ഷെട്ടി കമ്മീഷന് റിപ്പോര്ട്ട് 8
ഷെട്ടി കമ്മീഷന് റിപ്പോര്ട്ട്പാര്ട്ട് മുഴുവനും വായിക്കാന് വലതുവശം പോസ്റ്റ് ടൈറ്റിലില് പോയി ലിങ്കില് ക്ലിക്ക് ചെയ്യുക
SUMPTUARY ALLOWANCE
19.70 The Supreme Court in the main judgement in ALL INDIA JUDGES' ASSOCIATION CASE1 (para 32) has observed:
"In many of the States the prevailing practice is that the district judge takes a monthly meeting with the collector and district magistrate and the superintendent of police. He also meets the members of the Bar. Now and then he meets his judicial officers-those at the headquarters as also the others who are in the interior. It is desirable that the district judge devotes some time as frequently as possible and at least once a week to meet the judicial officers beyond the working hours, discusses working problems of his officers and forms his own opinion about how the work is being done. A weekly assessment of such performance generates even temper of judicial activity and upholds the tempo being maintained at the appropriate level. There is not yet any definite system of judicial training in most of the States and Union Territories. A judicial officer with his first posting or until he acquires adequate experience requires guidance. It should ultimately be the obligation of the district judge to provide the same. We are of the view that to the post of district judge a monthly allowance of Rs.300 by way of sumptuary allowance should be available to enable him to extend small courtesies at such meetings. The Chief judicial magistrate does some of these activities in respect of the magistrates handling criminal work. In our opinion he should be entitled to a sum of Rs.200 per month by way of sumptuary
1. (1992) 1 SCC 119.
allowance. We are aware of the fact that under the Conditions of Service Act of High Court Judges, a sumptuary allowance of Rs.300 is payable to them every month. Now that we have directed that Rs.300 should be fixed for the district judges, we command that the sumptuary allowance fixed for the High Court Judges may be enhanced suitably. These allowances shall be payable from 1.4.92. We would like to add that this allowance is intended for utilisation to the full extent for entertaining judicial officers in connection with performance of duty and would not be considered as a perk for being included in the hands of the recipient as his income."
19.71 However, this facility has been withdrawn in the Review Judgement on the ground that the necessary expenditure could be met through existing provision of funds. The relevant portion of the Review Judgement is reproduced below:
"The direction to give sumptuary allowance to the District Judge in his capacity as the principal judicial officer of the concerned district and to the Chief Judicial Magistrates at the rate of Rs.300/- and Rs.200/- per month respectively was in consideration of the fact that they had to hold monthly meetings with the Collector, District Magistrate and Superintendent of Police etc., and also to meet the judicial officers, working under them as well as the members of the Bar, occasionally. In such meetings, they are expected to extend small courtesies. It is now represented that whenever official meetings are held, there is a provision which enables the District Judge as well as the Chief Judicial Magistrate to spend from the amounts at the disposal of the Court. in view of this, we rescind the said directions. However, we make it clear that the sumptuary allowance, if already paid to the District Judges and the Chief Judicial Magistrates, should not be recovered from them."
19.72 The Commission had formulated the following question on this topic:
Q.31: It is suggested from some quarters that a tax-free Sumptuary Allowance should be given to all cadres of Judicial Officers. Please indicate the quantum and the need to grant such allowances bearing in mind the observations of the Supreme Court in that respect.
19.73 Replies received from the High Courts save the High Court of Delhi, have favoured/suggested for payment of sumptuary allowance to all the Judicial Officers. The High Courts of Himachal Pradesh, Kerala and Madras have not furnished their comments. The rate of such allowance indicated varies in the range of Rs.1000/- p.m. to Rs.500/- p.m.
19.74 The High Courts of Gujarat and Punjab and Haryana have stated that all Judicial Officers be paid a uniform sumptuary allowance of Rs.500/- p.m.
19.75 The High Court of Sikkim has suggested 5% of the basic pay be given as sumptuary allowance to all the Judicial Officers.
19.76 All the High Courts have suggested that such sumptuary allowance granted to Judicial Officers should be tax-free.
19.77 All the Service Associations have putforth the demand for the grant of tax-free sumptuary allowance.
19.78 But most of the State Governments have observed that there is no need to grant such allowance to all the Judicial Officers, other than the District Judges and Chief Judicial Magistrates.
OUR RECOMMENDATION :
19.79 We have come to know that the amount at the disposal of the Principal District Judge for the purpose of "hospitality" is found to be too inadequate. It is not even sufficient to meet the expenses of any official meeting.
19.80 It is not correct to state that the Judicial Officers do not have visitors at home and there is no need to extend courtesy. They may not have visitors from the public, but members of the Bar, judicial fraternity and staff of the Courts very frequently visit every Judicial Officer. It is an Indian tradition to offer courtesy to the visitors in the form of tea/coffee along with some eatables. It is, therefore, necessary to provide sumptuary allowance to each of them.
19.81 After giving the fullest consideration to the problem presented, and having regard to the sumptuary allowance of Rs.2,000/- p.m. granted to the High Court Judges, we recommend sumptuary allowance at the following rate:
Category of Judicial Officer
Rs. per month
District Judge
1,000/-
Civil Judge(Sr.Dn.)
750/-
Civil Judge(Jr.Dn.)
500/-
19.82 Since sumptuary allowance is intended to extend courtesy, it must be made tax-free.
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HILL ALLOWANCE
19.83 The Hill Allowance came into vogue in the context of the increase in emphasis on raising the tempo of developmental activities in the Hill areas with a view to reducing the disparity between the Hill Districts and the rest of the areas by encouraging the civil servants to work with enthusiasm in the Hill Areas and especially in the interior areas.
19.84 For deciding a particular area as hill station, the altitude of the place is relevant. Normally, employees working in hill stations situated at an altitude of 1,000 metres (about 3,300 feet) or more, above the Mean Sea Level, would be eligible for entitlement of Hill Allowance. But the Hill Allowance is given taking into consideration not only the altitude of the place but also other factors, like the hill-station being an out-of-the way place, the difficulties in securing provisions for daily necessities, and for emergency needs.
19.85 At present, th e States of Jammu & Kashmir, Karnataka, Madhya Pradesh, Tamil Nadu, Uttar Pradesh and West Bengal are giving the Hill Allowance to Judicial Officers.
19.86 We have examined the recommendation of the V C.P.C. on the matter. The V C.P.C. has recommended the Hill Allowance (Special Compensatory Allowance-Hill Allowance) as under:-
Areas included in
Pay Range
Below Rs.3000
Rs.3000- Rs.4499
Rs.4500- Rs.5999
Rs.6000- Rs.8999
Rs.9000- above
Above 1000 M - 1500 M altitude
40
80
120
160
200
Above 1500 M - 2000 M altitude
150
300
450
600
750
Above 2000 M - 2500 M altitude
250
400
550
800
1050
Above 2500 M altitude
300
500
700
1000
1300
19.87 The "Special Compensatory Allowance" which is a new name encompassing the various types of allowances like, Remote Area Allowance, Difficult Area Allowance, Border Area Allowance/Disturbed Area Allowance etc., suggested by the V.C.P.C. deserves to be appreciated, but Government of India is yet to make up their mind.
19.88 In the meanwhile, the existing pattern for payment of Hill Allowance to Judicial Officers working in Hill Stations may be continued by the States concerned.
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RISK ALLOWANCE
19.89 The risk can be divided into two categories; one category would be covering areas where risk is gradual and insidious, like the danger of cancer for a Radiographer; the other category is where there is contingent danger to life or limb due to injury or attack as a direct consequence of the performance of official duties. Normally risk allowance is given only to cases falling in the first category.
19.90 Certain categories of employees both in Government of India and in some States are given risk allowances, whose normal duties involve special risks. Risk allowance is paid to employees working in certain surroundings which are risky and may, over a period of time, cause deterioration in their health.
19.91 The Commission has sought the opinion of the High Courts/Service Associations and State Governments on the question as to whether any Judicial Officer could be given risk allowance.
19.92 The High Courts of Andhra Pradesh, Gujarat, Himachal Pradesh and Kerala have not favoured the payment of risk allowance to Judicial Officers.
19.93 The High Courts of Jammu & Kashmir, Bombay, Karnataka and Madhya Pradesh have suggested payment of risk allowance to Judicial Officers posted in areas declared as terrorist areas/particular stations.
19.94 The High Courts of Patna, Bombay, Punjab and Haryana, Sikkim and West Bengal have not furnished any views on this matter.
19.95 The High Court of Gujarat has opined that there is Group Insurance Scheme prevailing in the State and, therefore, there is no need to give separate risk allowance to Judicial Officers.
19.96 The High Court of Rajasthan has stated that if the officer is trying any sensitive matter, special insurance cover be provided to him.
19.97 The High Court of Allahabad has stated that risk allowance may be paid in the border district and disturbed areas, and also to Judicial Officers trying TADA cases and anti-dacoity cases.
19.98 Some of the Service Associations of Andhra Pradesh, Kerala, Maharashstra, Rajasthan have urged the Judicial Officers and their family should be provided insurance cover for injury/death. They want that the insurance premium should be paid by the Government.
19.99 The State Governments have not favoured the proposal of paying risk allowance. Some State Governments have suggested that the proper course would be to take into consideration the element of hazard, if any, while fixing their scales of pay.
OUR RECOMMENDATION :
19.100 In our opinion, it is not proper for Judicial Officers to entertain any kind of fear of their life or limb. If they entertain any such fear to them or to their family members, while trying any case or posted in any particular area, they will not be able to dispense justice impartially and courageously.
19.101 We are, therefore, not in favour of granting Risk Allowance.
19.102 If there is any threat to their life or to their family members while trying any particular case, they must promptly inform the police, who must assess the nature of the situation and provide them with the necessary security.
19.103 We are also not inclined to provide a separate insurance cover for Judicial Officers who are posted in some border district or disturbed areas or trying some sensitive cases like TADA and anti-dacoity cases. Even in such cases, what is required is proper security to the Judicial Officers and their family.
19.104 We may, in this context refer to the Government Compulsory Insurance Scheme which is prevailing in Andhra Pradesh, Kerala, Maharashtra, Gujarat, Rajasthan, Tamil Nadu, Madhya Pradesh, Jammu & Kashmir and Karnataka. This scheme is in addition to the Group Insurance Scheme. It is proper that the Governments of other States also introduce such Government Compulsory Insurance Scheme for Government Servants and Judicial Officers.
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MEDICAL FACILITIES
19.105 The right to health with medical care has been recognised as a fundamental right guaranteed under Article 21 read with Articles 39(e), 41 and 43 of the Constitution.
19.106 This has been so declared by the Supreme Court in CONSUMER EDUCATION AND RESEARCH CENTRE AND OTHERS vs. UNION OF INDIA AND OTHERS1.
19.107 The relevant portions of the observations of the Supreme Court in that case run as follows (paras 26 & 27):
26. "The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
xx xx xx
Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(e), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, public or private, is enjoined to take all such action which will promote health,
1. AIR 1995 SC 922.
strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life.
xxx xxx xxx
xxx xxx xxx
27. We hold that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person."
19.108 At present, the medical benefits available to civil servants have been extended to the Judicial Officers. They are governed by the respective Rules of the Government, which vary from State to State.
19.109 Since there is no uniformity in this respect, the Commission circulated the following question seeking suggestions from the concerned:
Q.No.33. What is the existing procedure for availing of medical facilities to Judicial Officers and members of their families? (Kindly furnish the relevant Government Orders in this regard). Do you consider this procedure cumbersome and time-consuming? If so, please suggest a simplified procedure for reimbursement of the medical expenses.
19.110 The replies received from various quarters are summarised as below:
Almost all the Service Associations have reported that they generally do not get timely care and attention from the Authorised Medical Attendants, and they are compelled to seek the services of private doctors. It is also complained that they cannot go to Government hospitals since they have to punctually remain in Courts. It is represented that in most of the cases, the required medicines, though admissible under the rules, are not provided and that the reimbursement of medical expenditure is made after a long time by a cumbersome procedure. Several Associations have submitted that on account of the inconvenience and hardship caused by the existing method, they do not make use of the medical facilities provided by the Government.
The common request that we have received from the Service Associations is that the existing medical aid rules should be simplified and liberalised, and they should be allowed to consult and get treatment from qualified Doctors with whom they have confidence and the expenses incurred should be reimbursed. The other suggestions like the right to call the Doctors to residence for check-ups, Dispensary at Court Complex, exclusive dispensary within or near the residential complex of Judges, treatment first and rules next as the norm etc., have been made by various Service Associations.
They have also suggested that a lumpsum may be paid every month towards medical benefit or the benefit of the Central Government Health Scheme or a similar scheme be framed and extended to them.
The High Courts of Patna and Kerala have suggested that 'Medical Insurance' scheme may be introduced by the Government.
Alternatively, it is submitted that the medical facilities available to the Hon'ble Members of the State Legislatures or the Hon'ble Members of the Parliament may be extended to Judicial Officers.
19.111 Let us examine the provisions regarding the medical facilities available to the Members of the State Legislatures. We are told that they are more or less similar in all States. Being nearer home, we have secured the rules relating to medical benefits provided to the Members of the Karnataka Legislature. We may extract hereunder the relevant rules:
"Karnataka Legislature (Members Medical Attendance) (Amendment) Rules, 1997:
Rule 5A provides as follows:
"Reimbursement of Expenses incurred at any place other than in a Government Hospital or Dispensary: In respect of expenses incurred by a Member for the medical attendance and treatment obtained by him in any place, other than any Hospital or Dispensary maintained by the State Government or in any Hospital or Dispensary notified by the Karnataka Legislature, he shall be entitled for reimbursement of the expenses incurred to the same extent as he is entitled under these rules for reimbursement of expenses incurred by him for medical attendance and treatment obtained in such Hospital or Dispensary. The expenses shall be inclusive of the charges for accommodation in the place where such treatment is taken."
Rule 5A(I) reads as under:
"Reimbursement of expenses incurred at any place other than in Government Hospital or Dispensary and other than Hospital and Dispensary notified by the Karnataka Legislature: In respect of expenses incurred by a member for the medical attendance and treatment obtained by him in any place other than in a Hospital or Dispensary maintained by the State Government and other than Hospital or Dispensary notified by the Karnataka Legislature, he shall be entitled to reimbursement of the expenses incurred to the same extent as he is entitled under these rules for reimbursement of expenses incurred by him for medical attendance and treatment obtained in such Hospital or Dispensary. The expenses shall be inclusive of the charges for accommodation in the place where such treatment is taken."
19.112 On 1 April 1998, the State Government has notified the list of private hospitals in Bangalore and also in District Headquarters and private hospitals in other States where Members of the Legislature could take treatment and get reimbursement of the expenses incurred.
19.113 We may also usefully refer to the medical facilities provided to the Hon'ble Members of the Parliament. They are covered by the Central Services (Medical Attendant) Rules, 19442.
19.114 Under the Central Government Health Scheme extended to the Members of Parliament, exclusive dispensaries are opened in New Delhi to cater to the Members of the Parliament and their family members. Even Ayurvedic Dispensary, Unani Dispensary and Homeopathic Dispensary have been established at Delhi for their benefit.
19.115 Medical facilities are admissible upto a month even after the person ceases to be a Member of Parliament.
19.116 A record of health status of Members of Parliament is also maintained.
19.117 Under the Scheme applicable to them 3, the family of the Member includes wife or husband, as the case may be, children or step children and parents who are dependent and residing with the Member. These are the only persons entitled to the benefit under the Scheme.
________________________________________________________________
2. "Handbook for Members of Rajya Sabha", - Rajya Sabha Secretariat, New Delhi - May 1991, p.99.
3. "Handbook for Members of Lok Sabha", - Lok Sabha Secretariat, New Delhi - March 1998, p.172 & 173.
