writ petiton aija supreme court
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Writ Petiton AIJA Supreme CourtTRANSCRIPT
SYNOPSIS AND LIST OF DATES
The Petitioner is seeking review and improvement of the
service conditions of the judicial officers throughout the
country by way of the present petition under Article 32.
The Petitioner in the instant case is All India Judges
Association (AIJA) whose members are judges of the
subordinate judiciary from all over India and was formed
and registered in 1985. The petitioner was formed with the
primary objective of improving the service conditions of
the judges in sub-ordinate judiciary. Ever since its
inception, the AIJA has striven towards achieving its
objective and has approached this Hon’ble Court on
several occasions in the past by filing writ petitions raising
issues of common good and for the benefit of the
subordinate judiciary as a whole. In past, this Hon’ble
Court had directed for constitution of the Hon’ble Justice
Shetty Commission and Hon’ble Justice Padmanabhan
Commission for recommending improvements in the
service conditions of judicial officers. These commissions
have favourably shaped the service conditions of all the
judges in sub-ordinate judiciary in compliance with the
directions by this Hon’ble Court. Thus, the efforts of AIJA
are aimed towards the welfare of its members and not of
any particular individual. In this context, it is submitted
that the instant petition is being filed so that the judicial
officers are granted their essential and basic service
conditions.
Article 50 of the Constitution of India incorporates the
concept of separation of judiciary from the executive in the
public services of the State and the distinction between
the two has to be maintained.
Importantly, though the periodic exercise of constituting a
Pay Commission for the executive in public service has
been undertaken by the Central/State Government and
pay scales are being reviewed, no such mechanism has
been put in place for the judicial services despite specific
directions by this Hon’ble Court to this effect. This Hon’ble
Court in All India Judges Association Vs. Union of
India 1992 (1) SCC 119 was pleased to direct that “as
and when such Commissions or committees are set up in
the states and Union Territories hereafter, they separately
examine and review pay structure of judicial officers
keeping in view all relevant aspects.” (p.199 SCC).
However, these directions by this Hon’ble Court were
sought to be reviewed by the Union of India and the
States. This Hon’ble Court accordingly in All India Judges
Association Vs. Union of India 1993 (4) SCC 288
while disposing off the review petitions, was pleased to
hold that merely because Article 309 of the Constitution of
India gives power to the executive and the legislature to
prescribe the service conditions of the judiciary, and that
after the council of States make the necessary declaration
under Article 312 of the Constitution of India, the
Parliament is empowered to create All India Judicial
Service, it 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 consequence
would be against one of the seminal mandates of the
Constitution namely to maintain the independence of
judiciary and no price is too heavy to secure it. This
Hon’ble Court had then held that it was for this reason that
the practice of entrusting the work of recommending the
service conditions of members of subordinate judiciary to
the same Pay Commission which recommended the
service conditions of the administrative services, required
reconsideration. This Hon’ble Court has ruled in All India
Judges Association v Union of India and ors 1993 4
SCC 288 that 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.
The question with regard to pay scales in respect of the
members of the judicial service had however been initially
referred to the 5th Central Pay Commission. However, in
view of the directions as above, the Govt. of India by a
resolution dated 21/03/1996, constituted the First National
Judicial Pay Commission under the Chairmanship of
Hon’ble Mr. Justice K.J. Shetty, a former Judge of this
Hon’ble Court. Subsequently, by an amendment made on
24/10/1996, the reference to the 5th Central Pay
Commission with regard to the fixation of Pay Scales of the
Judicial Officers was deleted.
The 5th Central Pay Commission submitted its report on
30/01/1997, which was accepted by the government on
30/09/1997 and was made applicable w.e.f. 01/01/1996.
The First National Judicial Pay Commission (‘Shetty
Commission’ for short) submitted its report on 11/11/1999
wherein after taking into consideration the
recommendations which have been made by the 5th
Central Pay Commission and the pivotal role of the
subordinate judiciary a master pay scale was evolved. The
Shetty Commission came to the conclusion that the
number on the Pay Scale should be equal to the number of
clearly identifiable levels of responsibility also taking into
consideration the scope for promotional avenues. It is a
matter of record that even the recommendations made by
the Shetty Commission have been resisted on one pretext
or the other including the alleged plea of financial burden.
Finally, this Hon’ble Court in its judgment dated
21/03/2002 vide All India Judges Association Vs. Union
of India 2002 (4) SCC 247 was pleased to accept the
recommendations of the Shetty Commission subject to
certain modifications by this Hon’ble Court. This Hon’ble
Court also directed that the Pay Scale so approved shall be
w.e.f. 01/07/1996.
Though this Hon’ble Court in its review judgment (as
above) had directed that 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, inspite of the Central
Government constituting the subsequent Pay Commission
namely the 6th Central Pay Commission, no such separate
independent Commission was constituted to review the
service conditions of the subordinate judiciary as directed
by this Hon’ble Court. The Shetty Commission in its report
while arriving at the Pay Scales recommended for the
subordinate judicial service, had noted that while fixing the
maximum of the master pay scale, it had been constrained
by the vertical cap of the salaries of the High Court Judges.
In other words, the district judges could not get more
salary than the High Court Judges, whose salaries were
statutorily fixed. It was however, recommended that as
and when the salaries of High Court Judges are raised, the
salary of the Judicial Officers should also be increased by
maintaining the ratio which the Shetty Commission had
recommended. The salary of the High Court Judges was
revised by the High Court and Supreme Court Judges
(salaries and conditions of service) Amendment Ordinance,
2009, published in the Gazette of India vide notification
dated 09/01/2009. Subsequently, this became an Act of
the Parliament. Since the Pay Scales admissible to the
subordinate judiciary saw no revision this Hon’ble Court
recognizing that the pay scales required urgent upward
revision and vide its order dated 28/04/2009 in All India
Judges Association Vs. Union of India 2011 (12) SCC
678, was pleased to appoint Hon’ble Mr. Justice E.
Padmanabhan, Retd. Judge of the Madras High Court to
make suitable recommendations having regard to the
recommendations already made by the Shetty Commission
in respect of the pay scales and allowances and certain
other perquisites of the judicial officers.
Justice E. Padmanabhan submitted his report dated
17/07/2009 and made several determinations on the basis
of the First National Judicial Pay Commission Report
consequent to revision pay scale of the High Court Judges.
The Commission however, recommended that its
recommendations be implemented w.e.f. 01/01/2006 i.e.
the date from which the recommendations made by the
6th Central Pay Commission were implemented by the
Central Government. However, the Commission in para VIII
of its Report noted that several demands made by the
Judicial Officers and Pensioners fell outside the scope of
reference made to the Commission. All these demands, as
the report of the Commission would depict, pertained to
the various service conditions of the Judicial Officers but
were not considered by the Commission since these were
found to be beyond the scope of limited reference made to
the Commission. The terms of reference of the said
Padmanabhan Commission were severely restricted on
account of it being limited to determine the pay scale of
judicial officers on the basis of recommendations of the
Shetty Commission. The Hon’ble Commission in para 74 of
its report thus recorded the following:
… Since most of the demands so made are
outside the scope of reference made to this
Commission by the Hon’ble Court, this
Commission has enumerated those demands,
which require consideration either by this
Hon’ble Court or by separate Judicial Pay
Commission or at the appropriate level and they
are given hereunder:…
The Commission in Part VIII of its report, has made
reference to at least 56 essential conditions of service
which could not be reviewed by it since they were outside
the scope of reference to the Commission. In Part IX the
Commission recorded the following demands which do not
even cost the exchequer:
i) Five Days a week.
ii) Provision for Transit/Guest House facility.
iii) Issuance of Car stickers for personal cars of
Judicial officers as also for providing red light atop
the vehicles of the particular level of Judicial
Officers.
iv) Issue of Seniority–Rota-Quota.
v) Separate Forum (State Level and National Level)
for settlement of various administrative and
service grievances/problems.
vi) Welfare activities for the fraternity in general.
vii) Advance of salary for meeting contingencies – 15
days salary prayed.
viii) Protocol to Distt. Judiciary – to be maintained as
per their status as executives.
ix) Priority in reservations/bookings: alongwith
transportation, quest houses, rest houses etc.
x) Identity Cards to Pensioners and Family
Pensioners to avail medical facilities etc.
xi) II ACP alongwith fixation of seniority to be
finalized promptly.
xii) Change of nomenclature of Civil Judge (Junior
Division) to Civil Judge.
