SHETTY COMMISSION REPORT

1. INTRODUCTION

Prenatal History of the Commission :

1.1 Though there has been separation of judiciary from the executive, and though the powers and functions of Judicial Officers are quite different from powers and functions of the Executive Officers, the service conditions of Judicial Officers, however, have been tagged with those of the corresponding Executive Officers. Even the scales of pay of the Judicial Officers were related or made identical with the pay scales of the corresponding level of Executive Officers of the State Civil Service.

1.2 The repeated efforts of the Judicial Officers to get an improved service conditions and delink their pay scales from the corresponding Executive Cadres became successful. The State Governments did not accede to their request.

All India Judges’ Association v. Union of India1 :

1.3 In 1989, the All India Judges’ Association and its Working President, filed Writ Petition (Civil) No.1022 of 1989 before the Supreme Court of India under Article 32 of the Constitution seeking many reliefs as to improve the conditions of service of subordinate Judicial Officers all over the country. But during the hearing of the petition, only the following reliefs were highlighted:

( i ) Uniformity in the Judicial cadres in different States and Union Territories;

( ii ) An appropriate enhanced uniform age of retirement for the Judicial Officers through-out the country;

( iii ) Uniform pay scales as far as possible to be fixed;

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1. All India Judges’ Association v. Union of India, AIR 1992 SC 165=(1992) 1 SCC 119.

( iv ) Residential accommodation to be provided to every Judicial Officer;

(v) Transport facility to be made available and conveyance allowance provided;

(vi) Adequate perks by way of Library Allowance, Residential Office Allowance, and Sumptuary Allowance to be provided;

and,

(vii) Provision for inservice training to be made.

The Judgment of the Supreme Court in the All India Judges’ Association Case :

1.4 A three Judge Bench of the Supreme Court, after hearing the representatives of the Union of India, all the States and Union Territories, disposed of the said Writ Petition by judgment dated 13 November 1991. Ranganatha Misra, Chief Justice, who spoke for the Bench observed:

(a) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.

(b) Steps should be taken to bring about uniformity in designation of Officers both in civil and the criminal side by 31-3-1993.

(c) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31-12-1992.

d.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.

(e) The District Judge and Chief Judicial Magistrate should be given Rs.300/- and Rs.200/- respectively as Sumptuary Allowance per month.

(f) Government accommodation for residence to every judicial officer has to be provided and until State accommodation is available, the State at the instance of the High Court should provide requisitioned accommodation according to entitlement and the recovery of not more than 12 ½% of salary of the Officer towards rent should be made and the balance must be met by the Exchequer.

(g) The residential accommodation must be spacious enough to have a separate room for office purpose.

(h) Every Judicial Officer must be provided with uniform pattern of small library in his official residence and the District Judge should have provision made in his budget for the purpose.

(i) Every District Judge and Chief Judicial Magistrate should have a State vehicle. Judicial Officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time-limits as specified.

(j) Inservice Institute should be set up within one year at the Central and State or Union Territory level.

Review filed :

1.5 The Union of India and some State Governments being aggrieved by the aforesaid judgment preferred Review Petitions raising several objections including Constitutional questions. The objections may be summarised as under:

(i) The power to prescribe service conditions is vested in the executive and the legislature. The Supreme Court by issuing the directions in question prescribing the separate conditions of service has impinged upon the field exclusively assigned by the Constitution to the Executive and the legislature.

(ii) The service conditions of the State employees and the Judicial Officers are periodically reviewed by independent Pay Commissions constituted for the purpose.

(iii) There is nothing distinguishable about the judicial work, and if the directions given by the Supreme Court are followed, the other services would also demand similar service conditions. That would place a very heavy financial burden on the public exchequer.

(iv) The financial resources of all the States are not equal and some of the States would be unable to bear the financial burden by giving higher pay scales and other perquisites to the Judicial Officers.

Review Judgment of the Supreme Court2 :

1.6 Another three Judge Bench of the Supreme Court, Ranganatha Misra, Chief Justice, since retired, after carefully examining the contentions raised by the Review Petitioners, delivered the judgment on 24 August 1993 modifying some of the reliefs given in the original judgment, while giving additional reliefs, P.B. Sawant J., who spoke for the Bench, inter alia, observed:

"The Judicial Service is not service in the sense of ‘employment’. The judges are not employees. As members of the judiciary they exercise the sovereign judicial power of the State. They are holders of the public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions."

The learned Judge continued:

" The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally."

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2. All India Judges’ Association v. Union of India, AIR 1993 SC 2493=(1993) 4 SCC 288.

He went on:

"With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter."

He pertinently remarked:

" xxx xxx xxx

Hence the earlier approach of comparison between the service conditions of the judges and those of the administrative executive has to be abandoned and the service conditions of the judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service."

He also observed:

" Further, since the work of the judicial officers throughout the country is of the some nature, the service conditions have to be uniform."

Finally, the learned judge emphasised:

" We have also emphasised earlier the necessity of entrusting the work of prescribing the service conditions for the judicial officers to a separate Pay Commission exclusively set up for the purpose. Hence we reiterate the importance of such separate Commission and also of the desirability of prescribing uniform pay scales to the judges all over the country. Since such pay scales will be the minimum deserved by the judicial officers, the argument that some of the States may not be able to bear the financial burden is irrelevant."

1.7 For immediate reference, the views expressed in the aforesaid Review Judgment may briefly be summarised as follows:

(a) The legal practice of three years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy.

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

a.The Superannuation age of every subordinate judicial officer shall stand extended up to 60 years, but the respective High Courts should assess and evaluate the record of the judicial officer for his continued utility well within time before he attains the age of 58 years by following the procedure for the compulsory retirement under the Service Rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only if he is found fit and eligible to continue in service. In case he is not found fit and eligible, he should be compulsorily retired on his attaining the age of 58 years. Those judicial officers who are not desirous of availing of the superannuation age of 60 years, have the right to opt out at 58 years by proper intimation to the High Court before they attain 57 years.

(c) The direction for granting sumptuary allowance to the District Judges and Chief Judicial Magistrates stands withdrawn for the reasons given earlier.

(d) The direction with regard to the grant of residence-cum-library allowance will cease to operate when the respective State Governments / Union Territory Administrations start providing the Courts with the necessary law books and journals in consultation with the respective High Courts.

(e) The Principal District Judge or Principal Judge at each district headquarters or the metropolitan town and the Chief Judicial Magistrate and the Chief Metropolitan Magistrate will be entitled to independent vehicles with the free petrol subject to maximum of 100 litres per month in consultation with the High Courts. The rest of the Judges and Magistrates will be entitled to pool vehicles - one for every five judges for transport from residence to Court and back. Where pool vehicle cannot be provided or judges desire loan for purchasing two wheelers, they should be given loans on suitable terms and also the conveyance allowance.

(f) In view of the establishment of the National Judicial Academy, it is optional for the States to have their independent or joint training judicial institutes.

(g) There should be uniform pay scales to subordinate judges all over the country and such scales should be delinked to the pay scales of the Executive Officers.

(h) There should be separate Commission for determining the pay scales of the judicial officers.

(i) The States should not plead financial constraint if the pay scales of the judicial officers are enhanced delinking the same from that of the corresponding executive officers.

(j) The rest of the directions given in the original judgment are maintained.

Constitution of the Commission :

1.8 In pursuance of the above directions of the Supreme Court, the Government of India by Resolution dated 21 March 1996 constituted the FIRST NATIONAL JUDICIAL PAY COMMISSION for the Subordinate Judiciary all over the country with the following 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.

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

(c) To examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment etc., for Judicial Officers. In this context, the relevant provisions of the Constitution and direction of the Supreme Court in All India Judges’ Association Case and in 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 rationalisation and simplification thereof with a view to promoting efficiency in Judicial Administration, optimising the size of the Judiciary etc..

Composition of the Commission :

1.9

1. Chairman -                      Mr. Justice K. Jagannatha Shetty

                                         (Former Judge, Supreme Court)

2. Member -                      Mr. Justice P.K. Bahri

                                         (Former Judge, Delhi High Court)

3. Member-Secretary -     Mr. K.R. Chamayya

                                      (Rtd. Chairman of State Admistrative Tribunal)

1.10 On 2nd April 1996, Mr. K.R. Chamayya assumed office as Member Secretary of the Commission.

1.11 On 24th April 1996, Mr. Justice P.K. Bahri (Rtd.) assumed office as Member of the Commission.

1.12 On 1st June 1996, the Chairman of the Commission assumed office.

1.13 On 27th August 1996, Mr. K.R. Chamayya resigned as Member-Secretary and in his place, Mr. Justice A.B. Murgod, retired Judge of the Karnataka High Court was appointed, and he took charge on 28 August 1996, as Member-Secretary of the Commission.

The Commissioning of the Commission :

1.14 Though the Commission was constituted in March 1996, it could not be made immediately functional for want of office, finance and staff.

1.15 On 8 May 1996, the Chief Justice of the Karnataka High Court, at the personal request of the Chairman of the Commission, was pleased to make available the premises for establishing the office of the Commission in the newly built Annexe to the City Civil Court Complex at the heart of Bangalore City. The said premises were entrusted to the Central Public Works Department for alterations to make it suitable for Commission’s requirements. The C.P.W.D. finished their work and delivered the premises to the Commission in the middle of September 1996.

Procedure :

1.16 The Commission has been authorised to devise its own procedure and appoint such advisers, institutional consultants and experts as it may consider necessary for any particular purpose. The Commission may call for such information and take such evidence as it may consider necessary.

1.17 All State Governments, UT Administrations and the Ministries/ Departments of the Central Government are required to furnish such information, documents and other assistance as called for by the Commission.

Staff :

1.18 Regarding the staff, the Commission has not been given power to recruit them from open market. The Commission was asked to recruit personnel with the "Surplus Cell" of the Government of India. After protracted correspondence, the Commission found that there was no suitable person for its requirement in the "Surplus Cell".

1.19 There then, Government allowed the Commission to appoint the staff, either by deputation from other departments or re-employment of retired persons. The Commission, however, could not secure the services on deputation save in three cases. The Commission was left with no alternative except to appoint retired persons. Literally, the Commission had to chase the retired persons who are below 60 years since if they are above 60 years, the special permission has to be obtained from the Central Government. In view of this constraint, even-to-day some of the posts are lying vacant for want of such retired persons.

Finance :

1.20 Regarding finance, it was only on 22 August 1996, the first Letter of Credit was received from the Government for a sum of Rs.7.50 lakhs and the first cheque book was received for the disbursement of the said amount on 9 September 1996. But that amount was hardly sufficient for payment of the bill of C.P.W.D. and to purchase necessary office equipments.

1.21 After recruiting the skeleton staff in the aforesaid manner, the Commission became partially functional at the fag end of December 1996.

1.22 The Main Office of the Commission is located at Bangalore, while a small Branch Office with the Member Mr. Justice P.K. Bahri (Rtd.) is based at New Delhi for co-ordinating and interacting with the Judicial Officers of the Northern States.

The Task of the COMMISSION :

1.23 The terms of reference to the Commission are all embracing. It is just not determining the pay scales of and conferring certain financial benefits to Judicial Officers as the name of the Commission purports to indicate. The work includes, among others, the restructuring the multiple judicial cadres into three uniform cadres, prescribing uniform jurisdictions, determining uniform pay scales. The Commission is also concerned with Recruitment, Training, Work Methods and Work Environment of Judicial Officers etc.

Collection of Material :

1.24 The Commission is not on the trodden ground but on the virgin field. It has no material to fall back upon. Since it is a first of its kind, even preliminary particulars have to be gathered for preparing the Questionnaire. Even before establishing the Commission’s office, the Chairman addressed a circular letter dated 31 July 1996 to all the Chief Justices of the High Courts requesting them to furnish certain information pertaining to their Judicial Officers in the prescribed format. The information started trickling from September 1996 right upto the end of February 1997. In the meanwhile, the Chairman visited New Delhi, Madras, Mumbai and Pune and had personal discussion with the Judicial Officers on their problems and requirements.

Questionnaire :

1.25 After collecting preliminary material, a comprehensive Questionnaire covering the terms of reference was prepared. On 15 March 1997, the Questionnaire was released by Mr. Justice R.P. Sethi, Chief Justice of the Karnataka High Court. The Questionnaire has been given wide publicity in print and electronic media so that it may come to the notice of all the Judicial Officers all over the country. The Questionnaire was also sent to all High Courts, State Governments, Judicial Officers’ Associations, Bar Associations, Bar Council of India, Jurists and Others, seeking their views.

Replies to the Questionnaire :

1.26 Almost all the Associations of Judicial Officers have promptly responded to the Questionnaire during the period from 4 June 1997 to 29 December 1997.

1.27 But the High Courts took their own time to express their views on the Questionnaire. The High Courts of Himachal Pradesh, Madhya Pradesh, Sikkim, Kerala, Bihar and Jammu &Kashmir sent their replies in 1997. The High Courts of Karnataka, Uttar Pradesh, Tamil Nadu and Assam sent their replies in the beginning of 1998.

1.28 The remaining 8 High Courts namely, Calcutta, Gujarat, Mumbai, Rajasthan, Andhra Pradesh, Delhi, Punjab & Haryana and Orissa delayed their replies in spite of repeated requests and reminders from the Commission.

1.29 Most of the State Governments were also not active in responding to the Questionnaire. In 1997, only the State Governments of Goa and Mizoram and Union Territory Administrations of Lakshadweep, Diu & Daman and Dadra & Nagar Haveli have sent their replies. The State Governments of Manipur and Assam sent their replies in February 1998 and March 1998 respectively.

1.30 On 15 July 1998, the Supreme Court came to the rescue of the Commission by directing the Registrars of the High Courts and also the State Governments and Union Territory Administrations who have not responded to the Questionnaire to send their replies to the Commission within 8 weeks of the receipt of the order of the Supreme Court.

1.31 Accordingly, the said High Courts, State Governments and Union Territory Administrations replied to the Questionnaire.

1.32 The All India Judges’ Association submitted a preliminary reply to the Questionnaire during May 1998 and final reply was received on 5 August 1998.

Consultants :

1.33 The Commission engaged different Consultants for different work: (i) Indian Institute of Public Administration, New Delhi, was entrusted with the task of rationalizing and suggesting uniform pay structures and other benefits for the proposed three cadres; (ii) Indian Institute of Management, Bangalore, was engaged for preparing a report on Case Management and Court Management; (iii) The National Law School of India University, Bangalore, was requested to collect and compile the history of State Judiciary and advise the Commission generally; (iv) Dr. N.R. Madhava Menon, Former Director of National Law School of India University, Bangalore, agreed to prepare a report on the Judicial Training Institute with the syllabus and course of training for Judicial Officers; and (v) Sri K.R. Chamayya, former Law Secretary / Legislative Draftsman and Chairman of the Karnataka Administrative Tribunal, was requested to prepare a model Civil Courts Act, Small Causes Court Act and draft Uniform Rules for Recruitment of Judges of Family Courts.

1.34 The Consultants, namely, the Indian Institute of Public Administration, New Delhi, the Indian Institute of Management, Bangalore and Dr. Madhava Menon, after discussion with the Commission, prepared separate Questionnaires in respect of subjects assigned to them. They sent the Questionnaires to all the High Courts, Judicial Officers’ Associations, State Governments and other concerned persons and Institutions, seeking their views thereon. After examining the response received, they have prepared the reports.

1.35 The National Law School of India University, Bangalore has collected and compiled a lot of material relating to the history of the judiciary in some of the States and Union Territories.

Amendment to the Terms of Reference :

1.36 The original terms of reference did not empower the Commission to declare any interim relief. The Commission, therefore, requested the Government to appropriately enlarge the terms of reference to recommend interim relief as there were repeated demands from the judicial officers of every State. The Government of India vide Resolution No.15014/1/97-Jus dated 16-12-1997 amended / enlarged the original terms of reference by inserting a new para as under:

" The Commission may consider and grant such interim relief as it considers just and proper to all categories of Judicial Officers of all the States / Union Territories. The interim relief, if recommended shall have to be fully adjusted against and included in the package which may become admissible to the Judicial Officers on the final recommendations of the Commission".

Interim Relief :

1.37 The existing pay scales of Judicial Officers vary from State to State. To rationalise their pay structure by giving uniform pay scales is one of the objects of the Commission. As a preliminary to achieve that object, the Commission, on 31 July 1998 granted Interim Relief to the Judicial Officers of States and Union Territories where the benefits of the V Pay Commission of the Central Government were not extended. The Interim Relief was granted on varying terms like 35% to 75% of basic pay with admissible Dearness Allowance of Judicial Officers as on 1.1.1996. The Commission also granted certain Interim Relief to the retired Judicial Officers. The Interim Relief was given effect from 1st July 1996.

1.38 Some State Governments promptly implemented the Interim Relief, but others did not. Taking note of this anomaly, the Supreme Court made an Order on 27th April 1998 as follows:

"We direct the other State Governments to take appropriate decision whether to give the interim relief or the benefits under the Fifth Central Pay Commission’s Report to the Judicial Officers in the States / UTs and make payment within four weeks from today, and report compliance to this Court."

1.39 Pursuant to the aforesaid direction, all the States have since implemented the Interim Relief.

Oral hearing :

1.40 The Commission afforded an opportunity of being heard to the representatives of all the Judicial Officers’ Associations, High Courts, State Governments / Union Territory Administrations etc., Hearing commenced on 2 November 1998 and concluded on 24 February 1999..

National Level Consultative Meeting on 12th & 13th December 1998 :

1.41 The Commission thought that the reports prepared by the Indian Institute of Management and Dr. Madhava Menon should be discussed by the judicial fraternity, and other concerned authorities, before they are finalised by the Commission. Accordingly, the Commission convened a National Consultative Meeting in Indian Institute of Management, Bangalore on 12 and 13 December 1998. The meeting was convened with the collaboration of said Institute of Management. Mr. Justice B.N. Kirpal. Judge of the Supreme Court inaugurated the Meeting which was presided by the Chairman of the Commission, Mr. Justice R.P. Sethi, Chief Justice of the Karnataka High Court was the Chief Guest. In the Meeting the draft report prepared by the Institute of Management on introduction of IT in Court work and the report by Dr. Madhava Menon on judicial training and Institute were thoroughly discussed. Dr. Madhava Menon and Dr. Rammohan Rao, Sri Vaidyanathan & Prof. Krishna of IIM played a prominent part in the two days discussion.

1.42 The Acting Chief Justice of Rajasthan High Court, Nominee Judges of the High Courts of Allahabad, Andhra Pradesh, Delhi, Gujarat, Guwahati, Jammu & Kashmir, Karnataka, Kerala, Madras and Mumbai participated in the deliberations and gave their valuable suggestions. Besides, the Directors of Judicial Training Institutes at Lucknow, Nagpur, Jabalpur and Ahmedabad and the Director of Sardar Vallabhbhai Patel Police Academy at Hyderabad were also present and took part in the discussion giving their views and suggestions. The representatives of some of the Judicial Officers’ Associations and other eminent persons also shared their views on both the said reports.

Reports of the Commission :

1.43 The Commission, after due deliberations and taking into consideration every aspect, has prepared the Report in three Volumes. We trust and hope that all the State Governments / Union Territory Administrations would implement the recommendations made in the Report at the earliest.

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2.26 BENGAL [WEST BENGAL]

East India Company Courts :

2.26.1 In 1698, the Mughal King’s grandson granted Zamindari rights of three villages to the East India Company. The Company thereupon exercised all the powers, which the Mughal administration had granted to the native Zamindars. The Company appointed a Collector to carry on administration of all the three villages. The Collector began to hold Zamindari Courts regularly for both Civil & Criminal cases.

2.26.2 In 1699, Calcutta was given the status of Presidency Town. Its Governor and Council were entrusted with all the necessary administrative and judicial powers.

2.26.3 Accordingly, Fauzdaree Court presided over by English Collector was established to decide criminal cases regarding the natives of the three villages and petty crimes committed by English people. The Governor and Council were authorised to try serious crimes committed by the English people under the Charter 1661.

2.26.4 The Court of Cutchhery or Civil Court presided over by a Collector was established to adjudicate civil disputes. Appeals were allowed only in rare cases to the Governor and Council.

2.26.5 The Collector was also responsible for the collection of land revenue from the natives of all the three villages. In respect of revenue matters, appeals would lie to the Governor and Council.

2.26.6 The establishment and constitution of courts in all the three Presidency Towns was found necessary and that led to the constitution of Mayor’s Court presided over by a Mayor and nine Aldermen. Mayor’s Court was declared to be a Court of Record and was authorised to try, hear and determine all civil actions. It had testamentary jurisdiction to grant letters of administration and also had jurisdiction over all persons within the Presidency Town and working in the Company’s subordinate offices.

2.26.7 Appeals from the decisions of Mayor’s Court would lie to the Governor and Council. The decision of the Governor and Council was final in all cases involving a sum less than 100 Pagodas. Further appeal would lie to the King-in-Council (Privy Council) from the decisions of the Governor and Council.

2.26.8 Under Charter of 1726, Justice of Peace consisting of Governor and five Senior Members of the Council was established in each Presidency Towns.

2.26.9 Criminal Jurisdiction was conferred on the Justices of Peace. They were empowered to arrest and punish persons for petty criminal offences and they were also to act as a Court of Oyer, Terminer and Goal delivery and were empowered to hold quarter Sessions, four times a year for the trial of all offences excepting high treason.

2.26.10 In general, these courts were entrusted with the same powers similar to that of the courts in England.

2.26.11 Again, the Charter issued on 8 January 1753, which applied uniformly to all the Presidency towns, brought about certain changes in the method of appointment of Mayor and Aldermen. The changes effected are as indicated below:

(i) Alderman was to be appointed by the Governor and Council;

(ii) As regards the Mayor’s appointment, the Governor and Council were to select one out of panel of two names of Aldermen submitted to it by the Corporation every year.

2.26.12 Thus, the Mayor and Aldermen became the nominees of the Government.

2.26.13 Under the aforesaid Charter, the Government held large measure of control over the Corporation. The jurisdiction of the Mayor’s court was expressly restricted to Indians.

2.26.14 This Charter of 1753 also created a new Court called as ‘Court of Request’ in each Presidency Town to decide all the cases up to five Pagodas or Rs. 15/-, summarily and quickly. The Court of Request was manned by 8 to 24 Commissioners who were initially appointed by the Government mainly from amongst the Company’s servants. Half of the Commissioners were to retire every year and their places were to be filled in by ballot by the remaining Commissioners. This process of co-option would go on from year to year. On every court day, three Commissioners used to sit by rotation.

Evolution of Judicial Institutions :

2.26.15 As time passed, the Company expanded its political activities and acquired new territories surrounding the Presidency Towns. This new territory came to be known as Mofussil in contra-distinction to the Presidency Towns. The Company had to provide an administrative system in Mofussil for which Adalat System came into being for administration of Justice. Such Adalat System was initially introduced in the first territory acquisitions of the Company in Bengal, Bihar and Orissa.

2.26.16 In 1772, Warren Hastings introduced a scheme of judicial administration along with the system of revenue collection, which laid a foundation of Adalat system in India. Under this scheme, Bengal, Bihar and Orissa were divided into number of Districts. A District was considered as Unit and in each District an English Servant of the Company was appointed as Collector who was responsible for collection of land revenue. Judicial System was integrated with this scheme.

2.26.17 Accordingly, in each District, Mofussil Diwani Adalat was established with the Collector as the Judge. The Collectors being Englishmen did not know about these legal systems. Therefore, to make the system work and to enable the Collector-Judge to decide the cases according to Indian Law, native Law Officers, Khazis and Pandits were appointed to expound Muslim and Hindu Laws respectively applicable to the facts and circumstances of cases in dispute.

2.26.18 A provision was made for the disposal of small cases up to the value of Rs. 10/- to be decided finally by the Head Farmer of the Pargana where the dispute arose.

2.26.19 Mofussil Fouzdari Adalat or Mofussil Nizamat was established in each District to try all kinds of criminal cases. The said Adalat consisted of Muslim Law Officer, Kazi, Mufti and Moulvies. The Collector was required to exercise general supervision over the Adalats.

2.26.20 Over and above Mofussil Adalats, two superior Courts, viz., Sadar Diwani Adalat consisting of a Governor and Members of the Council and Sadar Nizamat Adalat consisting of a Chief Mufti formally appointed by the Nawab on the advice of the Governor and an Indian Judge known as the Daroga-i-Adalat and three moulvies were established at Calcutta. The Governor and Council exercised general supervision over the proceedings of Sadar Nizamat Adalat.

2.26.21 The Regulating Act, 1773 empowered the Crown to establish Supreme Court of Judicature by a Royal Charter. Accordingly, Supreme Court of Judicature at Fort William consisting of a Chief Justice and three puisne Judges was established. The Judges were appointed by the Crown and they held the office during his pleasure. Only Barrister of at least 5 years standing was eligible to be appointed as a Judge. The jurisdiction of the Court was restricted to only few defined categories of persons, viz., British subjects and His Majesty’s subjects residing in Bihar, Bengal and Orissa and persons employed either directly or indirectly under the Services of the Company.

2.26.22 The Supreme Court of Judicature was also a Court of Admiralty for Bengal, Bihar and Orissa to hear and try all cases — Civil and Maritime and all Maritime crimes committed upon the High Seas with the help of Jury who were British subjects resident in Calcutta, in the same way, as the Admiralty Court in England.

2.26.23 Each of the Judges of the Supreme Court was also the Justice of Peace with jurisdiction and authority similar to that of Judges of the Court of King’s Bench in England under common law. This system continued for over a period of 100 years with minor reforms here and there. The minor reforms that were experimented included the steps taken by Warren Hastings for the separation of judiciary and revenue administration and re-unification of all functions under hand of the Collector by Lord Cornwallis, abolition of Fouzdari Adalat in the District and establishment of Circuit Courts.

Chartered Courts :

2.26.24 In 1861, the Indian High Courts Act, 1861 was enacted by a Royal Letters Patent issued by Her Majesty, the Queen. Under this Act, the Crown was empowered to establish High Courts of Judicature for Bengal, Madras and Bombay and eventually for the Province of Agra. It was provided that upon the establishment of these High Courts, both the Supreme Court and Sadar Courts should be abolished. Accordingly, Charters were issued in 1862 and re-issued in 1865 to constitute High Courts at those Presidency Towns.

2.26.25 King’s Court in the Presidency Towns and Company’s Courts in Mofussil area were amalgamated into a single judicial system by the Indian High Courts Act.

Qualification for Appointment of Judges of the High Court :

2.26.26 No person could be appointed as the Judge of the High Court unless he was an Advocate of Scotland or a Barrister of England or a Pleader of 10 years standing in British India. However, Officers of Indian Civil Services having some minimum number of years of service could also be appointed as a Judge. He could not be removed from his office before retirement unless the Judicial Committee of the Privy Council would remove him on one of the grounds of misbehaviour or physical or mental infirmity.

2.26.27 The High Courts of Calcutta / Madras / Bombay were conferred with original and appellate jurisdiction.

2.26.28 Appeals from the decisions of the High Courts were to lie to the Judicial Committee of the Privy Council.

2.26.29 This position continued upto the enactment of the Government of India Act, 1915.

2.26.30 In the passage of time, the present structure of High Court is as follows:

Original Side :

2.26.31 The Courts of Original Side function as original courts for dealing with civil matters valued above Rs.10,00,000 arising within the ordinary original civil jurisdiction of High Court, i.e., within the district of Calcutta. The criminal cases arising within the area of Calcutta are now being dealt with by the Metropolitan Magistrates’ Courts, Calcutta and City Civil & Sessions Court, Calcutta. The applications under Art.226 of the Constitution of India arising within the area of Calcutta irrespective of valuation are also dealt with by the Courts of Original Side.

Appellate Side :

2.26.32 Appeals from the Original Decree or Appellate Decree and/or order from the subordinate judiciary, revisional application from the order of the subordinate courts, criminal revision or criminal appeals are dealt with by the Courts of Appellate Side. Appeals against the order of single Bench of the High Court are also dealt with by the Division Bench of the High Court, Appellate Side. All applications under Art.226 of the Constitution of India relating to matters arising outside jurisdiction of Calcutta are also entertained by the Appellate Side.

2.26.33 Appeals from the decisions of the High Courts lie to the Hon’ble Supreme Court of India.

2.26.34 The present strength of the Hon’ble Judges is as follows:

Approved strength : 50

Sanctioned strength : 48

Present strength : 32 (as on 15-11-1998)

2.26.35 After the enactment of Code of Criminal Procedure in 1861, the constitution of Criminal Courts styled as Courts of Sessions and Courts of Magistrates were established in every Province. Every Province outside the Presidency Town was divided into Sessions Divisions and the local Government appointed Sessions Judge and Additional and Assistant Sessions Judges, as the case may be. Below the Sessions Courts, there were Courts of Magistrates. An appeal would lie to the District Magistrates or to any specially empowered First Class Magistrate from the convictions by the Second or Third Class Magistrates. Original convictions by Magistrates of First Class were appealable to the Sessions Judge. Likewise, original convictions by Sessions Judge were appealable to the High Court in the Province.

2.26.36 The inferior civil Courts were established under the Special Act and Regulations, like the Court of District Judges, the Subordinate Judges and that of the Munsiffs.

2.26.37 These patterns were uniform in all the Provinces and the Presidency Towns of Calcutta, Madras and Bombay.

2.26.38 Small Causes Courts had taken the place of old Courts of Request and those Small Causes Courts were invested with jurisdiction to dispose of money suits, the subject matter of which did not exceed Rs. 2,000/-.

2.26.39 Presidency Small Causes Court Act, 1882 was passed to consolidate and amend the law relating to the Courts of Small Causes established in the Presidency Towns of Calcutta, Madras and Bombay. In each Small Causes Court, there were to be a Chief Judge and such other Judges as the local Government thought fit. However, 2rd of the persons so appointed were to be the Advocates of one of the said High Courts.

Presidency Magistrate :

2.26.40 Under the Presidency Magistrates Act, 1877 (Act IV of 1877), the Local Government with the sanction of the Governor General-in-Council could constitute divisions within the towns of Calcutta, Madras and Bombay and appoint sufficient number of fit persons to be Magistrates called ‘Presidency Magistrates’ for each of such divisions.

2.26.41 Every Presidency Magistrate by virtue of his office was to be a Justice of Peace for the town for which he was the Magistrate. The Local Government was to appoint one of the Presidency Magistrates to be the Chief Magistrate.

2.26.42 The Government of India Act, 1935 provided for the establishment of Federal Court in India, which was established in 1937. The said Act provided for the structure of Indian Judiciary as it is obtained today with the difference of Federal Court being replaced by the Supreme Court of India as stipulated in the Constitution.

Present system of subordinate judiciary in WEST bengal :

2.26.43 At present, West Bengal Civil Service (Judicial) Recruitment Rules regulate the recruitment and conditions of service of the Higher Judicial Service and Subordinate Judicial Service.

2.26.44 The Subordinate Judicial Service consists of :

a) Civil Judge (Senior Division) and Asst. Sessions Judge / Sub-Divisional Judicial Magistrate.

b) Civil Judge (Junior Division) / Judicial Magistrate First Class.

2.26.45 At present, there is single mode of recruitment of the Judicial Officers at the lowest level i.e., Civil Judge (Junior Division) / Judicial Magistrate First Class. These Officers are selected by the State Public Service Commission through a competitive examination, named West Bengal Civil Service (Judicial) Examination. The interview in the Public Service Commission is conducted amongst others by a High Court Judge to be nominated by the Hon’ble Chief Justice of High Court, Calcutta. The minimum qualification necessary for appearing in this examination is that the applicant should have LL.B. degree and minimum three years practicing experience at the Bar.

2.26.46 Officers so recruited are placed in the initial pay of Rs. 2200/- in the pay scale of Rs. 2200-80-3000-100-4000 (Pre-revised scale). After six years of service, these Officers are entitled to be placed in the higher scale posts of Rs. 3000-100-3500-125-4750 on the basis of 6 : 3 : 1 quota are available. The cadre of Civil Judge (Senior Division) and Asst. Sessions Judge / Sub-divisional Judicial Magistrate in the pay scale of Rs. 3000-100-3500-125-4750 is the promotional cadre from the posts of Civil Judge (Junior Division) / Judicial Magistrate First Class. After thirteen years of service, a Civil Judge (Senior Division) / Sub-divisional Judicial Magistrate is entitled to a higher pay scale of Rs. 3700-125-4950-150-5700 on the basis of 6 : 3 : 1 quota.

2.26.47 At present, there are 337 posts of Civil Judge (Junior Division) / Judicial Magistrate First Class and 206 posts of Civil Judge (Senior Division) / Assistant Sessions Judge / Sub-Divisional Judicial Magistrate.

2.26.48 The Higher Judicial Service consists of Chief Judicial Magistrate / Chief Metropolitan Magistrate / Additional Chief Metropolitan Magistrate / Additional District & Sessions Judge / District & Sessions Judge / Chief Judge, Small Causes Court / Judge, Special Court / Judge, City Civil Court / Secretary and Joint Secretary, Judicial Department / Legal Remembrancer, Joint Legal Remembrancer, Additional Joint Legal Remembrancer / Secretary Legislative Department / Registrars High Court, Calcutta, Appellate Side / Inspecting Judicial Officers, High Court Calcutta / Registrar, Human Rights Commission / Judge, State Administrative Tribunal / Registrar, Central Administrative Tribunal etc.

2.26.49 There are 230 such posts. All these posts are promotional posts from the cadre of Civil Judge (Senior Division) / Assistant Sessions Judge / Sub-Divisional Judicial Magistrate. The pay scale, after revision of the said posts is now Rs. 10650/- to 15850/-.

2.26.50 After five years of service, the Officer of the Higher Judicial Service is entitled to a higher pay scale of Rs. 12750-375-16500. After 9 years of service he may be placed in the Selection Grade in the pay scale of Rs. 15,100-400-18300. There are Super Time Scale posts in the pay scale of Rs. 18400-500-22400 and the above Super Time Scale posts in the pay scale of Rs. 22400-525-24500. The Officers working as District Judges are also entitled to a Special Pay of Rs. 500/- per month.

2.26.51 The Officers in the pay scale of Rs. 18400-500-22400 and Rs. 22400-525-24500 are eligible for Special Allowance of Rs. 500/- per month.

2.26.52 The members of the West Bengal Higher Judicial Service are governed by All India Services Pay Rules from time to time.

JURISDICTION OF COURTS :

2.26.53 Pecuniary Jurisdiction of the Courts to hear and dispose of suits is as follows :

i) Civil Judge (Junior Division) - up to Rs. 30,000/-.

ii) Civil Judge (Senior Division) - unlimited.

TRAINING AND REFRESHER COURSE :

2.26.54 After recruitment, Judicial Officers are provided with training. However, no Judicial Academy so far has been established in this State for the training of the Judicial Officer.

2.26.55 Under Rule 5(1) & (2) of the West Bengal Service (Appointment, Probation and Confirmation) Rules 1979, a Judicial Officer shall be deemed to be on probation on completion of continuous temporary service for two years after his initial appointment in a post of service or cadre. Further, he shall be confirmed and made permanent on satisfactory completion of a period on probation and on passing a departmental examination within further one year.

* * * * *

3. JUDICIAL STRUCTURE AND REMUNERATION

- INTERNATIONAL EXPERIENCE

INDIA :

3.1 By nationality we are Indians, but by legal tradition, we are generally still British. Our judicial system was English in origin. We have adopted the English model.

Supreme Court :

3.2 Chapter IV of Part V of the Constitution of India provides for Union Judiciary. It consists of Articles 124 to 147 providing for establishment and constitution of Supreme Court, appointment of judges and Chief Justice. The Supreme Court stands as a head of the judicial pyramid. The Chief Justice is called the Chief Justice of India and the other judges are termed as judges of the Supreme Court. They cannot be removed save by impeachment for proved misconduct or incapacity. They retire at the age of 65 years.

3.3 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 the 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 advisory jurisdiction or consultative function. The power is conferred on the President of India to consult the Supreme Court if it appears to him that the question of law or fact has arisen or is likely to arise is of such public importance. The opinion pronounced by the Supreme Court in its advisory jurisdiction is not a judicial pronouncement in the sense it is not binding on the party unless the party has agreed that it would be binding. However, it has a great persuasive force. The Supreme Court is free to pass executable decrees or to pass any order as may be necessary for "doing complete justice in the cause".

3.4 The decision given by the Supreme Court has binding force. All Courts in India are bound to follow the decision of the Supreme Court. While a judgment of a Court normally binds only the parties to litigation before it, the law declared by the Supreme Court shall be binding on all Courts within the territory of India. All authorities, Civil and Judicial, in the territory of India shall act in aid of the Supreme Court.

3.5 The Supreme Court is the guardian of the Constitution. It has power to issue directions or orders or writs or any writ for the enforcement of the fundamental rights guaranteed to the citizens and it is open to any person to move the Supreme Court by appropriate proceedings for the enforcement of his fundamental rights.

3.6 The Supreme Court, by its own judge-made law and procedure, has become one of the most powerful Institutions. It is not a Court of limited jurisdiction of only dispute settling like the Supreme Court as we know in any democracy. Almost from the beginning, the Supreme Court has been a law maker, albeit, in Homes' Expression "interstitial" law maker. Besides the role of dispute settling and interstitial law making, the Court is a problem-solver in the nebulous areas1. It also steps in as an intervener where the executive fails to perform its obligations.

3.7 Even in regard to appointment of judges of the Supreme Court, the Government has no freedom of choice of candidates. The Government is bound to act upon the recommendation of the Chief Justice of India, which is supported by the majority view of four senior-most puisne judges of the Supreme Court2. In no other country, the opinion of the Apex Court has been given such primacy in the matter of appointment of judges.

____________________________________________________________

1. K. Veeraswami Vs. Union of India (1991) 3 SCC 655 at 708.

2. Special Reference No.1 of 1998: (1998) 7 SCC 739.

3.8 The judges sit on panel which is constituted by the Chief Justice. The Chief Justice of India is also a participatory functionary in matters of appointment of judges of the Supreme Court and the High Courts.

3.9 As on to-day, the Supreme Court judge draws the fixed salary of Rs.30,000/- per month in addition to periodical Dearness Allowance. He is entitled to Sumptuary Allowance of Rs.3,000/- and House Rent Allowance of Rs.10,000/- per month, if Government quarters is not provided. Both the allowances are free from Income Tax. The Chief Justice is entitled to the salary of Rs.33,000/- per month and Sumptuary Allowance of Rs.4,000/-. The Sumptuary Allowance is free from Income Tax. He is provided with rent-free furnished quarters.

3.10 Under the provision of Part I of the Supreme Court Judges (Conditions of Service) Act, 1958 as amended by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998, the Chief Justice and other Judges of the Supreme Court, who have completed not less than seven years of service as a Judge in India would get pension. The maximum pension allowed to the Chief Justice is Rs.16,500/- per month and to other Judges is Rs.15,000/- per month.

3.11 A Judge who is not eligible to receive pension under the above provision will get pension of Rs.64,030/- per annum.

High Court :

3.12 Chapter V of Part VI provides for the High Courts in the States. It consists of Articles 214 to 231 providing, inter alia, for appointment and conditions of service of the Chief Justice, judges of the High Court, and transfer from one High Court to another. At the apex of the judicial pyramid is the High Court in every State. It has variety of jurisdictions. It has power to issue writs and 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 throughout the territory in relation to which it exercises jurisdiction. It has absolute administrative and judicial control over the subordinate Courts. The judges of the High Court are liable for transfer from one High Court to another High Court. They cannot be removed save for proved misconduct or incapacity by the procedure prescribed for removal of Supreme Court judges. They retire at the age of 62 years.

3.13 They are entitled to a fixed salary of Rs.26,000/- per month with usual Dearness Allowance and other perquisites like tax-free Sumptuary Allowance of Rs.2,000/- and House Rent Allowance of Rs.10,000/-, if not availed of Government quarters. Chief Justice of the High Court is entitled to a salary of Rs.30,000/- per month and Sumptuary Allowance of Rs.3,000/-. The Sumptuary Allowance is free from Income Tax. He is provided with rent-free furnished quarters.

3.14 Under the provision of Part I of the High Court Judges (Conditions of Service) Act, 1954 as amended by the High Court and Supreme Court Judges (Salaries & Conditions of Service) Amendment Act, 1998, a Judge who has completed not less than seven years of service is eligible to receive pension at Rs.14,630/- per annum for each completed year of service as Chief Justice and at Rs.11,150/- per annum for each completed year of service as Judge.

3.15 A Judge who has completed 14 years of service including not less than six years of service as Chief Justice in one or more of the High Courts is entitled for maximum pension of Rs.15,000/- per month.

3.16 A Judge who is not eligible to receive pension under the above provision will get pension of Rs.51,190/- per annum.

Subordinate Courts :

3.17 The Constitution of India also contains a group of Articles 233 to 237 in Chapter VI of Part VI under the heading "Subordinate Courts". Article 233 provides for appointment of District Judges by the Governor of the State in consultation with the High Court. The Constitution also provides for direct appointment of District Judges from the Advocates or Pleaders who have not less than seven years of practice, provided they are recommended by the High Court for appointment. Normally, 1/3rd of the cadre of the District Judge is directly appointed by this method in each State and the rest are appointed by promotion from the cadre of Civil Judges (Senior Division).

3.18 There are Courts of different categories, like District Courts, Courts of Civil Judges (Senior Division) and Courts of Civil Judges (Junior Division). On the Criminal side, there are the Courts of Sessions, Judicial Magistrates of the First Class in Districts. Metropolitan Magistrates in Metropolitan areas. They are exclusively professional people for trying cases depending upon the gravity of the offences and punishment to be awarded. But in some States, there are Special Judicial Magistrates of the First Class and Second Class for trying some specified cases in any local area. They need not be professional people with the legal background though it is a desirable qualification.

3.19 There are labour Courts dealing exclusively with the Labour litigations. Likewise, there are Sales Tax Tribunals, Motor Vehicles Accident Claims Tribunals etc., presided over by District Judges.

3.20 In some Metropolitan cities like Mumbai, Ahmedabad, Hyderabad, Calcutta, Chennai and Bangalore, there are City Civil Courts consisting of District Judges and Civil Judges (Senior Division), established by special statutes.

3.21 In some States, the Subordinate Courts have got unlimited Ordinary Original Civil Jurisdiction, while in some other States, they have got limited such jurisdiction. In such States, the respective High Courts have got unlimited pecuniary jurisdiction. The High Courts of Mumbai, Madras, Calcutta, Delhi, Himachal Pradesh and Jammu & Kashmir have Ordinary Original Civil Jurisdiction. The rest of the High Courts do not have such jurisdiction.