REIMBURSEMENT :
19.118 The Members of Parliament are entitled to reimbursement of medical expenses incurred by them on the treatment of self / family members if they are treated elsewhere where Central Government Health Scheme is not provided. For this purpose, a Member has to prefer the claim in the prescribed form. The claim should be duly countersigned by the Authorised Medical Attendant and supported with the cash memos and receipts.
OUR RECOMMENDATION :
19.119 The grievance of the Judicial Officers on the existing medical benefit rules cannot be unjustified. Their schedule of Court timings would not permit them to go and wait in the Government Hospitals when they are badly in need of treatment assuming that the Government Hospitals are as good as private hospitals. Secondly, the Judicial Officers do not have the liberty to contact anybody to get things done like the Executives. So much so, the Judicial Officers rarely go to the Government Doctors or Hospitals.
19.120 But, we consider that the payment of a lumpsum every month as Medical Allowance in lieu of all medical benefits is not a solution to the problem,but an escape from it. Any such allowance will be only a monetary benefit and does not really confer medical benefit.
19.121 We have noticed that about 9 lakh Central Government employees are covered under the CGHS in 21 cities. But extending the same or similar benefit to the Judicial Officers of various States may not be possible or feasible till the State Governments adopt such a scheme for their employees.
19.122 Taking all these factors into consideration, we recommend as follows:
1. The Judicial Officers in every State be given the medical benefits that are provided to the Members of the respective State Legislatures, subject to certain modifications herein below mentioned:
i) The State Government shall notify the list of Hospitals / Dispensaries, Government and private, in each City / District Headquarters and Taluka places for medical treatment of Judicial Officers and members of their family;
ii) The Judicial Officers shall be entitled to claim expenses incurred by them for the medical attendance and the treatment obtained by them and their family members in such notified Hospitals / Dispensaries.
The expenses shall be inclusive of the charges for accommodation in the place where such treatment is taken.
iii) The Judicial Officers shall be entitled to reimbursement of the expenses incurred by them or for their family members for the medical attendance and treatment obtained by them in any place other than in a hospital or dispensary maintained by the State Government and other than the hospitals or dispensaries notified by the Government, to the same extent as they are entitled to under the rules for reimbursement of expenses incurred by them for medical attendance and treatment obtained in the notified Hospital or Dispensary.
Expenses shall be inclusive of charges for accommodation.
iv) There should not be any restriction on reimbursement except to the extent of in-patient room entitlement. Further, there should not be any ceiling on reimbursement of expenditure on expensive treatments like kidney transplant, open heart surgery etc; full reimbursement of actual expenses should be allowed.
v) The Principal District Judge should be notified as the competent authority for passing the bill for reimbursement of medical attendance and expenses of Judicial Officers under him and in case of District Judges, the High Court should be the sanctioning authority.
vi) All claims for reimbursement of the expenses incurred by Judicial Officers for themselves or for their family members should be accompanied by an "Essentiality Certificate" issued by the Authorised Medical Attendant with the bills for reimbursement, supported by the prescription and vouchers or cash memos.
vii) Judicial officers shall be entitled to advances to meet the medical expenses for treatment upto 80% of the estimate and the balance be paid after approving the bill when it is produced.
Payment of Rs.100/- every month as Medical Allowance :
19.123 The V CPC has recommended payment of Rs.100/- per month as Medical Allowance to the Central Government employees and also retirees who are not covered under the CGHS. This recommendation has been accepted by the Central Government and Rs.100/- per month is being paid to the Central Government employees and also the retirees.
19.124 Some State Governments like the Government of West Bengal and Karnataka are also paying certain lumpsum to their employees and retirees as well. But the Judicial Officers are excluded from such benefits on the ground that this Commission has been constituted to look into their grievances.
19.125 It seems to us that it is extremely a good measure to pay certain cash every month to meet the ordinary medical needs. Accordingly, we recommend payment of Rs.100/- per month to all Judicial Officers, both serving and retired, as Medical Allowance, in addition to the other benefits which we have set out earlier.
* * * * *
LEAVE TRAVEL CONCESSION (LTC) / HOME TRAVEL CONCESSION (HTC)
19.126 The following questions have been circulated to elicit views and comments on the LTC/HTC facilities to be provided to Judicial Officers.
Q.No. 34. What are the provisions regarding L.T.C. and H.T.C. to Judicial Officers in your State/UT? Please furnish the particulars cadre-wise.
34.1 Is it advisable to replace L.T.C. with payment of a fixed sum with forced leave for a specified period ?
34.2 There are some suggestions to carry forward L T.C to be utilised after retirement so that on the eve of retirement, the Court work is not affected and the Officers may concentrate more on the judicial work and leisurely travel after retirement. There are also suggestions to encash the unutilised L.T.C.
Which do you prefer? Your choice should be rested on the public interest.
19.127 The substance of the replies received on Question No.34 is as follows :-
L.T.C.
ANDHRA PRADESH
L.T.C. to the Judicial Officers are governed by the same set of rules as other Officers of the State.
As per the State Government Rules, LTC is admissible to all the Judicial Officers (Subordinate Judges and District Munsiff) and their family members from his Headquarters to Hometown / any place within the State.
LTC as applicable to the Officers of All India Service is admissible to the District Judges.
ASSAM
LTC is admissible to all Judicial Officers for visiting any place in India once in a block of 4 years starting from 1992.
BIHAR
In Bihar, cash of Rs. 2000/- towards L.T.C. for Judicial Officer and family members is granted once in a block of 4 years subject to maximum of 4 L.T.C.s in entire service.
Eligibility for L.T.C. is 10 years service.
DELHI
Like other Government Servants, Judicial Officers in Delhi are entitled to one L.T.C. any where in India in a block of 4 years.
GUJARAT
L.T.C. is admissible to Judicial Officers once in 4 years. The distance permissible is 3000 Kms one way or 6000 Kms both ways.
HARYANA
L.T.C. is admissible to Judicial Officers for visiting any place in India once in a block of 4 years similar to other employees of State Government.
HIMACHAL PRADESH
Judicial Officer can avail only 2 concessions in a block of 4 years. Of the 2 concession he can avail both of them to Hometown or in the first block to anywhere in India and in the second block to Hometown or Vice versa. The block concession of a spell of two years can be carried over to the next year.
JAMMU & KASHIR
In a circle of 4 years one L.T.C. is admissible to the Judicial Officers.
KARNATAKA
L.T.C. is admissible once in service to any place in India.
KERALA
The facility of L.T.C. is not available at present.
MADHYA PRADESH
No L.T.C. facility is provided to Government employees including Judicial Officers.
MAHARASHTRA
L.T.C. to Judicial Officers is admissible once in block of 4 years to any part of the State.
ORISSA
L.T.C. is admissible to Judicial Officers once in entire service to any place in India.
PUNJAB
L.T.C. is permissible to Judicial Officers once in 4 years.
RAJASTHAN
No provision for availing L.T.C.
SIKKIM
No provision for availing L.T.C.
TAMIL NADU
Judicial Officers can avail L.T.C. once in four years. One way journey fare for L.T.C. is admissible if availed once in two years. Two way journey fares are provided, if availed once in four years. If they travel out of the State, the claim has to be restricted to 400 kms.
UTTAR PRADESH
L.T.C. is admissible to maximum of four times in the whole of service.
First L.T.C. may be availed between 5th and 10th year of service, second between 11th and 20th year of service, third between 21st and 30th year of service and the last after 30 years of service.
WEST BENGAL
L.T.C. is admissible to Judicial Officers [Civil Judges (Junior)/ Civil Judges (Senior)] once in entire service subject to the condition of availing the same one year prior to retirement. Members of the Higher Judicial Service enjoy L.T.C. benefit as per the provisions of the All India L.T.C. Rules.
* * * * *
H.T.C. :
ANDHRA PRADESH
H.T.C. is admissible to all Judicial Officers once in 2 years.
ASSAM
H.T.C. is not available to Judicial Officers.
BIHAR
H.T.C. is not admissible to Judicial Officers.
DELHI
H.T.C. is admissible to Judicial Officers once in 4 years.
GUJARAT
H.T.C. is admissible to Judicial Officers once in 2 years.
HARYANA
H.T.C. is admissible to Judicial Officers once in 2 years.
HIMACHAL PRADESH
Judicial Officers can avail 2 concessions in a block of 4 years. Of the two concessions he can avail both of them to Hometown or in the first block to anywhere in India and the second block to Hometown or vice versa.
JAMMU & KASHMIR
H.T.C. facility is not admissible to Judicial Officers.
KARNATAKA
H.T.C. is allowed to Judicial Officers once in every two calendar years.
KERALA
H.T.C. facility is not provided at present.
MADHYA PRADESH
H.T.C. is admissible to Judicial Officers once in two years.
MAHARASHTRA
H.T.C. is provided to Judicial Officers once in two years.
ORISSA
H.T.C. is admissible once in a block period of 2 years to Judicial Officers.
PUNJAB
No H.T.C. facility is provided to Judicial Officers.
RAJASTHAN
No provision for availing H.T.C.
SIKKIM
No provision for availing H.T.C.
TAMILNADU
H.T.C. is admissible to Judicial Officers once in 2 years.
UTTAR PRADESH
H.T.C. is not available to Judicial Officers.
WEST BENGAL
H.T.C. is provided to Judicial Officers every year provided the place of visiting is 250 miles away from Calcutta.
* * * * *
19.128 It will be thus seen that the L.T.C. facilities provided to the Judicial Officers vary from State to State. In some States L.T.C. is provided in a block period of 4 years and in some other States once in 10 years while in others once in service and in a couple of States, there is no L.T.C. is provided. We have to take into consideration all these aspects.
19.129 Likewise HTC facilities also vary from State to State. In many States H.T.C. facilities are not provided at all. In a couple f States H.T.C. is admissible once in 4 years while in half a dozen States H.T.C. is provided once in 2 years.
19.130 The next question for consideration is, if LTC is to be provided, whether it is desirable to replace it with payment of a fixed sum with forced leave for a specified period.
19.131 The High Courts of Andhra Pradesh, Jammu & Kashmir, Karnataka, Kerala, Rajasthan, Sikkim and West Bengal are against this proposal. According to them, it may create administrative and personal problems to the Judicial Officers and also unnecessarily imposing burden on the State exchequer. It is also said that this would amount to encashing LTC.
19.132 However, the High Courts of Bihar, Bombay, Orissa, Punjab & Haryana, Tamil Nadu and Uttar Pradesh have favoured the replacement of LTC by payment of fixed amount. They are of opinion that in view of the mental strain and pressure, it is necessary that all Judicial Officers should be given a fixed sum with forced leave to make use of it as they like it.
19.133 The High Courts of Delhi and Gujarat also favoured replacement of LTC by payment of fixed amount, but they are against forced leave for specified period as it affects the working of courts.
19.134 Several Service Associations have also not favoured the concept of fixed sum with forced leave instead of LTC.
19.135 Only a few Associations have supported replacement of LTC by payment of fixed sum with forced leave.
19.136 Almost all the State Governments are against the replacement of LTC by payment of fixed amount since the financial implications of allowing such encashment would be enormous.
19.137 The next aspect to be considered is whether LTC should be allowed to carry forward to be utilised after retirement ?
19.138 The High Courts of Andhra Pradesh, Bihar, Gujarat, Jammu & Kashmir, Karnataka, Bombay, Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh and West Bengal support this proposal. However, the High Courts of Kerala, Madhya Pradesh, Punjab & Haryana are against it. The High Court of Sikkim favours LTC to be carried forward, (says that) it should be utilised only in the year of retirement.
19.139 Almost all the State Governments are against the carry forward idea.
19.140 The Service Associations are divided in their views.
19.141 The High Court of Himachal Pradesh, Jammu & Kashmir, Orissa, Rajasthan and Uttar Pradesh have suggested to make provision for encashment of unutilised LTC.
OUR RECOMMENDATION :
19.142 Keeping in view the various suggestions of the High Courts / State Governments and Service Associations and the nature of work of the Judicial Officers and also bearing in mind the basic philosophy underlying the LTC scheme, we make the following recommendations :
1) The LTC shall be provided to all Judicial Officers :
a) Once in four years to any place in India;
b) For entitlement of first LTC, one must have put in not less than 5 years of continuous service;
c) No LTC shall be allowed within one year before retirement*;
2) HTC : All Judicial Officers shall be provided HTC once in two years;
3) The entitlement for the journey would be according to the Rules in the respective States.
4) In view of the general opposition, we are not inclined to recommend cash payment in lieu of LTC. We are also not inclined to recommend carry forward of LTC beyond retirement.
* * * * *
________________________________________________________________
* We have received number of complaints that the Judicial Officers at the fag end of their service are not serious in their Court work and at the cost of the public duty and more often leaving the part heard cases go on LTC. To inculcate a sense of work culture, we have deliberately made this restriction.
SPECIAL PAY
19.143 The Commission has formulated the following question seeking the views and comments from the concerned on "Special Pay" :
Q.No. 35: In some States like Assam, Haryana, Kerala, Maharashtra, Gujarat, West Bengal, Goa and Jammu & Kashmir, varying Special Pay is paid to certain categories of Judicial Officers. What according to you should be the consideration for determining the posts to which Special Pay could be attached? Is it not advisable to provide Special Pay only to those posts which in addition to the judicial work, have administrative work as well?
19.144 The summary of the replies received indicates the following :
i) Most of the High Courts have suggested that Special Pay should be given only to those posts which in addition to the judicial work have administrative work as well. The High Courts of Delhi, however, has made a significant point for denying Special Pay to those who do the administrative work in addition to judicial work. It is stated that administrative work is done during office hours only and the Chief Justice of Supreme Court and the Chief Justice of the High Court though perform wide ranging administrative work get no additional remuneration and, therefore, there is hardly any justification for giving Special Pay to the Judicial Officers of the Subordinate Judiciary for performing the administrative work.
ii) Almost all the Service Associations have urged for payment of Special Pay to the Judicial Officers, who do administrative work in addition to judicial work.
iii) The majority of the State Governments have expressed the view that Special Pay should be abolished as the pay structure is based on the concept of nature of work, jurisdiction, qualification etc.
19.145 We have carefully examined the various suggestions / submissions made by the High Courts / Service Associations / State Governments.
19.146 We agree with the submission that the pay scale is fixed on several factors including the duties, responsibilities of the post and, therefore, no additional payment for Judicial Officers who do the administrative work during Court hours is called for.
19.147 We, however, request the High Courts to evolve a principle of paying "Special Pay" to such of those Judicial Officers who have considerable administrative work outside the Court hours. We do not have any such material before us and, therefore, we do not want to embark upon such enquiry.
* * * * *
CONCURRENT CHARGE ALLOWANCE
19.148 Normally charge allowance is being paid to those holding additional charge of a post with equal or higher responsibility. For the payment of such allowance, usually, it is stipulated that one should have held additional charge for a minimum period of certain number of working days ranging from 14 to 30. In some States charge allowance is being paid to Judicial Officers whereas in some other States they are not given any charge allowance.
19.149 From the replies received, it is found that charge allowance is paid in the following States viz., Andhra Pradesh, Gujarat, Jammu & Kashmir, Karnataka, Kerala, Maharashtra, Rajasthan and Tamil Nadu.
19.150 Almost all the High Courts are of the opinion that wherever a Judicial Officer holds concurrent charge of other courts and discharges additional work beyond the quota prescribed, there should be provision for payment of Charge Allowance.
19.151 However, the High Court of Patna (Bihar), Delhi, Himachal Pradesh and Maharashtra have not favoured this idea. Patna High Court has observed that "they put on mostly routine work of other courts" and therefore no charge allowance be paid. High Court of Delhi has stated that "such charge of other court is only a temporary phenomena" and therefore charge allowance is not required. The High Court of Himachal Pradesh states that "since the Judicial Officers do not turn out additional work and the working hours remaining the same, no allowance is necessary on this count." The High Court of Madhya Pradesh has observed that charge allowance is not justifiable.