Thus, several essential conditions of service of the judicial
officers are left to be addressed till date. It is in view of
these, the Hon’ble Commission too, in Para 75 of its report
has stressed upon the need to have a pay commission for
judicial officers to be periodically constituted
simultaneously with the Pay Commission constituted for
the employees of the Central Government. To quote from
the words of the Commission:
“appointment of a Judicial Pay Commission
should normally be made when Central Pay
Commission is constituted and notified.”
In exercise of its executive power under Article 73 of the
Constitution of India, the Central Government constitutes
Pay Commissions generally after a gap of every 10 years
for periodic revision of pay scales admissible to Central
Government employees. However, no such mechanism has
been devised for periodic revision of pay and allowances
admissible to the members of the subordinate judiciary
inspite of specific directions by this Hon’ble Court and the
recommendations for such periodic Pay Commission made
by the First National Judicial Pay Commission and the
Padmanabhan Commission as well. It may be noted that
the Central Government has now notified constitution of
the 7th Pay Commission for the Central Government
Employees, but no such exercise has been undertaken to
revise the conditions of service of the members of
subordinate judiciary. Thus, there has been consistent and
patent neglect towards the service conditions of Judicial
Officers despite the repeated directions by this Hon’ble
Court and its anguish there against.
The Petitioner has made several representations to the
respondents requesting them to review the service
conditionsof the judicial officers. The Petitioner made a
representation to the Cabinet Secretary of the Government
of India on 13/5/2015 but representation was rejected by
Government of India on 23/6/2015 on the ground that the
service conditions of the judicial officers of State Public
Judicial are not within the competence of Central
Government and the Hon’ble Supreme Court has been
seized of the matter.
Hence this writ petition is being filed.
The relevant events preceding the present petition,
chronologically, are as under:
13/11/1991 This Hon’ble Court delivered its judgmentin
All India Judges Association v. Union
Of India, 1992 (1) SCC 119(“first AIJA
Case” for short) issuing directions for
improvement of the service conditions of
the members of subordinate judiciary. The
directions were as follows:
1. “An All India Judicial Service
should be set up and the Union of
India should take appropriate
steps in this regard.
2. Steps should be taken to bring
about uniformity in designations
of officers both in civil and
criminal side by 31/03/1993
3. Retirement age of judicial officers
be raised to 60 years and
appropriate steps are to be taken
by 31/12/1992.
4. As and when the pay
commission/committees are set
up in the States and Union
territories, the question of
appropriate pay scales of judicial
officers be specifically referred
and considered.
5. 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.
6. Residential accommodation to
every judicial officer has to be
provided and until State
accommodation is available,
government should provide
requisitioned accommodation for
them in the manner indicated by
31/12/1992. In providing
residential accommodation,
availability of an office room
should be kept in view.
7. Every District Judge and Chief
Judicial Magistrate should have a
State vehicle, judicial officers in
sets of five should have a pool
vehicle and others would be
entitled to suitable loans to
acquire two wheeler automobiles
within different time limits as
specified.
8. In-service institute should be set
up within one year at the Central
and State or Union territory level.”
24/08/1993 This Hon’ble Court in All India Judges’
Association and Ors. Etc. v. Union of
India and Ors etc., - 1993 (4) SCC288
rejected the objections raised by the Union
of India and States while reviewing the
above mentioned judgment in the first AIJA
case and held that:
(i) “Each of the general and special
objections of Union of India and
States/ Union territories was dealt
with and rejected. The distinction
between judicial and other services
specifically emphasized.
(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.
(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
...The directions are essential 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 a
comprehensive national policy is
evolved, (Para 6).
(iv) The question of financial burden likely
to be imposed is misconceived and
should not be raised to discharge
mandatory duties:
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
similar 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 caliber 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. The legal practice for 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. The direction with regard to the
enhancement of the
superannuation age is modified
as follows:While the
superannuation age of every sub-
ordinate judicial officer shall
stand extended upto 60 years,
the respective High Courts
should, as stated above, assess
and evaluate the record of the
judicial officer for his continued
utility well within time before he
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. 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
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. 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(vii) & 49(viii)
respectively. It is the principal
district Judge at each district
headquarter or the metropolitan
town as the case may be, who
will be entitled to an independent
vehicle. This will equally apply to
the Chief Judicial Magistrate and
the Chief Metropolitan
Magistrate. The rest of the
Judges and Magistrates will be
entitled to pool-vehicles-one for
every five Judges for transport
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 liters per month,
in consultation with the High
Court.
f. 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. In view of the time taken to
dispose of the review petitions,
following orders were passed: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;the
time to comply with the
directions to provide law books
and law journals to all Courts is
extended upto 31/12/1993 failing
which, the library allowance
should be paid to every judicial
officer with effect from
01/01/1994, if it is not paid
already;the time to provide
suitable residential
accommodation, requisitioned of
Government, to every judicial
officer is extended upto
31/03/1994;the time to comply
with the rest of the directions is
maintained as it was directed by
the judgment under review;
h. Regarding uniform pay scales,
the review judgment emphasized
the following: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
similar nature, the service
conditions have to be uniform.
We have also emphasized 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.”
24/10/1996 First National Judicial Pay Commission was
constituted by the Government of India
pursuant to the directions issued by this
Court in Second AIJA Case. The Commission
was headed by Hon’ble Mr. Justice K.J.
Shetty. The terms of reference were as
follows:
A. “To evolve the principles that would
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 visa-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,
optimizing the size of the judiciary
etc."
11/11/1999 Hon’ble Mr. Justice Shetty Commission
submitted its report with the following
recommendations:
1. The High Courts were required to
frame the rules specifying particular
age of retirement and it was also
recommended that the procedure
prescribed for writing the
confidential reports by the self-
assessment process was better and
more transparent and should be
adopted by the High Courts for
judicial officers.
2. The commission recommended
appropriate nomenclatures to be
given to the judicial officers. The
recommendation was that they
should be called "civil judge" in
place of "civil judge (junior
division)" and "senior civil judge" in
place of "civil judge (senior
division)".
3. It further gave recommendation
with regard to equation of posts of
the chief metropolitan magistrate
and chief judicial magistrate. While
it recommended that the chief
judicial magistrate should be in the
cadre of civil judge (senior division),
in respect of chief metropolitan
magistrate, it recommended that it
should be placed in the cadre of
district judge. According to the
learned amicus curiae, the chief
metropolitan magistrate and chief
judicial magistrate must be in the
same cadre equivalent to civil judge
(senior division) and that it should
be at par with each other.
4. Recommendations were made with
regard to recruitment to the cadre
of civil judge (junior division)-cum-
magistrate first class as well as
recruitment to the post of civil
judge (senior division). The
recommendation in this regard was
that the posts of civil judge (senior
division) should only be filled by
promotion.
5. The commission also made
recommendation with regard to
appointment to the post of district
judge which includes the additional
district judge in the higher judicial
service. It pointed out some
problems which had arisen as a
result of direct recruitment to the
post of district judges, the problem
really being with regard to the inter
se seniority amongst them.
6. The commission also recommended
that serving judges who were
between 35 and 45 of age should
be made eligible for direct
recruitment to the higher judicial
service which consists of the posts
of district judges and additional
district judges and for this purpose,
if necessary, there should be an
amendment to Article 233(2) of the
Constitution of India.
7. With regard to inter se seniority
between direct recruits and
promotees, the commission
recommended that the promotees
be given weightage of one year for
every five years of judicial service
rendered by them subject to a
maximum of three years.
8. The report also recommended
steps being taken for judicial
education and training.