3.22 These subordinate Courts entertain cases arising under the State laws and also under the Central laws. They follow adversary system with common law tradition.

3.23 The District Judges are eligible for appointment as High Court Judges. The High Court Judges are eligible for appointment as Supreme Court Judges. The Constitution specifically provides for such appointment. Under the law made by each State, the Civil Judge (Junior Division) is eligible for promotion as Civil Judge (Senior Division) and further on to the cadre of District Judges.

3.24 The judiciary is thus a cadre system with the ladder of promotion just like any other Civil service. All the judges of the subordinate Courts retire at the age of 60 years.

3.25 The States have no executive or legislative powers in respect of the constitution, organisation, jurisdiction and powers of the Supreme Court. Neither, the State has power over the constitution and organisation of the High Court. These matters fall under the Union List and the Central Government alone is competent to deal such aspects. The State, however, has power in respect of matters relating to Officers and Servants of its High Court. It is of importance to note that the administration of justice, constitution and organisation of the Subordinate Courts have been included in the Concurrent List, which means, both the Central and State Governments have power to legislate in respect of those matters, subject to the recognised norms and limitations.

3.26 Though the Supreme Court is at the apex, it has no administrative control over the High Courts or on the Courts subordinate to the High Court. The High Court in each State is independent with full powers of administration over all other Courts and Tribunals.

3.27 The Independence of judiciary is a basic structure of the Constitution3. The judiciary is independent of the Executive and Legislature though there is no clear demarcation and separation of powers of the Judiciary, Executive and Legislature.

3.28 The pay structure of Subordinate Judiciary varies from State to State. Some of the States have adopted the pay scales of the Central Government and other States have got their own independent pay structure.

3.29 The following are the States which have adopted Central pay scales: (1) Maharashtra; (2) Gujarat; (3) Delhi; (4) Madhya Pradesh; (5) Goa; (6) Tamil Nadu; (7) Lakshadweep; (8) Haryana; (9) Pondicherry; and (10) Rajasthan.

3.30 However, even here, inter-State pay diffferentials do exist as far as allocation of pay scales of the Central Government are concerned. Two of the States have extended I.A.S. pay scales to the members of the Higher Judicial Service, viz., West Bengal and Madhya Pradesh.

3.31 The State Governments which have not adopted Central pay scales of 1996, have evolved their own pay structure. They are different from State to State as seen in the table below:

Cadre

State

Pay Scales (in Rs.)

I.

a) District & Sessions Judge, Grade-I

Andhra Pradesh

8140-280-10380

Bihar

5900-200-6700

Karnataka

5825-175-6000-200-6800

Kerala

5900-6700

Orissa

5900-200-6700

Uttar Pradesh

5900-200-6700

(b) District & Sessions Judge, Grade-II/ Addl. Dist. & Sessions Judge.

Andhra Pradesh

7070-230-7300-280-10100

Bihar

3700-125-4700-150-5000

Karnataka

4700-150-5300-175-6000-200-6400

Kerala

5100-5700

Orissa

3200-100-3700-125-4700

Uttar Pradesh

4500-150-5700

II.

Civil Judges (Senior)

Andhra Pradesh

5040-160-5200-190-6150-230-7300-280-8700

Bihar

3000-100-3500-125-4500

Karnataka

3825-125-4700-150-5300-175-5825

Kerala

3900-5075

Orissa

2800-100-3600-EB-125-4350

Uttar Pradesh

3000-4500

III.

Civil Judges

Andhra Pradesh

3880-130-4400-160-5200-190-6150-230-7300-280-8140

Bihar

2425-75-2800-100-4000

Karnataka

2375-75-2900-100-3700-125-4450

Kerala

2500-4000

Orissa

2200-75-2800-EB-100-4000

Uttar Pradesh

2200-4000

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3. S.P. Gupta v. Union of India (1981) Supp. SCC 87, 408.

Kumar Padma Prasad v. Union of India (1992) (2) SCC 428.

Union of India v. Pratibha Bonnerjee (1995) (6) SCC 765.

AUSTRALIA :4

3.32 The Australian judiciary comprises three distinct jurisdictions - Federal, State and Territorial. Federal Courts derive their existence from Common-wealth legislation enacted pursuant to Section 71 of the Commonwealth Constitution, the State Courts from State legislation, and Territory Courts from Commonwealth legislation enacted under Section 122 of the Commonwealth Constitution. The High Court in Australia is the Apex Court mandated by Section 71 of the Commonwealth Constitution.

3.33 The determination of judicial remuneration in Australia has passed through three stages during the twentieth century. The first period was the longest, running from the turn of the century or earlier until the early 1950s. In most Australian jurisdictions, a salary increase was awarded in 1947 or 1948, with a further increase in 1950 or 1951. Thus, the annual salary of a puisne justice of the High Court remained constant (£ 3000) from that Court’s inception in 1903 until 1947, when it increased to £ 4000, rising to £ 4500 in 1950. The salary of puisne judges of the State Supreme Courts reflected the similar pattern following the Commonwealth’s lead. The position was similar in the New South Wales District Court, the salary of the puisne judge remained the same (£ 1500) from 1883 to 1948, when it was increased to £ 1800, rising to £ 2000 in 1951.

3.34 The second period of judicial remuneration covers from the early 1950s until the introduction of judicial remuneration tribunals, commencing with the Commonwealth in 1973. The trend was followed shortly by Western Australia (1975) and New South Wales (1976), and later by Queensland (1980) and South Australia (1985). During this period, judicial remuneration was fixed by statute, with amendments raising salary being passed with increasing frequency - almost annually towards the end of the period in order to keep up with inflation.

3.35 In 1950s, some States in Australia experimented with automatic adjustment or "indexation" in the line with changes in the ‘basic wage’ or ‘the cost of living’.

____________________________________________________________

4. Extract from the Report of Judicial Remuneration of Australia 1997.

It is, however, not clear that why such automatic adjustment was abandoned. Such indexation was probably considered unsatisfactory because variations in the basic wage or the Consumer Price Index is only one factor in judicial remuneration; other factors include the earnings of senior barristers, changes in the jurisdiction and work-load of Courts and relative with similar Courts in other jurisdictions.

3.36 Over-all, the 1950s and 1960s in Australia have witnessed continued decline in the relative financial position of judiciary.

3.37 The Third period may be considered as the current period in which there have been independent remuneration tribunals for determining the remuneration payable to judges and magistrates, as well as to parliamentarians and holders of senior executive positions. The decisions of these tribunals have no binding force except in South Australia. But in the Commonwealth (since 1989), New South Wales, Queensland and Western Australia, the decisions of such tribunals have been given binding effect subject to disallowance by either House of Parliament. The position in the various jurisdictions may now be examined briefly.

The Commonwealth :

3.38 The Commonwealth Remuneration Tribunal was established pursuant to the Remuneration Tribunals Act, 1973. The Act establishes a Tribunal of three part-time members appointed for a term of not more than five years, but eligible for reappointment. One of the members is to be appointed Chairman by the Governor-General in Council. That person originally had to be either a judge or retired judge of a State Court or qualified to be appointed as such.5 The first two Chairmen were sitting judges, namely, W.B. (later Sir Walter) Campbell of the Supreme Court of Queensland (1974-82) and Dennis Mahoney of the New South Wales Court of Appeal (1982-92). The requirement for a judicially qualified

____________________________________________________________

5. Remuneration Tribunals Act 1973 (Cth) Sec. 4 (6).

Chairman came to be removed in 1992 since that position was not requiring any special legal skills.6

3.39 The Tribunal was required to determine annually the remuneration payable to Members of Parliament and senior public servants subject to disallowance by either House of Parliament. The Tribunal, however, was only to "inquire into, and report to the Minister" on judicial remuneration and ministerial salaries. This was intended perhaps to overcome the constitutional barriers, which preclude the Tribunal from making determinations relating to remuneration of judges and salaries of Ministers.

3.40 Whether or not constitutional concerns really underlay the limitation on the powers of the Tribunal regarding ministerial and judicial salaries, the Commonwealth Parliament changed its position regarding the latter in 1989, and now requires the Tribunal to determine judicial (but still not ministerial) remuneration as well.

3.41 The effective determination of judicial remuneration by the Remuneration Tribunal appears to have operated reasonably satisfactorily until the mid 1980s. But thereafter, it has faltered for various reasons and consequently judicial salaries had fallen and senior barristers were refusing to accept appointment and in some cases, judges began to resign from the Bench to private practice.

3.42 In May 1988, the Hawks Government decided to alter the manner of determining the salaries of Chief Executive Officers of Government Business Enterprises (G.B.Es) to enable them to compete against the private sector for the best candidates. Their salaries would no longer be linked to those of senior public servants, but would be determined by G.B.E. boards after consultation

____________________________________________________________

6. Remuneration and Allowances Legislation Amendment Act 1992 (Cth) Sec.20.

with the Remuneration Tribunal. The result was an epochal report of 18 November 1988, which was to have such detrimental repercussions for the relationship between the Commonwealth Government and the federal judiciary that it is doubtful whether the resulting judicial bitterness has yet dissipated.

3.43 We will now briefly refer to the judicial remuneration in the States and Territories:

States and Territories :7

3.44 Judicial remuneration is determined by an independent statutory tribunal in six of the eight States and self-governing Territories, and de facto for Supreme Court judges in another (Tasmania). The remuneration of Australian Capital Territory judges and Magistrates is determined by the Commonwealth Remuneration Tribunal, the remuneration of A.C.T. Supreme Court judges being the same as that of Federal Court judges. New South Wales, Queensland, South Australia, Western Australia and the Northern Territory have their own Tribunals.

Western Australia :

3.45 The earliest of these was the Western Australian Salaries and Allowances Tribunal, established in 1975, just two years after the Commonwealth Remuneration Tribunal. It consists of three members, including a Chairman, appointed by the Governor in Council for a term of three years (renewable). No special qualification is stipulated, but persons holding offices within the Tribunal’s jurisdiction are (appropriately) expressly disqualified. The Tribunal determines the remuneration of a wide range of public officers as well as judges and magistrates; the State Governor, Ministers, Members and Officers of Parliament, senior public servants, and also the entitlements of former premiers, Ministers and Members of Parliament.

____________________________________________________________

7. Extracts taken from the compilation of the judicial remuneration in Australia.

3.46 Judicial remuneration must be determined at least once each year. Since 1992 the term "remuneration" has included non-pecuniary "benefits", such as cars. Reduction in remuneration is not prohibited. Determinations are binding, subject to disallowance by either House of Parliament, a power which Parliament has never exercised. Nevertheless, judges have not always regarded the Tribunal’s work favourably , and have occasionally complained to it in private. The heads of the various courts also address formal submissions to the Tribunal on behalf of their courts. The Chairmen of the Tribunal have included two former senior public servants (an Under Treasurer and a Genera Manager of the Public Service Board), a former Chief Commissioner of the State Industrial Commission, and a former Commonwealth Minister. Members have included a Managing Director of a bank, lawyers, an accountant, a former Member of Parliament, and a retired public servant.

3.47 The Tribunal is not legally required to have regard to current wage-fixing principles, but has taken account of wage restraint principles. Its reports have echoed the concern of the Commonwealth Remuneration Tribunal, seeking to balance general wage restraint with the need to raise judicial remuneration to reduce the "unacceptably large" gap between judicial salaries and earnings of senior practitioners, which (as elsewhere) has led to difficulty in recruiting judges to both the Supreme Court and the District Court. The Commonwealth Government’s failure to implement the November 1988 recommendations of the Commonwealth Remuneration Tribunal, whose report the Western Australian Tribunal has generally endorsed, has meant that it has followed the proposal to fix the remuneration of Supreme Court judges at about 85% of that of High Court justices only with considerable misgiving and over widespread judicial opposition.

New South Wales :

3.48 A few months after Western Australia, New South Wales established a Statutory and Other Offices Remuneration Tribunal to determine the remuneration of judges and statutory officers. The Tribunal must determine remuneration not later than 31 August each year or whenever the Minister so directs, and may alter a previous determination in order to apply a wages decision by the State’s Industrial Commission. However, judicial remuneration may not be reduced, Tribunal determinations are binding, subject to disallowance by either House of Parliament. A determination was annulled in 1982, but that was accomplished by legislation, not by disallowance on the ground that the increased remuneration awarded was unacceptable in the then existing economic climate.

3.49 The relativity of the salaries between judges of the Federal Court and their Supreme Court colleagues was a matter of some concern in New South Wales. Judicial remuneration was discussed at a Premiers’ Conference on 28 June 1990, at which the Prime Minister and Premiers agreed jointly to address issues such as disparities between salaries and "leap-frogging". Consequently, the Chairman of the Commonwealth Remuneration Tribunal met with representatives from State and Territory Remuneration Tribunals and the Victorian Government on three occasions between August 1990 and July 1991 and thereafter on several occasions, and reached consensus that provided the remuneration of High Court justices was set at an "acceptable level" and regard was had to major differences in benefits, the salaries of Federal Court and State Supreme Court judges should not exceed 85% of that of a High Court justice. They also agreed to consult informally before determining judicial remuneration, which should occur at around the same time each year in order to avoid "leap frogging"8. New South Wales has followed this consensus since-then and the Tribunal has generally fixed the remuneration of a Supreme Court judge at the salary of a Federal Court judge, (i.e. 85% of that of a High Court justice) plus $ 10,362.

____________________________________________________________

8. N.S.W. Statutory and Other Offices Remuneration Tribunal, Report on the

Salaries of Judges . . . . . . . . (28 November 1991), para, 3.

3.50 However, Federal Court judges' salaries generally exceed those of the Victorian, South Australian and Tasmanian Supreme Courts, leading to concerns of federal "poaching" of State judges in those States. Since Federal Court salaries are set at 85% of High Court salaries, nationwide adoption of the 85% standard for Supreme Court judges would ensure parity in remuneration between them and the Federal Court.

3.51 In its determination of 31 August 1996, the Tribunal increased the remuneration of a Supreme Court Judge by 4.25 percent to $ 1,77,488 thus preserving the relationship with the salary of a Federal Court Judge. The amount of $ 10,362 which takes into account the difference in conditions of Federal Court Judges and Supreme Court Judges was added, making a total remuneration of $ 1,87,850 per annum.

3.52 The Tribunal, after considering the views of the Assessors, determines that the base rate of remuneration for a Supreme Court Judge should be increased on and from 1 October 1997 by 5 percent from $ 1,77,488 to $ 1,86,362 per annum. The Tribunal also determines that the amount to be added to take into account of the difference in conditions of Supreme Court Judges and Federal Court Judges should remain at $ 10,363 thus making the total remuneration of a Supreme Court Judge $ 1,96,725 per annum.

3.53 A spokeswoman for Attorney-General Jan Wade has promised that the report of the Commission was being considered as reported in "HERALD SUN (MELB)" 1st Edition, 17 September, 1997 p. 15.

Queensland :

3.54 The next State Tribunal was Queensland’s Salaries and Allowances Tribunal, established in 1980. It determines the salary and allowances of judges, but not the allowances of Magistrates since 1991. The determination of judicial remuneration is its sole function. Its determinations, which must occur at least once each year, are legally binding, subject to disallowance by the Legislative Assembly. But that power was exercised only once in 1993 to set aside a determination which was considered legally flawed.9

3.55 The Tribunal is not specifically required to take account of Wage Determination Principles or variations in the cost of living, but is required to consider the equity of Queensland judicial remuneration in the light of such remuneration elsewhere in Australia.

South Australia :

3.56 South Australia established its Remuneration Tribunal in 1985. But it did not determine judicial salaries until 1988. Until then, judicial salaries were set pursuant to a legislative formula which essentially fixed Supreme Court salaries at 95% of the average in the other mainland States, and District Court salaries at 85% of the Supreme Court’s, with subsequent increases to follow wage determinations of the State Industrial Commission; the Remuneration Tribunal had power only to fix judicial allowances, not salary. Since 1988, the Tribunal determines both salary and allowances.

3.57 The Tribunal must determine judicial remuneration at least once in each year. Their determinations are binding, and not subject to parliamentary disallowance, although they could, of course, be overturned by legislation. But that has never happened.

3.58 In determining remuneration, the Tribunal is required to "have due regard to" and "may apply and give effect to", any principles enunciated by the (Full) State Industrial Commission, which itself is required to pay similar regard to the

____________________________________________________________

9. See Queensland Parliamentary Debates, 19 November 1993, 6096-6102, disallowing Queensland Salaries and Allowances Tribunal, Fourteenth Report (31 August 1993).

decisions and declarations of the Commonwealth Industrial Relations Commission. Moreover, the Tribunal is (and, again, uniquely in Australia) specifically directed to "have regard to the constitutional principle of judicial independence".

3.59 The South Australian Remuneration Tribunal appears to have performed well. The Tribunal has acted responsibly and independently, without governmental interference.

Northern Territory :

3.60 Judicial remuneration in the Northern Territory is determined from time to time by the Administrator, but cannot be reduced during a judge’s term of office. The Remuneration Tribunal was established in 1981. The Tribunal only makes "recommendations" on judicial remuneration; but its recommendations have always been followed. In fact, the terms and conditions of Northern Territory judges provide for their remuneration at rates not less than those payable to judges of the Federal Court and the Tribunal has always recommended remuneration equivalent to that of the Federal Court.

Tasmania :

3.61 Tasmania and Victoria do not constitute Tribunals to determine judicial remuneration. Tasmania relies indirectly on determinations of the South Australian and Western Australian Tribunals to fix Supreme Court judges salaries. The Chief Justice of Tasmania’s salary is the average of the salaries of the Chief Justices of those States and puisne judges receive 90% of that figure. The salaries of Supreme Court Masters and Magistrates are fixed by reference to the salary of the Permanent Head of a government department: 92%for the former, and 81.25% for the latter. Tasmania has no intermediate Court.

Victoria :

3.62 Since 1980, the remuneration of Victorian judges and Magistrates has been determined by the Attorney-General. Until 1987, it was determined in response to wage increases awarded by the Australian Conciliation and Arbitration Commission and thereafter, following a recommendation of the Robinson Inquiry in 1986, determinations follow upon increases awarded by the Commonwealth Remuneration Tribunal.

3.63 Victorian judicial remuneration is to be reviewed in accordance with current wage fixing principles at least once every five years by a person the Attorney-General considers suitably qualified to carry out such a review.

3.64 It has been now felt that Victoria should change its method of determining judicial remuneration to a system closely resembling South Australia’s. That system is yet to be implemented.

3.65 Judicial remuneration in Australia is presently in a state of uncertainty, with important reviews in progress in the Commonwealth and Victoria, Australian judges bear a strong sense of grievance and consider themselves seriously underpaid, as evidenced by the Commonwealth Remuneration Tribunal’s report of November 1988. They have reluctantly accepted wage injustice; as they see it, because they acknowledged the arguments for wage restraint which depressed the wages of the general work-force during the Recession, expecting the "injustice" to be righted once the economy recovers. Now that economic recovery has begun.

3.66 The salary structure of various categories in different States are set out in the following Table:

SUPREME COURTS

YEAR

HC

FED.CT AND ACT.

N.S.W.

VIC.

QLD.

S.A.

W.A.

TAS.

MONEY WAGE

1990

5200

5000

4000

3400

2800

2400

146

1910

6000

5200

5000

4000

3400

3400

2400

174

1920

6000

5200

5000

4000

3400

3400

3000

302

1930

6000

5200

5000

4000

4000

4000

3000

422

1940

6000

5200

5000

4000

4000

4000

3000

429

1950

9000

8000

6200

7000

6200

5000

5200

4000

873

1955

13000

11000

9450

8500

9050

8000

7000

7000

1579

1960

17000

14000

11100

12300

9800

11000

9200

9200

1992

1965

21000

17000

17000

15700

13500

13700

12400

12400

2435

1970

27000

23000

22475

21350

17700

21000

19200

16650

3397

1975

43500

36750

42720

40500

42940

39000

28800

34155

6925

1980

73350

61800

62838

54230

62600

51087

51350

51401

11706

1985

110246

93507

100137

89311

95850

84604

93342

86600

1990

154991

131734

135000

131734

139000

134000

135000

123719

1994

177604

150955

158357

150372

143500

147995

148864

146601

ENGLAND :

3.67 By long usage, the expression "the superior judges" or simply "the judges" usually means, the judges of the High Court, Court of Appeal and the Law Lords. It is these judges who are the centre of interest when people think of Courts. Before 1971, there was a system of County Court, but other Courts below the High Court were fragmented and largely governed by piece-meal legislation.

3.68 But the Courts Act 197110 restructured and rationalised the lower judiciary. Below High Court there are (i) Circuit Judges; (ii) District Judges; (iii) Recorders and Assistant Recorders and (iv) Magistrates.

Circuit Judges :

3.69 Circuit Judges sit in the Crown Court to try all but the most serious criminal cases and in the County Courts where they handle most types of civil cases. Much of the work they do is on a par with work done by High Court Judges and indeed they are deputising for High Court Judges more and more often.

District Judges :

3.70 District Judges are handling minor judicial work which is not thought to need the expertise of a Circuit Judge.

Recorders and Assistant Recorders :

3.71 Recorders sit for between 20 and 50 days a year. Assistant Recorder is required to sit for a minimum of 20 days per year. The Assistant Recorder’s work will be assessed, and ‘it is expected that he or she will have progressed to a full Recordship after three to five years’. If not, the Assistant Recorder is not given a second chance.

____________________________________________________________

10. Joshua Rozenberg. "The Search For Justice" (1994) p. 47-49.

Magistrates :

3.72 Magistrates consist of part-time lay magistrates (also called Justices of the Peace) together with some full-time legally qualified stipendiaries.

3.73 All the senior judges11 (that is the judges of the House of Lords, the Court of Appeal and the High Court), Circuit Judges and Recorders are appointed by the Crown on the recommendation of the Lord Chancellor. The Prime Minister nominates the Lords Justices of Appeal, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division (although it is commonly assumed that the Prime Minister is guided by the Lord Chancellor). In the old days when judicial posts were few in number and the Lord Chancellor could personally assess the field for every post himself, he acted largely on the basis of what he himself had heard. With increasing numbers of appointments, people began to wonder how he managed , and there were dark rumors about secret files, blacklists, and so forth. To dispel the sense of mystery, in 1986 the Lord Chancellor’s Department published a booklet entitled ‘Judicial Appointment’ which is available for all to read. From this we learn that within the Lord Chancellor’s Department there is a body of officials called the Judicial Appointments Group. Potential appointees come to their notice either because they write in and say they are interested in a judicial appointment, or because their names are mentioned by judges and ‘senior members of the profession’ with whom the senior officials in the Judicial Appointment Group regularly consult. Files are opened on these candidates - and remain open when they have obtained a position. Into this file will go factual information about the candidate, and opinions which have been expressed about him. At some point, a person under consideration for appointment is likely to be interviewed, and this will put more information about him on file. The part of the information which is purely factual is open for the candidate to see, but the opinions

____________________________________________________________

11. The information has been extracted from "Jackson’s Machinery of Justice" by J.R. Spencer.

which have been expressed about him are usually given in strict confidence, and these he is never shown. However, the Lord Chancellor or the senior members of the Judicial Appointments Group are usually willing to give judges and would be judges general advice about their prospects, and this is likely to show an applicant in what standing he is held.

3.74 For centuries it was the case that there was no regular system of promotion. The Court of Appeal and the House of Lords were filled by promotions from below, but there was little movement from the lower judiciary to the High Court, and an appointment to the County Court bench - and more recently to a Circuit Judgeship - was regarded as the end of the road. In the last ten years, this has greatly changed. The Lord Chancellor’s Department has made it plain that it expects the people who are appointed Recorders to have proved themselves as Assistant Recorders, and Circuit Judges to have proved their worth as Recorders or Assistant Recorders. Whilst the majority of appointments to the High Court Bench are still made from persons eminent in practice at the Bar, most of them have been new-style Recorders, and there are a number of High Court Judges in office who have been promoted from the Circuit Bench. There are signs that the judiciary is developing a career structure with a promotional ladder, like other areas of public service; although no one puts his foot on the first rung until he has reached his middle age.

3.75 The Lord Chancellor, who is nominated by the Prime Minister, occupies an anomalous position. For some purposes he is the head of the judiciary and his powers are extensive. Not only is he in charge of judicial appointments, but he sits as a Law Lord in the House of Lords to hear cases and determine cases in so far as his other official duties permit. Yet he is invariably a member of the cabinet. As a cabinet minister, the Lord Chancellor holds office upon the usual political terms, which means that ordinarily he will vacate office if the government changes.

3.76 The position of the Lord Chancellor has, however, been the subject of comment and indeed treated as being unsatisfactory in a lecture of great distinction given recently by Lord Steven12.

3.77 But Lord Woolf13 thinks otherwise. He states that the Lord Chancellor of the day can act as a safety valve avoiding undue tension between the judiciary and the Government and possibly between the judiciary and Parliament as well. As a member of the Cabinet, he can act as an advocate on behalf of the courts and the justice system. He can explain to his colleagues in the Cabinet the proper significance of a decision which they regard as being distasteful in consequence of an application for judicial review. He can, as a member of the Government, ensure that the courts are properly resourced. On the other hand, on behalf of the Government, he can explain to the judiciary the realities of the political situation and the constraints on resources which they must inevitably accept. As long as the Lord Chancellor is punctilious in keeping his separate roles distinct, the separation of powers is not undermined and the justice system benefits immeasurably. The justice system is better served by having the head of the judiciary at the centre of government than it would be by having its interests represented by a Minister of Justice who would lack these other roles.

3.78 The Circuit Judge must be a barrister of at least ten years’ standing or a Recorder who has held that office for at least five years. A Recorder must be a barrister or solicitor of at least ten years’ standing. A puisne judge of the High Court must be a barrister of at least ten years’ standing. A barrister of at least fifteen years’ standing, or an existing High Court Judge, qualifies for appointment as a Lord Justice of Appeal (i.e. a judge of the Court of Appeal). The qualifications

____________________________________________________________

12.The Rt Hon. Lord Stevn, "The Weakest and Least Dagerous Department

of Government" (997) P.L.

13. Lord Woolf (1998) , 114 Law Quarterly Review, p.579.

for appointment as a Lord Justice of Appeal also qualify for appointment as Lord Chief Justice, Master of the Rolls, or President of the Family Division. The Lords of Appeal in Ordinary (the Law Lords) must be appointed from barristers or advocates of fifteen years’ standing or from persons who have held high judicial office in England, Scotland or Northern Ireland for two years. Since most barristers begin to practice when they are still young, and judges are never appointed from those under forty and quite often from those over fifty, the requisite standing at the Bar is usually attained many years before there is any chance of judicial appointment.

3.79 There is a substantial difference in the terms upon which the superior judges hold office and the terms applicable to Circuit Judges and Recorders. All the superior judges other than the Lord Chancellor hold office ‘during good behaviour sujbect to a power of removal by Her Majesty on an address presented to Her Majesty by both Houses of Parliament’, this being the provision of the Supreme Court Act, 1981 which ultimately derives from the Act of Settlement 1701.

3.80 Circuit Judges and Recorders have no such security of tenure. The Courts Act, 1971 provides that ‘The Lord Chancellor may, if he thinks fit, remove a Circuit Judge from office on the ground of incapacity or misbehaviour ‘, and also for failure to comply with the requirements of his appointment as to when he would be available to sit in Court. The retirement age was at 75 years by the Judicial Pensions Act, 1959. But Sec. 26 (1) of the Judicial Pensions and Retirement Act 1993 lowered the retirement age to 70 (but only for judges appointed after the Act came into force).14 Section 26(5) of the Act says the Lord Chancellor can allow Circuit judges and other minor judicial figures to stay on until they are 75 if he ‘considers it desirable in the public interest’.15

____________________________________________________________

14. Joshua Rozenberg. "The Search for Justice" (1994) p. 94.

15. Joshua Rozenberg. "The Search for Justice" (1994) p. 367.

3.81 Perhaps the greatest responsibility of all in the hands of the Lord Chancellor is to choose the judges. He himself appoints the lower judicial officers, and most magistrates. He also advises the Queen on appointments to the High Court, which means that the Queen has to accept the names he puts forward. But appointments to the Court of Appeal and above are different. These are made by the Queen on the advice of the prime minister.

3.82 At first sight this may seem one of those meaningless formalities designed to buttress the status of senior judges. But the reality is very different. It is nothing less than naked political control over appointments to the most senior levels in the judiciary - the Lord Chief Justice, the Master of the Rolls and the appeal judges.

3.83 Potential candidates for these posts are first selected by the Lord Chancellor. That process is itself questionable (and indeed it will be questionable in chapter 2). But with the system as it is one might assume that the Lord Chancellor would simply pick a name and then send it round to 10 Downing Street so that the prime minister could redirect it to Buckingham Palace. Not so.

3.84 The former Lord Chancellor, Lord Hailsham, generally gave the prime minister a shortlist of two or three names. But he always put them in order of merit, giving reasons, and indicated why he thought any rival candidates would have been unsuitable. Even so, on one occasion the prime minister picked Lord Hailsham’s second choice."16

3.85 A guiding principle of the Lord Chancellor’s approach is that, as far as possible, no one person’s view about a candidate, whether positive or negative, should be regarded as decisive in itself. The independent view of a spread of observers and colleagues in a position to assess the candidate’s work and

____________________________________________________________

16. Joshua Rozenberg. "The Search for Justice" (1994) p. 9.

personality over a sufficiently long time is treated as having great weight. This approach is applied extensively in relation to the appointments of High Court and Circuit Judges and their associated part time appointments. In addition, as far as possible, candidates are appointed to permanent judicial posts only when they have successfully prepared and proved themselves by experience in an associated part-time capacity. This is already fully applied to the Circuit Benches and to most lower judicial and tribunal appointments. To enable the Lord Chancellor to apply these principles, the Permanent Secretary and Deputy Secretaries undertake continuous consultations with judges and senior members of the profession.

3.86 High Court salaries had been set at £ 5,000 in 1832 while the County Court salaries had been raised to £ 2.000 in 1937. The County Court judges in their meeting in February 1946 raised objection and voted that the ratio between the remuneration of County Court and High Court judges needs reconsideration. They argued that the County Court judge is the permanent representative of the judiciary in the eyes of the ordinary citizen. From this point of view, it is important that his status and prestige, which depend to a considerable extent on his salary, should not be conspicuously below that of a High Court judge. The County Court judges continued to complain about their salaries and the differential with the High Court. By spring 1949, there were threats that some judges will take some individual steps to ventilate their grievances publicly.

3.87 During the period of 1951-1964, the salaries of County Court judges were raised to £ 2,800. This increase became law in the Judicial Officers (salaries) Act. It was further increased in 1957 to £ 3,750. It is important to note that the Judicial Officers (Salaries and Pensions) Act, 1957 authorised the Government to raise the County Court salaries by delegated legislation, subject to Parliamentary resolution. In June 1963, the High Court Judges salaries were proposed to be raised to £ 8,000. This proposal was, however, justified on the plea that "there was no intention of making judges wealthy men", but to satisfy their need to maintain a modest but dignified way of life suited to the gravity, and indeed the majesty, of the duty they discharge. Finally, it got the Royal assent on 14 April 1954.

3.88 In July 1965, the Labour Government kept the pledge made by its predecessor and announced its intention of raising all the salaries of the senior judges by an average of 25 per cent. The Judges’ Remuneration Act, 1965 was enacted by the Labour Government. The Judges’ Remuneration Act provided for increase by 25% for High Court Judges and accordingly it was raised from £ 8,000 to £ 10,000 and for the judges of the Court of Appeal from £ 9,000 to £ 11,250.

3.89 It is interesting to note that until the 1930s a High Court salary was four times as large as a County Court salary; but by 1965 a County Court judge was paid almost two thirds the salary of a High Court judge. It should also be mentioned that the judges’ salaries remained at £ 5,000 per annum from 1852 until 1954, and at £ 8,000 until 1965, senior civil service salaries showed the following change: in 1871 the most senior of the Permanent Secretaries in a government department received a salary of £ 2,000 per annum. It was not until 1929 that the salary reached £ 3,000 per annum. By 1950 it had crept upto £ 3,500 and by 1954 to £ 4,500. In 1963 Permanent Secretary of the ordinary department was paid £ 8,200 while the two most senior received £ 8,800 per annum. The figures were raised to £ 8,600 and £ 9,200 in 1966.

3.90 Much of the social history of this period was tied up in the intricacies of pay and wage control and the meaning of relativities. There was still friction between the civil service and the High Court bench with respect to salaries. During 1960s Permanent Secretaries finally pulled ahead of the High Court judge. In 1961, the High Court judges earned £ 8,000 and the Ordinary Permanent Secretary £ 7,000 (three earned more). Then in 1970, the Permanent Secretaries were to receive £ 11,900 and High Court Judges £ 11,500. By 1971, the High Court judges were still at £ 11,500; Permanent Secretaries had reached £ 14,000.

3.91 In May 1971, the Conservative Government appointed a permanent body called "Top Salaries Review Body" to advise the Prime Minister on the remuneration of the higher judiciary, Senior Civil Servants etc.. In its second report in 1972, it recommended that both High Court judges and Permanent Secretaries be paid at £ 15,750. The Committee on Top Salaries became the protector of judicial salaries and thus of independence. Until the rejection of its advice by the Major Government in 1992, its recommendations had always been accepted.

3.92 It would be fascinating to set out a few observation on salary relativities from the Review Body on Top Salaries. In Report No.6, 1994, it was stated thus:

"No formal evaluation of relative responsibilities within the judicial structure seems to have been attempted previously nor can any principle of external comparability be applied.

"The (Advisory Group on the judiciary) saw no special merit in principle in the present equivalence between the salaries of a High Court Judge and of a Permanent Secretary in the Higher Civil Service; but they considered that it would be wrong in practice for the pay of a High Court judge to fall behind that of the Permanent Secretary and therefore regarded the maintenance of at least the existing parity as a safeguard. They also felt that bar earnings (net of expenses) provided a valuable independent means of checking whether judicial salaries were likely to prove sufficient to maintain satisfactory levels of recruitment.

"We have examined the history of judicial salaries since the Eighteenth Century, but we have looked in vain for any well established principles to guide us in this field except the need to maintain the status and dignity of the judicial office as an essential element of the constitution." (Ibid.29)

3.93 The relative salary relationship of High Court Judges and Circuit Judges - the nearest equivalent to County Court judges after the Courts Act, 1971 is 5 : 3. By 1979, the Lord Justice earned £ 27,799. High Court judges £ 25,886 - the same figure as Permanent Secretaries; Judges of the Court of Session £ 24,786; circuit Judges earned £ 18,415.

3.94 In 1985, the Review Body again considered judicial salary relativities. The Circuit Judges made a strong case to have their salaries come closer to those of the High Court judges. This claim, however, was ultimately rejected by the Judicial Sub-Committee. Nevertheless, the recommendation was that their salary be raised from £ 33,000 to £ 40,000 per annum. The Senior Circuit Judges went from £ 35,000 to £ 44,500.

3.95 In 1992, a 19% increase far ahead of inflation was recommended in the 15th Report of the Committee. It was understandable. " The notion of comparability of salaries is an art, not a science, and it is arguable that the Review Body on Top Salaries has been forced to rely on intuition rather than principle. It has simply assumed that Judicial salaries should bear some comparison with those of leaders in industry and leaders at the bar."

3.96 By 1992, the salary figures were £ 97,000 for Lords of Appeal, £ 93,000 for Lords of Justice of Appeal, £ 84,250 for High Court Judges, (£ 82,780 for Permanent Secretaries), Circuit Court judges were paid £ 59,900 and Senior Circuit Court Judges £ 66,500.

3.97 The arrival of Top Salaries Committee led the judges to outface inflation. By 1997, the salary figures were £ 140,665 for the Lord High Chancellor, £ 140,008 for Lord Chief Justice of England, £ 131,034 for Lord of Appeal in Ordinary, £ 131,034 for the Master of the rolls, £ 124,551 for Lord Justice of Appeal, £ 124,551 for Vice Chancellor, £ 124,551 for President, Family Division, £ 112,011 for Judge of Chancery Division, £ 112,011 for Judge of Queen’s Bench Division, £ 112,011 for Judge, Family Division, £ 92,378 for Senior Circuit Judge, £ 83,586 for Circuit Judge, £ 67,358 for Stipendiary Magistrate.17

____________________________________________________________

17. Law Courts and Offices - Whitakers, 1997.

MALAYSIA:

3.98 Before independence, Malayan judges used to hold office at the pleasure of the Crown. In theory they could be dismissed for any or no reason, but after independence they no longer hold office at the pleasure of the Crown. The Constitution contains express provisions to secure independence of the judiciary from control or interference by the executive and the legislature.

3.99 The independence of judiciary is guaranteed by way of, first, the judges of Superior Courts may be removed from office by His Majesty only on the ground of misbehaviour or of inability from infirmity of body or mind or any other cause, properly to discharge the functions of their office and upon the recommendation of a tribunal consisting of five judges. They cannot be removed from office in any other way. Second, a judge’s remuneration and other terms of office including pension rights may not be altered to his disadvantage after his appointment. Third, his remuneration is charged on the Consolidated Fund. Fourth, the conduct of a judge may not be discussed in either House of Parliament except on a substantive motion of which notice has been given by at least one fourth of the members of that House, and may not be discussed in the State Assembly at all. Fifth, a judge, since 1963, is "entitled" to his pension, unlike civil servants who are only "eligible" for their pension.

3.100 In 1970 the separate Ministry of Justice was abolished on the ground that its existence was inconsistent with the independence of the judiciary. Responsibility in Cabinet and Parliament for the machinery of justice was transferred to the Prime Minister. There are two schools of thought about this development. One view is that the executive should have no say in the running of courts and their staff which should be the sole responsibility of the head of the judiciary. The other view is that the head of the judiciary and his fellow judges should be free to concentrate exclusively on judicial work, and they should not be troubled by matters that are best handled by experts trained and skilled in administration. Today, it may be noted, in absence of a Minister of Justice, the Chief Justice of the Federal Court and the two Chief Justices of High Courts, are concerned about subordinate Courts and their staff.

3.101 There is increasing trend of professionalism of Subordinate Courts. At one time, administrative officers such as Divisional Officers (Dos) and Additional Divisional Officers (ADOs) did part time duty sitting as magistrates. Though not qualified as lawyers, all of them had been given some training in law especially criminal law, the law of criminal procedure and the law of evidence, and they did well as magistrates. However, when emergency broke out in 1948, security became the first priority. The Dos and ADOs were then found to be not proper on the bench. The new trend is in favour of appointing trained lawyers as magistrates.

3.102 The Subordinate Courts in Sabah and Sarawak are governed by their respective Subordinate Courts Ordinance which make provisions for three main classes of Magistrates, namely, First Class Magistrates, Second Class Magistrates and Third Class Magistrates, all are legally qualified persons. First Class Magistrates may be declared as Stipendiary Magistrate by a warrant issued by the Governor. Normally, a First Class Magistrate can only hear civil cases where the value of the claim does not exceed $ 1000. However, where a First Class Magistrate has been declared a Stipendiary Magistrate, the Chief Justice may confer on him special power so that he can deal with civil claims up to $ 3000. The Second and third Class Magistrates deal mostly with minor cases. They are all administrative officers.

3.103 But the policy of judiciary is to take over all court work from administrative officers in states.

3.104 The Subordinate Courts in Peninsular Malaysia are having much higher jurisdiction in dealing with civil and criminal matters as compared with Subordinate Courts in Sabah and Sarawak.

3.105 There is no uniformity in Subordinate Courts in the whole country in respect of practice and procedure, though there is a constant demand in regard to uniformity in the organisation, functioning and separation of judiciary from executive.

3.106 It appears that the prosecuting officers and the subordinate judges constitute one common cadre and may change places from time to time.

3.107 The Judicial and Legal Service Commission, was established in 1957 to appoint, confirm, promote, transfer, and discipline officers of the Judicial and Legal Service. It was abolished in 1960 and then revived in 1973 on Malaysia Day. This Commission is established by Article 138 of the Constitution. Its function is to promote, confirm on the permanent or pensionable establishment and exercise disciplinary control over members of the Judicial and Legal Service. It does not, however, have anything to do with the appointment of the Attorney General, judges or the Tribunal to enquire into the conduct of judges.

3.108 The Judges’ Remuneration Act, 1971 provides for the remuneration of Judges’ and pensions and other benefits of their dependents. Salaries and allowances of Judges are paid in accordance with the provisions of Section 2(1), (2) and Schedules First and Second of the Act. As per the recent regulation i.e. the Judges’ Remuneration (Amendment of Schedules) Regulation, 1997 the salaries and allowances of judges with effect from 1-1-1995 are shown in the following table:-

SALARIES AND ALLOWANCES OF JUDGES IN MALAYSIA18.

(Figures in Ringgit Malaysia, RM)

No.

Post

Salary

Housing Allowance

Maids

Entertainment

Special Judicial Allowance

Monthly Total

House Maintenance P/A

1.

Chief Justice

12000

3150

2100

5400

6000

28650

4100

2.

President Court of Apparel

10520

2500

2000

5100

4500

24620

3000

3.

Chief Judge of Malaya H.C.

10420

2500

2000

5100

4500

24520

3000

4.

Chief Judge of Sabah And Sarawak H.C.

10150

2500

2000

5100

4500

24520

3000

5.

Federal Court Judges

9780

2250

1000

4600

3750

21780

3000

6.

Court of Appeal Judges

9415

2250

1000

4600

3650

20915

3000

7.

High Court of Malaya / Sabah and Sarawak Judges

9050

2250

1000

4600

3600

20500

3000

8.

Judicial Commissioner

8250

2000

1000

4600

3600

19450

3000

18. Judges' Remuneration Act, 1971 of Malaysia as amended in 1997.

3.109 Judges of the Federal Court are entitled to fully furnished institutional quarters which shall be maintained free of charge. If such quarters are not availed of, the judges are paid house rent subsidy of RM 2250 per month. This is with effect from 1-1-1992. They are also paid RM 1000 per month for domestic help and a further sum of RM 3000 per annum for house and garden upkeep. These are with effect from 1-1-1996.

3.110 Judges of the Court of Appeal are also entitled to free fully furnished institutional quarters or in lieu thereof a house rent subsidy of RM 2250 per month. They are also entitled to RM 1000 per month for domestic help and RM 3000 per annum for house and garden upkeep.

3.111 Judges of the High Court are also likewise entitled to free fully furnished institutional quarters or in lieu thereof a house rent subsidy of RM 2250 per month; besides RM 1000 per month for domestic help and RM 3000 per annum for house and garden upkeep.

