KIRPAL, J. -
(1.)THIS Writ Petition pertains to the working conditions of the members of the Subordinate Judiciary throughout the country. THIS is the third round before this Court.
In a decision reported in 1992 (1) SCC 119 entitled All India Judges' Association v. Union of India and others, directions were given by this Court in regard to the working conditions and some benefits which should be given to the members of the Subordinate Judiciary. The directions were as follows: 1992 All LJ 185 (Para 60)
"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 uniformity in designations of officers both in civil and the criminal side by 31/03/1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31/12/1992.
(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 30/06/1992. 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 requisitions accommodation for them in the manner indicated by 31/12/1992. In providing residential accommodation, availability of an office room should be kept in view.
(vii) Every District Judge and Chief Judicial Magistrate should have a State vehicle, judicial officer 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 Union of India, however, filed a review petition seeking certain modifications/clarifications. This reivew petition was disposed of by the judgment reported in 1993 (4) SCC 288 entitled All India Judges' Association and others etc. v. Union of India and others etc. The relevant findings in the said decision are as follows 1993 Lab IC 2321
(i) Each of the general and special objections of Union of India and States/UTs was dealt with and rejected. The distinction between judicial and other services specifically emphasized. (Paras 7 to 10)
(ii) "The service conditions of Judicial Officers should be laid down and reviewed from time to time by an independent Commission exclusively constituted for the purpose, and the composition of such Commission should reflect adequate representation on behalf of the judiciary" (para 11).
(iii) "By giving the directions in question, this Court has only called upon the executive and the legislature to implement their imperative duties. The Courts do issue directions to the authorities to perform their obligatory duties whenever there is a failure on their part to discharge them . . . . . . . The further directions given, therefore, should not be looked upon as an encroachment on the powers of the executive and the legislature to determine the service conditions of the judiciary. They are directions to perform the long overdue obligatory duties." (para 14)
". . . . . . . . . The directions are essentially for the evolvement of an 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. (para 15) (Emphasis supplied)"
(iv) The question of financial burden likely to be imposed is misconceived and should not be raised to discharge mandatory duties :
"16. The contention with regard to the financial burden likely to be imposed by the directions in question, is equally misconceived. Firstly, the Courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden. Thirdly, compared to the other plan and non-plan expenditure, we find that the financial burden caused on account of the said directions is negligible. We should have thought that such plea was not raised to resist the discharge of the mandatory duties. The contention that the resources of all the States are not uniform has also to be rejected for the same reasons. The directions prescribe the minimum necessary service conditions and facilities for the proper administration of justice. We believe that the quality of justice administered and the calibre of the persons appointed to administer it are not of different grades in different States. Such contentions are ill-suited to the issues involved in the present case."
(v) The directions given in the main judgment dated 13-11-1991 were maintained except as regards the following :-
(a) Para 52(a), page 314
"The legal practice of 3 years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy.
Further, wherever the recruitment of the judicial officers at the lowest rung is made through the Public Service Commission, a representative of the High Court should be associated with the selection process and his advice should prevail unless there are strong and cogent reasons for not accepting it, which reasons should be recorded in writing.
The rules for recruitment of the judicial officers should be amended forthwith to incorporate the above directions,"
(b) Para 52(b), page 315
"The direction with regard to the enhancement of the superannuation age is modified as follows : While the superannuation age of every subordinate judicial officer shall stand extended up to 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 attains the age of 58 years by following the procedure for the compulsory retirement under the Service Rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only if he is found fit and eligible to continue in service. In case he is not found fit and eligible, he should be compulsorily retired on his attaining the age of 58 years.
The assessment in question should be done before the attainment of the age of 58 years even in cases where the earlier superannuation age was less than 58 years."
(c) Para 52(c), page 316
"The direction for granting sumptuary allowance to the District Judges and Chief Judicial Magistrates stands withdrawn for the reasons given earlier."
(d) Para 52(d), page 316
"The direction with regard to the grant of residence-cum-library allowance will ceases 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 consultation with the respective High Courts."
(e) Para 52(e), page 316
"The direction with regard to the conveyance to be provided to the District Judges and that with regard to the establishment of the training institutes for the Judges have been clarified by us in paragraphs 45(ii) and 49(viii) respectively. It is the Principal District Judge at each district headquarter of the metropolitan town as the case may be, who will be entitled to an independent vehicle. This will equally apply to the Chief Judicial Magistrate and the Chief Metropolitan Magistrate. The rest of the Judges and Magistrates will be entitled to pool-vehicles-one for every five Judges for transport from residence to Court and back - and when needed, loans, for two wheeler automobiles and conveyance allowance. The State Governments/Union Territory Administrations are directed to provide adequate quantity of free petrol for the vehicles, not exceeding 100 litres per month, in consultation with the High Court."
