TMI Blog1993 (8) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of service and as such this power given to the State legislature and the State Government is whittled down or curtailed by issuance of the specific directions in this regard by this Court. [b] In S.L. Sachdev and Ors. v. Union of India and 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 Constitution such as Article 14 which requires that even an administrative 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 service conditions that have been gradually developed and evolved over long years along with the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislature/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. and Ors. . 2. To the specific directions given by this Court, the objections are as follows: [a] To the direction for increasing the retirement age up to 60 years, the objection is that the late entry in the Service is not peculiar to judicial service. There are a number of services like medical, engineering, teaching where entry into Government service is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the devolution of the power envisaged by the Constitution has been deviated from to the extent this Court has by the directions in question 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 on the public exchequer. It is also contended that the financial 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 employment 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 is opposed on the ground that there are different conditions of general employment in different States. It will have repercussions on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service and the other services is at the 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 are 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 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 Stale 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 council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined under Article 236. However, this does not mean that while determining the service conditions of the members of the Judiciary, a distinction should not be made between them and the members of the other Services or that the service conditions of the members of all the Services should be the same. As it is, even among the other Services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage between the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the Judicial as well as the Administrative Service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction between the two services right from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the judiciary. It is for this reason again that the present practice of entrusting the work of recommending the service conditions of the members of the subordinate judiciary to the same Pay Commissions which recommend the service conditions of the other services requires reconsideration. 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 commission should reflect adequate representation on behalf of the judiciary. However, it cannot be contended that pending such essential reforms, the overdue demands of the judiciary can be overlooked. As early as in 1958, the Law Commission of India in its 14th report on the System of Judicial Administration in this country made certain recommendations to improve the system. The Commission lamented that though we have been pouring money into a number of activities, the administration of justice has not seemed to be of enough importance to deserve more financial assistance. On the contrary, in a number of States not only had the administration of justice been starved so as to affect its effi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. The contention that the directions of this Court supplant and bypass the constitutionally permissible modes for change in law, we thinks, wears thin if the true nature and character of the directions are realised. The directions are essentially for the evolvement of an appropriate national policy by the Government in regard to the judiciary'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. These directions, to the extent they go, are both reasonable and necessary. The contention with regard to the financial burden likely to be imposed by the direction in question, is equally misconceived. Firstly, the Courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden. Thirdly, compared to the other plan and non-plan expenditure, we find that the financial burden caused on account of the said directions is negligible. We should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes such an initiative, the procedure for the formation of the All India Service as provided in Article 312 of the Constitution will have to be followed. The objections now taken would be of no relevance if the Council of States by resolution supported by no less 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 however, will provide for the post not inferior to that of the District Judge as defined under Article 236. Hence, the judges holding posts below that of the District Judge would not be members of such All India Service and the service conditions of (he said judges will continue to be determined as before, by the States executive and the legislature. For the reasons pointed out earlier, even the service conditions of such judges will have to be different from those of the members of the other services, and to achieve the uniformity in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al officers without any training or background of layering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the judge has to decide, among others, question 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 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 lawyers has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection. Many States have hence prescribed a minimum of three years' practice as a lawyer as an essential qualification for appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the State of Haryana is one of them the practice followed is to invite a retired Judge of the High Court as an expert when selections for recruitment to the judicial Service of the State are being made and the advice given by such retired High Court Judge who participates in the viva voce test as an expert is sometimes ignored by the Chairman and members of the Public Service Commission. This practice is in our opinion undesirable and does not commend itself to us. When selections for the Judicial Service of the State are being made, it is necessary to exercise the utmost care to see that competent and able persons possessing a high degree of rectitude an integrity arc selected, because if we do not have good, competent and honest Judges, the democratic polity of the State itself will be in serious peril. It is, therefore, essential that when selections to the Judicial Service arc being made, a sitting Judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge, knows the quality and characte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution which envisages separation of powers between the three organs of the State. The further objection is that the distinction made between the members of the judicial service and those of the other services on the ground of the late entry into the service and the sedentary nature of the work of the former is an error on the face of the record. It is contended that members of the other services like the College Teachers, Doctors, Engineers, have also to spend longer period in acquiring qualifications required for appointment to their respective services and almost all officers around the age of superannuation reach the highest level and usually carry on sedentary duties. This argument misses the point that the longer period required for acquiring the necessary academic qualifications is only one of the grounds on which the enhancement of the superannuation age is directed. Even after the acquisition of the relevant academic qualifications, a minimum practice at the Bar is in most of the States, a pre-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 after the acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpare the judicial service with other services for any purpose, since the judicial service by its very nature stands on a different footing and should be treated as such. What is further, while directing the enhancement of the superannuation age to 60 years, this Court had taken into consideration the fact that the age of retirement in different States varied from 55 to 60 years. Secondly, the age of retirement for the High Court Judges was in the meanwhile increase from 60 to 62 years. The age of retirement of the 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 that still higher age, there is no reason why in view of the shortage of the proper talent, the age of retirement of 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 55 or 58 is the misconceived requirement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall 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 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be 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 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to recapitulate here the observations made and the directions given in the judgment under review on the question of the uniform pay scales. The Court had found from the data before it that there was a wide variance in the pay structure prevailing in the various States and Union Territories, and for the same nature of work performed, the judicial officers were remunerated differently. However, the Court found that it was difficult to get into the exercise of fixing appropriate pay scales in the absence of full details. In the absence of such data, there was a likelihood of affecting special benefits which the judicial officers may be getting in some States. The Court, therefore, declined to direct fixation of any pay scales. Instead, the Court directed the Pay Commissions or the Committees to be set up in the States and the Union Territories to separately examine and review the pay structure of judicial officers keeping in view that relevant aspects some of which have been adverted to in the 14th Report of the Law Commission. The relevant passage from the said report which has been quoted in the judgment highlights that the entry in the judicial service is late compared to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not even an adequate Bar library available. It is difficult to understand the attitude of the State Governments towards the provision of the facility of law books and journals to the judges when the judges' whole duty consists of interpreting the law and applying it to the 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 texts of and commentaries on the relevant statutes and the law journals which report decisions of the High Courts and the Supreme Court, for the exclusive use of the judges. Since the Governments consistently failed to provide this primary facility to the Courts, it became necessary for this Court to direct the payment of ₹ 250 per month to Civil Judge [Junior Division] and Civil Judge [senior division] and ₹ 300 per month to officers of the higher category as residential office-cum-library allowance. We have been unable to understand the objection to the grant of the said allowance. The duty of the Slate towards the administration of justice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispensable component of such residence. Thirdly, it was pointed out that in the absence of official residences, the judicial officers are required to pay exorbitant rent out of proportion to their salaries. Lastly, it was emphasised that in the pool of the Government accommodation which is available in any town, the judiciary gets the last priority. The Governments have not so far shown any keen awareness of the problems faced by the judges for want of accommodation and of the manner in which it affects the discharge of their duties. It is for these reasons that it was suggested that the Government should give top priority to the provision of residential accommodation to the judges and construct enough houses with the requisite facilities. It is difficult to understand the objections raised by the review petitioners to the said direction. The attitude adopted by the petitioners itself bears out that the Governments are not at all keen on providing proper residential accommodation to the members of the judiciary and justifies the necessity to give the said direction. On the admission of the review petitioners, there is at present a shortage of about 5000 houses. This means that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many occasions not available when needed. What is further, the reliance on the Government departments for transport itself makes them supplicant which from the point of view of the judicial independence is undesirable. Further, the conveyance provided to them is meant to be used strictly for official purpose. Since for reasons more than one, there is a need to minimise the contacts between the judges and the public and particularly to avoid their being exposed to physical risks at the hands of the dissatisfied litigants, their traveling by the same public conveyance by which the litigants and their witnesses travel, has to be avoided. Hence, the direction given is also for a pool vehicle for other judicial officers in sets of 5 and failing that for a loan on suitable terms to enable the judges to acquire at least two wheeler automobiles. In this context, the direction to construct official residences for Judges at one place becomes more relevant. The judges can then travel by the same vehicle from and to the Court. The provision of the conveyance allowance is no substitute for an independent conveyance. As has been rightly pointed out It is impossible for a Judge to discharge his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehicles and the vehicles provided for the Principal Judges of City Civil Courts and the size of the district and the distances of the Courts to be inspected by the District Judges and the Chief Judicial Magistrates in respect of the cars provided to them. The State Governments should fix the quantum of petrol to be provided in consultation with the respective High Courts. [viii] In-service Training: Subsequent to the hearing of the main petition, the Union Government has announced the establishment of a National Judicial Academy for comprehensive training of judicial personnel. A Committee under the chairmanship of the Chief Justice of India has been constituted. The National Judicial Academy when constituted, we hope, will take over in a comprehensive way all aspects of the training of judicial officers at all stages. In this view of the matter, we delete the directions issued to the States for the establishment of Training Institutes and make it optional for the States to have such Training Institutes either independently or jointly with other States, if they find it necessary. 8. Having dealt with the objections of the review petitioners to the directions in general as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intolerable: seven days week, 14 hours a day.... Only in England could the vocation of the Judge be described as 'something like a priesthood' or 'analogous to the Royal Family', requiring practitioners to 'seclude themselves' in various ways.... The England we expect the judge to adopt a respectable lifestyle, free from any hint of the unusual, let alone the deviant. In 1950 a Member of Parliament...recommendation an even greater degree of judicial isolation... So effective is the isolation of our judiciary that the personalities and characteristics of our judges are unknown to laymen.... The English judge ensures in a quite but effective manner that his pay accords with his status. He avoids the public display of militancy... Judge rank Coffin of the US Court of Appeals complained in l985 about the inadequacy of 'compensation' for judges. In the previous few years, he lamented, judicial salaries had become so insufficient that only the mediocre or the wealthy would henceforth be willing to lake judicial appointments. Perhaps disappointing pay levels help to explain why a clinical psychologist was helping judges in Massachusetts to cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 he associated with the selection process and his advice should prevail unless there are strong and cogent reasons for not accepting it, which reasons should he recorded in writing The rules for recruitment of the judicial officers should be amended forthwith to incorporate the above directions. [b] The direction with regard to the enhancement of the superannuation age is modified as follows: While the superannuation age of every subordinate judicial officer shall stand extended up to 60 years, the respective High Courts should, as stated above, assess an 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [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, as directed above, with the necessary law books and journals in consultation with the respective High Courts. [e] The direction with regard to the conveyance to be provided to the District Judges and that the regard to the establishment of the training institutes for the judges have been clarified by us in paragraphs 7 [vii] [viii] respectively. It is the Principal District Judge at each district headquarters or the metropolitan town as the case may be, who will be entitled to an independent vehicle. This will equally apply to the Chief Judicial Magistrate and the Chief Metropolitan Magistrate. The rest of the judges and magistrates will be entitled to pool-vehicles - one for every five judges for transport from residence to Court and back - and when needed, to loans for two wheeler automobiles and conveyance allowance. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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