Entertainment Allowance :

3.112 The Chief Justice is entitled to entertainment allowance of RM 5400 per month. President of the Court of Appeal is entitled to RM 5100 per month. Chief Judge of the High Court in Malaya is entitled to RM 5100 per month; Chief Judge of the High Court in Sabah and Sarawak is entitled to RM 5100 per month. Judges of the Federal Court, Judges of the Court of Appeal and Judges of the High Courts in Malaya, Sabah and Sarawak are entitled to RM 5000. RM 4800 and RM 4600 per month respectively.

Special Judicial Allowance :

3.113 The Judges are also entitled to Special Judicial Allowance.

3.114 Chief Justice is entitled to RM 6000 per month. President of the Court of Appeal is entitled to RM 4500 per month. Chief Judge of the High Court in Malaya is entitled to RM 4500 per month. Likewise, Chief Judge of the High Court in Sabah and Sarawak is entitled to RM 4500 per month. Judges of the Federal Court, Judges of the Court of Appeal and Judges of the High Courts in Malaya and Sabah and Sarawak are entitled to RM 3750, RM 3675 and RM 3600 per month respectively.

3.115 These are with effect from 1-1-1996.

UNITED STATES :

3.116 The American Court system is complex, partly because of their federal system. Each of the fifty states has its own written constitution. These documents, like the Federal Constitution, embody the principles of separation of powers, establishing the state’s legislature (sometimes called the General Assembly) as the lawmaking body, the Governor as the Chief executive officer, and a court system to exercise the judicial power. In some states the constitution itself creates the entire court system at both trial and appellate levels. In others, the constitution does little more than authorise the legislature to establish the judicial structure.19

3.117 Whether created by the state constitution or by enactments of the legislature, the judicial systems of the fifty states resemble each other in broad outline. Like all other aspects of state governments, however, they vary in detail. Any generalisations risk the portrayal of a judicial structure that is not quite like that in some or even many states. What follows is a description or the key components of the state court systems, with an indication of the typical patterns and variations.

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19. American Law. By Lawrence M. Freedman p 57.

Trial Courts :20

3.118 The trial courts are the lowest courts in all state systems, forming the base of the judicial pyramid. They are the most numerous courts, and collectively they have the most judges and cases. They are spread throughout the cities and countries in the State. These are the courts in which law suits are initially filed; hence, they are referred as courts of "first instance" or courts of "original jurisdiction". When persons commence civil proceedings, and when the state commences criminal prosecutions, they do so in trial courts.

3.119 In most states this base of courts of first instance is subdivided into two levels. The major trial courts, the upper level, are referred to as courts of "general jurisdiction" because they have authority to hear and decide numerous types of cases, civil and criminal. Unless some statutory or constitutional provision specifically deprives them of jurisdiction, they typically can adjudicate any kind of case. The name given to these courts varies from one state to another. In some states they are called "circuit courts"; in other states they are known as "superior courts"; in still others they are "district courts". This lack of uniformity in terminology is one of the many factors contributing to confusion concerning American Courts.

3.120 The lower level of trial courts, below the courts of general jurisdiction, consist of courts of "limited jurisdiction". In contrast to courts of general jurisdiction, these courts have relatively restricted authority. Typically such a court has power to adjudicate only a narrow range of matters, often only one specific type of case. For example, in some states there are traffic courts vested with jurisdiction over relatively minor motor vehicle offences. In some states there are probate courts with authority only over the administration of descendents’ estates or over guardianships of minor and incompetents. The authority of some courts of limited jurisdiction is defined in monetary terms. For example, a "small claims court" may have jurisdiction over civil cases in which the damages do not exceed $ 5,000/- or some other relatively small amount. States typically maintain courts of limited jurisdiction to try misdemeanors and perhaps juvenile offences that are not serious. Here again there is considerable variation from one state to another. A major twentieth-century movement has been aimed at unifying state trial courts. Its key feature is the consolidation of all trial court business into a single judicial tier, thereby abolishing the distinction between the two trial levels (e.g., Illinois and Iowa, pp. 88 and 89). Some states that have unified their trial courts in form have at the same time organised and supposedly single, unified court into divisions such as probate division, family division, small claims division, and so on, thereby preserving in substance the structure of the old limited jurisdiction courts. However, having all trial courts grouped into one tier, even nominally, permits a more effective management of trial level business. Under a single administrative authority, judges can be assigned from one division to another as the work requires. It is thought that a unified trial court also serves to avoid the appearance of second class justice for cases that would otherwise be handled by courts of limited jurisdiction.

Appellate Courts :

3.121 At the apex of the judicial pyramid in every state is the court of last resort, usually called the supreme court. There are only a few exceptions to this terminology. In New York and Maryland the highest tribunal is named the court of Appeals, and in Massachusetts and Maine it is known as Supreme Judicial Court. In two states, Texas and Oklahoma, there are two courts of last resort: the Supreme Court (for civil cases) and Court of Criminal Appeals (for criminal cases). Most state courts of last resort have seven judges, usually called "justices". The smallest has three and the largest, nine. In a few states these courts function in panels of fewer than all their members. However, in most states all judges usually sit together so that the court functions as a unit when hearing and deciding appeals.

Intermediate Appellate Courts :

3.122 Originally a state’s supreme court was the only appellate court in the state. It had jurisdiction over all appeals from the state’s trial courts. In the late nineteenth century the rising tide of litigation began to overrun the capacity of the single supreme court in some states. In response, the legislatures began to create intermediate appellate courts. These courts were inserted as a new judicial tier between the trial courts of general jurisdiction and the supreme court. Although the name given to these courts varies, the most common title is court of appeals. Until well into the twentieth century only a majority of states had established such courts. The movements to create them quickened after the Second World War; today thirty-eight states have intermediate appellate courts.

3.123 The simplest scheme is to provide that all appeals from the trial courts go to the intermediate court, with the supreme court receiving no appeals directly from the trial level. The supreme court’s jurisdiction is limited to reviewing the intermediate court’s decision on a discretionary basis. That is, after the appeal has been decided in the intermediate court, the losing litigant may petition the supreme court for review. That court may then, in its discretion, decide whether to take up the case for decision.

Federal Courts :21

3.124 Article III of the Federal Constitution provides: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts the Congress may from time to time ordain and establish." The creation of other federal courts is left up to Congress. That body moved promptly to pass the Judiciary Act of 1789, setting up the federal judicial system with trial courts in every state. The first set of intermediate courts with purely appellate jurisdiction was established by Congress in 1891. The structure put in place then is essentially the structure that exists today.

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21. Ibid No.2 p. 23 to 25.

3.125 The Congress has created chain of federal courts. The federal judicial pyramid, like that in many states, is three-tiered. At the base are the trial courts, the major ones being the district courts. At the middle level are the courts of appeals. At the apex is the Supreme Court.

District Courts :

3.126 In its design for the federal judiciary, Congress has divided the United States and its territories into ninety-four federal judicial districts. There is at least one such district in each state. In the largest and most heavily populated states there are several districts, identified geographically by such designations as the Southern District of New York. With minor exceptions, no judicial District crosses state state lines.

3.127 In each district there is a United States District Court. These ninety-four courts are the major trial courts of the federal judiciary. Each of these courts has at least two judges; many have several, and in the most populous districts the court has more than two dozen. Because each district covers either an entire state or a large part of a state, the Court typically holds sessions in several cities in the district. For example, the United States District Court for the Eastern District of Virginia (covering the eastern half of the state) sits in Richmond, Norfolk and Alexandria.

3.128 Although a district court may have numerous judges, each case is presided over by a single judge, as in the state trial courts. In civil actions seeking money damages, the Constitution guarantees a right to jury trial if a jury is requested by either party. Statutes sometimes accord a right to jury trial in other cases. If the right to jury trial is waived, or if no such right is given by the Constitution or a statute, the judge acts as trier of fact as well as of law. Criminal prosecutions, other than for misdemeanors, are conducted with juries unless the defendant waives that right.

Courts of Appeals :

3.129 In addition to having created the ninety-four districts as units of trial court organisation, Congress has also established thirteen federal judicial circuits as a basis for the federal intermediate court structure. In each circuit there is a court of appeals, officially designated as the United States Court of Appeals for that circuit. Eleven of the circuits are numbered and are organised on a territorial basis, each embracing several states. For example, the Fourth Circuit includes the states of Maryland, Virginia, West Verginia, North Carolina, and South Carolina. The United States Court of Appeals for the District of Columbia Circuit embraces only the District of Columbia. The court of appeals in each geographical circuit has jurisdiction over appeals from the district courts within its circuit, in both civil and criminal cases.

Supreme Court :

3.130 At the apex of the federal judicial pyramid is the Supreme Court of the United States, the only court specifically provided for in the Constitution. Legislation enacted by Congress sets the number of its judges (called Justices) and its jurisdiction, within the boundaries of the jurisdiction authorised by Article III of the Constitution.

3.131 The Court has - and has had since the middle of the nineteenth century - nine Justices, one of whom is designated as the Chief Justice of the United States.

3.132 The Supreme Court has jurisdiction to review all decisions of the federal appellate courts. It also has jurisdiction over the decisions of the highest state courts when those courts have decided a question of federal law. The power to review cases from both state and federal courts gives the Supreme Court a unique position in the American judiciary’s firmament.

3.133 With minor exceptions, the Court’s jurisdiction is discretionary. Litigants petition the Court for a writ of certiorari, in effect asking the Court to hear and decide a case on its merits. The Court then, in its discretion, decides whether to do so. In this process the Court employs a "rule of four". If any four of the nine Justices wish to grant the writ of certiorari, the case will be taken up for decision. Otherwise, certiorari is denied, and the decision of the court below is left standing.

3.134 It should be underscored that a federal district court is a trial court essentially like a state trial court of general jurisdiction. Both types of courts function under substantially the same trial procedures. Indeed, in many states the trial court procedures are identical to those in the federal district courts. A casual observer of proceedings in a federal district court and a state trial court would notice few differences. In all large cities, as well as in many smaller towns, both courts are in sessions - often in court houses within a few blocks of each other. From these two trial forums, however, the appellate routes diverge. An appeal in a federal case will go to the U.S. court of appeals for the circuit in which the trial court is located. An appeal from a state case will go either to the state intermediate appellate court or the state supreme court.

3.135 The procedural rules and the adversary style of proceedings are basically the same in the federal and state trial courts. Much of their business is also the same. Approximately one-fourth of the federal district court’s civil docket consists of cases brought there under the diversity of citizenship jurisdiction, which means that they are essentially state law cases. In such cases, the federal district courts are engaging in exactly the same kind of work as the state courts of general jurisdiction. In the rest of their business, in civil and criminal, the federal district courts are concerned primarily with issues of federal statutory law, intermingled with federal constitutional questions and maritime cases. Some of these questions also arise in state court litigation. In general, however, state courts are much more involved with the traditional common-law subjects than the federal courts, while the latter are much more heavily involved in adjudicating statutory and constitutional questions.

3.136 The highest degree of judicial independence is found in the federal system. All federal judges hold office during good behaviour and can be removed only through impeachment by Congress. In an impeachment proceeding the House of Representatives must prefer charges against the judge by a majority vote, and the Senate must try the judge on those charges. The judge can be removed only if the Senate finds him guilty by a two-thirds vote. Impeachment is a formidable procedure, not easily invoked.

3.137 At the other end of the spectrum, affording the smallest degree of independence, are those state judicial systems in which judges hold office for terms of years, at the end of which they must stand for re-election by the voters. A judge with a term as short as four or six years, no matter how conscientious he may be, can hardly be unaware that his judicial decisions could become a political issue in the next election, never more than a few years away. Even if the judge himself can perform judicial duties without regard to such considerations, public suspicion of political influence will be a lurking threat to the appearance of justice. Short terms of office and popular election seem inconsistent with the concept of judicial independence. Yet such arrangements exist in many States along with praise for the virtues of judicial independence.

3.138 In some States, the re-election of judges is by a "retention election". The judge runs on his own record without any opponent. The people are asked simplyto vote "yes" or "no" on whether that judge shall be retained in office. That system works to afford a somewhat higher degree of independence than does a contested election.

3.139 In an article titled "Judicial Independence in the USA" published in (1997) Electronic Journal, p.3, Justice Breyer of the U.S. Supreme Court, states as follows: There are three primary institutional pillars on which the U.S. Judicial administration is based. The first is the Judicial Conference of the United States - which was created in 1922. It comprises the Chief Justice of the Supreme Court, 13 Chief Judges of the Circuits, 12 District Court Judges and the Chief Judge of the Court of International Trade. The Judicial Conference is the national policy-making body for the Judiciary, and supervises the Administrative office of the U.S. Courts (which was established in 1939). The second one is the Administrative office of the U.S. Courts. It addresses to the needs for centralisation of Judicial administration and contains a body of professional administrators subject to the direct control of the Judicial Conference, which administers the federal court budget, personnel management, procurement and other house keeping and support functions. The third one is Circuit Judicial Councils which have primary responsibility in the judiciary’s disciplinary system.

3.140 Another independent, but centralised institution of the Judiciary is the Federal Judicial Centre, created by Congress in 1967. It is headed by the Chief Justice and is composed of six judges selected by the Judicial Conference and the Director of the Administrative Office. It has the responsibility of conducting research into Judicial administration and issues relevant to the administration of justice, as well as to propose and prepare educational programme for federal Judges.

3.141 The secured tenure and adequate remuneration for Judicial Officers have been always considered as the twin pillars of judicial independence. Article III, Section 1 of the U.S. Constitution provides that federal judges, "shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

3.142 An inter-locking net-work of federal statutes fixing compensation of high-level federal officials, including federal Judges provides for annual cost of living adjustments in salary determined in the same way as those for federal employees generally. But in four consecutive fiscal years commencing from 1976, Congress repealed, locked or postponed the previously authorised increases. A number of United States District Court Judges filed class actions against the United States in District Court, challenging the validity of the statutes under the Compensation Clause of the Constitution, which provides that federal judges shall receive compensation which "shall not be diminished" during their continuance in office. The District Court granted summary judgment in their favour.

3.143 In U.S. v. WILL22, BURGET C.J. of the U.S. Supreme Court held that the statutes revoking the increase have violated the Compensation Clause in so far as it applied to the members of the certified class.

3.144 The judicial compensation to the Federal Judges as on 15 July 1996 is: Chief Justice of the Supreme Court is paid a year $ 171,500; Associate Justice $ 164.100; U.S. Circuit Court of Appeals Judges $ 141,700 and U.S. District Judges $ 133.600.

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22. (1980) 449 U.S. 200, 227.

3.145 The annual salary structure of States Judges of Highest Court and General Trial Courts are as follows:

ANNUAL SALARY STRUCTURE OF JUDGES

IN SOME OF THE STATES IN U.S.A.

(in U.S. Dollars)

Name of the State

Highest Court

General Trial Court

Alabama

115,695 to 116,775

78,300 to 113,535

Arizona

101,130 to 103,538

86,683 to 96,314

California

131,085 to 137,463

107,390

Hawaii

93,780 to 94,780

86,780

Illionis

124,794

100,439 to 107,780

Maine

85,858 to 90,168

81,198 to 85,254

Minnesota

94,395 to 100,835

83,494 to 87,669

Missouri

99,733 to 102,233

76,059 to 86,256

New York

125,000 to 129,000

113,000

North Carolina

96,000 to 98,576

87,000 to 89,500

Pennysylvania

119,750 to 123,000

104,000 to 106,500

3.146 Information of all 50 States are indicated below23:

Salaries of associate justices of the highest courts range from $ 68,874 to $ 1,32,250; average $ 99,038; median $ 97,148.

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23. The National Center for State Courts, Salaries Current as of July 1, 1996.

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 $ 1,15,000; average $ 88,284; median $ 86,533.

3.147 Recently, the Judicial Conference of the United States24 which was presided by Rehnquist C.J. voted overwhelmingly at its semi-annual meeting in favour of a resolution declaring that a pay raise is badly needed for judges, law-makers and top government officials because the last cost-of-living increase occurred four years ago. They have stated that while salaries have been frozen since 1993, the cost of living has increased more than 12 per cent. During the same period, rank-and-file federal employees received cost-of-living adjustments of nearly 13 per cent. They have also emphasized that the current law would provide for a 2.3 per cent increase which is far short of the 9.6 per cent "catch-up" pay adjustment. They have urged the Congress to consider the "special circumstances" facing judges; the judges unlike members of Congress or Cabinet members make a lifetime commitment and work for many years after other government leaders have retired.

3.148 They have warned that continued erosion in judicial pay will result in salaries falling below the minimum needed to attract and retain high-caliber judges.

* * * * *

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24. The Washington post 24 September 1997.

PAKISTAN :

SUPREME COURT OF PAKISTAN :

3.149 The Constitution of the Islamic Republic of Pakistan provides for the establishment of the Supreme Court of Pakistan in Chapter 2 of Part 7.

3.150 The Supreme Court is at the apex of the judicial system of Pakistan. It consists of a Chief Justice known as Chief Justice of Pakistan and such number of other Judges as may be determined by an Act of the Parliament. At present, besides the Chief Justice, there are 13 other Judges in the Supreme Court. The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President in consultation with the Chief Justice. A person is eligible to be appointed as a Judge of the Supreme Court if he is a citizen of Pakistan and has been a Judge of a High Court for five years or an advocate of a High Court for fifteen years. The Chief Justice and Judges of the Supreme Court hold office till they attain the age of 65.

JURISDICTION :

3.151 The Supreme Court has original, appellate and advisory jurisdiction. The Supreme Court, to the exclusion of every other Court in Pakistan, has the jurisdiction to pronounce declaratory judgement in any dispute between the Federal Government and a provincial Government or between any two or more provincial Governments.

3.152 The Supreme Court has the power for the enforcement of the Fundamental Rights. It has jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences passed by a High Court, the Federal Shariat Court and the Services Appellate Tribunals. An appeal to the Supreme Court would lie as a matter of right for some specified cases; while for the rest, the Court hears an appeal with its prior permission.

3.153 The Supreme Court has Advisory jurisdiction. At any time, the President considers that it is desirable to obtain an opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court considers the question so referred and reports its opinion on the question to the President.

3.154 The permanent seat of Supreme Court is at Islamabad, but it also sits at lahore, Karachi, Peshawar and Quetta. The Supreme Court, if it considers expedient to do so in the interest of justice, could transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

3.155 All executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court. Any decision of the Supreme Court, to the extent it decides a question of law or is based upon or enunciates a principle of law, is binding on all Courts of Pakistan. The Supreme Court has the power to review any judgment pronounced by it or any order made by it.

3.156 The Fifth Schedule of the Constitution of Islamic Republic of Pakistan relating to the Supreme Court provides that every Judge of the Supreme Court shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may be determined by the President. Under the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997, a Judge of the Supreme Court including the Chief Justice shall be entitled to the use of an official residence without payment of rent throughout his term of office and for a period of 30 days thereafter.

3.157 In case a Judge chooses to reside in a house not provided by Government, he shall be entitled to a monthly allowance of Rs.13,500/- with maintenance at the cost of Government expense. He shall be entitled to the use of an official car maintained at Government expense with 400 litres of petrol per month. A superior Judicial Office Monthly Allowance is paid amounting to Rs.3,600/- in the case of Chief Justice and Rs.3,500/- in case of every other Judge.

3.158 The Chief Justice of Pakistan will be paid a cost of living allowance of Rs.1,417/- and every other Judge of the Supreme Court a sum of Rs.1,341/- per month. The above allowances are exempt from income-tax.

3.159 A retired Chief Justice and a Judge of the Supreme Court on retirement will be entitled to the services of either a driver or an orderly at his option. The services of the Driver or the Orderly will remain available to his widow after his death. Besides, the Chief Justice and the Judge of Supreme Court on his retirement or resignation shall be entitled to a minimum amount of pension equal to 70% of the salary as may be determined by the President from time to time plus 5% of the said salary with each completed year of service either as a Chief Justice or as a Judge, not exceeding the maximum amount of pension equal to 85% of the salary. He is also entitled to commutation of pension as per rules.

HIGH COURT :

3.160 Chapter 3 of Part VII provides for establishment of the High Court. It consists of Articles 192 to 203 regarding qualification, appointment and conditions of services of a Chief Justice and other Judges.

3.161 In each of the 4 provinces namely, Punjab, Sindh, NWPF and Balochistan, there is a High Court. The Islamabad Capital Territory falls within the jurisdiction of the Lahore High Court of Punjab. The High Court consists of a Chief Justice and other Judges as may be determined by law or as may be fixed by the President.

3.162 A Judge of the High Court is appointed by the President after consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the High Court in which appointment is to be made. The qualification for appointment of a Judge is that he must be a citizen of Pakistan, not less than 40 years of age and has been an advocate of the High Court or has held a judicial office for ten years and has for a period of not less than three years, served or exercised the functions of a District Judge in Pakistan. A Judge of a High Court holds office until he attains the age of sixty two years, unless he sooner resigns or is removed from office in accordance with the Constitution.

3.163 The High Court has original and appellate jurisdiction. It is empowered to make any order.

3.164 The High Court has the power to withdraw any civil or criminal case from the Trial Court and try it itself. It has extensive appellate jurisdiction against the judgements, decisions, decrees and sentences passed by the civil and criminal Courts.

3.165 The High Court has the power to make rules regulating its practice and procedure and of the Courts subordinate to it. Each High Court supervises and controls all Courts subordinate to it and any decision of the High Court binds all Courts subordinate to it.

TRANSFERS :

3.166 Transfer of the Judges: A Chief Justice or a Judge of the High Court is liable for transfer from one High Court to another or from the principal seat of a High Court to a bench of that High Court. In case he is so transferred, he is entitled, in addition to his salary, to a monthly allowance of Rs.5,000/-.

3.167 Under the High Court Judges (Leave, Pension and Privileges) Order, 1997, a Chief Justice and a Judge of the High Court shall be entitled to the official residence without payment of rent throughout his term of office and for a period of 30 days thereafter. In case he chooses to reside in a house not provided by the Government, he shall be entitled for a monthly allowance of Rs.13,500/- with maintenance at the Government expenses. He shall also be entitled to the use of an official car maintained at Government expense and 400 litres of petrol per month. a superior Judicial Office Allowance is paid amounting to Rs.3,500/- per month in case of a Chief Justice and Rs.3,000/- in case of every other Judge.

3.168 A Chief Justice is entitled to Rs.1,323/- per month and a Judge of a High Court is entitled to Rs.1,197/- per month as cost of living allowance. The above allowances are exempt from Income-tax.

3.169 A Chief Justice and a Judge of the High Court on retirement will be entitled to the services of either a driver or orderly at his option. The services of Driver or Orderly will remain available to his widow after death.

SHARIAT COURT :

3.170 Chapter 3-A of Part VII of the Constitution provides for the Federal Shariat Court in Pakistan. Articles 203A-203J deal with the appointment of the Judges including the Chief Justice of the Shariat Court.

3.171 Federal Shariat Court comprises, eight Muslim Judges including the Chief Justice to be appointed by the President, out of them, four are to be the persons qualified to be appointed as Judges of High Court, while three are to be Ulema (scholars well-versed in Islamic Law). Federal Shariat Court has original and appellate jurisdiction.

ORIGINAL JURISDICTION :

3.172 The Court is empowered to examine and decide a question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon Him). In case the Court decides that any Law or provision of law is repugnant to the injunctions of Islam, it will set out the extent to which such Law or provision of law is so repugnant, and specify the day on which the decision shall take effect. Where any law is held to be repugnant to the injunctions of Islam, the President in the case of Federal law and the Governor in the case of Provincial law is required to take steps to amend the law so as to bring it in conformity with the injunctions of Islam.

APPELLATE JURISDICTION :

3.173 The Court has exclusive jurisdiction to hear appeals from decision of criminal Courts under any law relating to enforcement of Hudood Law, i.e., Law pertaining to offences of intoxication, theft, Zina (unlawful sexual intercourse) and Qazf (false imputation of Zina). The principal seat of the Federal Shariat Court is at Islamabad, but it has circuits at Lahore, Karachi, Peshawar and Quetta.

OTHER CIVIL COURTS :

3.174 In every district of a Province, there is a Court of District Judge which is the principal Corut of original jurisdiction in civil matters. Besides the Court of District Judge, there are Courts of Civil Judges who function under the superintendence and control of the District Judge. All matters of civil nature originate in the Courts of Civil Judges. The District Judge may, however, withdraw any case and try it himself. Appeals against the judgements and decrees passed by the Civil Judges lie to the District Judge in cases where the value of the suit does not exceed the specified amount.

CRIMINAL :

3.175 In every district, there is a Court of Sessions Judge and Courts of Magistrates. Criminal cases punishable with death and cases arising out of the enforcement of laws relating to Hudood are tried by Sessions Judges. The Court of Sessions Judge is competent to pass any sentence authorised by law. Offences not punishable with death are tried by magistrates. There are Magistrates of I Class, II Class and III Class. An Appeal against the sentence passed by a Sessions Judge would lie to the High Court. An appeal against the sentence passed by a Magistrate would lie to the Sessions Judge, if the sentence is upto four years and in other cases to the High Court.

3.176 The recruitment of the subordinate judiciary at the trial Court level is made through a competitive examination held by the Provincial Public Service Commission. The posts of Additional District and Sessions Judges are filled in by promotion from the Judges of the Trial Courts as well as by direct recruitment from the Bar. Elevation to the High Court Benches is again made from the subordinate judiciary and from the Bar.

SPECIAL COURTS AND TRIBUNALS :

3.177 Special Courts and Tribunals are constituted to deal with specific types of cases, i.e. of offences pertaining to Banks; of Recovery of Bank Loans; under the Customs Act; for Traffic Offences, for trying corruption cases; under Commercial Laws and Drug Laws. There are also constituted Labour Courts; Insurance Appellate Tribunal; Income Tax Appellate Tribunal and Services Tribunals. Appeals from the Special Courts lie to the High Courts, except in case of Labour Courts and Special Traffic Courts which have separate forums of appeal. An appeal from Tribunals would lie to the Supreme Court of Pakistan.

WAFAQI MOHTASIB (OMBUDSMAN) :

3.178 The concept Mohtasib (Ombudaman) is an ancient Islamic concept and many Islamic States had established the office of Mohtasib to ensure that no wrong or injustice is done to the citizens. The Prophet of Islam (peace be upon Him) introduced the system of 'Hisab' or accountability. Article 276 of the Interim Constitution of 1972 provided for appointment of a Federal Ombudsman as well as Provincial Ombudsman for the first time. Subsequently, the Constitution of 1973 included the Federal Ombudsman at item No.13 of the Federal Legislative List in the Fourth Schedule. The institution of Ombudsman was, however, actually brought into being through the establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

3.179 The Wafaqi Mohtasib who is appointed by the President of Pakistan holds office for a period of four years. He is not eligible for any extension of tenure, or for re-appointment. He cannot be removed from office except on ground of misconduct or of physical or mental incapacity.

3.180 The chief purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of a Federal Agency or a Federal Government official. The primary objective of the office is to institutionalise a system for enforcing administrative accountability.

POWERS :

3.181 Mohtasib has the same powers as a Civil Court under the Civil Procedure Code for summoning and enforcing the attendance of any person, compelling production of documents and receiving evidence on affidavits. He has also powers identical to that of the Supreme Court of Pakistan to punish any person for contempt.

3.182 The most significant feature of the Ombudsman's powers is that where the superior Courts cannot take notice of orders of administrators which are in conformity with the law and rules - howsoever oppressive or unjust or arbitrary they may otherwise be - the Ombudsman can go into their equity aspect without any inhibition and recommend their withdrawal or modification, if he so finds. Similarly, where the law or rules empower an authority to exercise discretion in deciding a matter, no Court can question that discretion except the Ombudsman who, if he is satisfied that the discretion has not been exercised judiciously, may upset the decision or have it amended in the manner he deems fit.

3.183 SALARIES AND ALLOWANCE OF JUDGES IN PAKISTAN :

Chief Justice of Pakistan

Rs.20,250/- p.m.

Judges of Supreme Court

Rs.19,170/- p.m.

Chief Justice of High Court

Rs.18,900/- p.m.

Judges of High Court

Rs.17,100/- p.m.

Civil Judge

Rs.3880-290-6780

Senior Civil Judge

Rs.5085-366-8745

Additional District and Sessions Judge

Rs.7750-385-11600

District and Sessions Judge

Rs.9195-440-13595

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 4. THE TRIAL JUDGE IS REALLY "ON TRIAL"

4.1 Before referring to what really goes on at our trial Courts, it is necessary to have regard to what is required of a trial Judge. We can state without contradiction, some of the qualities we desire in our trial Judges. It is universally accepted that a trial Judge ought to be neutral and detached. He must be kind and benign. He must have an omniscience and not subjective confidence. He must be quite familiar with the law and knowledgeable about human behaviour. He must have manifold "personality". It consists of, among others, independence, courtesy, patience, dignity, open mindedness, impartiality, thoroughness and decisiveness. Above all, he must have social consciousness. There may be some variations in "this personality" of the Judge from person to person, but whatever be the variations, the central core of agreed standard is that he should be neutral and impartial; calm and non-contentious umpire.

4.2 This central core of agreed standard is a must in every trial Judge, because, he has to dig out the nugget of truth through the clash of contradictions in our adversary system. He is primarily concerned about the justice, no matter to which side it may fall. In the quest for truth, it is therefore, necessary for him to be patient, dignified and courteous to litigants, witnesses, lawyers and others.

4.3 This prescribed role of the Judge for our adversary system must come to him by long experience and training. He has to fulfil the required expectations of all the participants in the Court drama, in which two sides in the Court are nearly equal in learning, though physically may be unequal. The Judge more often is called upon to resolve the conflict between the rival parties. But there are contradictions, power pressures from different directions. The pressures, which we consider, is not with an intention to influence his judgment but those that are inherent in our system.

JUDGE BATTERED :

4.4 The very nature of our trial procedures generates subtle force that works against the Judge and his efforts to be neutral and detached. The primary concern of the parties and their Counsel in the trial of a case is to win. The sole objective of the defence lawyer in a criminal trial is to obtain acquittal. He seeks acquittal not because his client is innocent, but he just wants an acquittal. He gets his practice only when he wins the case. Nobody engages a lawyer who always loses his case. Likewise, the Prosecutor wants only conviction. He wants the accused to be punished and his attitude and approach in the Court are accordingly oriented.

4.5 Each contesting lawyer seeks to secure success to his client. But the goal of winning by both the sides may be inconsistent with the quest for truth, which the Judge is required to pursue. The Judge has to guard himself against trickery and cunning to defeat the ends of justice. Ultimately, when one party loses, there would be a deep strain, mistrust and hostility. Thus, at every stage, the trial Judge is under attack, however much he makes sincere efforts to render justice.

4.6 The atmosphere of the Court in certain cases is charged with high tension. The lawyers sometimes have an aggressive outlook against the Judge with assaultive mood against their opponents. Even the Judge’s fairness is challenged when the ruling is given on any objection.

4.7 Indeed, in such a Court room drama, the Judge is really "on trial" and not the case on trial.

4.8 Trial Judges working under a charged atmosphere and constantly under a psychological pressure has been even judicially recognised.

4.9 In K.P. TIWARI v. STATE OF M.P.1 , the Supreme Court observed:

" . . . . . . . The lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks – more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however, gross it may look, should not, therefore, be attributed to improper motive."

THE APPELLATE COURT :

4.10 Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions to correct the errors. The error may be of law or fact or of both. To err is human. There cannot be an exception to a Judge. As wisely put by a jurist "a Judge who has not committed any error is yet to be born."

4.11 Justice Felix Frankfurter2 rightly commented:

"Judges are men, not disembodied spirits. Of course, a judge is not free from preferences or, if you will, biases."

4.12 Justice Cardozo3 said:

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1. 1994 Supp (1) SCC 540.

2. Some observations of Felix Frankfurter,J. On the "Nature of Judicial Process of Supreme Court Litigation", 98 Proceedings AM Phil Society 233 (1954).

3. The Nature of the Judicial Process, Benjamin, N. Cardozo pp. 168-69.

"The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter. That is an ideal of objective truth toward which every system of jurisprudence tends . . . . . It has a lofty sound; it is well and finely said; but it can never be more than partly true."

4.13 In deciding the appeal, the Appellate Court is not approaching the case as if for the first time. The raw materials for the Appellate Court are already collected, assembled and focussed unlike in the Trial Court. The Appellate Court hears only the oral arguments in a tension free atmosphere. The Appellate Court has plenty of time to come to conclusion. There is enough time for the Appellate Court to think and re-think on any legal issue. The Appellate Court could make research and go on editing its draft judgment any number of times. The decision-making may be prolonged and graduated. There is a qualitative difference in the variety, novelty and method in the decision-making by the Appellate Court. If the Appellate Bench consists of more than one Judge, they could share their views and labour.

4.14 Apart from that, unlike in the Trial Court, the Appellate Court will have substantial contribution from the well-prepared lawyers. The assistance given to the Appellate Court generally is far better than the assistance given to the Trial Court.

4.15 It is true that, the Appellate Court has as much power as that of the Trial Court in deciding the matter. It does not mean that the Appellate Court should find fault with the Trial Judge in each and every matter of the decision making. It also does not mean that the Appellate Court should treat the Trial Judge with little respect. The Appellate Court dealing with the matter must be conscious and controlled with deference to the decision of the lower Court.

4.16 We rely upon Appellate Court to correct errors. But it does not carry an implication that the Appellate Court is wiser.

4.17 It is therefore not proper for the Appellate Court or Revisional Court to make derogatory remarks against Trial Judge.

4.18 IN BRAJ KISHORE THAKUR v. UNION OF INDIA AND OTHERS4, K.T. THOMAS, J. While deprecating the caustic and severe censure made by the Single Judge of the Patna High Court against the Senior District and Sessions Judge of Bihar Judicial Service, observed:

"Judicial restraint is a virtue. A virtue which shall be concomitant of every judicial disposition. It is an attribute of a Judge, which he is obliged to keep refurbished from time to time, particularly while dealing with matters before him whether in exercise of appellate or revisional or other supervisory jurisdiction. Higher Courts must remind themselves constantly that higher tiers are provided in the judicial hierarchy to set right errors, which could possibly have crept in the findings or orders of Courts at the lower tiers. Such powers are certainly not for belching diatribe at judicial personages in lower cadre. It is well to remember the words of a jurist that "a Judge who has not committed any error is yet to be born."

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4. (1997) 4 SCC 65, at 66 and 70.

The learned Judge continued:

"No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher Courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not enhanced by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order, Judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary."

4.19 In A.M. MATHUR v. PRAMOD KUMAR GUPTA5, Shetty J., although in a different context, said:

"Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the Court as well as to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect, when these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.

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5. (1990) 2 SCC 533 at 539.

The Judge’s Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of Counsel, parties or witnesses. We concede that the Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct."

4.20 In STATE OF RAJASTHAN v. PRAKASH CHAND AND OTHERS6, the present Chief Justice Dr. A.S. Anand, J. (as he then was), deprecating the tendency of certain Judges in making disparaging and derogatory remarks in intemperate language, observed:

"The foundation of our system which is based on the independence and impartiality of those who man it, will be shaken if disparaging and derogatory remarks are permitted to be made against Brother Judges with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from outside forces but also from those who are an integral part of the system. Dangers from within have much larger and greater potential for harm than dangers from outside. We alone in the judicial family can guard against such dangers from within.

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6. (1998) 1 SCC 1.

One of the surer means to achieve it is by the Judges remaining circumspect and self-disciplined in the discharge of their judicial functions."

4.21 In R.C. SOOD v. HIGH COURT OF JUDICATURE AT RAJASTHAN7 B.N. Kirpal, J. after tracing the history of the case of the Petitioner, who was a Senior District Judge belonging to Rajasthan Judiciary, found fault with the Rajasthan High Court for taking a decision to ruin the Petitioner’s judicial career. The learned Judge continued:

" . . . . . . . . We have no doubt that the action taken by the Court was not bona fide and amounts to victimisation. This is certainly not expected from a judicial forum, least of all the High Court, which is expected to discharge its administrative duties as fairly and objectively as it is required to discharge its judicial functions."

xxx xxx xxx

xxx xxx xxx

"The High Court acted in the manner which can only be termed as arbitrary and unwarranted, to say the least."

4.22 So stating, the entire disciplinary proceedings initiated by the High Court against the Petitioner were quashed with the exemplary cost of Rs.20,000/- in favour of the Petitioner.

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7. AIR 1999 SC 707.

I. OUR VIEWS :

4.23 From the representations received from the Judicial Officers all over the country, it becomes clear that they are working under great stress without proper appreciation of their problems by the High Court. It is necessary to emphasise that the Trial Judges are not mechanical scales or computers. They being human, vary in their respective qualities of intelligence, perceptiveness and attentiveness and mental and emotional characteristics. The High Court while reviewing their decisions must bring to bear these aspects before making any criticism against them.

4.24 It may be stated that the dynamics of judicial process of the Trial Judges and the Appellate Judges are quite distinct and different. The task of writing judgment in the appeal is nothing compared with the duty of conducting trial with procedural fairness of the adversary system.

4.25 The Trial Judges therefore deserve more sympathetic consideration. They should be treated with dignity and honour. They should not be openly criticised by using intemperate language or casting aspersions on their judicial functioning.

4.26 In this context, we are constrained to refer to a pernicious practice which has been specifically brought to our attention by the All India Judges’ Association in their representation and also during the oral hearing.

4.27 It is said that some Judges particularly of some High Courts while hearing appeals, writ petitions, or Revision petitions against the orders and judgments of the Trial Court, used to summon the Trial Judges to the High Court to explain in open Court as to why they have written the judgments in that manner. The Trial Judges would be required to be present at their own cost before the learned Judges in the open Court in the midst of the Bar Members and public to explain their judgments. It is a great embarrassment and humiliation to the Trial Judges. If we may say so, with all respect, such practice is unknown to our accepted norms and procedure, if not an abuse of the power. We trust and hope that those learned 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.

II. ANNUAL CONFIDENTIAL REPORTS / SELF ASSESSMENT REPORTS:

4.28 Annual Confidential Reports of the Judicial Officers prepared and maintained by the High Courts have given rise to many complaints from the Judicial Officers. It is said that in certain cases, confidential reports are based more on information received from the Bar members or third parties, which is in strict legal parlance "hearsay evidence". It may be stated that the judges who are honest and strict and who adhere to rules of procedure do not always find favourable response from the Bar Members.

4.29 The Commission considers that the procedure prescribed for writing the Confidential Report for All India Administrative Service is a better one and more transparent. This procedure is also adopted by some of the State Governments. The All India Service (Confidential Rolls) Rules, 1970 and the FORM I prescribed thereunder are enclosed as ANNEXURES ‘A’ & ‘B’ to this Chapter for ready reference.

4.30 It may be seen that Form I contains six parts:

Part - I for filling up Personal Data.

Part - II for self assessment by the Officer concerned.

Part - III for Reporting Authority.

Part - IV General.

Part - V Remarks of the Reviewing Authority.

Part - VI Remarks of the Accepting Authority.

4.31 We request all High Courts to adopt this procedure with minor modifications here and there, if necessary, if they have not yet adopted the same.

III. EASY ACCESSIBILITY:

4.32 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. The present tendency of certain Judges and Chief Justices to avoid audience to Judicial Officers on the ground that they need not bother them is not desirable. In some cases, even minor problem might be greatly upsetting the mind of the Judge concerned and the High Court should be ready to apply a healing balm to any hurt or injury of the Officer, in order to keep up the health and morale of the Officers.

IV. DISPENSERS OF JUSTICE SHOULD NOT BE DENIED JUSTICE IN THEIR OWN CASES:

4.33 "Nothing rankles more in a human heart than a brooding sense of injustice." It was said in connection with citizens at large as well as general litigants. But judicial officers cannot be an exception to this maxim.

4.34 Some times, 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. It is complained that their writ petitions are admitted but kept in cold storage. This would be practically denying justice to judicial officers.

4.35 The Commission suggests that the writ petitions of the judicial officers should be expeditiously disposed of preferably by a bench presided over by the Chief Justice of the High Court. If the Chief Justice is disabled to hear such cases, the seniormost Judge may be requested to preside over such bench. This practice will give some kind of confidence to the aggrieved judicial officers.

V. SCRUTINY ON THE EVE OF ATTAINING 58 YEARS FOR EXTENDING BENEFIT OF TWO YEARS SERVICE

4.36 The Supreme Court in the Review judgment in the All India Judges’ Association case8 observed that:

Para (30) "The benefit of the increase of the retirement age to 60 years shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officers’ past record of service, character rolls, quality of judgments and other relevant matters.

Para (31) "The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the

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8. 1993(4)SCC 288 at 305,306.

age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement at the earlier stage/s under the respective Service Rules

(Para 32) "The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 58 years does introduce a change in the service condition of the existing personnel. There may be judicial officers who are not desirous of availing of the benefit of the enhanced superannuation age with the condition of compulsory retirement and may like to opt for retirement at the age of 58 years. In such cases, the concerned officers should intimate in writing their desire to retire at the age of 58 years well in advance and in any case before they attain the age of 57 years. Those who do not do so will be deemed to have exercised their option to continue in service till they attain 60 years of age subject to the liability of being retired compulsorily at the age of 58 years according to the procedure for compulsory retirement laid down in the Service Rules."

4.37 The experience of the Judicial Officers in every State is that the above system is not put to proper working. On gathering the preliminary information in that regard, the Commission has specifically incorporated a Question No.48 in the general Questionnaire as follows:

"Q.48. The Supreme Court has observed that while the superannuation age of every Judicial Officer shall stand extended upto 60 years, the benefit of the extended superannuation age from 58 to 60 shall be given to a Judicial Officer found fit and eligible by the respective High Court after assessing and evaluating the record of the Judicial Officer in accordance with the procedure for compulsory retirement under the Service Rules before he attains 58 years.

"There are views for and against the said practice. Let the Commission have your considered opinion on the said matter."

4.38 The responses received from the respondents are not worthy of mentioning. We can only state that the methodology required to be followed by the High Court for reviewing the cases of Judicial Officers at the age of 58 for the purpose of giving them the benefit of two years of service has affected the morale of the Judicial Officers. They are near unanimous that the procedure should be discontinued.

4.39 It will be seen that the Supreme Court has observed that the benefit of the increase of the retirement age at 60 years shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit must be extended only to those who have a potential for continued useful service. This potential for continued utility to the judicial service shall be assessed and evaluated by the High Court and the evaluation shall be made on the basis of the Judicial Officers' past record of service, character rolls, quality of judgment and other relevant matters.