19.152 In the States where charge allowance is allowed, there is no uniformity either with regard to the rate or the minimum period of entitlement. The rate varies from 3% to 5% of the Basic Pay and equally the period for entitlement.
19.153 It is suggested by some High Courts that charge allowance may be paid for Judicial Officer who holds the charge continuously beyond the period of 7 days, while other High Courts indicated that such period shall be more than two weeks at a stretch. Rate of charge allowance indicated by the High Courts varies between 10% to 20% of the Basic Pay.
19.154 The Central Government employees will get extra remuneration for the additional charge provided the period is not less than 40 days. The appointing authority is competent to make additional payments up to three months only. But prior approval of the Department of Personnel and Training is required for combination of appointments beyond 3 months and the concurrence of the Ministry of Finance is required for making additional payments beyond three months. (See G.I. M.H.A., Deptt. of Per. & A.R. O.M. No.6 (26)-Estt. (Pay-II)/81 dated 30.12.1981).
19.155 OUR RECOMMENDATION :
i) We have given our consideration to all aspects of the matter.
We recommend that charge allowance be paid to the Judicial Officer when he is placed in charge of another Court continuously beyond the period of ten working days and if he performs appreciable judicial work of that Court;
AND
ii) The charge allowance be paid to such Judicial Officer at 10% of the minimum of the time scale of the additional post held.
* * * * *
ENCASHMENT OF LEAVE AND LEAVE SALARY
19.156 Encashment of earned leave while in service has been allowed in some of the States; viz., Andhra Pradesh, Gujarat, Karnataka, Kerala, Maharashtra, Orissa, Rajasthan, Sikkim, Tamil Nadu and Uttar Pardesh. However, there is no uniformity in such scheme of encashment of leave in the States.
19.157 In the State of Andhra Pradesh, Judicial Officers are permitted to encash 15 days of earned leave in a financial year or 30 days in two financial years.
19.158 In Gujarat, Judicial Officers are permitted to encash 15 days leave once in two years.
19.159 In Karnataka, all the Judicial Officers are entitled to encashment of earned leave not exceeding 30 days at an interval of two years block period.
19.160 Encashment of Earned Leave for a maximum of 15 days in a year is allowed in Kerala.
19.161 In the State of Maharashtra, encashment of Earned Leave is permissible for 30 days once in two years.
19.162 In Orissa, every Judicial Officer is permitted encashment of 30 days earned leave in every block of two years, provided the Officer has 120 days earned leave to his credit.
19.163 In Rajasthan, encashment of earned leave for 30 days once in a block of two years is allowed.
19.164 In Sikkim, 30 days once in a block of three years is permitted. This provision appears to have been withdrawn from 31-1-1998.
19.165 In Tamil Nadu. 15 days earned leave at an interval of 12 months or 30 days at an interval of two years is allowed.
19.166 In Uttar Pradesh, 30 days encashment is permitted to the Officers having basic pay upto Rs. 2900/- and 15 days encashment to officers drawing above Rs. 2900/- as basic pay in every Calendar Year.
19.167 In other States, there appear to be no such facilities.
19.168 This facility is also not available to Central Government employees.
19.169 The 5th CPC discussed this issue in detail and did not recommend in-service encashment of earned leave. However, the 5th CPC recommend that encashment of leave should be linked to LTC. It has proposed that all employees may be permitted to encash 10 days earned leave at the time of availing LTC subject to the conditions that
(a) the total leave so encashed during the entire service career does not exceed 60 days in the aggregate;
(b) earned leave of at least an equivalent duration is also availed simultaneously by the employee;
(c) a balance of at least 30 days of earned leave is still available to his credit; and
(d) the period of leave encashed shall be deducted from the quantum of leave that can be normally encashed by him at the time of superannuation.
19.170 But these recommendations have not yet been accepted by the Central Government.
19.171 In this aspect, the Commission has received certain suggestions. Some High Courts have suggested that compulsory leave taking while encashing the leave should be discontinued. All the High Courts have suggested that there may be provision for encashment of leave in a block period, but the payment there from should be tax-free.
OUR RECOMMENDATION :
19.172 The Commission has considered all the suggestions and the existing schemes for encashment of leave. We want the Judicial Officers to work continuously and vigorously. They should not be compelled to avail leave while availing of the encashment facilities. The encashment as suggested by the High Courts should be tax-free. We accordingly recommend as follows :
(i) Benefit of availing encashment of leave be extended to all Judicial Officers in all the States/UTs without insisting on the availment of leave simultaneously.
(ii) Judicial Officers in all the States / UTs be allowed to encash leave not exceeding one month in a block period of two years.
(iii) The encashment of leave be made tax-free.
* * * * *
TRANSFER GRANT / DISTURBANCE ALLOWANCE
19.173 Each State has prescribed the rules regarding payment of Transfer Grant for transferred officers. But such Rules are in variance with the provisions made by the Central Government. Recently, the Central Government has introduced what is termed as "Composite Transfer Grant" with effect from 8-10-1997. The Composite Transfer Grant shall be equal to the month's Basic Pay in case of transfer involving change of station located at a distance more than 20 Kms from each other. In case of transfer to stations which are less than 20 Kms from the old station or transferred within the same city, the Composite Transfer Grant will be restricted to one third of the Basic Pay, provided a change of residence is actually involved. This excludes incidental expenses of the Government servant and the members of his family, and the expenses to go from the residence to Railway Station / Bus Stand / Air Port etc.
19.174 In our opinion this method of "Composite Transfer Grant" is simple and better than the cumbersome procedure under the existing Rules of the State Government regarding Transfer Grant. In fact, there is not much difference in the ultimate benefit in Rupees, annas and pies in one or other method.
19.175 We, therefore, recommend to all States to follow the Government of India Rules for payment of Transfer Grant. Till then, the existing rules in each State / UT would also govern the Judicial Officers.
* * * * *
HOUSING, HOUSE RENT ALLOWANCE AND RELATED ISSUES
19.176 Housing is a basic need, next only to food and clothing. But the provision of this minimum need has lately become difficult on account of factors like excessive population pressure, growth of urban agglomeration consequent upon industrial development, the 'push' and 'pull' factors leading to migration from rural to urban areas. We have too many people chasing too little housing. It is, therefore, necessary that the State should assume greater responsibility on the question of housing.
19.177 The Hon'ble Supreme Court in the main judgment in the All India Judges' Case1 has observed thus :
"33. Provision of an official residence for every Judicial Officer should be made mandatory. A Judicial Officer to work in a manner expected of him has to free himself from undue obligations of others, particularly owners of buildings within his jurisdiction who ordinarily may have litigation before him. This is mostly the case in rural areas where outstation judicial courts are located. We are aware of cases where a rural court is located in the building belonging to a lawyer or a client. Even the residential accommodation of the judicial officer belongs to people of that category. Such a situation often gives occasion to personal embarrassment to the judicial officer and it has to be avoided.
34. Expenditure on residential accommodation in a family budget is not ordinarily to exceed 15 per cent of the monthly income; otherwise it becomes difficult for the person concerned to make his
1. (1992) 1 SCC 119.
two ends meet. A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation. In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly salary, a situation which cannot be countenanced by any logic. It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily. Rendering justice is a difficult job. It is actually a divine act. Unless the judicial officer has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands."
"35. Very often building projects are undertaken for providing residential accommodation to public officers but the requirement of the judicial officer is not taken into account for one reason or the other. Control of the State purse is in the hands of the executive. As appropriate share of construction expenses is not being provided towards accommodation of judicial officers, they do not have any quota in the building projects. As a result of this over the years at several places throughout the country residential accommodation for judicial officers has turned out to be scanty. Many judicial officers dread postings in Metropolitan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accommodation. The cost of living also becomes heavy."
"36. We take judicial notice of the fact that the Planning Commission of the Central Government is considering acceptance of the subordinate judiciary as a plan subject. Providing adequate residential accommodation should be considered as a priority. Until, adequate governmental accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommodation for every judicial officer according to his entitlement and recovery of not more than twelve and a half per cent of salary of the officer towards rent should be made and the balance should be met by the State Exchequer. We would emphasise the need of provision of a separate and exclusive office room as an indispensable component of every such official residence and the accommodation should take into account this feature. As a long term measure, Government accommodation should be constructed to meet the need of the judicial officers at their respective stations. This should be a matter for the Planning Commission to review and the State Government to co-operate and undertake construction activity. The Governments of the States and the Union Territories would take some time to implement this part of the direction. In case for some reason, the Planning commission does not come forward to take up the matter before January, 1992, the Chief Justice of every High Court should set up a committee with him as Chairman where two senior Judges of the Court and the Secretaries of Finance, Law and Works should be members and annual planning of construction of residences should be made. We accordingly fix the outer limit of December 31, 1992 when this part of the direction would become fully operative."
19.178 In the Review Judgment2 the Apex Court further observed that the Government has to give priority for construction of adequate number of houses for Judges with necessary facilities and the provision of house rent allowance is not an answer much less a substitute for the adequate housing facility. It was,
2. AIR 1993 SC 2493.
however, clarified that above direction was not intended to provide rent-free housing accommodation but accommodation at a rental not exceeding 12.5% of the salary of occupant. The relevant extract of the Review Judgment reads :
"(vi) Provision for residential accommodation : In the directions given, this court has emphasised that the judicial officers cannot be left without proper accommodation for any length of time. Secondly, the accommodation available to the judicial officer must be adequate and consist also of a separate and exclusive office-cum-study room as an indispensable component of such residence. Thirdly, it was pointed out that in the absence of official residences, the judicial officers are required to pay exorbitant rent out of proportion to their salaries. Lastly, it was emphasised that in the pool of the Government accommodation which is available in any town, the judiciary gets the last priority. The Governments have not so far shown any keen awareness of the problems faced by the judges for want of accommodation and of the manner in which it affects the discharge of their duties. It is for these reasons that it was suggested that the Government should give top priority to the provision of residential accommodation to the judges and construct enough houses with the requisite facilities."
"It is difficult to understand the objections raised by the review petitioners to the said direction. The attitude adopted by the petitioners itself bears out that the Governments are not at all keen on providing proper residential accommodation to the members of the judiciary and justifies the necessity to give the said direction. On the admission of the review petitioners, there is at present a shortage of about 5000 houses. This means that about 50 per cent of the judicial officers are facing trials and tribulations for want of proper accommodation at rentals within their means. The estimated expense of Rs. 150 to 200 crores for constructing the said houses which is to be incurred by all the States and the Union Territories is according to us not forbidding even assuming that the estimate is (sic)."
"We now understand that the judiciary has not been included as a pl an subject by the Planning Commission. If this is so, the construction of adequate number of houses with the necessary facilities should be given the top priority being the most primary requirement of the judges at any place. The provision of house rent allowance is not an answer much less a substitute for the adequate housing facility. In the judgment under review, it has been specifically emphasised that the provision of a separate and exclusive office room is an indispensable component of the official accommodation allotted to the judicial officer. In order to ensure that the quarters constructed for the judicial officers are of proper dimension and with adequate number of rooms, their future construction should be made in consultation with and under the supervision of the respective High Court and the High Court should take adequate interest in their construction.
"It may be noted in this connection that the direction is not to provide rent-free housing accommodation but accommodation at a rental not exceeding 121 per cent of the salary of the occupant. We, therefore, reiterate the said direction and reject the objections of the petitioners."
19.179 In this respect, the Commission formulated five questions seeking the opinion / suggestion of High Courts, State Governments and Service Associations. The questions and replies received from the respondents are set out here under :
Q.No.42. The Supreme Court has observed that residential accommodation to every Judicial Officer must be provided. If State accommodation is not available, it should be the obligation of the State Government at the instance of the High Court to provide requisitioned accommodation with provision for 'Home Office' for every Judicial Officer according to his entitlement and recovery of not more than 12 1% of the salary of the Officer towards rent should be made and the balance should be met by the State Exchequer. Is this being followed in your State / UT?
19.180 Almost all the High Courts, Service Associations and State Governments have stated that in their respective States, the directions of the Supreme Court regarding provision of residential accommodation to every Judicial Officer have been complied with by providing state accommodation or requisitioned accommodation. However, some High Courts have reported that the accommodation provided to Judicial Officer is not befitting their status and it lacks space for home office.
Q.No.42.1. It is suggested by some that it is necessary in the public interest that all Judicial Officers in every State / UT be provided with rent free Government accommodation according to their entitlement as a condition of service. How do you justify this proposal? Would it not come in conflict with the aforesaid observations of the Supreme Court? (Note: In States like Bihar, Haryana, Orissa and Punjab, certain categories of Judicial Officers are provided with rent free accommodation).
19.181 Replies received from the High Courts reveal that as many as 11 High Courts viz., High Courts of Andhra Pradesh, Gujarat, Himachal Pradesh, Kerala, Madhya Pradesh, Bombay, Punjab & Haryana, Rajasthan, Sikkim, Tamilnadu and Calcutta have observed that rent free accommodation is to be provided to all the Judicial Officers and it does not come in conflict with the observations of the Supreme Court, because what has been provided is only the minimum and not the maximum.
19.182 The High Court of Gujarat has stated that in case of providing rent free accommodation to Judicial officers, the question of payment of HRA does not arise.
19.183 It is also brought to the notice of the Commission that in several States like Punjab, Haryana, Orissa and Bihar, some category of Judicial Officers are already provided with rent free quarters and, therefore, the observation of the Apex Court does not debar providing of rent free accommodation to all Judicial Officers.
19.184 The High Court of Delhi observed that providing rent free accommodation may not be conducive to resource needs of the state exchequer. More or less, similar views are expressed by the High Court of Jammu & Kashmir when it has stated that "rent should be recovered as expenditure on construction of quarters is made out of public funds." The Orissa High Court has suggested that if Government accommodation is not provided, house rent given to Judicial Officers should be on par with house rent given to such corresponding category of Central Government employees.
19.185 During the hearing, the Service Associations have urged before the Commission that rent-free accommodation should be provided to all Judicial Officers and it will not conflict with the directions of the Supreme Court. It is also urged that rent-free accommodation should be made as a condition of service. But certain Associations have contended that this proposal is directly in conflict with the observations of the Apex Court and hence not justified.
19.186 But the State Governments have urged that providing rent-free accommodation to all Judicial Officers would be against the guidelines of the Apex Court.
Q.No.42.2. It is suggested that those Judicial Officers who are on their own or who do not avail of Government quarters may be given a lumpsum tax-free House Rent Allowance depending upon the cadre of the Officer. How much would you suggest as House Rent Allowance in such cases?
19.187 By and large, the High Courts have suggested to provide lumpsum tax-free H.R.A. to the Judicial Officers occupying their own house with permission of the High Court. However, there is no unanimity with regard to the amount of such tax-free H.R.A. The High Courts of Delhi, Gujarat, Jammu & Kashmir, Bombay, Sikkim and Calcutta favour either the formula suggested by the V C.P.C. or 30% of the basic salary of the officer as tax-free H.R.A.
19.188 All the Service Associations have strongly pleaded to provide lumpsum tax-free H.R.A. in varying scales ranging from Rs.1000 to 5000 per month.
19.189 The State Governments have stated that the provisions of H.R.A. as applicable to Government servants should apply mutatis mutandis to Judicial Officers. They have further stated that payment of lumpsum tax-free H.R.A. is not desirable to one section of the community since such payment is not provided to all Government servants.
Q.No.42.3. "Who looks after the maintenance of the accommodation provided to Judicial officers? Whether it is Public Works Department or Judicial Department? Is there any deficiency in the Service?"
19.190 All the High Courts, except the High Court of Allahabad, have stated that the maintenance of the accommodation provided to Judicial officers is required to be looked after by the Public Works Department, but the services provided are not satisfactory. The High Court of Allahabad has stated that at present in Uttar Pradesh maintenance of the Judges Quarters is looked after by the Judicial Department, but it has no separate establishment for the purpose and, therefore, it should be entrusted to the Public Works Department with proper budgetary allocation.