14/12/1999 This Hon’ble Court passed an order in the
first AIJA case directing the State
Governments and the Union Territories to
send their responses to the Union of India
so that it could co-relate the responses and
indicate its own stand on the
recommendations of Hon’ble Mr. Justice
Shetty Commission.
08/02/2002 This Hon’ble Court passed a Judgment and
order in All India Judges Association
and Ors. v. Union of India, 2002 (4)
SCC 247(third AIJA case) issuing directions
in the Writ Petition filed on behalf of the
Petitioner for review of the working
conditions of the members of the Sub
ordinate Judiciary throughout the country.
While passing the above mentioned order
this Hon’ble Court rejected the contention
raised by the Respondents therein about
the Financial Burden and directed the
Government to implement with the
recommendations of Justice Shetty
Commission in the case of. The relevant
extract of the above mentioned judgment
is as follows:
1. Hon’ble Mr. Justice Shetty
Commission has taken into
consideration the recommendations
of fifth central pay commission and
the pay scales recommended by it
are just and reasonable.
Considering the years of service put
in by the judicial officers at different
stages, the parity in the scales of
pay recommended by the
commission for the judicial officers
with the scales of pay of the I.A.S.
Officers is not by and large
disturbed. (Para 19)
2. However the entire expenditure on
account of the recommendation of
the Justice Shetty Commission be
borne by the respective states.
(Para 22)
3. Existing vacancies in the sub-
ordinate courts at all levels should
be filed. There has to be certain
minimum standards, objectively
adjudged for officers who are to
enter the higher judicial service as
additional district judges and
district judges. Ratio of 75%
appointment by promotion and 25%
by direct recruitment to the higher
judicial service is maintained. As far
as the appointment by promotion is
concerned 50% must be filled by
promotion on the basis of principle
of merit-cum-seniority and passing
a suitable test and 25% by strictly
on the basis of merit through
limited competitive examination of
civil judges(senior division) having
not less than 5 years of qualifying
service.(Para 26)
4. Recommendations for increase in
retirement age from 60 to 62 years
not acceptable. (Para 25)
5. Judicial officers provided with
official accommodation will not be
entitled to house rent allowances.
50% of the electricity and water
charges of the residence of judicial
officers to be borne by the State
Government. Even fresh law
graduates without any practice
should be eligible to enter judicial
service provided training of one or
two years. Chief judicial magistrates
and chief metropolitan magistrates
equated and placed in the cadre of
senior division sub-judge. Revised
pay scales to be paid w.e.f.
01.07.1996. (Para 34)
This Hon’ble Court further noted in this
decision that –
The Govt. of India has erred in
equating the district judge at the
entry with the scales of pay of a
Selection Grade IAS Officer. The
proper equation should have been
between the District Judge at entry
Level with a super time scale of an
IAS Officer; it is on that basis that
the scale of pay should be
determined upwards and
downwards.
It was also observed by the Court that –
It is only the District Judge (Super
Time Scale) as recommended by
the Justice Shetty commission
which is comparable with the last
scale of an IAS Officer.
28/04/2009 Hon’ble Mr. Justice E. Padmanabhan
Commission was appointed by the Order of
this Hon’ble Court in the third AIJA case to
determine the pay scales of all the Judicial
Officers etc. throughout the country on the
basis of Justice Shetty Commission’s
Report. This Commission was directed to
determine scales of pay, allowances,
perquisites etc. of Judicial Officers in the
cadre of (i) Civil Judges (Junior Division), (ii)
Civil Judges (Senior Division), (iii) District
Judges (Entry Grade), (iv) District Judges
(Selection Grade) and (v) District Judges
(Super Time Scale) having regard to the
recommendations already made by the
Hon’ble Justice Shetty Commission in
respect of the pay scales, allowances and
other perquisites of the Judicial Officers,
and so also revised Pensionary benefits
payable to Judicial Pensioners.
17/07/2009 Justice Padmanabhan Committee
submitted its report. However, various
demands made by the Judicial Officers
Association were not considered by the
Committee as they were beyond its scope.
The Committee vide paragraph 73 and 74
enumerated the areas to be reviewed by
Separate Judicial Pay Commission.
The Petitioners most respectfully submit
that since then there has been no review of
the service conditions of the subordinate
judiciary even when there has been a
periodic review in respect of administrative
services. Thus, even after three rounds of
litigations and two commissions spanning
across two decades that have brought
certain widespread changes in the working
conditions of the subordinate judiciary in
India, there still remains a disparity
between the treatment of working
conditions of the subordinate judicial
services and other administrative services,
in terms of monetary benefit as well as
social security. It is most respectfully
submitted that the pivotal reason for this
uncertainty is lack of a permanent body
that can regulate the service conditions of
the subordinate judiciary.
28/02/2014 7th Pay Commission was constituted. The
terms of reference of the said Commission
are as follows:
To examine, review, evolve and
recommend changes that are
desirable and feasible regarding the
principles that should govern the
emoluments structure including pay
allowances and other
facilities/benefits, in cash or kind,
having regard to rationalization and
simplification therein as well as the
specialized needs of various
Departments, agencies and services,
in respect of the following categories
of employees: -
i. Central Government employees –
industrial and non-industrial;
ii. Personnel belonging to the All
India Services:
iii. Personnel of the Union Territories;
iv. Officers and employees of the
Indian Audit and Accounts
Department;
v. Members of the regulatory bodies
(excluding the RBI) set up under
the acts of Parliament; and
vi. Officers and employees of the
Supreme Court
It is thus evident that the scope of 7th Pay
Commission does not extend to the Sub-
Ordinate Judiciary. Thus while it would
bring about better pay scales to the
Indian Administrative Officers there would
be no improvement in the service
conditions of the members of the
subordinate judiciary. This is violative of
the principles of equality and
fundamental rights guaranteed under
Article 14 and 16
07/07/2014 20th Law Commission submitted the 245th
report on arrears and backlogs
recommending increase in the retirement
age of the judges of subordinate judiciary
from 60 to 62.
13/05/2015 Petitioner submitted a representation to
the Cabinet Secretary of the Government
of India to constitute an All India Judicial
Commission to review the service
conditions of the judicial officers of
District Judiciary in India..
23/06/2015 The abovementioned representation was
rejected by Government of India on the
ground that service conditions of the
judicial officers of State Public Judicial is
not within the competence of Central
Government and the Hon’ble Supreme
Court has been seized of the matter.