4.40 These observations are followed by the directions to the High Court to review the cases of Judicial Officers who are about to attain the age of 58 years by following the procedure for compulsory retirement as laid down in the respective Service Rules for compulsory retirement. The next direction is that those who are not found fit and eligible by that review should be compulsorily retired at the age of 58.

4.41 It was further observed that the assessment of the Officers by following the procedure for compulsory retirement is only for entitlement to the benefit of the increased age of superannuation from 58 to 60 years and this would be without prejudice to or in addition to the assessment to be undertaken for compulsory retirement at the earlier stages under the respective Service Rules.

4.42 It was also observed that those Judicial officers who are not desirous of availing the benefit of the enhanced superannuation age may opt for retirement at the age of 58 years by intimating in advance their desire to retire at the age of 58 years and in any case before they attain the age of 57 years.

4.43 With all humility, if we may say so, the Apex Court's directions to review the cases of Judicial Officers at the age of 58 for giving them the benefit of two years, is uncalled for. You cannot assess the suitability of Officers for giving the benefit of two years within the age of superannuation, in addition to the assessment to be undertaken for compulsory retirement at the earlier stages under the relevant Service Rules. Such a review may be necessary if extension of two years is to be given after the age of retirement. Within the age of retirement, every Officer has a right to continue in service till he attains the age of superannuation unless he is removed by the procedure known to law. That procedure should not be linked for giving the benefit of the extended age of superannuation. It has to be independently followed under the respective Rules.

4.44 Secondly, it may be noted that the review of cases at the age of 58 years for compulsory retirement is not obligatory in respect of every Judicial Officer. It applies only to those who express their desire to continue beyond 58 years. Those who do not want to continue beyond 58 years may simply intimate the High Court at the age of 57 years stating that they do not want to continue beyond 58 years. Then, they will escape the procedure for compulsory retirement by this scheme. They could honourably retire in the sense without being compulsorily retired at the age of 58, although their records may not be so good as that of those who ventuer to ask for two more years of service.

4.45 We may hasten to add that we are equally concerned in promoting efficiency in the administration of justice and to keep the streams of justice pure and unpolluted. With this object in view and also bearing in mind the purpose underlying the directions of the Supreme Court, we have recommended the review of all cases of Judicial Officers by a Committee of Judges headed by the Chief Justice. The review should not be one time affair. It should be periodical and the Committee should be continuing Committee. The review of cases shall be undertaken when the Officers are about to attain the age of 50, 55 and 60 years and those who are considered as dead wood should be weeded out in public interest. This procedure of compulsory retirement should be independent of and unconnected with the benefit of giving the upward revision of superannuation age.

4.46 The draft Service Rules in this regard for all High Courts to make has been prepared by the Commission and annexed elsewhere to this Report.

OUR RECOMMENDATIONS :

4.47 Many of the High Courts have incorporated the directions of the Supreme Court in their respective Service Rules, including the provision for compulsory retirement at the age of 58 years, although the retirement age has been fixed at 60.

4.48 We recommend to the High Courts to supersede such Rules and to frame a Rule specifying only the age of retirement. When such a rule is framed without any further conditions, the directions of the Supreme Court to review the cases at 58 will not be applicable, as observed by the Supreme Court in RAJAT BARAN ROY AND OTHERS v. STATE OF WEST BENGAL AND OTHERS9 as follows:

"In view of this observation, it is clear that the direction issued as above, would cease to exist when appropriate rule enhancing the retirement age of the judicial officers to 60 years is made. Consequently, the rider to the direction issued by the Court also ceases to operate, being coterminus with the direction. After the directions in the 1993 case, in the case of such States which had framed rules consequent upon which the members of the subordinate judiciary in those States became entitled to continue in service till the age of 60 years, it will have to be held that the enhancement has come into force by virtue of such rules framed. In other words, the enhancement of retirement age in those States will be dehors the directions of this Court and will be subject only to the terms of the rules applicable. In such cases, in our opinion, the pre-retirement assessment will not be applicable unless the same is specifically provided under the rules."

xxx xxx xxx

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9. (1999) 4 SCC 235 at 240.

ANNEXURE ‘A’

ALL INDIA SERVICES (CONFIDENTIAL ROLLS) RULES, 1970

In exercise of the powers conferred by sub-section (1) of section 3 of the All India Services Act, 1951 (61 of 1951), the Central Government, after consultation with the Governments of the States concerned, hereby makes the following rules, namely:-

1. Short title, commencement and application,-

(1) These rules may be called the All India Services (Confidential Rolls) Rules, 1970.

(2) They shall come into force on the date of their publication in the Official Gazette.

(3) They shall apply to the writing and the maintenance of the confidential reports on the members of the Service.

2. Definition,- In these rules, unless the context otherwise requires:-

21(a) "accepting authority" means such authority or authorities supervising the performance of the reviewing authority as may be specifically empowered in this behalf by the Government.

2(aa) ‘confidential report’ means the confidential report referred to in rule 5;

22(b) ‘confidential roll’ means the compilation of the confidential

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1. Substituted vide DP&T Notification No.22012/4/87 AIS (III) dated 8-12-1987.

2. Inserted / Substituted vide Notification No. 34/4/71- AIS (III), Vol. I-A dated 11-9-73.

reports written on a member of the Service and includes such

other documents as may be specified by the Central Government, by general or special order, in this behalf;

22(c) ‘Government’ means -

(i) in the case of a member of the Service Serving in connection with the affairs of the Union or of a Union Territory, or serving under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government, or serving under a local body set up by an Act of Parliament, or serving under an international organisation, an autonomous body not controlled by the Central Government or a State Government, or a private body, the Central Government;

(ii) in the case of a member of the Service serving in connection with the affairs of a State, or serving under a company association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or serving under a local body set up by an Act of the Legislature of a state, the Government of that State;

2(d) ‘member of the Service’ means a member of an All-India Service as defined in section 2 of the All India Service Act, 1951 (61 of 1951);

23(e) "reporting authority" means such authority or authorities

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2. Inserted / Substituted vide Notification No. 34/4/71- AIS (III), Vol. I-A dated 11-9-73.

3. Substituted vide DP&T Notification No.22012/4/87 AIS (III) dated 8/12/87.

supervising the performance of the member of the Service reported upon as may be specifically empowered in this behalf by the Government;

24(f) "reviewing authority" means authority or authorities supervising the performance of the reporting authority as may be specifically empowered in this behalf by the Government.

2(g) ‘State’ means a State specified in the First Schedule to the Constitution and includes a Union Territory;

25(h) ‘State Government’ means the Government of the State on whose cadre the member of the Service is borne and in relation to a member of an All India Service borne on a Joint Cadre.

6Explanation – "The authority or authorities supervising the performances" referred to in clauses (a), (e) and (f) shall not necessarily mean an authority or authorities belonging to the same Service to which the reviewing or the reporting authority, as the cases may be, belongs.

Government of India’s Orders:

7In pursuance of clause (b) of rule 2 of the All India Service (Confidential Rolls) Rules, 1970, the Central Government hereby specifies the following documents to be included in the confidential roll, as defined in that clause namely:-

(i) Letters of appreciation / Resolution issued by the Government

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4. Substituted vide Notification No.22012/4/87 AIS (III) dated 8/12/87.

5. Substituted vide DP&AR Notification No.13/4/71-AIS-I, dated 11/1/72.

6. Inserted vide DP&T Notification No.22012/4/87 AIS (III) dt. 8-12-87.

7. [F.No.11059/16/79-AIS(III), dated 25-5-80].

to a member of the All India Service; record about any medals, award etc. awarded to him in recognition of his services.

(ii) Copy of order imposing on the member of the Service any of the penalties specified in the All India Services (Discipline and Appeal) Rules, 1969.

7(a) Copy of the communication addressed to a member of the Service warning him or conveying the displeasure or reprimand by the Reporting Authority / Reviewing Authority / Accepting Authority in which a reference is made in the Confidential Report for the relevant period.

(b) Copy of the communication addressed to a member of the Service conveying warning, or displeasure, or reprimand, of the Government.

(iii) Record of final result of the inquiry into the charges or allegations against a member of the Service; mentioned in his confidential report.

(iv) Copies of certificates regarding languages known by the member of the Service.

(v) Copies of certificates regarding educational qualifications acquired by the member of the service after entering the service.

8(vi) Copies of :-

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7. Amended vide DP&T Notification No.11059/8/86 AIS (III) dated 21-1-1987.

8.Amended vide DP&T order No.11059/8/86 AIS III dated 5-1-1989. Amended

vide DP&T order No.11059/18/85-AIS (III) dated 8-12-1987.

(a) Certificates and 9marksheets regarding training (excluding certificates for one-week training programmes) received by a member of the Service;

and

(b) Evaluation Sheets in respect of training programmes sponsored by Government of India or duration of four weeks or more

(vii) Record about any books, articles and other publications brought out by a member of the Service or for the publication of which he may be responsible.

Note 1 - Mention of items (v) and (vi) may also be made on the first page of the C.R. Dossier in the Columns "Languages Known" and "Educational Qualification" respectively.

Note 2 - Details of the training under item (vii) may also be mentioned on the first page of the C.R. Dossier below the column "Educational Qualifications".

Note 3 - Information relating to item (viii) may be entered in a separate list to be kept in the C.R. Dossier. Copies of the articles, books and other publications need not be kept in the C.R. Dossier. No distinction is to be made between articles, books and other publications of a professional and those of a non-professional nature.

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9. Amended vide order No. 11059 / 14 / 87-AIS III dated 11-9-1987.

3. Maintenance and custody of confidential rolls,-

(1) A confidential roll shall be maintained in respect of every member of the Service by the State Government as well as by the Central Government.

(2) The State Government as well as the Central Government may specify the manner in which the aforesaid confidential rolls shall be maintained and kept by it.

4. Form of the Confidential report,- The confidential report shall be written by the reporting authority in such form as may be specified by the Central Government.

Provided that the Government may make such additions in the form so specified as may be considered necessary or desirable by it to suit local conditions or requirements.

5. Confidential reports.- (1) A confidential report assessing the performances, character, conduct and qualities of every member of the Service shall be written for each financial year, or calendar year, as may be specified by the Government, (ordinarily within two months of) the close of the said year.

10,11[Provided that where a member of the Service is on deputation to an international organisation, confidential reports in respect of such member may be written-

(i) for the entire period of his tenure with the said organization even in a case where the period of such tenure exceeds one year; or

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10. Inserted/substituted vide DP&AR Notification No. 8/6/72-AIS-III, dated 2-1-1975.

11. Inserted/substituted vide Notification No.34/4/71-AIS-III, Vol.I-A, dated 11-9-73.

(ii) for such shorter period as may be considered convenient or necessary by the reporting authority having regard to the circumstances of each case, ordinarily within three months of the close of the said period.]

[Provided further that a confidential report may not be written in such cases as may be specified by the Central Government, by general or special order.]

5(2) A confidential report shall also be written when either the reporting authority or the member of the Service reported upon relinquishes charge of the post, and, in such a case, it shall be written at the time of the relinquishment of his charge of the post or ordinarily within one month thereafter.

[Provided that a confidential report may not be written in such cases as may be specified by the Central Government, by general or special order.]

5(3) Where more than one confidential reports are written on a member of the Service during the course of a financial year or a calendar year, as the case may be, each such report shall indicate the period to which it pertains.

5(4) Where the reporting authority has not seen, and the reviewing authority has seen, the performance of a member of the Service for at least three months during the period for which the confidential report is to be written, the Confidential report of any such member for any such period shall be written by the reviewing authority, and where, both the reporting authority and the reviewing authority have not seen, and the accepting authority has seen, the performance as aforesaid of any such member during any such period, the confidential report shall be written by the accepting authority.

5(5) Where the authority writing the Confidential report under sub-rule (2) or sub-rule (4) is a Government Servant, such report shall be written before he retires from service;

5(6) Where the reporting authority, the reviewing authority and the accepting authority have not seen the performance of a member of the Service for at least three months during the period for which the report is to be written, an entry to that effect shall be made in the confidential report for any such period by the Government.

12"5(7) Notwithstanding anything contained in sub-rules (1), (2) and (4), it shall not be competent for the reporting authority, the reviewing authority or the accepting authority, as the case may be, where the authority writing the confidential report is not a government servant, to write a confidential report after he demits office.

Explanation: For the purpose of this rule, Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was a Minister with the same or a different portfolio."

6. Review of the confidential report – (1) The confidential report shall be reviewed by the reviewing authority ordinarily within one month of its being written:

Provided that this requirement may be dispensed with in such cases as may be specified by the Government, by general or special order.

_______________________________________________________________

12. Substituted vide Notification No.11059/8/86 AIS-III dated 21-1-1987.

6(2) Where the report is written by the reviewing authority under sub-rule (4) of rule 5, or where the reviewing authority has not seen, and the accepting authority has seen, the performance of a member of the Service for at least three months during the period for which the confidential report is written, the confidential report of any such member for any such period shall be reviewed by the accepting authority, ordinarily within one month of its being written.

6(3) It shall not be competent for the reviewing authority, or the accepting authority, as the case may be, to review any such confidential report unless it has seen the performance of the member of the Service for at least three months during the period for which the report has been written, and in every such case an entry to that effect shall be made in the confidential report.

6(4) Notwithstanding anything contained in sub-rules (1) and (2), it shall not be competent for the reviewing authority or the accepting authority, as the case may be, to review any such confidential report-

(a) where the authority reviewing confidential report is a Government servant, after he retires from service, and

(b) in other cases, after he demits office.

12"Explanation: For the purpose of this rule, a Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was Minister with the same or a different portfolio".

6A. Acceptance of the confidential report- (1) The confidential report, after review, shall be accepted, with such modifications, as may be considered

_______________________________________________________________

12. Substituted vide Notification No.11059/8/86 AIS-III dated 21-1-1987.

necessary, and countersigned, by the accepting authority, ordinarily within one month of its review:

Provided that this requirement may be dispensed for, in such cases as may be specified by the Government, by general or special Order:

Provided further that where the accepting authority has not seen the performance of any member of the Service for at least three months during the period for which the confidential report has been written, it shall not be necessary for the accepting authority to accept any such report.

Note,- An entry to this effect shall be made in the confidential report.

6A (2) Notwithstanding anything contained in sub-rule (1), it shall not be competent for the accepting authority to accept and countersign any such confidential report-

(a) where the accepting authority is a Government servant, after he retires from service, and

(b) in other cases, after he demits office.

12"Explanation: For the purpose of this rule a Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was Minister with the same or a different portfolio".

6B. Cases in which the accepting authority writes or reviews the confidential report,- Notwithstanding anything contained in rule 5 or rule 6, where the accepting authority writes or reviews the confidential report of any

_______________________________________________________________

12. Substituted vide Notification No.11059/8/86 AIS-III dated 21-1-1987.

member of the Service, it shall not be further necessary to review or accept any such report.

7. Communication of the confidential report to the Central Government and the State Government,- A certified true copy of the confidential report shall be sent to the Central Government or the State Government or both to the Central Government and the State Government, according as the member of the Service is servicing in connection with the affairs of the State, on whose cadre he is borne, or the Union, or a State to which he has been deputed:

13Provided that, if the confidential report is written in a language other than Hindi or English, it shall be accompanied by an authentic certified translation in Hindi or English.

14"8. Communication of Adverse remarks,-

8(1) Where the Confidential report of a member of the service contains an adverse remark, it shall be communicated to him in writing together with a substance of the entire Confidential report by the Government or such other authority as may be specified by the Government ordinarily within two months of the receipt of the confidential report and a certificate to this effect shall be recorded in the Confidential report.

8(2) Where the reporting authority or the reviewing authority or the accepting authority records an adverse remark, he shall also record a note to the effect that the remark is an adverse remark:

_______________________________________________________________

13. Inserted vide Notification No. 8/5/72-AIS-III, dated 25-8-1973.

14. Substituted vide DP&T Notification No.11059 / 8 / 86-AIS-III dated 21-1-1987.

Provided that the question whether a particular remark recorded in the Confidential report of a member of the service is an adverse remark or not shall be decided by the Government.

Provided further that in the event of any difference of opinion between the Central Govt. and the Government of a State whether a particular remark is to be deemed an adverse remark or not, the opinion of the Central Government shall prevail.

Explanation: for the purpose of these rules an adverse remark means a remark which indicates the defects or deficiencies in the quality of work or performance or conduct of an officer, but does not include any word or words in the nature of counsel or advice to the officer".

9. Representation against adverse remarks,- A member of the Service may represent to the Government against the remark communicated to him under rule 8 within 45 days of the date of its receipt by him:

15Provided that the Government may entertain a representation within three months of the expiry of the said period if it is satisfied that the member of the service had sufficient cause for not submitting the representation in time.

10. Consideration of representation against adverse remarks,–

(1) The Government shall, and if it considers necessary, in consultation with the reporting authority, [the reviewing authority or the accepting authority], consider the representation made under rule 9 by a member of the Service and pass orders as far as possible within three months of the date of submission of the representation–

_______________________________________________________________

15. Substituted vide DP&T Notification No.11059 / 8 / 86-AIS-III dated 21-1-1987.

(a) rejecting the representation, or toning down the remark, or

(b) expunging the remark.

Provided that where an order toning down or expunging the remark is passed a copy of such order, and if the order is passed beyond twelve months after the close of the financial year calendar year, as the case may, be to which the remark pertains, the reasons therefor, together with the certified true copies of the representation made and the remarks of the reporting authority and the reviewing authority, shall be endorsed to the Central Government or the State Government or both to the Central Government and the State Government according as the member of the Service is serving in connection with the affairs of a State on whose cadre he is borne or the Union or a State to which he has been deputed.

16[ ] deleted.

(2) The order so passed on the representation shall be final and the member of the Service concerned shall be informed suitably.

10.A. General,– The Central Government may issue such instructions, not inconsistent with the provisions of these rules, as it may consider necessary, with regard to the writing of the confidential reports, the maintenance of the confidential rolls and the effect of the confidential reports on the conditions of service of a member of the service.

11. Interpretation,– Where any doubt arises as to the interpretation of any of the provisions of these rules, the matter shall be referred to the Central Government who shall decide the same.

_______________________________________________________________

16. Substituted vide No.34/4/71-AIS-III, Vol. I-A dated 11-9-1973.

Executive Instructions:

17FORM OF CONFIDENTIAL REPORT

[See Rule 4 of the All India Service (Confidential Rolls) Rules, 1970]

[Ministry of Home Affairs Notification No.36/1/69-AISD-III, dated 15-7-70].

* * * * *

ANNEXURE ‘B’

Form 1

Confidential Report

for

Indian Administrative Service Officers

Junior Time Scale

Senior Time Scale

Selection Grade

Name of Officer _________________________________________________

Report for the year / period ending ____________________________________

Form 1

Confidential Report for Indian Administrative Service Officers

(Junior Time Scale, Senior Time Scale, Selection Grade)

Report for the year / period ending _____________________

PART – 1 PERSONAL DATA

(To be filled by the Administrative Section concerned of the Ministry/Department/Office)

1. Name of Officer

2. Cadre and Year of allotment

3. Date of Birth

4. Date of continuous appointment Date Grade

to present grade

5. Present post and date of appointment Date Grade

thereto

6. Period of absence from duty (on leave,

Training etc., during the year. If he has

Undergone training, please specify.)

7. Date of filing the Annual Property

Returns;

PART - II To be filled in by the Officer Reported upon

(Please read carefully the instructions given at the end of the form before filling the entries.)

1. Brief description of duties.

2. Please specify the quantitative / physical / financial targets / objectives set for yourself or that were set for you in respect of eight to ten items of work, in order of priority and your achievement against each target.

Targets Achievements

3.(a) Please state briefly the shortfalls with reference to the targets / objectives referred to in column 2. Please specify constraints, if any in achieving the targets.

(b) Please also indicate terms in which there have been significantly higher achievements and your contribution thereto.

PART - III To be filled in by the Reporting Authority

(Please read carefully the instructions given at the end of the form before filling the entries.)

A. NATURE AND QUALITY OF WORK

1. Please comment on Part II as filled out by the officer and specifically state whether you agree with the answers relating to targets and objectives, achievements and shortfalls. Also specify constraints, if any, in achieving the objectives.

2. Quality of output –

Please comment on the officer’s quality of performance having regard to standard of work and programme objectives, and constraints, if any.

3. Knowledge of sphere of work –

Please comment specifically on each of these : level of knowledge of functions, related instructions and their application.

B. ATTRIBUTES

1. Attitude to Work –

Please comment on the extent to which the officer is dedicated and motivated and on his / her willingness and initiative to learn and systematise his / her work.

2. Decision-making ability –

Please comment on the quality of decision-making and on ability to weigh pros and cons of alternatives.

3. Initiative –

Please comment on the capacity and resourcefulness of the officer in Handling unforeseen situations on his / her own and willingness to take additional responsibility and new areas of work.

4. Ability to inspire and motivate –

Please comment on the capacity of the officer to motivate, to obtain willing support by own conduct and capacity to inspire confidence.

5. Communication skill (written and oral) –

Please comment on the ability of the officer to communicate and on his / her ability to present arguments.

6. Inter-personal relations and team work –

Please comment on the quality of relationship with superiors, colleagues and subordinates, and on the ability to appreciate others point of view and take advice in the proper spirit. Please also comment on his / her capacity to work as a member of a team and to promote team spirit and optimise the output of the team.

7. Relations with the public –

Please comment on the officer’s accessibility to the public and responsiveness to their needs.

8. Attitude towards Scheduled Castes / Schedules Tribes / Weaker Sections of Society –

Please comment on his / her understanding of the problems of Scheduled Castes and Scheduled Tribes / Weaker Sections and willingness to deal with them.

C. ADDITIONAL ATTRIBUTES

(for officers of 12 years of service and above only)

1. Planning ability –

Please comment whether the officer anticipates problems, work needs, and plans accordingly and is able to provide for contingencies.

2. Supervisory ability –

Please comment on the officer’s ability relating to:

(i) proper assignment of tasks;

(ii) identification of proper personnel for performing the tasks;

(iii) guidance in the performance of tasks; and

(iv) review of performance.

3. Coordination ability –

Please comment on the extent to which the officer is able to achieve coordination in formulation and implementation of tasks and programmes by different functionaries involved.

4. Aptitude and Potential –

Please indicate three fields of work from amongst the following for possible specialisation and career development of the officer. Please mark 1,2,3 in three appropriate boxes.

1. Personnel Administration

.

2. Law and Order and Internal Security

.

3. Financial Administration

.

4. Agricultural and Rural Development

.

5. Social Services and Educational Administration

.

6. Planning

.

7. Economic and Commercial Administration

.

8. Industrial Administration

.

9. Any other field (Please specify).

.

5. Training –

Please give recommendations for training with a view to further improving the effectiveness and capabilities of the officer. (While specifying the areas of training, it is not necessary to confine to the fields referred to in column 4).

PART - IV GENERAL

1. State of health –

2. Integrity –

(Please see Note below the instructions)

3. General assessment –

Please give an overall assessment of the officer with reference to his / her strength and shortcomings and also by drawing attention to the qualities if any not covered by the entries above.

4. Grading –

(Outstanding / Very Good / Good / Average / Below Average)

(An officer should not be graded outstanding unless exceptional qualities and performance have been noticed; grounds for giving such a grading should be clearly brought out).

Place : Signature

Date : Name in block letters

Designation

(During the period of Report)

PART - V REMARKS OF THE REVIEWING AUTHORITY

1. Length of service under the Reviewing Authority.

2. Is the Reviewing Authority satisfied that the Reporting Authority has made his / her report with due care and attention and after taking into account all the relevant material?

3. Do you agree with the assessment of the officer given by the reporting authority?

(In case of disagreement, please specify the reasons;

Is there anything you wish to modify or add?)

4. General remarks with specific comments about the general remarks

given by the reporting authority and remarks about meritorious work of the officer including the grading.

5. Has the officer any special characteristics, and / or any abilities which would justify his / her selection for a special assignment or / out of turn promotion? If so, specify.

Place : Signature of the Reviewing Authority

Date : Name in block letters

Designation

(During the period of Report)

PART - VI REMARKS OF THE ACCEPTING AUTHORITY

(i.e. next superior authority)

Place : Signature of the Accepting Authority

Date : Name in block letters

Designation (During the period of Report)

INSTRUCTIONS

1. The Confidential Report is an important document. It provides the basic and vital input for assessing the performance of an officer and for his / her further advancement in his / her career. The officer reported upon, the Reporting Authority, the Reviewing and Accepting Authority should, therefore, undertake the duty of filling out the form with a high sense of responsibility.

2. Performance appraisal through Confidential Reports should be used as a tool for human resource development. Reporting Officers should realise that the objective is to develop an officer so that he / she realises his / her true potential. It is not meant to be a fault-finding process but a developmental one. The Reporting Officer and the Reviewing officer should not shy away from reporting shortcomings in performance, attitudes or overall personality of the officer reported upon.

3. The columns should be filled with due care and attention and after devoting adequate time. Any attempt to fill the report in a casual or superficial manner will be easily discernible to the higher authorities.

4. If the Reviewing Authority is satisfied that the Reporting Authority had made the report without due care and attention he shall record a remark to that effect in Part V Column 2. The Government shall enter the remarks in the Confidential Roll of the Reporting Authority.

5. Every answer shall be given in a narrative form. The space provided indicates, the desired length of the answer. Words and phrases should be chosen carefully and should accurately reflect the intention of the authority recording the answer. Please use unambiguous and simple language. Please do not use omnibus expressions like ‘outstanding’, ‘very good’. ‘Good’, ‘Average’, ‘below average’ while giving your comments against any of the attributes.

6. The Reporting Officer shall, in the beginning of the year set quantitative / physical / financial targets in consultation with each of the officers with respect to whom he is required to report upon. Performance appraisal should be a joint exercise between the officer reported upon and the Reporting Officer. The targets / goals shall be set at the commencement of the reporting year i.e. April, in the case of All India Service Officers. In the case of an officer taking up a new assignment in the course of the reporting year, such targets / goals shall be set at the time of assumption of the new assignment.

7. The targets should be clearly known and understood by both the officers concerned. While fixing the targets, priority should be assigned item-wise, taking into consideration the nature and the area of work and any special features that may be specific to the nature or the area of the work of the officer to be reported upon.

8. Although performance appraisal is a year-end exercise, in order that it may be a tool for human resource development, the Reporting Officer and the officer reported upon should meet during the course of the year at regular intervals to review the performance and to take necessary corrective steps.

9. It should be the endeavour of each appraiser to present the truest possible picture of the appraisee in regard to his / her performance, conduct, behaviour and potential.

10. Assessment should be confined to the appraisee’s performance during the period of report only.

11. Some posts of the same rank may be more exacting than others. The degree of stress and strain in any post may also vary from time to time. These facts should be borne in mind during appraisal and should be commented upon appropriately.

12. Aspects on which an appraisee is to be evaluated on different attributes are delineated below each column. The appraiser should deal with these and other aspects relevant to the attributes.

NOTE:

The following procedure should be followed in filling up the column relating to integrity:–

(i) If the Officer’s integrity is beyond doubt, it may be so stated.

(ii) If there is any doubt or suspicion, the column should be left blank and action taken as under:

(a) A separate secret note should be recorded and followed up. A copy of the note should also be sent together with the Confidential Report to the next superior Officer who will ensure that the follow up action is taken expeditiously. Where it is not possible either to certify the integrity or to record the secret note, the Reporting Officer should state either that he had not watched the officer’s work for sufficient time to form a definite judgement or that he has heard nothing against the officer, as the case may be.

(b) If, as a result of the follow up action, the doubts or suspicions are cleared, the officer’s integrity should be certified and an entry made accordingly in the Confidential Report.

(c) If the doubts or suspicions are confirmed, this fact should also be recorded and duly communicated to the officer concerned.

(d) If as a result of the follow up action, the doubts or suspicions are neither cleared nor confirmed, the officer’s conduct should be watched for a further period and thereafter action taken as indicated at (b) and (c) above.

(Ministry of Home Affairs OM No.51/4/64-Estt (d), dated 21.6.1963.)

* * * * *

5. RECHRISTENING SUBORDINATE JUDICIARY

5.1 The judges of the District Courts and the Courts subordinate thereto, are generally termed as Subordinate Judicial Service. Even the relevant Rules of Recruitment refer to them as "Subordinate Judicial Service". The word "subordinate", in our opinion, is not an appropriate word prefixing the "Judicial Service". The word "subordinate" conveys not only the state of being subordinate, but also indicates ‘inferiority’ in status, position, rank or order. It also indicates an act of submission and obedience to authority. These judges function independently in judicial functions, though they may be under the control of the High Court in matters of administration. But that does not justify their being branded as "Subordinate Judicial Service".

5.2 When we turn to our Constitution, we find reference to "Subordinate Courts" but not "Subordinate Judicial Service".

5.3 The title of Part VI, Chapter VI of the Constitution is styled as "Subordinate Courts".

5.4 Article 233, which is the first Article in this Chapter, provides for appointment of District Judges. They shall be appointed by the Governor of the State in consultation with the High Court concerned.

5.5 Article 234 provides for recruitment of persons other than District Judges. It states that appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. (Emphasis supplied).

5.6 Article 235 provides that the control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judges shall be vested in the High Court. (Emphasis supplied).

5.7 Article 236(a) defines the expression "District Judge" as including Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge.

5.8 Article 236(b) defines ‘Judicial Service’ to mean:

"A service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge."

5.9 What then constitutes a Judicial Service of a State?

5.10 This has received consideration with the analysis of the aforesaid Constitutional provisions in STATE OF MAHARASHTRA Vs. LABOUR LAW PRACTITIONERS’ ASSOCIATION,1 in which, the Supreme Court observed:

"The term ‘District Judge’ should not be confined only to the Judge of the Principal Civil Court in the hierarchy of General Civil Courts. The term would now have to include also the hierarchy of specialised civil Courts, such as a hierarchy of Labour Courts and Industrial Courts. The fact that the Chief Presidency Magistrate and the Sessions Judge were also included in the definition of ‘District Judge’ indicates that a wide interpretation is to be given to the expression ‘District Judge’. The extensive definition of a District Judge under Article 236 is indicative of the same.

1. AIR 1998 SC 1233.

Under Article 236(b), the expression "Judicial Service" is defined to mean "a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district Judge."

The Court concluded:

Judicial service thus postulates a hierarchy of Courts with the District Judge as the head and other judicial officers under him discharging only judicial functions.

xxx xxx xxx

Therefore, bearing in mind the principles of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge."

5.11 However, the different States have given different names to the Judicial Officers of their Subordinate Courts. We may briefly refer to them hereunder:

ANDHRA PRADESH

5.12 The Judicial officers of the Subordinate Courts have been classified into two categories: (i) Andhra Pradesh State Higher Judicial Service and (ii) Andhra Pradesh State Judicial Service.

5.13 The Higher Judicial Service includes District & Sessions Judges - Grade I and District & Sessions Judges - Grade II / Chief Judicial Magistrates / Chief Metropolitan Magistrates.

5.14 Andhra Pradesh State Judicial Service consists of Senior Civil Judges and Junior Civil Judges.

ASSAM :

5.15 The judges of the lower Courts are called as Assam Judicial Service, but have been differentiated as Grade I, Grade II and Grade III.

5.16 Grade I consists of District & Sessions Judges / Additional District & Sessions Judges / Special Judge.

5.17 Grade II covers Chief Judicial Magistrate / Additional Chief Judicial Magistrate / Asst. District & Sessions Judges.

5.18 Grade III includes Sub-Divisional Judicial Magistrates and Judicial Magistrates / Munsiffs.

BIHAR :

5.19 The judicial service has been dissected into (i) Bihar Superior Judicial Service and (ii) Bihar Judicial Service.

5.20 Bihar Superior Judicial Service consists of District & Sessions Judges / Addl. District & Sessions Judges.

5.21 Bihar Judicial Service includes Chief Judicial Magistrates / Asst. Sessions Judges / Subordinate Judges / Sub-Divisional Judicial Magistrates and Munsiffs / Judicial Magistrates I Class and II Class

DELHI :

5.22 Here again, the judicial service has been classified into two categories: (i) Delhi Higher Judicial Service and (ii) Delhi Judicial Service.

5.23 The Delhi Higher Judicial Service includes District & Sessions Judges / Addl. District & Sessions Judges / Chief Metropolitan Magistrates / Addl. Chief Metropolitan Magistrates.

5.24 The Delhi Judicial Service comprises of Senior Civil Judges / Judges, Small Causes Courts and Civil Judges / Metropolitan Magistrates.

GOA :

5.25 The Judicial Service consists of Grade I and Grade II.

5.26 District & Sessions Judges / Addl. District & Sessions Judges are in Grade I.

5.27 Civil Judges (Sr. Dn.) and Civil Judges (Jr. Dn.) are in Grade II.

GUJARAT :

5.28 There are three categories: (i) Senior Branch; (ii) Junior Branch Class I and (iii) Junior Branch Class II.

5.29 The Principal Judge / Addl. Principal Judge / Judges, City Civil Court / District Judges / Chief Judge, Small Causes Court / Chief Metropolitan Magistrate / Addl. Chief Metropolitan Magistrate / Asst. Judges are in Senior Branch.

5.30 Judges of Small Causes Court / Civil Judges (Sr. Dn.) are in Junior Branch Class I.

5.31 Civil Judges (Jr. Dn.) / Judicial Magistrate I Class are in Junior Branch Class II.

HARYANA & PUNJAB :

5.32 The Judicial Officers are classified into (i) Superior Judicial Service and (ii) Civil Service (Judicial Branch).

5.33 The Superior Judicial Service includes District & Sessions Judges / Addl. District & Sessions Judges.

5.34 The Civil Service (Judicial Branch) comprises Civil Judges (Sr. Dn.) / Chief Judicial Magistrates / Judges of Small Causes Courts and Civil Judges (Jr. Dn.)-cum-Judicial Magistrates I & II Class.

HIMACHAL PRADESH :

5.35 This State has followed the pattern of Delhi by dissecting the service into (i) Himachal Pradesh Higher Judicial Service and (ii) Himachal Pradesh Judicial Service.

5.36 The Higher Judicial Service includes District & Sessions Judges / Addl. District & Sessions Judges / Registrar of High Court.

5.37 The Himachal Pradesh Judicial Service covers Senior Sub-Judges-cum-Chief Judicial Magistrates and Sub-Judges-cum-Judicial Magistrates I Class.

JAMMU & KASHMIR

5.38 There are two categories: (i) Jammu & Kashmir Higher Judicial Service and (ii) Jammu & Kashmir Civil Service (Judicial).

5.39 The posts of District & Sessions Judges and Addl. District & Sessions Judges are in the first category of Jammu & Kashmir Higher Judicial Service.

5.40 The posts of Sub-Judges / Chief Judicial Magistrates and Munsiffs / Judicial Magistrates are in the second category of Jammu & Kashmir Civil Service (Judicial).

KARNATAKA

5.41 Karnataka uses the single expression as "Karnataka Judicial Service" to represent all the three grades, viz., District Judges with all scales, Civil Judges (Sr. Dn.) and Civil Judges (Jr. Dn.).

KERALA

5.42 Here again, we find two categories: (i) Kerala State Higher Judicial Service and (ii) Kerala Judicial Service.

5.43 Kerala State Higher Judicial Service includes District Judges (Selection Grade), District & Sessions Judges / Addl. District & Sessions Judges.

5.44 The Kerala Judicial Service consists of Sub-Judges / Chief Judicial Magistrates and Munsiffs-Magistrates.

MADHYA PRADESH

5.45 Madhya Pradesh Judicial Service is also classified as: (i) Madhya Pradesh Higher Judicial Service and (ii) Madhya Pradesh Lower Judicial Service.

5.46 The Higher Judicial Service consists of District Judges (Supertime Scale and above), District Judges (Selection Grade), District Judges in Junior Administration Grade Non-functional, District Judges (Sr. Time Scale).

5.47 The Lower Judicial Service includes Civil Judges - Selection Grade-cum-Chief Judicial Magistrates, Civil Judges - Senior Scale and Civil Judges Junior Scale.

MAHARASHTRA :

5.48 Maharashtra has divided the Judicial Service into (i) Senior Branch and (ii) Junior Branch.

5.49 The Senior Branch includes Principal Judge / Judges of the Bombay City Civil Court, District Judges / Addl. District Judges, Chief Judge / Addl. Chief Judge, Small Causes Court, Bombay, Chief Metropolitan Magistrate / Addl. Chief Metropolitan Magistrates.

5.50 The Junior Branch includes Judges of the Small Causes Courts at places other than Bombay, Civil Judges (Senior Division), Chief Judicial Magistrates / Addl. Chief Judicial Magistrates, Judges of the Small Causes Courts at Bombay and Metropolitan Magistrates, Metropolitan Magistrate, Juvenile Court, Bombay, Civil Judges (Jr. Dn.) and Judicial Magistrates of the First Class.

MANIPUR :

5.51 The Judicial Service in Manipur is on grade-wise, namely, Grade I, Grade II and Grade III.

5.52 Grade I covers District & Sessions Judges / Addl. District & Sessions Judges / Registrar / Joint Registrar, Gauhati High Court.

5.53 Grade II consists of Chief Judicial Magistrates / Addl. Chief Judicial Magistrates / Civil Judges (Sr. Dn.) and Dy. Registrar, Gauhati High Court.

5.54 Grade III includes Civil Judges (Jr. Dn.), Judicial Magistrates I & II Class / Administrative Officer of the District & Sessions Court.

MEGHALAYA :

5.55 This State has similar grades as in Manipur. Grade I includes District & Sessions Judge / Addl. District & Sessions Judge.

5.56 Grade II comprises of Asst. District & Sessions Judges / Chief Judicial Magistrates and Grade III includes Munsiffs & Judicial Magistrates.

MIZORAM :

5.57 Here, we notice grade within grades. Grade I (Senior) consists of Legal Remembrancer-cum-Secretary Law, Judicial / Registrar of High Court and District & Sessions Judges.

5.58 Grade I (Junior) includes Joint Legal / Remembrancer-cum-Joint Secretary Law & Judicial / Special Judges and Presiding Officer, MACT.

5.59 Grade II comprises of Dy. Legal Remembrancer-cum-Dy. Secretary Law & Judicial / Dy. Registrar in High Court / Civil Judges (Sr. Dn.) / Chief Judicial Magistrates / Asst. District & Sessions Judges.

5.60 Grade III comprises of Asst. Legal Remembrancer-cum-Under Secretary / Judicial Magistrate I Class / Civil Judges (Jr. Dn.) and Asst. Registrar in High Court.

5.61 There is yet Grade IV that includes Special Officer-cum-Asst. Draughtsman and Translator.

NAGALAND :

5.62 The structure of Judicial Service is similar to Mizoram. There are four grades in the subordinate judicial service. Grade I represents District & Sessions Judge and Addl. District & Sessions Judges; Grade II refers to Dy. Registrar in High Court; Grade III indicates Judicial Magistrates I Class, Sub-Judges and Asst. Registrar in High Court and Grade IV includes Judicial Magistrates II Class and Sub-Judges.

ORISSA :

5.63 There are five classes of Officers. Orissa Superior Judicial Service (Senior Branch); Superior Judicial Service (Junior Branch); Judicial Service Class I (Senior); Judicial Service Class I (Junior) and Judicial Service Class II.

5.64 Orissa Superior Judicial Service Sr. Branch consists of District & Sessions Judges / Addl. District & Sessions Judges. The Superior Service (Junior Branch) includes Chief Judicial Magistrates. Orissa Judicial Service Class I Sr. includes Civil Judges (Sr. Dn.), Registrar of Civil Courts and Dy. Registrars of High Court.

5.65 Orissa Judicial Service Class I Jr. comprises of Sub-Divisional Judicial Magistrates / Asst. Registrars of High Court and Orissa Judicial Service Class II includes Civil Judges (Jr. Dn.) and Judicial Magistrates.

RAJASTHAN :

5.66 The subordinate judicial service in Rajasthan consists of Higher Judicial Service and Judicial Service. Higher Judicial Service covers District Judges Selection Grade / District Judges / Addl. District Judges / Law Secretary-cum-Legal Remembrancer.

5.67 Judicial Service includes Civil Judges (Sr. Dn.)-cum-Chief Judicial Magistrates and Addl. Civil Judges (Sr. Dn.)-cum-Addl. Chief Judicial Magistrates, Sr. Civil Judges-cum-JMFCs, Civil Judges-cum-JMFCs and Munsiffs & Judicial Magistrates I Class.

SIKKIM :

5.68 Here, we notice two categories: Sikkim Superior Judicial Service and Sikkim Judicial Service. Sikkim Superior Judicial Service includes Secretary, Law-cum-Legal Remembrancer / Joint Legal Remembrancer / District & Sessions Judges / Registrar in High Court.

5.69 Judicial Service of Sikkim is inclusive of Chief Judicial Magistrates and Civil Judges-cum-Judicial Magistrates.

TAMIL NADU :

5.70 There are four categories namely: (i) District Judges (Supertime Scale); (ii) District Judges / Addl. District Judges / Chief Judicial Magistrates; (iii) Civil Judges (Sr. Dn.); (iv) Civil Judges (Jr. Dn.) / Judicial Magistrates I Class.

TRIPURA :

5.71 There are three grades; namely, Judicial Officer Grade I, Judicial Officer Grade II and Judicial Officer Grade III.

5.72 Grade I includes District Judge / Addl. District Judge & Chief Judicial Magistrate.

5.73 Grade II consists of Civil Judges (Sr. Dn.) & Asst. Sessions Judges and Judicial Officer.

5.74 Grade III consists of Judicial Magistrates I Class & II Class and Civil Judges (Jr. Dn.).

UTTAR PRADESH :

5.75 The Judicial Service in Uttar Pradesh like many other States has only two categories of Judicial Officers: (i) Higher Judicial Service and (ii) Judicial Service. The Higher Judicial Service consists of District & Sessions Judges / Addl. District & Sessions Judges and Addl. Sessions Judges.

5.76 U.P. Judicial Service includes Civil Judges (Sr. Dn.) / Addl. Civil Judges (Sr. Dn.) / Chief Judicial Magistrates / Addl. Chief Judicial Magistrates / Judges, Small Causes Court / Addl. Judges, Small Causes Court and Civil Judges (Jr. Dn.)/ Judicial Magistrates.

WEST BENGAL :

5.77 There is Higher Judicial Service and Subordinate Judicial Service.

5.78 The Higher Judicial Service represents District & Sessions Judges / Addl. District & Sessions Judges / Chief Metropolitan Magistrates / Addl. Chief Metropolitan Magistrates / Chief Judges of Small Causes Courts / Secretary Law / Judges, City Civil Court.