19.191 Some High Courts like Karnataka, Punjab and Haryana have suggested that it would be better to have an Engineering Wing in the Judicial Department to maintain the Court buildings and judicial quarters with sufficient flow of funds.
Q.43 What are the facilities available for Judicial Officers in your State/UT to own house/site at a place of their choice for settling after retirement? What Scheme do you suggest to secure loan either from the Government or from the financial institutions for construction of houses at a concessional rate of interest?
19.192 Most of the High Courts have reported that no separate facilities are available to the Judicial Officers to own a house/site at places of their choice after retirement. Similar views have been expressed by the Service Associations. Some High Courts and State Governments have reported that the judicial Officers like the other Government employees are entitled to House Building or House Purchasing Advance at some concessional interest. The scale of finance for HBA / HPA varies from State to State. Some of the High Courts have suggested that adequate finance with nominal interest / subsidised interest be given to Judicial Officers for the purpose of constructing/purchasing a house. It is suggested by some High Courts and Service Associations that whenever sites are alloted by the Improvement Development Authorities or houses are allotted by the Housing Board, certain quota be reserved to the Judicial officers. Further analysis of the data reveals that some of the High Courts have suggested to adopt the scale of finance for HBA / HPA as recommended by V C.P.C. The State Governments have reported that their respective HBA rules are also made applicable to Judicial Officers and certain percentage of quota is already provided for allotment/allocation of houses/sites to all the employees including Judicial Officers.
OUR RECOMMENDATION :
19.193 Having given our anxious consideration to the grievances of the respondents, we recommend the following:
1. All Judicial Officers, irrespective of their cadre, should be provided with Government quarters according to their entitlement. If adequate Government quarters are not available at a time, the Government shall requisition the proper houses and make available to the Judicial Officers.
2. Government is entitled to collect by way of rent an amount not exceeding 12.5% of the basic pay of the occupant of such accommodation every month, since we are inclined to recommend payment of House Rent Allowance to every Judicial Officer irrespective of providing Government quarters/requisitioned houses.
3. All Judicial Officers are entitled to House Rent Allowance at the rate provided to the Government servants in the respective States/UTs.
4. Judicial Officers who occupy their own houses with the permission of the High Court are also entitled to H.R.A. at the same rate as provided to the corresponding Government employees.
5. We earnestly appeal to all State Governments/U.T. Administrations to undertake a "crash programme" for house construction for Judicial Officers and for the Court Complex with the assistance of Planning Commission and Government of India and complete such programme during the next two to three years.
6. The Government quarters/requisitioned house provided to Judicial Officers must have separate space for 'Home Library' and the necessary books and the furniture of the Home Library shall be at the cost of the High Court, which shall be administered and managed by the Principal District Judge of the District.
7. The Drawing Room of each such quarters/houses shall be reasonably furnished with a sofa set, carpet, teapoy and one or two side tables and chairs at the cost of the High Court / State which shall be administered and managed by the Principal District Judge.
The upholstery of every sofa-set should be changed once in three years.
8. The regular maintenance and repairs of Government quarters allotted to Judicial officers shall be the obligatory duty of the Public Works Department, since it is not possible for the High Court to maintain a separate department for this purpose.
9. A certain percentage of sites / houses, wherever they are available for allocation / allotment by the Housing Board /City Improvement / Development Authorities etc., should be ear-marked for allotment to Judicial Officers by the respective State Governments / UTs.
* * * * *
TELEPHONE FACILITIES
ANDHRA PRADESH :
19.194 All Judicial Officers in Andhra Pradesh are provided with telephones both at Courts and at their residence with STD facilities subject to the following ceilings prescribed by the High Court:
Sl. No.
Name of the Category
Ceiling Fixed
(for two months with STD facility & without ISD)
Chambers
Residence
1.
Prl. District Judges
3,000 calls
2,000 calls
2.
Addl. District Judges
3,000 calls
1,000 calls
3.
Sub-Judges
2,000 calls
1,000 calls
4.
District Munsiffs
2,000 calls
1,000 calls
ASSAM :
19.195 Telephones are provided to the District Judges, Addl. District Judges, Chief Judicial Magistrates, Addl. Chief Judicial Magistrates, Civil Judges (Sr. Divn.), and S.D.J.M. in the Sub-Division, both at office and residence. The District Judges and Chief Judicial Magistrates are provided STD facilities in their residence. But the Judicial Magistrates and Munsiffs are not provided with telephones at their residence.
BIHAR :
19.196 The District Judge (Principal District Judge) has been provided with telephone at his office and residence. CJM / ACJM are provided with telephone at their residence. There is no ceiling of calls.
Other Officers have not been provided with telephone.
DELHI :
19.197 There is no Taluka / Tehsil level Court in Delhi. Judicial Officers who are in the pay scales of Rs.3700-5000 and above are entitled to telephone at their residence. Residential telephones have also been provided to all District Judges who have put in 5 years service having senior time scale of Rs.3000-4500.
GOA :
19.198 Telephone is provided at District / Taluka Courts, Residential telephones are also provided to the District / Additional District Judges, Civil Judges (Senior Divn.) and Civil Judges (Junior Divn.).
GUJARAT :
19.199 All Taluka Courts are provided with Telephone facilities. A policy decision has been taken to provide telephone facility to Judicial Officers at their residence at every District / Taluk level.
The Judicial Officers are entitled to free calls as follows:
District & Sessions Judge /
City Civil & Sessions Judges - No limit
Joint District & Sessions
Judges - 1000 calls bimonthly.
All other Judges / Magistrates - 650 calls bimonthly
HARYANA :
19.200 All the District & Sessions Judges, Addl. District and Sessions Judges, Chief Judicial Magistrates and Senior Sub-Judges have been provided with telephone both at office and residence. Additional Civil Judges (Senior Division) are provided with telephone only at office, Civil Judges (Junior Division)-cum-Judicial Magistrates are not provided with telephone facilities.
JAMMU AND KASHMIR :
19.201 Tehsil level Courts are not provided with telephone. The District Judges / Chief Judicial Magistrates have been provided with telephone facility. Some Special Mobile Magistrates are also availing of this facility.
KARNATAKA :
19.202 In Taluks, the combined Courts are provided with telephones. But the Presiding officers of the Taluk Level Courts are not having telephones at their residence.
KERALA :
19.203 Only District Judge, Additional District Judge and Chief Judicial Magistrate are provided with telephone at office and residence. Others are not given any such facility.
MADHYA PRADESH :
19.204 Telephones have been provided both at office and residence of District Judges, Special Judge under S.C., S.T., Prevention of Atrocity Act, and District Judge, Consumer Forum. Telephone has been provided to Chief Judicial Magistrate at his residence. The Chief Judicial Magistrate has been given STD facility for his residence telephone but not for other Judges.
MAHARASHTRA :
19.205 Every Court has been given telephone, but only the District Judges and Chief Judicial Magistrates have the residential telephones. STD facility is provided only to residential telephone of District Judges. But there appears to be no free calls for personal use. However, if total number of calls do not exceed 750 per month, it seems no questions are asked and the payment is invariably made by the office.
ORISSA :
19.206 The Judicial Officers in the ranks of District Judge and Chief Judicial Magistrates have telephone both in the office and residence. So also Registrar, Civil Court and a few other officers. But no STD facility is given except for the telephone in the office of the District Judges.
PUNJAB :
19.207 District Judges, Chief Judicial Magistrates and Senior most Civil Judges have telephone at their residence and also in the office. Apparently, the others do not have telephone.
RAJASTHAN :
19.208 Officers below the rank of Chief Judicial Magistrate are not having telephone either in their Court or at their residence. Obviously, the Officers above the said rank do have the telephone.
SIKKIM :
19.209 All the Judicial Officers are given telephone at their Court as well as at their residence with STD facilities.
TAMIL NADU :
19.210 The District Judges and Subordinate Judges are provided with telephone in Court and in their residence, except the Civil Judge (Jr. Divn.)-cum-Judicial Magistrate.
TRIPURA :
19.211 Telephone facilities have been provided in the office of the District Judge, Chief Judicial Magistrate and SDJM and also at the residence of District Judge and C.J.M. Perhaps, the other categories of Officers do not enjoy that facility.
UTTAR PRADESH :
19.212 At Tehsil Courts, telephone at present has been provided to one senior most Officer. In the District Headquarters, most of the Officers upto the cadre of Civil Judge (Senior Division) are given telephone at the residences with ceiling of 700 calls.
WEST BENGAL :
19.213 District Judges have been given telephones in chambers, offices and residences. Chief Judicial Magistrates and Sub-Divisional Judicial Magistrates are having telephone in their chambers, in most of the Districts and Sub-Divisions. In Chambers of some of the Munsifs at Sub-Divisional level, telephones are provided. There is no telephone at the residence of the Civil Judges (Senior Division) and Civil Judges (Junior Division) and the Additional District Judges. Telephones are provided at the residence of the Chief Judicial Magistrates and Sub-Divisional Judicial Magistrates.
SUGGESTIONS :
19.214 There are many suggestions from Service Associations and individuals. Broadly to state:
19.215 Telephone facilities should be provided to each Judicial Officer, both in Court and also at his residence.
19.216 STD facilities be provided for residential telephones, but number of units relating to the calls can be fixed for each Officer.
19.217 Some have suggested that 650 metered calls be provided free for personal use, while others have suggested that all call charges for personal requirement must be fully reimbursed. Some others have asked for 50% of the chargeable calls should be reimbursed.
19.218 Suggestion has also been made on the requirement to maintain a separate register for private calls, while others have stated that Judicial Officer be asked to pay charges made as personal calls on the telephone numbers which are not mentioned in the telephone directory of the High Court.
SUGGESTIONS FROM HIGH COURTS :
19.219 The High Court of Bombay has suggested that all the Presiding Officers be provided with residential telephone and certain number of free calls over and above the free calls permitted by the telephone department be allowed for personal requirement of Judicial Officers treating the same as part of service conditions.
19.220 The Calcutta High Court, however, has stated that all Judicial Officers require telephone at their chambers with restriction not to use the telephone for personal purposes except by making payment for personal calls. Similar is the view expressed by the West Bengal Judicial Service Association stating that the Judicial Officers will have to pay the charges from their own pocket for personal use of the telephone.
19.221 The High Court of Sikkim has stated that the Judicial Officers do require telephone at Office and at residence with STD facilities and accordingly are provided in their State. But occasionally the use of the telephone goes high and, therefore, the free calls may be limited depending upon the categories of Officers.
19.222 We have considered these suggestions.
19.223 In Central Government and some States, telephones are not provided to the residence of the Officers below the rank of Deputy Secretary. Telephones at the office and residence of Deputy Secretary level Officers are, however, provided, but no STD facilities.
19.224 In these days, telephone is a necessity and not to be regarded as a luxury. It is, therefore, not only desirable but also necessary to provide telephone in all Courts and also at the residence of every Judicial officer.
19.225 However, we have to evolve a uniform principle without prejudice to the benefits already allowed to the Judicial officers in some States with regard to STD facilities.
OUR RECOMMENDATION :
19.226 We, therefore, recommend as follows:
1. Every Court must be provided with a telephone with STD facilities.
2. Every Judicial Officer must be provided with a telephone at his residence with STD facilities except to Civil Judge (Sr. Divn.) and Civil Judge (Jr. Divn.).
3. Without prejudice to the existing benefits of the free telephone calls, we recommend the following limits of free calls to the different categories of Officers:
Sl. No.
Name of the Category
Admissible free calls for two months
Office
Residence
i)
Prl. Dist. Judge/Sessions Judge/C.M.M. (with STD facility both in office and residence)
3,000
2,000
ii)
Addl. Dist. Judge/Addl. Sessions Judge (with STD facility both in office and residence)
2,000
1,000
iii)
Civil Judge (Sr. Dn.) and C.J.M.
(STD facility to CJM both in office and residence)
2,000
1,000
iv)
Civil Judge (Jr. Dn.)/Magistrate
1,500
750
4. The office must bear the expenses of the installation and bi-monthly payment of the telephone bills upto the aforesaid ceiling. Th excess calls, if any, must be borne by the concerned Judicial Officer.
* * * * *
ADVANCES
19.227 The Government provides loans and advances to its employees for various purposes, which include house building / purchase advance (HBA / HPA), motor car advance, marriage advance, festival advance, advance for miscellaneous purposes like purchase of Khadi / Handloom cloth, warm clothing etc. All these facilities are hitherto extended to Judicial Officers also by the respective States / UTs.
19.228 Some advances are interest-free for e.g., festival advance, advances in connection with transfers, tours and journeys on LTC., whereas other advances like HBA /HPA, purchase of conveyances, personal computers, etc., are interest bearing.
ADVANCES FOR CONSTRUCTION / PURCHASE OF HOUSE :
19.229 At present, advances are granted for purchase of sites, construction and purchase of houses. The general pattern of advances available to the Central and State Government employees in this regard is almost similar. However, each Government has prepared a scheme of its own depending upon the local circumstances and available resources.
19.230 At present Central Government employees are entitled to HBA / HPA as indicated in the table below:
Sl.No.
Purpose
Cost
Basic pay + Stagnation Increment + NPA
Maximum limit (in Rs.) w.e.f. 16.12.97
1.
Construction of a house excluding plot
100%
50 times
7,50,000
2.
Construction of a house including plot
3.
Purchase of ready built house or flat
4.
Construction of a house in a rural area
80%
50 times
7,50,000
5.
Enlarging existing living accommodation
100%
50 times
7,50,000
6.
Enlarging existing living accommodation in rural areas
80%
50 times
7,50,000
19.231 Further, w.e.f. 16.12.97, the cost of ceiling limit, will be 200 times of the basic pay + NPA + SI subject to a maximum of Rs.18 lakhs. The entire amount of advance together with interest is to be repaid in full in monthly instalments within a period of not exceeding 20 years - the advance in 180 monthly instalments and the interest in 60 instalments. The advance carries differential interest rates ranging from 7.5% and 12% per annum depending upon the quantum of advance.
Conveyance Advance :
19.232 With a view to encourage and assist their employees to own their own vehicles which are required for use in the discharge of their duties, both Central and State Governments have been giving them advances repayable in easy instalments for purchasing vehicles.
19.233 At present, the advance for the purchase of a motor car is admissible only to Officers drawing a pay of Rs.10,500/- per month or more in Government of India. An amount not exceeding 11 months' pay subject to a maximum of Rs.1,80,000/- or the cost of the vehicle, whichever is less, is granted as advance for the purpose.
19.234 Similarly, an advance for the purchase of a motor cycle / scooter / moped is admissible to those drawing a pay of Rs.4,600/- p.m. or more. In this case also, an advance not exceeding 6 months' basic pay subject to a maximum of Rs.30,000/- or the cost of the vehicle, whichever is less, is granted.
Personal Computer Advance :
19.235 The advance for the purchase of a Personal Computer is admissible only to Officers drawing a pay of Rs.10,500/- or more per month in Government of India. An amount not exceeding Rs.80,000/- or the anticipated price of the computer (excluding customs duty, if any), whichever is less, is granted as advance for this purpose. The Commission elsewhere has recognised the importance of I.T. for Judiciary and hence there is need for purchase of personal computer by Judicial officers.
19.236 OUR RECOMMENDATIONS :
1. We recommend that all State Governments / UTs may adopt the limits prescribed by the Central Government for giving advances to Judicial Officers for construction / purchase of House.
2. We further recommend that a rebate of ½ % in the interest on HBA as admissible in the case of Central Government employees for undergoing sterilisation operation, may also be provided to Judicial Officers.
3. Elsewhere, the Commission has recommended liberal soft loan upto Rs.2.5 lakhs for Judicial officers to purchase Motor Vehicles on nominal interest and with easy instalments for repayment. We reiterate the same herein.
