VOLUME - I
Independence of the 1. The Constitution has ensured the independence of
judiciary the judiciary. Independence of judiciary is a basic structure of the Constitution, on which rests the edifice of our democratic polity. Articles 233 to 237 of the Constitution ensure the independence of the subordinate judiciary. The Constitution has tried to insulate the judiciary both from the Executive and the Legislature.
Obligation of the 2. Judge has the obligation to provide speedy and fair
Judge trial to litigants. However, due to manifold reasons like great upsurge in litigations / docket explosion, insufficient staff and inadequate infrastructure, lack of financial independence, lack of proper training to judges, lack of application of IT etc., this objective has not been achieved.
The Judges are 3. The Supreme Court has observed (All India Judges’
not employees Association Case AIR 1992 SC 165 & AIR 1993 SC 2493, 2510) that under the Constitution the judiciary is above the administrative executive. . . . the judicial service is not service in the sense of ‘employment’. Members of the judiciary exercise sovereign judicial power of the State and hold public office as the Members of the Council of Ministers and the Members of the Legislature.
Relevance of 4. An independent Commission like the First National
the FNJPC Judicial Pay Commission promotes the independence of judiciary by providing a forum for the members of the judiciary to express their grievances. It protects the Judicial Officers from political interference i.e. from those who control the purse strings.
Causes of 5. The major causes are the burgeoning judicial
dissatisfaction in the workload and inadequate compensation which normally
subordinate judiciary result in low morale and declining sense of commitment to service.
Public Image of 6. If the members of the judiciary are not regarded
the judicial system with respect, their impartiality will, such is human nature, come to be doubted. The judges and the courts must be such as to create and retain public confidence and respect.
Aim and object of 7. Our aim is not to make our judges wealthy men, but
the Commission to satisfy their optimum needs to maintain a modest and dignified way of life suited to the gravity and majesty of the duties they discharge. The Report is intended to inspire Judicial Officers to rededicate themselves to respond positively to meet the challenges of the new millennium.
Accountability 8. The High Court must have periodical and meaningful inspection and even surprise inspections over the subordinate courts. the Vigilance Cell of the High Court should be strengthened. All judicial officers should be reviewed at the age of 50, 55 & 60 by a permanent committee of High Court Judges. The High Court should be ruthless in taking action against the indolent and undesirable elements.
All India Judges’ 9. In 1989, All India Judges’ Association filed a Writ
Association case Petition (Civil) No.1022/1989 before the Supreme Court of India under Article 32 of the Constitution seeking many reliefs to improve the conditions of service of subordinate judicial officers all over the country. This was disposed of on 13th November 1991 giving several directions. The Union of India and some State Govts. preferred Review Petitions, upon which the judgment was delivered on 24th August 1993. In this Review Judgment, among several directions issued for improving the service conditions of the judicial officers, one direction stated that " there should be separate Commission for determining the pay scales of the judicial officers".
Constitution of 10. In pursuance to the above direction of the Supreme
the Commission Court, Government of India by Resolution dated 21st March 1996 constituted the First National Judicial Pay Commission for the subordinate judiciary all over the country with specific terms of reference. Mr. Justice K. Jagannatha Shetty, Former Judge of the Supreme Court of India is the Chairman, Mr. Justice P.K. Bahri, Former Judge, Delhi High Court is the Member. Mr. K.R. Chamayya was Member-Secretary till 27th August 1996 and thereafter Mr. Justice A.B. Murgod, Former Judge of the Karnataka High Court has been the Member-Secretary of the Commission.
Commissioning of 11. The Commission became functional at the fag end
the Commission of December 1996. The delay was due to the bottlenecks of the needed infrastructure like location of the office, finance and staff. Due to non-availability of suitable personnel the sanctioned strength could not be completely filled.
The Task of 12. The work includes, among others, the restructuring
the Commission of the multiple judicial cadres into three uniform cadres, prescribing uniform jurisdiction, determining uniform pay scales. The Commission is also concerned with recruitment, training, work methods and work environment of judicial officers etc.
Collection of 13. Since the Commission is first of its kind, a
Material comprehensive Questionnaire was issued on 15th March 1997 to all the High Courts, State Governments / UTs, Judicial Officers’ Associations, Bar Associations, Bar Council of India, Jurists and others seeking their views. All the High Courts, Associations have replied to this Questionnaire. Some State Govts. and others also have replied.
Consultants 14. The Commission had engaged the following Consultants for the aforesaid work.
(i) Indian Institute of Public Administration (IIPA), New Delhi for rationalising and suggesting uniform pay structure and other benefits for the proposed three cadres of Judicial Officers.
(ii) Indian Institute of Management, Bangalore (IIMB) for a report on Case Management and Court Management.
(iii) The National Law School of India University, Bangalore for History of Judiciary in different States. (iv) Dr. N.R. Madhava Menon for the report on the Judicial Training with the syllabus and course of training for Judicial Officers.
(v) Sri K.R. Chamayya for preparation of Model Civil Courts Act, Model Judicial Service Rules including Conduct Rules for Judges and Rules for Recruitment of Judges of Family Courts.
Separate 15. The IIPA, IIMB and Dr. Madhava Menon in
Questionnaire consultation with the Commission have issued separate
by Consultants Questionnaires and have made the best use of the responses received in preparing the reports.
Interim Relief 16. The GOI by Resolution dated 16th December 1997 amended the original terms of reference empowering the Commission to recommend regarding Interim Relief. The Commission, on 31st January 1998, recommended I.R. on varying terms ranging from 35 to 75% of basic pay with admissible DA as on 1.1.1996 in those States where the V CPC was not implemented.
Oral Hearing 17. The Commission afforded an opportunity of being heard to the representatives of all the Judicial Officers’ Associations, High Courts, State Govts. / UT Administrations etc.
National Level 18. The reports prepared by the IIMB and Dr. Madhava
Consultative Meeting Menon were discussed in the National Consultative Meeting held in IIMB which was attended by the nominee Judges from all the High Courts, Directors, Judicial Training Institutes, Academia and other legal luminaries.
2. HISTORY OF JUDICIARY - STATE GOVTs. / UTs.
History of Judiciary 19. History of Judiciary in Andhra Pradesh, Assam, Bihar, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Mizoram, Nagaland, Orissa, Pondicherry, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura, Uttar Pradesh and West Bengal as verified and approved by the concerned High Courts is incorporated in Chapter 2 of the Report.
3. JUDICIAL STRUCTURE AND REMUNERATION -
Powers 20. Our judicial system is English in origin and we have adopted the English model.
The Supreme Court stands as the head of the judicial pyramid with Chief Justice of India and other Judges. They retire at the age of 65 years.
The Supreme Court has original jurisdiction to the exclusion of any other Court in any dispute between the Government of India and one or more States or between States inter-se. It has appellate jurisdiction from the judgments and decrees of the High Courts in certain cases, both in civil and criminal proceedings. It has got absolute discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order passed or made by any Court or Tribunal in the country. It has also got advisory jurisdiction or consultative function, which power is conferred on the President of India to consult the Supreme Court on any question of law or fact.
Salary or 21. The Chief Justice of India gets a salary of
Remuneration Rs.33000/- per month with usual D.A., tax-free Sumptuary Allowance of Rs.4000/- and rent-free furnished quarters. The other Judges draw a fixed salary of Rs.30000/- per month with usual D.A., tax-free Sumptuary Allowance of Rs.3000/- and furnished rent free quarters or House Rent Allowance of Rs.10000/- per month.
High Court 22. Every State has High Court with Chief Justice and other Judges. It has powers to issue writs or orders for the enforcement of any of the fundamental rights and for any other purpose. It has the power of superintendence over all Courts and Tribunals through-out the territory in relation to which it exercises jurisdiction. It has absolute administrative and judicial control over the Subordinate Courts. They retire at the age of 62 years.
Salary and Perks 23. The Chief Justice of the High Court is entitled to a
of High Court Judges salary of Rs.30000/- per month with usual Dearness Allowance, tax-free Sumptuary Allowance of Rs.3000/- and rent-free furnished quarters. Other Judges are entitled to a fixed salary of Rs.26000/- per month with usual Dearness Allowance, tax-free Sumptuary Allowance of Rs.2000/- and furnished rent free quarters or House Rent Allowance of Rs.10000/- per month.
Subordinate Courts 24. On the Civil side, there are District Courts, Courts
in India of Civil Judges (Sr. Divn.) and Courts of Civil Judges (Jr. Divn.). On the Criminal side, there are the Courts of Sessions, Courts of CJM, Judicial Magistrates of the First Class in the Districts, CMM and Metropolitan Magistrates in the Metropolitan areas.
Ladder of Promotion 25. The subordinate judiciary is a cadre system with the ladder of promotion just like any other Civil Service. The Judges of Subordinate Courts retire at the age of 60.
Present Pay Structures 26. The pay structure of the Subordinate Judiciary varies from State to State. Some States have adopted the pay scales of the Central Government and other States have got their own independent pay structure.
AUSTRALIA 27. The Australian judiciary comprises three distinct jurisdictions – Federal, State and Territorial. Federal Courts derive their existence from Commonwealth legislation enacted pursuant to Section 71 of the Commonwealth Constitution, the State Courts from the State legislation and Territorial Courts from Commonwealth legislation enacted under Section 122 of the Commonwealth Constitution.
Remuneration 28. Independent Remuneration Tribunals determine the
Tribunal remuneration payable to Judges and Magistrates as well as to Parliamentarians and holders of Senior Executive positions. Judicial remuneration in Australia is presently in a state of uncertainty with important reviews in progress in the Commonwealth and Victoria.
ENGLAND 29. In England, there are superior Judges, namely, Judges of the High Court, Court of Appeal and the Law Lords. Below the High Court, there are: (i) Circuit Judges; (ii) District Judges; (iii) Recorders and Assistant Recorders and (iv) Magistrates.
Salary Structure 30. By 1997, the salary figures for the Lord High Chancellor were £ 140,665, for the Lord Chief Justice of England £ 140,008, for Lord of Appeal in Ordinary and for the Master of the Rolls £ 131,034, for Lord Justice of Appeal and for President, Family Division, £ 124,551, for Judge of Chancery Division, Judge of Queen’s Bench Division and for Judge, Family Division, £ 112,011, for Senior Circuit Judges, £ 92,378, for Circuit Judge £ 83,586 and for Stipendary Magistrates £ 67,358.
Retirement 31. The Circuit Judges retire at the age of 70 years.
MALAYSIA 32. In Malaysia, the judiciary consists of Judges of Superior Courts and Judges of Subordinate Courts. There is no uniformity in Subordinate Courts in the whole country in respect of practice and procedure.
Salary Structure 33. The Chief Justice gets RM 12,000 (Ringgit Malaysia), President, Court of Appeal is paid 10,520 RM, the Chief Judge of Malaya High Court is entitled to 10,420 RM, the Chief Judge of Sabah and Sarawak High Court is paid RM 10,150, Federal Court Judge is entitled to RM 9,780 as his salary, Judge of the Court of Appeal gets RM 9,415, Sabah and Sarawak Judge of High Court of Malaya gets the salary of RM 9,050 and the Judicial Commissioner gets RM 8,250. They are entitled to other allowances such as Housing Allowance, Domestic Help Entertainment, Special Judicial Allowance, etc..
UNITED STATES 34. In United States, there are Federal Courts under the Federal Constitution and each of the 50 States has its own State Court system. The Trial Courts are the lowest Courts in all State systems. These Courts are sub-divided into two levels. They are: Courts of General Jurisdiction to hear and decide numerous types of cases, civil and criminal; below the Courts of General Jurisdiction, there are Courts of Limited Jurisdiction to adjudicate only one specific type of cases. At the apex of the judicial pyramid, in every State is the Court of Last Resort, usually called the Supreme Court.