In these circumstances the Petitioners are
constrained to file this present petition
IN THE SUPREME COURT OF INDIACIVIL ORIGINAL JURISDICTION
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIAWRIT PETITION (CIVIL) NO. _____ OF 2015
IN THE MATTER OF
1. All India Judges AssociationThrough its Working PresidentHaving address at: 37 Upkar Society, Harinagar, Gotri Road, Vadodara –390007 … Petitioner
Versus1. Union of India
Notice through, Secretary, Ministry of Law and Justice,4th Floor, A-Wing, Shastri Bhawan, New Delhi-110001 … Respondent No.1
2. The Registrar General, High Court of Allahabad,Allahabad, U.P. 211001 … Respondent No.2
3. The Registrar General, High Court of Allahabad, Lucknow Bench, Lucknow. … Respondent No.3
4. The Registrar General, High Court of Andhra Pradesh,Hyderabad – 500266 … Respondent No.4
5. The Registrar General, High Court of Bombay,Mumbai – 400032 … Respondent No.5
6. The Registrar, High Court of Bombay,Goa (Panaji) Bench,Goa – 403 001 … Respondent No.6
7. The Registrar General, High Court of Calcutta,Kolkata – 700001 … Respondent No.7
8. The Registrar General, High Court of Calcutta,Circuit Bench at Andaman & Nicobar IslandsPort Blair – 744101 … Respondent No.8
9. The Registrar General, High Court of Chattisgarh, Bilaspur – 795001 … Respondent No.9
10. The Registrar General, High Court of Delhi, New Delhi – 110003 … Respondent No.10
11. The Registrar General, High Court of Guwahati,Guwahati – 781001 … Respondent No.11
12. The Registrar, High Court of GuwahatiImphal Bench, Imphal. … Respondent No.12
13. The Registrar General, High Court of GuwahatiKohima Bench, Kohima. … Respondent No.13
14. The Registrar General, High Court of GuwahatiAgartala Bench, Agartala. … Respondent No.14
15. The Registrar General, High Court of Guwahati,Aizwal Bench, Aizwal. … Respondent No.15
16. The Registrar General, High Court of Guwahati,Shillong Bench, Shillong. … Respondent No.16
17. The Registrar General, High Court of GuwahatiItanagar bench, Itanagar. … Respondent No.17
18. The Registrar General, High Court of Gujarat,Ahmedbad. … Respondent No.18
19. The Registrar General, High Court of Himachal Pradesh,Shimla – 171001 … Respondent No.19
20. The Registrar General, High Court of Jammu & Kashmir,Srinagar – 190001 … Respondent No.20
21. The Registrar General, High Court of Jharkhand,Ranchi – 834033 … Respondent No.21
22. The Registrar General, High Court of Karnataka,Bangalore – 560001 … Respondent No.22
23. The Registrar General, High Court of Kerala,Ernakulam (Kochi) – 682031 … Respondent No.23
24. The Registrar General, High Court of Madras,Chennai – 600104 … Respondent No.24
25. The Registrar General, High Court of MadrasMadurai Bench, Madurai. … Respondent No.25
26. The Registrar General, High Court of Madhya Pradesh,Jabalpur – 482001 … Respondent No.26
27. The Registrar General, High Court of Orissa,Cuttak – 753002 … Respondent No.27
28. The Registrar General, High Court of Punjab and HaryanaChandigarh – 160001 … Respondent No.28
29. The Registrar General, High Court of Rajasthan,Jodhpur – 342001 … Respondent No.29
30. The Registrar General, High Court of Sikkim,Gangtok. … Respondent No.30
31. The Registrar General, High Court of Uttarakhand,Nainital. … Respondent No.31
32. State of Andhra PradeshNotice through Secretary, Legal Affairs,Secretariat, Hyderabad – 500022…Respondent No.32
33. State of Arunanchal Pradesh
Notice through Secretary, Legal Affairs,Secretariat, Itanagar – 791111. … Respondent No.33
34. State of AssamNotice through Secretary, Legal Affairs,Secretariat, Dispur,Guwahati – 781006 … Respondent No.34
35. State of BiharNotice through Secretary, Legal Affairs,Secretariat, Patna. … Respondent No.35
36. State of ChattisgarhNotice through Secretary, Legal Affairs,Secretariat,Raipur – 492001 … Respondent No.36
37. State of GoaNotice through Secretary, Legal Affairs,Secretariat, Porvorim – Goa … Respondent No.37
38. State of Gujarat,Notice through Secretary, Legal Affairs,Sachivalaya, Gandhinagar – 382010 … Respondent No.38
39. State of HaryanaNotice through Secretary, Legal Affairs,Haryana Civil Secretariat, Sector 01, Chandigarh-160001 … Respondent No.39
40. State of Himachal PradeshNotice through Secretary, Legal Affairs,Secretariat, Shimla – 171002 … Respondent No.40
41. State of Andhra PradeshNotice through Secretary, Legal Affairs,Secretariat, SrinagarJammu and Kashmir … Respondent No.41
42. State of Andhra PradeshNotice through Secretary, Legal Affairs,Secretariat, Dhurwa,Ranchi – 834001 … Respondent No.42
43. State of KarnatakaNotice through Secretary, Legal Affairs,Bangalore – 560001 … Respondent No.43
44. State of KeralaNotice through Secretary, Legal Affairs,Government Secretariat,Thiruvananthapuram – 695001 … Respondent No.44
45. State of Madhya PradeshNotice through Secretary, Legal Affairs,Secretariat,Bhopal 462004 … Respondent No.45
46. State of MaharashtraNotice through Secretary, Legal Affairs,Mantralaya,Mumbai – 400032 … Respondent No.46
47. State of Manipur, Notice through Secretary, Legal Affairs,Secretariat, ImphalManipur – 795001 … Respondent No.47
48. State of MeghalayaNotice through Secretary, Legal Affairs,Main Secretariat, ShillongMeghalaya – 793001 … Respondent No.48
49. State of MizoramNotice through Secretary, Legal Affairs,Secretariat, Capital Complex,Khatla, Aizawl – 796001 … Respondent No.49
50. State of NagalandNotice through
Secretary, Legal Affairs,New Secretariat Complex,Kohima – 797004 … Respondent No.50
51. State of OdishaNotice through Secretary, Legal Affairs,Secretariat, Odisha 751 013 … Respondent No.51
52. State of PunjabNotice through Secretary, Legal Affairs,Civil Secretariat, Sector 9Chandigarh … Respondent No.52
53. State of Rajashtan Notice through Secretary, Legal Affairs,Secretariat, Jaipur – 302005 … Respondent No.53
54. State of SikkimNotice through Secretary, Legal Affairs,Tashiling Secretariat,Gangtok – 737101 … Respondent No.54
55. State of Tamil NaduNotice through Secretary, Legal Affairs,Secretariat, Chennai – 600009 … Respondent No.55
56. State of Telangana Notice through Secretary, Legal Affairs,Secretariat … Respondent No.56
57. State of TripuraNotice through Secretary, Legal Affairs,New Secretariat Building,Capital Complex,Agartala – 799006 … Respondent No.57
58. State of Uttar PradeshNotice through Secretary, Legal Affairs,Secretariat, Lucknow – 226001 … Respondent No.58
59. State of UttarakhandNotice through Secretary, Legal Affairs,Secretariat, Subash Road,Dehradun – 248001 … Respondent No.59
60. State of West BengalNotice through Secretary, Legal Affairs,Advantage Bengal Building, 700016 … Respondent No.60
61. Union Territory of Andaman & Nicobar Notice through Secretary, Legal Affairs,Secretariat, Port Blair – 744101 … Respondent No.61
62. Union Territory of ChandigarhNotice through Secretary, Legal Affairs,Territory Secretariat, Sector – 9Chandigarh … Respondent No.62
63. Union Territory of Dadra & Nagar HaveliNotice through Secretary, Legal Affairs,Secretariat, Silvassa – 396230 … Respondent No.63
64. Union Territory of Daman & DiuNotice through Secretary, Legal Affairs,Secretariat, Fort Area,Moti Daman, Daman – 396220 … Respondent No.64
65. Union Territory of DelhiNotice through Secretary, Legal Affairs,Secretariat, New Delhi – 110113… Respondent No.65
66. Union Territory of LakshwadeepNotice through Secretary, Legal Affairs,Secretariat, Kavaratti – 682555 … Respondent No.66
67. Union Territory of PuducherryNotice through Secretary, Legal Affairs,Secretariat, 605 001 … Respondent No.67
PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA FOR ISSUANCE OF A
WRIT IN THE NATURE OF MANDAMUS OR ANY
OTHER APPROPRIATE WRIT / ORDERS /
DIRECTIONS UNDER ARTICLE 32OF THE
CONSTITUTION OF INDIA.
To
HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS
LORDSHIP’S COMPANION JUSTICES OF THE SUPREME
COURT OF INDIA.
THE HUMBLE PETITION OF THE PETITIONER ABOVE
NAMED.
MOST RESPECTFULLY SHEWETH:
1. The Petitioner in the instant case is the All India
Judges Association whose members are judges of the
subordinate judiciary from all over India and was
formed and registered in 1985. The petitioner was
formed with the primary objective of improving the
service conditions of the judges in sub ordinate
judiciary. Ever since its inception, the AIJA has striven
towards achieving its objective and has approached
this Hon’ble Court on several occasions in the past by
filing writ petition raising issues of common good and
for the benefit of the subordinate judiciary as a
whole. Resultantly, this Hon’ble Court had directed
for constitution of the Hon’ble Justice Shetty
Commission and Hon’ble Justice Padmanabhan
Commission for recommending improvements in the
service conditions of judicial officers. These
commissions have favourably shaped the service
conditions of all the judges in sub ordinate judiciaryin
compliance with the directions by this Hon’ble Court.