4. Advance for purchase of Personal Computer by the Judicial Officers be given on the same scale and terms and conditions as allowed to Government of India Officers.
A N D
5. Other Advances, if any, to the Judicial Officers in regard to matters not specifically covered herein, may be provided on the similar terms and conditions admissible to Central Government Officers.
* * * * *
20. PROMOTIONAL OPPORTUNITIES
20.1 The adequate promotional opportunity is one of the significant factors in service jurisprudence. Every officer looks forward to reasonable career progression not only because of higher salary but also with the object of occupying higher position of power and responsibility. It is undeniable that stagnation for long period would demoralise the officers. It is, therefore, necessary to evolve a proper promotion policy.
20.2 Keeping in view these factors, the Commission sought the views and comments on the following Questions :
Q.No.44. How many promotions a Judicial officer in your State at the lowest cadre normally gets during his tenure of service and at what intervals? Work out the realities with concrete examples.
Q.No.44.1. Does he invariably reach the highest cadre in the Judicial Service before retirement? If not, at what level does he stagnate and let the Commission have your suggestions to avoid stagnation?
Q.No.44.2. Should promotion be based on selection by merit alone or seniority-cum-merit? Please give reasons for preferring one or the other.
20.3 The replies received from the Respondents are presented below :
Almost all the High Courts have stated that a Judicial Officer recruited at the lowest level [i.e. Civil Judge (Junior Division)], generally gets promotion upto the post of Addl. District Judge / District Judge. Certain stray incidents of some Judicial Officers recruited as Civil Judges (Junior Division) retiring as Civil Judge (Senior Division) have also been reported. On careful scrutiny, it is found that such Officers have entered Judicial Service at an advanced age and could not complete even 25 years of service, before they could get promotion to the cadre of Addl. District Judge / District Judges. It is also noticed that in some cases, Civil Judges (Junior Division) not only reached the cadre of District Judges, but also marched to the High Court.
20.4 Some of the High Courts have reported that normally the first promotion from the cadre of Civil Judge (Jr. Dn.) to Civil Judge (Sr. Dn.) takes place within 6-9 years and second promotion after an interval of another 6-9 years. The High Courts of Kerala, Allahabad and Calcutta have stated that the interval between one promotion and another is about a decade. However, Sikkim stands as an exception. It is a small State with less number of Judicial Officers and having a population of around 5 lakhs with no scope for adequate promotional opportunity.
20.5 To prevent stagnation, various views have been expressed. Many of the High Courts / Service Associations and State Governments have suggested the following remedies :
i) Introduction of time bound pay scales or career advancement scheme.
ii) Provide a running pay scale.
iii) Stop direct recruitment from the Bar to the cadre of District Judges.
iv) Reduce at least the percentage of direct recruitment to the cadre of District Judges and make it uniform in all States / UTs.
v) All ex-cadre posts having judicial functions must be brought within the umbrella of judicial service with provision for deputation.
vi) Create selection grade and super-time scale in the District Judges cadre.
20.6 On the question as to whether promotion has to be on the basis of seniority-cum-merit or promotion by selection, the following suggestions have been received:
The High Courts of Andhra Pradesh, Delhi, Himachal Pradesh, Jammu & Kashmir, Kerala and Orissa have suggested that all promotions shall be made on the ground of ability and merit so as to keep all the Officers on their toes all the time and compel them to improve and give their best. However, they have added that seniority will have to be considered where merit and ability are equal.
The High Courts of Bihar, Gujarat, Karnataka, Madhya Pradesh, Punjab & Haryana, Sikkim, Tamil Nadu, Uttar Pradesh and West Bengal have favoured the principle of seniority-cum-merit for promotion. According to them, though promotion by merit is good in principle, it is more often based on subjective satisfaction and it is difficult to objectively consider the standard of meritorious performance.
Most of the Service Associations and State Governments have, however, favoured the principle of ‘Seniority-cum-Merit’ for promotion.
20.7 Taking all these factors into consideration, we have :
i) Rationalised the cadre structure and accordingly rationalised the pay structure also. Evolved a Master Pay Scale and carved out the required number of pay scales which have been elongated to prevent stagnation.
ii) Recommended Assured Career Progression Scheme for the cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) by providing two financial upgradations, within the stipulated time-frame.
iii) Recommended Selection Grade and Super-Time Pay Scales for District Judges, consistent with the functional needs and requirements.
iv) Recommended that the cadre of Civil Judges (Senior Division) should be purely a promotional cadre and no direct recruitment should be made to this cadre.
v) Recommended suitable amendment to Article 233 (2) of the Constitution to provide an opportunity for in-service Judges to compete for direct recruitment to the cadre of District Judges.
vi) Recommended that ‘not exceeding 25% of the posts in the cadre of District Judges should be reserved for direct recruitment’. This much of percentage for direct recruitment is considered necessary to promote efficiency, while at the same time, not impairing the interests of the promotees.
vii) Recommended an innovative concept of certain weightage for fixing the inter-se-seniority of the promotees and direct recruits in the cadre of District Judges to minimise if not to remove the constant irritation and imbalance between the promotees and direct recruits.
viii) Suggested that the promotional posts should be filled up at the earliest without being linked to the direct recruits.
* * * * *
21. SUPERANNUATION AGE OF JUDICIAL OFFICERS
SURVEY OF THE PAST :
21.1 In the past, the age of retirement of judges in the judicial service in every state was linked to that of the State Government Employees / Central Government Employees.
21.2 Till 31-3-1938, the normal age of retirement of Central Government Employees was 55 years. Employees could, however, be retained in service upto 60 years depending on their being physically fit and mentally alert.
21.3 The First Central Pay Commission set up by the Central Government in 1946 recommended 58 years for superannuation of Central Government employees. But this recommendation was not accepted by the Government on the ground, inter-alia, that the majority of persons retiring at the age of 55 were not capable of rendering efficient service; that their replacement at the age of 55 by younger men would serve the interest of efficiency better and that a retirement age should be fixed which would release men at the age when they would still be fit to render service to the country in other spheres of their choice.
21.4 In 1953, the question was reconsidered, but the earlier decision to retain the age of retirement at 55 was reaffirmed. The Government, however, decided that in view of shortages of trained personnel, the extension of service beyond 55 years might be given liberally on the ground of public interest particularly in the case of scientific and technical personnel.
21.5 In 1958, the question of retirement age was again considered in view of the continuing shortage of trained manpower. The Government did not extend the age of superannuation, but laid down the criteria for grant of extension and re-employment of technical and scientific personnel. It was decided that re-employment or extension might be granted upto two years at a time.
21.6 The Second Central Pay Commission examined the question of retirement age in some greater detail. It compared the data on life expectancy at birth and the retirement age, and also the data on general mortality and survival rate of pensioners, in comparison with the age of superannuation of Government servants in some foreign countries. The Commission also took note of the opinions expressed by eminent persons, economists, retired public servants, heads of departments, etc. After considering the various aspects, the Commission recommended an upward revision to 58 years. It mainly relied upon the fact that the life expectancy in India has improved, and there was greater need of scientific and technical personnel in Government service to meet the requirements of the Third Plan, then on the anvil.
21.7 Initially, the said recommendation was not accepted by the Government, since it was felt that raising the age of superannuation would reduce employment opportunity.
21.8 In 1962, the matter was again brought to the attention of the Government. The Government then took into consideration several factors like shortage of experienced and trained manpower; insignificant impact on employment opportunity (viz., of less than one per cent of the total volume of additional employment needed for the educated unemployed during the Third Plan period); the higher expectation of life and the continued physical fitness of Government employees after retirement. The Government decided to raise age of retirement from 55 to 58 years with effect from 1st December 1962. The age of retirement for Group D category of employees and workshop employees in the Central Government was maintained at 60 years.
21.9 The Third and Fourth Central Pay Commissions received many representations for upward revision of age of retirement to 60 years. But it did not favour the revision on the ground, inter-alia, that it would reduce the employment opportunities for fresh graduates and technical persons in Government service. They emphasised the need for injecting fresh blood and fresh knowledge for the efficient working in government.
21.10 All the State Governments save State of Kerala have followed similar age of retirement to their respective employees and also extending the same to Judicial officers in their states.
21.11 When the matter thus stood, the All India Judges' Association filed a writ petition1 before the Supreme Court seeking several reliefs including the upward revision of retirement age. It was contended before the Court therein that there is a marked distinction between the Civil Service and the Judicial Service, both in the qualification and nature of work. The age of superannuation of the Judicial Officers should be more than that of civil servants in as much as the basic qualification for recruitment to the judicial service requires every Officer to have in the minimum a bachelor's degree in law which is acquirable after becoming a graduate. But for normal civil service an ordinary graduate could apply and secure a job and that is not possible in judicial service which requires further period of three years to acquire the basic qualification. This inevitably would take minimum age for entry into Judicial Service higher than the minimum age for entry into Civil Service. It was urged that a distinction has to be maintained in the age of retirement for the Judicial Officers from that of the Civil Service and it is wrong to apply the same rule for both the categories.
21.12 Considering these and other factors, the Supreme Court observed that the age of retirement of Judicial Officers in subordinate courts should be raised from 58 to 60 years.
______________________________________________________________
1. AIR 1992 SC 165 = (1992) 1 SCC 119.
21.13 The aforesaid view has been maintained in the Review Judgement2 but with certain directions, which will be presently considered.
FIFTH CENTRAL PAY COMMISSION :
21.14 This Central Pay Commission was also required to examine the question as to the appropriate age of retirement of Central Government employees. The Commission entrusted the matter to the INSTITUTE OF APPLIED MANPOWER RESEARCH ("IAMR") for study and report.
21.15 IAMR if, we may say so, has examined the question in a scientific manner with collection of statistics of this country and countries abroad. It has even collected the up-to-date Data and in particular from the ILO Report III of the Joint Committee of Public Services (4th Session), Geneva, 1988. The relevant part of the report may usefully be extracted herein below3 :
"It is observed that the age of superannuation is 65 years in most Western Countries, viz. Australia, Belgium, Finland, France, Greece, Italy, Ireland, Luxembourg, Netherlands, Spain, Sweden, Turkey, U.K., Canada and U.S.A. In Denmark the age of retirement is 67 and in Norway, the retirement age of 70 years is followed in the case of certain categories of employees. In Asian region, the highest age of retirement is 65 years in Japan and Hong Kong; 60 years in China, Pakistan, Philippines; 57 years in Bangladesh; and 55 years in Malaysia, Singapore and Sri Lanka."
______________________________________________________________
2. AIR 1993 SC 2493; (1993) 4 SCC 288.
3. IAMR Report, Page 17.
21.16 The Table containing the age of superannuation in public services in foreign countries prepared by IAMR is hereto annexed as Annexure I to this chapter.
21.17 It is interesting to note the new developments in the age of retirement in other countries. IAMR has collected the following information:
NEW DEVELOPMENTS - WORLD TRENDS4
"In a number of countries, specially in European region, a further increase in the retirement age is round the corner. This change is taking place due to demographic causes especially the phenomenon of ageing population; and to reverse / arrest the trend of early retirement. In about 20 countries, there is a possibility of raising the current normal age of retirement on the following patterns:
(i) Denmark, Switzerland, Portugal, U.K., Australia and Finland are taking measures for greater flexibility in the age of retirement for longer stay of people at work. Israel and Germany are also taking similar measures.
(ii) U.S.A., has recently increased the age of retirement from 65 to 67 years. Japan is raising the age of retirement to 65 for both men and women. Costa-Rica has already increased the age of retirement to 65 years.
(iii) In the Republics of Czech and Slovak, it is proposed to increase the age of retirement to 62 years for both men and women, as against the existing 60 years for men and 57 years for women.
______________________________________________________________
4. IAMR Report, Page 18.
(iv) A gradual increase of retirement age to 65 years is being proposed in Italy against 60 years at present.
(v) In Argentina a proposal for raising the retirement age from 60 to 65 is being discussed."
21.18 IAMR has made a sample survey of the health conditions of about 1183 retired persons by contacting them personally. It is highly educative to read that information which runs as follows:5
"A sample survey of persons retired during the last five years (1990-94) was carried out for assessing their activity status, health conditions, opinions, on the age of superannuation, availability of work, leisure time spent, etc. For this purpose, names and addresses of about 5000 retired persons (1000 for each year) was obtained from the Office of Chief Controller of Pensions. In all 1183 retired persons were contacted by mail with Reply-paid facility to furnish information in the questionnaire drawn for the purpose. By the end of July, 365 persons furnished the information. Of course, 166 belonged to the gazetted and the rest i.e. 199 to non-gazetted categories.
About 50 per cent of the respondents reported that they were either working or were available for work. It was interesting to note that persons in the age group of 62 to 65 (about 9 per cent) had indicated their desire for work. Those employed / self employed, were persons between the ages 60 to 62 years.
Bulk of the retired persons viz. 80 per cent reported 'Excellent' to 'Good' health conditions. Another 14 per cent
______________________________________________________________
5. IAMR Report, Page 106.
reported 'Fair' health and only 6 per cent reported 'Poor' to 'Indifferent' health. The incidence of poor or indifferent health was found to exist amongst people above 62 years of age. It is seen that health conditions amongst the retired persons were good upto the age of 62 years."
21.19 After taking all these factors into consideration, IAMR has recommended as follows6:
(a) The age of superannuation for Central Government employees is recommended at 62 years, uniformly for all categories including school teachers. This age will also be applicable to the employees of UnionTerritory Administrations and N.C.T. of Delhi.
(b) A higher age of superannuation of 65 years is recommended for scientific and technical research and teaching professionals and Medical research and teaching professionals, Judges, Medical specialists, Computer specialists and other high-tech. professionals may also have the age of retirement of 65 years.
Non-technical employees, however, in scientific, technical or research institutions may not qualify for the enhanced retirement age and may retire at the general age of retirement of 62 years.
(c) The age of superannuation of senior officers of Central Police Organisations (CPOs) performing administrative and
______________________________________________________________
6. IAMR Report, Page 72.
supervisory nature of duties may be increased to 62 years. No change in retirement age is recommended for the operational personnel in any of the Central Police Organisation and the status-quo may be maintained.
(d) The age of superannuation for officers performing administrative and supervisory duties in the Delhi Police may be 62 years at par with Central Government employees etc."
RECOMMENDATIONS OF THE FIFTH CENTRAL PAY COMMISSION :
21.20 After considering the report of IAMR and other relevant material, the 5th CPC recommended7 to :
"increase the age of retirement for all Central Government employees (Except those in the Armed Forces and Central Police Organisations) to 60 years.
21.21 The 5th CPC further observed that8 :
"The recommendation for extending the age of superannuation to 60 years should have only prospective effect from such date as Government may specify and shall be applicable only to those employees who are to retire at the normal age of superannuation on or after the date on which the Government orders come into effect."
21.22 The 5th CPC also made the following suggestion9 :
"The present age of superannuation of Central Government
______________________________________________________________
7. Volume III - 5th CPC Page 1752.
8. Volume III - 5th CPC Page 1753.
9. Volume III - 5th CPC Page 1755.
employees has acted in the past as a benchmark against which the ages of superannuation of other categories of employee, judicial officers, teachers, constitutional authorities etc. were fixed. It is expected that our recommendations will lead to suitable readjustments elsewhere in order to maintain the present relativities." (emphasis furnished)
21.23 Pursuant to the recommendations made by the 5th CPC, the Central Government by order dated 13th May 1998, raised the age of retirement of Central Government employees from 58 to 60 and directed that they shall now retire from service on the afternoon of the last day of the month in which he / she attains the age of 60 years. It was further stated that the Government servants whose date of birth is the 1st of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 60 years.
21.24 Likewise, the Government of West Bengal, Pondicherry, Meghalaya, Mizoram and National Capital Territory of Delhi, have raised the retirement age of their civil servants to 60 years.