APPELLATE 35. In the late nineteenth century, the legislatures
COURTS began to create intermediate appellate courts to stem the rising tide of litigation. To-day, 38 States have intermediate Appellate Courts.
FEDERAL COURTS 36. Under the Federal Constitution, the Congress has created chain of Federal Courts. At the base are the Trial Courts, the major ones being the District Courts. The congress has divided the United States and its territories into 94 federal judicial districts. At the middle level are the Courts of Appeals. At the apex is the Supreme Court.
Federal Judicial 37. The Congress has also established 13 Federal
Circuits Judicial Circuits and in each Circuit, there is a Court of Appeals, officially designated as the United States Court of Appeals for that Circuit.
Supreme Court 38. The Supreme Court of the United States is at the apex of the federal judicial pyramid.
Judicial Compensation 39. The Federal Judges receive judicial compensation,
for Federal Judges which is prevailing as on 15 July 1996 as follows:
Chief Justice of the Supreme Court gets $ 171,500 per annum; Associate Justice is entitled to $ 164,100 per annum; U.S.Circuit Courts of Appeals Judge is paid $ 141,700 per annum and the remuneration of U.S. District Judge is $ 133,600 per annum.
States 40. Information of all 50 States is indicated below:
Salaries of Associate Justices of the highest Courts range from $ 68,874 to $ 132,250; Average $ 99,038; median $ 97,148.
Salaries of Judges of intermediate Appellate Courts range from $ 77,856 to $ 124,200; Average $ 97,427; Median $ 94,355.
Salaries of general jurisdiction trial Courts $ 67,513 to 115,000; Average $ 88,284; Median $ 86,533.
PAKISTAN 41. The Constitution of the Islamic Republic of
Supreme Court of Pakistan provides for the establishment of the Supreme
Pakistan Court of Pakistan with Chief Justice and other Judges. They hold office till they attain the age of 65 years. It also provides for the establishment of High Courts in each of the four Provinces, namely, Punjab, Sindh, NWFP and Balochistan.
Shariat and 42. The Constitution also provides for the
Other Courts establishment of Shariat Court and other Civil Courts and Criminal Courts.
Ombudsman 43. The institution of Ombudsman was established under the Wafaqi Mohtasib (Ombudsman) Order, 1983, to ensure that no wrong or injustice is done to the citizens.
Salaries 44. The Chief Justice of Pakistan is entitled to Rs.20,250/- p.m. with tax-free Superior Judicial Office Monthly Allowance of Rs.3,600/- and tax-free Cost of Living Allowance of Rs.1,417/- p.m. The Judges of Supreme Court are entitled to Rs.19,170/- p.m. besides tax-free Superior Judicial Office Monthly Allowance of Rs.3,500/- and Cost of Living Allowance of Rs.1,341/- p.m. The Chief Justice of the High Court is entitled to Rs.18,900/- p.m. with tax-free Superior Judicial Office Monthly Allowance of Rs.3,500/- and Cost of Living Allowance of Rs.1,323/-. The Judges of the High Court are paid Rs.17,100/- p.m. with tax-free Superior Judicial Office Monthly Allowance of Rs.3,000/- and Cost of Living Allowance of Rs.1,197/- p.m.
The pay scale of Civil Judge is Rs.3880-290-6780; Senior Civil Judge Rs.5085-366-8745; Additional District and Sessions Judge Rs.7750-385-11600 and District & Sessions Judge is Rs.9195- 440-13595.
4. THE TRIAL JUDGE IS REALLY "ON TRIAL"
Qualities of a 45. It is necessary to have regard to some of the
Trial Judge universally accepted qualities required of a Trial Judge. He ought to be neutral and detached. He must have manifold personality consisting of among others, independence, courtesy, patience, dignity, open mindedness, impartiality, thoroughness and decisiveness.
Quest for Truth 46. In the quest for truth, it is, therefore, necessary for him to be patient, dignified and courteous to litigants, witnesses, lawyers and others. The Judge has to guard himself against trickery and cunning to defeat the ends of justice. These qualities are to be acquired by long experience and training.
Judge Battered 47. Trial Judge in adversary system is made to work in charged atmosphere and is constantly under psychological pressure.
The Appellate Court 48. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions to correct the errors.
It is not proper for Appellate Courts while dealing with appeals and revisions to make derogatory and disparaging remarks using intemperate language against lower courts.
The task of Appellate Judge compared to the duties of conducting trial with procedural fairness is not so difficult. The trial judges should be treated with dignity and honour.
The practice of summoning the Trial Judges by the High Courts to admonish them in the open court is nothing but humilating them.
We trust and hope that those Judges would soon discontinue that practice in the interest of maintaining harmony in the judicial fraternity and promoting public confidence in the administration of justice.
Annual Confidential 49. The Commission considers that the procedure
Reports / Self prescribed for writing the confidential report of All India
Assessment Reports Administrative Service is better and more transparent. This procedure has to be adopted by the High Courts for Judicial Officers.
Easy Accessibility 50. Any Judicial Officer with any problem should have easy access not only to the Registrar General of the High Court, but also to the concerned Administrative Judge / Chief Justice, so that the High Court should be ready to apply a healing balm to any feeling of hurt or injury of the Officer.
Judicial Relief 51. Whenever the Judges of the Lower Courts are aggrieved by the decisions taken by the High Court on the administrative side and they approach the High Court for relief on the judicial side by way of writ petitions, such petitions should be expeditiously disposed of.
Scrutiny on the eve 52. The Supreme Court, in the Review Judgment in the
of attaining 58 years All India Judges’ Association Case (1993 (4) SCC 288), has enhanced the age of superannuation to 60 years with a rider of compulsorily retiring such Judicial Officers who are found not fit and eligible at the age of 58 years. Many of the High Courts have incorporated the directions of the Supreme Court in their respective Service Rules.
Our Recommendation 53. We recommend to the High Courts to supersede such Rules and frame a Rule specifying only the age of retirement. (See: RAJAT BARAN ROY AND OTHERS v. STATE OF WEST BENGAL AND OTHERS (1999) 4 SCC 235 at 240).
5. RECHRISTENING SUBORDINATE JUDICIARY
The term 'Subordinate' 54. The Judges of District Courts and Courts
connotes inferiority subordinate thereto are generally called as Subordinate
needs alteration Judicial Service. The word "Subordinate" conveys the state of subordination in the sense of inferiority, status, rank or order which is not keeping in tune with their independence of decision making.
Constitution refers55. The term District Judge under Article 236 has to be
Dist. Courts & Courtsgiven a wide interpretation and the term "judicial service"
Subordinate thereto butcontemplates the service exclusively of Judicial
not to "SubordinatePost in hierarchy headed by District Judge.
Presently classification 56. The Judicial Officers have been classified in
of Judicial Officers different States as belonging to either:
differs in different States
i) Higher Judicial Service and lower Judicial Service;
ii) State Superior Judicial Service and State Judicial Service;
iii) Judicial Service Branch - Senior Branch or Junior Branch;
iv) Judicial Service Grade I, Grade II, Grade III and Grade IV etc.,
Rechristening Judicial 57. The Commission has considered that the term /
Service by prefixing expression of "Judicial Service" covering the 3 cadres
the name of the State viz., District Judge, Civil Judge (Senior Division) and
Civil Judge (Junior Division) should be "judicial service" prefixed by the name of the concerned State like "Delhi Judicial Service", "Karnataka Judicial Service" and "Maharashtra Judicial Service" etc.,
Appropriate 58. The Commission is of the view that classifying
nomenclature of Civil Judges as Civil Judge (Sr.Division) and Civil Judge
Civil Judges (Jr.Divison) may not be appropriate as it creates a feeling of inferiority or superiority amongst them. The better terminology for Civil Judge (Junior Division) may be "Civil Judge" and for Civil Judge (Senior Division) as "Senior Civil Judge". The High Courts, State Governments/UTs. Administrations to make necessary alteration in this regard in their enactment, rules, regulations, circulars/notifications etc.,
6. EQUATION OF POSTS OF CHIEF METROPOLITAN
MAGISTRATES (CMM) AND CHIEF JUDICIAL
Cr.P.C.-1898 – 59. Under the Criminal Procedure Code, 1898, Madras,
Chief Presidency Bombay and Calcutta were Presidency Towns each of
Magistrates them had a Chief Presidency Magistrate (CPM) with sufficient number of Presidency Magistrates subordinate to him.
The Chief Presidency Magistrate enjoyed the powers of making Rules, constituting benches etc.,
District Magistrates 60. In the District outside the Presidency towns, the
outside Presidency District Magistrate headed Magistracy and magistrates of
towns First, Second and Third Class were subordinate to him. The District Magistrate was under the control of the State Government.
The District Magistrates exercised both executive and judicial powers.
Article 50 of the 61. Article 50 of the Constitution directed the State to
Constitution and 37th take steps to separate judiciary from the executive in
41st LCRs. public services. The Law Commission of India (LCI) in 37th and 41st Reports recommended separation of judiciary from the executive on an All India basis to achieve uniformity.
1973 Cr.P.C.- 62. The Code of Criminal Procedure 1973 was enacted
separation of to bring about separation of judiciary from the executive
Judiciary by providing judicial magistrates to perform functions essentially judicial in nature and Executive Magistrates to perform police and administrative functions.
Sec.8 Cr.P.C – 63. Under Sec. 8 of the Cr.P.C., 1973 State
Metropolitan areas Government may declare any area in the State with population exceeding one million as Metropolitan area and existing Presidency towns of Bombay, Calcutta, Madras and Ahmedabad were statutorily declared as Metropolitan Cities.
CJMs in Districts 64. Under Sec.12 of Cr.P.C.one of the First Class
under Cr.P.C. 1973 Judicial Magistrates in the Districts will be appointed as Chief Judicial Magistrate having powers similar to those of Chief Metropolitan Magistrate in Metropolitan area including the power of control and jurisdiction over the Magistrates subordinate to him.
Powers of CMM and 65. The Chief Metropolitan Magistrate and Chief
CJM analogous Judicial Magistrate have similar control and jurisdiction over the Magistrates subordinate to them.
Subordination of 66. Sec. 15 of Cr.P.C. 1973 provides that CJM shall be
CMM and CJM subordinate to Sessions Judge. Likewise Sec. 19 provides
to Sessions Judges that CMM and every additional CMM shall be subordinate to Sessions Judge and other Metropolitan Magistrates under the general control of the CMM and subordinate to him.
CPM in definition 67. In the definition of District Judge, in the
of District Judge Government of India Act, 1935 and in Article 236(a) of the Constitution, Chief Presidency Magistrate is a common post found in them.
CMM / CPM was 68. The Chief Presidency Magistrate was in the cadre
in the cadre of District Judge. The CMM and Addl .CMM in Met
of District Judge ropolitan area of Delhi, Bombay, Madras, Hyderabad and Ahmedabad continued in the cadre of District Judge.
CMM equated to 69. The Commission equates the CMM to the cadre of
District Judge District Judge.
CMM on a higher 70. The provisions of Cr.P.C. 1973 indicate that CJM
footing outside the Metropolitan area is counterpart of CMM in the Metropolitan area having similar powers and duties. The CMM in the Metropolitan area functionally and legally stands on a higher footing.
Observation of SC 71. The Supreme Court has in All India Judges’
regarding hierarchy Association case observed that on criminal side, there
of CJM should be a Sessions Judge or Addl. Sessions Judge and below him there should be Chief Judicial Magistrate and Magistrates provided for in the code of Criminal Procedure.
