demands
c
from other services and it may be difficult for the State to
resist such demands.
[d] The question of uniformity in service conditions is a question
of policy pertaining to the·respective State Government which
alone are competent to decide on the said issue and such
D
decisions on the issue have various· implications and ramifications which have to be determined by the respective State
Governments by taking into account its financial limitations.
[e]
The directions given by this Court involve a very heavy finanE
cial outlay and the State Governments with varying degrees
of resources cannot implement the direction without considering and taking into account their own financial resources.
Hence it is not possible to bring about uniformity in service
conditions as envisaged in the directions given by this Couri.
F
(f]
The State Governments have constituted from time to time,
State Pay Commissions for examining and making appropriate recommendations for revision in pay-scales based
on certain criteria, and the basic wage structure varies from
State to State. As such it may not be possible to have a
uniform basis for pay-scales to the members of the SuborI
G
dinate Judicial Service in view of the variations in conditions
from place to place and from State to State both qualitatively
and quantitatively. Hence the feasibility of referring the question of appropriate pay-scales of judicial officers to the State
Pay Con:imissions deserves careful consideration. It may be
H
possible to strive towards uniformity of pay-scales over a
ALLINDIAJUDGESASSN. v. U.0.1.[SAWANT,J.]
761
period of time with the cooperation of all the States.
[g]
A mandatory direction enjoining upon the State lo allocate
resources to a specific activity would greatly impair the competence of the executive and the legislature to decide relative
priorities in respect of the allocation of available resources
on developmental and non-developmental activities. Any
direction by the Government which involves spending sums
out of the Consolidated Fund of the State/Union Territory,
would amount to a direction to the State legislature/Parliament for carrying out necessary legislation for relevant appropriation. Such a direction cannot be given by the judiciary
to the legislature.
[h]
In terms of Article 309 of the Constitution, matters concerning appointment, promotion, terms of conditions of service of
the Subordinate Judiciary are to be decided by the State
Government/ Union Territory Administration subject to si{ch
laws as may be passed by the legislature/Parliament. The
implementation of the directions given by this Court, is likely
to result in an impingement on the constitutional functions
and powers of the executive and the legislature.
[i]
In the interest of adhering to the constitutional scheme of the
division of powers, the directions given by the Court may be
converted to recommendations prompting State legislalure/governments and the Parliament/Union Government to
study them carefully and to introduce the requisite changes
on their own in gradual steps.
[j]
The function of the higher judiciary is limited to examining
whether the means adopted by the State legislature/government are constitutionally valid: Synthetics & Chemicals Ltd.
etc. v. State of U.P. & 01>., AIR (1990) SC 1927.
2. To the specific directions given bv this court, the objections are as
follows:
A
B
c
D
E
F
G
[a]
To the direction for increasing the retirement age upto 60
·years, the objection is that the late entry in the Service is not H
762
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
peculiar to judicial service. There arc a number of services
like medical, engineering, teaching where entry into Government service i.s made at a late stage and hence any deviation
on the ground of late entry may have implications for other
services also. It is contended that in the services where entry
is at late stage the interests of the Government servants are·
protected by allowing a specified number of years to be added
to the qualifying service for the purposes of determining the
pens10n.
[b] It is contended that' the judiciary alone is not doing the
sedentary work. There are services like Central Secretariat
Servic~ which also perform the sedenta1y work and, therefore,
the sedentary nature of work may not be a valid consideration
for laying down a longer retirement age. It is argued that in
arriving at the retirement age, the Government takes into
account variods factors like the optimum utilisation of the
experience and the need to provide employment to the
younger generation. If the age of retirement of the members
of the judiciary is changed on the ground of the late entry
and the sedentary nature of the work, the other civil services
may also move the Court for such a direction.
If the age of retirement is increased there would be an
increase in indirect cost as well, since the pension and the
gratuity of the officer would also go up and the amount
involved by way of emoluments etc. would also be higher.
[ c]
The direction to provide residential accommodation, the
vehicle and the transport facility, the library facility at the
residence, the uniformity in designations and the setting up
of the training facilities would call for a substantial investment
in the infrastructure. It is difficult to quantify the financial
outlay. By the early 1989, there were nearly 10000 judicial
officers all over the country. The accommodation is not available to many of them at present, and at least more than 5000
residential houses may have to be constructed all over the
country involving a large capital invest1nent in the region of
Rs. 1.50-250 crores. So is the case, with providing training
I
'
ALLINDIAJUDGESASSN. v. U.0.1.[SAWANT,J.]