(f) Para 52(f), page 316
"In view of the establishment of the National Judicial Academy, it is optional for the States to have their independent or joint training judicial institutes."
(g) Para 52(h), page 316
In view of the time taken to dispose of the Review Petitions, following orders were passed :
(i) "the time to comply with the direction for bringing about uniformity in hierarchy, designations and jurisdictions of judicial officers on both civil and criminal sides is extended upto 31/03/1994";
(ii) "the time to comply with the directions to provide law books and law journals to all Courts is extended up to 31/12/1993 failing which the library allowance should be paid to every judicial officer with effect from 1/01/1994, if it is not paid already";
(iii) "the time to provide suitable residential accommodation, requisitioned or Government, to every judicial officer is extended up to 31/03/1994";
(iv) "the time to comply with the rest of the directions is maintained as it was directed by the judgment under review."
(vi) Regarding uniform pay scales the Review judgment emphasised the following:
"36. We have already discussed the need to make a distinction between the political and the administrative executive and to appreciate that parity in status can only be between Judges and the political executive and not between Judges and the administrative executive. Hence the earlier approach of comparison between the service conditions of the Judges and those of the administrative executive has to be abandoned and the service conditions of the Judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service. Further, since the work of the judicial officers throughout the country is of the same nature, the service conditions have to be uniform. We have also emphasised earlier the necessity of entrusting the work of prescribing the service conditions for the judicial officers to a separate Pay Commission exclusively set up for the purpose. Hence we reiterate the importance of such separate Commission and also of the desirability of prescribing uniform pay scales to the Judges all over the country. Since such pay scales will be the minimum deserved by the judicial officers, the argument that some of the States may not be able to bear the financial burden is irrelevant. The uniform service conditions as and when laid down would not, of course, affect any special or extra benefits which some States may be bestowing upon their judicial officers."
The question with regard to the pay scales in respect of the members of the Judicial Service was first referred to the Fifth Central Pay Commission. Subsequently by an amendment made on 24/10/1996, the reference to the Fifth Central Pay Commission with regard to the fixation of the pay scales of the Judicial Officers was deleted. We may here note that the Fifth Central Pay Commission submitted its report on 30/01/1997 which was accepted by the Government on 30/09/1997. It became applicable with retrospective effect, that is to say, with effect from 1/01/1996. This is relevant when considering the question as to with effect from which date the Report of the Shetty Commission is to become effective.
(3.)ON 21/03/1996, pursuant to the directions issued by this Court in the review judgment, the Government of India by a Resolution constituted the First National Judicial Pay Commission under the Chairmanship of Mr. Justice K. J. Shetty. As per the said Resolution, the following were the terms of reference :
"(a) To evolve the principles which should govern the structure of pay and other emoluments of Judicial Officers belonging to the Subordinate Judiciary all over the country.
(b) To examine the present structure of emoluments and conditions of service of Judicial Officers in the States/UTs taking into account the total packet of benefits available to them and make suitable recommendations having regard, among other relevant factors, to the existing relativities in the pay structure between the officers belonging to subordinate judicial service vis-a-vis other civil servants.
(c) To examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment, etc., for Judicial Officers. In this context, the relevant provisions of the Constitution and directions of the Supreme Court in All India Judges Association case and other cases may be kept in view.
(d) To examine the work methods and work environment as also the variety of allowances and benefits in kind that are available to Judicial Officers in addition to pay and to suggest rationalization and simplification thereof with a view to promoting efficiency in Judicial Administration, optimising the size of the judiciary etc."
As the Fifth Central Pay Commission Report had been accepted but no relief was available to the members of the Judicial Subordinate Service, a question arose that pending the recommendation of the Shetty Commission whether any interim orders can be passed giving some relief. Accordingly, on 16/12/1997, another term of reference was added according to which the Commission was empowered to consider and grant such interim relief as it may consider just and proper to all categories of Judicial Officers of all the States/Union Territories. It was made clear that the interim relief, if recommended, was to be adjusted against and included in the package which may become admissible to the Judicial Officers on the final recommendations of the Commission.