Thus, the efforts of AIJA are aimed towards the
welfare of its members and not of any particular
individual. In this context, it is submitted that the
instant petition is being filed so that the judicial
officers are granted their essential and basic service
conditions.
1A. That the petitioner has authorised Sh. Devendra Kumar
Jangala who is presently posted as Additional District
Judge Tis Hazari Courts, Delhi and who is also
Honorary Secretary (Zonal) of the Petitioner to file the
present petition. The petitioner before filing the
present had made a representation to the Cabinet
Secretary, Government of India on 13/05/205 (which
is on record as Annexure:P-10). However the the
abovementioned representation was rejected by
letter dated 23/06/2015 (which is on record as
Annexure:P-11) on the ground that the conditions of
service of judicial officers of State Public Judiciary is
not within the competence of the Central Government
and that the Hon’ble Supreme Court has been seized
of the matter.
2. That Article 50 of the Constitution of India
incorporates the concept of separation of judiciary
from the executive in the public services of the State
and the distinction between the two hasto be
maintained.
3. Importantly, though the periodic exercise of
constituting a Pay Commission for the executive in
public service has been undertaken by the
Central/State Government and pay scales are being
reviewed, no such mechanism has been put in place
for the judicial services despite specific directions by
the Hon’ble Court to this effect. This Hon’ble Court in
All India Judges Association Vs. Union of India
1992 (1) SCC 119 was pleased to direct that “as and
when such Commissions or committees are set up in
the states and Union Territories hereafter, they
separately examine and review pay structure of
judicial officers keeping in view all relevant
aspects.”(p.199 SCC).
4. However, these directions by this Hon’ble Court were
sought to be reviewed by the Union of India and the
States. This Hon’ble Court accordingly in All India
Judges Association Vs. Union of India 1993 (4)
SCC 288 while disposing off the review petitions, was
pleased to hold that merely because Article 309 of
the Constitution of India gives power to the executive
and the legislature to prescribe the service conditions
of the judiciary, and that after the council of States
make the necessary declaration under Article 312 of
the Constitution of India, the Parliament is
empowered to create All India Judicial Service, it 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
consequence would be against one of the seminal
mandates of the Constitution, namely to maintain
independence of the judiciary and no price is too
heavy to secure it. This Hon’ble Court had then held
that it was for this reason that the practice of
entrusting the work of recommending the service
conditions of members of subordinate judiciary to the
same Pay Commission which recommended the
service conditions of the other services required
reconsideration. This Hon’ble Court has ruled that 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. The question with regard to
pay scales in respect of the members of the judicial
service had however been initially referred to the 5th
Central Pay Commission. However, in view of the
directions as above, the Govt. of India by a resolution
dated 21/03/1996, constituted the First National
Judicial pay Commission under the Chairmanship of
Hon’ble Mr. Justice K. J. Shetty, a former Judge of this
Hon’ble Court. Subsequently, by an amendment
made on 24/10/1996, the reference to the 5th Central
Pay Commission with regard to the fixation of Pay
Scales of the Judicial Officers was deleted.
5. That the 5th Central Pay Commission submitted its
report on 30/01/1997, which was accepted by the
government on 30/09/1997 and was made applicable
w.e.f. 01/01/1996. The First National Judicial Pay
Commission (‘Shetty Commission’ for short)submitted
its report on 11/11/1999 wherein after taking into
consideration the recommendations which have been
made by the 5thCentral Pay Commission and the
pivotal role of the subordinate judiciary a master pay
scale was evolved. The Shetty Commission came to
the conclusion that the number of pay Scale should
be equal to the number of clearly identifiable levels of
responsibility also taking into consideration the scope
for promotional avenues. It is a matter of record that
even the recommendations made by the Shetty
Commission have been resisted on one pretext or the
other including the alleged plea of financial burden.
Finally, this Hon’ble Court in its judgment dated
21/03/2002 vide All India Judges Association Vs.
Union of India 2002 (4) SCC 247 was pleased to
accept the recommendations of the Shetty
Commission subject to certain modifications by this
Hon’ble Court. This Hon’ble Court also directed that
the Pay Scale so approved shall be w.e.f. 01/07/1996.
6. That though this Hon’ble Court in its review judgment
(as above) had directed that 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, inspite of the
Central Government constituting the subsequent Pay
Commission namely the 6th Central Pay Commission,
no such separate independent Commission was
constituted to review the service conditions of the
subordinate judiciary as directed by this Hon’ble
Court. The Shetty Commission in its report while
arriving at the Pay Scales recommended for the
subordinate judicial service, had noted that while
fixing the maximum of the master pay scale, it had
been constraint by the vertical cap of the salaries of
the High Court Judges. In other words, the district
judges could not get more salary than the High Court
Judges, whose salaries were statutorily fixed. It was
however, recommended that as and when the
salaries of High Court Judges were raised, the salary
of the Judicial Officers should also be increased by
maintaining the ratio which the Shetty Commission
had recommended. The salary of the High Court
Judges was revised by the High Court and Supreme
Court Judges (salaries and conditions of service)
Amendment Ordinance, 2009, published in the
Gazette of India vide notification dated 09/01/2009.
Subsequently, this became an Act of the Parliament.
Since the Pay Scales admissible to the subordinate
judiciary saw no revision, this Hon’ble Court vide
order dated 28/04/2009 in All India Judges
Association Vs. Union of India 2011 (12) SCC
678 was pleased to appoint Hon’ble Mr. Justice E.
Padmanabhan, Retd. Judge of the Madras High Court
to make suitable recommendations having regard to
the recommendations already made by the Shetty
Commission in respect of the pay scales and
allowances and certain other perquisites of the
judicial officers.
7. That Justice E. Padmanabhan submitted his report
dated 17.07.2009and made several determinations
on the basis of the First National Judicial Pay
Commission Report consequent to revision of scale of
pay of the High Court Judges. The Commission
however, recommended that its recommendations be
implemented w.e.f. 01/01/2006 i.e. the date from
which the recommendations made by the 6thCentral
Pay Commission were implemented by the Central
Government. However, the Commission in para VIII of
its Report noted that several demands made by the
Judicial Officers and Pensioners fell outside the scope
of reference made to the Commission. All these
demands, as the report of the Commission would
depict, pertained to the various service conditions of
the Judicial Officers, but were not considered by the
Commission since these were found to be beyond the
scope of limited reference made to the Commission.
The terms of reference of the said Padmanabhan
Commission were severely restricted on account of it
being limited to determine the pay scale of judicial
officers on the basis of recommendations of the
Shetty Commission. The Hon’ble Commission in para
74 of its report thus, recorded the following:
… Since most of the demands so made are
outside the scope of reference made to this
Commission by the Hon’ble Court, this
Commission has enumerated those demands,
which require consideration either by this
Hon’ble Court or by separate Judicial Pay
Commission or at the appropriate level and they
are given hereunder:…
8. The Commission in Part VIII of its report, has made
reference to at least 56 essential conditions of service
which could not be reviewed by it since they were
outside the scope of reference to the Commission. In
Part IX the Commission recorded the following
demands which do not even cost the exchequer.
i) Five Days a week.
ii) Provision for Transit/Guest House facility.
iii) Issuance of Car stickers for personal cars of Judicial officers as also for providing red light atop the vehicles of the particular level of Judicial Officers.
iv) Issue of Seniority–Rota-Quota.
v) Separate Forum (State Level and National Level) for settlement of various administrative and service grievances/problems.
vi) Welfare activities for the fraternity in general.
vii) Advance of salary for meeting contingencies – 15 days salary prayed.
viii) Protocol to Distt. Judiciary – to be maintained as per their status as executives.
ix) Priority in reservations/bookings: alongwith transportation, quest houses, rest houses etc.
x) Identity Cards to Pensioners and Family Pensioners to avail medical facilities etc.
xi) II ACP alongwith fixation of seniority to be finalized promptly.
xii) Change of nomenclature of Civil Judge (Junior Division) to Civil Judge.