21.25 The remaining States, however, have not raised the age of retirement of their employees and it remains at 58.
21.26 Kerala Government consistently stood the ground by retaining the retirement age at 55 years for their employees.
21.27 This being the position, the Commission received several representations from Judicial Officers for enhancing the age of superannuation. The Commission, therefore, wanted to ascertain the views and comments on the matter from all concerned. For this purpose, the following question was formulated and included in the general Questionnaire :
Q.No. 48.1 :
What should be the proper age of superannuation to Judicial Officers?
21.28 In reply to the question, the diverse views have been received, which are set out in laconic details below :
VIEWS FROM JUDICIAL OFFICERS' ASSOCIATION :
21.29 By and large, most of the Judicial Service Associations have asked for raising retirement age to 62. One of the reasons given by them is rested on the recent hike in the retirement age of Central Government employees to 60 and the need to have proper relativity in their age of retirement. The Judicial Officers' Associations of Bihar, Gujarat, Kerala, Maharashtra, Manipur and Orissa, have, however, accepted the prevailing retirement age at 58 years.
21.30 The West Bengal Judicial Officers' Association has gone a step further. It has stated that if experience and maturity are required in judicial work, the retirement age should be raised to 65 years.
21.31 All India Judges' Association has given certain innovative reasons. It has stated that the judicial hierarchy has been accepted as a single entity by the Supreme Court. When each member of the judicial hierarchy puts his heart and soul in the discharge of his functions arduously for long hours every day, there should not be yawning gap in the retirement age of judges at various levels. They, in other words, want that there should be uniform age of retirement for judicial officers, High Court judges and Supreme Court Judges.
THE HIGH COURTS :
21.32 The High Courts of Patna, Jammu & Kashmir, Bombay, Sikkim, Rajasthan, and Punjab & Haryana are for upward revision of the age of retirement to 62 years. They have mainly put forward two fold reasons : (i) The retirement age of Central Government employees has been raised to 60 years and the existing relativity in the age of retirement of Judicial Officers has to be maintained; and (ii) The increase in the average span of life.
21.33 The High Court of Calcutta has a different approach to the question. It is stated that the general age of superannuation of the Judicial Officers may be maintained at 60 years keeping in tune with other service, but power should be conferred upon the High Court to extend upto 62 years for deserving cases.
21.34 The High Courts of Karnataka, Andhra Pradesh, Delhi, Himachal Pradesh, Kerala, Madhya Pradesh, Gujarat, Calcutta, Orissa, Madras and Allahabad, are, however, for maintaining the status-quo at 60 years.
THE GOVERNMENTS :
21.35 As expected, the Governments of Andhra Pradesh, Karnataka, Kerala, Maharashtra, Nagaland, Tamilnadu, Uttar Pradesh, West Bengal and Administration of the Union Territory of Lakshadweep, are against any alteration in the present retirement age of Judicial officers.
21.36 The Question for consideration is what should be the proper retirement age for our Judicial officers in the present set up?
21.37 Before we examine this question, we may refer to the observations and directions made by the Supreme Court in the Review Judgement in ALL INDIA JUDGES' CASE10. While declaring that there shall be upward revision of retirement age of Judicial Officers from 58 to 60, the Apex Court has made certain observations / directions which we had an occasion to consider earlier. But for immediate reference, we may reproduce the same below :
______________________________________________________________
10. Ibid2.
"There is, however, one aspect we should emphasise here. To what extent the direction contained in the main judgement under review shall stand modified. 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 J ustices 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 judgements and other relevant matters.
"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 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 and the compulsory retirement at the earlier stage/s under the respective Service Rules.
"The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 50 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."
21.38 Some of the High Courts have literally incorporated the above observations in their Service Rules making also a provision for compulsory retirement at the age of 58 years, if the Judicial Officers are found unsuitable for two more years of service.
21.39 Elsewhere in our Report11, we have stated that the directions of the Supreme Court have affected the morale of the Judicial Officers. The review
ഷെട്ടി കമ്മീഷന് റിപ്പോര്ട്ട്പാര്ട്ട് മുഴുവനും വായിക്കാന് വലതുവശം പോസ്റ്റ് ടൈറ്റിലില് പോയി ലിങ്കില് ക്ലിക്ക് ചെയ്യുക
SUMPTUARY ALLOWANCE
19.70 The Supreme Court in the main judgement in ALL INDIA JUDGES' ASSOCIATION CASE1 (para 32) has observed:
"In many of the States the prevailing practice is that the district judge takes a monthly meeting with the collector and district magistrate and the superintendent of police. He also meets the members of the Bar. Now and then he meets his judicial officers-those at the headquarters as also the others who are in the interior. It is desirable that the district judge devotes some time as frequently as possible and at least once a week to meet the judicial officers beyond the working hours, discusses working problems of his officers and forms his own opinion about how the work is being done. A weekly assessment of such performance generates even temper of judicial activity and upholds the tempo being maintained at the appropriate level. There is not yet any definite system of judicial training in most of the States and Union Territories. A judicial officer with his first posting or until he acquires adequate experience requires guidance. It should ultimately be the obligation of the district judge to provide the same. We are of the view that to the post of district judge a monthly allowance of Rs.300 by way of sumptuary allowance should be available to enable him to extend small courtesies at such meetings. The Chief judicial magistrate does some of these activities in respect of the magistrates handling criminal work. In our opinion he should be entitled to a sum of Rs.200 per month by way of sumptuary
1. (1992) 1 SCC 119.
allowance. We are aware of the fact that under the Conditions of Service Act of High Court Judges, a sumptuary allowance of Rs.300 is payable to them every month. Now that we have directed that Rs.300 should be fixed for the district judges, we command that the sumptuary allowance fixed for the High Court Judges may be enhanced suitably. These allowances shall be payable from 1.4.92. We would like to add that this allowance is intended for utilisation to the full extent for entertaining judicial officers in connection with performance of duty and would not be considered as a perk for being included in the hands of the recipient as his income."
19.71 However, this facility has been withdrawn in the Review Judgement on the ground that the necessary expenditure could be met through existing provision of funds. The relevant portion of the Review Judgement is reproduced below:
"The direction to give sumptuary allowance to the District Judge in his capacity as the principal judicial officer of the concerned district and to the Chief Judicial Magistrates at the rate of Rs.300/- and Rs.200/- per month respectively was in consideration of the fact that they had to hold monthly meetings with the Collector, District Magistrate and Superintendent of Police etc., and also to meet the judicial officers, working under them as well as the members of the Bar, occasionally. In such meetings, they are expected to extend small courtesies. It is now represented that whenever official meetings are held, there is a provision which enables the District Judge as well as the Chief Judicial Magistrate to spend from the amounts at the disposal of the Court. in view of this, we rescind the said directions. However, we make it clear that the sumptuary allowance, if already paid to the District Judges and the Chief Judicial Magistrates, should not be recovered from them."
19.72 The Commission had formulated the following question on this topic:
Q.31: It is suggested from some quarters that a tax-free Sumptuary Allowance should be given to all cadres of Judicial Officers. Please indicate the quantum and the need to grant such allowances bearing in mind the observations of the Supreme Court in that respect.
19.73 Replies received from the High Courts save the High Court of Delhi, have favoured/suggested for payment of sumptuary allowance to all the Judicial Officers. The High Courts of Himachal Pradesh, Kerala and Madras have not furnished their comments. The rate of such allowance indicated varies in the range of Rs.1000/- p.m. to Rs.500/- p.m.
19.74 The High Courts of Gujarat and Punjab and Haryana have stated that all Judicial Officers be paid a uniform sumptuary allowance of Rs.500/- p.m.
19.75 The High Court of Sikkim has suggested 5% of the basic pay be given as sumptuary allowance to all the Judicial Officers.
19.76 All the High Courts have suggested that such sumptuary allowance granted to Judicial Officers should be tax-free.
19.77 All the Service Associations have putforth the demand for the grant of tax-free sumptuary allowance.
19.78 But most of the State Governments have observed that there is no need to grant such allowance to all the Judicial Officers, other than the District Judges and Chief Judicial Magistrates.
OUR RECOMMENDATION :
19.79 We have come to know that the amount at the disposal of the Principal District Judge for the purpose of "hospitality" is found to be too inadequate. It is not even sufficient to meet the expenses of any official meeting.
19.80 It is not correct to state that the Judicial Officers do not have visitors at home and there is no need to extend courtesy. They may not have visitors from the public, but members of the Bar, judicial fraternity and staff of the Courts very frequently visit every Judicial Officer. It is an Indian tradition to offer courtesy to the visitors in the form of tea/coffee along with some eatables. It is, therefore, necessary to provide sumptuary allowance to each of them.
19.81 After giving the fullest consideration to the problem presented, and having regard to the sumptuary allowance of Rs.2,000/- p.m. granted to the High Court Judges, we recommend sumptuary allowance at the following rate:
Category of Judicial Officer
Rs. per month
District Judge
1,000/-
Civil Judge(Sr.Dn.)
750/-
Civil Judge(Jr.Dn.)
500/-
19.82 Since sumptuary allowance is intended to extend courtesy, it must be made tax-free.
* * * * *
HILL ALLOWANCE
19.83 The Hill Allowance came into vogue in the context of the increase in emphasis on raising the tempo of developmental activities in the Hill areas with a view to reducing the disparity between the Hill Districts and the rest of the areas by encouraging the civil servants to work with enthusiasm in the Hill Areas and especially in the interior areas.
19.84 For deciding a particular area as hill station, the altitude of the place is relevant. Normally, employees working in hill stations situated at an altitude of 1,000 metres (about 3,300 feet) or more, above the Mean Sea Level, would be eligible for entitlement of Hill Allowance. But the Hill Allowance is given taking into consideration not only the altitude of the place but also other factors, like the hill-station being an out-of-the way place, the difficulties in securing provisions for daily necessities, and for emergency needs.
19.85 At present, th e States of Jammu & Kashmir, Karnataka, Madhya Pradesh, Tamil Nadu, Uttar Pradesh and West Bengal are giving the Hill Allowance to Judicial Officers.
19.86 We have examined the recommendation of the V C.P.C. on the matter. The V C.P.C. has recommended the Hill Allowance (Special Compensatory Allowance-Hill Allowance) as under:-
Areas included in
Pay Range
Below Rs.3000
Rs.3000- Rs.4499
Rs.4500- Rs.5999
Rs.6000- Rs.8999
Rs.9000- above
Above 1000 M - 1500 M altitude
40
80
120
160
200
Above 1500 M - 2000 M altitude
150
300
450
600
750
Above 2000 M - 2500 M altitude
250
400
550
800
1050
Above 2500 M altitude
300
500
700
1000
1300
19.87 The "Special Compensatory Allowance" which is a new name encompassing the various types of allowances like, Remote Area Allowance, Difficult Area Allowance, Border Area Allowance/Disturbed Area Allowance etc., suggested by the V.C.P.C. deserves to be appreciated, but Government of India is yet to make up their mind.
19.88 In the meanwhile, the existing pattern for payment of Hill Allowance to Judicial Officers working in Hill Stations may be continued by the States concerned.
* * * * *
RISK ALLOWANCE
19.89 The risk can be divided into two categories; one category would be covering areas where risk is gradual and insidious, like the danger of cancer for a Radiographer; the other category is where there is contingent danger to life or limb due to injury or attack as a direct consequence of the performance of official duties. Normally risk allowance is given only to cases falling in the first category.
19.90 Certain categories of employees both in Government of India and in some States are given risk allowances, whose normal duties involve special risks. Risk allowance is paid to employees working in certain surroundings which are risky and may, over a period of time, cause deterioration in their health.
19.91 The Commission has sought the opinion of the High Courts/Service Associations and State Governments on the question as to whether any Judicial Officer could be given risk allowance.
19.92 The High Courts of Andhra Pradesh, Gujarat, Himachal Pradesh and Kerala have not favoured the payment of risk allowance to Judicial Officers.
19.93 The High Courts of Jammu & Kashmir, Bombay, Karnataka and Madhya Pradesh have suggested payment of risk allowance to Judicial Officers posted in areas declared as terrorist areas/particular stations.
19.94 The High Courts of Patna, Bombay, Punjab and Haryana, Sikkim and West Bengal have not furnished any views on this matter.
19.95 The High Court of Gujarat has opined that there is Group Insurance Scheme prevailing in the State and, therefore, there is no need to give separate risk allowance to Judicial Officers.
19.96 The High Court of Rajasthan has stated that if the officer is trying any sensitive matter, special insurance cover be provided to him.
19.97 The High Court of Allahabad has stated that risk allowance may be paid in the border district and disturbed areas, and also to Judicial Officers trying TADA cases and anti-dacoity cases.
19.98 Some of the Service Associations of Andhra Pradesh, Kerala, Maharashstra, Rajasthan have urged the Judicial Officers and their family should be provided insurance cover for injury/death. They want that the insurance premium should be paid by the Government.
19.99 The State Governments have not favoured the proposal of paying risk allowance. Some State Governments have suggested that the proper course would be to take into consideration the element of hazard, if any, while fixing their scales of pay.
OUR RECOMMENDATION :
19.100 In our opinion, it is not proper for Judicial Officers to entertain any kind of fear of their life or limb. If they entertain any such fear to them or to their family members, while trying any case or posted in any particular area, they will not be able to dispense justice impartially and courageously.
19.101 We are, therefore, not in favour of granting Risk Allowance.
19.102 If there is any threat to their life or to their family members while trying any particular case, they must promptly inform the police, who must assess the nature of the situation and provide them with the necessary security.
19.103 We are also not inclined to provide a separate insurance cover for Judicial Officers who are posted in some border district or disturbed areas or trying some sensitive cases like TADA and anti-dacoity cases. Even in such cases, what is required is proper security to the Judicial Officers and their family.
19.104 We may, in this context refer to the Government Compulsory Insurance Scheme which is prevailing in Andhra Pradesh, Kerala, Maharashtra, Gujarat, Rajasthan, Tamil Nadu, Madhya Pradesh, Jammu & Kashmir and Karnataka. This scheme is in addition to the Group Insurance Scheme. It is proper that the Governments of other States also introduce such Government Compulsory Insurance Scheme for Government Servants and Judicial Officers.
* * * * *
MEDICAL FACILITIES
19.105 The right to health with medical care has been recognised as a fundamental right guaranteed under Article 21 read with Articles 39(e), 41 and 43 of the Constitution.
19.106 This has been so declared by the Supreme Court in CONSUMER EDUCATION AND RESEARCH CENTRE AND OTHERS vs. UNION OF INDIA AND OTHERS1.
19.107 The relevant portions of the observations of the Supreme Court in that case run as follows (paras 26 & 27):
26. "The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
xx xx xx
Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(e), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, public or private, is enjoined to take all such action which will promote health,
1. AIR 1995 SC 922.
strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life.
xxx xxx xxx
xxx xxx xxx
27. We hold that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person."
19.108 At present, the medical benefits available to civil servants have been extended to the Judicial Officers. They are governed by the respective Rules of the Government, which vary from State to State.
19.109 Since there is no uniformity in this respect, the Commission circulated the following question seeking suggestions from the concerned:
Q.No.33. What is the existing procedure for availing of medical facilities to Judicial Officers and members of their families? (Kindly furnish the relevant Government Orders in this regard). Do you consider this procedure cumbersome and time-consuming? If so, please suggest a simplified procedure for reimbursement of the medical expenses.
19.110 The replies received from various quarters are summarised as below:
Almost all the Service Associations have reported that they generally do not get timely care and attention from the Authorised Medical Attendants, and they are compelled to seek the services of private doctors. It is also complained that they cannot go to Government hospitals since they have to punctually remain in Courts. It is represented that in most of the cases, the required medicines, though admissible under the rules, are not provided and that the reimbursement of medical expenditure is made after a long time by a cumbersome procedure. Several Associations have submitted that on account of the inconvenience and hardship caused by the existing method, they do not make use of the medical facilities provided by the Government.