5.79 West Bengal Subordinate Judicial Service consists of Civil Judges (Sr.Dn.)/ Asst. District & Sessions Judges / Sub-Divisioal Judicial Magistrates / Civil Judges (Jr. Dn.) / Judicial Magistrates I Class.

PONDICHERRY :

5.80 Pondicherry Judicial Service consists of three cadres: (i) District Judge / Addl. District Judge / Sessions Judge / Addl. Sessions Judge; (ii) Civil Judges (Sr. Dn.) / Chief Judicial Magistrates and (iii) Civil Judges (Jr. Dn.) / Judicial Magistrates I Class.

5.81 Let us now refer to the views and comments received to the Commission’s Question No.6.

Question No. 6 reads:

"PROPER EXPRESSION

Q.6. Article 235 speaks of "District Courts and Courts subordinate thereto" and persons belonging to "Judicial Service of a State".

Article 236(b) refers to the expression "Judicial Service" as consisting exclusively of persons intended to fill up the post of District Judge and other Civil Judicial posts inferior to the post of District Judge.

Some States have dissected the Judicial Service into Higher Judicial Service and Lower Judicial Service.

What should be the appropriate expression to be used to cover the three cadres which the Commission is contemplating?"

5.82 The views expressed by the Respondents are not uniform. They widely differ. For brevity, we set out below the proposed expressions and within the bracket the names of the Respondents:

5.82.1 STATE JUDICIAL SERVICE :

(Andhra Pradesh Judicial Officers Association, High Court of Gujarat (Judicial Service of a State), Haryana Civil Judges Association, High Court of Himachal Pradesh, Jammu & Kashmir Judicial Service Association, Kerala Magistrates (Judicial) Association, High Court of Bombay (Judicial Service of the State), Government of Nagaland, High Court of Orissa, High Court of Judicature at Madras, Government of Tamil Nadu, Tripura Judicial Service (Government), Uttar Pradesh Judicial Services Association, High Court of Judicature at Allahabad, Government of Uttar Pradesh, Government of West Bengal, Administrator of U.T., Lakshadweep (State / Union Territory Judicial Service), All India Judges’ Association, Punjab Judicial Officers Association, High Court of Kerala, Government of Kerala and Tamil Nadu Judicial Officers Association.)

5.82.2 HIGHER JUDICIAL SERVICE / STATE JUDICIAL SERVICE :

(Government of Andhra Pradesh, High Court of Andhra Pradesh and All Orissa Judicial Officers Association).

5.82.3 HIGHER JUDICIAL SERVICE / LOWER JUDICIAL SERVICE :

(Mr. Justice P.P. Bopanna (Rtd.) and High Court of Madhya Pradesh.

Under Secretary, Government of Goa wants to have the word "cadre" to be affixed to these expressions).

5.82.4 SENIOR JUDICIARY / JUNIOR JUDICIARY :

(Judges of the City Civil and Sessions Court at Mumbai).

5.82.5 SUPERIOR JUDICIAL SERVICE / SUBORDINATE JUDICIAL SERVICE :

(Patna High Court).

5.82.6 DISTRICT JUDICIARY :

(Assam Judicial Service Association, Bihar Judicial Service Association and Delhi Judicial Service Association).

5.82.7 SUBORDINATE JUDICIAL SERVICE OF THE STATE :

(Mr. Justice Ranganatha Misra, Former Chief Justice of India).

5.82.8 INTEGRATED JUDICIAL SERVICE :

(Gauhati High Court).

5.82.9 JUDICIAL SERVICE :

(Government of Gujarat, Gujarat Judicial Service Association, Calcutta High Court, Karnataka State Judicial Officers Association, High Court of Karnataka, Bangalore (High Court has also given in the alternate expression "STATE JUDICIARY"), Rajasthan High Court, Mr. Justice D.R. Khanna, Former Judge of the Delhi High Court, Mr. Justice K. Ramachandraiah, former Judge of the Karnataka High Court).

5.82.10 STATE SUPERIOR JUDICIAL SERVICE AND STATE JUDICIAL SERVICE :

(Punjab & Haryana High Court).

5.82.11 High Court of Jammu & Kashmir stated that the proper expression to cover Civil Judges (Senior and Junior Division) is "JUDICIAL SERVICE’ and for the District and Sessions Judges / Addl. District and Sessions Judges is "HIGHER JUDICIAL SERVICE".

5.83 We have carefully examined the matter in the light of the views expressed by the Respondents. We do not want to differentiate the Officers of different Courts by assigning different names as it is being followed in some States. It is better and appropriate to term them as belonging to one Common Service though there may be grades amongst themselves. Calling the Officers as belonging to one Service though they belong to different grades is very common in the Executive Service like IAS, IPS, IA & AS and State Administrative Service.

That apart, having regard to the expression used in Article 236(b) of the Constitution and in the light of the decision of the Supreme Court in STATE OF MAHARASHTRA Vs. LABOUR LAW PRACTITIONERS’ ASSOCIATION,1 we consider that the proper expression to cover the three cadres, viz., District Judges, Civil Judges (Senior Division) and Civil Judges (Junior Division) would be "JUDICIAL SERVICE" prefixed by the name of concerned State. Say for example, Karnataka Judicial Service, Delhi Judicial Service, Maharashtra Judicial Service, Tamil Nadu Judicial Service etc..

5.84 We request all High Courts, State Governments and Administration of Union Territories to accordingly amend their respective Acts, Rules, Regulations and Circulars etc., to give effect to the above suggestion.

5.85 This takes us to the question whether any change in the existing nomenclature of any post or cadre is called for. The existing nomenclature of the posts in all States and Union Territories as per the judgment of the Supreme Court in the All India Judges’ Association case is: (i) District Judge; (ii) Civil Judge (Senior Division) and (iii) Civil Judge (Junior Division). Hitherto, our discussion proceeded on the basis of the said nomenclature.

5.86 The Commission is, however, of the view that classifying Civil Judges as Civil Judge (Senior Division) and Civil Judge (Junior Division) may not be appropriate. The distinction made as Junior and Senior is likely to create a feeling of inferiority or superiority among the Civil Judges. The Commission considers that Civil Judge (Junior Division) may be termed as Civil Judge; and Civil Judge (Senior Division) may be termed as Senior Civil Judge.

5.87 The Commission ascertained the views in this regard by a supplementary Questionnaire furnished to all the Associations, nominees of High Courts and

1. AIR 1998 SC 1233.

State Governments who participated in the personal hearing. Almost all of them have expressed their view that the suggestion put forward by the Commission is more appropriate and the nomenclature of Civil Judges should be changed accordingly.

5.88 In fact, some of them have expressed the view that the nomenclature proposed by the Commission is better and more dignified and it does not create a feeling of inferiority or superiority among the Civil Judges. The President of the Delhi Judicial Service Association is exhilarated about the suggestion of the Commission and he has stated that the proposal of the Commission is more graceful and better-phrased and it removes the doubts created among the litigant public treating the Civil Judges as Junior and Senior which gives an impression of one is subordinate to the other.

5.89 In the premise, we suggest that hereafterwards, Civil Judge (Junior Division) be termed as Civil Judge and the Civil Judge (Senior Division) as Senior Civil Judge.

5.90 We request the High Courts and State Governments / Union Territories Administration to make necessary alterations in this regard in their respective enactments, rules, regulations, circulars etc..

5.91 It may be stated that the Commission has also prepapred a draft Civil Courts Act for adoption by all High Courts in which the nomenclature used is only Civil Judge, Senior Civil Judge and District Judge.

* * * * *

6.EQUATION OF POSTS OF CHIEF METROPOLITAN

MAGISTRATE AND CHIEF JUDICIAL MAGISTRATE

6.1 The question of equation of posts of Chief Metropolitan Magistrate (CMM) and Chief Judicial Magistrate (CJM) to an equivalent cadre in the three-tier judicial service of every State and Union Territory presents considerable problems.

6.2 We may first trace the structure of cadres of Magistrates provided under the Code of Criminal Procedure 1898 ("1898 Code"). Thereunder, there were certain special arrangements in respect of the cities of Madras, Bombay and Calcutta. These cities were termed as Presidency-towns. Section 18 of the 1898 Code required the State to appoint sufficient number of Magistrates called Presidency Magistrates in the Presidency-towns, depending upon the inflow and pendency of criminal cases.

6.3 One of the Presidency Magistrates was appointed as the Chief Presidency Magistrate and the other Presidency Magistrates were subordinate to the Chief Presidency Magistrate.

6.4 The Chief Presidency Magistrate had certain powers over his subordinates. He had inter-alia, powers to frame rules to conduct the business and constitution of appropriate benches for disposal of cases. He was paid higher emoluments.

6.5 The system of Presidency Magistrates with an overall supervision of the Chief Presidency Magistrate was found to be useful in the Presidency-towns, where crimes were sophisticated and the volume of work was heavy which required quicker disposal of cases.

6.6 Outside the Presidency-town and particularly in the district, there was no system of appointing Presidency Magistrate. Instead, there was District Magistrate. Section 10 of the 1898 Code provided that the Government shall appoint a Magistrate of the First Class to be called the District Magistrate in every District outside the Presidency-town. The State Government may also appoint any Magistrate of the First Class to be an Additional District Magistrate, who shall have all or any of the powers of a District Magistrate.

6.7 Under Section 12 of the 1898 Code, the State Government may appoint as many persons as it thinks fit as Subordinate Magistrates of the first, second or third class in any District.

6.8 The District Magistrate would be directly under the control of the State Government and other Magistrates appointed in the District would be under the control of the District Magistrate. These District Magistrates were exercising both executive and judicial powers. The performance of these dual functions of the nature of executive and judicial by one authority was the order of the day before coming into force of the Constitution of India.

6.9 But in Presidency-town, some of the functions, particularly of the executive nature, of the District Magistrate were discharged by the Commissioner of Police.

6.10 Article 50 of the Constitution directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. The Law Commission of India in their 37th and 41st Reports (paras 32 to 62 in 37th Report and para 2.1 in the 41st Report) recommended that there should be separation of the judiciary from the executive on an all India basis in order to achieve uniformity in the matter.

6.11 In order to bring about complete separation of judiciary from the executive, the Code of Criminal Procedure, 1973 ("1973 Code") was enacted. This Code provides two categories of Magistrates, namely, the Judicial Magistrates and the Executive Magistrates. Broadly speaking, functions which are essentially judicial in nature are vested in the Judicial Magistrates and functions which are "police" or administrative in nature are the concern of the Executive Magistrates.

6.12 Section 6 of the 1973 Code provides for the constitution of the following classes of criminal Courts besides the High Court and the Courts constituted under any other law: (i) Courts of Session; (ii) Judicial Magistrates of the First class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the Second Class; and (iv) Executive Magistrates.

6.13 Section 8 of the 1973 Code specifically provides for the Constitution of the metropolitan areas. The Section so far as relevant provides:

"Section 8. Metropolitan Areas, -

(1) The State Government may, by notification, declare that, as from such date as may be specified in the notification, any area in the State comprising a city or town whose population exceeds one million shall be a metropolitan area for the purpose of this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay, Calcutta and Madras and the City of Ahmedabad shall be deemed to be declared under sub-section (1) to be a metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a metropolitan area but the reduction or alteration shall not be so made as to reduce the population of such area to less than one million.

(4) and (5) xxx "

6.14 It will be seen that the then existing Presidency-towns of Bombay, Calcutta, Madras and Ahmedabad were statutorily declared as Metropolitan areas which are also Metropolitan Cities.

6.15 The Magistrates posted in the Metropolitan area are called Metropolitan Magistrates. Section 17 confers power on the High Court to appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for a metropolitan area. The High Court may also appoint any Metropolitan Magistrate as Additional Chief Metropolitan Magistrate who will have all or any of the powers of the Chief Metropolitan Magistrate.

6.16 Section 11 provides for constitution of Courts of the Judicial Magistrates in every district (not being a metropolitan area).

6.17 Under Section 12 of the 1973 Code, the High Court could appoint a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate and the High Court may also appoint any Judicial Magistrate of the First Class as Additional Chief Judicial Magistrate. The Additional Chief Judicial Magistrate shall have all or any of the powers of the Chief Judicial Magistrate.

6.18 The judicial powers of the Chief Judicial Magistrate are similar to the powers of the Chief Metropolitan Magistrate. The Chief Metropolitan Magistrate and the Chief Judicial Magistrate have similar control and jurisdiction over the Magistrates subordinate to them. Even their judicial powers are not different and indeed much the same. This would be clear from Section 29 of the 1973 Code which provides:

"Section 29. Sentences which Magistrates may pass.-

(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or imprisonment for a term exceeding seven years.

(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.

(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class."

6.19 Under Section 374, the appeals against the sentence passed by the Chief Metropolitan Magistrate and Chief Judicial Magistrate lie to the Court of Session.

6.20 In this context, Sections 15 and 19 may also be read:

Section 15 so far as relevant provides:

"Section 15 (1): Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.

xxx xxx xxx."

Section 19 so far as relevant provides:

"Section 19(1): The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.

xxx xxx xxx."

6.21 It will be seen that the CMM and Additional CMM are subordinate to the Sessions Judge and all other Metropolitan Magistrates are under the general control of the CMM and subordinate to him. Likewise, CJM has been constituted as subordinate to the Sessions Judge, but all other Judicial Magistrates are made subordinate to the CJM.

6.22 In the light of the aforesaid provisions, we may now proceed to determine the appropriate cadre to which CMM and CJM should be equated.

6.23 Before we consider the question, it may be useful to refer to the views and comments received to our Question No.(2) in the Questionnaire.

The Question No.(2) reads as follows:

"In States like Tamil Nadu, Andhra Pradesh, and West Bengal, the post of Chief Judicial Magistrate / Chief Metropolitan Magistrate is equated with the cadre of District Judge and in some other States, it is of the cadre of Civil Judge (Senior Division). According to you, to which cadre the post of Chief Judicial Magistrate / Chief Metropolitan Magistrate could appropriately be equated with having regard to the relative duties and responsibilities of the posts?"

6.24 The High Courts of Andhra Pradesh, Bihar, Calcutta, Delhi, Himachal Pradesh, Madras, Orissa and Sikkim have stated that the posts of CMM and CJM are to be equated to the cadre of District Judges.

6.25 The High Courts of Gauhati, Gujarat, Jammu & Kashmir, Kerala, Madhya Pradesh, Punjab & Haryana and Rajasthan have expressed the view that both the posts of CMM and CJM are to be equated to that of Civil Judge (Senior Division).

6.26 The High Courts of Allahabad, Bombay and Karnataka, however, are in favour of equating only the post of CMM to the cadre of District Judges. They want CJM to be in the cadre of Civil Judges (Senior Division).

6.27 The Governments of Goa, Gujarat, Kerala, Manipur and Sikkim are of the view that both the posts of CMM and CJM be equated with the cadre of Civil Judges (Senior Division).

6.28 The Governments of Andhra Pradesh, Meghalaya, Nagaland, Tamil Nadu and Tripura have favoured equation of the post of Chief Judicial Magistrate / Chief Metropolitan Magistrate to that of District Judge.

6.29 Judicial Officers’ Associations of Delhi, Gujarat, Jammu & Kashmir, Rajasthan, Tamil Nadu, Tripura and Uttar Pradesh have stated that the post of CMM and CJM may be included in the cadre of District Judges. Karnataka Judicial Officers’ Association, however, wants CMM to be included in the cadre of District Judges but not CJM.

6.30 The All India Judges’ Association and the Associations of Judicial Officers of Andhra Pradesh, Assam, Bihar, Goa, Haryana, Kerala, Madhya Pradesh, Maharashtra, Manipur, Mizoram and Punjab have contended that the posts of CMM and CJM should be included only in the cadre of Civil Judges (Sr. Dn.).

6.31 For a proper conclusion in the matter, we may begin with the definition of "District Judge" in the Government of India Act, 1935.

Section 254 (3) of the Government of India Act, 1935 reads:

" In this and the next succeeding section the expression "district judge" includes additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, sessions judge, additional sessions judge, and assistant sessions judge."

6.32 We may also read the definition of "District Judge" in the Constitution of India.

Article 236 (a) provides:

" The expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge."

Both are inclusive definitions.

6.33 When we read both the definitions side by side, it will be seen that the Chief Presidency Magistrate is a common post found in them. Article 236 (a) of the Constitution includes even the post of Additional Chief Presidency Magistrate, judges of the City Civil Courts, Additional and Joint District Judges, Chief Judge of Small Causes Court and Sessions Judge etc..

6.34 It may be noted that Article 236 (a) of the Constitution could not have referred to the post of CMM since the post of CMM was introduced for the first time in the 1973 Code. In 1973 Code, the Presidency Town has been renamed as Metropolitan Area. Under Section 8(2) of the 1973 Code, the Presidency Towns of Bombay, Calcutta, Madras and City of Ahmedabad shall be deemed to have been declared as Metropolitan Area. The Presidency Town has been thus renamed as Metropolitan Area and the Chief Presidency Magistrate has been redesignated as CMM.

6.35 Be it noted that it is just a change of designation. But there is no change in other respects. The powers, duties and responsibilities of the Chief Presidency Magistrate have been wholly inherited by CMM, even with higher sentencing power. CMM has now power to sentence upto 7 years imprisonment as against the power to sentence upto 2 years by Chief Presidency Magistrate.

6.36 It may be of importance to note that the Chief Presidency Magistrate was in the cadre of District Judge. Adroitly, the CMM and Addl. CMM in the Metropolitan Area of Delhi, Mumbai, Madras, Hyderabad and Ahmedabad continue to be in the cadre of District Judges. The lone exception is the CMM in Bangalore Metropolitan Area, who is still in the cadre of Civil Judges (Senior Division). But High Court of Karnataka very rightly suggested that, that post should be in the cadre of District Judges.

6.37 But those who have pleaded against the equation of CMM to the cadre of District Judges have strongly relied upon the provisions of Section 19 of the 1973 Code, which inter alia, provide that CMM shall be subordinate to the Sessions Judge. It is contended that when CMM is statutorily made subordinate to the Sessions Judge, it is not proper to equate the post of CMM to the cadre of District Judges.

6.38 We gave our anxious consideration to the problem presented. We do not consider that Section 19 of the 1973 Code is an impediment to equate the post of CMM to the post of District Judge. The High Court could issue necessary instructions making CMM as an independent Officer and not subordinate to Sessions Judge. Such instructions could be issued either at the time of appointing CMM under Section 17 of the Code or under the general controlling powers vested under Article 235 of the Constitution.

6.39 There is one more contention which needs to be dealt with. It was contended that the appeal against the conviction and sentence passed by CMM lies only to the Court of Session as provided under Section 374 of the 1973 Code, and, CMM cannot, therefore, be integrated to the cadre of District Judges. It seems to us that providing an appeal to the Court of Session under Section 374 cannot be a decisive factor to determine the equation of post of CMM.

6.40 It may be stated that the conviction and sentence rendered by the Metropolitan Magistrate are also appealable to the Court of Session under Section 374(3) of the Code. But, the Metropolitan Magistrates are not subordinate to the Sessions Judge. They are subordinate only to CMM subject to the general control of the Sessions Judge.

6.41 It may further be noted that in some High Courts, there is a provision for appeal to the Bench of two Judges against the order and judgment of the single judge of the same Court. Such a provision does not mean that the single judge of the High Court is subordinate to the Bench of two other judges. All judges of the High Court are of equal rank and status. The appeal is a right conferred on the litigant to enable the Court to have a second look over the matter.

6.42 The State of Haryana, relying upon the decision of the Supreme Court in M.L. SHARMA AND OTHERS v. UNION OF INDIA AND OTHERS*, has pleaded that the post of Chief Metropolitan Magistrate / Chief Judicial Magistrate should be integrated with the post of Civil Judge (Sr. Dn.).

6.43 We have perused the judgment. It does not support the argument advanced. The judgment is an authority for the proposition that even a category of post is included in the definition of "District Judge" under Article 236, it would be open to the State Government under appropriate Rules to classify such Officers as not District Judges proper and belong to a category different from that of District Judge category.

6.44 In the premise and for the aforesaid reasons, we equate CMM to the cadre of District Judges.

6.45 This takes us to the question of equation of the post of CJM. A cursory glance at the provisions of the Criminal Procedure Code, 1973 indicates that CJM outside the Metropolitan area is a counter-part of CMM in the Metropolitan area. Both have similar powers and duties. Both have similar control and supervisory powers over the Magistrates in their respective jurisdiction.

______________________________________________________________

* WP (Civil) 442 of 1986 (1992 SCC (L&S) 1946 - 1992 Supp (2) SCC 430)

These then are the grounds urged for equating CJM to District Judge. But we cannot ignore the fact that CMM in a Metropolitan area functionally and legally stands on a higher footing. He has onerous duties and responsibilities.

6.46 Metropolitan area is an extensive area with population more than the District in which CJM is posted. Metropolitan area is of commercial importance unlike the Districts. The crimes committed in such city are of sophisticated nature, the disposal of which requires rich and special experience.

6.47 The Law Commission in its 37th Report has also recognised the importance and usefulness of the Presidency system of Magistrates and recommended the extension of it to bigger cities.

6.48 Besides, there are other aspects which distinguish CMM from CJM. Section 281 of the 1973 Code provides a simple procedure for recording memorandum of the substance of the examination of the accused by the Metropolitan Magistrates. The other Magistrates or a Court of Session has to record whole of such examination including every question put to the accused and every answer given by him.

Section 281, so far as relevant, provides:

"281. Record of examination of accused.- (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.

(2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.

(3) to (6) xxx "

6.49 Again while rendering judgments, Metropolitan Magistrates need not write elaborate judgments in the manner required by the other Magistrate and Sessions Judge. It is sufficient if the Metropolitan Magistrates record only certain particulars in the judgment.

6.50 Section 355 reads as under:

"Metropolitan Magistrate’s judgment.- Instead of recording a judgment in the manner hereinbefore provided, a Metropolitan Magistrate shall record the following particulars, namely -

(a) the serial number of case;

(b) the date of the commission of the offence;

(c) the name of the complainant (if any);

(d) the name of the accused person, and his parentage and residence;

(e) the offence complained of or proved;

(f) the plea of the accused and his examination (if any);

(g) the final order;

(h) the date of such order;

(i) in all cases in which an appeal lies from the final order

either under Section 373 or under sub-section (3) of Section 374, a brief statement of the reasons for the decision."

6.51 This pro

AMALGAMATION OF MULTIPLE CADRES INTO THREE UNIFORM CADRES

7.1 Generally, in most of the States and Union Territories, there are three cadres of Judicial Officers with uniform designations. But, in a few States, there are multiple cadres with different designations. One of the tasks of the Commission is to bring about uniformity in cadres and designations with uniform jurisdiction. This has become a necessity since the Commission proposes to provide uniform pay scales and other emoluments to Judicial Officers cadre-wise.

7.2 It may be stated that the Law Commission in the 14th Report has suggested that the State Judicial Service should have uniform designations in view of the more or less uniform functions performed by them. It observed:

"In view of the more or less uniform functions performed by the judicial officers so variously designated, it would, we think, be advisable to aim at a uniformity of designation. There is, however, a fundamental difference in the general scheme of distribution of judicial business between the lower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other. The first has limited pecuniary jurisdiction while the second, generally speaking, has unlimited pecuniary jurisdiction. We would, therefore, suggest that the State Judicial Service-Class II should consist of civil judges who should be designated as Civil Judges of the senior and junior divisions. Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division)."

7.3 While quoting with approval the aforesaid observations of the Law Commission, the Supreme Court in the All India Judges Association Case1 observed:

"We are inclined to adopt the view of the Law Commission. On the civil side, the State Judicial Service, therefore, should be classified as District or Additional District Judge, Civil Judge (Senior Division) and Civil Judge (Junior Division). On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure. Appropriate adjustment, if any, may be made of existing posts by indicating their equivalence with any of these categories. The process of bringing about such uniformity would require some time and perhaps some monitoring. We direct that the Ministry of Law and Justice of the Union Government would carry on the monitoring activity and all the States and Union Territories would follow the pattern indicated above by March 31, 1993."

7.4 In the Review Judgment in All India Judges’ Association Case2, it has been reiterated in para 6 at page 2504 that –

"The Judiciary in this country is a unified institution judicially though not administratively. Hence uniform designations and hierarchy with uniform service conditions are unavoidable necessary consequences."

_______________________________________________________________

1. AIR 1992 SC 165 at 170 (para 14).

2. AIR 1993, SC 2493

7.5 Again, at page 2505, dealing with direction No.(ii) regarding Uniform Hierarchy and Designations, it has been observed as under:

"There is no serious objection raised by the review petitioners to have uniform hierarchy and give uniform designations to the Judicial Officers in different States and the Union Territories and to confer on them uniform jurisdiction directed by this Court."

7.6 At page 2510 dealing with direction No.(iv) regarding Uniform Pay Scales, it has been reiterated that –

"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."

7.7 Finally, in para 13 at page 2516/2517, it has been clearly laid down as under:

"Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court and from no other Court. Further, 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."

7.8 The Supreme Court has indicated that in every State and Union Territory, there should be, on civil side three cadres, viz.,

(i) District Judge / Additional District Judge;

(ii) Civil Judge (Senior Division)

(iii) Civil Judge (Junior Division)

7.9 On the criminal side, there should be Sessions Judge / Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and below him Magistrates provided for in the Code of Criminal Procedure.

7.10 Though the time-limit has been prescribed by the Supreme Court for every State and Union Territory to bring about the aforesaid uniformity in cadres and designations, there still remain in some States multiple cadres with different designations.

7.11 Commission, therefore, in the Questionnaire, has formulated the following question:

"1. It is proposed to restructure the existing Judicial Service in all States / UTs uniformly into three cadres with the same designations as observed by the Apex Court viz., (i) District Judge / Additional District Judge; (ii) Civil Judge (Senior Division) and (iii) Civil Judge (Junior Division).

How many cadres are there in your State / UT? Please specify them and if there are more than three cadres, indicate how they could appropriately be assimilated into the said three cadres and designations without impairing the incumbents’ scales of pay, seniority, chances of promotion and other benefits."

7.12 Response to the question from the High Courts, State Governments and Judicial Officers Associations are various and varied. They will be referred to when the cadre structure of such States is examined, but before doing so, it will be useful to bear in mind certain principles governing the integration of services and the consequences of such integration.

7.13 In RESERVE BANK OF INDIA v. N.C. PALIWAL AND OTHERS3, the Supreme Court observed that integrating different cadres into one cadre in Government service and preparing one combined seniority scheme does not offend Article 14 or 16 of the Constitution. The Court observed:

"Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principles of equality."

7.14 In STATE OF MAHARASHTRA AND ANOTHER v. CHANDRAKANT ANANT KULKARNI AND OTHERS4, the Supreme Court observed that integration of services and equation of posts is purely an administrative function and mere chances of promotion are not conditions of service and if there is a reduction in the chances of promotion consequent on the integration of services, it did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotions are not.

_______________________________________________________________

3. (1976) 4 SCC 838 equivalent to (1977) 1 SCR 377.

4. (1982) 1 SCR 665 equivalent to (1981) 4 SCC 130.

7.15 The above principles have been reiterated in HYDRO-ELECTRIC EMPLOYEES’ UNION AND OTHERS v. SUDHIR KUMAR SHARMA AND OTHERS5 and UNION OF INDIA AND OTHERS v. S.C. DUTTA AND OTHERS6.

7.16 From the aforesaid observations, it will be seen that the integration of services and equation of posts is purely an administrative function and it will not impinge upon the equality clause guaranteed under Article 14 or 16 of the Constitution, provided that the equation of posts has been done by following certain principles. The principles are: (i) Where there are similar posts, there will be little difficulty in intergrating or equating the posts; (ii) Where, however, there are no such similar posts, the following factors will have to be taken into consideration in determining the equation of posts:

(a) Nature and duties of a post;

(b) Powers exercised by the officers holding a post, the extent of Territorial or other charge held or responsibilities discharged;

(c) The minimum qualifications, if any, prescribed for recruitment to the post;

(d) The salary of the post.

7.17 These principles were also the basis for equation and integration of services allotted from one State to another consequent on the Reorganisation of the States in 1956. The Supreme Court in a long line of decisions starting from

_______________________________________________________________

5. (1998) 6 SCC 706.

6. (1991) 1 SCC 505 at 511.

THE UNION OF INDIA AND ANOTHER v. P.K. ROY AND OTHERS7 has accepted those principles as the correct principles for equation of posts for giving common pay scales.

7.18 Before we examine the State-wise cadres in detail for the purpose of restructuring multiple cadres, if any, into uniform three cadres in every State / UT, we may first dispose of one or two hotly contested issues, agitating the minds of Judicial Officers.

(i) CHIEF METROPOLITAN MAGISTRATES / CHIEF JUDICIAL MAGISTRATES (CMM / CJM):

7.19 Elsewhere, the Commission has, in detail, examined the position and powers of the CMM / CJM. There, we have suggested that in Metropolitan Cities, the post of CMM should be in the cadre of District Judges. It is not necessary to restate the reasons in support of our conclusion and we proceed on that basis.

7.20 In some States, however, the CJM and CMM are both in the cadre of District Judges. In the view that we have taken that CMM alone should be in the cadre of District Judges and the CJM should be deleted from that cadre, the latter shall fall to be included in the middle cadre of Civil Judges (Sr. Divn.). The respective States may kindly make these necessary alterations and amendments while restructuring their existing cadres.

METROPOLITAN MAGISTRATES :

7.21 The Metropolitan areas are declared under Section 8 of the Code of Criminal Procedure comprising of City or Town whose population exceeds one Million. But in actual practice, the population in some of the Metropolitan

_______________________________________________________________

7. (1968) 2 SCR 186.

areas is exceeding 5 millions. The usual crimes in such areas are more complex, sophisticated and sensitive. We find more of white collared criminals in such areas. The trial of such cases requires more experience and mature judicial mind. Even grant of Judicial / Police remand of the accused involved in such cases needs careful examination. Keeping in view the nature of the cases in the Metropolitan areas, we consider that the Metropolitan Magistrates should be in the cadre of Civil Judge (Sr. Divn.) and accordingly, recommend to every State to post only such Officers.

7.22 Needless to state that the Civil Judges (Sr. Divn.) must have been duly promoted in accordance with the prescribed qualification and if it is not repetitive, we have emphasized that the minimum eligibility for promotion to the cadre of Civil Judges (Sr. Divn.) is 5 years service as Civil Judges (Jr. Divn.). The same principle should apply while promoting and posting the Metropolitan Magistrates.

CITY CIVIL COURT JUDGES :

7.23 Six States have established City Civil Courts in their respective metropolitan cities, viz., (1) Hyderabad City (Andhra Pradesh State); (2) Ahmedabad City (Gujarat State); (3) Bangalore City (Karnataka State); (4) Bombay City (Maharashtra State); (5) Madras City (Tamil Nadu State); and (6) Calcutta City (West Bengal State).

7.24 The Judges of the City Civil Courts of Hyderabad, Bangalore, Madras and Calcutta form part of the general cadre of State Judicial Service. But the City Civil Court Judges at Bombay and Ahmedabad constitute separate cadres with slightly higher pay scales than that of the general cadre of District Judges.

HISTORICAL BACKGROUND OF THE CITY CIVIL COURTS OF BOMBAY AND AHMEDABAD :

7.25 The City Civil Court at Bombay was established pursuant to the Bombay City Civil Court Act, 1948 and in 1950, the City Civil Court was constituted with the jurisdiction to receive, try and dispose of all suits and other proceedings of civil nature arising within the Greater Bombay, except suits or proceedings which are cognizable by the High Court.

7.26 The City Civil Court shall be deemed to be a Court subordinate to and subject to the superintendence of the High Court within the meaning of the Letters Patent of the High Court and the Code of Civil Procedure 1908.

7.27 Appeal shall lie to the High Court from: (a) every decree passed by the judge of the City Civil Court and (b) such orders passed by the said Judge as are specified in and to the extent provided for by Section 104 of the Code of Civil Procedure, 1908.

7.28 The Principal Judge / Additional Principal Judges and Judges, City Civil Court, preside over the City Civil Courts, Mumbai. The Judges of the City Civil Court, Mumbai are selected from amongst the practising Advocates of the Bombay Bar as well as from the Bar of the various Districts in the State. Promotions are made to this cadre from the Chief Judge / Additional Chief Judges, Small Causes Court, Chief Metropolitan Magistrate / Additional Chief Metropolitan Magistrates, District Judges and Additional District Judges.

7.29 The Principal Judge / Additional Principal Judges, City Civil Court are promoted by selection from amongst the Judges of the City Civil Court or by transfer of District Judges (Selection Grade).

7.30 The jurisdiction of the City Civil Court was at its inception limited to Rs.10,000/- and subsequently increased to Rs.25,000/- and then to Rs.50,000/- by the enactment of Maharashtra Act, 49 of 1977. With the amendment of the Bombay City Civil Court Act and by issuance of a notification, the original civil jurisdiction of the High Court has been transferred to the City Civil Court subject to certain exceptions listed therein. The notification, however, is under challenge and the matter appears to be presently pending in the Hon’ble Supreme Court.

AHMEDABAD CITY CIVIL COURT :

7.31 The set up of Ahmedabad City Civil Court was bodily lifted from the set up of the City Civil Court at Bombay. Civil and Criminal Courts for the city of Ahmedabad were constituted by the Ahmedabad City Courts Act, 1961 to try cases within the limits of the city of Ahmedabad as constituted under the Corporations Act, except suits or proceedings which are cognizable by the High Court and the Small Causes Court.

7.32 The City Civil Court shall be deemed to be a Court subordinate to and subject to the superintendence of the High Court within the meaning of the Code of Civil Procedure, 1908.

7.33 An appeal shall lie to the High Court from every decree passed by any Judge of the City Civil Court, and such orders passed by such Judges as are specified in, and to the extent provided by Section 104 of the Code of Civil Procedure, 1908.

7.34 The City Civil Court, Ahmedabad comprises of Principal Judge / Additional Principal Judge and Judges.

7.35 The method of recruitment is provided under the Gujarat Judicial Recruitment Service Rules.

7.36 The Judges, City Civil Court, Ahmedabad, are selected from amongst the Members of the Bar, District Judges, Chief Judge, Small Causes Court and Chief Metropolitan Magistrate or by transfer from District Judges through High Court.

7.37 The Principal Judge/Additional Judge are selected from amongst the Judges of the City Civil Court, District Judges or from the members of the Bar.

7.38 The Principal Judge will make arrangements as he may think fit for the distribution of the business of the Court among the various other Judges thereof.

7.39 The question is whether the Judges of the City Civil Courts of Bombay and Ahmedabad should continue to constitute separate cadre.

BOMBAY CITY CIVIL COURT JUDGES :

7.40 The Bombay High Court, after analysing the two judgments of the Supreme Court in the All India Judges’ Association Case, has stated that "separate cadre of the Judges of the City Civil Court cannot now be retained and it is necessary to make them part of the general cadre of District and Sessions Judges."

7.41 This view gets the fullest support from the Maharashtra State Judicial Service Association.

7.42 The Government of Maharashtra also concurs with that view. The Government has stated that it would be better to make the City Civil Court Judges as part of the general cadre so that the Judge working in one area may get the experience of litigation available in the other area.

7.43 But the Judges of the City Civil Court, Bombay have a different story to tell. By referring to the historical background of the City Civil Court for Bombay City, they have concluded that the Judges of the City Civil Court are intermediary Judges between the District Judges and the High Court Judges. Their contentions, inter alia, are as follows:

7.44.1 That the creation of the Bombay City Civil and Sessions court was necessitated due to the peculiar circumstances prevailing at that time. The increasing commercial activity in that part of the City and large influx of people from all over the country, led to a spate of commercial and other litigations. The Bombay High Court found itself burdened with heavy load of work, which the High Court was primarily not meant to handle, viz., acting as a Court of Appeal. Accordingly, the Bombay City Civil Court was set up with a limited pecuniary jurisdiction, which has been increased from time to time.

7.44.2 That Bombay City is not only a State capital but also the commercial capital of the country and a centre of World Trade which give a special and distinct position to the City, bearing the brunt of the changing nature of litigation. Some of the cases are sensitive in nature and the Judges were trying them insulated against threats and other dangers arising from the peculiar nature of such cases.

7.44.3 That the rise in the living standard of the citizens generally in the Bombay Metropolis makes it obligatory for the Judges of the Courts to maintain a standard of living in keeping with, if not higher, than the standard maintained by the other inhabitants of the Metropolis. The cost of living in Mumbai City is much higher than in the Districts of Maharashtra.

7.44.4 That the City Civil Court entertains a wholly different kind of litigation and cases than the Trial Courts in the other Districts in the rest of the State and that is the reason why the pay scales of the Judges of the City Civil Court are at a higher level than those of the District Judges in the rest of the State.

7.45 In this context, it is necessary to refer to the two Writ Petitions filed in the Bombay High Court, namely, W.P.No.3634 of 1998 and W.P.No.1165 of 1992 – MAHARASHTRA STATE JUDICIAL SERVICE ASSOCIATION v. STATE OF MAHARASHTRA.

7.46 In the first Writ Petition, the prayer made by the Judicial Officers’ Association working in the mofussil area was for fixation of pay structure and revision of service conditions of Judicial Officers working in the mofussil area of Maharashtra on par with the pay scale available to the Judicial Officers working in the City of Bombay.

7.47 In the second Writ Petition, the prayer made was for uniform rules for the Judges of Family Court in the State of Maharashtra. We will separately consider that matter.

7.48 The High Court referred both the Writ Petitions for consideration by this Commission. We have considered the issues raised and in the view that we propose to take on uniform pay scales, it is not necessary to deal those issues separately.

G.B. BADKAS COMMISSION :

7.49 The Report of the Maharashtra Pay Commission 1965-66 headed by Shri Justice G.B. Badkas, former Judge of the Bombay High Court, needs to be referred. In the elaborate report, he has recommended the parity in the pay scales of the Officers working in mofussil areas and the Officers working in the City of Bombay. In Chapter IX para 33 at page 102 of the Report, it is stated as follows:

"When pay scales are determined on the basis of nature of duties and responsibilities, the factor of geographical location of the department or establishment obviously becomes irrelevant and pay scales which include such element and confer monetary benefits on that account, deserve to be discontinued. Considered from any point of view and after giving our anxious consideration to all aspects of the problem, we recommend that city scales should be abolished. We broadly base our conclusions on the ground that: (i) public service of the State is one service; (ii) that it is illogical that pay rates should be designed separately for small area and for a small part of the services; (iii) that the existing city scales give preferential treatment to the employees covered by them and as such are discriminatory; (iv) that these scales offend principle of equal pay for equal work."

7.50 The Commission is in agreement with most of the principles stated by BADKAS COMMISSION.

AHMEDABAD CITY CIVIL COURT JUDGES :

7.51 The Gujarat High Court is not in favour of merging the City Civil Court Judges into the common cadre in the State Judicial Service. They want to keep the Judges of the City Civil Court as a separate cadre with different pay scales.

7.52 The High Court has given the following among other, reasons:

"1. The City Civil Court was established to lessen the burden of High Court as in Bombay and the Judges are entrusted the type of work which otherwise would be required to be done by the High Court Judges, on original side.

2. The Judges of City Civil Courts summarily decide suits involving unlimited pecuniary jurisdiction in accordance with separate procedural rules. Often suits involving claim of crores of rupees have to be decided in the Chamber proceedings requiring quick grasp and the decision making capacity of high order.

3. The City Civil Court Judges have powers of Sessions Court and the matters investigated by CBI in the State are being tried by the City Sessions Court.

4. The City Sessions Court Judge hears appeal from the decision of the Metropolitan Magistrate.

5. One of the City Civil Court Judges works as Transport Appellate Tribunal for the entire State. The Judges also hear queries against the orders of the Commission for taking Account.

6. The Principal Judge of the City Civil Court writes confidential reports of Chief Metropolitan Magistrate, Addl. Chief Metropolitan Magistrate and other Metropolitan Magistrates in addition to writing the confidential reports of the staff including gazetted staff.

7. While appointing direct recruits from the Bar to the cadre of City Civil Court Judges and District Judges, more meritorious candidates are appointed to the City Civil Courts.

8. The City Civil Courts earned a revenue of about Rs.2 crores in 1997 by way of court fees.

9. The industries in the city and the type of municipal and other litigation have no parallel in other Courts of the State.

10. The nature and quantum of matters like insolvency matters, company matters and intellectual property law matters are much higher in Ahmedabad city than in other places of State.

11. In view of the decision of the High Court in N.J. MANKAD v. STATE reported in 24(2) GLR 897, it is clear that the post of Judge of City Civil Court was treated as a post of promotion from amongst the Senior District Judges.

12. As an Appellate Judge, the Judge of the City Civil Court hears number of appeals arising under Public Premises (Eviction of unauthorised occupants) Act, 1972; Appeals under Trust Act, Appeals against orders of Town Planning Act, Essential Commodities Act; Prevention of Food Adulteration Act; Motor Vehicles Act, 1988 etc.,

13. Under the Ahmedabad City Civil Courts Act, suits are divided into summary suits, short causes, commercial causes and long causes. The procedure for summary suits was adopted to prevent dishonest and frivolous defences by parties and to avoid delay. Procedure for summon for judgment notices of motions for hearing the application for injunctions, summons for direction etc., are adopted. Special Judge is allotted Chamber work by rotation for every three months."

7.53 The Ahmedabad City Civil Court Judges wholly support the view taken by the High Court of Gujarat. Besides, they have stated that Ahmedabad has its distinct tradition, convention and litigation patterns which cannot be compared with other mofussil cities. The High Court of Gujarat has consistently acknowledged and recognised the superior status of City Court cadre. They have also emphasised that the superior status of judicial officers of City Court which consists of direct recruits from the Bar, who have been selected in terms of their merits and the district judges who are likewise considered for the post in terms of their relative merits by selection, even at the cost of bypassing some senior district judges who have staked their claims for the appointment to this cadre, is maintained.

7.54 Government of Gujarat, however, has taken a contrary view. According to the Government, it is necessary to integrate the cadre of Judges of City Civil Court, Ahmedabad and the District and Sessions Judges into one common cadre. The Government has also referred to their Resolution dated 8 March 1977 whereunder it was decided to integrate the cadres of the Judges of the City Civil Court, Ahmedabad and the District and Sessions Judges into one common cadre to be known as Higher Judicial Service Cadre. The Resolution also provides for protection of the pay and pay scales of the Judges of the City Civil Court, even in the pay scales assigned to the integrated cadre. That Resolution has, however, been kept in abeyance until further orders, at the request of the High Court, by Resolution dated 7th June 1977.