9. Thus, several essential conditions of service of the
judicial officers are left to be addressed till date. It is
in view of these, the Hon’ble Commission too, in Para
75 of its report has stressed upon the need to have a
pay commission periodically constituted for judicial
officers simultaneously with the Pay Commission
constituted for the employees of the Central
Government. To quote from the words of the
Commission:
“appointment of a Judicial Pay Commission
should normally be made when Central Pay
Commission is constituted and notified.”
10. That in exercise of its executive power under
Article 73 of the Constitution of India, the Central
Government constitutes Pay Commissions generally
after a gap of every 10 years for periodic revision of
pay scales admissible to Central Government
employees. However, no such mechanism has been
devised for periodic revision of pay and allowances
admissible to the members of the subordinate
judiciary inspite of specific directions by this Hon’ble
Court and the recommendations for such periodic Pay
Commission made by the First National Judicial Pay
Commission and the Padmanabhan Commission as
well. It may be noted that the Central Government
has now notified constitution of the 7th Pay
Commission for the Central Government Employees,
but no such exercise has been undertaken to revise
the conditions of service of the members of
subordinate judiciary.
11. That in view of the above, the Petitioner prefers the
present petition to seek uniform review and
improvement of the service conditions of the judicial
officers throughout the country. The Petitioner seeks
constitution of a commission to review the service
conditions of the members of the district judiciary,
including the following but not restricted to:
i. Examining, reviewing, evolving and recommending
changes/modification of emoluments structure
including but not restricted to pay, allowances
including inter alia conveyance allowance,
residential allowance, traveling allowance and
library allowance, and other facilities/benefits, in
cash or kind, having regard to
rationalization, ,uniformity and simplification
therein as well as the specialized needs of district
judiciary in India with due emphasis on aspects
unique to the judges of the district courts in India;
ii. Examining, reviewing, evolving and recommending
changes to bring uniformity in the pay scales of
District judges in India
iii. Examining the principles governing the structure of
pension and other retirement benefits, including
revision of pension in the case of subordinate court
judges including those who have retired prior to
the date of the effect of the recommendation of
the proposed Commission.
iv. Examining, reviewing, evolving and recommending
changes/modification, including but not restricted
to the principle of parity,of the benefit of pension
and other retirement benefits to judges appointed
after 31/12/2003 at various levels of district
judiciary in India as per the pension scheme
approved by this Hon’ble Court which is payable to
judges appointed up to 31/12/2003, as against the
New Pension Scheme (NPS) implemented by the
government.
v. Increasing the age of retirement of District judges
in India;
vi. Examining, reviewing, evolving and recommending
the principle and roadmap for creation of All India
Judicial Services;
vii. Developing a framework for emoluments structure
linked with the need to attract the most suitable
talent to judicial service at various levels of district
judiciary in India and promoting efficiency,with due
regard to expectations of stakeholders, and to
recommend appropriate training and capacity
building through a competency based framework;
viii. Examining, reviewing, evolving and recommending
the principle and roadmap for creation of more
posts periodically to meet the increasing
requirement and improve the judicial infrastructure
available to the lower judiciary;
ix. Examining, reviewing, evolving and recommending
changes to correct the anomaly in the
increments/allowances of judges from different
cadres;
x. Examining and removing any anomalies of the First
National Judicial Pay Commission as well of J.
Padmanabhan Committee report;
xi. Examining, reviewing, evolving and recommending
various measures,including preventive
measures, to ensure safety and security to district
judiciary in India so as to ensure that the judges
are able to discharge their judicial duties
fearlessly;
xii. Examining, rationalising and recommending the
ratio of vacancies for appointment as judges of
High Courts from amongst the members of the bar
and the judicial officers to ensure fair
representation to the judicial officers from the
State Judicial Services and further the judicial
officers who join the State Judicial Services at the
entry level be also given due representation in the
High Courts and at the higher levels of the
judiciary;
xiii. Examining, evolving and recommending the
principles and roadmap for constitution of a
permanent independent commission/body to
periodically review the service conditions
and emoluments structure including but not
restricted to pay, allowances and other
facilities/benefits, in cash or kind, and the
principles that should govern the District Judiciary
in India;
xiv. Examining, evolving and recommending principles
and roadmap for better promotional opportunities
for Judicial officers from State Judicial Service
particularly promotion in Higher Judicial Service
and representation in High Court and Apex
Court,including periodic review of the Rules of
Recruitment and Promotion that should govern the
district judiciary.
12. It is submitted that the only efficacious remedy
available with the petitioner on account of violation of
Petitioner’s fundamental rights guaranteed under
Articles 14 and 16 is by way of the present petition
under Article 32.
FACTUAL BACKGROUND
1. The facts giving rise to the present Writ Petition are
as follows:
a. That in 1989 a petition under Article 32 was filed
by the All India judges, Association and its
working President for reliefs through directions
for the setting up of an All India Judicial Service
and for bringing about uniformity and improving
conditions of service of members of the
subordinate judiciary throughout the country.
The said writ petition was disposed in the case
of All India Judges’ Association v. Union of
India and Ors. – 1992 (1) SCC 119
(hereinafter referred as first AIJA case), giving
significant directions in respect of enhanced pay
scales, enhancement and uniformity in age of
retirement and additional allowances, while also
recognizing the dire conditions of service of the
subordinate judiciary.
True copy of the judgment of the Hon’ble
Supreme Court in All India Judges’ Association v.
Union of India and Ors. – 1992 (1) SCC 119 is
marked and annexed hereto as ANNEXURE P-
1(Pages ___ to ____)
b. That in 1993 the Union of India filed a review
petition pursuant to first AIJA case, seeking
certain modifications/clarifications. This review
petition was disposed of by the judgment,
entitled All India Judges’ Association and Ors.
Etc. v. Union of India and Ors etc., - 1993 (4)
SCC 288 (hereinafter referred as second AIJA
case). The Court reasserted its views of the
first AIJA case and held in this case that the
parity should be maintained between the
political executive, the legislators and the
Judges and not between the Judges and the
administrative executive.
True copy of the judgment of the Hon’ble
Supreme Court in All India Judges’ Association
v. Union of India and Ors. – 1993 (4) SCC 288 is
marked and annexed hereto as ANNEXURE P-
2 (Pages ___ to ____)
c. That in 1996 pursuant to the directions issued
by this Court in the second AIJA case, the
Government of India by a resolution
constituted the First National Judicial Pay
Commission under the chairmanship of Mr.
Justice K.J. Shetty (hereinafter referred as
Hon’ble Mr. Justice Shetty Commission) and in
the year 1999 the said commission submitted
its report with recommendations.
True copy of the relevant extracts of Hon’ble
Mr. Justice Shetty Commission report is marked
and annexed hereto as ANNEXURE P-3
(Pages ___ to ____)
d. In the case of All India Judges Association and
Ors. v. dUnion of India, 2002 (4) SCC
247(hereinafter referred as third AIJA case) this
Hon’ble Court rejected the contention of
Financial Burden and directed the
Government to comply with the
recommendations of Justice Shetty Commission.
True copy of the judgment of the Hon’ble
Supreme Court in All India Judges’ Association v.
Union of India and Ors. – 2002 (4) SCC 247 is
marked and annexed hereto as ANNEXURE P-4
(Pages ___ to ____)
e. In March 2008 the 6th Central Pay Scale
Commission submitted its report revising the
pay scale of the executive branch of the
government.
True copy of the relevant extracts of 6th Central
Pay Scale Commission report is marked and
annexed hereto as ANNEXURE P-5 (Pages
___ to ____)
f. That on 28/04/2009 this Hon’ble Court appointed
the Hon’ble Mr. Justice E. Padmanabhan
Commission to determine the pay scales of all
the Judicial Officers etc. throughout the country
on the basis of the Hon’ble Mr. Justice Shetty
Commission’s Report.