The common request that we have received from the Service Associations is that the existing medical aid rules should be simplified and liberalised, and they should be allowed to consult and get treatment from qualified Doctors with whom they have confidence and the expenses incurred should be reimbursed. The other suggestions like the right to call the Doctors to residence for check-ups, Dispensary at Court Complex, exclusive dispensary within or near the residential complex of Judges, treatment first and rules next as the norm etc., have been made by various Service Associations.
They have also suggested that a lumpsum may be paid every month towards medical benefit or the benefit of the Central Government Health Scheme or a similar scheme be framed and extended to them.
The High Courts of Patna and Kerala have suggested that 'Medical Insurance' scheme may be introduced by the Government.
Alternatively, it is submitted that the medical facilities available to the Hon'ble Members of the State Legislatures or the Hon'ble Members of the Parliament may be extended to Judicial Officers.
19.111 Let us examine the provisions regarding the medical facilities available to the Members of the State Legislatures. We are told that they are more or less similar in all States. Being nearer home, we have secured the rules relating to medical benefits provided to the Members of the Karnataka Legislature. We may extract hereunder the relevant rules:
"Karnataka Legislature (Members Medical Attendance) (Amendment) Rules, 1997:
Rule 5A provides as follows:
"Reimbursement of Expenses incurred at any place other than in a Government Hospital or Dispensary: In respect of expenses incurred by a Member for the medical attendance and treatment obtained by him in any place, other than any Hospital or Dispensary maintained by the State Government or in any Hospital or Dispensary notified by the Karnataka Legislature, he shall be entitled for reimbursement of the expenses incurred to the same extent as he is entitled under these rules for reimbursement of expenses incurred by him for medical attendance and treatment obtained in such Hospital or Dispensary. The expenses shall be inclusive of the charges for accommodation in the place where such treatment is taken."
Rule 5A(I) reads as under:
"Reimbursement of expenses incurred at any place other than in Government Hospital or Dispensary and other than Hospital and Dispensary notified by the Karnataka Legislature: In respect of expenses incurred by a member for the medical attendance and treatment obtained by him in any place other than in a Hospital or Dispensary maintained by the State Government and other than Hospital or Dispensary notified by the Karnataka Legislature, he shall be entitled to reimbursement of the expenses incurred to the same extent as he is entitled under these rules for reimbursement of expenses incurred by him for medical attendance and treatment obtained in such Hospital or Dispensary. The expenses shall be inclusive of the charges for accommodation in the place where such treatment is taken."
19.112 On 1 April 1998, the State Government has notified the list of private hospitals in Bangalore and also in District Headquarters and private hospitals in other States where Members of the Legislature could take treatment and get reimbursement of the expenses incurred.
19.113 We may also usefully refer to the medical facilities provided to the Hon'ble Members of the Parliament. They are covered by the Central Services (Medical Attendant) Rules, 19442.
19.114 Under the Central Government Health Scheme extended to the Members of Parliament, exclusive dispensaries are opened in New Delhi to cater to the Members of the Parliament and their family members. Even Ayurvedic Dispensary, Unani Dispensary and Homeopathic Dispensary have been established at Delhi for their benefit.
19.115 Medical facilities are admissible upto a month even after the person ceases to be a Member of Parliament.
19.116 A record of health status of Members of Parliament is also maintained.
19.117 Under the Scheme applicable to them 3, the family of the Member includes wife or husband, as the case may be, children or step children and parents who are dependent and residing with the Member. These are the only persons entitled to the benefit under the Scheme.
________________________________________________________________
2. "Handbook for Members of Rajya Sabha", - Rajya Sabha Secretariat, New Delhi - May 1991, p.99.
3. "Handbook for Members of Lok Sabha", - Lok Sabha Secretariat, New Delhi - March 1998, p.172 & 173.
REIMBURSEMENT :
19.118 The Members of Parliament are entitled to reimbursement of medical expenses incurred by them on the treatment of self / family members if they are treated elsewhere where Central Government Health Scheme is not provided. For this purpose, a Member has to prefer the claim in the prescribed form. The claim should be duly countersigned by the Authorised Medical Attendant and supported with the cash memos and receipts.
OUR RECOMMENDATION :
19.119 The grievance of the Judicial Officers on the existing medical benefit rules cannot be unjustified. Their schedule of Court timings would not permit them to go and wait in the Government Hospitals when they are badly in need of treatment assuming that the Government Hospitals are as good as private hospitals. Secondly, the Judicial Officers do not have the liberty to contact anybody to get things done like the Executives. So much so, the Judicial Officers rarely go to the Government Doctors or Hospitals.
19.120 But, we consider that the payment of a lumpsum every month as Medical Allowance in lieu of all medical benefits is not a solution to the problem,but an escape from it. Any such allowance will be only a monetary benefit and does not really confer medical benefit.
19.121 We have noticed that about 9 lakh Central Government employees are covered under the CGHS in 21 cities. But extending the same or similar benefit to the Judicial Officers of various States may not be possible or feasible till the State Governments adopt such a scheme for their employees.
19.122 Taking all these factors into consideration, we recommend as follows:
1. The Judicial Officers in every State be given the medical benefits that are provided to the Members of the respective State Legislatures, subject to certain modifications herein below mentioned:
i) The State Government shall notify the list of Hospitals / Dispensaries, Government and private, in each City / District Headquarters and Taluka places for medical treatment of Judicial Officers and members of their family;
ii) The Judicial Officers shall be entitled to claim expenses incurred by them for the medical attendance and the treatment obtained by them and their family members in such notified Hospitals / Dispensaries.
The expenses shall be inclusive of the charges for accommodation in the place where such treatment is taken.
iii) The Judicial Officers shall be entitled to reimbursement of the expenses incurred by them or for their family members for the medical attendance and treatment obtained by them in any place other than in a hospital or dispensary maintained by the State Government and other than the hospitals or dispensaries notified by the Government, to the same extent as they are entitled to under the rules for reimbursement of expenses incurred by them for medical attendance and treatment obtained in the notified Hospital or Dispensary.
Expenses shall be inclusive of charges for accommodation.
iv) There should not be any restriction on reimbursement except to the extent of in-patient room entitlement. Further, there should not be any ceiling on reimbursement of expenditure on expensive treatments like kidney transplant, open heart surgery etc; full reimbursement of actual expenses should be allowed.
v) The Principal District Judge should be notified as the competent authority for passing the bill for reimbursement of medical attendance and expenses of Judicial Officers under him and in case of District Judges, the High Court should be the sanctioning authority.
vi) All claims for reimbursement of the expenses incurred by Judicial Officers for themselves or for their family members should be accompanied by an "Essentiality Certificate" issued by the Authorised Medical Attendant with the bills for reimbursement, supported by the prescription and vouchers or cash memos.
vii) Judicial officers shall be entitled to advances to meet the medical expenses for treatment upto 80% of the estimate and the balance be paid after approving the bill when it is produced.
Payment of Rs.100/- every month as Medical Allowance :
19.123 The V CPC has recommended payment of Rs.100/- per month as Medical Allowance to the Central Government employees and also retirees who are not covered under the CGHS. This recommendation has been accepted by the Central Government and Rs.100/- per month is being paid to the Central Government employees and also the retirees.
19.124 Some State Governments like the Government of West Bengal and Karnataka are also paying certain lumpsum to their employees and retirees as well. But the Judicial Officers are excluded from such benefits on the ground that this Commission has been constituted to look into their grievances.
19.125 It seems to us that it is extremely a good measure to pay certain cash every month to meet the ordinary medical needs. Accordingly, we recommend payment of Rs.100/- per month to all Judicial Officers, both serving and retired, as Medical Allowance, in addition to the other benefits which we have set out earlier.
* * * * *
LEAVE TRAVEL CONCESSION (LTC) / HOME TRAVEL CONCESSION (HTC)
19.126 The following questions have been circulated to elicit views and comments on the LTC/HTC facilities to be provided to Judicial Officers.
Q.No. 34. What are the provisions regarding L.T.C. and H.T.C. to Judicial Officers in your State/UT? Please furnish the particulars cadre-wise.
34.1 Is it advisable to replace L.T.C. with payment of a fixed sum with forced leave for a specified period ?
34.2 There are some suggestions to carry forward L T.C to be utilised after retirement so that on the eve of retirement, the Court work is not affected and the Officers may concentrate more on the judicial work and leisurely travel after retirement. There are also suggestions to encash the unutilised L.T.C.
Which do you prefer? Your choice should be rested on the public interest.
19.127 The substance of the replies received on Question No.34 is as follows :-
L.T.C.
ANDHRA PRADESH
L.T.C. to the Judicial Officers are governed by the same set of rules as other Officers of the State.
As per the State Government Rules, LTC is admissible to all the Judicial Officers (Subordinate Judges and District Munsiff) and their family members from his Headquarters to Hometown / any place within the State.
LTC as applicable to the Officers of All India Service is admissible to the District Judges.
ASSAM
LTC is admissible to all Judicial Officers for visiting any place in India once in a block of 4 years starting from 1992.
BIHAR
In Bihar, cash of Rs. 2000/- towards L.T.C. for Judicial Officer and family members is granted once in a block of 4 years subject to maximum of 4 L.T.C.s in entire service.
Eligibility for L.T.C. is 10 years service.
DELHI
Like other Government Servants, Judicial Officers in Delhi are entitled to one L.T.C. any where in India in a block of 4 years.
GUJARAT
L.T.C. is admissible to Judicial Officers once in 4 years. The distance permissible is 3000 Kms one way or 6000 Kms both ways.
HARYANA
L.T.C. is admissible to Judicial Officers for visiting any place in India once in a block of 4 years similar to other employees of State Government.
HIMACHAL PRADESH
Judicial Officer can avail only 2 concessions in a block of 4 years. Of the 2 concession he can avail both of them to Hometown or in the first block to anywhere in India and in the second block to Hometown or Vice versa. The block concession of a spell of two years can be carried over to the next year.
JAMMU & KASHIR
In a circle of 4 years one L.T.C. is admissible to the Judicial Officers.
KARNATAKA
L.T.C. is admissible once in service to any place in India.
KERALA
The facility of L.T.C. is not available at present.
MADHYA PRADESH
No L.T.C. facility is provided to Government employees including Judicial Officers.
MAHARASHTRA
L.T.C. to Judicial Officers is admissible once in block of 4 years to any part of the State.
ORISSA
L.T.C. is admissible to Judicial Officers once in entire service to any place in India.
PUNJAB
L.T.C. is permissible to Judicial Officers once in 4 years.
RAJASTHAN
No provision for availing L.T.C.
SIKKIM
No provision for availing L.T.C.
TAMIL NADU
Judicial Officers can avail L.T.C. once in four years. One way journey fare for L.T.C. is admissible if availed once in two years. Two way journey fares are provided, if availed once in four years. If they travel out of the State, the claim has to be restricted to 400 kms.
UTTAR PRADESH
L.T.C. is admissible to maximum of four times in the whole of service.
First L.T.C. may be availed between 5th and 10th year of service, second between 11th and 20th year of service, third between 21st and 30th year of service and the last after 30 years of service.
WEST BENGAL
L.T.C. is admissible to Judicial Officers [Civil Judges (Junior)/ Civil Judges (Senior)] once in entire service subject to the condition of availing the same one year prior to retirement. Members of the Higher Judicial Service enjoy L.T.C. benefit as per the provisions of the All India L.T.C. Rules.
* * * * *
H.T.C. :
ANDHRA PRADESH
H.T.C. is admissible to all Judicial Officers once in 2 years.
ASSAM
H.T.C. is not available to Judicial Officers.
BIHAR
H.T.C. is not admissible to Judicial Officers.
DELHI
H.T.C. is admissible to Judicial Officers once in 4 years.
GUJARAT
H.T.C. is admissible to Judicial Officers once in 2 years.
HARYANA
H.T.C. is admissible to Judicial Officers once in 2 years.
HIMACHAL PRADESH
Judicial Officers can avail 2 concessions in a block of 4 years. Of the two concessions he can avail both of them to Hometown or in the first block to anywhere in India and the second block to Hometown or vice versa.
JAMMU & KASHMIR
H.T.C. facility is not admissible to Judicial Officers.
KARNATAKA
H.T.C. is allowed to Judicial Officers once in every two calendar years.
KERALA
H.T.C. facility is not provided at present.
MADHYA PRADESH
H.T.C. is admissible to Judicial Officers once in two years.
MAHARASHTRA
H.T.C. is provided to Judicial Officers once in two years.
ORISSA
H.T.C. is admissible once in a block period of 2 years to Judicial Officers.
PUNJAB
No H.T.C. facility is provided to Judicial Officers.
RAJASTHAN
No provision for availing H.T.C.
SIKKIM
No provision for availing H.T.C.
TAMILNADU
H.T.C. is admissible to Judicial Officers once in 2 years.
UTTAR PRADESH
H.T.C. is not available to Judicial Officers.
WEST BENGAL
H.T.C. is provided to Judicial Officers every year provided the place of visiting is 250 miles away from Calcutta.
* * * * *
19.128 It will be thus seen that the L.T.C. facilities provided to the Judicial Officers vary from State to State. In some States L.T.C. is provided in a block period of 4 years and in some other States once in 10 years while in others once in service and in a couple of States, there is no L.T.C. is provided. We have to take into consideration all these aspects.
19.129 Likewise HTC facilities also vary from State to State. In many States H.T.C. facilities are not provided at all. In a couple f States H.T.C. is admissible once in 4 years while in half a dozen States H.T.C. is provided once in 2 years.
19.130 The next question for consideration is, if LTC is to be provided, whether it is desirable to replace it with payment of a fixed sum with forced leave for a specified period.
19.131 The High Courts of Andhra Pradesh, Jammu & Kashmir, Karnataka, Kerala, Rajasthan, Sikkim and West Bengal are against this proposal. According to them, it may create administrative and personal problems to the Judicial Officers and also unnecessarily imposing burden on the State exchequer. It is also said that this would amount to encashing LTC.
19.132 However, the High Courts of Bihar, Bombay, Orissa, Punjab & Haryana, Tamil Nadu and Uttar Pradesh have favoured the replacement of LTC by payment of fixed amount. They are of opinion that in view of the mental strain and pressure, it is necessary that all Judicial Officers should be given a fixed sum with forced leave to make use of it as they like it.
19.133 The High Courts of Delhi and Gujarat also favoured replacement of LTC by payment of fixed amount, but they are against forced leave for specified period as it affects the working of courts.
19.134 Several Service Associations have also not favoured the concept of fixed sum with forced leave instead of LTC.
19.135 Only a few Associations have supported replacement of LTC by payment of fixed sum with forced leave.
19.136 Almost all the State Governments are against the replacement of LTC by payment of fixed amount since the financial implications of allowing such encashment would be enormous.
19.137 The next aspect to be considered is whether LTC should be allowed to carry forward to be utilised after retirement ?
19.138 The High Courts of Andhra Pradesh, Bihar, Gujarat, Jammu & Kashmir, Karnataka, Bombay, Rajasthan, Sikkim, Tamil Nadu, Uttar Pradesh and West Bengal support this proposal. However, the High Courts of Kerala, Madhya Pradesh, Punjab & Haryana are against it. The High Court of Sikkim favours LTC to be carried forward, (says that) it should be utilised only in the year of retirement.
19.139 Almost all the State Governments are against the carry forward idea.
19.140 The Service Associations are divided in their views.
19.141 The High Court of Himachal Pradesh, Jammu & Kashmir, Orissa, Rajasthan and Uttar Pradesh have suggested to make provision for encashment of unutilised LTC.