CJM to be equated 72. The Commission accordingly feels more appropriate to include the post of Chief Judicial Magistrate in the cadre of Civil Judge (Senior Division)
7. AMALGAMATION OF MULTIPLE CADRES INTO THREE UNIFORM CADRES
Multiple Cadres 73. In a few States, there are multiple cadres with different designations. Since the Commission proposes to provide uniform pay scales and other emoluments to Judicial Officers, cadrewise, the Commission shall have to bring about uniformity in cadres and designations with uniform jurisdiction.
14th Report of the 74. The Law Commission in its 14th Report has
Law Commission suggested that State Judicial Service should have uniform designations in view of the more or less uniform functions performed by them.
Uniform Designations 75. The Supreme Court, in All India Judges’ Association case approved the observation of the Law Commission holding that "uniform designations and hierarchy with uniform service conditions are unavoidable necessary consequences."
Directions of the 76. Accordingly, the Supreme Court has indicated that
Supreme Court in every State and UT, there should be on civil side three cadres, viz., (i) District Judge / Addl. District Judge; (ii) Civil Judge (Sr. Divn.) and (iii) Civil Judge (Jr. Divn.). On the criminal side, there should be Sessions Judge / Addl. Sessions Judge and below him there should be the Chief Judicial Magistrate and down below, Magistrates as provided for in the Code of Criminal Procedure.
CJM and CMM 77. In Metropolitan cities, the post of CMM should be in the cadre of District Judges. The CJM should be deleted from that cadre and it shall fall to be included in the middle cadre of Civil Judges (Sr. Divn.).
Metropolitan 78. Since the cases in the Metropolitan cities are more
Magistrates complex, sophisticated and sensitive, the Metropolitan Magistrates in such cities should be in the cadre of Civil Judges (Sr. Divn.).
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VOLUME - II
8. RECRUITMENT TO THE CADRE OF CIVIL JUDGES (JR. DIVN.) -CUM- MAGISTRATES FIRST CLASS
Pyramidic Structure 79. Judicial Service in India is a career service with
of Courts pyramidic structure of Courts, namely, Civil Judges (Jr. Divn.)-cum-Magistrates First Class at the lowest rung, Civil Judges (Sr. Divn.) / Chief Judicial Magistrates in the middle and above them, Additional District and Sessions Judges / District and Sessions Judges.
Lack of uniformity 80. Though the Constitution prescribes the
in Recruitment of qualification by way of Bar experience for recruitment of
Civil Judges (Jr.Dn.) District Judges and High Court Judges, no such experience has been provided for recruitment to the cadre of Civil Judges (Jr. Divn.)-cum-Magistrates First Class. Consequently, there was no uniformity in the Recruitment Rules of the States with regard to experience at the Bar. Some States were recruiting fresh law graduates without any experience at the Bar.
Three years Bar 81. The Supreme Court, in the All India Judges’
insisted by Supreme Association case (AIR 1993 SC 2493), did not approve of
Court the different qualifications prescribed by different States and directed the States to " take immediate steps to prescribe three years’ practice as a lawyer as one of the essential qualifications for recruitment as a Judicial Officer at the lowest rung."
Conditions for 82. However, on perusal of the Recruitment Rules of
recruitment differ in all the States, we find that there is no uniformity as to the
States qualification for selection, age limit, additional benefit for higher qualification, authority for selection, zone of selection, procedure for selection and training for the selected candidates.
Recommendations 83. After considering the large number of suggestions
of FNJPC from the High Courts, State Governments, Judicial Officers’ Association and Jurists / eminent persons and keeping in view the judicial dictums of the Apex Court and the 14th & 116th Reports of the Law Commission, the FNJPC makes the following recommendations :
Qualification for (i) It is proper and necessary to reserve the liberty to the
Selection High Court and State Governments, as the case may be, to select either advocates with certain standing at the Bar or outstanding law graduates with aptitude for service, while giving intensive induction training, with the leave of the Hon’ble Supreme Court for necessary modification in the Review judgment in the All India Judges’ Association case.
Age limit for (ii) Bearing in mind the maximum age suggested by the
Recruitment Commission for direct recruitment of District Judges, the maximum age for eligibility for selection to the cadre of Civil Judges (Jr. Divn.) be fixed at 35 years with relaxation by three years for SC / ST candidates.
Additional Benefit for (iii) Three advance increments be given to the selected
Higher Qualification candidates with Post-Graduation in law.
Authority for Selection (iv) In some States, Public Service Commission selects the candidates for recruitment of Judicial Officers. A sitting Judge of the High Court nominated by the Chief Justice would participate in the interview. In some States, the High Court is the authority for selection.
Prevailing Selection (v) In the light of the decisions of the Supreme Court in
Authority may continue D.R. CHOWDHARY Vs. ASHOK KUMAR YADHAV (AIR 1987 SC 454) and the ALL INDIA JUDGES’ ASSOCIATION CASE, the existing selecting authority, whether it is High Court or State Public Service Commission, be allowed to continue.
Zone of Selection (vi) It would be useful to extend the zone of selection to law graduates working in Courts and other allied departments. Hence, the law graduates with sufficient experience in service and within certain age limit, both to be prescribed by the respective High Courts, could be made eligible for selection to the cadre of Civil Judges (Jr. Divn.).
Procedure for Selection (vii) We suggest that written examination followed by viva voce test should be essential for selection of the Civil Judges (Jr. Divn.). However, we emphasise that the written examination should be oriented more to test the candidate’s practical acquaintance with law and procedure with special reference to his ability to draft pleadings, appreciate evidence and write judgments. It is left to the selecting authority to prescribe appropriate marks for the written examination and viva voce test. But, it should be scrupulously observed that the marks allowed for the viva voce test should be less than 1/3rd of the marks prescribed for the written examination. We recommend that the method of ‘Evaluation by Grading System’ be followed.
9. CIVIL JUDGES (SR. DIVN.) – WHETHER IT SHOULD BE MIXED CADRE OR PURELY PROMOTIONAL CADRE
Civil Judges (Sr. Divn.) 84. Generally, the Civil Judge (Sr. Divn.) is a
is mixed cadre only promotional post to Civil Judge (Jr. Divn.). But in the
in two States State of Gujarat, 50% of the cadre posts is ear-marked for promotion and the remaining 50% is filled up by direct recruitment from the practising advocates with not less than 5 years. In Goa, 67% is reserved for promotion and the remaining 33% is filled up by direct recruitment. In these two States, it is a mixed cadre.
Views of High Courts 85. However, these two States and the High Court of Himachal Pradesh and Government of Meghalaya are in favour of having this cadre a mixed one. The High Court of Bombay, though, in favour of this cadre purely as a promotional cadre, prefers an enabling provision to make direct recruitment in exceptional and emergent circumstances.
Recommendation 86. The Commission recommends that the cadre of
of the Commission Civil Judges (Sr. Divn.) should be constituted purely as promotional cadre from that of Civil Judges (Jr. Divn.) with minimum of five years experience.
Mixed cadre 87. Though a mixed cadre generally promotes
diminishes efficiency, it would be frustrating experience for Civil
promotional chances Judge (Jr. Divn.) to await for first promotion for unduly long years and would further diminish the promotional opportunity available to the Civil Judge (Jr. Divn.).
10. DIRECT RECRUITMENT TO THE CADRE OF DISTRICT JUDGES PROFILE, PROBLEMS AND PROGNOSIS
Mixed cadre of Dist. 88. The mixed cadre consisting of promotees and direct
Judges meant for recruits was intended to promote efficiency in the
promoting efficiency, administration of justice. But, it has led to a lot of
grievances of discontentment between the direct recruits and promotees
promotees in the cadre of District Judges..
It is complained that the unreasonable quota reserved and unscientific method followed for direct recruitment of district Judges have practically driven the service Judges to despair and despondency. We can ill-afford to allow such state of affairs to continue in the judiciary.
Method of direct 89. The commission considers that the method of direct
recruitment needs recruitment to the cadre of District Judges requires to be
improvement radically overhauled so as to ensure fairness to promotees as well as to direct recruits.
Necessity of 90. Keeping the Constitutional provisions under Articles
uniformity in 236 and 233 in mind and after examining the Judicial
recruitment Service Rules of the States/UTs and taking into consideration the various and varied views and suggestions of the High Courts, State Governments, Judicial Officers’ Associations and the jurists/eminent persons, we feel that it is proper and necessary for all High Courts to have uniform procedure for recruitment of District Judges. There should be uniformity as to the quota, minimum and maximum age and method of selection.
Direct recruitment 91. We consider that not exceeding 25% of the posts in
not to exceed 25% the cadre of District Judges should be reserved for direct
of the cadre strength recruitment. This percentage of reservation would not jeopardise the interests of the promotees since we have decided to give them certain weightage for fixing the inter-se seniority list, besides providing an opportunity to service Judges to compete for such direct recruitment.
Age between 35 & 45 92. We recommend that the upper age limit for such selection should not be more than 45 years with relaxation of three years for SC and ST candidates and the minimum age should be 35 years.
Procedure - necessity 93. We would like to recommend the following
of written exam and procedure to reduce degrees of subjectivity and
viva voce -qualification arbitrariness & to promote more fairness and objectivity :
for viva voce 1. There shall be written examination followed by viva voce.
2. Written examination must carry 200 marks on the subject / subjects prescribed by the High Court. The paper should be of a duration of minimum two hours.
3. The cut off marks in the written examination should be 60% or corresponding grade for general candidates and 50% or corresponding grade for SC / ST candidates. Those who have secured the marks above the cut-off marks shall be called for viva voce test.
4. The viva voce test should be in a thorough and scientific manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva voce test shall carry 50 marks. There shall be no cut-off marks in viva voce test.
5. The merit list will be prepared on the basis of marks / grades obtained both in the written examination and viva voce.
Evaluation through 94. Selection should be transparent. One technique,
grades which is now widely used in this regard, is evaluation through grades instead of numerical marks. The Commission recommends this technique for judicial selection, whether it is by written examination or viva voce.
Probation and 95. We suggest that the direct recruits to the cadre of
Officiation District Judges shall be on probation for a period of two years and all promotees shall be on officiating basis for a similar period of two years, with a provision for extending the period of probation by the appointing authority for the reasons to be recorded in writing for such period not exceeding twice the prescribed period of probation or officiation, as the case may be.
Seniority 96. An Officer appointed in accordance with the Rules of Recruitment on regular basis shall be made senior to persons appointed temporarily.
Training 97. The High Court may from time to time prescribe the period and the course of training for such Officers including periodical training by way of refresher courses.
Compulsory 98. A committee consisting of three Senior Judges
Retirement headed by the Chief Justice of the High Court shall undertake review periodically once in every 5 years commencing at the age of 50, 55 and 60 years for promoting efficiency, and integrity of the members of the Service.
Selection Grade / 99. To bring about uniformity in giving Selection
Supertime Scale Grade / Super-time scale, the Commission recommends
District Judges minimum 25% of the posts in the cadre of District Judge in every States / UTs shall carry Selection Grade on the basis of merit cum seniority to those having minimum experience of 5 years in the cadre.
Minimum 10% of the cadre strength in the District Judge cadre be given to Super-time Scale to those having put in minimum number of 3 years in the Selection Grade.
11. WHETHER THE LOWER JUDICIAL SERVICE PERSONNEL TO BE MADE ELIGIBLE FOR DIRECT RECRUITMENT
TO THE POST OF THE DISTRICT JUDGES ?
Denial of opportunity 100. A Judicial Officer in service as per Article 233(2)
as per constitution cannot be considered for direct recruitment to the post of District Judge. Denial of such an opportunity as provided in other administrative services is resented.
Views of High Courts 101. Majority of the High Courts and Service
and Service Associations Associations are in favour of such an opportunity for the reasons that it would promote efficiency, improve discipline, remove frustration and make the officers work more efficiently, diligently and sincerely by adding lustre to their career.