True copy of the order of the Hon’ble Supreme
Court dated 28/04/2009 is marked and annexed
hereto as ANNEXURE P-6 (Pages ___ to ____)
g. That the Hon’ble Mr. Justice Padmanabhan
Commission was directed to determine scales of
pay, allowances, perquisites etc. of Judicial
Officers in the cadre of (i) Civil Judges (Junior
Division), (ii) Civil Judges (Senior Division), (iii)
District Judges (Entry Grade), (iv) District Judges
(Selection Grade) and (v) District Judges (Super
Time Scale) having regard to the
recommendations already made by the Hon’ble
Justice Shetty Commission in respect of the pay
scales, allowances and other perquisites of the
Judicial Officers, and so also revised Pensionary
benefits payable to Judicial Pensioners.
h. That in 2009 Hon’ble Mr. Justice Padmanabhan
Committee submitted its report, however,
various demands made by the Judicial Officers
Association were not considered by the
Committee as they were beyond its scope. The
Committee vide paragraph 73 and 74
enumerated the areas to be reviewed by
Separate Judicial Pay Commission.
True copy of the relevant extracts of Hon’ble
Mr. Justice Padmanabhan Committee report is
marked and annexed hereto as ANNEXURE P-
7 (Pages ___ to ____)
The Petitioners most respectfully submit that
since then there has been no review of the
service conditions of the subordinate judiciary
even when there has been a periodic review in
respect of administrative services. Thus, even
after three rounds of litigations and two
commissions spanning across two decades that
have brought certain widespread changes in the
working conditions of the subordinate judiciary
in India, there still remains a disparity between
the working conditions of the subordinate
judicial services and other administrative
services in terms of monetary benefit as well as
social security. It is most respectfully submitted
that the pivotal reason for this uncertainty is
lack of a permanent body that can better
understand the concerns and regulate the
service conditions of the subordinate judiciary.
i. That on 28/02/2014 the Central Government
has constituted the Seventh Central Pay
Commission to yet again review the pay scales
and other allowances of the executive. As a
consequence the negative gap with regard to
the pay scales between the Judiciary and
Political Executive, who are at par, would
increase. This kind of discriminative treatment
amongst equals is volatile of Article 16 read
with Article 14 of the Constitution of India. A
copy of the resolution passed by the
Government constituting the Seventh Pay
Commission is hereto marked and annexed as
ANNEXURE P-8. (Pages ___to___)
j. That on 07/07/2014, the 20th Law Commission
has submitted the 245th report on arrears and
backlogs. In the said report the Law
Commission has recommended to increase the
retirement age of the judges in subordinate
industry from 60 to 62.
True copy of the relevant extracts of 245th Law
Commission report is marked and annexed
hereto as ANNEXURE P-9. (Pages ___ to
____)
k. That the petitioner has made several
representations to the respondents requesting
them to review the service conditions of the
judicial officers. On 13/05/2015 a
representation was made to the Cabinet
Secretary of the Government of India to
constitute an All India Judicial Commission to
review the service conditions of the judicial
officers of District Judiciary in India..
True copy of representation dated
13/05/2015 made to the Cabinet Secretary of
the Government of India is marked and
annexed hereto as ANNEXURE:P-10. (Pages
___to___).
l. That on 23/06/2015, the abovementioned
representation was rejected by Government of
India on the ground that service conditions of
the judicial officers of State Public Judicial is
not within the competence of Central
Government and the Hon’ble Supreme Court
has been seized of the matter.
True copy of letter dated 23/06/2015 issued by
the Joint Secretary of the Government of India
is marked and annexed hereto as
ANNEXURE:P-11. (Pages ___to___).
J. It is respectfully stated and submitted that in
the aforesaid background, the Petitioner seeks
to prefer the present petition on the following
amongst the other grounds that may be urged
at the time of hearing of the present petition.
The grounds set out hereunder are without
prejudice to one another.
2. GROUNDS
A. Because there is parity between the Judges and
Political Executive and as such they have to be
treated equally. This Hon’ble Court in the second AIJA
case held that 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. In a democracy 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 who exercise the State-
power are the ministers, the legislatures 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 are different from the legislative staff. So
also the Judges 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 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 or functionally. This Court also held
second AIJA case that Under the Constitution, the
judiciary is above the administrative executive and
any attempt to place it on par with the administrative
executive has to be discouraged.
B. Because keeping Judges in want of the essential
accoutrements impedes them in the proper discharge
of their duties. This Court in the second AIJA case held
that this distinction between the Judges and the
members of the other services has to be constantly
kept in mind for yet another important reason.
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 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 thus to impede them in the
proper discharge of their duties is to impair and
whittle away justice itself.
C. Because there is discrimination amongst the service
conditions of Judges and Political Executive who are
par under the Constitution. Pay scales of Judicial
officers have become lesser than Executive
particularly in Higher Judicial Service cadre for
example as per Hon’ble Mr. Justice Shetty
Commission super time scale for HJS was 22850 to
24850 and in 5th CPC was 22400-to-24500 but in
Hon’ble Mr. Justice Padmnabhan Report it was 70290
to 76450 but in 6th CPC its 67000 to 79000. This
negative gap would increase after 7th CPC. In these
circumstances it is essential that a judicial body may
be set up to review the working conditions of the
judges of the subordinate judiciary periodically.
D. Because it is absolutely necessary that appropriate
conditions should be provided for the judicial officer
and he should have reasonable mental peace in order
that he may perform his duties satisfactorily.
Rendering justice is a difficult joband unless the
judicial officer has a reasonably worry free mental
condition, it would be difficult to expect unsoiled
justice from his hands. It is therefore imperative that
a judicial commission may be set up to review the
working conditions of the judges of the subordinate
judiciary periodically.
E. Because the 20th Law Commission in its 245th Report
has recommended that, in order to meet the need
for a large number of appropriately trained
Subordinate Court Judges, the age of retirement of
Subordinate judges be raised to 62. The benefits of
increase in the retirement age be made available to
judicial officers in terms of the directions of the
Supreme Court in second AIJA Case. Thus there is a
need to change the service conditions of the judicial
officers including but not limited to the increase in
the age of retirement.
F. Because the judges of subordinate judiciary should
be treated differently from the officers of the
administrative services. It is pertinent to point out
thatearlier also the Law Commission in its
14thReport had recommended to raise the age of
retirement of subordinate judges to 62 years, in
order to meet the need of a large number of
adequately trained judicial officers. The Law
Commission in its 14th report deals with this aspect
at Page 123 of the report and said that there is yet
another reason why the question of age of
retirement of subordinate judges should be treated
differently from that in other state services as
judicial officer enters service at a comparatively
higher age, than a recruit to the executive or
administrative services. It would therefore, be
proper that the retirement age of the judicial officer
should be relatively higher age than that of an
executive officer so as to enable him to serve for
the full number of years, if he retains his fitness and
capacity of work till he reaches such higher age. It is
thus, humbly submitted that the nature of work that
the judicial officers and executive officers undertake
is different and by treating unequal equally (the age
of superannuation of both services is 60 years)
Article 14 and 16 of the Constitution of India are
being violated.
G. Because there is a need to review the working
conditions of the judges of the subordinate judiciary
post Hon’ble Mr. Justice Padmanabhan Commission. It
is submitted that since then there has not been any
review of the service conditions of the judicial
officers. Further the scope of Hon’ble Mr. Justice
Padmanabhan Commission was confined only to
determine the pay scales of all the Judicial Officers
etc. throughout the country on the basis of the
Hon’ble Justice Shetty Commission’s Report i.e. First
National Judicial Pay Commission. However on the
other hand the members of administrative services
had the benefit of periodic review of service
conditions by way of several pay commissions. It is
therefore necessary that the service conditions of the
judicial services may be reviewed by way of a judicial
commission.
H. Because the anomaly in the increments given to the
judicial officers throughout the country ought to be
removed. Hon’ble Mr. Justice E. Pabnanabham
suggested Master pay scale with 44 stages. In order
to spread the pay scale between Rs. 27700 to Rs.
76450.00 in 44 stages Hon’ble Mr. Justice
Padmanabhan determined increments of low amount.
It is most respectfully submitted that the
recommendation needs to be reviewed in view of
anomaly in fixing increments. For example, increment
of Civil Judge Senior Division is Rs. 1230.00;
increment of District Judge Entry Level also starts
with Rs. 1230.00. Next stage of increment of district
Judge Entry Level is Rs. 1380.00, the increment of DJ
Selection Grade however again starts from Rs.
