1. Review petitions by Union and States challenging directions to improve service conditions of subordinate judiciary members. (Para 1 )
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1993 Supreme(SC) 698
SUPREME COURT OF INDIA
M. N. VENKATACHALIAH, C.J.I., A. M. AHMADI AND P. B. SAWANT, JJ.
All India Judges Association and others, Petitioners
Versus
Union of India and others, Respondents.
Review Petn. No. 249 of 1992 in Writ Petn. No. 1022 of 1989 with (Review Petn. Nos. 9, 319-21, 423, 592-93 and 753 of 1992 and I. A. Nos. 2 and 4 in Review Petn. No. 249 of 1992) with S. L. P. (Civil) No. 14505 of 1992 with Writ Petn. (Civil) No. 71 of 1993
Decided on 24-8-1993.
WITH
State of H.P., Petitioner
Versus
High Court of Himachal Pradesh, Respondent.
WITH
Shamsher Bahadur Singh, Petitioner
Versus
State of Bihar and another, Respondents.
Important Points
The judiciary is distinct from the administrative executive, and its service conditions must be determined independently to ensure judicial independence. The Court can mandate minimum service conditions, including recruitment qualifications and retirement age, to protect the independence of the judiciary and the rule of law.
Subject
Constitutional Law - Judicial Service
Act Referred
Headnote
Constitution of India, Art 137-petition for review-maintainability of-pleas raised and advanced in the earlier original application and considered in the judgment- no new grounds made for review-application "stric to senu" not maintainable-The judicial Service is not Service in the sense of employment - Judges are not employees and they exercise sovereign judicial power of the Stare and can not be placed at par with other services-(1992) 1 SCC 119 ref. (Para 4)
Constitution of India, Art.233, 234-Judiclal service-recruitment-fixing of minimum qualification at (he lowest rung not uniformed - necessity of prescribing of practicing period as minimum qualification emphasised-direction issued to all the States to prescribe three years practice as lawyer as one of essential qualification for recruitment as a judicial officer for strengthing administration of justice. (Paras 7 & 10)
Constitution of India, Art.234, 236, 309 & 312-judicial service-determination of service conditions-works of the judicial officers through out the country being the same the service conditions be uniformed-recommendations made by Law Commission as for back as in 1958 to further the mandate to make proper justice available to the people has been consistently ignored by the executive and the legislature by neglecting to improve the Service Conditions-by giving directions the court has only called upon the legislature to implement their imperative duties-the power to issue mandates in proper cases belongs to courts-directions given should not be looked upon as an encroachment on the powers of the executive and legislature to determine the service conditions of the judiciary - directions are for performing long over due obligatory duties and for evolvement of an appropriate national policy by the Govt. in regard to the Judiciary's service conditions - plea of financial burden not tenable and rejected - setting up of All India Judicial Service and recruitment by selection by separate Commission, prescribing service conditions and uniform pay scale reiterated and emphasized (1992) 1 SCC 119, AIR 1981 SC 411, AIR 1990 SC 1927, (985) 4 SCC 417 ref. (Paras 1, 4, 6, 7 & 10)
Constitution of India Art.233, 234 & 236 - judicial service-direction of enhancement of age of superannuation to 60 years not illegal - directions given for providing library and accommodations-constructions of adequate number of homes modified-sumptuary allowance to District Judges and Chief Judicial Magistrates withdrawn.
Legal Category Hierarchy
- constitutional law
- administrative law
Advocates:
A.K.SRIVASTAVA, A.Subhashini, B.K.PRASAD, M.J.VIJAYVARDHAN RAO, M.VIRAPPA, N.S.SAINI, NILIMA SHANGIA, Niranjana Singh, RAMLU, V.BHASKAR RAO
A.K.SRIVASTAVA, A.Subhashini, B.K.PRASAD, M.J.VIJAYVARDHAN RAO, M.VIRAPPA, N.S.SAINI, NILIMA SHANGIA, Niranjana Singh, RAMLU, V.BHASKAR RAO
Table of Contents
2. Executive and legislature hold exclusive power to regulate service conditions under Articles 233, 234, and 309; directions impose undue financial burdens and disrupt parity with other services. (Para 1 , 2 )
3. Judicial service is distinct from administrative employment as judges exercise sovereign power; judicial independence requires adequate service conditions to prevent executive influence. (Para 4 , 5 , 6 )
4. The judiciary is a sovereign organ distinct from the administrative executive; courts may direct the state to perform obligatory duties to ensure judicial independence and efficiency. (Para 4 , 5 , 6 )
5. Review petitions disposed of with modified directions on superannuation age, recruitment qualifications, and allowances, while maintaining requirements for uniform hierarchy and residential accommodation. (Para 7 , 10 , 11 )
6. Is the judicial service comparable to other administrative government services regarding service conditions?
No. Judicial service is not mere employment but the exercise of sovereign judicial power. Parity exists between the judiciary and the political executive, not the administrative executive, to ensure judicial independence and prevent the judiciary from being treated as a subordinate administrative wing. (Para 4 , 5 )
7. Can the judiciary issue directions on service conditions despite the executive's power under Article 309?
Yes. While Article 309 empowers the executive and legislature, the court can issue directions to perform obligatory duties when the state fails to ensure the minimum conditions necessary for judicial independence and the proper administration of justice. (Para 6 )
8. What are the essential qualifications and selection procedures for recruitment to the lowest rung of the judiciary?
A minimum of three years of legal practice is an essential qualification. In selections made by the Public Service Commission, a High Court representative must participate, and their advice should prevail unless strong, cogent reasons are recorded in writing. (Para 7 , 10 )
9. How is the enhanced superannuation age of 60 years applied to judicial officers?
The superannuation age is extended to 60, but High Courts must evaluate an officer's continued utility at age 58. Those found unfit for continued useful service are compulsorily retired at 58, while those found fit receive the benefit of extension. (Para 7 , 10 )
10. What is the state's obligation regarding residential accommodation for judicial officers?
The state must prioritize providing adequate residential accommodation, including an exclusive office-cum-study room, at a rental not exceeding 12.5% of the officer's salary, as this is a primary requirement for the proper discharge of judicial duties. (Para 7 , 10 )
JUDGMENT
SAWANT, J.:—These review petitions have been filed by the Union of India and various States raising general objections as well as objections to the specific directions given by this Court vide our judgment dated 13th November, 1991# to improve the service conditions of the members of the subordinate judiciary in the country. The general objections which are common in all the petitions may be summarised as follows :
#Reported in AIR 1992 SC 165.
(a) As per Arts. 233 and 234 of the Constitution, the appointment to the posts of District Judges as well as to the posts other than those of the District Judges under the Judicial Service of the State are made by the Governor of the State. The power to regulate their conditions of service belongs to the executive subject to the legislative control. It is entirely in the purview of the respective State legislature, Government to determine the conditions of service and as such this power given to the State Legislature and the State Government is whittled down or curtailed by issuance of the specific directions in this regard by this Court.
(b) In S. L. Sachdev v. Union of India, AIR 1981 SC 411, para 13, this Court has laid down that the Court cannot interfere with or change the administrative policy of the Government unless it violates some provisions of the Constitution such as Art. 14 which requires that even an administrative authority must act fairly and treat its employees equally. No such ground was raised in the writ petition.
(c) The respective State Subordinate Judicial Services have service conditions that have been gradually developed and evolved over long years along with the service conditions of other Government services in the States/ Union Territories. Any change in the service conditions of the Subordinate Judiciary in isolation is bound to generate some demands from other services and it may be difficult for the State to resist such demands.
(d) The question of uniformity in service conditions is a question of policy pertaining to the respective State Governments which alone are competent to decide on the said issue and such decisions on the issue have various implications and ramifications which have to be determined by the respective State Governments by taking into account its financial limitations.
(e) The directions given by this Court involve a very heavy financial outlay and the State Governments with varying degrees of resources cannot implement the directions without considering and taking into account their own financial resources. Hence it is not possible to bring about uniformity in service
(f) The State Governments have constituted from time to time, State Pay Commissions for examining and scales to the members of the Subordinate Judicial Service in view of the variations in conditions from place to place and from State to State both qualitatively and quantitatively. Hence the feasibility of referring the question of appropriate pay-scales of judicial officers to the State Pay Commissions deserves careful consideration. It may be possible to strive towards uniformity of pay-scales over a period of time with the co-operation of all the States.
(g) A mandatory direction enjoining upon the State to allocate resources to a specific activity would greatly impair the competence of the executive and the legislature to decide relative priorities in respect of the allocation of available resources on developmental and non-developmental activities. Any direction by the Government which involves spending sums out of the Consolidated Fund of the State/ Union Territory, would amount to a direction to the State legislature/ Parliament for carrying out necessary legislation for relevant appropriation. Such a direction cannot be given by the judiciary to the legislature.
(h) In terms of Art. 309 of the Constitution, matters concerning appointment, promotion, terms of conditions of service of the Subordinate Judiciary are to be decided by the State Government/Union Territ