Contrary views 102. The argument to the contrary that such an
not sound opportuniand vivaty would create indiscipline, heart-burn and jealousy amongst Judicial Officers and may lead to frustration amongst seniors who are not selected is ununderstandable. The contention that those who have got promotional channel should make a move only through such channel is not sound.
Service Judges with 103. The Commission finds it reasonable and necessary
certain conditions to provide eligibility for Service Judges aged between 35
may be made eligible and 45 with seven years of standing as applicable to advocates for direct recruitment of District Judges.
Suggested amendment 104. The suggested amendment of Clause 2 of Article
to the Constitution 233 reads as under :-
"A person shall be eligible to be appointed directly as District Judge if he has been for not less than seven years an Advocate or held judicial office in the territory of India and is recommended by the High Court for appointment."
Authorities to initiate 105. Central Government, High Courts, State
action for amendment Governments / UTs to take action for amending Article 233(2).
12. PRINCIPLES RELATING TO INTER-SE SENIORITY BETWEEN DIRECT RECRUITS AND PROMOTEES
IN THE CADRE OF DISTRICT JUDGES
Seniority List – 106. The ranking of an Officer in the seniority list is an
Its importance index to attain one’s reasonable aspirations and expectations. The fluctuating ranking would seriously tell upon the nerves of the affected Officer.
ILL effects due to 107. In most of the States, the inter-se ranking in the
controversies in seniority list of direct recruits and promotees in the cadre
seniority list of District Judges has always been the subject matter of controversy, bad blood with acrimonious debate between the two classes. It has even affected their performance in the administration of justice.
Causes identified & 108. On examining all the aspects including the rules for
Remedial measures fixation of inter-se seniority between the direct recruits
suggested vis-a-vis promotees, we have found that the existing recruitment rules and seniority rules in most of the States are the primary cause of the problems; and the second is the delay in making direct recruitment from the Bar or making promotions of the service personnel in excess of the quota reserved for them. Uniform recruitment rules and seniority rules in all States / UTs alone would eliminate the discontentment and litigation amongst the Judicial Officers.
Draft rules 109. Rules for direct recruitment to the cadre of District Judges and the procedure for selection are set out in the Chapter "Direct Recruitment to the Cadre of District Judges – Profile, Problems and Prognosis" and also in the Draft Judicial Service Rules.
Recommendation 110. We recommend that the recruitment shall take place biennially and the selection will be made by the Full Court or by 5 senior-most Judges of the High Court.
Seniority 111. Seniority of Officers appointed by direct recruitment or promotion shall be determined according to the dates on which they report for duty. In case more than one Officer is promoted to the cadre at the same time, their inter-se seniority shall be determined by their inter-se seniority in the lower cadre. With regard to direct recruits, the inter-se seniority is determined on the basis of their ranking in the select list.
Weightage for 112. Since in all the States, the promotees are much
promotees older in age than the direct recruits, the promotees be given a weightage of one year for every 5 years of judicial service rendered by them subject to a maximum of 3 years.
13. JUDICIAL EDUCATION & TRAINING
Status, Needs, 113. The Supreme Court by judgment (AIR 1992 SC 165)
Organisation in the All India Judges’ Association case emphasised the
& Strategies need for continuing education and training at all levels of the judiciary and asked the High Courts to initiate action. The matter was earlier considered (1986) by the Law Commission of India, which in its 117th Report gave several concrete recommendations in this regard.
Changing role of judges 114. The changing role and function of judges in contemporary times necessitate organized and systematic training not only in law and skills but also in the management of an expanding sphere of litigation and development. In fact, with changed perceptions of functions, judges are to be equipped for the tasks and challenges.
Role of judges in 115. Projecting the role of judges in the next
the next millennium millennium, it is possible to anticipate a variety of functions and operational styles and to identify the problems involved in transition. It is the function of a good training programme to respond to these futuristic needs and impart to the judicial officers the competence to be able to respond to them in a manner befitting his function as a judge.
A situational analysis of the subordinate judiciary at the turn of the century in the context of training needs raises several issues in which action is needed from the Governments at both Central and State levels. The number of judges is inadequate to handle the explosion in litigation. The infrastructure available is woefully inadequate. There is no worthwhile training available to the judges. Management of the judicial system in general and the court in particular is not tuned to the needs at present, which in turn complicates the task of judicial officers.
Around the world, in the last twenty years and more, judicial education and training have assumed great importance in governance. Several institutional structures of varying sizes and scope have come up giving a great deal of support in judicial administration through training, research and support services. Even in smaller countries in the Commonwealth, the progress in this regard has been impressive. Thanks to such worldwide efforts, there is today a lot of expertise available in mounting training programmes according to goals and needs.
Crash training 116. Many High Courts in India do have training
Programme to Trainers schemes, both at the time of induction and during service. But they are no better than ad hoc exercises not very scientifically organized in terms of individual needs and organizational goals. A quick look at the subjects taught in training, tends to give the impression that it is mainly repetition of subjects studied in the law college, of course, with some emphasis on their practical relevance. There are now some initiatives where the scope and method of training are being re-visited in the light of comparative experiences and perceived problems. But the lack of good training institutions, non-availability of trained trainers and difficulties in getting judicial officers for training for extended periods have the impact of such training in judicial performance and productivity. There is need for standardization of curriculum and training methods. A crash programme of training the trainers is also called for. A co-ordinated effort to upgrade institutions of training is the need of the hour.
Survey results 117. It is interesting to look at the perceptions of judges themselves towards training. A survey of over 100 judges and judges’ associations has revealing information about their understanding of training goals, methods currently in vogue, their inadequacies in building capacities etc. All of them uniformly support the need for good training programmes on a continuing basis through professionally developed institutions/academies. Some of them are critical of the recruitment process itself, which does not guarantee the minimum required competence on which training can be supplemented. There are interesting suggestions to make the training cater to the needs of judges with differing competencies. The role of language and communication is another serious problem, which requires special attention. There is need to develop seriousness on training both on the part of trainers and trainees.
Organizationally, it was the opinion of respondents that instead of having too many training academies with poor infrastructure, it would be wise to go for a limited number of well-equipped regional academies linked with a national academy.
Nature and Scope of 118. On the nature and scope of programmes of training
Training Programmes there have been many constructive suggestions from respondents who wanted it to be available round the year at the convenience of judicial officers. Distance education techniques and courses, which can be completed in instalments, were recommended. However, clear goals and specific objects for each part of every course must be stipulated so that participants could determine their utility and assess its extent of achievement.
Dearth of 119. The inability of available trainers to inspire and
Professional Trainers train professionally was uniformly observed as a handicap. This cannot be compensated by invited faculty or ad-hoc arrangements. As such, training the trainers should assume priority. The National Judicial Academy is to undertake this job under a well-prepared futuristic plan. Nothing short of highest quality in organization and delivery can justify the money and time spent. Select Universities may be advised to introduce degrees or diplomas in court management and judicial administration.
Curriculum content 120. There was large unanimity on the curriculum
of Foundation Courses content of Foundation (Induction) courses to include knowledge of law and judicial process, the range of skills in judicial functions, general understanding of society and governance and the imperatives of judicial ethics and discipline. A three-step scheme of training spread over an year with field placement (3 months) put in between a six month initial and a three-month concluding segments in the academies received large support. Coping with needs of individual trainees is important. Emphasis on computer literacy, legal research and writing as well as systems of self-evaluation were recommended. In short, the survey helped to pool a wealth of ideas on enriching and standardizing need-based quality systems of training. Such methods should be employed frequently for mounting meaningful programmes of continuing education also.
A model draft curriculum was evolved on the basis of the survey of existing practices, perceived needs and opinions of judges involved. Six major themes were identified for induction training of fresh recruits in the judicial academies apart from field placement. The six themes were comprehended in about fifteen subjects (courses) each with varying credits (weightages in the total course). The objects to be aimed at in imparting training in each of the themes/subjects were spelt out. They are to be further clarified by the trainers in the respective academies when the syllabi of the courses/subjects are written out and the teaching materials are assembled. The teachings of civil and criminal procedures have to assume a functional emphasis for which the teaching methods have to be participatory and inter-active rather than lectures. The teaching of skills has to necessarily employ a range of clinical methods, which are now available in legal pedagogy. In fact, a revolutionary change in judicial training is required not only in terms of curriculum planning but also in training methods. This requires a regular cadre of trained trainers to replace the existing practice of deputing judges from regular service.
Continuing Education 121. The nature and scope of in-service training (continuing education) are to be organized under totally different principles and methods. These are to be organized only on the basis of a study of training needs to be undertaken periodically by the courts or the academies. On the basis of such findings, the courses can assume short-duration sensitization or orientation programmes on week-ends or can be week-long or fortnight-long residential courses around identified problems or issues for upgradation of knowledge / skills. The writing out of objects in clear terms on the basis of perceived needs and the expected outcomes in terms of improved judicial roles are necessary in the preparation of continuing education programmes. These have to be State-specific, subject-specific and cadre-specific. The experiences and practices in the judicial academies of some of the developed countries will be of great benefit in this regard. Even exchanges and twinning arrangements with select academies abroad would be desirable.
Training designs 122. Sample training designs need to be evolved and circulated to elicit comments of prospective consumers of the continuing education programmes. Every such programme has to be evaluated in terms of scope, content, methods and outcomes both by the Faculty and the Participants.
Role of Judicial 123. It is important that judicial academies also
academies undertake research and training tasks relating to upgradation of skills of non-judicial personnel in the system.
Finally, in terms of organization of the Academies for the multifarious tasks, there has to be re-thinking on several aspects. There is no uniformity or sound management principle in the existing models. Every judge can be a trainer as well, is open to challenge. There is need to adopt basic principles of higher education from the University system and blend them with the requirements of the judiciary. Without academic autonomy, professionalism cannot be maintained. Without a core faculty of educators, no training academy can successfully grow to fulfil its long-term goals. The structure should be such as to be flexible enough to grow according to academic needs and to co-ordinate according to management principles. The net-work of National Judicial Academy with State/regional academies should be effective enough to put in place a scientific scheme of training throughout the country for the entire judiciary to meet the challenges ahead.
* * * * *
VOLUME - III
14. PRINCIPLES GOVERNING THE PAY STRUCTURE OF THE SUBORDINATE JUDICIARY
Parity of Judicial 124. As per the Supreme Court Judgment in All India
Service Judges’ Association v. Union of India and others (AIR 1993 SC 2493), the parity is between the Political Executive, the Legislators and the Judges and not between the Judges and the Administrative Executive. The Society has a stake in ensuring the independence of the Judiciary. To keep the Judges in want of essential requirements is to impede them in the proper discharge of their duties and to impair and to whittle away justice itself. In view of observations of the Supreme Court, the need to evolve the principles which should govern the pay structure of Subordinate Judicial Officers has become imperative.
General Principles 125. Generally, the pay structures are based on decisions about internal relativities and external comparison. The pay progression policy must also be taken into account. All people do not work for money alone. Money deals with only one aspect of a complex problem. Tangible and Intangible factors like personal recognition and career development prospects, aptitudes, etc., also matter.
Commissions and 126. The Royal (Islington) Commission formulated the
Committees for principles which stated that Government should pay so
pay determination much to their employees as is necessary to obtain recruits of right stamp and maintain them in such degree of comfort and dignity as will shield them from temptation and keep them efficient for the term of their office. Royal Priestly Commission observed that Civil Service Pay should be fair both to the staff and to the Community as a whole. Article 11 of the basic principle of the Independence of the Judiciary adopted by the Seventh United Nations Congress provides: " The term of office of Judges, their independence, security, adequate remuneration, conditions of service, pensions and age of retirement should be adequately secured by law." In United Nations Commission on Human Rights provides: " The salaries and pension of judges shall be adequate, commensurate with the status, dignity and responsibility of their office, and shall be periodically reviewed to overcome or minimise the effect of inflation."