763
facilities at the Central and the State/Regional levels which A
will require considerable financial outlay.
3. To put it shortly, the thrust of the general objections is that the
power to prescribe service conditions is vested in the executive and the
legislature. The service conditions are a matter of policy and have t? be
prescribed by taking into consideration the comparative utility of the
service, the nature and the quality of the work, the overall availability of
the resources, the priorities for allocation of funds etc. It is thus an
exclusive function of the executive and the legislature, and the scheme of
B
the devolution of the power envisaged by the Constitution has been
deviated from to the extent this Court has by the directions in question .C
prescribed the conditions of service. It has thus impinged upon the field
exclusively assigned by the Constitution to the executive and the legislature.
There is further nothing distinguishable about the judicial work, and if the
directions given by this Court are followed, the other services may demand
similar service conditions. That would place a very heavy financial burden D
on the public exchequer. It is also contended that the fmancial resources
of all the States are not equal and some of the States would be unable to
bear the financial burden that is bound to result from the implementation
of the direction. What is more, the conditions of work and of empli:>yment
of the judicial officers differ from State to State. Hence, uniform conditions
of service and particularly of .pay-scales and of the retirement age are not
warranted.
As regards the specific directions, the increase in the retirement age
E
is opposed on the ground that there are different conditions of general
employment in different States. It will have repercussions on the other F
services and also the finances. The implementation of the other directions
is resisted mainly on the ground of the financial burden that would be
hnposed by their implementation.
4. At the outset, it is necessary to note that at the time of the hearing
of the Writ Petition, positive representation was given to the Union of G
Indian and all the States and the Union Territories by issuing notices to
them. They were represented through their counsel. Some of them, viz., the
States of Orissa, Madhya Pradesh, Rajasthan, Bihar, Haryana, Arunachal
Pradesh, Gujarat, Himachal Pradesh, J ammu & Kashmir, Mizoram,
Tripura and Goa did not file their counters and took the stand that they H
764
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
. A would abide by whatever is ultimately decided by the Court. The Union of
India filed a counter stating that the issues involved fell within the dominion
of the States. Some of those which filed counters, viz., the States of Andhra
Pradesh, Maharashtra, Uttar Pradesh, West Bengal, Punjab, Karnataka,
Assam, Manipur, Meghalaya, Nagaland and Sikkim placed their point of
B view while others objected to any directions being given. The objection to
the enhancement of the superannuation age was mainly on the ground that
the superannuation age of the judges fixed in their States was on par with
that fixed for the member of the other services. Similarly, the Judges'
demand for rent-free accommodation was objected to also on the ground
that the rent-free accommodation was not given to the members of the
C other services and that the house rent allowance given was sufficient to
meet the needs of the Judges. The demand for conveyance to the District
Judges was, however, not seriously objected to by any of the States.
It is after considering the counters filed and after hearing the learned
D counsel for all the parties, that this Court had pronounced its judgment
and given the dirt.:ctions in question. The very same contentions, which are
made the grounds of the present Review Petition were advanced at that
time and have been dealt with in the judgment nnder review. Hence the
Review Petition Stricto sensu is not maintainable and is liable to be disE
missed summarily.
It is not necessary to repeat here what has been stated in the
judgment under review while dealing with the same contentions raised
there. We cannot however, help observing that the failure to realize the
distinction between the judicial service and the other services is at the
F bottom of the hostility displayed by the review petitioners to the directions
given in the judgment. The judicial service is not service in the sense of
'employment'. The judges arc not employees. As members of the judiciary,
they exercise the sovereign judicial power of the State. They are holders of
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
G 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 \Vho exercise the state~po\ver are the ministers, the legis~
H lators and the judges, and not the members of their staff who implement
,
ALLINDIAJUDGESASSN. v. U.0.1. (SAWANT,J.]
765
or assist in implementing their .decisions. The council of ministers or the A
political executive is di(fercnl fro!n, the secretarial staff or the administrative execotive which carries out the decisions of the political executive.
Similarly, the legislators are different from the legislative staff. So also the
.T udges from the judicial staff. The parity is between the political executive,
the legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A., members of
some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges,at whatever level they may be,
represent the State and its authority unlike the administrative executive or
B
the members of the other services.