7.55 Mr. Justice B.J. Diwan (Rtd.), former Chief Justice of Gujarat High Court and Andhra Pradesh High Court, in a separate Memorandum, has also emphasised the need to maintain separate status to the Ahmedabad City Civil Court Judges.

7.56 But the Gujarat Judicial Service Association, Ahmedabad, representing the Judicial Officers of the entire State, except the Judges of the City Civil Court, have stoutly opposed the suggestion to continue the separate cadre for the City Civil Court Judges. They have given both factual and legal reasons and proof in support of their contention that there is absolutely no difference between the powers and jurisdiction of the City Civil Court Judges at Ahmedabad and other District Judges of the State.

7.57 They have referred to Section 12 of the Ahmedabad City Courts Act, 1961 to show that the Civil Court has unlimited original civil jurisdiction for the District concerned in the same way as the City Civil Court of Ahmedabad. They have contended that the District Courts are not required to deal with the civil suits since there are Civil Courts subordinate to the District Courts with unlimited jurisdiction and in view of Section 15 of the Code of Civil Procedure, when two Courts have concurrent jurisdiction, the matter is required to be dealt with and tried by the lowest Court.

7.58 Their case is that since there is no Civil Court subordinate to the City Civil Court at Ahmedabad, it is incumbent upon the City Civil Court at Ahmedabad to try the original civil suits.

7.59 They have also relied upon Section 61-D of the Indian Forests Act, 1927; Section 29 of the Bombay Rent Hotel Lodging House Rates Control Act and Section 54 of the Gujarat Town Planning and Urban Development Act, 1976, to prove that the District Judges are placed on par with the Principal Judge of the City Civil Court. They have laid emphasis on the mode of appointment of the District Judge as the Judge of the City Civil Court by transfer, which according to them, is a clear pointer that the District Judges are on par with the City Civil Court Judges.

OUR VIEWS :

7.60 We have given consideration to the rival contentions on the question whether the City Civil Court Judges of Bombay and Ahmedabad should form a separate cadre with different pay scales. Much of the arguments advanced for retention of such system are based on historical background about the need to constitute the City Civil Courts. We are not for a moment belittling the historical reasons or the compelling circumstances justifying the continuance of City Civil Courts. Indeed we are for continuing the system of City Civil Courts with all the existing procedure and powers that are being exercised. We are only concerned as to whether the City Civil Court Judges should continue to be a distinct cadre with different pay scales?

7.61 It is alleged that the special type of commercial litigation is only prevalent in Cities like Bombay and Ahmedabad. But, it is common experience that such litigations are not confined only to Metropolitan Cities. They are not uncommon in other cities. Indeed, such litigations frequently crop up in other cities as well.

7.62 It cannot therefore, be claimed that the City Civil Court Judges of Bombay and Ahmedabad should be treated as a separate cadre with higher emoluments in view of the pattern of litigations that they are saddled with.

7.63 It seems to us that keeping the City Civil Court Judges in one place without being transferred to District Courts would be depriving such Judicial Officers of acquiring varied judicial experience. The experience gained in City Civil Court may be narrowly tailored and not broad based. The experience in working in different Courts would be an asset to Judicial Officers. The overall judicial experience gained by working in different centres would be immensely useful to them for handling the judicial work in the High Court, when they are elevated to the Bench of the High Court.

7.64 It cannot also be contended that the City Civil Court Judges constitute an intermediary cadre between the High Court Judges and District Judges.

7.65 This argument is not tenable. We have a unified judiciary based on cadre system. City Civil Court judges belong to the category of District Judges, who are below the High Court Judges. They cannot be treated as an intermediate cadre or Hybrid cadre between the judges of the High Court and the District Judges. This aspect becomes more clear if one peruses the expression of "District Judge" as defined under Article 236 (a) of the Constitution, which reads as follows:

"236(a). The expression ‘District Judge’ includes Judge of a City Civil Court, Additional District Judge, Joint District Judge . . . . . . ."

7.66 It will be seen from the above definition of the ‘District Judge’, that the Judge of a City Civil Court falls within the category of District Judge / Addl. District Judge / Joint District Judge, etc. . . . . . . .

7.67 There is yet another reason in support of our conclusion. The method of recruitment to the City Civil Court Judges of Bombay and Ahmedabad includes among others the appointment by transfer of Senior District Judges. This presupposes that the general cadre of District Judges is on par with the City Civil Court Judges, since appointment by transfer is possible only of persons belonging to equivalent cadres.

7.68 In the premise, we are firmly of the opinion that there is no basis now to keep the City Civil Court Judges out of the main stream of State Judicial Service. It would be proper and just to include them in the general cadre of State Judicial Service. We respectfully agree with the view of the High Court of Bombay.

7.69 We may say a word or more before parting with this matter. If the High Court considers that more experienced judges are needed in the City Civil Court, it is always open to the High Court to post such senior judicial officers in the City Civil Courts. Even the existing special emoluments, if any, allowed to the City Civil Court Judges, may be protected treating them as personal or attached to the posts. It is for the High Court to pass such orders, if necessary, in this regard.

SMALL CAUSES COURT JUDGES :

7.70 The Judges of the Court of Small Causes, Mumbai / Ahmedabad, appointed under the Presidency Small Causes Court Act, 1882, contend that the judicial function performed by them is unique in character and has no comparison with the judicial function of any other judge in other cadres in the subordinate judiciary. They contend that they are appointed by way of promotion from the Civil Judges (Sr. Divn.); or Civil Judges (Jr. Divn.), in case of Civil Judges (Jr. Divn.) who have put in more than 7 years service or appointed from advocates practising more than 5 years.

7.71 They have made reference to Section 8 of the Presidency Small Causes Court, Act, 1882. It provides that the Chief Judge shall be the first of the Judges in rank and precedence. Section 42 of the said Act provides for an appeal from a decree or order made by the Small Causes Court exercising jurisdiction under Section 41, to a Bench of two Judges of the said Court. They have relied upon the observation of the Bombay High Court in SHOBHANA v. RAMACHANDRA8, wherein, Rule 9(2) of the Bombay Rent Control Rules giving preference to opinion rendered by the Sr. Judge on a Bench of two Judges of the small causes court, Bombay has been struck down on the ground, "judges who are equal in rank enjoyed equal powers and jurisdiction as far as judicial work is concerned". Their further case is that under certain rules of recruitment, the distinct status of the Small Causes Court Judges in all Metropolitan / Presidency Town has been maintained and, therefore, they should be put on higher footing than the Civil Judges (Sr. Divn.) and Chief Judicial Magistrates, or at least on par with the Additional District Judges. In other words, they want them to be equated with the District Judges.

7.72 The claim made by the Judges of the Court of Small Causes, Mumbai / Ahmedabad has been opposed by the Maharashtra and Gujarat State Judicial Officers’ Associations. They have contended that the Small Causes Court judges could be equated only with the Civil Judges (Jr. Divn.).

7.73 The High Court of Bombay has stated that while unifying subordinate judicial service into three tier system, Small Causes Court Judges will have to be included in the second tier, i.e. of Civil Judges (Sr. Divn.), and Chief Judges, Small Causes Court / Additional Chief Judge, Small Causes Court are to be included in the first tier viz., the cadre of District and Sessions Judges.

7.74 The High Court of Gujarat has also stated that the Judges of the Provincial Small Causes Court are to be included in the second tier along with the Civil Judges (Sr. Divn.). / Chief Judicial Magistrates / Metropolitan Magistrates.

7.75 It seems to us that the question of equation of Small Causes Court Judges must be left to the decision of each High Court, since there is no uniformity in their cadres. In some States, Civil Judges (Jr. Divn.) are empowered to exercise Small Causes Court jurisdiction and that too on varied terms. In Metropolitan Cities, Civil Judges (Sr. Divn.) are having such jurisdiction. It is not desirable to bring about uniformity in their cadres in all States. We, therefore, leave this matter to be examined and decided by the High Court of each State / UT.

8. 1996 (1) MH.L.J. 751.

7.76 We, however, recommend that Chief Judge, Small Causes and Additional Chief Judge, Small Causes having regard to their supervisory powers and jurisdiction, be included in the cadre of District Judges in all States UTs as rightly pointed out by the High Courts of Bombay and Gujarat.

RENT CONTROL JUDGES :

7.77 In some States, Rent Control cases in urban areas are handled by Civil Judges (Sr. Divn.) and in some States, they are handled by the Civil Judges (Jr. Divn.). There is no uniformity even in this regard. Therefore, we do not want to suggest that all Rent Controllers in all States should be included in the same cadre. We leave this question also to the decision of the concerned High Court.

LABOUR JUDICIARY - LABOUR COURTS / INDUSTRIAL COURTS :

7.78 The pattern of Labour Judiciary in Maharashtra and Gujarat is almost identical, but that is not reflected in other States. There are three enactments operative in Maharashtra and Gujarat: (1) The Bombay Industrial Relations Act, 1946; (2) The Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971; and (3) The Industrial Disputes Act, 1947.

7.79 One of the Labour Court Judges by name Sri G.P. Sharma filed an Intervening Application No.69/98 in Supreme Court in W.P.(C) No.1022/1989 in the ALL INDIA JUDGES ASSOCIATION AND OTHERS v. UNION OF INDIA AND OTHERS, inter alia, contending that there is acute disparity and inequality in the pay scales, service conditions and other benefits extended to the Presiding Officers of the Labour Court and Industrial Courts, vis-à-vis, the Additional District Judges etc., and seeking issuance of a suitable direction to the Central Government to enlarge the terms of this Commission to examine the service conditions of the cadre of Labour Courts / Industrial Courts Judges.

7.80 On 9 February 1998, the said Intervening Application was withdrawn with liberty to the party to approach this Commission.

7.81 Thereafter, number of representations have been received, in particular from Maharashtra and Gujarat Labour Courts Judicial Officers Associations. The Commission also afforded an opportunity of being heard to their representatives.

7.82 Mr. V.P. Patil made his oral submissions during the course of the hearing on behalf of the Labour Judiciary in the State of Maharashtra and Gujarat. He has contended that there should be no disparity of pay scales between the Judges working in Labour and Industrial Courts; and there should be uniform Special Pay for all the Labour Judiciary. He has also submitted that the age of retirement of Labour Judiciary should be raised to 65 and not to retire them at the age of 58 as it is currently being done. He has also pleaded for fixing uniform service conditions.

7.83 We do not think that we could examine all these contentions, since the Labour Judiciary in Maharashtra and Gujarat is quite different from that of other States.

7.84 However, the Judges of the Labour Courts and Industrial Courts / Tribunals are two common posts in all States / UTs. The Supreme Court in STATE OF MAHARASHTRA v. LABOUR LAW PRACTITIONERS’ ASSOCIATION AND OTHERS9 has observed that the said two posts must be held to belong to State Judicial Service, and their recruitment / appointment must be in accordance with the procedure prescribed to the Judicial Cadre.

7.85 We may state that those two posts are to be encompassed into the State Judicial Service by removing all outside control over them, and extending the pay scales and other benefits allowed to the corresponding posts in the Judicial Service.

9. AIR 1998 SC 1233.

7.86 Before parting with this subject, we have to refer to the existing pattern of judicial service in the following three States and one Union Territory viz.,

(1) Himachal Pradesh;

(2) Punjab;

(3) Haryana; and

(4) Delhi.

7.87 There are only two cadres in these States.

7.88 HIMACHAL PRADESH :

I. Himachal Pradesh Higher Judicial Service

comprising of:

i) District and Sessions Judge

ii) Additional District & Sessions Judge.

II. Himachal Pradesh Judicial Service

consisting of:

i) Senior Sub-Judge-cum-Chief Judicial Magistrate;

ii) Sub-Judge-cum-Additional Chief Judicial Magistrate;

iii) Sub-Judge-cum-Judicial Magistrate;

iv) Senior Sub-Judge-cum-Judge Small Cause Court.

7.89 PUNJAB :

I. Punjab Superior Judicial Service

comprising of:

District & Sessions Judge / Additional District & Sessions Judge.

II. Punjab Civil Service (Judicial Branch)

comprising of:

i) Civil Judge (Sr. Divn.) -cum- Additional Chief Judicial Magistrate

with unlimited pecuniary jurisdiction at each District HQs.

ii) Chief Judicial Magistrate -cum- Additional Civil Judge (Sr. Divn.)

with unlimited pecuniary jurisdiction at each District HQs.

iii) Additional Civil Judge (Sr. Divn.)-cum-Judicial Magistrate First Class

with limited pecuniary jurisdiction at each District HQs. as well as at each sub-division.

iv) Civil Judge (Jr. Divn.) - cum- Judicial Magistrate First Class and Second Class

with limited jurisdiction upto Rs.2.00 lakhs for initial period of 3 years and thereafter unlimited pecuniary jurisdiction.

7.90 HARYANA :

I. Haryana Superior Judicial Service

comprising of:

District & Sessions Judge / Additional District & Sessions Judge.

II. Haryana Civil Service (Judicial Branch)

comprising of:

i) Civil Judge (Sr. Divn.) -cum- Additional Chief Judicial Magistrate

with unlimited pecuniary jurisdiction at each District HQs.

ii) Chief Judicial Magistrate -cum- Additional Civil Judge (Sr. Divn.)

with unlimited pecuniary jurisdiction at each District HQs.

iii) Additional Civil Judge (Sr. Divn.)-cum-Judicial Magistrate First Class

with limited pecuniary jurisdiction at each District HQs. as well as at each sub-division

iv) Civil Judge (Jr. Divn.) - cum- Judicial Magistrate First Class and Second Class

with limited jurisdiction upto Rs.2.00 lakhs for initial period of 3 years and thereafter unlimited pecuniary jurisdiction.

7.91 DELHI :

I. Delhi Higher Judicial Service

comprising of:

(a) On the Civil side:

i) District Judge

ii) Addl. District Judge

iii) Rent Control Tribunal

iv) Addl. Rent Control Tribunal

(b) On the Criminal side:

i) Sessions Judge / Addl. Sessions Judge.

ii) Chief Metropolitan Magistrate / Addl. Chief Metropolitan Magistrate.

II. Delhi Judicial Service

comprising of:

(a) On the Civil side:

i) Senior Civil Judge

ii) Addl. Senior Civil Judge

iii) Judge, Small Causes Court

iv) Civil Judge, Rent Controller / Addl. Rent Controller

(b) On the Criminal side:

Metropolitan Magistrate

HIGHER JUDICIAL SERVICE IN (i) HIMACHAL PRADESH; (ii) PUNJAB; (iii) HARYANA; AND (iv) DELHI:

7.92 There cannot be any problem to equate the posts in Higher Judicial Service in all these three States and Union Territory of Delhi with the cadre of District Judges under our three-tier system. The States are, therefore, requested to include those posts in the cadre of District Judges.

7.93 The problem is with regard to the second cadre in these States which evidently does not fit into the three tier system which is mandated by the Supreme Court and which is also the basis upon which the entire report of the Commission is rested.

7.94 We have elsewhere stated that Civil Judge (Sr. Divn.) is exclusively a promotional cadre to the Civil Judge (Jr. Divn.) and promotion is to be made on the basis of merit-cum-seniority. We have prescribed the minimum experience of five years in the cadre of Civil Judge (Jr. Divn.) for being considered for promotion to the cadre of Civil Judge (Sr. Divn.). These principles are also incorporated in the "Draft Judicial Service Rules" which we have prepared for all States and Union Territories to follow. It is on this basis we have recommended uniform pay scales to the three Cadres with Career Progression Scales to the Officers in each of the Cadres.

7.95 We have elsewhere indicated that the Metropolitan Magistrates powers should not be conferred on Civil Judges (Jr. Divn.). They should always be in the cadre of Civil Judges (Sr. Divn.).

7.96 In the light of these principles, the High Courts of the above three States and the Union Territory are requested to dissect their Judicial Service other than the Higher Judicial Service / Superior Judicial Service into two distinct cadres, viz., Civil Judges (Jr. Divn.) and Civil Judges (Sr. Divn.).

* * * * *

8. RECRUITMENT TO THE CADRE OF

CIVIL JUDGES (JR. DIVN.) -CUM-MAGISTRATES FIRST CLASS

QUALIFICATION FOR RECRUITMENT :

8.1 Judicial Service in India is a career service with pyramidic structure of Courts. At the lower rung, there are judges called Munsiff-Magistrates since termed as Civil Judges (Jr. Divn.)-cum-Magistrates. Immediately higher is the cadre of Civil Judges (Sr. Divn.) / Chief Judicial Magistrates and above them Additional District and Sessions Judge / District and Sessions Judge. These cadres constitute the Subordinate Judiciary in every State. Over and above the Subordinate Judiciary is the High Court, which is the highest Court in the State, set up under Article 214 of the Constitution.

8.2 The Constitution prescribes the qualification for recruitment of District Judges and High Court Judges.

8.3 Article 233(2) provides that no person is eligible to be appointed a District Judge unless he has been an advocate or a pleader for not less than 7 years.

8.4 Article 217(2)(b) prescribes 10 years experience as an advocate for being eligible for appointment as a High Court Judge. Similar is the qualification for acquiring eligibility for appointment to the Supreme Court under Article 124(3)(d) of the Constitution.

8.5 But no such experience as an advocate or a pleader has been provided in the constitution for recruitment to the cadre of Civil Judge (Jr. Divn.)-cum-Magistrates First Class.

8.6 In view of this omission in the Constitution, States were free to prescribe any qualification and follow any method for selection. Some States were recruiting fresh law graduates without any experience at the Bar while other States insisted more than 4 to 5 years of Bar experience.

8.7 The Supreme Court in the ALL INDIA JUDGES€ ASSOCIATION CASE1 (AIR 1993 SC 2493) did not approve of the different qualifications prescribed by different States. The Court observed at p.2505 as follows:

"It has, however, become imperative, in this connection, to take notice of the fact that the qualifications prescribed and the procedure adopted for recruitment of the judges at the lowest rung are not uniform in all the States. In view of the uniformity in the hierarchy and designations as well as the service conditions that we have suggested, it is necessary that all the States should prescribe uniform qualifications and adopt uniform procedure in recruiting the judicial officers at the lowest rung in the hierarchy. In most of the States, the minimum qualifications for being eligible to the post of Civil Judge-cum-Magistrate First Class / Magistrate First Class / Munsiff Magistrate is minimum three years€ practice as a lawyer in addition to the degree in law. In some States, however, the requirement of practice is altogether dispensed with and Judicial Officers are recruited with only a degree of law to their credit. The recruitment of raw graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the Court-system and the administration of justice begotten through legal practice.

1. AIR 1993 SC 2493.

The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection. Many States have hence prescribed a minimum of three years€ practice as a lawyer as an essential qualification for appointment as a judicial Officer at the lowest rung. It is, hence, necessary that all the States prescribe the said minimum practice as lawyer as a necessary qualification for recruitment to the lowest rung in the judiciary.

xxx xxx xxx

xxx xxx xxx

We, therefore, direct that all States shall take immediate steps to prescribe three years€ practice as a lawyer as one of the essential qualifications for recruitment of the judicial officer at the lowest rung."

8.8 Pursuant to these directions, almost all States have fallen in line by prescribing the minimum Bar experience as three years of qualification for recruitment.

8.9 Some States, however, have prescribed more than three years since the Supreme Court has mandated only the minimum qualification.

10.We may set out below the existing methods followed by the States andUnion Territories for selection of Civil Judges (Jr. Divn.).

ANDHRA PRADESH

(i) Rules

Andhra Pradesh State Judicial Service Rules, 1962.

(ii) Qualification

a) By Direct Recruitment :

i) Must not have completed 38 Years of age.

ii) Must be actually practising as an Advocate of a High Court or as a First Grade Pleader with a degree in Law of a University.

iii) Must have been actually practising in Court of Civil and Criminal Jurisdiction for a period of not less than three years;

Provided in case of a person who is already in Govt. Service and applies for Civil Judge (Jr. Dn.) by direct recruitment, he must have actually practised for a period of not less than 3 years immediately prior to the date of his entering Govt. Service.

b) Recruitment by transfer :

i) Must not have completed 45 years of age

ii) (a) Must possess a degree in Law of any University in India.

(b) Must have passed the examination in Law of Practice and Procedure of the Andhra Pradesh Bar Council or equivalent thereto.

(c) The age-limit in the case of candidates belonging to Scheduled Castes / Schedule Tribes & the backward classes for direct recruitment shall be 43 years.

(iii) Procedure for selection

After holding the written & oral examinations specified in the schedule to these rules.

(iv) Authority for Selection

The High Court.

(v) Examination

a) Written

For Dist. Munsiff ( Civil Judge Jr. Dn.)

Number of papers - 2

Total Marks - 200

b) Viva Voce

For Dist. Munsiff ( Civil Judge Jr. Dn.)

Total Marks - 25

(vi) Training

(a) Institutional

Andhra Pradesh Judicial Academy at Hyderabad

(b) Duration

4 months

(vii) Probationary period

Two years probation.

* * * * *

EXTRACT OF THE ANDHRA PRADESH STATE JUDICIAL SERVICE RULES, 1962

1. Short Title and Commencement :

(1) These rules may be called the Andhra Pradesh State Judicial Service Rules.

(2) These rules shall be deemed to have come into force on the 1st April, 1958.

2. Definition :

(3) "Appointing authority" means:-

(b) in the case of the appointment to the post of District Munsiff by direct recruitment or by transfer, the Governor; and

(8) "District Munsiff" shall include-

i) Munsiff Magistrate

ii) City Magistrate

iii) Assistant Judge, City Civil Court

iv) Railway Magistrate

v) Municipal Magistrate; and

vi) Magistrate of the Juvenile Court

3. Constitution: The Service shall consist of the following categories of officers namely:-

Category 1 . . . Subordinate Judges

Category 2 . . . District Munsiffs

Category 3 . . . Judicial Second Class Magistrates

4. Appointments:

AD-HOC RULE :

Notwithstanding anything contained in the A.P. State Judicial Service Rules, on the commencement of this rule the appointment to the category of District Munsiffs shall be only by the methods of direct recruitment and appointment by transfer:

Provided that the vacancies in this category shall be filled by rotation in which direct recruitment and appointment by transfer shall be in the order specified below, in every cycle of five vacancies:

First vacancy ... Direct recruitment

Second vacancy ... Direct recruitment

Third vacancy ... Direct recruitment

Fourth vacancy ... Direct recruitment

Fifth vacancy ... Transfer

The ad-hoc rule hereby and shall be deemed to have come into force on the 12th October 1981.

Note: G.O. Ms. No.406, Home (Cts.C) Dept., dt. 19.7.85.

5. Preparation of lists of approved candidates:-

1.The High Court of Andhra Pradesh, shall from time to time after holding the examinations in accordance with the scheme specified in the Schedule to these rules for the candidates for appointment by Direct Recruitment and by Transfer to the posts of District Munsiffs prepare lists of persons considered suitable for appointment thereto.

(2) The High Court shall notify the vacancies as per the estimate of vacancies prepared for the year of recruitment, i.e. calendar year, invite applications, scrutinise them, conduct examinations both written and oral, prepare the select lists on the basis of the merit, by following the rule of reservation and send the said lists to the Government for approval of the selection and issuing orders for appointment as District Munsiffs. On appointment they will be imparted training in batches and given posting orders by the High Court.

(3) The list of the approved candidates to be prepared by the High Court shall contain not more than such number of candidates as are equal to the number of notified vacancies.

6. Training: Approved candidates shall undergo before appointment to a category such training as may be prescribed by the State Government and shall execute a bond as may from time to time be prescribed by the Government.

12. (a) General qualifications: No person shall be eligible for appointment to the service unless €

(i) he is a citizen of India;

(ii) his character and antecedents are such as to qualify him for such appointment; and

(iii) he is of sound health and active habits and free from any bodily defect or infirmity making him unfit for such appointment.

(b) Special qualifications: No person shall be eligible for appointment to the post of District Munsiff by the method specified in column (1) of the table below unless he possess the qualifications specified in the corresponding entries in column (2) thereof.

Note (1): References to age in the table and sub-rule (c) below shall be deemed to be references to age as on the first day of July of the year in which the appropriate list of approved candidates is prepared. The candidates should possess the other qualifications at the time when they apply.

*Note (2): The age limit prescribed in the table and sub rules (c), (d) and (e) shall be raised uniformly by a period, not exceeding the period during which recruitment to the posts fell due but was not made.

Provided that during the period which had elapsed since the recruitment to the posts was last made, the recruitment thereto would have fallen due but was not made.

(G.O. Ms. No.1718 Home (courts.A) dt.17.12.75).

Method of appointment

(1)

Qualifications

(2)

DISTRICT MUNSIFFS

By Direct Recruitment

1.Must not have completed 38 years of age.

2.Must be actually practising as an Advocate of a High Court in India or as a First Grade Pleader admitted as such by a High Court in India provided that in the case of a candidate who is a First Grade Pleader he must have been in possession of a degree in law of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or an Institution recognised by the University Grants Commission, at the time of his Admission as a First Grade Pleader.

3.Must have been actually practising in court of Civil or Criminal Jurisdiction in India for a period of not less than three years."

Provided that in the case of a person who is already in Government service and who applies for appointment to the post of District Munsiff by direct recruitment he must have actually practised for a period of not less than three years immediately prior to the date of his entering Government Service.

By transfer

1. Must not have completed 45 years of age; and

2. (a) Must possess a degree in Law of University in India established or Incorporated by or under a Central Act, Provincial Act or a State Act, or an Institution recognised by the University Grants Commission or any other Equivalent qualification.

(b) Must have passed examination in Law of Practice and procedure of the Andhra Pradesh Bar Council or any Examination equivalent thereto.

Provided that a person who possesses a degree in Law of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or an Institution recognised by the University Grants Commission, the syllabus of which includes "Civil Procedure Code and Criminal Procedure Code" shall not be required to pass the examination in Law and Practice and Procedure of the Andhra Pradesh Bar Council.

EXPLANATION :

* (c) The age limit in the case of candidates belonging to the Scheduled Castes, the Scheduled Tribes, the Aboriginal Tribes in the Scheduled area and the Backward Classes for direct recruitment as Judicial Second Class Magistrates or as District Munsiffs shall be 43 years.

*(Substituted by G.O.Ms. No.774, Home Dt. 9.6.1972)

14 (a) Probation: Every person appointed to any category shall, from the date on which he joins duty or reports for training, whichever is earlier be on probation for a total period of two years on duty in that category within a continuous period of three years.

15. (ii) Every person appointed to the category of District Munsiff shall during the period of probation pass the Account Test for Executive Officers.

* * * * *

ASSAM

(i) Rules

The Assam Judicial Service Rules 1962 (as amended up to 1995)

(ii) Qualification

a) Must be a Law Graduate of any recognized University or Barrister at Law.

b) Must have atleast 3 years practice at the Bar.

c) Age shall not be less than 25 years and more than 36 years on 1st January of the year in which the advertisement for selection is made.

General conditions:

i) Citizen of Indian Union ;

ii) Shall be of good character;

iii) Shall be of sound health and active habit and free from any bodily defect or infirmity.

iv) Shall not have more than one wife living unless exempted by the Govt. on special grounds;

(iii) Procedure for selection

Written examination followed by interview.

(iv) Authority for Selection

Posts are filled up by Assam Public Service Commission and High Court in 50:50 proportion

(v) Examination

a) Written

Number of papers - 4

Total Marks - 500

b) Viva Voce

Marks - 200

(vi) Training

Institutional:

a) North Eastern Judicial Officers€ Training Institute, Guwahati.

b) Duration - Fourteen weeks training.

(vii) Probationary period

One year from the date of appointment.

* * * * *

EXTRACT OF THE ASSAM JUDICIAL SERVICE RULES, 1962,

AS AMENDED UPTO 1995

Rule 1 - Short Title and Commencement -

(1) These rules may be called the Assam Judicial Service (Amendment) Rules, 1995.

(2) They shall come into force on the date of their publication in the official Gazette.

Rule 4 - Recruitment to the other posts of the Service on the commencement of these Rules shall be made by the following methods :-

(c) Appointment to the posts in Grade-III of the service shall be made by the Governor on the recommendation of the High Court on the basis of selection from amongst the members of the Bar by the High Court.

Rule 5

(A)(1) Of the vacancies to be filled up in Grade-III of the service, there shall be a reservation for candidates belonging to Scheduled Castes, Scheduled Tribes (Plains) and Scheduled Tribes (Hills) not exceeding 7% (seven per cent), 10% (ten per cent) and 5% (five per cent) respectively.

Rule 7 - Qualification for recruitment to the service in Grade III.

A candidate for recruitment to the post in Grade-III shall satisfy the following conditions besides the general conditions laid down under rule 8 :-

(i) he must be a Graduate in Law of any recognised University or Barrister at Law;

(ii) he must have practised at least three years at the Bar;

(iii) the age of the candidate for selection shall not be less than 25 years and more than 36 years on the 1st January of the year in which the advertisement for selection is made.

Rule 8 - General Qualification -

Every member of the Service shall qualify the following general conditions:-

(i) shall be a citizen of Indian Union;

(ii) shall be of good character;

(iii) shall be of sound health and active habit and free from any bodily defect or infirmity which render him unfit for such appointment;

(iv) shall not have more than one wife living unless exempted by the Government on special grounds.

Rule 8(A) - Training -

(1) There shall be a training course for the Officers appointed in Grade III of the service which shall be spread over a part of fourteen weeks as under:-

(a) working knowledge of criminal Courts, being attached to such courts, for a period of five weeks;

(b) working knowledge of the revenue courts for a period of two weeks;

(2) During the period of their training, trainees will be attached to District Judges who will detail the trainees to different courts. They will attend the courts situated in the District Head-Quarters and watch at least, one sessions case, original work in the Munsiffs Courts and also in the Magistrate€s Courts. They will be under the supervision of the District Judges concerned during the said period.

(3) During the period as stated above they will also have to acquire knowledge of accounts, working of the offices and maintaining of various registers in the offices of the Munsiffs and Magistrates.

(4) During the last period of the training they will come to Gauhati for two weeks to acquaint themselves with the working of the High Court and of the Assam Board of Revenue. During that period they will be under the guidance of the Registrar of the High Court.

(5) In order to understand the working of the offices of the subordinate Courts, the trainees must have a thorough knowledge of the provisions of the Civil Rules and Orders framed by the High Court under the Civil Procedure Code and the Criminal Rules and Orders framed by the High Court under the Criminal Procedure Code, as well as the Assam Fundamental Rules. The District Judges should bring the importance of this requirement to the notice of the trainees before they are allotted for training as specified above.

Rule 9 - Probation and confirmation -

All appointments other than appointments to temporary post under these Rules shall be on probation for a period of one year from the date of appointment to such post.

* * * * *

BIHAR

9. CIVIL JUDGES (SENIOR DIVISION) - WHETHER IT SHOULD BE MIXED CADRE OR PURELY PROMOTIONAL CADRE?

9.1 Generally, the Civil Judge (Senior Division) is a promotional post to Civil Judge (Junior Division). But in the State of Gujarat, it is a mixed cadre consisting of promotees and direct recruits. 50% of the cadre post is earmarked for promotion and the remaining 50% is filled up by direct recruitment from the practising advocates of not less than 5 years standing.

9.2 In Goa Administration also, Civil Judge (Senior Division) is a mixed cadre, but the percentage earmarked for promotees and direct recruits is different. For promotees, 67% of the cadre posts is reserved and the remaining 33% is filled up by direct recruitment from advocates of not less than 5 years standing.

9.3 In all other States and Union Territories, the cadre is purely a promotional one.

9.4 Those States which are having a mixed cadre are in favour of continuing their system. Likewise, the rest of the States do not want a change in the structure of their existing cadre, save the High Court of Himachal Pradesh and Government of Meghalaya.

9.5 The High Court of Himachal Pradesh has stated that to promote efficiency, the composition of the middle cadre should be 25% by direct recruitment and 75% by promotion.

9.6 Government of Meghalaya is of opinion that the cadre of Civil Judges may be mixed cadre to the extent of not exceeding 25% by direct appointment.

9.7 The High Court of Bombay adds a rider stating that it should be purely a promotional cadre but the discretion may be left to the High Court by making an enabling provision conferring power on the authority to make direct recruitment in exceptional emergent circumstances.

9.8 Naturally, all Judicial Officers€ Associations of every State have categorically stated that the cadre of Civil Judges (Senior Division) should be filled up only by promotion from the Civil Judges (Junior Division).

9.9 Among the retired Judges, Justice K. Ramaswamy, Former Judge of the Supreme Court has stated that it is desirable to keep the Civil Judge (Senior Division) as a promotional cadre, but if there is any recruitment directly from the Bar, it should not be more than 20%.

9.10 Sri P.P. Rao, Senior Advocate of the Supreme Court has also favoured the mixed cadre consisting of 50% direct recruitment and 50% promotees.

9.11 Justice Ranganatha Misra, Former Chief Justice of India is totally opposed in making the cadre of Civil Judges (Senior Division) the mixed cadre.

RECOMMENDATION BY THE COMMISSION :

9.12 While examining the problem presented, as to whether the cadre of Civil Judges (Senior Division) should be a mixed cadre or not, we have to bear in mind the decision taken by the Commission as to the nature of the cadre of District Judges. The Commission has decided that it should be mixed cadre. The Commission has rejected the vociferous demand of the service judges to reserve it exclusively for promotees.

9.13 The question now to be examined is whether it is proper to make the middle cadre also a mixed cadre. It is true that the mixed cadre may promote efficiency in the service, but while attempting to promote efficiency, we should not create frustration amongst the service judges for want of adequate promotional opportunity.

9.14 Generally, in every State, the posts of Civil Judges (Senior Division) are comparatively very much less than the posts in the Civil Judges (Junior Division). In some States, it is less than half. In some States, it is less than 1/3rd and in one or two States, it is less than 1/4th.

9.15 Hereinbelow, the chart giving the number of posts in the cadre of Civil Judges (Junior Division) and Civil Judges (Senior Division):

Sl. No.

State

Civil Judge (Jr. Dn.)

Civil Judge (Sr. Dn.)

1.

Andhra Pradesh

433

122

2.

Assam

146

46

3.

Bihar

1043

266

4.

Goa

20

14

5.

Gujarat

290

167

6.

Haryana

178*

7.

Himachal Pradesh

70*

8.

Jammu & Kashmir

51

42

9.

Karnataka

330

167

10.

Kerala

229

81

11.

Madhya Pradesh

422

251

12.

Maharashtra

717

163

13.

Manipur

19

6

14.

Meghalaya

3

2

15.

Mizoram

26

11

16.

Nagaland

5

7

17.

Orissa

261

70

18.

Punjab

213*

19.

Rajasthan

315

144

20.

Sikkim

6

2

21.

Tamil Nadu

399

96

22.

Tripura

45

10

23.

Uttar Pradesh

721

529

24.

Pondicherry

10

5

25.

NCT of Delhi

218*

26.

West Bengal

337

206

* Inclusive of both Civil Judges (Jr. & Sr. Dn.)

9.16 With these respective cadre strengths, in almost all the States, the Civil Judge (Junior Division) has to wait for about 10 years to get first promotion to the cadre of Civil Judges (Senior Division).

9.17 In States like Kerala, Rajasthan, Sikkim, Uttar Pradesh and West Bengal, no Civil Judge (Junior Division) gets the first promotion till he completes 10 years of service.

9.18 In Bihar, such unfortunate Civil Judges (Junior Division) have to wait nearly 20 years to get such promotion.

9.19 In Jammu & Kashmir, Maharashtra and Tamil Nadu, the position seems to be slightly better. Civil Judges (Junior Division) in these States could generally get promotion after about 8 years of service.

9.20 In Gujarat, having regard to the mixed cadre of Civil Judges (Senior Division), first promotion to the Civil Judge (Junior Division) would be available to him only after 11 to 12 years.

9.21 In these circumstances, whether it is prudent to make the Civil Judges (Senior Division) a mixed cadre for promotees and direct recruits? Even in States where the Civil Judges (Senior Division) is a mixed cadre of promotees and direct recruits, it would be frustrating for Civil Judges (Junior Division) to wait for first promotion for about 10 years. If that cadre is made a mixed cadre, it would further diminish the promotional opportunity available to the Civil Judges (Junior Division) which according to us is not in the interest of promoting efficiency.

9.22 We, therefore, fully concur with the views expressed by the Judicial Officers€ Associations all over the country and some of the High Courts as indicated above.

9.33 We recommend that the cadre of Civil Judges (Senior Division) should be constituted purely as promotional cadre.

9.34 We, however, hasten to add that there should be a minimum eligibility for Civil Judge (Jr. Divn.) for being considered for promotion to Civil Judge (Sr. Divn.). Having regard to the rights, duties and responsibilities of the Civil Judge (Sr. Divn.), we consider that the minimum experience of five years as Civil Judge (Jr. Divn.) is a must for earning eligibility for promotion as Civil Judge (Sr. Divn.). We have also included this principle in the draft 'JUDICIAL SERVICE RULES' which is annexed to our Report.

* * * * *

10. DIRECT RECRUITMENT TO THE CADRE OF DISTRICT JUDGES

- PROFILE, PROBLEMS AND PROGNOSIS

10.1 The mixed cadre of District Judges consisting of promotees and direct recruits in every State Judicial Service was intended to promote efficiency in the administration of justice. But the fact remains otherwise. There is a lot of discontentment between the direct recruits of District Judges on one side and promotees on the other. The two classes are generally not in cordial terms, nay, in some States, they are not even on talking terms. They are forming separate Associations. They are locked up in legal battles fighting up to the Apex Court. They made separate representations to this Commission.

10.2 The root cause for all these unfortunate fall out seems to be the mode of direct recruitment followed by High Courts and determining the inter-se seniority between the promotees and the direct recruits. The High Courts are not unaware of this bitterness and discontentment in the service, yet seem to have done little to improve the method of direct recruitment so as to remove the grievance of promotees.

10.3 The common grievance of the service judges in the lower cadre in all the States, and which grievance is also highlighted in the Memorandum of All India Judges€ Association is that the hopes and aspirations of judges who have entered the lowest rung of the judicial service have been shattered for want of adequate promotional opportunity. It was 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. It was said that they could never think of becoming Principal District Judges. It was pointed out that the Advocates are recruited as District Judges at relatively younger age, varying from 32 to 40 years, while service judges would get a chance of promotion as District Judges only at their advanced age. Such direct recruits would be ranked above the promotees in the seniority list and occupy all the central posts. They also deprive the promotees the chance to reach the High Court.

10.4 How the ill-managed direct recruitment could jeopardise the already bleak chance of promotion of service judges has been pointed out in the Memorandum of the All India Judges€ Association by citing the following instance in the State of Bihar:

"It is reported that due to certain reasons, no €Direct Recruitment€ of Addl. District Judges took place in the State of Bihar between the years 1982 and 1990. Then suddenly as many as 30 Addl. District Judges were inducted in the Higher Judicial Cadre as Direct Recruits in 1991. Consequently, the lower judicial cadre Officers had not yet overcome the ill-effects of such a bolt from the blue (because such a big batch of Officers, younger in age, had tended to block their promotional avenues), when in the year 1997, the High Court dealt the severest blow by inducting a €Jumbo Batch€ of 53 Addl. District Judges at one go. In this manner, these two batches comprising 83 Officers, much younger in age and inducted during a short span of 7 years, was a fatal blow to the Judges manning the lower cadres since their service career has suddenly become bleak; firstly, as Addl. District Judges, and, secondly, if some lucky chap does manage €to raise his head over the water€, then there would be slim probability of his becoming a District Judge (or Principal District Judge), and even if such a possibility occurs in the case of still luckier ones (and for a short duration), then certainly he or she would stand no chance of elevation to the Bench. In other words, an apparent policy of the Patna High Court does not seem to give due regard to the service career of an overwhelming majority of the District Judiciary."

10.5 Of course, this has been refuted by one of the direct recruits from Bihar cadre during the course of hearing and he squarely put the blame on service judges for having resorted to several litigations to delay the direct recruitment.

10.6 There are many other complaints in this regard, but we do not want to refer to them in this discussion. But one thing seems to be clear. The direct recruitment to the cadre of District Judges, instead of creating harmony and promoting efficiency in the service has been eroding the integrity and independence of the judiciary by ill-will and bickerings. We can ill-afford to allow such state of affairs to continue in the judiciary.

10.7 The Commission considers that the method of direct recruitment to the cadre of District Judges requires to be radically overhauled so as to ensure fairness to promotees as well as to direct recruits.

10.8 It is with that object, the Commission has formulated the following questions for the views and comments from the concerned:

(1) What are the qualifications prescribed in your State for direct recruitment to the cadre of District Judges?

(2) The percentage for direct recruitment to the cadre of District Judges varies from State to State. In West Bengal, there is no direct recruitment to the cadre of District Judges. What is the position in your State? What according to you should be the proper percentage for such recruitment to avoid imbalance and impairment of the rights of the promotees?

(3) It is complained that in some States direct recruitment to the cadre of District Judges is made at the age of 32 to 35, prejudicially affecting the rights and prospects of the promotees. What are your views in this regard?

10.9 A wide variety of views and comments have been received in response to these questions and they will be presently examined.

10.10 We may first refer to the Constitutional provisions relating to appointment of District Judges. They are as follows:

Article 236: Interpretation, - In this Chapter -

(a) the expression "district judge" includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;

(b) xxx xxx xxx

Article 233: Appointment of district judges, -

(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

10.11 It will be seen that the two clauses of Article 233 contemplate recruitment to the cadre of District Judges by promotion from the subordinate judicial service as well as by direct recruitment from Pleaders or Advocates having not less than seven years of practice.

10.12 In SUSHMA SURI AND OTHERS v. GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI AND ANOTHER,1 the Supreme Court has stated that seven years practice specified under Article 233(2) should not mean that the practice should be only as members of the Bar. Such a construction would be too narrow and would defeat the object of Recruitment.

10.13 With reference to the scope of the Rules under Delhi Higher Judicial Service Rules and with reference to Rule 49 framed by the Bar Council of India, the Court further observed that:

"Article 233(2) should not be restricted only to Advocates who are practicing as members of the Bar. Such a construction would be too narrow defeating the object of recruitment. The object is to get the persons of necessary qualification, experience and knowledge of life."

The Court further observed:

" A Government counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description, cannot be stated to be irrelevant nor detrimental to selection to the posts of Higher Judicial Service. The expression € members of the Bar € in the relevant rule would only mean that a particular class of persons who are actually practicing in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a public prosecutor or a

11. WHETHER THE LOWER JUDICIAL SERVICE PERSONNEL COULD BE MADE ELIGIBLE FOR DIRECT RECRUITMENT TO THE POST OF DISTRICT JUDGES ?