Central Pay 127. The first CPC recommended the principle that, as a
Commission matter of social policy, the lowest paid salary should not fall below the ‘living wage’ (meaning thereby the minimum wage) and top salaries should also as a matter of social policy be kept down to the extent possible without jeopardising the essential requirements of recruitment and efficiency. The second CPC stated that, after determining the minimum and maximum salaries on a combination of both economic and social considerations, the intermediate salaries should be fixed on sound and equitable relativities. The third CPC proceeded on the premise, inter-alia, that the pay structure should satisfy the tests of ‘inclusiveness’ ‘comprehensibility’ and ‘adequacy’ and should at the same time, be fairly simple and rational. The fourth CPC was guided by many factors for determining the pay structure like social status, public employment, the authority of the post, security of tenure, welfare measures of the Govt. to its employees, motivation for employees, efficient performance and comparability.
Fifth Central 128. This Commission emphasised on professionalism
Pay Commission in service and to have less people with better payment. The principle ‘equal pay for equal work’, ‘fair compensation’, ‘productivity’, ‘model employer’ were kept in view. Other criteria like intrinsic value of the job, justice to lowest and highest paid functionaries and full compensation for entering to the public service were also kept in view.
Factors for 129. For purpose of determining salary structure, factors
determining salary of the market forces of demand and supply, cost of living,
structure of Industrial ability to pay, the prevailing pay structure in the society,
workers and Govt. equal pay for equal work, the role and image of
employees organisation and the expected performance of the employees are taken into consideration.
Original Civil 130. The Commission considers that it is necessary to
Jurisdiction of abolish the original civil jurisdiction of the High Court to
High Courts to be bring about complete uniformity of jurisdiction of the
abolished Civil Courts. In fact, 12 Commissions and Committees in the past between 1924 and 1990 have recommended the same.
Pivotal role of 131. In a large number of cases, the Subordinate Courts
Subordinate Judiciary are the final Courts since only a few judgments stand appealed against.
Essential 132. Impartiality and Independence are the two
characteristics of a indispensable qualifications of a Judge apart from
Judicial Officer Courtesy, patience, dignity, open mindedness, thoroughness and decisiveness. Judge shall maintain individual independence and also institutional independence within the financial security provided to him. He cannot also engage himself in any avocation or other occupation to supplement his income.
Special Qualification 133. The qualification for recruitment to the initial cadre
required for of judicial service is a degree in law followed by one year
recruitment Apprentice Course for enrolling as an advocate and thereafter a certain number of years of practice in the Bar. In the result, a person enters Judicial Service at a time when his contemporaries who have entered the executive service of the Government with a degree or post-graduate qualification have already acquired a certain seniority in the service and have come to draw a higher salary. Having started with a later date, the Judicial Officer has a shorter span of service than the Executive Officer, which affects his career, his pension and other retirement benefits.
Onerous duties and 134. We have adopted the common law with adversary
responsibilities system where the lawyers of two sides battle it out to win the case for their client. The judge has to determine the admissibility of the evidence. He is a Judge of both the law and the facts. He has to effectively control the Court and conduct the proceeding. He has to find out the nugget of truth from the conflicting versions. When one party loses, there would be deep strain, mistrust and hostility. Particularly, now-a-days, several criminal cases are complicated involving dozens of issues. Judges work in a charged atmosphere.
Personal sacrifice of 135. A Judge shall not have social relationship, extra
a Judge in terms of judicial activity which may conflict with the judicial
loneliness and general obligations. He shall not seek membership in club,
withdrawal from the Society, Company or any organisation. These are the
community affairs judicial ethics, which are only illustrative. The Commission has also taken into consideration all aspects, which are related in designing the remuneration system, which must serve as a key factor for recruitment, retention and motivation of Judges to ensure proper administration of justice.
15. EVOLUTION OF NEW PAY SCALES
General Background 136. Hitherto the salary of the judicial officers was linked with that of the administrative executive. Such a linkage was a historical accident. In the pre-independence era, there was no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. However, the continuation of such a linkage even after independence wherein the Constitution provides for separation of power among its three branches - viz., legislature, executive and judiciary would be anachronistic and inconsistent.
Consultancy Study 137. The Commission engaged the services of a professional body viz., Indian Institute of Public Administration (IIPA), New Delhi as the Consultant to study and suggest a rational pay structure, after evolving certain broad principles to determine such a pay structure exclusively for the judicial officers. The study made by IIPA indicates that ‘nature of work’ followed by ‘quantum of work’ and ‘morale of the judicial officers’ are the most important factors to determine appropriate pay structure to judicial officers.
Existing Pay Scales 138. There is no uniformity in pay scales among various
in States / UTs. States. The judicial officers performing the same or similar nature of work are remunerated differently.
Master Pay Scale 139. The Commission has preferred telescopic pay scales. The advantages of a ‘ Master Pay Scale’ are manifold. The distinct feature of a ‘Master Pay Scale’ is that officers who have reached a particular stage of pay get the same increment, irrespective of the pay scale attached to their posts and as such different segments of the ‘Master Pay Scale’ will form the different pay scales recommended by the Commission. The ‘Master Pay Scale’ evolved by the Commission is as follows: Rs.9000-250-10750-300-13150-350-15950-400-19150-450-21850-500-24850.
Increment Rates 140. Increment is a periodical increase given to an officer. The rate of increment in any scale would depend on its minimum, maximum and the time span. Grant of increment, as a percentage of basic pay is operationally inconvenient. Therefore, the Commission has adopted the system of fixed-quantum increments while evolving the ‘Master Pay Scale. The Commission has adopted six (6) incremental rates viz., Rs.250, Rs.300, Rs.350, Rs.400, Rs.450, & Rs.500 per annum and we feel that these rates would ideally suit our purpose.
Number of Pay Scales 141. Broadly speaking the number of pay scales should be equal to the number of clearly identifiable levels of responsibilities. Further the scope for promotional avenues must also be taken into consideration. Elsewhere the Commission has contemplated granting ACP to judicial officers in the cadre of Civil Judges (Jr. Divn.) and Civil Judges (Sr. Divn.). In addition to this the Commission has proposed ‘Selection Grade’ and ‘Supertime Scale’ to District Judges on functional basis. Having considered all the relevant factors the Commission has recommended the following pay scales:
i) Civil Judges Rs.9000-250-10750-300- (Jr. Divn.) 13150-350-14550
ii) Civil Judges Rs.10750-300-13150-350-14900 (Jr. Divn.)
(I Stage ACP Scale)
iii) Civil Judge Rs.12850-300-13150-350-15950- (Sr. Divn.) 400-17550
(II Stage ACP Scale for
Civil Judge (Jr. Divn.)
iv) Civil Judge Rs.14200-350-15950-400-18350 (Sr. Divn.) (I Stage ACP Scale)
v) District Judges Rs.16750-400-19150-450- Entry Level 20500 + (II Stage ACP for Civil Judges (Sr.Divn.)
vi) District Judges Rs.18750-400-19150-450- (Selection Grade) 21850-500-22850
vii) District Judges Rs.22850-500-24850. (Supertime Scale)
Ratio between the 142. While fixing the maximum of the ‘Master Pay Scale’, we
salaries of Judicial have been constrained of the ‘vertical cap’ of the salaries
Officers and High of the High Court Judges. In other words, District Judges
Court Judges cannot get more salary than the High Court Judges whose salary is statutorily fixed. However, while evolving the Master Pay Scale, we have established some ratio between the salary of the Judicial Officers and High Court Judges and accordingly, we recommend that as and when the salary of the High Court Judges are raised, even the salary of the Judicial Officers shall be increased by maintaining the ratio we have established.
Efficiency Bar 143. Objective assessment of efficiency is operationally difficult. The system of ‘ Efficiency Bar’ which was in vogue earlier has not served the purpose which it was intended to serve. The judgment on efficiency of an individual officer is likely to be based on personal prejudices and predilections. This instrument has been used to harass an honest and upright officer who does not toe the line of his superior. Considering all the relevant aspects, the Commission has not provided for ‘efficiency bar’ in any pay scale. The existing supervisory power of the High Court is so vast that it could be effectively utilised by other means for the purpose of maintenance and improvement of efficiency.
Principles of 144. It is recommended that pay fixation will be on the
Pay Fixation basis of 10% enhancement over the basic pay as on 1.1.96. It has also been recommended that the DA be merged upto 1.1.96 i.e. upto 1510 AICPI points. Further the entire interim relief component shall also be subsumed in the new scale.
Effective Date 145. The new scales of pay recommended by the Commission shall be deemed to have come into force w.e.f. 1.1.96. However, the monetary benefit shall be payable w.e.f. 1.7.96. Other allowances which the Commission has recommended shall be given effect to from 1.11.99.
Financial Implications 146. The available information shows that as at present there are 12,771 posts on regular pay scales. The total broad estimate of the impact of introduction of new scales will be of the order or Rs.95.71 crores for a year.
16. THE ADMINISTRATION OF JUSTICE IN THE STATES SHOULD BE JOINT RESPONSIBILITY OF
CENTRE AND THE STATES
Concurrent list 147. Administration of Justice, Constitution and Organisation of all Courts, except the Supreme Court and High Courts has been brought to the concurrent list in the Entry 11A. Articles 233 to 237 of the Constitution provide for the appointment of the District Judges and the Judges subordinate to them and the control over Subordinate Courts. The State Government has no power either in selection, appointment, posting, promotion, transfer, grant of leave or any one of their service conditions except the appointment which is made in the name of the Governor in consultation with the High Court. However, the Government is liable to meet all the expenditure of the Subordinate Judiciary including the infrastructure of the Courts, quarters for Judicial Officers and their emoluments. Similar is the position with regard to staff of the Courts.
Financial inability 148. Every State Government is pleading inability to
of State Governments meet the increasing financial burden of the Judicial administration.
Infrastructure as 149. The Central Government recently has included the
planned item infrastructure of Courts as "planned item" to enable them to provide half of the expenditure required for the purpose and the States sharing the other half of the expenditure.
No substantial 150. On ascertaining the views of the High Courts, it is
improvement even now clear that Court buildings, almost everywhere, are in a bad shape. They are poorly maintained with rickety furniture. Even after the infrastructure of the Courts has been made a planned item, things have not substantially improved barring in one or two States. Some of the representatives of the State Governments have pleaded that the Centre should equally share expenditure on Subordinate Courts.
One Judiciary for 151. We find considerable force in their submissions.
both Central and We have adopted one set of Courts for enforcing the State
State Laws Laws as well as the Central Laws. The Judicial Officers in every State are enforcing about 340 Central Acts.
The expenditure on Judiciary in our Country in terms of GNP is relatively low. It is not more than 0.2 per cent.
Our Recommendations 152. In the premise and in the interest of strengthening and promoting the independence of the justice delivery system, the Commission has recommended that :
(1) Each State must prepare a 5-year plan to improve the existing infrastructure of courts, construction of new courts, providing furniture, fixtures, library etc., to all Courts and for construction of quarters for all Judicial Officers.
(2) The Central Government must in every State, share half of the annual expenditure on Subordinate Courts and quarters for Judicial Officers. This is without prejudice to the rights and privileges of the North Eastern States and the State of Sikkim, wherein about 90 to 92% of the expenditure of States is met by the Central Government under the provision of "Special Category of States".
17. ASSURED CAREER PROGRESSION (ACP) SCHEME
AND FUNCTIONAL SCALES
Pleadings of Service 153. Except the High Courts of Delhi, Gujarat, Kerala
Associations and Madhya Pradesh, all other High Courts have favoured introduction of ‘Career Progression Time Bound Pay Scales’ to Judicial Officers to prevent stagnation due to absence of promotional avenues. However, the above four High Courts have not favoured such a scheme because of their apprehension that such benefits would generally tend to develop complacency in the officers.
Concept of Career 154. All the Service Associations have pleaded for time
Progression bound scales at an interval of 5 years each in all cadres.
Our Recommendation- 155. The Commission has noted the problem of lack of
ACP for Civil promotional avenues. Therefore, some form of ‘in-situ’
Judge (Jr.) arrangements on a time-bound basis is necessary. It is not on a functional basis. The scheme is intended to provide Pay progression to all judicial officers within a time-bound schedule.
The Civil Judge (Jr. Divn.) will get the first ACP after completion of 5 years of service. Again at the end of 10th year of service he is eligible to get the second ACP and the pay scale recommended is the same as that of the pay scale of Civil Judge (Sr. Divn.).
ACP for Civil 156. The Civil Judge (Sr. Divn.) is also brought under
Judge (Sr.) the ambit of ACP. The Civil Judge (Sr. Divn.) will get his first ACP after completion of 5 years of service in the cadre and be eligible to get second ACP after completion of 10 years of service in the cadre. The pay scale assigned for the second ACP is the same as that of the pay scale of DJs (initial level).
ACP not automatic 157. These ACPs are not automatic but subject to appraisal of their work and performance by High Court.
Functional promotions 158. To the cadre of District Judges, the Commission has proposed promotions on a ‘functional basis’ in the form of ‘Selection Grade’ and ‘Super Time Scale’ based on merit-cum-seniority basis.
18. DEARNESS ALLOWANCE – A PERSPECTIVE
Linkage of DA to 159. Dearness Allowance (DA) is an allowance paid to
AICPI employees to compensate them for erosion of real income / wage due to inflation. The very concept of DA is a post-Second World War phenomenon. Payment of DA is linked to Consumer Price Index Number.
Effects of tapering 160. Tapering neutralisation of DA would seriously
neutralisation of DA disturb the relativity of pay scales. The Karnataka 4th State Pay Commission suggested to formulate a more objective scheme of neutralisation based on fairness.
Views of 5th CPC 161. The 5th CPC also noted that the graduated scale of DA neutralisation is anachronistic and has operated unjustly against the middle and senior management cadres in Government. Accordingly the 5th CPC recommended that inflation neutralisation be made uniform at 100% at all levels. Government of India and most of the State Governments have accepted and implemented this principle.
Our Recommendation 162. This Commission recommends that the same DA formula as being adopted at centre be followed even in the case of Judicial Officers of all States / UTs.
19. ALLOWANCES, AMENITIES AND ADVANCES
Electricity & 163. With regard to electricity and water consumed by
Water charges the Judicial Officers in their residence, the Commission has recommended that 50% of charges of electricity and water be borne by the State Government.
Home Orderly 164. Payment of Home Orderly allowance in lieu of Home Orderly be paid to every Judicial Officer. The attendant would be recruited directly by the Officer and would not enjoy the status of a Govt. employee, but the fixed salary of Rs.2500/- per month for such attendants would be borne by the Government.
Newspaper Allowance 165. The Commission has suggested that all Judicial Officers be supplied with two (2) Newspapers and one Magazine at State cost.
C.C.A. 166. With regard to CCA, each State Govt. has adopted classification of cities based on population criteria best suited to their local conditions. Therefore, the Commission has suggested that CCA at the same rates payable to respective State Government employees be also paid to Judicial Officers.
Robe Allowance 167. Judicial Officers cannot afford to be shabbily dressed whether on the Dais or off the Dais. He is a centre of gravity in the court room and therefore it is necessary that he should be decently dressed. Prescribed uniform for Judicial Officers has been mandatory. However, this uniform is pretty costly. Therefore the Commission has recommended that an amount of Rs.5,000/- be paid to every Judicial Officer as Robe Allowance once in five (5) years. No ‘Kit maintenance allowance’ or ‘dress maintenance allowance’ is suggested.
Conveyance 168. The existing scheme of providing pool car to Judicial officers is not working satisfactorily. There are inherent weaknesses causing lot of inconvenience. Therefore, the Commission has suggested several measures:
i) a) the existing system of providing independent vehicles to every Principal DJ/CJM/CMM be continued.
b) The Principal Judge of City Civil Court in every city where City Civil Court has been constituted should be provided with an independent vehicle.
c) The Chief Judges of Small Causes Courts, who are in the cadre of District Judges, should be provided with independent vehicles.
d) The First Additional District Judges and First Additional / Principal City Civil Court Judge should also be provided with an independent vehicle.
ii) Instead of one pool car for five officers, one pool car for a maximum of four officers be provided.
iii) Judicial Officers owning a car, petrol / diesel or equivalent price thereof at the rate of 75 litres in A & A1 cities and 50 litres in Dist. Centres is to be given, with the option to the officer to avail of the pool vehicle facility or this benefit.
iv) Judicial Officers be given liberal soft loans with nominal interest upto a ceiling of Rs.2.5 lakhs.
v) As the number of officers availing the pool vehicle facility declines, there should be proportionate decrease in the number of pool vehicles and a reduction in the cadre of car drivers.
Sumptuary Allowance 169. Judicial Officers do receive visitors at home and these visitors are not from public., but members of the Bar, Judicial fraternity and staff of the courts visit every Judicial Officer very frequently. It is our tradition to offer courtesy to visitors in the form of coffee / tea along with some eatables. Therefore there is a need to provide sumptuary allowance to all the Judicial Officers. Sumptuary Allowance at the rate of Rs.1000/-, Rs.750/- and Rs.500/- per month be given to District Judges, Civil Judges (Sr. Division) and Civil Judges (Jr. Divn.) respectively.
Hill Allowance 170. Normally, employees working in hill stations situated at an altitude of 1000 metres or more above the ‘Mean Sea Level’ would be eligible for entitlement of Hill Allowance. At present, the States of Jammu & Kashmir, Karnataka, Madhya Pradesh, Tamil Nadu, Uttar Pradesh and West Bengal have granted the Hill Allowance to their employees including the Judicial Officers. The existing pattern for payment of Hill Allowance to Judicial Officers working in hill stations has to be continued.
Risk Allowance 171. It is not proper for Judicial Officers to entertain any kind of fear of their life or limb. If they entertain such fear, they will not be able to dispense justice impartially and courageously. Therefore, the Commission has not recommended any risk allowance. The Commission is also not in favour of providing a separate insurance coverage to Judicial officers.
Medical facilities 172. The right to health with medical care has been recognised as a fundamental right guaranteed under the Constitution.
At present, the medical benefits available to civil servants have been extended to the Judicial Officers. They are governed by the respective rules of the Government, which vary from State to State.
All the Service Associations have reported that generally they do not get timely care and attention from the Authorised Medical Attendants and they are forced to seek the services of private doctors. It is also complained that in most of the cases, the required medicines though admissible under rules, are not provided and that the reimbursement of Medical expenditure is made after a long time by cumbersome procedure. Therefore, it is strongly urged to simplify and liberalise the medical benefit scheme. Taking various aspects into consideration, the Commission has made the following recommendations :
i) The State Government shall notify the list of Hospitals / Dispensaries, Government and Private in each City / District Headquarters and Taluk places for treatment of Judicial Officers.
ii) The Judicial Officers shall be entitled to claim expenses incurred in such notified hospitals / dispensaries.
iii) The reimbursement of the expenses incurred shall be to the same extent as they are entitled to under the rules for reimbursement.
iv) There should not be any restriction on reimbursement except to the extent of in-patient room entitlement.
v) The Principal District Judge should be the countersigning Authority for such reimbursement of medical bills. All claims for reimbursement should be accompanied by an ‘Essentiality Certificate’, supported by the prescription of vouchers or cash memos.
Leave Travel 173. LTC facilities provided to the Judicial Officers vary
Concession from State to State. In some States, LTC is provided in a block period of 4 years and in some other States, once in 10 years, while in others once in service and in a couple of States, there is no LTC provided. Likewise, HTC facilities also vary from State to State. Keeping the views / suggestions of various High Courts / State Governments and Service Associations, Commission has recommended the following:
i) The LTC shall be provided to all Judicial Officers once in 4 years.
ii) The HTC shall be provided once in two years. The Commission is not in favour of cash payment in lieu of LTC.
Special Pay 174. The pay scales are evolved after considering several factors like qualifications, duties / responsibilities, nature of work, late entry into service etc. Special pay should be only an exception rather than a rule. Therefore, High Courts have to evolve their principles for payment of ‘Special Pay’.
Concurrent Charge 175. Charge allowance is paid to those holding
Allowance additional charge of a post with equal or higher responsibility. The rates of charge allowance vary from State to State. Charge allowance is admissible provided that one holds the post for a minimum period of certain number of working days ranging from 14 to 30. The Commission has suggested payment of charge allowance @ 10% of the minimum of the time scale of the additional post provided the additional charge held is beyond 10 working days.
Encashment of leave 176. Encashment of Earned Leave while in service has
& leave salary been allowed in some of the States, once in block period of two years. However, there is no uniformity in such scheme of encashment of leave in the States. The Commission has suggested that
i) benefit of availment of encashment of leave be extended to all the judicial officers in all States / UTs.
ii) the judicial officers may be allowed to encash leave of one month once in two years.
Transfer grant / 177. Each State has prescribed the rules regarding
Disturbance Allowance payment of ‘Transfer grant’ for transferred officers. But such rates are in variance with the provisions made by Central Government. Recently (w.e.f. 8.10.99), Central Government has introduced ‘composite Transfer Grant’ equivalent to one month’s basic pay. Such a ‘composite Transfer Grant’ is appropriate and simple. Commission suggests that all States should adopt GOI pattern. Till then the existing rules in each State / UTs would also govern the Judicial Officers.
Housing, House Rent 178. Housing is a basic need, next only to food and
Allowance clothing. It is necessary that the State should assume greater responsibility on the question of housing. The directions of the Supreme Court regarding provision of residential accommodation to every judicial officer have been complied with by providing state accommodation or requisitioned accommodation. As many as 11 High Courts have suggested that rent free accommodation is to be provided to all the judicial Officers. Almost all the Service Associations have urged that rent-free accommodation should be as a condition of service. The Commission having considered all the aspects of the issue has made the following recommendations:
i) all the Judicial Officers should be provided with Government quarters according to their entitlement;
ii) Government has to collect by way of rent an amount not exceeding 12.5% of the basic pay;
iii) all the judicial officers are entitled to HRA at the rate provided to other Govt. servants;
iv) judicial officers who occupy their own houses are also entitled to HRA.
v) all State Governments / UT Administrations have to undertake a ‘crash programme’ for house construction for judicial officers.
vi) the Govt. quarters provided to judicial officers must have separate space for ‘Home Library’ and all the necessary books/journals shall be provided to the Home Library.
vii) the drawing room of every quarters shall reasonably furnished at the cost of the Government.
viii) a certain percentage of sites / houses, wherever they are available for allocation / allotment should be earmarked for allotment to judicial officers.
Telephone facilities 179. In Central Government and also in most of the State Governments, telephones are not provided to officers below the rank of Deputy Secretary and even the Deputy Secretaries who are provided telephones at the office and residence are not provided STD facilities. However, telephone is a necessity and not to be regarded as a luxury. It is therefore, necessary to provide telephones in all courts and also at the residence of every judicial officer. The Commission has fixed limits of free calls to the different categories of officers.
