- (1.) These review petitions have been filed by the Union of 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 : * Reported in AIR 1992 SC 165. (a) As per Arts. 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 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 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 v. Union of India, 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 Art. 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 Governments which alone are competent to decide on the said issue and such 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 financial outlay and the State Governments with varying degrees of resources cannot implement the directions without considering and taking into account their own financial resources. Hence it is not possible to bring about uniformity in service (f) The State Governments have constituted from time to time, State Pay Commissions for examining and scales to the members of the Subordinate 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 Commissions deserves careful consideration. It may be possible to strive towards uniformity of pay-scales over a period of time with the co-operation of all the States. (g) A mandatory direction enjoining upon the State to 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 Art. 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 such 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 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 and Chemicals Ltd. v. State of U. P., AIR 1990 SC 1927.
(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 a 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 pension. (b) It is contended that the judiciary alone is not doing the sedentary work. There are services like Central Secretariat Service which also perform the sedentary 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 various 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 investment in the region of Rs. 150-250 crores. So is the case, with providing training facilities at the Central and the State/ Regional levels which 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 to 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 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 oil 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 directions. 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 services and also the finances. The implementation of the other directions is resisted mainly on the ground of the financial burden that would be imposed by their implementation.;