11.1 The Constitution, as it stands, does not provide for consideration of persons who are already in judicial service for direct recruitment to the cadre of District Judges.

11.2 Article 233 is as follows:

"233 (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

"(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."

11.3 The scope of this Article has come up for consideration before the Supreme Court in the following cases:

In RAMESHWAR DAYAL v. STATE OF PUNJAB1, S.K. Das J. observed: (at p.822)

". . . . . . . . . . . Article 233 is a self contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under cl. (1), the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a

1. AIR 1961 SC 816.

qualification is laid down in cl. (2) and all that is required is that he should be an advocate or pleader of seven years’ standing."

In CHANDRA MOHAN v. STATE OF UTTAR PRADESH2, Subba Rao, C.J. after referring to Article 233, 234, 235, 236 and 237 stated: (at p.1993)

"The gist of the said provisions may be stated thus: Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely, (i) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of persons to the judicial service other than as District Judges, they will be made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control over all the district courts and courts subordinate thereto, subject to certain prescribed limitations."

11.4 Subba Rao, C.J., then proceeded to consider whether the Government could appoint as District Judges persons from services other than the judicial service. After pointing out that Art. 233(1) was a declaration of the general power of the Governor in the matter of appointment of District Judges and it did not lay down the qualifications of the candidates to be appointed or denoted the sources from which the recruitment had to be made, he proceeded to state,

2. AIR 1966 SC 1987.

"But the sources of recruitment are indicated in cl. (2) thereof. Under cl.(2) of Art.233 two sources are given, namely, (i) person in the service of the Union or of the State, and

(ii) Advocate or Pleader."

11.5 Posing the question whether the expression "the service of the Union or of the State" meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression "the service" in Art. 233(2) could only mean the judicial service.

11.6 In SATYA NARAIN SINGH v. HIGH COURT OF JUDICATURE AT ALLAHABAD3, CHINNAPPA REDDY J. observed:

" Two points straightaway project themselves when the two clauses of Art. 233 are read:

The first clause deals with ‘appointments of persons to be, and the posting and promotion of, District Judges in any State’ while the second clause is confined in its application to persons ‘not already in the service of the Union or of the State’. We may mention here that ‘Service of the Union or of the State’ has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are

3. AIR 1985 SC 308.

members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship cannot sail both the streams simultaneously."

11.7 The grievance of Service Judges however, is that they are unjustly denied of an opportunity to compete for direct Recruitment to District Judge posts, when similar facility is provided in other Administrative services.

11.8 The Commission, with a view to ascertain the views and comments from all concerned in this regard, included the following questions in the general Questionnaire:

Q.No.8.3 :

Do you think that the officers in the lower judicial service should be allowed to compete for direct recruitment to the District Judge cadre?

If so, what should be the experience in service for such Officers and how Article 233 of the Constitution of India should be amended? Explanation (aa) to Sub-Article (2) of Article 217 may be noted in this context.

Q.No.8.4 :

Has any weightage been given in your State / UT in terms of increments and / or retirement benefits for direct recruits to the cadre of District Judges who possess more than the minimum number of years of practice at the Bar?

11.9 Responses received from the High Courts, Governments and Judicial Officers’ Associations and individuals are not uniform. They are briefly summarised herein below:

HIGH COURTS :

11.10 High Courts of Patna, Jammu & Kashmir, Bombay, Orissa, Punjab & Haryana, Sikkim, Allahabad and Calcutta are in favour of allowing the officers in the Lower Judicial Service to compete for direct recruitment of District Judges.

11.11 But, High Courts of Andhra Pradesh, Guwahati, Delhi, Himachal Pradesh, Karnataka, Kerala, Gujarat, Madhya Pradesh, Rajasthan and Madras are against the proposal.

GOVERNMENTS :

11.12 Governments of Andhra Pradesh, Karnataka, Maharashtra, Tripura, Meghalaya and Gujarat want that the Officers of the Lower Judicial Service should be given an opportunity for direct recruitment of District Judges.

11.13 But, Kerala, Tamilnadu and Nagaland Governments are against any such move.

11.14 Sikkim Government wants that the posts of District Judges should be filled up only by promotion and not by direct recruitment.

11.15 In West Bengal, there is no direct recruitment for the present, but wants to reconsider the question.

SERVICE ASSOCIATIONS :

11.16 The Judicial Officers / Service Associations of Andhra Pradesh, Bihar, Delhi, Gujarat, Jammu & Kashmir, Kerala, Orissa, West Bengal, Kerala Magistrates (Judicial) Association, Haryana Civil Judges’ Association, Haryana State Judges’ Association, Judges of the City Civil and Sessions Court, Mumbai plead for an opportunity to the Lower Judicial Service for direct recruitment of District Judges.

11.17 Maharashtra State Judicial Service Association though initially opposed the proposal, subsequently sent revised view favouring the proposal.

11.18 But, Manipur Judicial Officers’ Association, Imphal, The Delhi Higher Judicial Service Association and the All India Association of Direct Recruits have strongly opposed the move for making Service judges eligible for direct recruitment.

11.19 The Judicial Officers / Services Associations of Tamil Nadu, Mizoram, Assam, Uttar Pradesh and Goa, have gone a step further. They are totally against the direct recruitment of District Judges.

11.20 But, the Uttar Pradesh Judicial Service Association in the alternative has indicated that the in-service Judicial Officers with seven years service be allowed for such direct recruitment.

INDIVIDUAL VIEWS :

11.21 Justice R.N. Mishra, Former Chief Justice of India, Mr. Justice D.R. Khanna, Former Judge, Delhi High Court, Mr. Justice Bopanna and Mr. Justice K. Ramachandriah, Former Judges, Karnataka High Court are in agreement with the suggestions of the Commission.

11.22 Mr. Justice R.S. Sarkaria, Former Judge of the Supreme Court and Mr. Justice D.M. Chandrashekhar, Rtd., Chief Justice of Karnataka do not want such opportunity for the Service Judges.

PROPOSED CONDITIONS :

11.23 Patna High Court is of the view that only those Subordinate Judicial Officers with 10 years of service could be allowed for direct recruitment, while Bombay High Court has stated that four years of service may be sufficient.

11.24 Gujarat High Court has stated that Officers in the Lower Judicial Service with seven years experience, after written test and oral interview could be recommended for direct recruitment.

11.25 Maharashtra Government requires seven years of minimum service. Under Secretary (Law), Government of Goa, Panaji suggests five years experience. The Meghalaya Government wants that the requisite service as qualification could be prescribed by Rules, with provision for relaxation in deserving cases.

11.26 The Gujarat Judicial Service Association, Haryana Civil Judges’ Association are for prescribing seven years of service, while, the Judges of the City Civil and Sessions Court, Mumbai are for six years of service.

11.27 The Bihar Judicial Service Association and West Bengal Judicial Officers Association have stated that experience in service plus the practice in the Bar together should not be less than seven years. Similar is the view expressed by the Maharashtra State Judicial Service Association.

11.28 The Karnataka State Judicial Officers’ Association wants only Civil Judges (Senior Division) with minimum experience of three years be allowed.

11.29 Kerala Magistrates (Judicial) Association wants every member of subordinate Judicial Service, on completion of two years service, be allowed to apply as against ten per cent of the posts reserved for direct appointment.

11.30 Delhi Judicial Service Association has stated that all posts reserved for direct recruitment from Bar should be left open for selection by a competitive examination both for Advocates of seven years and Judicial Officers of seven years service.

11.31 Justice R.N. Mishra, Former Chief Justice of India wants 10 years experience in service should be insisted upon, while Tripura Judicial Service Association considers that Officers of Grade II with minimum of seven years service may be allowed.

11.32 There are different reasons given by different High Courts and Associations, justifying the need to amend Article 233(2) of the Constitution. They are set out herein in laconic details:

PATNA HIGH COURT :

11.33 That an opportunity for Service judges to compete for the post of District Judges would give an impetus and improve their efficiency.

BOMBAY HIGH COURT :

11.34 If meritorious young blood is to be encouraged in the interest of the judicial system, then the avenues should be kept open. There is no harm to allow officers of lower judicial service to compete for direct recruitment to the cadre of District Judges. In the matter of such candidates, High Court will have an added benefit of assessing candidates on the basis of their work and confidential record.

PUNJAB & HARYANA HIGH COURT :

11.35 It would provide a chance to young and competent Judicial Officers to improve discipline in judicial service and make Officers work more efficiently, diligently and sincerely.

ALLAHABAD HIGH COURT :

11.36 That the experience at Bench is not inferior to that at Bar and it will be in tune with the provisions under Article 217(2) of the Constitution of India. It will further introduce fair and meritorious competition.

HARYANA CIVIL JUDGES’ ASSOCIATION :

11.37 It would enable judicial officers to work more efficiently, diligently and sincerely in the hope of getting quick promotion which is otherwise too slow in the judicial service.

ALL INDIA JUDGES’ ASSOCIATION :

11.38 Such an incentive will tend to keep such junior Judges on their toes to make them constantly improve their professional knowledge and experience. They would make more determined effort for keeping their professional image clean, hoping to get quick promotion through competition.

REASONS AGAINST -

HIGH COURT OF DELHI :

11.39 If Officers in the Lower Judicial Service are allowed to compete for direct recruitment of District Judges, there are possibilities of juniors overtaking their seniors which may lead to frustration in the seniors and it may not be conducive to judicial discipline.

HIGH COURT OF KARNATAKA :

11.40 It may lead to indiscipline, heart-burn, jealousy etc.

CONSTITUTIONAL AMENDMENT PROPOSED :

11.41 The following amendment to Article 233(2) of the Constitution has been proposed:

11.42 PUNJAB & HARYANA HIGH COURT :

Art. 233 :

(2) " Any person already in the judicial service of a State continuously for not less than seven years or any person who has been for not less than seven years an advocate or a pleader shall be eligible to be appointed a District Judge only if he is recommended by the High Court for appointment."

11.43 BOMBAY HIGH COURT :

Art. 233 :

(2) Deletion of word "only" from Article 233(2) of the Constitution

and addition of Sub-Clause (3) to Article 233 as under:

"(3) A person already working in the State Judicial Service in the cadre of Civil Judge (Junior Division) / Judicial Magistrate First Class; Civil Judge (Senior Division) / Chief Judicial Magistrate, with at least four years of service shall be eligible to be appointed as a District Judge."

11.44 CALCUTTA HIGH COURT :

Art. 233 :

(2) " A person shall only be eligible to be appointed as a District Judge if he has been for not less than seven years as an advocate or pleader or a member of the Subordinate Judicial Service and is recommended by the High Court for appointment."

11.45 ALLAHABAD HIGH COURT :

Art. 233 :

(2) "A person having total 7 years experience at Bar or Judicial Service or both shall be eligible to be appointed as District Judge and who is recommended by the High Court for appointment."

11.46 Bihar Judicial Service Association :

Article 233 (2) be amended by deleting the word " not already in service".

11.47 All India Judges’ Association :

Art. 233 :

"(2) Appointment of District Judges :

A person shall not be appointed a District Judge unless -

a) he has worked at least for 7 years in any State Judicial cadre or as a Law Officer, within the territory of India;

or

b) he has been an Advocate for 7 years;

c) his total tenure of work under clauses (a) & (b) has been for 7 years."

11.48 West Bengal Judicial Service Association :

Art. 233:

(2) "That a person already in the service or not of the union or the State shall only be eligible to be appointed as District Judge if he has been for not less than 7 years a Judicial Officer or an Advocate or a Pleader or both a Judicial Officer and an Advocate or Pleader on the recommendations of the National Judicial Service Commission."

11.49 Karnataka State Judicial Officers Association :

Art. 233 :

(2) "A person shall not be qualified for appointment as a District Judge unless he is in Judicial Service of the Union or State and has worked for not less than 3 years in the cadre of Civil Judge (Senior Division) and is not less than 40 years of age."

CONCLUSION :

11.50 We have given our anxious consideration to the views and comments expressed by the respondents to our Questions 8.3 and 8.4.

11.51 The majority of the High Courts and the Service Associations barring a couple of them are for giving an opportunity to the Service judges for direct recruitment of District Judges. Even, some of the Governments are in favour of such a move. The reasons given in support of the proposal are that it would promote efficiency, improve discipline in judicial service and make the officers to work more efficiently, diligently and sincerely.

11.52 We are highly impressed by the reasons given by the High Courts of Allahabad, Bombay, Punjab & Haryana and All India Judges’ Association. If meritorious young blood should be introduced in the mixed cadre, there is no reason why merited serving judges should be excluded from consideration for direct recruitment. In such selection the High Court will have an opportunity to assess the merit of serving judges as against the merits of the competent advocates. The Bombay High Court has rightly observed that the High Court in such selection will have an added advantage of assessing the service judges on the basis of their work and confidential records.

11.53 We agree that if an opportunity is afforded, it would make the Officers to work more efficiently, diligently and sincerely.

11.54 We do not understand why such an opportunity should create indiscipline, heart-burn and jealousy amongst the judicial officers as the Karnataka High Court has stated. We are equally unable to appreciate that it may lead to frustration amongst the Seniors who are not selected for direct recruitment as indicated by the Delhi High Court.

11.55 It may be noted that we are not recommending for accelerated promotion to Service judges. The accelerated promotion to a junior judge may lead to heart-burn and jealousy in the Service. Though we have formulated a question on that aspect and though some of the High Courts and Associations are in favour of introducing the system of accelerated promotion, we do not consider it desirable to have that system since it is likely to lead to bitterness and jealousy amongst the officers.

11.56 The Commission considers that if an opportunity for direct recruitment is afforded to inservice judges, it would, to a great extent, remove the frustration which is presently dogging them. Such an opportunity would add lustre to their career and enable them to outshine with their merit, hard work and sincerity.

11.57 The contention urged by the directly recruited District Judges that those who have got the promotional channel should be allowed to make a move only through that channel does not sound to reason. In All India Administrative Service, there is no bar for any person in any service for applying, subject to the age prescribed. It is a common experience that many of the successful IAS and IPS candidates initially belonged to one or the other service.

11.58 The Commission, therefore, considers that it is reasonable and also necessary to provide eligibility for service judges for direct recruitment of District Judges.

11.59 As seen earlier, some of the High Courts have suggested ten years of minimum service to earn eligibility for consideration for recruitment of District Judges.

11.60 Patna High Court has suggested 10 years of such service. Gujarat High Court requires seven years of experience. Punjab & Haryana High Court also wants minimum seven years of service.

11.61 The High Courts of Calcutta and Allahabad have suggested seven years of minimum experience but that seven years should be inclusive of the antecedent practice as advocate or pleader.

11.62 Bombay High Court has suggested minimum of four years judicial service; perhaps, against the background that the minimum practice at the Bar for entering the judicial service is three years and both put together would be seven years. But it may be noted, the Civil Judge (Junior Division) with four years service may not get adequate exposure and may not get any opportunity for trial of serious Criminal cases and Civil suits involving high stakes.

11.63 Apart from that, it is not correct to tag on the Bar practice with Judicial experience for direct recruitment of District Judges. Such Bar practice will count for initial entry into judicial service and it is not proper to give the benefit of it again for the same officer, while seeking appointment as District Judges.

11.64 In this context, reference may be made to Clause (2) of Article 217 of the Constitution. It reads as under:

"(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a Citizen of India and -

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession."

11.65 In computing the period of judicial office held by an officer his antecedent practice at the Bar is not to be counted. On the same line of reasoning, the antecedent Bar practice should be excluded for Judicial Officer to earn eligibility for direct recruitment of District Judges.

11.66 The Clause (2) of Article 233 provides that an Advocate or a Pleader must have minimum 7 years of practice to become eligible for appointment as District Judge. If we consider that a Judicial officer is to be made eligible for direct recruitment as District Judge, he must have also a minimum of 7 years of service. We cannot apply different yardstick. The same yardstick must be used for Advocates as well as inservice judges.

11.67 We accordingly suggest that Clause (2) of Article 233 be substituted with the following clause:

Art. 233

(3) A person shall be eligible to be appointed directly as a 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."

11.68 We propose to recommend age limit between 35 years and 45 years for Advocates to apply for direct recruitment. The same age limit shall also be prescribed to service judges for seeking direct recruitment as District Judges.

11.69 We request the Central Government, all High Courts, State Governments, Administration of Union Territories to take immediate action for amending Clause (2) of Article 233 as indicated by us.

* * * * *

12. PRINCIPLES RELATING TO INTER-SE SENIORITY BETWEEN DIRECT RECRUITS AND PROMOTEES

IN THE CADRE OF DISTRICT JUDGES

12.1 In Service, the ranking of an Officer in the seniority list is determinative of his future career prospects. It is an index to attain one's reasonable aspirations and expectations. It should not, therefore, be kept fluctuating. The fluctuating ranking would seriously tell upon the nerves of the affected Officer. As far as possible, it must be kept certain and free from dispute.

12.2 But unfortunately, in most of the States, the inter-se ranking in the seniority list of direct recruits and promotees in the cadre of District Judges has always been the subject matter of controversy. It has been a vexed question for the High Courts and to the service personnel. It has, in fact, created bad blood with acrimonious debate between the two classes. It has affected even their performance in the administration of justice.

12.3 The Commission considers that in the interest of promoting efficiency in the administration and to bring about harmony amongst the Officers, it is necessary to identify the causes and suggest remedial measures. With this object in mind, the Commission invited the views and com ments from all concerned by specifically framing the following question in its Main Questionnaire:

"Question No.9: LITIGATION ON INTER-SE SENIORITY:

In some States / UTs, there is a lot of litigation between the direct recruits and the promotees on the question of inter-se seniority. Why such litigation has arisen? Please suggest the remedial measures to avoid such litigations."

12.4 The Commission has received a variety of comments and suggestions from the High Courts, State Governments, Judicial Officers' Associations and from some retired Judges. We may refer to them chronologically on State-wise basis with the prevailing Seniority Rule.

ANDHRA PRADESH :

12.5 The High Court informs that some times recruitment from the Bar is delayed for long period and the promotions are made from the judicial service on temporary basis, but continued for long periods. When direct recruitment takes place later, it creates problem in fixing inter-se seniority which leads to litigation between the two groups. Same view has been expressed by Andhra Pradesh Judicial Officers' Association.

12.6 The Relevant Seniority Rule 6 of the Andhra Pradesh Higher Judicial Service Special Rules, 1958 states:

"The seniority of a person appointed to category-II shall be determined with reference to the date from which he was continuously on duty in that Category."

NOTE : Category - I : District and Sessions Judges - Grade I

Category - II : District and Sessions Judges - Grade II

ASSAM & TRIPURA :

12.7 According to High Court, there are litigations on disputes regarding fixation of inter-se seniority between the two classes. But no details of such disputes have been furnished to the Commission.

12.8 The Relevant Seniority Rule 12 of the Assam Judicial Service Rules, 1967 as amended by the (Amendment) Rules, 1995 reads:

"12(1) The seniority, interse of the member of Grade I and II of the service shall be determined by the Governor in consultation with the High Court."

12.9 Similar Rule has been framed by Manipur, Meghalaya and Nagaland.

BIHAR :

12.10 The High Court states that the litigation takes place between direct recruits and promotees due to bulk appointments made from the Bar after a gap of several years. Such bulk recruitment from the Bar created imbalance in the cadre. The seniority is determined from the date of initial appointment. When a large number of appointments are made at one go from one source, such appointees become seniors as a big block marring future prospects of promotees.

12.11 Relevant Seniority Rule 16 of the Bihar Judicial Service Rules, 1951 reads:

x x x x x x x x x

"16(e) Seniority of direct recruits vis-à-vis promoted officers shall be determined with reference to the date from which they may have been allowed to officiate continuously in posts in the cadre of the service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility in or outside the cadre.

"Provided that when a direct recruit and a promoted officer are appointed on the same date, the promoted officer shall be senior to the direct recruit."

DELHI :

12.12 The High Court of Delhi states that there is litigation between direct recruits and the promotees pending in the Supreme Court and the matter is thus subjudice. By stating so, the High Court has conveniently avoided giving the causes of such disputes and suggesting remedial measures.

12.13 There are three Associations in Delhi Judicial Service:

I. DELHI HIGHER JUDICIAL SERVICE ASSOCIATION (REGD.) DELHI:

12.14 This Association appears to have been formed recently. It represents Direct Recruits to the Higher Judicial Service of Delhi.

12.15 On Question No.9, the Association states inter-alia; that the litigation between direct recruits and the promotees has occurred on account of not filling up the posts of direct recruitment in time, while the promotions are made immediately as and when the vacancy occurs. Promotions are also made on an ad hoc basis / temporary basis against the posts earmarked for direct recruitment. The persons who are promoted want to retain their positions to which they have no right. To legitimatize such claims, they indulge in litigation to deny the rights of direct recruits.

12.16 This Association suggests among others, the following remedial measures:

(a) the seniority of officers should be decided immediately without any further delay. It is said that in Delhi the inter-se seniority has not been decided for the last more than 20 years which itself is a cause of dispute.

(b) the recruitment to a post falling vacant should be made as expeditiously as possible and not later than three months.

(c) Accountability should be fixed on a person / authority who has failed to act promptly in the above regard.

II. DELHI HIGHER JUDICIAL SERVICE ASSOCIATION:

12.17 This Association represents promotee Officers.

12.18 To the aforesaid Question No.9, the Association traces the history of certain litigations between the direct recruits and the promotees starting from the writ petition of O.P. Singla's vs. Union of India which was decided by the Supreme Court in 1984 and follow-up action taken by the High Court.

12.19 According to them, problems however continue. Many of the Officers get promotion long after 22 years of service. Recently some Officers got early promotion due to expansion of the cadre of Delhi Higher Judicial Service and not because of any improvement in service conditions. The expansion of the cadre has resulted in induction of more direct recruits of younger age. As long as this system of rota and quota is continued, the rota quota rule can never be worked out satisfactorily. The seniority determined by rotation of quota becomes "meaningless concept" for promotees. The interest of both sections can be protected by applying rota quota rule at the stage of grant of selection grade and elevation to the High Court and not at the stage of induction.

III. DELHI JUDICIAL SERVICE ASSOCIATION (REGD.):

12.20 This Association purports to represent all cadres in the Judicial Service.

12.21 Their response to the Question No.9 is as follows:

The litigation between direct recruits and the promotees in most of the States is as a result of incorrect observance of the service rules by the High Courts as well as by violating the terms of Rules. The Rules too are most harsh, oppressive and unjust as they are based on concepts of administrative or executive class of service, which yield undesirable results in judicial service.

12.22 They suggest that the date of actual appointment to higher post should govern the seniority of judges and giving of seniority from an anterior date when the post was available is extraneous and irrelevant consideration and is in bad faith. The Service Rule which permits and perpetuates such practice should not be followed and be amended. The evil effect of the present Rule is that it makes service judges of long years of experience junior to those judges who are appointed much later and who are much younger in age as well as experience. In fact, such persons who join later on from the Bar, have started their practice and gained experience only by practising before those very judges who are now rendered juniors to them.

12.23 In the alternative, this Association suggests that there should be equal and equitable distribution of all service benefits like selection grades, deputation and elevation to High Courts between direct recruits and promoted judges in the ratio of 1: 2, which will take the rule of rotation to its logical end.

12.24 Their complaint is that even though the post becomes available in the quota, yet the promotions are not given till the recruitment from the Bar is made and this has created great hardship to the promoted judges.

12.25 The Relevant Seniority Rule 8 of the Delhi Higher Judicial Service Rules, 1970 provides:

8(1) xxx xxx xxx

(2) The seniority of direct recruits vis-à-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on."

GOA :

12.26 The Judiciary of the State is under the control of the High Court of Bombay.

12.27 The Bombay High Court states that to avoid inter-se seniority disputes (or litigation) between the promotees and the direct recruits, the Commission should formulate clear rules regarding recruitment and promotion.

12.28 The Government of Goa is of the view that there should be a roster between the promotees and direct recruits and first place should go to promotees.

12.29 The Goa Judicial Officers' Association suggests that a roster should be replaced and the date of appointment should be the criteria for fixing the seniority, be it by promotion or by direct recruitment to avoid unnecessary litigation regarding seniority.

GUJARAT :

12.30 High Court has referred to two writ petitions of District Judges pending in the High Court claiming parity of scales with the City Civil Court Judges and another filed by superseded Assistant Judge. But both of them are not concerned with the inter-se seniority of direct recruits and promotees. The City Civil and Sessions Judges and the Gujarat Judicial Service Association however, state that there are petitions pending in the High Court between the direct recruits and the promotees on the question of inter-se seniority. Probably, it has escaped the attention of the High Court.

12.31 The Gujarat Judicial Service Association which represents all Judicial Officers of the State is of the opinion that litigation on inter-se seniority arises because of non-fixation and / or incorrect fixation of seniority by the High Court. According to them, the seniority should start from the date of appointment and not from the date of vacancy arising.

12.32 The State Government suggests for framing of specific rules for fixing inter-se seniority between the direct recruits and the promotees. The Government also favours the fixation of seniority with reference to the date of appointment.

12.33 The Inter-se seniority between the direct recruits and Service promotees in the cadre of District Judges is determined on the basis of the report dated 4-12-1998 submitted by the Committee of Hon'ble Judges, which has been accepted at the Full Court meeting of the High Court held on 21-4-1999 which provides as follows:

"The practice followed is that the promotees and direct recruits get their seniority only when they are posted against the substantive posts of 50% reserved for each category. The service rendered by promotees posted in direct recruitment vacancies, or in posts in excess of the promotees quota will not get seniority."

HARYANA :

12.34 Punjab & Haryana High Court admits that there are litigations between the direct recruits and the promotees even though seniority between the two classes has been fixed according to Rule 12 of the Punjab Superior Judicial Service Rules of 1963.

12.35 The Haryana Civil Judges' Association states that the cause of the dispute between the direct recruits and the promotees lies in the manner of giving the seniority for direct recruits over the promotees. They indicate that promotees should be made senior to the direct recruits.

12.36 The Haryana State Judges' Association is another Association representing the Additional District & Sessions Judges of Haryana. This Association is of the opinion that there is a transparent bias against the promotees in the matter of fixation of seniority.

12.37 The relevant extract of the Rule 12 of the Punjab Superior Judicial Service Rules 1963 provides:

" The seniority inter-se of the members of the service shall be determined by the length of continuous service on a post in the service irrespective of the date of confirmation:

Provided that in the case of two members appointed on the same date, their seniority shall be determined as follows:-

i) In the case of direct recruits, the member older in age shall be senior to the younger;

ii) A member recruited by direct appointment shall be senior to a member recruited otherwise;

iii) In the case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted."

HIMACHAL PRADESH :

12.38 The High Court and State Government say that there is not much litigation between the direct recruits and the promotees on the question of inter-se seniority.

12.39 Shri Ravinder Parkash, Senior Sub-Judge-cum-CJM, Kulu, Himachal Pradesh has set out some reasons for the inter-se seniority disputes. He says the Rules are faulty. The direct recruitment is not made at the appropriate time when the post falls vacant. The principles of rota and quota are causing great hardship. The direct recruits are some times appointed 3-4 years after the ad hoc promotions but they are given seniority over the promotees on the basis of rota quota rule. This practice leaves behind heart burn amongst the Judicial Officers who after rendering service of 15 to 20 hears are made junior to persons who are appointed before 3-4 years. The best method to avoid such litigation, he says, is that the seniority should be fixed only from the date the Officer joining duty.

12.40 The relevant Rule 12 of Himachal Pradesh Higher Judicial Service Rules, 1973 provides:

"The seniority, inter-se, of the substantive members of the service, whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation.

Provided that the seniority, inter-se, of substantive members of the service having the same date of confirmation shall be determined as follows:-

(i) in the case of direct recruits, the older in age shall be senior to the younger;

(ii) in the case of promoted officers, in accordance with the seniority in the Himachal Pradesh Judicial Service as it stood immediately before their confirmation;

(iii) in the case of promoted officers and direct recruits, the older in age shall be senior to the younger."

JAMMU & KASHMIR :

12.41 The High Court is of the view that much litigation as to inter-se seniority between the direct recruits and the promotees could be avoided if a specific and comprehensive rule is made.

12.42 J & K Judicial Service Association also shares this view.

12.43 The relevant extract of the Seniority Rule 17 of Jammu & Kashmir Higher Judicial Service Rules, 1983 reads:

"17(2) As between direct recruits and promotees, the seniority shall be determined with reference to the date of their appointment in the cadre; provided where the promotee and direct recruit are appointed on the same date, the promotee shall rank senior to the direct recruit."

KARNATAKA :

12.44 The High Court appears to be more frank in this regard. It is stated that litigation has arisen in view of delay in filling up vacancies arising out of the quota reserved for direct recruits. The High Court suggests that litigation between direct recruits and the promotees on the question of inter-se seniority can be avoided by fixing and counting the seniority from the date of entry into the cadre, i.e. the date of taking charge in the case of promotees and the date of joining duty in the case of direct recruits.

12.45 Karnataka State Judicial officers' Association states that the problem of inter-se seniority has arisen on account of recruiting District Judges who are relatively young. Recruitment is made some times in large numbers at a time thereby blocking the seniority of promotees. According to them, this problem may be remedied by restricting the number of appointments by direct recruitment.

12.46 The State Government identifies the reasons for such litigation. It is due to not adhering to the quota between the direct recruits and the promotees and the process of direct recruitment taking a long time and often taking years. Another reason given by the State Government is that normally promotions are made in excess of the quota and when the excess promotees are pushed down upon direct recruitment, it leads to litigation.

12.47 Justice D.M. Chandrasekhar, Former Chief Justice, High Court of Karnataka and Justice P.P. Bopanna (Rtd.) are for determining the inter-se seniority from the respective dates of appointments to the cadre, whether by promotion or by direct recruitment.

12.48 The relevant extract of the Karnataka Government Servants' (Seniority) Rules, 1957 states:

"Rule 2. Subject to the provisions hereafter contained, the seniority of a person in a particular cadre of service or class of post shall be determined as follows:

(a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post.

(b) The seniority inter-se of Officers who are confirmed shall be determined according to dates of confirmation, but where the date of confirmation of any two officers is the same, their relative seniority will be determined by their seniority inter-se while officiating in the same post and if not, by their seniority inter-se in the lower grade.

(c) Seniority inter-se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same, the seniority inter-se in the lower grade shall prevail.

xxx xxx xxx

3. Where officers are recruited to any service or a class of post by promotion and by direct recruitment, the officers directly recruited will take precedence over the promoted officers in case where the date of appointment is the same."

KERALA :

12.49 The High Court of Kerala has not given their comments on Question No.9. The State Government is no better. The State Government is not aware of any litigation regarding the inter-se seniority between the direct recruits and promotees.

12.50 There are two Associations: (1) Kerala Judicial Officers' Association (Registered) and (ii) Kerala Magistrates (Judicial) Association. The reason given by the former is not relevant for our purpose. The latter states that the seniority of direct recruits and of promotees should be determined with reference to the respective dates of appointments of each of such candidates.

12.51 The Rule regarding Seniority provides:

"6. Seniority (1) The seniority of a person appointed either to category (1) or category (2) shall, unless he has been reduced to a lower rank as punishment, be determined with reference to the date of the order of his first appointment to the said category:

Provided that the seniority of a person appointed to category (2) prior to 1st January 1979 shall be determined with reference to the date from which he was appointed to the category otherwise than as a temporary basis, without being subsequently reverted from the post.

(2) If two or more persons are appointed by the very same order either to category (1) or to category (2), their inter-se seniority shall be determined by the serial order in which their names appear in the appointment order."

(Note: Category (1) - Selection Grade District and Sessions

Judge.

Category (2) - District and Sessions Judges (including

Addl.District and Sessions Judge).

MADHYA PRADESH :

12.52 The High Court of Madhya Pradesh appears to have misunderstood the Question No.9. By way of answer to that question, it has simply asked the Commission to refer to Rule 11 of the Madhya Pradesh Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994.

12.53 Madhya Pradesh Judges' Association has also asked the Commission to refer to the said Rule 11. We think one has copied the answers of another.

12.54 According to the Madhya Pradesh Judicial Officers' Association, the root cause for the litigation between direct recruits and the promotees on the question of inter-se seniority is due to stagnation, frustration and nepotism on the part of the Recruiting authority.

12.55 The State Government has, however, stated that there are clear rules regarding the fixation of inter-se seniority list and, therefore, the problem is not felt in their State.

12.56 Mr. P.V. Namjoshi, Director, Judicial Officers' Training Institute, Jabalpur, appears to be the only person in Madhya Pradesh who has applied his mind carefully to this thorny problem. In his Memorandum to the Commission, he states:

"In Civil Service, whenever a Deputy Collector is promoted as an Officer of the Indian Administrative Service, his inter-se seniority is determined on the basis of total length of service rendered by him and not from the date of his promotion. For example, if he happens to be in the State Civil Service for a continuous period of 21 years, he would get a weightage of seven years over a member directly recruited to the cadre. The same formula should be made applicable mutatis mutandis to the Members of the Higher Judicial Service."

12.57 The relevant extract of the Service Rule regarding Seniority reads:

"11. Seniority: (1) The seniority of a person appointed to a post in Categories (a), (b), (c) and (d) of Rule 3 (1) shall, unless he has been reduced in rank on account of punishment, be determined in accordance with:

(a) the date of continuous officiation in the service in case of officers promoted to category (a).

(b) the date of order of appointment in the case of direct recruits to post in category (a) (i) and

(c) the date of order of promotion to categories (b), (c) and (d) respectively or such date as may be specified in this regard by the High Court;

Provided that where the date of continuous officiation in the case of a member promoted to a post in category (a) (i) and the date of joining the service in the case of direct recruit to the post in the same category, be the same, the promoted officer shall be treated as senior;

Provided, however, that seniority inter-se among the persons promoted by an order of the same date or among direct recruits appointed by an order of the same date shall follow the order in which their names have been recommended by the High Court."

Note:

13.1 INTRODUCTION

13.1.1 After a long period of relative neglect and low priority, judicial education holds out the promise of organized action in the coming years at the hands of the authorities in India. The decision of the First National Judicial Pay Commission to give the subject the attention it deserves while recommending the restructuring of the status and service conditions of what the Constitution of India calls the "Subordinate Courts" (Chapter VI, Articles 233-237) is a welcome development not only for the institution but also for the litigant public. The immediate provocation for the initiative came from a 1992 judgment of the Supreme Court in All India Judges' Association V. Union of India & Others (AIR 1992 SC 165) reiterated in another judgment on a Review Petition in 1993 (AIR 1993 SC 2493). Chief Justice Ranganatha Misra who wrote the judgment on behalf of himself, Justices A.M. Ahmadi and P.B. Sawant said :

"One of the claims advanced before us was for provision of inservice training for judicial officers. This we consider as a must ... We are of the view that inservice institutes are indispensable for the upkeep of the efficiency of judicial service. We direct that an All India Institute of Inservice Training for higher officers of the judiciary including the District Judges and a State level institute for training of the other members of the subordinate judiciary within each of the States and Union Territories or one common institute for more than one State or Union Territory should be set up within one year from now and at any rate not later than December 31, 1992. This has to be organized by respective High Courts" (emphasis added).

It is refreshing to note that claim for in-service training came as a demand from the judicial officers themselves in their petition before the Supreme Court. They must have experienced how the lack of such training affected their capacity to perform better in their judicial and administrative functions.

13.1.2 The Supreme Court did consider the item as a priority issue and mandated the setting up of two sets of judicial training institutions - one for higher judicial officers including the District Judges at the all India level and another for State/Union Territory at the State or regional levels - by the end of 1992 and imposed the organizational responsibility on the High Courts. Six years later, the scheme has not taken off from the drawing board stage. Hopefully, the High Courts which have been given the responsibility will now act on the basis of the Report of the National Judicial Pay Commission and ensure that the institutes are in place at least in beginning of the next millenium which incidentally is just two years away.

Law Commission Recommendations :

13.1.3 The need for raising the competency of judicial officers for better performance of the judicial system was highlighted by several reports of the Law Commission of India beginning with the Fourteenth Report (Reform of Judicial Administration, Volume I, Chaper-9, Subordinate Judiciary) in 1958. The report said :

"The problem of efficient judicial administration, whether at the level of the superior courts or the subordinate courts, is largely the problem of finding capable and competent judges and judicial officers. Delays in the disposal of cases and the accumulation of arrears are in a great measure due to the inability of the judicial officers to arrange their work methodically and to appreciate and apply the provisions of the Procedural Codes ... However, well framed the substantive law and carefully designed the procedural law, the proper application and working of these laws lies largely in the hands of the officers presiding over the courts. Even if these laws were perfect, we would need adequately trained and capable judicial officers to apply and administer them. Without such personnel, administration of justice can never be satisfactory". (p.161).

13.1.4 Reiterating the increasing importance of training to judicial officers, the Setalvad Commission report added : "... Not only has the volume and variety of the work increased but the pace at which a munsiff has to perform his duties has quickened. Unless a young officer is given the proper training, he is likely to acquire by reason of his inexperience, un-businesslike habits which he may find it difficult to shed later on and which may prevent him from becoming an efficient judge. A certain amount of training in the administrative work of a court is also essential to a fresh entrant into the service from the Bar, if he is not to be at the mercy of his office clerks" (p.178).

13.1.5 The Fifty-fourth Report of the Law Commission in 1973 further emphasized the subject and recommended the immediate setting up of a National Academy for Judicial Training. It said :

"Even at the cost of repetition, we wish to emphasize that the success of any system, and particularly the judicial system depends on the men who work the system...Successful completion of the training should be a condition precedent to confirmation of appointment in the judiciary".

13.1.6 Keeping in mind the changed role of judges in the independent Republic of India, the Gajendragadkar Commission added : "The subjects to be included should be such as to deal with the relationship of law to other social sciences, including, in particular, economics and sociology. The emphasis should not be on technical law or procedure, but on law as a part of an inter-disciplinary study and on the application of the law to the facts of a particular case....A subject of importance is the effect of social change on legal institutions..".

13.1.7 It is in the light of the jurisprudential view of the judicial role that judicial training should be organized. "The law is predominantly an instrument of social engineering in which conflicting pulls of political philosophy, economic interests and ethical values struggle for recognition. This struggle has to be viewed against the background of history, tradition and development of legal techniques. A working knowledge of those disciplines is therefore essential". (p. 332-333, 54th Report).

13.1.8 The One Hundred and Seventeenth Report of the Law Commission is devoted entirely to the subject of training of judicial officers (November 1986). The report found, quoting approvingly the comment on the American judicial system by the then Chief Justice of that country, "... In the final third of the century, we are still trying to operate courts with fundamentally the same basic methods, the same procedures and the same machinery which Roscoe Pound found were not good enough" even at the turn of the century a hundred years ago ! As Lord Devlin said of the British Justice System, "If our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back". The Law Commission Report therefore concluded that the "updating of the knowledge and skills can hardly be left to the voluntary effort of individual judges.." It is conceded that training can significantly upgrade the capability of everyone called upon to perform a duty. It is all the more so in the case of judicial officers, because sociology of law is acquiring new and added significance in the development of the society". (p. 2 of 117th Report).

13.1.9 The importance and urgency of pre-service and in-service training for judicial officers have again been reiterated in the 114th Report on Gram Nyayalaya (participatory justice at the grassroot level) and the 116th Report in which the Commission recommended the scheme for an all-India Judicial Service.

13.1.10 It is thus beyond doubt that there is an imperative need for organized programme of judicial education and training not only at the time of selection and appointment, but on a continuing basis during service. It is also clear that the primary reason for judicial delays, repeated appeals and legal uncertainties, inter alia, can be traced to the lack of required competence in terms of updated knowledge and skills on the part of judicial officers at several levels of the system. In short, there is no substitute to organized and appropriate training on a continuing basis which requires priority attention in the judicial reform agenda. The occasion of the introduction of all-India Judicial Service should provide the opportunity for a meaningful, nation-wide programme of judicial education to prepare the system to respond to the challenges of the next millenium with competence and confidence.

13.2 THE FUNCTION OF THE JUDGE

13.2.1 The nature and scope of judicial education depends upon the function of the judge in a given society. Broadly speaking, the function of every judge, trial or appellate, is to decide the cases brought before him according to law and in a manner accepted by society as just, fair and reasonable. The credibility and legitimacy of judicial decisions depend not only on its merit and soundness in law, but also on public perception of impartiality and objectivity of the procedure adopted by the judge. This is a delicate task which judges have to internalise when they assume the role of judging.

Organizing a fair trial and determination of facts :

13.2.2 This report looks at only the functions of a trial or an appellate judge in the "Subordinate Courts". The most important of his function is to conduct the proceedings in a fair, orderly and dignified manner. Finding the truth of contested issues of fact is the first concern of a trial judge. Based on facts ascertained, the judge is to apply the law and give his decision on guilt, liability etc. For ensuring "fairness" in truth ascertainment and minimising subjectivity in the process, procedural law gives rights and privileges to litigants, witnesses and officers of court. It is the function of the judge to give maximum protection to these rights and privileges of parties so that justice is not only done but appears to have been done. This is a function which demands a variety of skills on the part of the judge besides knowledge of law. A judge's personality and values influence his decisions and the atmosphere he creates in the courtroom. His body language and tone of voice, his reactions to witnesses, his interaction with others in the courtroom, his manner of ruling on objections, his treatment of advocates all affect public perception of the fairness of the trial.

With the introduction of new technologies and changes in law, the judge is confronted with continuing challenges of court management, litigational efficiency and judicial balance in the conduct of trial of civil and criminal cases.

13.2.3 The judges at the primary level also have the responsibility to critically evaluate pleadings, settle issues, handle interlocutory applications and manage introduction of evidence by parties to the dispute. In the process, he may issue commissions and invoke methods of alternate resolution of the disputes before him. The judge has to rule on evidentiary contests on admissibility, relevancy and probative value. He must be able to appreciate evidence, assess the credibility of witnesses, and determine facts on the basis of preponderance of probabilities. A judge is expected to be an expert in all areas of the law, though as a lawyer he might have specialised in one or two branches of law only. All these demand knowledges and skills of such range and variety which perhaps no other profession requires from a practitioner. At the same time the facilities and support services available to him are so limited and archaic which make his task all the more difficult and challenging.

Writing Judgments :

12.2.4 On ascertaining facts and after receiving arguments on behalf of parties, the judge has to perform the most important function of delivering judgment on which his credibility and acceptability are determined by the legal community, the parties and the society at large. Judicial reasoning is both an art and a science to be cultivated by every judge by study, reflection and hard work. His competence in language and communication is critical for this task. Complex factual situations have to be analyzed and important legal principles have to be explained to avoid possible conclusions contrary to his own. The judge must be able to put it in such a way that even if the matter goes on appeal, the appellate judge should find it persuasive enough to go by the finding of the trial judge.

Sentencing and Calculation of Damages :

13.2.5 In criminal proceedings the judge has to perform another important function of awarding an appropriate sentence to the guilty. With better understanding of the varied goals of punishments and the nature of human behaviour, the sentencing function has assumed a critical role in criminal justice administration. Similarly the calculation of money damages in a civil court is not that easy as generally believed.

Human Rights Observance :

13.2.6 The emergence of human rights in its varied dimensions in substantive and procedural laws makes varying demands from the trial judge particularly in criminal trials, environmental adjudication, family dispute settlements, juvenile justice and labour relations litigation. The trial judge has to have an abiding interest and wholesome understanding of human rights jurisprudence as developed by international instruments and Constitutional law.

Judge as a Manager of Men and Events :

13.2.7 Finally, the judge has to be an able administrator to be able to move things in a culture in which inaction and delay have been entrenched habits in judicial administration. He has to manage the docket and the ministerial staff intelligently and imaginatively through continuing interaction, motivation, supervision and leadership. He has to keep the bar in good humour with a message of firmness and impartiality. He has to strive for excellence in his job and earn the reputation of being a "good judge".

Functional Skills Needed :

2.8 The judicial function thus is a challenge to everyone who occupies that office. To be able to respond to such a noble assignment of dispensing justice efficiently and impartially, a trial judge, inter alia, has to improve his knowledge and skills on :

(a) the concept and concerns of a fair trial and its operational parameters.

(b) the concept of a fair judge, an activist judge, a firm judge.

(c) the methods of fact-finding in judicial proceedings.

(d) the art of judgment writing.

(e) the science of sentence determination and damages calculation.

(f) management of court proceedings in a fair, dignified, orderly manner.

(g) management of case flow, information, accounting records, court staff, media, etc.

(h) updating knowledge of human rights jurisprudence and emerging areas of litigation brought about by technological changes.

(i) improving professional skills and ethics.

(j) changing social order and democratic governance under rule of law.

2.9 Each one of these items calls for a fund of related knowledges which require inputs from social and forensic sciences, management science, information technology etc. This cannot be had by individual initiatives alone from amidst the daily routine of a judge. Hence the need for scientifically organized and constantly improved system evaluation and training on a continuing basis.

13.3 FUTURE ROLE OF JUDGE AND TRAINING NEEDS

13.3.1 The role of a judge is by and large determined by the nature and variety of his functions. The conventional functions are assuming new dimensions with the expansion and diversification of judicial assignments and changes in the expectations of society. Technological changes do also impact on judicial functions. Thus, on the eve of the third millenium, the role of a judge in the secular, socialist, democratic, republic of India in which one-sixth of the human race inhabit is likely to assume changes of far-reaching significance and complexity not totally comprehensible at present. The perception of justice itself is changing in contemporary times. There are a number of myths and mysticisms around the office of judgeship, perhaps deliberately developed over the centuries, which are increasingly being questioned on grounds of relevance, utility and legal benefits. Privileges and immunities of judges are being re-examined in terms of relationship to independence and accountability.

13.3.2 Reflecting on the role of the judge, The Hon. Judge Sandra E. Oxner, President of the Commonwealth Magistrates' and Judges' Association wrote :

"The all powerful and righteous judge became exposed by the spotlight of contemporary media scrutiny as a human being subject to all human frailties.

"The general public disillusionment with official office holders coupled with the lingering respect for the judiciary from a time when the judge and her behaviour were protected from public scrutiny combine to create an expectation of a very high standard of judicial conduct in and out of court. While the expectation is not misplaced, the burden it places on a judge is such that a support system of advice and collegiality must be in place to allow the judge to live up to these expectations and not inadvertently bring the administration of justice into disrepute. The establishment of ethical standards of conduct and collegial discussions of specific problems will assist the judge in ordering her affairs and conduct in such a way as to maintain the public trust and better withstand the searing light of media scrutiny...

"It is important that lines of communication are open between the media and the judiciary.. This analysis of the role of a judge points up the need for judicial support through education in the following various fields; the principle and practice of the independence of the judiciary; accountability to the public; judicial ethics and conduct; sensitivity training in contemporary social issues; gender, aboriginal, ethnic, and other disadvantaged groups sensitivity training; and Media-Bench relations". (Report of the Tenth Commonwealth Magistrates' and Judges' Conference, Victoria Falls, Zimbabwe, August 1994, p.137).

Socialisation of a New Judge :

13.3.3 The expectations, perceptions and dilemmas of the judge's role contribute to the individual's transition from lawyer to judge. This transition takes months or years to complete. It is a major change in which the new judge has to keep distance from lawyer friends developed over years of law practice and a network of judicial colleagues has to be painstakingly evolved. The new role substantially changes the perspective from which one views the trial, the law, the profession, justice in society and dynamics of rule of law.

13.3.4 "The Judge's Book" a valuable handbook prepared by the National Judicial College and the American Bar Association and widely circulated among judges in U.S.A. and outside, quotes a study of the socialisation process to describe the transition in the role of a new judge. This study finds that "there are four steps to the socialisation of a judge and that moving through all the steps takes at least fifteen years of judicial service. The first of these steps, Professional Socialisation, occurs in the period before a person becomes a judge, and includes law school, legal practice experiences, and other career-related experiences. The second step, Initiation and Resolution, includes the first five years on the bench. During this period the judge undergoes an initial adjustment and self-concept change in trying to define his or her role as a judge. Towards the end of this stage there is a resolution of role conflicts, and a transition to the decision to remain on the bench. The third step, Establishment, covers years six through fifteen on the bench. During this stage the role of the judge changes from that of altruist and legalist to guardian of the law, as another role definition and resolution of conflict occurs within the judge. The final step, Commitment, begins when the judge has served on the bench 15 or more years. During this final stage, there is an increased commitment to the bench, marked by a satisfaction with judicial life. The new judge would do well to consider these findings and to be thereby forewarned of what lies ahead". (Alpert, Atkins and Ziller, "Becoming a Judge : The Transition from Advocate to Arbiter" 62 Judicature 325 (1979) quoted in The Judge's Book, Second Edition, The National Judicial College, Nevada, Page 9).

Qualities of a Judge :

13.3.5 The essential qualities of a good judge are listed in the Judge's Book as follows:

(a) Graciousness : A trial judge should cultivate the ability to be gracious and to listen attentively to the parties and their cases. A good hearing is soothing to the soul. So the judge should make it a point to show interest in every case, no matter how unimportant it seems to be.

(b) Moral Courage : A judge should not expect to be popular. He should develop the courage to do justice whatever the consequences.

(c) Reputation for Fairness : This is something one can develop only by actually being fair and giving such an impression to the people concerned. How a judge conducts his or her private life as well as the judge's manner in the courtroom can give the appearance of unfairness even in a judge who is, in fact, fair.

(d) Mercy : A good judge will have the mercy to apply when appropriate.

(e) Patience : It may seem to be a waste of time to listen to extensive arguments on a point on which the judge has made up his or her mind. But judges owe it to the lawyers to listen to their arguments. One object of the adversary system is to afford an opportunity to correct premature judgments which all human minds are prone to form ... There is no more sorry spectacle than a trial judge throwing his weight around. A judge should be dignified and firm but should not be mean.

The confident and enlightened judge frames commands in the form of requests, makes them in a pleasant way, and is respected. The insecure judge shouts orders, which are obeyed but without respect.

(f) Ability to Communicate : A trial judge is a teacher who must learn to transform legal phrases into plain English that can be understood by lay people without jeopardising its legal soundness.

(g) Decisiveness : A judge who does not possess decisiveness should acquire it. Thoughtful consideration is essential, but indecisiveness is inconsistent with judicial responsibility. And having decided, the judge should announce the decision with a show of confidence that it is right.

(h) Honesty and Integrity : These are qualities essential for every gentleman and more so for a person occupying the office of judge. In judges these qualities should be transparent and unquestionable.

13.3.6 The above list is not exhaustive of the attributes of a good trial judge. They illustrate the complex role of a judge which requires mental and behavioural abilities capable of influencing the attitudes of a variety of actors in the court room. In a plural society with institutionalised social inequalities based on gender, religion, language, race and caste, the role of the judge becomes all the more difficult and challenging. This is where the Constitutional philosophy should invariably inform and illuminate the thought and action of every judge particularly operating at the grassroot level.

Judge of the Future

13.3.7 The Judge's Book published by the American National Judicial College contains a chapter on "The Judge of the Future" which succinctly projects the emerging features which will be reflected in the judges of the future. A few excerpts from Chapter 21 of the book are given below :

"Although speculations about the judge of the future bring visions of robotic truth-assessing machines, law dispensing computers, and chemical-test-determined dispositions, human beings, rather than mechanical marvels, will continue to exercise the fine art of judgment for any foreseeable future".

13.3.8 The most visible recent change in the judiciary has been the growing diversity of judges themselves. A look at the law schools of today indicate the demographics of the bench of tomorrow. A growing number of women will occupy judicial offices particularly in trial courts. So also the Dalits, more Backward Classes and minorities who have had historically no representation in the judiciary. Reflecting the make up of the legal profession, the bench will become younger, demographically diverse and less experienced which will make judicial education and training critical factors in future.

13.3.9 Technology is changing the role of the judge. Innovations are allowing traditional tasks to be done more efficiently. Where once the judge heard all aspects of a case, new procedures such as Alternate Dispute Resolution (and Lok Adalats) are helping judges to deal with increased caseloads. Computers, adaptations of sound recording devices and videotaping facilities will quicken the process of trial, management of dockets and production of transcripts, orders and judgments. Many of these technologies suggest the prospects of limiting a judge's personal staff while increasing the number of technical specialists in the court. The personal computer will enormously increase the research and communication capabilities of the judge.

The level of scholarship of future judges is bound to increase with easy access to internet and related facilities. The judge of the future will have a national and perhaps an international perspective.

13.4 SUBORDINATE JUDICIARY : A PROFILE AND

A PROGNOSIS

13.4.1 Prior to the Constitution of India, the position of the subordinate judiciary like appointments, posting and promotion were not exclusively in the hands of the High Courts.

At the Conference of the Judges of the Federal Court and of the Chief Justices of the Provincial High Courts, the position of the subordinate judiciary in relation to the provincial Executive was considered and it was regarded as essential that the members of that service should not be exposed to the extraneous influence of the members of the party in power. It was recommended that provision be made placing exclusively in the hands of the High Courts the power of appointment and dismissal, posting, promotion and grant of leave in respect of the entire subordinate judiciary including the District Judges1.

The above views have been given effect in the recommendations made by the Drafting Committee of the Constitution with certain modifications, and ultimately, a new chapter as Chapter VI of Part VI under the title "Subordinate Courts" has been incorporated in the Constitution.

13.4.2 This Chapter VI of Part VI contains a group of Articles 233 to 237.

Article 233 which is the first Article in this Chapter provides for appointment of District Judges.

The expression "District Judges" has been defined under Article 236(a).

Article 234 provides for recruitment of persons other than District Judges.

1. The framing of India's Constitution by B. Shiva Rao, Select Documents, Vol. IV, p. 186.

Article 235 provides that the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State shall be vested in the High Court.

Under Article 236(b), the expression "Judicial Service" has been defined to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

13.4.3 Judicial service postulates the hierarchy of Courts with the District Judge as the head and other judicial officers under him discharging only judicial functions2.

13.4.4 Judicial service is a career service with pyramidic structure of Courts. At the lowest rung, there are judges called Civil Judges (Junior Division). Next higher grade is Civil Judges (Senior Division) and still higher is the cadre of Additional Judge and District Judges. Likewise, on the criminal side, there are Magistrates at the lowest level; Chief Judicial Magistrates/Chief Metropolitan Magistrates/Assistant Sessions Judges at the middle cadre and above them Sessions Judges/Additional Sessions Judges.

Over and above all these, is the High Court which is the highest Court in the State, set up under Article 214 of the Constitution.

13.4.5 We have adopted the adversary system which is commonly followed by other Commonwealth countries. But it is unfortunate that we have not made any improvements either in the structure of Courts or training the judicial officers to meet the growing challenges in the administration of justice. We have no doubt made considerable progress in science and technology but the machinery of justice remains with antiquated tools and outmoded laws and procedures.

2. State of Maharashtra v. Labour Law Practitioners' Association, AIR 1998 SC 1233.

13.4.6 Adverting about the grave conditions prevailing in the subordinate Courts, the 14th Report of the Law Commission observed3:

"Under the Constitution, administration of justice and the constitution and the organisation of Courts other than the High Courts are the responsibility of the State administration. The facts revealed indicate on the one hand a gross neglect by the State administration of their duty in establishing the necessary number of Courts and on the other, a complete failure on the part of the State to carry out its obligations to provide trained and proper judicial personnel for presiding over the Courts. The States in question cannot even urge financial stringency as an excuse for, the figures reveal that these States have been making substantial gains out of the revenue earned by them by way of Court fees. It is a matter for serious consideration whether in order to prevent what appears to be virtually a breakdown in the system of judicial administration the Central Government should not, by an amendment of the Constitution, be given a greater measure of control over some aspects of judicial administration in the States".

When these observations were made, the field of Legislation on administration of justice and organisation of all Courts, except the Supreme Court and High Courts, were exclusively in the State List under Entry 3, List II of the Seventh Schedule. That was indeed the reason why the Law Commission made the aforesaid observation by recommending an amendment to the Constitution to enable the Central Government to take greater measure of control over some aspects of judicial administration in the States.

3. P. 158, Vol. I of Fourteenth Report on Reform of Judicial Administration, 1958.

13.4.7 But the position today is different. By 42nd Amendment Act, 1976, which came into force on January 3, 1977, a part of the Entry 3 of List II in Seventh Schedule was omitted and by Clause (c) of Section 57 of the 42nd Amendment, Entry 11-A was inserted into List III - Concurrent List.

Entry 11-A so inserted in List III reads thus :

"11A. Administration of justice; constitution and organisation of all courts, except the Supreme Court and High Courts".

This transposition of entry confers equal powers on the Central Government to take adequate measure of control to make the much needed improvement in the administration of justice, constitution and organisation of all Courts. But the Central Government has done little in this regard in spite of the power being given to them.

13.4.8 It may be noted that like in the United States, we do not have dual system of judiciary - Federal Judiciary and State Judiciary. The Federal Judiciary deals with a the cases arising under Federal Laws while the State Judiciary deals with the State Laws. We have adopted single judicial system as State Subordinate Judiciary. The State Subordinate Judiciary is the only forum in which all cases arising under the Central and State enactments are examined and tried. In fact, there are more than hundred Central Legislations in addition to the Indian Penal Code with which the State Subordinate Courts are involved in enforcing. That being the position, we fail to see why Central Government should not come forward to share the responsibility of administration of justice in every State.

13.4.9 It is estimated that the country has in its Twenty Five States and Seven Union Territories a cadre strength of over 12,000 judges in its Subordinate Judiciary. The required strength according to Law Commission estimates is said to be twice that number immediately and four times that number in the next five to ten years. On an average, about 1,500 to 2,000 judicial officers are to be added to the strength of the subordinate judiciary. A statement showing the cadre strength of the judges in the subordinate courts of different States and Union Territories as on 1997 is given below :

STATEMENT SHOWING THE CADRE STRENGTH OF JUDGES

IN THE SUBORDINATE COURTS

Sl.No.

State

Cadre I

Dist. Judges etc.

Cadre II

Civil Judges Sr.

Cadre II

Civil Judges Jr.

1.

Andhra Pradesh

117

122

433

2.

Assam

29

46

146

3.

Bihar

276

265

1042

4.

Goa

11

14

20

5.

Gujarat

67

264

290

6.

Haryana

63

---- 158*----

7.

Himachal Pradesh

28

12

58

8.

Jammu & Kashmir

33

42

51

9.

Karnataka

135

167

330

10.

Kerala

101

81

229

11.

Madhya Pradesh

277

229

444

12.

Maharashtra

270

254

717

13.

Manipur

4

6

11

14.

Meghalaya

2

3

3

15.

Mizoram

6

11

3

16.

Nagaland

9

8

5

17.

Orissa

62

113

261

18.

Punjab

60

---- 213* ----

19.

Rajasthan

248

144

315

20.

Sikkim

5

2

6

21.

Tamil Nadu

85

96

399

22.

Tripura

18

10

45

23.

Uttar Pradesh

650

519

660

24.

West Bengal

234

166

337

25.

Delhi

134

---- 218* ----

26.

Lakshadweep

1

-

2

27.

Pondicherry

4

5

10

28.

Andaman Nicobar

1

1

3

29.

Chandigarh

3

3

6

30.

Dadra & Nagar Haveli

1

1

-

31.

Daman & Diu

1

1

-

32.

Arunachal Pradesh

-

-

-

TOTAL :

2935

2585 589*

5856

Note : * break up not available.

13.4.10 According to a recent study, India has a little over 10 judges per million people whereas it is 243 in China and 150 and more in some of the developed countries of the West. The number of cases per million people is fairly high (1500) and the expenditure incurred on the judiciary by the Government is strikingly low (0.19 of the GNP). It is also stated that more than half the expenditure is recovered by the Government through court fee, stamp duty and similar fees. (Pistor and Phillip, Rule of Law and Legal Institutions in Asian Economic Development 1960-'95, Harvard University, quoted in NLSIU Report on History of District Courts in India, mimeograph 1998 at p.195).

13.4.11 At present excepting in 3 or 4 States, there is no scientific and systematic training programme available to the judicial officers either at induction or in later stages of their career. Wherever they exist, the emphasis is on lectures on topics of procedure and substantive law where the trainees take the course with very little impact on them. Thus, by and large, judicial career is evolved in the country through the method of trial and error at great cost to the litigants and under risk of unjustifiable delay and distortion in the delivery of justice.

13.4.12 A Prognosis : Subordinate Judiciary in the next Millennium

It is now clear and widely acknowledged that there is no alternative excepting to address the problems of the subordinate judiciary squarely if democracy is to survive and rule of law is to prevail in the trying years ahead.

There should be a radical change in the structure and status of the subordinate judiciary during the closing years of the century. Indeed, that is what the First National Judicial Pay Commission is attempting to achieve.

13.4.13 What will be the nature of the Subordinate Judiciary in 2000 AD or immediately thereafter? Indications are that there will be appreciable number of women and a large number of S.C., S.T. and Backward Class Members in judicial service at all levels and more particularly at the induction stage. If an All India Judicial Service is brought about at least at the level of District Judges, then it may provide better opportunities for appointment to High Courts. If the status and service conditions of subordinate judges are improved, the better talents may vie each other to enter judicial service. If new technologies and better management practices are made available, the capacity of an average judge to handle complex litigation will be greatly enhanced and the litigational time will be considerably reduced. A variety of Alternate Dispute Resolution Methods will be in place taking away a heavy chunk of disputes from courts and giving greater freedom to the judge to employ these strategies to manage his docket much more efficiently than to-day.

13.4.14 All these are welcome developments to the judges and the litigants. The problem arises in the diversity of work involved and the demand for greater professionalism in the process of judging and judicial administration. It is not only a question of acquiring varied knowledges and skills but also a matter of developing an attitude of mind and compatible behavioural patterns on the part of presiding officers.

This calls for intensive and extensive training of the kind that is neither conceived nor organized any where at present within the training institutions. An innovative and flexible curriculum which is constantly reviewed and developed is the need of the hour. Training has to be taken much more seriously by the trainers and the trainees for which structural reforms are necessary. A system of incentives and disincentives should elevate the status of training in the judiciary to the desired degree. Training should be made attractive and interesting by adoption of methods tested for adult education. Exercises and role plays should replace lectures and standard reading materials should be developed to make learning relevant and productive. In short, in the scheme of things in future, judicial training will have to be conceived and executed imaginatively if it has to influence judicial behaviour in a manner facilitative of change and efficiency.

13.5 JUDICIAL EDUCATION AROUND THE WORLD :

A SELECT SURVEY

13.5.1 Educating judges on judicial functions and training them on how to judge properly are relatively new ideas not yet accepted fully by the judicial fraternity. Some judges still believe that institutionalised training may interfere with judicial independence. Others resent the very notion of training in as much as it questions their capacity and competence. However, with the explosion in knowledges bearing on legal disputes and with the diversification of complex litigation, there has been increasing demand from many judges themselves for programmes of continuing education tailored to specific problems and needs. Today in some countries it has become mandatory for judicial personnel to get trained periodically. Even experienced judges have felt the need for examining their judicial skills and methods of work in the context of technological developments and specialised legal practice. In plural democratic societies the need is felt to identify possible biases in relation to minorities, caste groups and women vis-à-vis judicial attitudes and practices with a view to correct the distortions in the process of judging. The need for mandatory judicial education is now acknowledged throughout the world and many countries have evolved programmes for institutionalised judicial training institutes organized as part of the judicial establishment of the respective countries.

Judicial Studies Board of England and Wales :

13.5.2 In England the proposal for organized judicial training came from a working group appointed in 1975 under the Chairmanship of Lord Justice Bridge. The dislike of the word 'training' led to the nomenclature of "judicial studies" which came to be accepted in place of the then prevailing sentencing seminars. The Judicial Studies Board was created by the judges in 1978 with the initial object of reducing inconsistency in sentencing in criminal courts. Until 1985, the Board was concerned only with the criminal jurisdiction. Thereafter, its role was extended to the civil and family jurisdictions. The Board also

became responsible for supervising the training of Magistrates and members of tribunals.

13.5.3 The structure of the Judicial Studies Board comprises the Main Board, which is responsible for policy and planning and for all matters of general application, and four Committees for planning and organizing instructional seminars and providing the necessary material. In 1991 the Board established a fifth Committee to advise the Board and the other committees on the problems and concerns of Ethnic Minorities. The other four Committees are - the Criminal Committee for training those who sit in the Crown Court; the Civil and Family Committee to train judges who deal with these areas of work; the Magisterial Committee to train Magistrates and a Tribunals Committee to advise on training of those who serve on tribunals. There are sixteen members of the Main Board, of whom 10 are judges. There are 63 members of committees, of whom 20 are judges. The administration of the Board's activities is managed by the personnel of the Lord Chancellor's Department. The courses are run by the judges under their direct control despite the recommendation of the Bridges Committee to attach the programmes to an academic centre with a full-time Director of Studies. The Board reportedly has an annual budget of nearly 2 million pounds.

13.5.4 The Board's induction seminars last 3 to 4 days. There are four criminal induction seminars a year attended by an average of 120 lawyers, some of who have never even conducted a case in the criminal courts. First day is devoted to lectures on preparation and conduct of a trial. A mock trial in which the novice judges play different roles is the highlight of the second day. A real judge presides over the trial. Actual cases are used in mock trial and the trainees learn how to manage a trial. In the third day they will receive lectures from academics, probation officers, prison officials etc. The rest of the course is devoted to sentencing exercises. Much of the work is now done in groups of five or six pupils, each with its own tutor judge.

As homework, the trainees are given examples of real cases and asked what sentences they would impose. These are marked and compared with the actual sentences given by the Court of Appeal. Thereafter the trainee judges are attached with an experienced judge for a week or two before they are permitted to sit in the Crown Court. Many persons feel that even after four days of intensive training, they are not well prepared to sit in the regular courts.

13.5.5 The newly appointed judge usually begins his judicial career sitting in the court where he gained his work experience. There is always a more senior judge sitting in a nearby court; if anything goes wrong the new judges are told to adjourn the case immediately so that they can seek the advice of the senior judge. They can also telephone the Court of Appeal and ask the Registrar for instant advice on what to do next. After sitting for five years, these judges get another 3 or 4 days' refresher course for each subject area in which they are involved - crime, civil actions and family work.

13.5.6 There are no residential training courses for High Court judges or judges of Court of Appeal. They do attend occasional evening seminars to learn about developing areas of law. Sometimes they attend one day seminars on important new legislations.

13.5.7 The Board's committees use the services of law professors, practising lawyers and experts from other professions to lecture at the seminars. Otherwise, the major part of the course is to be conducted by the committees themselves. This work involves the selection of subjects, selection of speakers, selection of reading materials, selection of material for practical exercises and writing the publications of the Board. In association with the Open University, the Board has brought out training packages for Magistrate's training.

Judicial Education in the United States of America :

13.5.8 Judicial education in America is perhaps the best organized and most advanced in the whole world. Started in early 1960s as part of judicial conferences, the training seminars became popular and in great demand among trial judges. With a grant from a private Foundation, the American Bar Association with the involvement of the National Conference of State Trial Judges established in 1964 the National Judicial College. Starting with modest curriculum and an enrolment of a couple of hundred judges, by the mid 1970s, the National Judicial College began presenting 40 to 50 courses each year attracting over 1800 judges annually. Several extension programmes are additionally organized. The College, a non-profit educational corporation, is located on the campus of the University of Nevada, Reno since 1965. The College is governed by a board of trustees chosen by the American Bar Association Board of Governors. The Board of Trustees sets general college policy and chooses the Dean, who serves as the chief executive officer of the college. With an operating budget of about $4.5 million annually, the college is funded by a combination of tuition, gifts and grants from alumni, corporations and foundations and the income from $10 million endowment that the college has raised. In addition to the resident courses in Reno, the college conducts a number of State and regional programmes as well as special programmes for judges from foreign countries. The college offers in co-operation with the University of Nevada, a Master of Judicial Studies degree programme.

13.5.9 There are half a dozen other judicial training centres in America, each with specialisation in selected branches of law and judicial administration. Most of the training of federal judges is conducted by the Federal Judicial Centre in Washington D.C. which operates under the direction of the Judicial Conference of the United States. It is established by statute by the Congress and is funded by it. It is managed by an eight member board of which the Chief Justice of U.S.A. is the ex-officio chairman. Its mandate is to improve judicial administration in U.S. courts which it does through training of judges and various staff members. It has a large collection of training literature including video programmes.

13.5.10 After the success of the National Judicial College, several of the larger States became interested in having their own judicial education programmes. The California Centre for Judicial Education and Research (CJER) is one such centre for the California judges. It prepares judge's Bench Books and other educational materials. It arranges training courses to enhance judicial performance and conducts research on the subject.

13.5.11 The State judicial education officers, joined by some representatives of the national organizations, founded in 1975 the National Association of State Judicial Education (NASJE) which acts as a clearing house for the State programmes, programme materials, faculty suggestions and curriculum development. In their annual conferences they discuss innovative programmes conducted in State centres and thus help promote the cause of judicial education.

13.5.12 The Institute for Court Management in Denver, Colorado is the training arm of the National Centre for State Courts for training court administrators. The American Academy of Judicial Education, originally founded by the American Judges Association and now an independent non-profit corporation located in Alabama provides education conferences and seminars for judges in different locations around the country. It has been particularly active in providing training for judges before they begin their judicial career. Since 1980, the University of Virginia Law School at Charlottesville, in association with the Appellate Judges Conferences offers an LL.M. degree programme restricted to 30 judges.

Judicial Education in Countries of the Commonwealth :

13.5.13 In a survey on Judicial Education in the Commonwealth presented at the Commonwealth Magistrates' and Judges' Association Conference in 1994, The Hon. Judge Sandra E. Oxner, the then President of CMJA divided the judicial education programmes existing in Commonwealth countries into three categories. The first category consisting of Canada, Malaysia, Nigeria, India, Pakistan, Bangladesh and Sri Lanka do have formally established judicial education institutes though some of them are not still fully operational. The second category includes countries which have a committee or board that administers continuing education programmes for judges on an ad hoc basis. Australia, England and Wales and New Zealand are in this category because of their structure though they do have sophistication in their programmes and services. Several countries in Africa, Hong Kong and Singapore belong to this category. The third group do not have even such ad hoc programmes of judicial education. It is interesting to note that by and large whatever exists by way of judicial education in the Commonwealth are programmes organized by judges, managed by judges and offered to judges.

(The information summarised below is drawn from the paper presented by Judge Oxner at the Commonwealth Magistrates' and Judges' Association Conference at Victoria Falls, Zimbabwe in August 1994).

13.5.14 Canada had judicial education in vogue by the nineteen seventies. This included residential orientation programmes for newly appointed judges and refresher courses for judges in service. All programmes had focus on sentencing and developments in law. The Canadian Association of Provincial Court Judges (CAPCJ) organizes ten day residential programmes for newly appointed judges and residential regional provincial court programmes. Today these courses specialise in sensitivity training, judicial ethics, judgment writing etc.

Despite the above initiatives, in 1985 the Stevenson Committee Report found that 40 per cent of Canadian judges never took a course during their judicial career. The recommended solution was the establishment of the National Judicial Institute which got set up in 1986. It is a research and educational organization for all Canadian judges. Its mandate is "to foster a high standard of judicial performance by programmes that stimulate professional and personal growth, and to engender a high level of social awareness, ethical sensitivity and pride in excellence".

13.5.15 A very significant contribution of the National Judicial Institute of Canada for the programme of judicial education every where is the publication after two years of research and consultation a series of minimum standards in organizing judicial education. The study emphasised that judicial education is essential to enhance the fair and efficient administration of justice and that an organizational and individual commitment to judicial education must be made. According to these Standards -

(a) the Goals for judicial education are (1) to bring about an awareness by judges that education immediately after appointment and, on a regular basis throughout their judicial careers is necessary for maintaining and enhancing essential competence, personal growth and social awareness; (2) to provide the public with information on judicial education in order to get recognition of the need to make time and resources available for this purpose; and (3) to create standards for judicial education, both at national and local levels.

(b) the Objectives to be achieved include (1) providing judges with knowledge, skills, techniques and awareness required to perform judicial responsibilities fairly, correctly and efficiently; (2) to improve through education the administration of justice, including fair and efficient management of trials and the reduction of court delay; and (3) to promote each judge's commitment to the highest standards of personal growth, official conduct and social awareness.

(c) the Structure of judicial education to include ten days of intensive education at the time of appointment and ten days of continuing education every calendar year thereafter. These programmes should include a balance among the areas of substantive law, skills training and current social issues. Topics to be studied include evidence, procedure, sentencing, family violence, judicial ethics, media relations, cross cultural issues, judgment writing, case flow management, gender bias, tribal issues, computer courses for judges and designing strategies for implementing change in the courts.

(d) the Faculty should consist primarily of judges with expertise in the subject matter and who are capable of preparing and presenting educational materials effectively. Law Professors, lawyers and people with special expertise are also to be utilised where their expertise are needed.

The NJI is governed by a Board of judges representing all courts chaired by the Chief Justice of Canada and includes two lay members.

13.5.16 Australia has a Judicial Commission in New South Wales established in 1986 which provides education and technical assistance to the judiciary in New South Wales which, incidentally has more judges than the rest of Australia put together. The three major functions of the Commission are to assist the Courts to achieve uniformity in sentencing, to organize and supervise a scheme of continuing judicial education and to examine complaints against judicial officers. In addition to presenting seminars and conferences ranging from induction courses for new appointees to specialists conferences on specific aspects of law, procedure and judicial skills, the Commission publishes monthly The Judicial Officers Bulletin with information of interest to judges. It maintains a fairly up to date sentencing data base. Nearly all New South Wales magistrates undergo a three week induction programme, a voluntary judicial education programme in the Magistrates' Courts and are expected to devote five days a year to judicial education. The curriculum includes study of judicial attitudes in decision making on key issues and broader understanding of social problems, computer training and advanced court management.

13.5.17 The Australian Institute of Judicial Administration is another educational and research institute affiliated to the University of Melbourne. Its object is to conduct programmes of continuing education for judges, magistrates, officers of courts, lawyers and law professors. The AIJA provides conferences, seminars and workshops in which judicial officers, among others can participate. The subjects covered include use of technology in courts, computer use and sentencing. There is no course offered on substantive law. In 1997 in association with the Judicial Commission of New South Wales, the AIJA offered a week-long residential judicial orientation programme for new judges. The first day consisted of two sessions of lectures by senior sitting judges on (a) the Role of the Judge and (b) Becoming a Judge. The second day had a series of small group workshops on (a) trial management and (b) ADR. The third day included lecture-cum-discussion on topics such as (a) Financial Statements Partially Demystified, (b) Using Computers as a Research and a Management Tool, (c) Assessing the Credit of Witnesses, and (d) Issues Relating to Migrants, Interpreters and Multiculturalism. The fourth day was entirely devoted to Courtroom Issues such as contempt in the face of the court, disqualification for bias, ethical issues arising in a courtroom setting and unrepresented litigants. The fifth day of the programme had four sessions one each on (a) Sentencing, Civil Damages and Gender Awareness, (b) sentencing practice sessions and damages determination sessions, (c) judgment writing, and (d) problems in evidence. The final day was devoted to a session on courtroom communication and judicial intervention and court-media relations.

13.5.18 In most European countries, judicial appointments are based on a career judiciary after completing basic legal education. The arrangements for judicial training therefore focus on the additional courses for prospective judges, and judicial appointment is conditional upon successful completion of the programme. Thus, in France, judges who are recruited directly after university education undergo a two-year course under the direction of the Ecole Nationale de la Magistrature. The first part of the course consists of full-time formal training and the second part of service as a clerk to the local judges in a lower court. There are also opportunities in a further four months' training to study and work in a variety of institutions concerned with law and administration, in public and private companies and to undertake research. Italy and Belgium follow similar judicial education programmes.

13.5.19 The German system provides a unified training for the bar and judiciary. Judges are chosen from those who must distinguish themselves on the programme. Training lasts five and half years and includes study in courts and tribunals and with firms of lawyers. In Scandinavian countries prospective judges have a "judicial apprenticeship" under a judge as a clerk or assistant.

Lessons Judicial Education Programmes Convey :

13.5.20 There are few issues which emerge from consideration of judicial education programmes functioning in different countries which are relevant for structuring the training in India. There is absolutely no doubt that judicial education and training are indispensable for better judicial administration. There is also no doubt that there must be organizational and individual commitment from the side of judges to the need for such education in order to justify the utilisation of time and resources. Furthermore, it is desirable and necessary to keep the control of such training with the judiciary lest there should arise possibilities of jeopardizing judicial independence through executive influence. At the same time judicial education and training are too complex for judges alone to organize and administer. Judges may not have sufficient knowledge of their own weaknesses and of education techniques to deliver effective programmes. As Judge Oxner said : "while judicial control over curriculum cannot be decried, a mechanism that funnels to the judges the public and professional perceptions of weaknesses in the judiciary is important to ensure these issues are before the curriculum committee -. Another technique to counteract judicial insularity is to add to the judicial institute structure advisory groups on topics of special interest - family violence, tribal rights, gender bias, human rights issues etc."

13.5.21 Many of the problems revealed in the role of a judge are responded to by the curriculum of many of the programmes offered in judicial education. Starting with sentencing and updating of laws, judicial education curriculum moved into computer programme for judges, human rights issues, judicial ethics, judgment writing, conduct on and off Bench, media relations, case flow management, contemporary social problems and technological advances (particularly in medicine and health). A curriculum committee must be prepared to continuously justify the choice of topics in successive programmes.

13.5.22 Besides educational programmes, judicial education centres need to develop self-study materials as well as audio and video tapes to supplement judicial libraries. Information packages of printed orientation material, bench books and standardized judicial materials are useful and inexpensive tools in judicial education.

There is need for constant evaluation of the programmes in terms of objects, content, materials, method and impact.

Continuing Judicial Education :

13.5.23 For organizing continuing judicial education, the principles and standards promulgated by the National Association of State Judicial Educators, U.S.A. are of great value. They suggest instruction in five major areas :

(a) Legal Ability : updates on law, court rules and court procedures; in depth analysis of complex legal issues; examination of judicial decision-making practices and philosophies; and effective opinion writing through identification, analysis and clarity in expressing legal issues, reasoning and conclusions.

(b) Comportment and Demeanour : judicial code of conduct; fostering fairness through the recognition and elimination of bias or prejudice; cultural awareness; decisiveness; and judicial temperament.

(c) Judicial Management Skills : case management; effective trial and jury management; settlement skills; personnel management; skills to cope with the growth of litigation and the increasing complexity of legal issues and proceedings; and, when appropriate, court system planning administration.

(d) Contemporary and Inter disciplinary Issues : updates on scientific and behavioural sciences relevant to any judicial practice; knowledge of contemporary social issues; and the law and humanitics.

(e) Personal Development : revitalisation and re-dedication to public service; awareness of the need to maintain high levels of personal well being; and stress management.

13.5.24 There are however a number of new initiatives setting different trends in judicial education. One such trend is to organize judicial education on important subject matter thrown up by major changes in legislations, land mark judicial decisions or social upheavals. Family violence, drug problem, child abuse etc. provide such subject-matter trends influencing judicial education programmes.

The increased awareness of human rights and social demand for fair deal from courts irrespective of gender, race etc. create need for another organizing principle for judicial education. The programmes thus evolved are designed to promote a change in judge behaviour in interaction with parties, victims, witnesses and attorneys.

13.5.25 Finally, an issue of considerable significance conveyed by experiments in judicial education is the need to train judicial education faculty. The principle that judges teach judges is unexceptionable; but judges have to be trained to do the teaching. For this Faculty Development programmes are to be introduced incorporating better understanding of adult education principles and appropriate instructional methods. Topics for such programmes would include : characteristics of the adult learner, assessing learner needs, developing learning objectives, structuring a course, participatory learning techniques, and evaluating learning. Typically, such a programme allows the participants an opportunity to practice applying the principles they have learned. They might make a short presentation which would be videotaped and then critique by their peers and evaluated by an expert in adult education.

There is a wealth of knowledge and experience in developing judicial education programmes already available in many countries, particularly the United States of America. Co-operation and exchange among the institutions involved in different countries can do a great deal to advance the cause and the process of educating the judges of the future.

13.6 JUDICIAL TRAINING SCHEMES IN INDIA

13.6.1 It is often said that an institution is only as good as the people who operate it. The level of motivation and leadership, the degree of competence and professionalism and the clarity of purpose and methods which the judges display make the judicial system perform to its optimum efficiency. Judicial officers, undeniably are the key figures in determining the quantity and quality of output which the public gets as justice out of litigation in courts. Any investment in updating their knowledge and skills will be doubly repaid in the delivery of justice and in the efficiency of judicial administration.

13.6.2 Despite realising its importance and the repeated recommendations from several committees and commissions, pre-service institutional training for new entrants to judicial service had not received the attention it deserved from the High Courts and the Government till recently. A few years' practice at the Bar or few days' attachment with a senior judge perhaps was deemed adequate to preside over courts to which one is appointed! The All India Conference of Chief Justices in 1983 adopted a resolution asking the Government to set up regional training institutes in the four regions of the country for training of members of the subordinate judiciary. It was suggested that eminent professors, lawyers, judges and jurists could be invited to deliver lectures on various topics of relevance on law and other related subjects. Perhaps it was for the first time that the Chief Justices recognized the need for a broader training for subordinate judges and welcomed the introduction of people from outside the judicial fraternity for imparting training.

13.6.3 The status of training obtaining in the country is summarised by the Law Commission in its 117th Report on Training of Judicial Officers (1986). To quote   ".. institutional training at present is being imparted only at the North-Eastern Judicial Officers Training Institute at Guwahati and Andhra Pradesh State Judicial Academy at Secunderabad. Broadly stated, the judicial officers taking training in these institutes have the benefit of a short-term pre-service training in the conduct of proceedings in the court and allied matters as also the management of office. No refresher course is being held at these Institutes with the result that the training begins and ends at the pre-service level and it is of a short duration ... At the U.P. Administrative Training Institute, Nainital, pre-service training of six to eight weeks is imparted to judicial officers. There are rules framed by the State of Orissa for an elaborate training programme. In the rest of the country, fresh recruits to judicial service are given a semblance of training by being directed to work with senior civil judges and/or district or sessions judges for an average duration of three to six months before actual posting is given" (117th Report, 1986 at p.6).

13.6.4 According to the Law Commission, training through attachment with courts of senior judges has an inbuilt disadvantage in so far as it sustains all past practices without challenge in disregard of the needs of contemporary times. Recognising the grossly inadequate facilities for training and acknowledging the continuing need for training of judicial officers, the 1985 Conference of Chief Justices, Chief Ministers and Law Ministers unanimously resolved to ask the Central Government to set up an academy with the Chief Justice of India as Chairman. A Governing body with Chief Justice of India as Chairman would determine the structure, faculty, courses and other aspects to provide pre and in-service training for judicial officers as also to identify places where branches of the academy could be set up.

13.6.5 Pursuant to this resolution, the then Chief Justice of India prepared and sent a blue print for the establishment of an academy which was eventually established as a Society registered under the Societies Registration Act, 1860. Though the National Judicial Academy was formally set up in 1994, it has not started training courses as yet. A massive campus is reportedly under construction in Bhopal where the academy is located. A retired Supreme Court Judge was appointed as Director General and a few officials deputed from the staff of the Supreme Court are overseeing the construction activities financed by the Central Government. The Society has a membership of twelve persons including five judges, two law academics and four Secretaries to Government of India. The Registrar General of the Supreme Court is the ex-officio Secretary of the Academy and the Chief Justice of India ex-officio Chairman. The Society meets once every year mainly to approve budget and authorise expenditure. Membership other than ex-officio members is by nomination by the Chairman. The Society has a Governing Council with Chief Justice as Chairman and Law Secretary, Expenditure Secretary, Registrar General and Director General as members.

Since the National Judicial Academy at Bhopal is still an institution-in-making and has not yet come out with its scheme of training there is little to reflect on its activities at present. Hopefully a first-rate national judicial training centre would emerge at Bhopal at least by the turn of the century.

13.6.6 An institution which came up in the recent past (1987) and got a reputation for organizing systematically training courses for subordinate judiciary is the Institute of Judicial Training & Research, U.P. located in Lucknow. The institute has its own campus with infra-structural facilities, a core faculty drawn from higher judicial service and a moderate library. It is under the administrative control of the Department of Law, Government of Uttar Pradesh. We will presently consider the curriculum prescribed by the Institute for the trainees.

13.6.7 The North Eastern Judicial Officers' Training Institute, Guwahati

The Institute is perhaps one of the earliest institutions of its kind set up in early 1981 at Guwahati as a society registered under the Societies Registration Act with Chief Justice of Gauhati High Court as its Ex-officio Chairman. All the Law Ministers of the seven N.E. States are its members. The object of the Society is to provide training to Judicial Officers and also to train the ministerial officers in the subordinate courts. All the St