Advances 180. The Government provides loans and advances to its employees for various purposes like HBA / HPA, Motor Car advance, festival advance, marriage advance etc. Some advances are interest-free; whereas some other advances are interest bearing. Commission has recommended the following:
i) all State Government / UTs to adopt the limits prescribed by the Central Govt. with regard to HBA / HPA for giving advances to judicial officers;
ii) a rebate of 1% in the interest on HBA for undergoing Sterilisation Operation to be provided to such of the judicial officers;
iii) liberal soft loan upto Rs.2.5 lakhs for purchase of motor car;
iv) advance for purchase of personal computer to the judicial officers be given on the same scale and terms and conditions as allowed to Government of India officers.
20. PROMOTIONAL OPPORTUNITIES
Promotion as a 181. Provision of adequate promotional opportunities is
motivation to efficiency an important motivational force. Long periods of stagnation would certainly demoralise the officers, leading to reduced efficiency. Thus, there is a need to evolve a proper promotion policy.
Civil Judge (Jr. Divn.) 182. Judicial Officers enter service at an advanced age.
normally reaches the Almost all the High Courts have stated that a Judicial
cadre of ADJ. Officer recruited as Civil Judge (Jr. Divn.), generally gets promotion to the post of Additional District Judge / District Judge.
Our Recommendation 183. To avoid stagnation and to provide promotional opportunities, the Commission has recommended that:
a) a Master pay scale out of which various pay scales have been carved out to each cadre and the pay scales have been elongated;
b) ACP scheme for Civil Judge (Jr. Divn.) and Civil Judge (Sr. Divn.) on non-functional basis;
c) ‘Selection Grade’ and ‘Super Time Scale’ have been assigned to District Judges on functional basis;
d) Civil Judge (Sr. Divn.) be exclusively a promotional post.
e) in-service judges are to be allowed to compete for direct recruitment to the cadre of District Judges.
f) an innovative concept of ‘service weightage’ to inservice candidates for fixing their inter-se seniority is advocated; and
g) promotional posts should not be left unfilled for a long time.
21. SUPERANNUATION AGE OF JUDICIAL OFFICERS
Survey of the past 184. In the past, the retirement age of Judicial Officers was linked with that of the State / Central Government employees. Retirement age of Central Govt. employees was 55 years till 31.3.1938.
Recommendation of the First CPC in 1946 to raise the superannuation age to 58 years was not accepted on the ground that the Govt. servants were not capable of efficient service.
The Second CPC relying on the improved life expectancy recommended upward revision to 58 years. Considering the factors like shortage of experienced and trained manpower and the higher expectation of life and physical fitness of the employees, the Govt. decided to raise the retirement age from 55 to 58 from 1.12.1962.
The Third and Fourth CPCs didn’t favour upward revision to 60.
All the State Governments except Kerala followed similar age of retirement for their respective employees and extended the same to Judicial Officers.
The AIJA filed Writ Petition in the Supreme Court seeking among other reliefs enhancement of age of retirement on the ground that qualification and nature of work for judicial service were distinct from those for civil service. For judicial service, a Law degree is necessary and the entry into judicial service is at much higher age than the minimum for the civil service.
The Supreme Court allowing the petition observed that the retirement age of Judicial Officers should be raised from 58 to 60 years. The Review Judgment also maintained it but with certain directions / observations.
5th CPC 185. The question of appropriate age of superannuation was entrusted to the Institute of Manpower Research by the V Central Pay Commission for study and report and the Institute after a scientific study and collection of statistics from different countries abroad observed that in European countries superannuation age varied from 65 to 70 and in Asian region from 55 to 65. It however noted that in about 20 countries, there was possibility of raising the normal age of retirement due to demographic causes especially phenomenon of ageing population and to reverse the trend of earlier retirement.
New Developments – 186. The Institute also made a sample survey of health
World trends condition of 1183 retired persons by contacting them personally and among others recommended the following :
a) Superannuation age for Central Govt. employees be 62 years uniformly for all categories including the employees of UTs / NCT of Delhi;
b) Higher age of superannuation of 65 years for scientific, technical research and training professionals, medical research and top professionals, judges, medical specialists, computer specialists etc.
Recommendations 187. After considering the Report of Institute of
of the 5th CPC Manpower Research, the 5th Central Pay Commission recommended to increase the age of retirement of all Central Government Employees except the armed forces and Central Police Organisations to 60 years prospectively.
The 5th CPC suggested that present age of superannuation of the Central Govt. employees acted in the past as a bench mark for fixing the superannuation age of other categories of employees, judicial officers, teachers, constitutional authorities etc., and it further hoped that its recommendations will lead to suitable readjustments to maintain the present relativities. The Central Government by an order dated 13 May 1998 raised the retirement age of Central Govt. employees from 58 to 60.
Views from Judicial 188. The Judicial Officers’ Associations have sent
Officers' Associations, representations for enhancing the age of superannuation
High Courts and on the grounds of rise in retirement age of Central Govt.
State Governments employees to 60 years, and to have a proper relativity in their age of retirement.
The experience and maturity required in judicial work is pressed as one of the supporting grounds. The All India Judges’ Association has pressed for uniform age of retirement for Judicial Officers, High Court Judges and Supreme Court Judges.
Increase in the average span of life is an additional ground put forth by some High Courts. Many State Governments have expressed against any alteration in the present retirement age of Judicial Officers.
Directions in Review 189. In the Review Judgment, the Supreme Court has
Judgment by made observations / directions to the effect that the
Supreme Court benefit of increase of retirement age is for those who have a potential for continued useful service and that potentiality shall be assessed and evaluated by the High Courts on the basis of the officers’ past record of service, character rolls, quality of judgment and other relevant matters and the exercise is to be undertaken by the High Courts by following the procedure for compulsory retirement laid down in the respective service rules applicable to Judicial Officers, before the officers attain the age of 58 years.
This assessment is for the purpose of finding out suitability of the officers for entitlement of the benefit of increased age. These observations have been incorporated by some of the High Courts in the Service Rules providing for compulsory retirement at the age of 58 years, if the officers are found unsuitable for two more years of service.
The review of cases for compulsory retirement should be independently taken up by the High Court and it should not be linked with the consideration of giving the benefit of the service from 58 to 60 years. There should be periodical review for compulsory retirement once in every 5 years at 50, 55 and 60 years under the respective service rules by Committee of Judges of the High Courts headed by the Chief Justice.
The Commission has recommended to delete the rules made by the High Courts incorporating directions of the Supreme Court in the Review Judgment and to make a rule specifying only superannuation age without any condition.
Intention of the 190. The demand of the All India Judges’ Association
Constitution makers for uniform age of retirement of Judges of Supreme Court, Judges of High Court and Judicial Officers overlooks the intention of the makers of the Constitution, to maintain a difference of 3-5 years between the retirement age of High Court Judges and that of the Supreme Court Judges.
Extensive definition 191. The compelling reason for raising retirement age of
of District Judge all Judicial Officers to 62 years is that the definition of the District Judge in Article 236(a) of the Constitution is an extensive definition; the Labour Court Judges and the Judges of the Industrial Court belong to Judicial Service. Even the Member of the District Forum under the Consumer Protection Act, 1986, Member of the Debt Recovery Tribunal, the judge of the Family Court fall into the "judicial service" under Article 236(b) of the Constitution and that the District Judge is the head of that service. But these posts have different age of retirement varying from 62 to 65 years.
Uniform age of 192. The Judicial Officers belong to the Judicial Service
retirement in as defined under Article 236(b) of the Constitution and it
Judicial service is well settled that the different posts falling into the similar service cannot have different age of retirement.
Our Recommendation 193. The Commission recommends an increase in the
with reasons age of retirement of Judicial Officers from 60 to 62 years for the following reasons:
1) The longevity of our people has considerably increased;
2) Increase in the retirement age in the European Region is round the corner due to demographic causes;
3) Age of superannuation in public service in some of the foreign countries is upto 65 years.
4) Central Government while accepting the recommendations of the 5th CPC has raised the age of superannuation of the Central Government employees to 60 years, and UTs administrations have followed it.
5) 5th CPC suggested that their recommendation to raise the age of retirement of Government employees to 60 years, must lead to suitable readjustment of other categories of employees like judicial officers to maintain the present relativity.
6) The Judicial Officers after retiring at 60, seek re-employment in Corporations and Statutory Boards as Law Officers generally for fixed term of 5 years.
7) Most of the Judicial Officers do not get full pension for want of qualifying service of 33 years.
8) The Judicial Officers with the advancement of age become more mature and could be better utilised by continuing in service.
9) There is no question of impact on employment situation by raising the retirement age to 62 years since the Judicial officers are recruited from the Members of the Bar.
22. RETIREMENT BENEFITS
Available benefits 194. Pension, gratuity, leave encashment, commutation
on retirement of pension and family pension are the benefits available on retirement.
Pension is a right 195. Right to pension is a valuable right vesting in a government servant. The right to receive pension flows from the rules.
Benefits to the 196. The qualifying service for full pension is 33 years.
Central Govt. employees Minimum qualifying service is 10 years. Minimum pension is Rs.1275/- and maximum Rs.15000/-. The amount of pension is proportionate to the length of qualifying service and related to the average emoluments drawn during the last 10 months of service.
Retirement gratuity is admissible to those who retire after rendering minimum five years service at the rate of 1/4th emoluments for each half year subject to a maximum of 16½ times and limited to Rs.3.5 lakhs.
The Death gratuity payable to the employees depends on the length of qualifying service subject to a maximum of three times of the emoluments and limited to Rs.3.5 lakhs.
Leave salary subject to a maximum of 300 days of Earned Leave equivalent to pay + DA appropriate to such leave is admissible.
Commutation of pension is allowed not exceeding 40% of the basic pension, which will be restored after 15 years. Family pension is admissible to the families of those who die either after rendering one year of service or after retirement. Family pension is admissible at the rate of 30% of the basic pay last drawn subject to a minimum of Rs.1275/- and maximum of Rs.9000/- per month.
Glaring discrimination 197. The family members of the Judges of the High
deserves to be removed Courts and the Supreme Court get only 30% of the pension payable to them which is very much less than the family pension admissible to the members of the Central Government employees. This glaring discrimination deserves to be removed. There is provision in the Central Government Rules for enhanced family pension on dying in harness after rendering not less than 7 years of service.
Our Recommendation 198. Most of the State Governments have adopted Central Government pattern and the remaining are following their own patterns. The only difference between the pension structure of the State Govt. and that of the Central Government is in the quantum of minimum pension, gratuity and terms of encashment of leave.
Position in State 199. Since pension confers a long term benefit on a
Governments pensioner, we recommend 10 years of minimum service to qualify for pension. We recommend that the qualifying years of service should be 33 years for earning full pension in all the States barring the States of Tamil Nadu and Kerala. Since significant upward revision in the pay scales of the Judicial Officers at all levels has been recommended that would in turn confer on the retiring persons substantial benefit of enhanced pension. It is proposed to retain 50% of the pay as pension. We recommend the State rules for the time being in force for calculation of pension may apply to Judicial Officers in the respective States / UTs. However, it is suggested that the calculation of pension with reference to the last pay drawn is practical, simple and more beneficial. Since the Judicial Officers after retirement are expected to maintain a dignified life and since for the Judges of the Supreme Court and High Courts commutation of pension is allowed to the extent of 50% of the pension, we recommend that the commutation of pension for the Judicial Officers in every State / UT be allowed to 50% of the pension determined. We recommend the restoration of commuted pension after 15 years. We also recommend that the rules of each State applicable to Govt. servant shall govern also to Judicial Officers in the matter of payment of gratuity.
We recommend that the procedure prescribed from time to time by the respective State Govts. for Govt. employees with regard to the limit of Earned Leave for encashment would continue to operate even for Judicial Officers till the benefits provided by the Central Govt. are extended to the Judicial officers. We suggest that the rules of each State governing the payment of family pension to the family of the Govt. servants may continue to apply for the retired Judicial Officers.
We recommend a cash payment of Rs.1250/- per month as ‘Domestic help allowance’ to engage a servant.
23. PENSION STRUCTURE FOR PAST PENSIONERS
Our Recommendation 200. The revised pension of Retired Judicial Officers should be 50% of the minimum pay of the post held at the time of retirement, as revised from time to time. There should not be any ceiling limit on the maximum pension payable. The Pensioners should be given the benefit of full neutralisation of the cost of living in the same scale as is being extended to the serving Judicial Officers. A cash payment of Rs.1250/- per month as ‘Domestic Help Allowance’ is to be paid to every retired Judicial Officer. All retired Judicial Officers should be given a fixed monthly Medical Allowance of Rs.100/- to meet day to day medical expenses. All the medical facilities that we have recommended to serving Judicial Officers with regard to treatment and reimbursement of expenditure etc., be made applicable to retirees.
24. WORK METHODS AND WORK ENVIRONMENT
Report of the 201. The Commission agrees with the recommendations
Consultant of IIM in order to reduce the avoidable delay at all stages from the time of presentation of the plaint / charge sheet till the disposal of case. Some of them are :
1) Summons should be served on the parties in time with a warning of stern punitive action, if delay is deliberate.
2) Attendance of witnesses should be procured through the parties to the proceedings (maximum two opportunities) failing which by issuing coercive process in criminal cases.
3) Interlocutory applications should be disposed of within three months.
4) "Calling Work" be delegated to such Officers who deal with quasi-judicial functions.
5) Providing proper infrastructure, improvement in staff facilities and creating healthy working environment.
Police Service to Courts 202. We suggest that in every Police Station, at least one police officer must be set apart exclusively to attend the Court work like service of summons, ensuring presence of witnesses and under-trial prisoners. We request the High Courts to take up the matter with their Government.
Pre-Trial 203. After considering the views / suggestions from the High Courts, eminent persons and jurists and the State Governments, the Commission recommends that the provisions relating to pre-trial Orders X, XI and XII CPC) should be made mandatory against heavy sanction for not observing it. If necessary, amendment in this regard may be made to the Code of Civil Procedure.
Pre-Trial and 204. After considering the factual aspects prevailing in
Alternate Disputes the States and the views of the High Courts, Judicial
Resolution (ADR) Officers’ Associations and eminent persons, the Commission recommends :
1) Conciliation Courts and Lok Adalats must be annexed to the Civil Justice system.
2) There shall be permanent separate Courts for conciliation and Lok Adalat in every City and District.
3) A provision similar to Order XXVII Rule 5B CPC and such other provisions may be introduced in the Code of Civil Procedure requiring the court to endeavour to settle the matter in dispute at the pre-trial stage and if it is appropriate, to refer the same to one or the other court for adjudication.
4) Conciliatory Court and Lok Adalat may be assisted by trained mediators or reputed persons whose advice is likely to carry conviction to the parties.
5) Once the case is referred to the Conciliatory Court or to the Lok Adalat, it must not revert back to the original court for trial, but must end in settlement, which must be given the status of the Civil Court Decree.
Language of the Courts 205. The Commission recommends that all High Courts should direct the lower Courts to record proceedings in English and also in regional language in all cases where the judgment / decree is appealable or revisable by the High Courts.
Written Arguments 206. The Commission recommends the inclusion of a Section in the Civil Procedure Code, similar to Section 314 of the Criminal Procedure Code, enabling the parties to file the written arguments in support of their respective case.
High Courts’ directions 207. Meanwhile, the High Courts may issue directions to the lower Courts permitting the Judges to demand written submissions from the counsel with a list of cases to be relied upon at least a week before the date fixed for final arguments in all the cases.
False and Frivolous 208. The Commission recommends that a provision
Cases similar to Section 344 of the Criminal Procedure Code be introduced in the Civil Procedure Code for taking action for giving false evidence or producing false documents.
Amendment to CPC 209. The Commission further recommends that Section 35A(2) of CPC should be suitably amended empowering the Courts to impose compensatory or special cost of not less than Rs.10,000/- or more than Rs.25,000/-.
Court Working Hours / Holidays / Vacation
Working Hours 210. The working hours of Courts vary from State to State. After examining the various suggestions and recommendations of the High Courts / Judicial Officers’ Associations and the eminent persons and the nature of judicial work, the Commission recommends that :
1) In all States, there shall be a minimum 36 hours of judicial work per week.
2) Only Second Saturday be declared as nonworking day for Judicial officers. There should be six working days in a week.
3) The respective High Courts keeping in mind the climatic conditions, shall determine the time schedule.
Holidays 211. After going through the recommendations of the 5th Central Pay Commission and bearing in mind the significant suggestion made by the All India Judges’ Association, the Commission recommends that :
1) The number of declared holidays for Courts should not exceed 12 in a year with a request to the High Courts to determine such holidays having regard to local customs and conditions.
2. The High Courts should not fall in line with the Governments in the matter of suddenly declaring any day as a holiday for court.
3. The High Courts may request the State Governments not to include "Courts" in the notification of declaring holidays under the Negotiable Instruments Act.
Vacation 212. Keeping in view the necessity of reducing the docket explosion and balancing the absolute need to give some respite to Judicial Officers, the Commission recommends that "till such period, the arrears are brought down to manageable limits, the court vacation period should be cut down by 15 days in a year."
Pendency in Courts 213. In 1985, there were 1,24,02,216 cases pending in the subordinate courts. The Judge strength in 1985 was 9,232. In 1995, the pendency of cases increased to 2,06,46,592; whereas, the number of Judges in 1995 was 10,652. Thus, increase in number of judges has not kept pace with increase in number of cases. During the period 1985 and 1995, the overall Judge strength increased by about 15.4% as against the increase in the pendency of cases by about 66.5%.
25. INFORMATION TECHNOLOGY IN THE
ADMINISTRATION OF JUSTICE
IT for all fields 214. Developments in IT has resulted in efficiency, productivity and quality of output in all fields of human activity. But its impact on Subordinate Judiciary in India is not yet to the desired extent.
IIMB as Consultant 215. IIM, Bangalore is perhaps the best Consultant in the country for Information Technology. In their consultation report to the Commission, they have recommended IT for improvement in operational efficiency, co-ordination, accessibility and speed in the Judicial administration.
The report of IIMB 216. The report of IIMB :
(i) The enormous problems due to arrears backlog and delays can be partly tackled by the introduction of automation in Subordinate Courts.
(ii) A strong plea to the centre is needed for comprehensive action plan for IT usage in Courts which includes provision of computers at every Court, development of appropriate software and provision of training for all prospective users.
(iii) IIMB has surveyed the IT application in the Judicial systems of other countries like U.S.A., U.K., Australia and Singapore and has stated that the IT usage in U.K. in particular could provide even specific tools and software in developing systems suitable for India.
(iv) IIMB has indicated three stages of computerisation as (a) Planning Stage (b) Developments Stage (c) Operational Stage, and has dealt all the three stages in detail. It has stated that the training will be an on-going activity during all the three stages.
(v) The following are areas where computer will result in enhanced productivity and reduction of delays :
(a) Legal information Databases.
(b) Online Query System for precedents, citations, codes, statutes etc.,
(c) Generation of Cause list and on line statistical reports.
(d) On line caveat matching.
(e) On line updation of data, monitoring and ‘flagging’ of events.
(f) Pooling of orders and Judgments.
(g) Daily list generation with historical data of each case.
(h) Word processing with standard templates including generation of notices / processes.
(i) Access to international databases.
(j) Feedback reports for use at various levels.
(vi) Computerisation should be supplemented by the use of fax, E-mail, Video Conferencing and other facilities.
Recommendations 217. Among other recommendations IIMB has stated
of IIMB that a uniform software package with comprehensive functionality should be developed. Legal assistance Kiosks may be installed at court premises.
Gujarat State 218. Mr. Justice R.A. Mehta (Rtd.), Director, GSJA, has
Judicial Academy furnished a long list of activities which could be computerised for the Subordinate Judiciary.
National Consultative 219. FNJPC in association with IIMB held a NCA on
Activity 12th and 13th December 1998 at IIM, Bangalore. It was resolved "that the IT Action Plan" must include computerisation of the Subordinate Judiciary all over the country. The resolution was forwarded to the Prime Minister of India which was acknowledged and forwarded to the ‘working group on citizen interface’.
Our Recommendations 220. Each High Court should immediately constitute a Task force consisting of senior Judges of the High Court and a computer expert for preparing a comprehensive action plan for implementation of IT in District Court and Courts subordinate thereto. Periodic evaluation of the system should be undertaken. Each High Court must immediately make proposals to GOI for computerisation and networking programme of District Courts and Courts subordinate thereto in the lines indicated as above.
26. ALL INDIA JUDICIAL SERVICE
14th Report of Law 221. The Law Commission in its 14th Report
Commission recommended the setting up of an All India Judicial Service (AIJS), giving weighty reasons.
Observations of 222. The Supreme Court in All India Judges’ Case (AIR
Supreme Court 1992 SC 165) observed that "the feasibility of the implementations of the Law Commission may be examined expeditiously and implemented as early as possible. It is in the interest of the health of the judiciary throughout the country that this should be done."
Opinion of High 223. Thereupon, the Govt. of India elicited the opinion
Courts and State of all the High Courts and the State Governments. 8 State
Governments Governments agreed with the setting up of an AIJS. 8 State Governments gave conditional approval to the proposal. 7 State Governments have not favoured the proposal. 4 High Courts have favoured the setting up of AIJS. 4 High Courts have given their conditional approval. Five High Courts have no views to offer in the light of the Supreme Court judgment. 3 High Courts have not favoured the proposal.
Views of the 224. The Commission in turn, invited the views and
Commission comments on the methodology of constituting AIJS.
After examining the responses received from the High Courts, the State Governments and the Service Associations and others the Commission indicates the following guidelines for consideration of the Central Government for constituting the All India Judicial Service :
(i) The AIJS could be constituted only in the cadre of District Judges as per provisions of Article 312(3) of the Constitution. The District Judges directly recruited and promoted should constitute the AIJS.
(ii) The selection for direct recruitment should be by the National Judicial Commission / UPSC and the promotees by the respective High Courts.
(iii) The qualification for direct recruitment to AIJS should be in conformity with that prescribed under Article 233(2) of the Constitution.
(iv) Service Judges also should be allowed to compete for recruitment of AIJS, by appropriately amending Article 233(2) of the Constitution.
(v) Not exceeding 25% of the posts in the cadre of District Judges in every State should be ear-marked for direct recruitment.
(vi) The age limit for recruitment to AIJS should be between 35 years to 45 years.
(vii) The procedure for selection shall be by written examination followed by viva voce.
(viii) Appointment : The National Judicial Commission / UPSC, after selecting the candidates for direct recruitment to the cadre of District Judges, must allocate to the States / UTs, the candidates equal to the vacancies that are surrendered by them. The High Court thereupon will recommend those names to the Governor for appointment as per Article 233 of the Constitution.
(ix) Training : The prescribed training is only after the appointment
(x) Seniority : All India seniority is as per the ranking in the select list.
(xi) Inter-se Seniority in the State / UT : The inter-se seniority between direct recruits and promotees shall be determined according to the date of allotment and date of promotion. Such direct recruits must thus be annexed to the respective State Judicial Service within the three-tier system.
(xii) Court Language : Recording of the deposition should be : (1) Regional Language (to be recorded by the Court Officer); and (2) English (by the Presiding Officer).
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