;A ALL INDIA JUDGES ASSOCIATION AND ORS.

v.
UNION OF INDIA AND ORS.

MARCH 21, 2002

B [B.N. KIRPAL, G.B. PATTANAIK AND V.N. KHARE, Jl]

Service Law:

Subordinate Judicial Service-Service conditions-Determination of by

C Shetty Commission Report-Writ for implementation of report-Held,
Commission's Report accepted subject to modifications in the judgment.

The question for consideration before this Court was whether the
recommendations of First National Judicial Pay Commission presided by _Mr.
D Justice K.J. Shetty (Shetty Commission) should be accepted.

This Court in All India Judges Association v. Union of India and Ors.,
(1992) 1 sec 119 (main case) had given certain directions with regard to '
working conditions and certain benefits to be conferred on the members of

E
subordinate judiciary. In review against the same, the Court in All India Judges
Association and Ors. etc. v. Union ofIndia and Ors., [1993) 4 SCC 288 (review
case) maintained the directions given in the main judgment. However, in
-
addition to the directions, it recommended for setting up of an independent
Commission for reviewing service conditions of judicial officers. It also held
that the service conditions of the judges could not be compared with those of
administrative executive as the parity of status of judges could only be with
F political executives.

The question with regard to pay scales of judicial officers was first
referred to Fifth Central Pay Commission but subsequently the reference was
withdrawn from the Commission and in pursuance ofrecommendation of the
Court in review case, Union of India constituted Shetty Commission.
G
The report of the Fifth Central Pay Commission was accepted by Union
of India and was made applicable w.e.f. 1.1.1996.

Shetty Commission granted interim relief to the judicial officers, in view

of the fact that report of Fifth Central Pay Commission had been accepted,
H 712
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. 713

but the same was subject to adjustment on the acceptance of the final report A
of the Commission.

The Commission made recommendation on the following points:-

1. Revision in scale of pay, monetary benefit with regard to which was

to be payable w.e.f. 1.7.1996. B
2. Special allowances, including official accommodation and house rent
allowance, allowance of Rs. 2500 to retired Judicial Officers for domestic help,
A.
50% concession in electricity and water charges, to be granted w.e.f. 1.11.1999.

.. 3. Liability to bear 50% of the total expenditure incurred on subordinate

judiciary fixed on Union of India.
c

4. Increase in the judges strength to 50 Judges per 10 lakh people as

recommended by 120th Law Commission Report

5. Increase in the retirement age of Judges from 60 years to 62 years. D

6. Method for recruitment to the posts in the cadre of Higher Judicial
, Service, in the ratio of 75% appointment by promotion and 25% by direct
recruitment to be followed. Promotees to be given weightage for promotion
over direct recruits.
E
7. Post of Chief Judicial Magistrate to be placed in the cadre of Civil
Judge (Senior Division) and Chief Metropolitan Magistrate to be placed in
the cadre of District Judge.
,.. 8. Requirement of 3 years' standing as Advocate for entering judicial
... service not mandatory. F
9. Necessity for Assured Career Progression Scheme and Functional
scales.

10. Appropriate nomenclature to be given to the judicial officers.

'
G
'
.. 11. Adoption of procedure for writing confidential report by self
assessment process.
-: 12. Post of Civil Judge (Senior Division) only to be filled by promotion.

13. Steps for judicial education and training. H

 714 SUPREME COURT REPORTS [2002) 2 S.C.R.

A 14. Establishment of All India Judicial Service.

Petitioner-Association filed writ petition for implementation of the

report of the Shetty Commission.
-- '

States accepted the recommendations provided Union oflndia bore 50%

B of the expenses. Union oflndia, however, evolved its own pay scale with regard
to Subordinate and Higher Judicial Service in the Union Territories, on the
basis of parity between the executive and judiciary.

Union of India contended that recommendation of placing the liability ;.. '
of bearing 50% of expenses on it, was inconsistent with constitutional set up;
c that the obligation to m.eet the expenses of judicial service, except courts in
Union Territories and Supreme Court was on the State Government; and that ._
the expenses for administration of justice is taken into consideration at the
time of allocation of funds between Union and the States.

Accepting the Shetty Commission Report with some modifications, the

D Court

HELD : 1.1. Pay scales recommended by the Shetty Commission should

.....
be accepted. Considering the years of service put in by the Judicial Officers
at different stages, the parity in the scales of pay recommended by the Shetty
Commission for the Judicial Office..S with the scales of pay of I.A.S. officers
E is not, by and large, disturbed. In fact, the scales of pay recommended by the
Shetty Commission.appear to be somewhat lower, on the average, than the
scales of pay recommended for an l.A.S. officer if the number of years a
Judicial Officers has put in service is taken into consideration. Even though
in the earlier judgments, it has rightly been said that there should be no. ...,:..
F equation or parity between the Judicial Service and the Executive Service,
nevertheless even on the basis that there should not be great distortion in the
pay scales of the Judicial Officers vis-a-vis the Executive, the recommendations
made by the Shetty Commission as just, fair and reasonable. (733-C-E]

1.2. The pay scales approved by the Court are with effect from 1st July,
G 1996. However, in view of the fact that it will take some time for the States to ..
make necessary financial arrangements for the implementation of the_ revised ~-
"'
...
pay scales, the Judicial Officers shall be paid the salary in the revised pay
scales as approved by this Court with effect from 1st July, 2002. The arrears '\.._...._
of salary between 1st July, 1996 to 30th June, 2002, will either be paid in cash
H or the States may make the payment by cr~diting the same in the Provident
 ALL INDIA JUDGES ASSOCIATION v. U.O.l. 715
Fund Account of the respective Judicial Officers. [741-G-H; 742-A) A
1.3. In calculating the arrears, the Government will take into account
the interim relief which had been granted and drawn by the Judicial Officers.
The amount to he credited in the Provident Fund Account would also he after
deducting the income tax payable. 1742-B)
B
2.1. The double benefit of official accommodation on payment of rent
at 12.5% of the salary, in addition to house rent allowance is uncalled for.
Free government accommodation should be made available to the judicial
Officers. In view of the fact that the accommodation which is made available
to the Judges of the Supreme Court as well as the High Courts is free of
charge, it is directed that the official accommodation allotted to the Judicial C
Officers should likewise be free of charge but no house rent allowance will
be payable on such an allotment being made. If, however, the government
for any reason is unable to make allotment or make available official
accommodation then in that event the judicial officers would be entitled to
get house rent allowance similar to that which has been as existing or as D
directed by the Shetty Commission whichever is higher. Once a government
or official accommodation is allotted to an officer and in pursuance thereof
r he occupies such an accommodation, he would not be entitled to draw house
rent allowance. [740-G-H; 741-A-B-C)

2.2. With regard to other allowances referred to by the Commission, E

which have not been accepted by the Central Government the
recommendation for allowance of Rs. 2,500 to be paid to enable the
engagement of a servant by a Judicial Officer is not appropriate. It will not
be inappropriate that 50 per cent of the electricity and water charges should
be borne by the State Government (741-C-D-E)
F
3. It is States' responsibility to incur the entire expenses on the
administration of justice in the respective States. Logically, if there is to be
any increase in the expenditure on judiciary, then it would be for the States
to mobilise the resources in such a way whereby they can meet expenditure
on judiciary for discharging their constitutional obligations. Merely because G
there is an increase in the financial burden as a result of the Shetty
Commission Report being accepted, can be no ground for fastening liability
on the Union of India when none exists at present. Therefore, it is directed
that the entire expenditure on account of the recommendations of the Justice
Shelly Commission as accepted, be borne by the respective States. It is for
the States to increase the court fee or to approach the Finance Commission H
 716 SUPREME COURT REPORTS [2002] 2 S.C.R.