1230.00. Apart from this anomaly static rate of
increment put the judicial officers in loss in perpetuity
when compared with running pay bands suggested by
6th pay commission and accepted by Hon Apex Court
while determining pay scales of the employees of
Supreme Court of India.
I. Because the judges of subordinate judiciary are
bearing a recurring loss in view of the anomaly in
increments. It is pertinent to point out that Hon’ble
Mr. Justice Shetty Commission had
consideredgranting increments as a percentage of
basic pay, but at that point of time such system was
found operationally inconvenient (Para 15.51 report).
However the 6th Central Pay Commission
recommended running pay bands by suggesting
increments @ 3% of basic pay. Advantages of
system to fix salary in pay bands are mentioned in
Para 2.2.13 of sixth Pay Commission Report. It is most
respectfully submitted that pay band and grade pay
system may be adopted to avoid recurring loss of the
Judges.
J. Because it is essential to bring uniformity inthe pay
scales of the judges who have been recruited through
different sources.For example, a person joining as
Civil Judge Junior Division (“CJJD” for short) has an
opportunity for promotion after 5 to 7 years. If he is
not promoted in 5 years, even then he can get ACP
and will be shifted to new pay scale. In view of this it
is most respectfully submitted that stages of pay
scale for CJJD cadre can be reduced to 17 stages. A
judge in the cadre of Civil Judge Senior Division
(“CJSD” for short) gets an opportunity for promotion
in the cadre of District Judge (“DJ” for short) in five
years. His optimum length of service in the cadre of
CJSD will be of 10 to 11 years, so 11 stages can be
dedicated in the master pay scale for the cadre of
CJSD. 8 stages could be keep for the cadre of DJ Entry
Level, 8 stages for the cadre of DJ Selection Grade
and 4 stages for DJ Super Time in this way, Master
pay scale of 36 stages will be appropriate and will
cater the need to provide 3% increment to the judges
with running pay band but without grade pay. In the
absence of a body,that is familiar with the judiciary
and the facilities required of judicial officers,to review
and redress these anomalies, it is difficult to bring
improvement in the working conditions of the sub-
ordinate judiciary.
K. Because there is a need to review the entitlements of
the judicial officers by way of allowances. Hon’ble Mr.
Justice Padmanabhan proposed hike in some of the
allowances. Hon’ble Mr. Justice Padmanabhan
however avoided considering recommendations of 6th
central pay commission regarding the changes in the
scheme of providing some allowances and
introduction of new allowances. Sumptuary
allowances is required to be provided @ Rs. 6000.00
per month to DJ Rs. 4500.00 to CJSD and Rs.3000.00
to CJJD, total expenses of electricity and water
charges are directed to be reimbursed, robe
allowance of Rs. 16000.for block of three years be
provided, reimbursement for mobile phone bill to be
provided, conveyance allowance of Rs.7000.00 per
month plus DA be provided, HTC be provided every
year. Children education allowance and hostel
subsidy be provided to the judges as recommended
by 6th pay commission.
L. Because in view of the nature of work and stringent
restrictions thereon, it is essential that the judicial
officers may be paid pension as per the pension
scheme approved by this Hon’ble Court as against
the new scheme implemented by the government. It
is most respectfully submitted that the
pensionscheme as recommended by Hon’ble Mr.
Justice Shetty Commission is not applicable to newly
recruited Judges. They are required to contribute 10%
of basis pay as member contributory scheme. As
service conditions of judges are governed by
recommendations of Hon’ble Mr. Justice Shetty
Commission the state government cannot unilaterally
withdraw the pension scheme for the judges. The
judges recruited after 2003 are neither getting the
benefits of pension scheme not they are getting total
pay recommended by Hon’ble Mr. Justice Shetty
Commission.
M.Because to maintain the independence of the
judiciary it is necessary that there is an Independent
Commission which has the power to review the
service conditions of the Subordinate Judiciary. This
Court held in the second AIJA case 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. In this regard the Hon’ble Court further
noted in the second AIJA case that in view of the
separation of the powers under the Constitution, and
the need to maintain the independence of the
judiciary to protect and promote democracy and the
rule of law, it would have been ideal if the most
dominant power of the executive and the legislative
over the judiciary, viz., that of determining its service
conditions had been subjected to some desirable
checks and balances. This is so even if ultimately, the
service conditions of the judiciary have to be
incorporated in and declared by the legislative
enactments. But the mere fact that Article 309 gives
power to the executive and the legislature to
prescribe 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 rule 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
consequence would be against one of the seminal
mandates of the Constitution, namely, to maintain
the independence of the judiciary.
N. Because the work of the judicial officers throughout
the country is of the similar nature, the service
conditions have to be uniform. This Court in the
second AIJA case emphasized 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. 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.
O. Because there is a need for creation of All India
Judicial Services to improve and bring uniformity the
administration of justice throughout the country. The
need for All India Judicial Services was felt as early as
in 1958 when the 14th Law Commission recommended
creation of an All India Judicial Services. Subsequently
an amendment was also brought in the constitution
enabling the government to establish All India Judicial
Services. However despite the directions of this
Hon’ble Court to examine the feasibility of the
implementation of these recommendations in the
case of first AIJA case, till date nothing concrete has
happened for establishment of AIJS.
P. Because there is wide variance in the pay structure
prevailing in the various States and Union Territories
and the judicial officers are remunerated differently
for similar nature of work. A pay commission
separately constituted for examining and reviewing
the pay structures of judicial officers across the
country will be able to better assess the reasons for
such variance and bring about uniformity, as far as
may be possible, in the terms and conditions of
service of the subordinate judiciary.
Q. Because the Court needs to issue directions to the
authorities to perform their obligatory duties
whenever there is a failure on their part to discharge
them and the legislature and executive in this
instance have failed to meet their obligations by
neglecting to improve the service conditions of the
subordinate judiciary.
R. Because by deleting a reference in respect of pay
scales of judicial officers from the terms of reference
of the 5th Central Pay Commission and
contemporaneously constituting the Shetty
Commission, the Central Government had agreed to
set up a pay commission specifically for judicial
officers at the same time as constitution of a pay
commission for executives. However, the Central
Government has failed to constitute a separate pay
commission for the subordinate judiciary
subsequently when it constituted the 6th Central Pay
Commission in 2008 and when it recently constituted
the 7th Central Pay Commission in 2014.
S. Because the Central Government has rejected the
representation of the petitioner on the ground that
this Hon’ble Court has been seized of the matter. In
these circumstances, the petitioner are left with no
option but to approach this Hon’ble Court under
Article 32 of the Constitution of India for redressal of
their grievances.
T. The Petitioner craves leave to add, amend or alter the
grounds during the course of pendency of the instant
Writ Petition.
3. That the Petitioner has not filed any other or similar
Petition before this Hon’ble Court or any other Court
for similar relief as prayed for in the present Writ
Petition.
PRAYER
It is therefore, respectfully prayed that this Hon’ble Court
may be pleased:
1. To issue a writ of mandamus or a writ in the nature of
mandamus or such other writ / order / direction as
may be necessary directing the Respondents to
constitute All India Judicial Commission in terms of
the representation made by the Petitioner to
Respondent No. 1 on 13/05/2015 to review the
service conditions of the judicial officers of
subordinate judiciary in India including but not limited
to Pay Scale, Retirement Age, Pension and other
emoluments of the Sub-ordinate judiciary from time
to time;
2. To issue such orders as may be necessary to direct
the Respondent No 1 to undertake appropriate
exercise to ascertain the feasibility of establishing an
All India Judicial Services; and
3. To pass such other orders and further orders as may
be deemed necessary on the facts and in the
circumstances of the case.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS
INDUTY BOUND SHALL EVER PRAY.
SETTLED BY:
MR. GOURAB BANERJI
(SENIOR ADVOCATE)
DRAWN AND FILED BY:
(MAYURI RAGHUVANSHI)
Advocate on Record for the Petitioner
DRAWN ON:
FILED ON: