ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട് 2

           ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട് 2
 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.
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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
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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
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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
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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
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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
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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."
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"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."
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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.
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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.