A or the Union of India for more allocation of funds. They can also mobilise
their resources in order to meet the financial obligation. If such a need arises
and the States approach the Finance Commission or the '(Inion of India for ,.
\
allocation of more funds, such a request shall be favourably considered.
[734-D-E-F}

B 4.1. An independent and efficient judicial system is one of the basic

structures of our Constitution. If sufficient number of judges are not
appointed, justice would not be available to the people, thereby undermining
the basic structure. It is constitutional obligation of the Court to ensure that
the backlog of the cases is decreased and efforts are made to increase the
C disposal of cases. [735-B-D]
4.2. Apart from the steps which may be necessary for increasing the
efficiency of the Judicial Officers, Judge strength be increased from the
existing ratio of 10.5 or 13 per 10 lakhs people to 50 judges for 10 lakh people.
Therefore, it is directed that the existing vacancies jn the Subordinate courts
D at all levels should be filled, if possible latest by 31St March, 2003, in all the
States. The increase in the Judges strength to 50 judges per 10 lakhs people
should be effected and implemented with the filling up of the posts in a phased
manner to be determined and directed by the Union Ministry of Law, bu.t
this process should be completed and the increased vacancies and posts filled
E within a period of five years from the date of the judgment Increasing the
judge strength by 10per10 lakh people every year could be one of the methoos
which may be adopted thereby completing the first stage within five_ years
befo_re embarking on further increase if necessary. [735-D-E-F-G-H]

20th Law Commission Report and 85th Report of Standing, Committee of

F Parliament, referred to.

5.1. The recommendation of increase in retirement age from 60 to 62

years cannot be agreed to for the reason that the age of retirement of a High
Court Judge is constitutionally fixed at 62 years. It will not be appropriate,
seeing the Constitutional framework with regard to the Judiciary to have an
G identical age of retirement between the members of the Subordinate Judicial
Service and a High Court As of today, the age of retirement ·of a Supreme
Court Judge is 65 years, of a High Court Judge it is 62 years and logically
the age of retirement of a Judicial Officer is 60 years. This difference is
appropriate and has to be maintained. (736-A-B)

H 5.2. In view of the backlog of vacancies has to be IDl~d and as the Judge
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. 717

strength has to be increased it would be appropriate for the States in A

consolation with the High Court to amend the service rules and to provide
• for re-employment of the retiring Judicial Officers till the age of 62 years if
there are vacancies in the cadre of the District Judge. [736-B-C]

6. With regard to the method of recruitment to the posts in the cadre

of Higher Judicial Service the ratio of 75 per cent appointment by promotion B
and 25 per cent by direct recruitment to the Higher Judicial Service is
maintained. But it is directed that recruitment to the Higher Judicial Service
i.e. the cadre of District Judges will be : (a) 50 per cent by promotion from
amongst the Civil Judges (senior Division) on the basis of principle of merit-
cum-seniority and passing a suitability test; (b) 25 per cent by promotion C
strictly on the basis of merit through limited competitive examination of Civil
Judges (senior Division) having not less than five years' qualifying service;
and (c) 25 per cent of the posts shall be filled by direct recruitment from
amongst the eligible Advocates on the basis of the written and viva voce test
conducted by respective High Courts. Appropriate rules shall be framed as
above by the High Courts as early as possible. [737-A, D, E, F, G] D
7.1. One of the methods of avoiding disputes regarding interse seniority
I' between direct recruits and promotees in Higher Judicial Service, is by
specifying quotas in relation to posts and not in relation to the vacancies.
Therefore, High Court are directed to suitably amend and promulgate
Seniority Rules on the basis of the roster principle as early as possible. This E
system can only apply prospectively except where under the relevant Rules
seniority is to be determined on the basis of quota and rational system.
[738-C-D-E]
... R.K Sabharwal and Ors., v. State of Punjab, [1995] 2 SCC 745, relied
on.
F

7.2. The recommendation of giving any weightage to the members of

the Subordinate Judicial Service in their promotion to the Higher Judicial
Service in determining seniority vis-a-vis direct recruits and the promotees is
disapproved. The roster system will ensure fair play to all while improving G
..... efficiency ;u the service. [738-F-G]
•
8. It is neither proper nor practical to place the Chief Metropolitan
Magistrate in the cadre of District Judges. The appeals from orders passed
by the Chief Metropolitan Magistrates under the provisions of the Code of
Crimi~al Procedure are required to be heard by the Additional Sessions Judge H
 718 SUPREME COURT REPORTS [2002] 2 S.C.R.

A or the Sessions Judge. If both the Additional. Sessions Judge and the Chief
Metropolitan Magistrate belong to the same cadre, it will be paradoxical that
any appeal from one officer in the cadre should go to another officer in the
same cadre. Considering the nature and duties of the Chief Judicial
Magistrates and the Chief Metropolitan Magistrates, the only difference being
B their location, the posts of Chief Judicial Magistrate and Chief Metropolitan
Magistrate have to be equated and they have to be placed in the cadre of
Civil Judge (Senior Division). [738-H; 739-A, C, D]

9. The recommendation of the Commission that it should be no longer .

mandatory for an applicant desirous of entering the Judicial Service to be an
C advocate of at least three years' standing is accepted. Accordingly, High
Courts and the States Governments are directed to amend their rules so as
to enable a fresh law graduate who may not even have put in even three years
of practice, to be eligible to compete and enter the Judicial Service. However,
it is recommended that a fresh recruit into the Judicial Service should be
imparted with training of not less than one year, preferably two years.
D [739-F-G-H]

All India Judges Association and Ors., etc. v. Union of India and Ors.,
[1993) 4 sec 288, referred to.

10. The recommendation of Assured Career Progressive Scheme and

E Functional scales is accepted. In respect of each pay scale the nomenclature
should be different In this way, a Judicial Officer will get a feeling that he
has made progress in his judicial career with his nomenclature or designation
changing with an upward movement within the service. [740-A-F]

11. Subject to the above modifications, all other recommendations of

F the Shetty Commission are accepted. [741-F]

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 1022 of

1989.

(Under Article 32 of the Constitution of India.)·

G
Harish N. Salve, Solicitor General, Kirit N. Raval, Mukul Rohtagi,
Additional Solicitor Generals, F.C. Nariman, Sri Ramulu, Mahendra Anand,
V.N. Ganpule, T.L. Vishwanatha Iyer, Tapash Ray, F.S. Nariman, (AC), Ms.
K. Amareswari, S. Ganesh, R.K. Jain, Yogeshwar Prasad, K. Sukumaran,
H Subhash C. Sharma, A.T.M. Sampath, (AC), V. Balaji, Chaturvedi; Ms.
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.] 719

Kamakshi S. Mehlwal, B.B. Singh, Ms. Sunita R. Singh, A. Subha Rao, P. A

Parmeswaran, A.N. Jayaram, Genl. Ashok K. Srivastava, Ms. Asha G. Nair,
Ms. Krishna Sanna, V.K. Sidharthan, Ashok Bhan, Ms. Sunita Sharma, D.S.
Mahra, Ms. Varuna Bhandari Gugnani, M.M Banerjee, General, Ms. Geetanjali
Mohan, Prakash Shrivastava, D.N. Goburdhun, Ms. Pinky Anand, Ms. Geeta
Luthra, Ms. A. Subhashini Ms. Hemantika Wahi, Ms. Anu Sawhney, ·Ms. B
Puja Sharma, Rajan Narain, J.P. Dhanda, Ms. Raj Rani Dhanda, Naresh K.
Shrama, M.M. Banerjee, Prem Prakash, Rajesh Pathak, Ashok Mathur, Anis
Suhrawardy, Md. Ehraz Zafar, Ramesh Babu M.R., Sanjay R. Hegde, Satya
Mitra, Rajan Mukherjee, S.S. Shinde, S.V. Deshpande, Kh. Nobin Singh, M.
Gireesh Kumar, B.S. Banthia, Satish K. Agnihotri, K.N. Madhusoodhanan,
G. Sivabalamrugan, Rajeev Sharma, R.S. Suri, Ms. Jayshree Anand, Addi C
General Punjab. V.G. Pragasam, Ranji Thomas, Ms. K.V. Bharati Upadhyay,
Javed M. Rao, A. Mariarputham, Ms. Aruna Mathur, Anurag D. Mathur,
Gopal Singh, Rahul Singh, Ms. Revathy Raghavan, Ms. Rachana Srivastava,
T.N. Singh, S. Sukumaran, Ms. Divya Nair, Dipak Bhattacharya, Prabir
Choudhary, Ms. Seema Sharma, C.L. Kalia, Dilip Sinha, J.R. Das, Ms. R.
Mahavilatha, Ms. Anjani Aiyagiri, Sanjay Parikh, Abinash K. Misra, R.R. D
Chandrachud, Rajesh K. Sharma, Ms. Shalu Sharma, Goodwill Indeevar,
U.A. Rama, Prashant Bezboruah, Rakesh K. Khanna, Reetesh Singh, Surya
Kant, Joseph Pookkatt, Prashant Kumar, Ms. Rachna Gupta, Himinder Lal,
D.V. Deepak, Radha Shyam Jene, Jitendra Mohan Sharma, Pramod Swarup,
Ajit Pudussery, B. Partha Sarthy, (NP), T.T. Kunhikannan, (NP), M. Veerappa, E
(NP), Anip Sachthey, (NP), Rakesh K. Sharma, (NP), T.L. Garg, (NP), L.K.
Pandey, (NP), S.K. Bhattacharya, (NP) B.D. Sharma, (NP), RN. Keshwani,
(NP), Guntur Prabhakar, (NP), R. Sathish, (NP), N. Sudhakaran, (NP), Ms.
S. Janani, (NP), C.N. Sree Kumar, (NP). K.R. Nagaraja, Aruneshwar Gupta,
(NP), S.R. Setia, (NP), J.S. Attri, (NP), Vimal Chandra S Dave, (NP), K. Ram
Kumar, (NP), G. Prakash, (NP), K.K. Rai, (NP), Gopal Balwant Sathe, (NP), F
Praveen Swarup, (NP), Subrarnonium Prasad, (NP), Dr. K.S. Chauhan, (NP),
Prashant Bhushan, (NP) for the the appearing parties.

The Judgment of the Court was delivered by

KIRPAL, J. This Writ Petition pertains to the working conditions of G

the members of the Subordinate Judiciary throughout the country. This is
third round before this Court.

In a decision reported in [1992] 1 SCC 19 entitled A/I India Judges'

Association v. Union of India and Ors., directions were given by this Court
in regard to the working conditions and some b.enefits which should be given H
 720 SUPREME COURT REPORTS [2002] 2 S.C.R.

A to the members of the Subordinate Judiciary. The directions wei:e as follows:

"63. We would now briefly indicate the directions we have given

in the judgment:

(i) An All India Judicial Service should be set up and the Union of
India should take appropriate steps in this regard.
B
(ii) Steps should be taken to bring about unifonnity in designations
of officers both in civil and the criminal side by March 31, 1993.

(iii) Retirement age of judicial officers be raised to 60 years and L

appropriate steps are to be taken by December 31, 1992.
c (iv) As and when the Pay Commissions/Committees are set up in the
States and Union Territories, the question of appropriate.pay scales
of judicial officers be specifically referred and considered.

(v) A working library at the residence of every judicial officer has to

be provided by June 30, 1992. Provision for sumptuary allowance as
D
stated has to be made.
(vi) Residential accommodation to every judicial officer has to be
provided and until State accommodation is available, government
should provide requisitioned accommodation for them in the manner
indicated by December 31, 1992. In providing residential
E
accommodation, availability of an office room sho'uld be kept in
view.

(vii) Every District Judge and Chlef Judicial Magistrate should have
a State/vehicle, judicial officers in sets of five should have a pool
vehicle and others would be entitled to suitable loans to acquire two
F
wheeler automobiles within different. time limits as specified.

(viii) In-service Institute should be set up within one year at the

Central and State or Union Territory level.
A number of directions which were given have been implemented. The
G Union of India, however, filed a review petition seeking certain modifications/
clarifications. This review petition was disposed of by the judgment reported r
in [1993] 4 SCC 288 entitled All India Judges' Association and Ors., etc. v. _.
Union of India and Ors., etc. The relevant findings in the said decision are
as follows:

H (i) Each of the general and special objections of Union of India and
 ALL INDIA JUDGES ASSOCIAT!ONv. U.0.l. [K!RPAL, J.] 721

-' States/UTs was dealt with and rejected. The distinction between judicial A
and other service specifically emphasized, {paras 7 to 10).
'
(ii) "The service conditions of Judicial officers should be laid down
and reviewed from time to time by an independent Commission
exclusively constituted for the purpose, and the composition of'such
Commission should reflect adequate representation on behalf of the B
judiciary" (para) 11.

(iii) "By giving the directions in question, this Court has only called
...I. upon the executive and the legislature to implement their imperative
duties. The courts do issue directions to the authorities to perform
their obligatory duties whenever there is a failure on their part to c
discharge them ........... The further directions given, therefore, should
not be looked upon as an encroachment on the powers of the executive
and the legislature to determine the service conditions of the judiciary.
They are directions to perform the long overdue obligatory duties."
(para 14).
D
"................ The directions are essentially for the evolvement of a
appropriate national policy by the Government in regard to the
judiciary's conditions". The directions issued are mere aids and
incidental to and supplemental of the main direction and intended as
a transitional measure till comprehensive national policy is evolved.
(para 15) (emphasis supplied)." E

(iv) The question of financial burden likely to be imposed is

misconceived and should not be raised of discharge mandatory duties:

"16. The contention with regard to the financial burden likely to

be imposed by the directions in question, is equally misconceived. F
Firstly, the courts do from time to time hand down decisions which
have financial implications and the Government is obligated to loosen
its purse.recurrently pursuant to such decisions. Secondly, when the
duties are obligatory, no grievance can be heard that they cast financial
burden. Thirdly, compared to the other plan and non-plan expenditure,
G
~
• we find that the financiaf burden caused on account of the said
directions is negligible. We should have thought that such plea was
not raised to resist the discharge of the mandatory duties. The
contention that the resources of all the States are not uniform has also
to be rejected for the same reasons. The directions prescribe the
minimum necessary service conditions and facilities for the proper H
 722 SUPREME COURT REPORTS [2002] 2 S.C.R.

A administration of justice. We believe that the quality of justice

administered and the calibre of the persons appointed to administer
it are not ofdifferent grades in different States. Such contentions are
ill-suited to the issues involved in the present case."

( v) The directions given in the main judgment dated 13 .11.1991 were

B maintained except as regards the following:-

(a) Para 52 (a), page 314

"The legal practice of 3 years should be made one of the essential

qualifications for recruitment to the judicial posts at the lowest rung
c in the judicial hierarchy.

Further, wherever the recruitment of the judicial officers at the

lowest rung is made through the Public Service Commission, a
representative of the High Court should be associated with the selection
process and his advice should prevail unless there are strong and
D cogent reasons for not accepting it, which reasons should berecorded
in writing.

The rules for recruitment of the judicial officers should be amended

forthwith to incorporate the above directions."

E (b) Para 52(b), page 3 15

"The direction with regard to the enhancement of the 1

superannuation age is modified as follows:

While the superannuation age of every subordinate judicial officer

shall stand extended upto 60 years, the respective High Courts should,
F
as stated above, assess and evaluate the record of the judicial officer
for his continued utility well within time before he attained the age
of 58 year by following the procedure for the compulsory retirement
under the Service Rules applicable to him and give him the bene~~
of the extended superannuation age from as to 60 years only if he is
G found fit and eligible to continue in service. In case he is not found
fit and eligible, he should be compulsorily retired on his attaining the
age of 58 years.
The assessment in question should be done before the attainment
of the age of 58 years even in cases where the earlier superannuation
H age was less than 58 years."
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.] 723

-- (c) Para 52 (c), page 316

"The direction for granting sumptuary allowance to the District

A

Judges and Chief Judicial Magistrates stands withdrawn for the reasons
given earlier."
(d) Para 52(d), page 316
B
"The direction with regard to the grant of residence-cum-library
allowance will cease to operate when the respective State Government/
__. Union Territory Administration start providing the courts, as directed
above, with the necessary law books and journals in consulation with
the respective High Courts."
c
(e) Para 52(e), page 316

"The direction with regard to the conveyance to be provided to

the District Judges and that with regard to the establishment of the
training institution for the Judges have been clarified by us in
paragraphs 45(vii) and 49 (viii) respectively. It is the Principal District D
-~
Judge at each district headquarter or the metropolitan town as the
case may be, who will be entitled to an independent vehicle this will
~
equally apply to the Chief Judicial Magistrate and the Chief
Metropolitan Magistrate. The rest of the Judges and Magistrates will
be entitled to pool-vehicles-one for every five Judges for transport E
from residence to court and back-and when needed, loans for two
wheeler automobiles and conveyance allowance. The State
Governments/Onion Territory Administrations are directed to provides
adequate quantity of free petrol for the vehicles, not exceeding l 00
litres per month, in consulation with the High Court."
F
(f) Para 52(1), page 316

"In view of the establishment of the National Judicial Academy,

it is optional for the States to have their independent or joint training
judicial institutes."

(g) Para 52(h), page 316 G

~
In view of the time taken to dispose of the Review Petitions,
following orders were passed:

(i) "the time to comply with the direction for bringing about uniformity
in hierarchy, de,signations and jurisdictions of judicial officers on H
 724 SUPREME COURT REPORTS [2002] 2 S.C.R.

A both civil and criminal sides is extended upto March 31, 1994";

(ii) "the time to comply with the directions to provide law books and
law journals to all courts is extended up to December 31, 1993 failing
which the library allowance should be paid to every judicial officer
with effect from January l, 1994, if it is not paid already";
B
(iii) "the time to provide suitable residential accommodation,
requisitioned of Government, to every judicial officer is extended up
to March 31, 1994".

(iv) "the time to comply with the rest of the directions is maintained
C as it was directed by the judgment under review."

(v) Regarding uniform pay scales the Review Judgement emphasised

the following:

"36. We have already discussed the need to make a distinction

between the political and the administrative executive and to appreciate
D that parity in status can only be between Judges and the political
executive and not between Judges and the administrative executive.
Hence the earlier approach of comparison between· the service
conditions of the Judges and those of the administrative executive has
to be abandoned and the service conditions of the Judges which are
E wrongly linked to th,ose of the administrative executive have to be
revised to meet the special needs of the judicial service, Further,
since the work of the judicial officers throughout the country is of the
same nature, the service conditions have to be uniform. We have also
emphasised earlier the necessity of entrusting the work of prescribing
the service conditions for the judicial officers to a separate Pay
F Commission exclusively set up for the purpose. Hence we reiterate .
the importance of such separate Commission and also of the desirability
of prescribing uniform pay scales to the Judge all over the country.
Since such pay scales will be the minimum deserved by the judicial
officers, the argument that some of the States may not be able to bear
G the financial burden is irrelevant. The uniform service conditions as
and when laid down would not, of course, affect any special or extra
benefits which some States may be bestowing upon their judicial
officers."

The question with regard to the pay scales ill respect of the members
H of the Judicial Service was first referred to the Fifth Central Pay Commission.

,/
 ALL INDIA JUDGES ASSOCIATION v. U.O.l. [KIRPAL, J.] 725

.,.· Subsequently by an amendment made on 24th October, 1996, the reference A

to the Fifth Central Pay Commission with regard to the fixation of the pay
scales of the Judicial Officers was deleted. We may here note that the Fifth
Central Pay Commission submitted its report on 30th January, 1997 which
was accepted by the Government on 30th September, 1997. It became
applicable with retrospective effect, that is to say, with effect from lst January,
1996. This is relevant, when considering the question as to with effect from B
which date the Report of the Shetty Commission is to become effective.

On 2 lst March, 1996, pursuant to the directions issued by this Court in

the review judgment, the Government of India by a Resolution constituted
the First National Judicial Pay Commission under the Chairmanship of Mr. C
Justice K.J. Shetty. As per the said Resolution, the following were the terms
of reference:

"(a) To evolve the principles which should govern the structure of

pay and other emoluments of Judicial Officers belonging to the
Subordinate Judiciary all over the country. D
(b) To examine the present structure of emoluments and conditions
of service of Judicial Officers in the States/UTs taking into account
the total packet of benefits available to them and make suitable
recommendations having regard, among other relevant factors, to the
existing relativities in the pay structure between the officers belonging E
to subordinate judicial service vis-a-vis other civil servants.

(c) To examine and recommend in respect of minimum qualifications,

age ofrecruitment, method ofrecruitment., etc., for Judicial Officers.
In this context, the relevant provisions of the Constitution and
directions of the Supreme Court in All India Judges Association case F
and other cases may be kept in view.

( d) To examine the work methods and work environment as also the

variety of allowances and benefits in kind that are available to Judicial
Officers in addition to pay and to suggest rationalization and

- - simplification thereof with a view to promoting efficiency in Judicial G

Administration, optimising the size of the Judiciary etc."

As the Fifth Central Pay Commission Report had been accepted but no
relief was available to the members of the Judicial Subordinate Service, a
question arose that pending the recommendation of the Shetty Commission
whether any interim orders can be passed giving some relief. Accordingly, on H
 726 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 16th December, 1997, another terms of reference was added according to

which the Commission was empowered to consider and grant such interim
relief as it may consider just and proper to all categories of Judicial Officers
of all the States/Union Territories. It was made clear that the interim relief,.
if recommended, was to be adjusted against and included in the package
which may become admissible to the Judicial Officers on the final
B recommendations of the Commission.

By a preliminary Report dated 31st January, 1998, some interim relief

was granted by Justice Shetty Commission. It is not necessary for our purpose
to refer to the relief so granted, except to note that wherever the relief has
C been granted the same was subject to adjustment on the acceptance, with or
without modification, of the final Report of Justice Shetty Commission. The
Interim Report has been fully implemented by the Union of India in respect
of Union Territotries and by the States.

After thorough deliberations, Justice Shetty Commission submitted its

, D Report on 11th November, 1999. By order dated 14th December, 1999, the
State Governments and the Union Territories were directed to send their
responses to the Union of India so that it could correlate the responses and
indicate its own stand on the recommendations of the Commission.

The recommendations of the Shetty Commission were in respect of the

E following topics:
(I) The High Courts were required to frame the rules specifying
particular age of retirement and it was also recommended that the procedure i'.
prescribed for writing the confidential reports by the self-assessment process
was better and more transparent and should be adopted by the High Court for
F Judicial Officers.

(2) The Commission recommended appropriate nomenclature to be given

to the Judicial Officers. The recommendation was that they should be called·
"Civil Judge" in place of "Civil Judge (Junior Division)" and "Senior Civil
Judg~" in place of "Civil Judge (Senior Division)".
G
(3) It further gave recommendation with regard to equation· of posts of
the Chief Metropolitan Magistrate and Chief Judicial Magistrate. While it
recommended that the Chief Judicial Magistrate should be in the cadre of
Civil Judge (Senior Division), in respect of Chief Metropolitan Magistrate, it
H recommended that it should be pl~ced in the cadre of District Judge.
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.] 727
According to the learned Amicus Curiae, the Chief Metropolitan A
'-L
Magistrate and Chief Judicial Magistrate must be in the same cadre equivalent
·to Civil Judge (Senior Division) and that it should be at par with each other.
We shall deal with this aspect slightly later.

(4) Recommendations were made with regard to recruitment to the

cadre of Civil Judge (Junior Division) Cum-Magistrate First Class as well as B
recruitment to the post of Civil Judge (Senior Division). The recommendation
in this regard was that the posts of Civil Judge (Senior Division) should only
be filled by promotion.

(5) The commission also made recommendation with regard to

appointment to the post of District Judge which includes the Additional District C
Judge in the Higher Judicial Service. It pointed out some problems which had
arisen as a result of direct recruitment to the post of District Judges, the
problem really being with regard to the inter se seniority amongs them.

(6) The Commission also recommended that service Judges who were D
between 35 and 45 years of age should be made eligible for direct recruitment
to the Higher Judicial Service which consists of the posts of District Judges
,,. and Additional District Judges and for this purpose, if necessary, there shOuld
be an amendment to Article 233(2) of the Constitution of India.

(7) With regard to inter se seniority between direct recruits and E

promotees, the Commission recommended that the promotees be given
weightage of one year for every five years of Judicial Service rendered by
them subject to a maximum of three years.

(8) The Report also recommended steps being taken for judicial
education and training. F
(9) With regard to pay scales, the Shetty Commission set out the
principles governing the pay structure of the Subordinate Judiciary. It referred
to the Al/ India Judges' Association case (supra) wherein it had been observed
that the parity in status should be between the po_litical Executive, the
Legislatures and the Judges and not between the Judges and the Administrative G
Executive.

After taking into consideration the recommendations which had been

- made by the Fifth Central Pay Commission and the pivotal role of the
subordinate Judiciary and the essential characteristics of a Judicial officer,
the Shetty Commission evolved a Master Pay scale. It came to the conclusion H
 728 SUPREME COURT REPORTS [2002) 2 S.C.R.

··A that the number of pay scales should be equal to the number of clearly
identifiable levels of responsibility. Scope for promotional avenues must also
be taken into consideration. After considering all the relevant circumstances
the Commission recommended the following scales of pay :
(1) Civil Judges (Jr. Divn.) Rs. 9000-250-10750-300-13l50-350-14530

B (2) Civil Judges (Jr. Divn.) Rs. l 0750-300-13 l 50-350- l 4900

(I stage ACP Scale)

(3) Civil Judges (Sr. Rs. 12850-300-13150-350-15950-400-17550

Divn.) (II Stage ACP
C Scale for Civl Judge)
(Jr.Divn.)

(4) Civil Judge (Sr. Divn.) Rs. 14200-350-15950-400-18350

(I Stage ACP Scale)

D (5) District Judges Entry Rs. 16750-400-19150-450-20500

Level+ (II Stage ACP
for Civil Judges (Sr.
Divn.)

(6) District Judges Rs. 18750-400-19150-21850-500-22850

E (Selection Grade)

(7) District Judges Rs. 22850-500-24850

(Supertime Scale)

In arriving at the aforesaid pay scales, the Commission noted that while
F fixing the maximum of the master pay scale it had been constrained by the
vertical cap of the salaries of the High Court Judges. In 0th.er words, the
District Judges could not get more salary than a High Court Judge whose
salary was statutorily fixed. It, however, recommended that as and when the
salary of a High Court Judge is raised, then the salary of the Judicial Officers
G should also be increased by maintaining the ~atio which it had recommended.
According to the Commission, the pay scales recommended by it should be
deemed to come into force with affect from l st January, 1996, but the monetary
be!Jefit was to be payable with effect from 1st July, 1996. Other allowances~ ---
H
which the Commission had recommended, were to be given affect to from 1st
November, 1999. Taking into consideration that there were at present 12771
posts on regular pay scales, the estimated impact of the introduction of the
-
...,
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.] 729

q1ew pay scales was stated to be of the order of Rs. 95.71 crores for one year. A
(10) The Commission recommended that administration of justice in
the States should be the joint responsibility of the Centre and the States. It
noted that the expenditure on the judiciary in India in terms of Gross National
Product was relatively low : it was not more than 0.2%. The main
recommendation of the Shelly Commission was that the Central Government B
must, in every States, share half of the annual expenditure on subordinate
courts and quarters for Judicial Officers. This was to be without prejudice to
the rights and privileges of the north-eastern States and State of Sikkim
wherein about 90-92% of the expenditure of the States was to be made by
the Central Government under the provisions for special category of States. C

- ·(I I) The Commission also recommended Assured Career Progression

Sc\leme and functional scales. Recommendations were also made with regard
to dearness allowance, allowances for electricity and water charges, home
orderly allowances, newspaper allowances, city compensatory allowance, robe
' allowance, conveyanee allo.wance, sumptuary allowance, hill allowance and D
further recommended provisions with regard to medical facilities, leave travel
concession, special pay, concurrent charge allowance, encashment of leave
and level salary, composite transfer grant allowance, housing and house rent

- allowance, telephone facilities and advances of loans to the Judicial Officers.

(12) The Report also made recommendation to the effect that there
should be an increase in the retirement, age of the Judicial Officers from 60
E

to 62 years and recommendations were also made with regard to retirement

benefits.

(13) One more recommendation which was made for retired Judicial
Officers was that cash payment of Rs. 1,250 per month should be given as F
domestic help allowance to enable the retired Judicial Officer to engage a.
Servant.

(14) Another recommendation which was made was for the establishment
of an All India Judicial Service.
• G
Pursuant to the order which was passed by this Court requiring the
response of the various States to be given to the Union oflndia, it was noted
in this Court's order of 27th August, 2001 that six States, namely, those of
West Bengal, Assam, Karnataka, Manipur, Kerala and Mizoram had accepted
the recommendations of the Shelly Commission and had agreed to implement H
 730 SUPREME COURT REPORTS [2002] 2 S.C.R.

A the same subject to the Union of India bearing 50 percent of the expenditure
as envisaged in the Report. The States of Bihar and Jharkhand had also
conveyed that they were accepting the Shetty Commission Report subject to
the Union of India bearing 50 per cent of the expenditure and the Report
being further modified and scaled down. Affidavits have also been filed by
B the States of Andhra Pradesh and Haryana with regard to the scales of pay
accepted by them.

From the various affidavits which have been filed and the responses
given to the Union of India, we find that none of the States has accepted the
recommendation of the Shetty Commission with regard to the pay scales in
C toto.

Pursuant to an order dated 27th August, 200 l, an affidavit has also

been filed by Shri Kamal Pande, Secretary, Government of India, Department
-
of Justice detailing the decisions taken by the Central Government with regard
to the Judicial Officers in the Union Territories. According to this affidavit,
D with regard to the Union Territory of Delhi the pay scales which have been· ,
accepted by the Union of India are as follows :

Civil Judge (Jr. Division) -Rs. 8000-275-13500

Civil Judge (Senior Time Scale) -Rs.10650-325-15850
E
Senior Civil Judge -Rs.12750-375-16500
District Judge (Entry Level) -Rs.15100-400-18300
District Judge (Selection Grade) -Rs.18400-500-22400
(20% of the posts of District Judges)
F.
We have heard the learned Amicus Curiae as well as the learned Solicitor
General and the Advocates General for the State of Karnataka and other
learned counsel. We will first deal with some of the contentious issues on
which arguments have been addressed and also deal with the recommendations
G of the Shetty Commission which, in our opinion, need modification or cannot
be accepted as such.
The most important point in these proceedings appears to us to be as
to whether the recommendation of the Shetty Commission laying down
different scales of pay should be accepted or not. It is to be borne in ,mind
H that pursuant to the judgment in the review case (1983] 4 sec 288 the
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KI_RPAL, J.] 731

Central Government had accepted the recommendation and had constituted A

the Shetty Commission. Correspondingly, it had deleted from the terms of
reference of the Fifth Central Pay Commission the consideration in respect
of the pay scales of the Judicial Officers. Therefore, it can safely be concluded
that the Central Government had agreed to set up a Pay Commission
specifically for Judicial Officers and normally the recommendations made in B
that behalf should be accepted unless for some specific and valid reason a
departure was required to be made. We may here bear in mind that the Fifth
Central Pay Commission Report which was submitted has been largely
·a~cepted by the Government of India with little or no modification. It was,
therefore, rightly urged by Shri F.S. Nariman that there must be good and
compelling reason for the States and the Central government in not accepting C
the recommendations of the Shetty Commission.
From the facts narrated hereinabove, it is clear that atleast eight of the
States have accepted the recommendations of the Shetty Commission provided
the Central Government bears 50 percent of the expense. This means that
in principle there is acceptance of the pay scales as determined by the Shetty D
Commission.

The Central Government, however, has evolved its own pay scales with
regard to the Subordinate and the Higher Judicial Service in the Union
Territories, including the Union Territory of Delhi. The pay scales which
have now been approved by the Government of India had been formulated E
on the basis that the~ should be a parity between the Executiv.e and the
Judiciary. Mr. Nariman rightly contended that this basis is contrary to the
decision of this Court in the All India Judges' Association case (supra) as
well as in the review judgment. It was stated in no uncertain terms that the
Judiciary could not be equated with the Executive and it must have its own F
pay structure.

Even if we were to examine the two scales of pay, one for the l.A.S.
officers after the Fifth Central Pay Commission Report and the scales of pay
recommended for the Judicial Service, we find that there is a fundamental
error which has been committed by the Union of India. Then scales of pay G
approved for the l.A.S. officers are as follows :
Junior Scale -Rs. 8000-275-13500
Senior Scale :
(i) Time Scale -Rs. 10650-325-15850
H
 732 SUPREME COURT REPORTS (2002) 2 S.C.R.

A (ii) Jr. Admn. Grade -Rs. 12750-375-16500

......
(iii) Selection Grade -Rs. 15 l 00-400-18300

(iv) Super Time Scale -Rs. 18400-500-22400

(v) Above ST Scale -Rs. 22400-525-24500

B
Secretary to Govt .. of India -Rs. 26000 (fixed)

Cabinet Secretary -Rs. 30000 (fixed)

What the Union of India has done is that it equated the District Judge
C at this entry level with the Selection Grade for the I.A.S. officers. The pay
scale approved is Rs. 15100-400-18300. We, however, find that an I.A.S.
officer enters the Selection Grade after having put in approximately 14 years
of service. On the other hand, Civil Judge would normally enter the level of
the District Judge, and is appointed first as an f:dditional District Judge, after
having put in 18 to 20 years of service. As far as the I.A.S. Officers are
D concerned, after 17 years of service, an I.A.S. officer would normally enter
the Super Time Scale of Rs. 18400-500-22400. If the number of years which
are put in service, is a measure to be adopted in determining as to what
should be the pay scales, we find that the Government of India has erred in
equating the District Judge at the entry level with the scale of pay of a
E Selection Grade l.A.S. Officer. The proper equation should have been between
the District Judge at the entry level with a Super Time Scale of an l.A.S~
Officer. It is on that basis that the scale of pay should have been determined >--
)
upwards and downwards.

The Shetty Commission has trifurcated the scales of pay as far as the
F District Judges are concerned. It has recommended scales of pay of a District
Judge at the entry level at Rs. 16750-20500, District Judge {Selection Grade)
at Rs. 18750-22850 and District Judge (Super Time Scale) at Rs. 22850-
24850. As we have already noted, a Judicial Officer would enter the District
Judge (Entry Level) after having put in 18-20 years of service. The scale of
pay o(Rs. 16750-20500 recommended by the Shetty Commission is lower
G than the Super Time Scale for an l.A.S. Officer of Rs. 18400-22400, when
such an officer enters the Super Time Scale after 17 years of service. A
Judicial Officer enters the Selection Grade of a District Judge after having
put in 21 to 25 years of service. The pay scale recommended by the Shetty
Commission is Rs. 18750-22850. This is less than the scale above ST Scale
H recommended for an I.A.S. officer which is of Rs. 22400-24500 even though '
 ALL INDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.] 733
...,,, an I.A.S. officer enters that scale after having put in 25 years of service A
which is at par with the number of years put in by a Judicial Officer on his
ill.
entry into Selection Grade. It is only the District Judge (Super Time Scale)
as recommended by the Shetty Commission which is comparable with the
last scale of an I.A.S. Officer.

From the aforesaid, it is clear, and it is so mentioned in the Shetty B

Commission Report, that the said Commission has taken into consideration
the recommendation of the Fifth Central Pay Commission while determining
the pay scales for the Judicial Officers. In our opinion, the pay scales
recommended by the Shetty Commission are just and reasonable. Considering
the years of service put in by the Judicial Officer at different stages, the
parity in the scale of pay recommended by the Shetty Commission for the
c
Judicial Officers with the scales of pay of l.A.S. officers is not, by and large,
disturbed. In fact, the scale of pay recommended by the Shetty Commission
appear to us to be somewhat lower, on the average, than the scales of pay
recommended for an I.A.S. officer is we take into consideration, as we must
do, the number of years a Judicial officer has put in service. We are therefore, D
of the opinion that the pay scales recommended by the Shetty Commission
should be accepted. We wish to emphasise that even though in the earlier
judgments, is has rightly been said that there should be no equation or parity
between the Judicial Service and the Executive Service, nevertheless even on
the basis that there should not be great distortion in the pay scales of the
E
Judicial Officer vis-a-vis the Executive, we find the recommendations made
by the Shetty Commission as just, fair and reasonable.

... The next question which arose for consideration is whether the Shetty
~ Commission was justified in recommending that 50 per cent of the expense
should be borne by the Central Government. It has been contended by tne F
learned Advocate General for the State of Karnataka as well as on behalf of
the other States that the Judicial Officers working in the States deal not only
with the State laws but also with the federal laws. They, therefore, submitted
that, in fairness of things, the Central Government should bear half of the
expense of the Judiciary.
G
The learned Solicitor General, however, submitted that the
recommendation of the Shetty Commission that the Union of India should
bear 50 per cent of the total expense was inconsistent with the Constitutional
set-up. Had there been an All India Judicial Service, then the Union of India
may have been under an obligation to bear the expense, but as the State H
 734 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Governments had not agreed to the establishment of the All India Judicial
Service and no legislation had been passed under Entry 11 A of List III by the
Parliament, therefore it will not be correct to direct the Central Government
to bear 50 per cent of the expense on the Judicial system. The learned Solicitor
General submitted that the obligation to meet the expenses of the Judicial
B Service, except for the Supreme Court and the Courts, in the Union Territories,
was on the State Governments. He contended that when allocation of funds
between the Centre and the States takes place the expenses which the States
are required to meet in connection with the administration of justice is a
factor which is taken into consideration. The provision for devolution of
funds from the Union to the States is either by assignment of taxes or
C distribution of taxes or by grants-in-aid. As and when the m~ed arises, either
the Finance Commission or the Union of India allocates more funds to the
States.

It has not been disputed that at present the ·entire expense on the
administration of justice in the States is incurred by the respective States. It
D is their responsibility and they discharge the same. Logically, ifthere is to be (

any increase in the expenditure on Judiciary, then it would be for the States
to mobilise the resources in such a way whereby they can meet expenditure
on Judiciary for discharging their constitutional obligations. Merely because
there is an increase in the financial burden as a result of the Shetty Commission
E Report being accepted, can be no ground for fastening liability on the Union
of India when none exists at present. Accordingly, disagreeing on this point
with Justice Shetty Commission recommendations, we direct th~t I
the entire
expenditure on account of the recommendations of the Justice Shetty
Commission as accepted be borne by the respective States. It is for the States
to increase the court fee or to approach the Finance Commis~ion or the Union
F of India for more allocation of funds. They can also mobilies their resources
in order to meet the financial obligation. If such a need arises and the States
approach the Finance Commission or the Union of India for allocation of
more funds, we have no doubt that such a request shall be favourably
considered.

G Mr. F.S. Nariman has drawn our attention to yet another important
aspect with regard to dispensation of justice, namely, the huge backlog of
undecided cases. One of the reasons which has been indicated even in the
120th Law Commission Report was the inadeuquate strength of Judges
compared to the population of the country. Even the Standing Committee of
-
H Parliament headed by Shri Pranab Mukherjee in its 85th Report, submitted in
 ALL INDIA JUDGES ASSOCIATION v. U.O.l. [KIRPAL, J.] 735

February, 2002, to Parliament, has recommended that there should be an A

increase in the number of Judges. The said committee has noted the Judge-
population ratio in different countries and has adversely commented on the
judge-population ratio of 10.5 judges per IO lakh people in India. The Report
recommends the acceptance, in the first instance, of increasing the judge
strength to 50 judges per I 0 lakh people as was recommended by the I 20th B
Law Commission Report.

An independent and efficient judicial system is one of the basic structures

of our Constitution. If sufficient number of judges are not appointed, justice
would not be available to the people, thereby undermining the basic structure.
It is well known that justice delayed is justice denied. Time and again the C
inadequacy in the number of judges has adversely been commented upon.
Not only have the Law Commission and the Standing Committee of Parliament
made observations in this regard but even the Head of the Judiciary, namely,
the Chief Justice of India has had more occasioned than once to make
observations in regard thereto. Under the circumstances, we feel it is our
constitutional obligation to ensure that the backlog of the cases is decreased D
and efforts are made to increase the disposal of cases. Apart from the steps
which may be necessary for increasing the efficiency of the Judicial officers,
we are of the opinion that time has now come for protecting one of the pillars
of the Constitution, namely, the judicial system, by directing increase, in the
first instance, in the Judge strength from the existing ratio of 10.5 or 13 per E
IO lakhs people to 50 judges for IO lakh people. We are conscious of the fact
that overnight these vacancies cannot be filled. In order to have additional
judges, not only will the posts have to be created but infrastructure required
in the form of additional court rooms, buildings, staff, etc., would also have
to be made available. We are also aware of the fact that a large number of
vacancies as of today from amongst the sanctioned strength remain to be F
filled. We, therefore, first direct that the existing vacancies in the Subordinate
Courts at all levels should be filled, if possible latest by 3 lst March, 2003,
in all the States. The increase in the Judge strength to 50 judges per I 0 lakh
people should be effected and implemented with the filling up of the posts
in a phased manner to be determined and directed by the Union Ministry of G
Law, but, this process should be completed and the increased vacancies and
posts filled within a period of five years from today. Perhaps increasing the
Judge strength .by I 0 per I 0 lakh people every year could be one of the
methods which may be adopted thereby completing the first stage within five
years before embarking on further increase if necessary.
H
 736 SUPREME COURT REPORTS [2002) 2 S.C.R.

A The Shetty Commission had recommended that there should be an

increase in retirement age from 60 to 62 years. In our opinion, this cannot be
done for the simple reason that the age of retirement of a High Court Judge
is constitutionally fixed at 62 years. It will not be appropriate, seeing the
Constitutional framework with regard to the Judiciary, to have an identical
B age of retirement between the members of the Subordinate Judicial Service
and a High Court. As of today, the age of retirement of a Supreme Court
Judge is 65 years, of a High Court Judge it is 62 years and logically the age
of retirement of a Judicial._9fficer is 60 years. This difference is appropriate (
and has to be maintained. ~owever, as there is a backlog of vacancies which i
has to be filled and as the Judge strength has to be increased, as directed by
C us, it would be appropriate for the States in consulation with the High Court
to amend the service rules and to provide for re-employment of the retiring
Judicial Officers till the age of 62 years if there are vacancies in the cadre
of the District Judge. We direct this to be done as early as possible.

Another question which falls for consideration is the method of

D recruitment to the posts in the cadre of Higher Judicial Service i.e. District
Judges and Additional District Judges. At the present moment, there are two
sources for recruitment to Higher Judicial Service, namely, by promotion
from amongst the members of the Subordinate Judicial Service and by direct
recruitment. The Subordinate Judiciary is the foundation of the edifice of the
E judicial system. It is, therefore, imperative, like any other foundation, that it
should become as strong as possible. The weight on the Judicial system
essentially rests on the Subordinate Judiciary. While we have accepted the
recommendation of the Shetty Commission which will result in the increase
in the pay scale of the Subordinate Judiciary, it is at the same time necessary
that the Judicial officers, hard-working as they are, become more efficient. It
F is imperative that they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty Commission has
recommended the establishment of a Judicial Academy which is very
necessary. At the same time, we are of the opinion that there has to be certain
minimum standards, objectively adjudged, for officers who are to enter the
G Higher Judicial Service as Additiol1al District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment to the
Higher Judicial Service i.e. the District Judge Cadre from amongst the advocate
should be 25 per cent and the process of recruitment is to be by a competitive .
examination, both written and viva voce, we are of the opinion that there
should be an objective method of testing the suitability of the Subordinate
H Judicial officers for promotion to the Higher Judicial Service. Furthermore,
 ALLINDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL, J.] 737

there should also be an incentive amongst the relatively junior and other A
officers to improve and to compete with each other so as to excel and get
quicker promotion. In this way, we expect that the calibre of the members of
the Higher Judicial Service will further improve. In order to achieve this,
while the ratio of 75 per cent appointment by promotion and 25 per cent by
direct recruitment to the Higher Judicial Service is maintained, we are, B
however, of the opinion that there should be two methods as far as appointment
by promotion is concerned: 50 per cent of the total posts in the Higher
Judicial Service must be filled by promotion on the basis of principle of
merit-cum-seniority. For this purpose, the High Courts should devise and
evolve a test in order to ascertain and examine the legal knowledge of those
candidates and to assess their continued efficiency with adequate knowledge C
of case law. The remaining 25 per cent of the posts in the Service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying service as a
Civil Judge (Senior Division) should be not less than five years. The High

. Courts will have to frame a rule in this regard.

As a result of the aforesaid, to recapitulate, we direct that recruitment

D
to the Higher Judicial Service i.e. the cadre of District Judges will be:

[I] (a) 50 per cent by promotion from amongst the Civil Judges (Senior
Division) on the basis of principle of merit-cum-seniority and
passing a suitability test; E
(b) 25 per cent by promotion strictly on the basis of merit through

. limited competitive examination of Civil Judges (Senior Division)

having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from F
amongst the eligible Advocates on the basis of the written and
viva voca test conducted by respective High Courts.

[2] Appropriate rules shall be framed as above by the High Courts as

early as possible.

Experience has shown that there has been a constant discontentment G

•· amongst the members of the Higher Judicial Service in regard to their seniority
in service. For over three decades large number of)c)!Ses have been instituted
in order to decided the relative seniority from 1?W'officers recruited from the
two different sources, namely, promotees and direct recruits. As a result of
the decision today, there will, in a way, be three ways -0f recruitment to H ·
 738 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Higher Judicial Service. The quota for promotion which we have prescribed
is 50 per cent by following the principle "merit-cum-seniority", 25 per cent
strictly on merit by limited departmental competitive examination and:25 per
cent by direct recruitment. Experience has also shown that the le.ast ·amount
of litigation in the country, where quota system in recruitment exists, in so
B far as seniority is concerned, is where a roster system is followed. For example,
there is, as per the Rules of the Central Government, a 40-point roster which
has been prescribed which deals with the quotas for Scheduled Castes and
Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the
I
members of the Service after their recruitment as per the quotas, the seniority >- (
is fixed by the roster points and irrespective of the fact as to when a person
C is recruited. When roster system is followed, there is no question of any
dispute arising. The 40-point roster has been considered and approved by this
Court in R.K. Sabharwal and Ors., v. State of Punjab reported in [1995] 2
SCC 745. One of the methods of avoiding any litigation and bringing about
certainty in this regard is by specifying quotas in relation to posts and not in
relation to the vacancies. This is the basic principle on the basis of which the
D 40 point roster works. We direct the High Courts to suitably amend and
promulgate Seniority Rules on the basis of the roster principle as approved
by this Court in R.K. Sabharwal's case (supra) as early as possible. We hope
that as a result thereof there would be no further dispute in the fixation of
seniority. It is obvious that this system can only apply prospectively except
E where under the relevant Rules seniority is to be determined on the basis of
quota and rotational system. The existing relative seniority of the members
of the Higher Judicial Service has to be protected but the roster has to be
evolved for the future. Appropriate rules and methods will be adopted by the
High Courts and approved by the States, wherever necessary by 31st March,
2003.
F
We disapprove the recommendation of giving any weightage to the
members of the Subordinate Judicial Service in their promotion to the Higher
Judicial Service in determining seniority vis-a-vis direct recruits and the
promotees. The roster system will ensure fair play to all while improving
G efficiency in the service.

As we have already mentioned, the Shetty Commission had

recommended that Chief Metropolitan Magistrates should be in the cadre of
-"'r
-
l

District Judges. In our opinion, this is neither proper nor practical. The appeals
. from orders passed by the Chief Metropolitan Magistrates under the provisions
H of t!te Code of Criminal Procedure are required to be heard by the Additional
 ALLINDIA JUDGES ASSOCIATION v. U.0.1. [KIRPAL,J.] 739

-
Sessions Judge or the Sessions Judge. If both the Additional Sessions Judge A
... and the Chief Metropolitan Magistrate belong to the same cadre, it will be
paradoxical that any appeal from one officer in the cadre should go to another
officer in the same cadre .. If they belong to the same cadre, as recommended
by the Shetty Commission, then it would be possible that the junior officer
would be acting as an Additional Sessions Judge while a senior may be
holding the post of Chief Metropolitan Magistrate. It cannot be that against B
the orders passed by the senior officer it is the junior officer who hears the
' appeal. There is no reason given by the Shetty Commission as to why the
'.'l.. post of the Chief Metropolitan Magistrate be manned by the District Judge,
especially when as far as the posts of the Chief Judicial Magistrate are
concerned, whose duties are at par with that of the Chief Metropolitan c
- Magistrate, the Shelly Commission has recommended, and in our opinion
rightly, that they should be filled from amongst Civil Judges (Senior Division).
Considering the nature and duties of the Chief Judicial Magistrate and the
Chief Metropolitan Magistrates, the only difference being their location, the
posts of Chief Judicial Magistrate and Chief Metropolitan Magistrate have to
... be equated and they have to be placed in the cadre of Civil Judge (Senior D
.. J'
Division). We order, accordingly .

In the Al/ IndiaJudges's case [1993] 4 SCC 288 atp. 314; this Court
has observed that in order to enter the Judicial Service, an applicant must be

- an Advocate of at least three year's standing. Rules were amended accordingly.

With the passage of time, experience has shown that the best talent which is
available is not attracted to the Judicial Service. A bright young law graduate
E

after 3 year of practice finds the Judicial Service not attractive enough. It has
> been recommended by the Shetty Commission after taking into consideration
....._ the views expressed before it by various authorities, that the need for an
applicant to have been an Advocate for at least 3 years should be done away F
with. After taking all the circumstances into consideration, we accept this
recommendation of the Shetty Commission and the argument of the learned
Amicus Curiae that it should be no longer mandatory for an applicant desirous
of entering the Judicial Service to be an Advocate of at least three years'
standing we accordingly, in the light of experience gained after the judgment
----· in All India Judges' cases direct to the High Courts and to the State
G
... Governments to amend their rules so as to enable a fresh law graduate who
may not even have put in even three years of practice, to be eligible to
._ compete and enter the Judicial Service. We, however, recommend that a
fresh recruit into the Judicial Service should be imparted with training of not
less than one years, preferably two years. H
 740 SUPREME COURT REPORTS [2002) 2 S.C.R.

A The Shetty Commission has recommended Assured Career Progessive

Scheme and Functional Scales. We have accepted the said recommendation
and a suggestion was mooted to the effect that in order that a Judicial Officer
does not feel that he is stagnated there should be a change in the nomenclature
with the change of the pay scale. A suggestion has been moted by Shri F.S.
Nariman, the learned Amicus Curiae that the nomenclature in each cadre
B sho~ld be as follows:
A. Civil Judge (Junior Division Cadre) at entry level:

l. Civil Judge t
c 2. Civil Judge, Grade-II

3. Civil Judge, Grade-I -

B. Civil Judge (Senior Division Cadre) at intermediary level;

D 1. Senior Civil Judge

2. Upper Senior Judge

3. Superior Senior JUdge

E These are only suggestions which are made and it will be more
appropriate for each State, taking into consideration the local requirements,
to adopt appropriate nomenclatures. It would be appropriate to mention at
tllis stage that in some States, the entry point to the Judicial was at the level
-
of a Munsiff or a Subordinate Judge. Those are nomenclature which are also {
to be considered but what is important is that in respect of each scale the
F nomenclature should be different. In this way a Judicial Officer will get a
feeling that he has made progress in his judicial career with his nomenclature
or designation changing with an upward movement .within the Service.

One of the recommendations of the Shetty Commission is in relation to

the grant of the house rent allowance. The recommendation is that official
G accommodation should be made available to the members of the Judicial
Service who should pay 12.5% of the salary as rent. The Commission further
recommends that in addition to the allotment of the said premises, the Judicial
Officer should also get house rent allowance. In our opinion, this double
benefit is uncalled for. It is most desirable and imperative that free Government
H accommodation should be made available to the Judicial officers. Taking into
 ALL!NDIA JUDGES ASSOCIATION v. U.0.1. [KJRPAL, J.] 741

-
consideration, the fact that the accommodation which is made a.vailable to the A
Judges of the Supreme Court as well as the High Courts is free of charge,
we direct that the official accommodation which is allotted to th.e Judicial
Officers should likewise be free of charge but no house rent allowance will
be payable on such an allotment being made. If, however, the Government
for any reason is unable to make allotment, or make available official
accommodation, then in that event the Judicial Officer would be entitled to B
get house rent allowance similar to that which has been as existing or as
directed by the Shetty Commission whichever is higher. However it is made
clear that once a Government or official accommodation is allotted to an
officer and in pursuance thereof he occupies such an accommodation, he
would not be entitled to draw house rent allowance. C

There are a number of other allowances which have been referred to by

the Shetty Commission, some of which have not been accepted by the Central
Government. For example, allowance of Rs. 2,500 to be paid to enable the
engagement of a servant by a Judicial Officer. We do not think such a
suggestion made by the Shetty Commission to be appropriate and the Central D
Government has rightly not accepted the same. Another suggestion which
has been made by the Shetty Commission is that 50 per cent of the electricity
and water charges of the residences of the Judicial Officers should be
reimbursed by the Government. There is merit in this suggestion subject to
a cap being placed so that the 50 per cent expense does not become very E
exorbitant. This allowance should be paid, inasmuch as Judicial Officers do
and are required to work at their residence in discharge of their judicial
duties. Therefore, it will not be inappropriate that 50 per cent of the electricity
,
. and water charges should be borne by the State Government .

Subject to the various modifications in this Judgment, all other F

recommendations of the Shetty Commission are accepted.

We are aware that it will become necessary for service and other rules
to be amended so as to implement this judgment. Firstly, with regard to the
pay scales the Shetty Commission has approved the pay scales with effect
from lst January, 1996 but has directed the same to be paid with effect from G
1st July, 1996. The pay scales as so approved by us are with effect from I st
July, 1996. However, it will take some time for the States to make necessary
financial arrangements for the implementation of the revised pay scales. The
Judicial officers shall be paid the salary in the revised pay scales as approved
by this Court with effect from !st July, 2002. The arrears of salary between H
 742 SUPREME COURT REPORTS [2002) 2 S.C.R.

A lst July, 1996 to 30th June 2002, will either be paid in cash or the State may
make. the payment by crediting the same in the Provident Fund Account of
the respective Judicial Officers. Furthermore, the payment by credit or
otherwise should be spread over between the years lst July, 1996 to 30th
June, 2002 so as to minimise the income tax liability which may be payable
thereon. In calculating the arrears, the Government will, of course, take into
B account the interim relief which had been granted and drawn by the Judicial
Officers. The amount to be credited in the Provident Fund Account would
also be after deducting the income tax payable. .•

The States as well as the Union of India shall submit their compliance
C report by 30th September, 2002. Case be listed thereafter for further orders.

Any clarification that may be required in respect of any matter arising

out of this decision will be sought only from this Court. The proceedings if
any, for implementation of the directions given in this judgment shall be filed
only in this Court and no other Court shall entertain them.
D
Before concluding, we record our high appreciation for the assistance
rendered by the learned Amicus Curiae-Shri F.S. Nariman, · Shri Subhash
Sharma, Shri C.S. Ramulu, Shri A. T.M. Sampath and all other learned counsel. "'·
K.K.T. Accepting the Shetty Commission Report.

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