OUR RECOMMENDATION :
19.142 Keeping in view the various suggestions of the High Courts / State Governments and Service Associations and the nature of work of the Judicial Officers and also bearing in mind the basic philosophy underlying the LTC scheme, we make the following recommendations :
1) The LTC shall be provided to all Judicial Officers :
a) Once in four years to any place in India;
b) For entitlement of first LTC, one must have put in not less than 5 years of continuous service;
c) No LTC shall be allowed within one year before retirement*;
2) HTC : All Judicial Officers shall be provided HTC once in two years;
3) The entitlement for the journey would be according to the Rules in the respective States.
4) In view of the general opposition, we are not inclined to recommend cash payment in lieu of LTC. We are also not inclined to recommend carry forward of LTC beyond retirement.
* * * * *
________________________________________________________________
* We have received number of complaints that the Judicial Officers at the fag end of their service are not serious in their Court work and at the cost of the public duty and more often leaving the part heard cases go on LTC. To inculcate a sense of work culture, we have deliberately made this restriction.
SPECIAL PAY
19.143 The Commission has formulated the following question seeking the views and comments from the concerned on "Special Pay" :
Q.No. 35: In some States like Assam, Haryana, Kerala, Maharashtra, Gujarat, West Bengal, Goa and Jammu & Kashmir, varying Special Pay is paid to certain categories of Judicial Officers. What according to you should be the consideration for determining the posts to which Special Pay could be attached? Is it not advisable to provide Special Pay only to those posts which in addition to the judicial work, have administrative work as well?
19.144 The summary of the replies received indicates the following :
i) Most of the High Courts have suggested that Special Pay should be given only to those posts which in addition to the judicial work have administrative work as well. The High Courts of Delhi, however, has made a significant point for denying Special Pay to those who do the administrative work in addition to judicial work. It is stated that administrative work is done during office hours only and the Chief Justice of Supreme Court and the Chief Justice of the High Court though perform wide ranging administrative work get no additional remuneration and, therefore, there is hardly any justification for giving Special Pay to the Judicial Officers of the Subordinate Judiciary for performing the administrative work.
ii) Almost all the Service Associations have urged for payment of Special Pay to the Judicial Officers, who do administrative work in addition to judicial work.
iii) The majority of the State Governments have expressed the view that Special Pay should be abolished as the pay structure is based on the concept of nature of work, jurisdiction, qualification etc.
19.145 We have carefully examined the various suggestions / submissions made by the High Courts / Service Associations / State Governments.
19.146 We agree with the submission that the pay scale is fixed on several factors including the duties, responsibilities of the post and, therefore, no additional payment for Judicial Officers who do the administrative work during Court hours is called for.
19.147 We, however, request the High Courts to evolve a principle of paying "Special Pay" to such of those Judicial Officers who have considerable administrative work outside the Court hours. We do not have any such material before us and, therefore, we do not want to embark upon such enquiry.
* * * * *
CONCURRENT CHARGE ALLOWANCE
19.148 Normally charge allowance is being paid to those holding additional charge of a post with equal or higher responsibility. For the payment of such allowance, usually, it is stipulated that one should have held additional charge for a minimum period of certain number of working days ranging from 14 to 30. In some States charge allowance is being paid to Judicial Officers whereas in some other States they are not given any charge allowance.
19.149 From the replies received, it is found that charge allowance is paid in the following States viz., Andhra Pradesh, Gujarat, Jammu & Kashmir, Karnataka, Kerala, Maharashtra, Rajasthan and Tamil Nadu.
19.150 Almost all the High Courts are of the opinion that wherever a Judicial Officer holds concurrent charge of other courts and discharges additional work beyond the quota prescribed, there should be provision for payment of Charge Allowance.
19.151 However, the High Court of Patna (Bihar), Delhi, Himachal Pradesh and Maharashtra have not favoured this idea. Patna High Court has observed that "they put on mostly routine work of other courts" and therefore no charge allowance be paid. High Court of Delhi has stated that "such charge of other court is only a temporary phenomena" and therefore charge allowance is not required. The High Court of Himachal Pradesh states that "since the Judicial Officers do not turn out additional work and the working hours remaining the same, no allowance is necessary on this count." The High Court of Madhya Pradesh has observed that charge allowance is not justifiable.
19.152 In the States where charge allowance is allowed, there is no uniformity either with regard to the rate or the minimum period of entitlement. The rate varies from 3% to 5% of the Basic Pay and equally the period for entitlement.
19.153 It is suggested by some High Courts that charge allowance may be paid for Judicial Officer who holds the charge continuously beyond the period of 7 days, while other High Courts indicated that such period shall be more than two weeks at a stretch. Rate of charge allowance indicated by the High Courts varies between 10% to 20% of the Basic Pay.
19.154 The Central Government employees will get extra remuneration for the additional charge provided the period is not less than 40 days. The appointing authority is competent to make additional payments up to three months only. But prior approval of the Department of Personnel and Training is required for combination of appointments beyond 3 months and the concurrence of the Ministry of Finance is required for making additional payments beyond three months. (See G.I. M.H.A., Deptt. of Per. & A.R. O.M. No.6 (26)-Estt. (Pay-II)/81 dated 30.12.1981).
19.155 OUR RECOMMENDATION :
i) We have given our consideration to all aspects of the matter.
We recommend that charge allowance be paid to the Judicial Officer when he is placed in charge of another Court continuously beyond the period of ten working days and if he performs appreciable judicial work of that Court;
AND
ii) The charge allowance be paid to such Judicial Officer at 10% of the minimum of the time scale of the additional post held.
* * * * *
ENCASHMENT OF LEAVE AND LEAVE SALARY
19.156 Encashment of earned leave while in service has been allowed in some of the States; viz., Andhra Pradesh, Gujarat, Karnataka, Kerala, Maharashtra, Orissa, Rajasthan, Sikkim, Tamil Nadu and Uttar Pardesh. However, there is no uniformity in such scheme of encashment of leave in the States.
19.157 In the State of Andhra Pradesh, Judicial Officers are permitted to encash 15 days of earned leave in a financial year or 30 days in two financial years.
19.158 In Gujarat, Judicial Officers are permitted to encash 15 days leave once in two years.
19.159 In Karnataka, all the Judicial Officers are entitled to encashment of earned leave not exceeding 30 days at an interval of two years block period.
19.160 Encashment of Earned Leave for a maximum of 15 days in a year is allowed in Kerala.
19.161 In the State of Maharashtra, encashment of Earned Leave is permissible for 30 days once in two years.
19.162 In Orissa, every Judicial Officer is permitted encashment of 30 days earned leave in every block of two years, provided the Officer has 120 days earned leave to his credit.
19.163 In Rajasthan, encashment of earned leave for 30 days once in a block of two years is allowed.
19.164 In Sikkim, 30 days once in a block of three years is permitted. This provision appears to have been withdrawn from 31-1-1998.
19.165 In Tamil Nadu. 15 days earned leave at an interval of 12 months or 30 days at an interval of two years is allowed.
19.166 In Uttar Pradesh, 30 days encashment is permitted to the Officers having basic pay upto Rs. 2900/- and 15 days encashment to officers drawing above Rs. 2900/- as basic pay in every Calendar Year.
19.167 In other States, there appear to be no such facilities.
19.168 This facility is also not available to Central Government employees.
19.169 The 5th CPC discussed this issue in detail and did not recommend in-service encashment of earned leave. However, the 5th CPC recommend that encashment of leave should be linked to LTC. It has proposed that all employees may be permitted to encash 10 days earned leave at the time of availing LTC subject to the conditions that
(a) the total leave so encashed during the entire service career does not exceed 60 days in the aggregate;
(b) earned leave of at least an equivalent duration is also availed simultaneously by the employee;
(c) a balance of at least 30 days of earned leave is still available to his credit; and
(d) the period of leave encashed shall be deducted from the quantum of leave that can be normally encashed by him at the time of superannuation.
19.170 But these recommendations have not yet been accepted by the Central Government.
19.171 In this aspect, the Commission has received certain suggestions. Some High Courts have suggested that compulsory leave taking while encashing the leave should be discontinued. All the High Courts have suggested that there may be provision for encashment of leave in a block period, but the payment there from should be tax-free.
OUR RECOMMENDATION :
19.172 The Commission has considered all the suggestions and the existing schemes for encashment of leave. We want the Judicial Officers to work continuously and vigorously. They should not be compelled to avail leave while availing of the encashment facilities. The encashment as suggested by the High Courts should be tax-free. We accordingly recommend as follows :
(i) Benefit of availing encashment of leave be extended to all Judicial Officers in all the States/UTs without insisting on the availment of leave simultaneously.
(ii) Judicial Officers in all the States / UTs be allowed to encash leave not exceeding one month in a block period of two years.
(iii) The encashment of leave be made tax-free.
* * * * *
TRANSFER GRANT / DISTURBANCE ALLOWANCE
19.173 Each State has prescribed the rules regarding payment of Transfer Grant for transferred officers. But such Rules are in variance with the provisions made by the Central Government. Recently, the Central Government has introduced what is termed as "Composite Transfer Grant" with effect from 8-10-1997. The Composite Transfer Grant shall be equal to the month's Basic Pay in case of transfer involving change of station located at a distance more than 20 Kms from each other. In case of transfer to stations which are less than 20 Kms from the old station or transferred within the same city, the Composite Transfer Grant will be restricted to one third of the Basic Pay, provided a change of residence is actually involved. This excludes incidental expenses of the Government servant and the members of his family, and the expenses to go from the residence to Railway Station / Bus Stand / Air Port etc.
19.174 In our opinion this method of "Composite Transfer Grant" is simple and better than the cumbersome procedure under the existing Rules of the State Government regarding Transfer Grant. In fact, there is not much difference in the ultimate benefit in Rupees, annas and pies in one or other method.
19.175 We, therefore, recommend to all States to follow the Government of India Rules for payment of Transfer Grant. Till then, the existing rules in each State / UT would also govern the Judicial Officers.
* * * * *
HOUSING, HOUSE RENT ALLOWANCE AND RELATED ISSUES
19.176 Housing is a basic need, next only to food and clothing. But the provision of this minimum need has lately become difficult on account of factors like excessive population pressure, growth of urban agglomeration consequent upon industrial development, the 'push' and 'pull' factors leading to migration from rural to urban areas. We have too many people chasing too little housing. It is, therefore, necessary that the State should assume greater responsibility on the question of housing.
19.177 The Hon'ble Supreme Court in the main judgment in the All India Judges' Case1 has observed thus :
"33. Provision of an official residence for every Judicial Officer should be made mandatory. A Judicial Officer to work in a manner expected of him has to free himself from undue obligations of others, particularly owners of buildings within his jurisdiction who ordinarily may have litigation before him. This is mostly the case in rural areas where outstation judicial courts are located. We are aware of cases where a rural court is located in the building belonging to a lawyer or a client. Even the residential accommodation of the judicial officer belongs to people of that category. Such a situation often gives occasion to personal embarrassment to the judicial officer and it has to be avoided.
34. Expenditure on residential accommodation in a family budget is not ordinarily to exceed 15 per cent of the monthly income; otherwise it becomes difficult for the person concerned to make his
1. (1992) 1 SCC 119.
two ends meet. A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation. In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly salary, a situation which cannot be countenanced by any logic. It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily. Rendering justice is a difficult job. It is actually a divine act. Unless the judicial officer has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands."
"35. Very often building projects are undertaken for providing residential accommodation to public officers but the requirement of the judicial officer is not taken into account for one reason or the other. Control of the State purse is in the hands of the executive. As appropriate share of construction expenses is not being provided towards accommodation of judicial officers, they do not have any quota in the building projects. As a result of this over the years at several places throughout the country residential accommodation for judicial officers has turned out to be scanty. Many judicial officers dread postings in Metropolitan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accommodation. The cost of living also becomes heavy."
"36. We take judicial notice of the fact that the Planning Commission of the Central Government is considering acceptance of the subordinate judiciary as a plan subject. Providing adequate residential accommodation should be considered as a priority. Until, adequate governmental accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommodation for every judicial officer according to his entitlement and recovery of not more than twelve and a half per cent of salary of the officer towards rent should be made and the balance should be met by the State Exchequer. We would emphasise the need of provision of a separate and exclusive office room as an indispensable component of every such official residence and the accommodation should take into account this feature. As a long term measure, Government accommodation should be constructed to meet the need of the judicial officers at their respective stations. This should be a matter for the Planning Commission to review and the State Government to co-operate and undertake construction activity. The Governments of the States and the Union Territories would take some time to implement this part of the direction. In case for some reason, the Planning commission does not come forward to take up the matter before January, 1992, the Chief Justice of every High Court should set up a committee with him as Chairman where two senior Judges of the Court and the Secretaries of Finance, Law and Works should be members and annual planning of construction of residences should be made. We accordingly fix the outer limit of December 31, 1992 when this part of the direction would become fully operative."
19.178 In the Review Judgment2 the Apex Court further observed that the Government has to give priority for construction of adequate number of houses for Judges with necessary facilities and the provision of house rent allowance is not an answer much less a substitute for the adequate housing facility. It was,
2. AIR 1993 SC 2493.
however, clarified that above direction was not intended to provide rent-free housing accommodation but accommodation at a rental not exceeding 12.5% of the salary of occupant. The relevant extract of the Review Judgment reads :
"(vi) Provision for residential accommodation : In the directions given, this court has emphasised that the judicial officers cannot be left without proper accommodation for any length of time. Secondly, the accommodation available to the judicial officer must be adequate and consist also of a separate and exclusive office-cum-study room as an indispensable component of such residence. Thirdly, it was pointed out that in the absence of official residences, the judicial officers are required to pay exorbitant rent out of proportion to their salaries. Lastly, it was emphasised that in the pool of the Government accommodation which is available in any town, the judiciary gets the last priority. The Governments have not so far shown any keen awareness of the problems faced by the judges for want of accommodation and of the manner in which it affects the discharge of their duties. It is for these reasons that it was suggested that the Government should give top priority to the provision of residential accommodation to the judges and construct enough houses with the requisite facilities."
"It is difficult to understand the objections raised by the review petitioners to the said direction. The attitude adopted by the petitioners itself bears out that the Governments are not at all keen on providing proper residential accommodation to the members of the judiciary and justifies the necessity to give the said direction. On the admission of the review petitioners, there is at present a shortage of about 5000 houses. This means that about 50 per cent of the judicial officers are facing trials and tribulations for want of proper accommodation at rentals within their means. The estimated expense of Rs. 150 to 200 crores for constructing the said houses which is to be incurred by all the States and the Union Territories is according to us not forbidding even assuming that the estimate is (sic)."
"We now understand that the judiciary has not been included as a pl an subject by the Planning Commission. If this is so, the construction of adequate number of houses with the necessary facilities should be given the top priority being the most primary requirement of the judges at any place. The provision of house rent allowance is not an answer much less a substitute for the adequate housing facility. In the judgment under review, it has been specifically emphasised that the provision of a separate and exclusive office room is an indispensable component of the official accommodation allotted to the judicial officer. In order to ensure that the quarters constructed for the judicial officers are of proper dimension and with adequate number of rooms, their future construction should be made in consultation with and under the supervision of the respective High Court and the High Court should take adequate interest in their construction.
"It may be noted in this connection that the direction is not to provide rent-free housing accommodation but accommodation at a rental not exceeding 121 per cent of the salary of the occupant. We, therefore, reiterate the said direction and reject the objections of the petitioners."
19.179 In this respect, the Commission formulated five questions seeking the opinion / suggestion of High Courts, State Governments and Service Associations. The questions and replies received from the respondents are set out here under :
Q.No.42. The Supreme Court has observed that residential accommodation to every Judicial Officer must be provided. If State accommodation is not available, it should be the obligation of the State Government at the instance of the High Court to provide requisitioned accommodation with provision for 'Home Office' for every Judicial Officer according to his entitlement and recovery of not more than 12 1% of the salary of the Officer towards rent should be made and the balance should be met by the State Exchequer. Is this being followed in your State / UT?
19.180 Almost all the High Courts, Service Associations and State Governments have stated that in their respective States, the directions of the Supreme Court regarding provision of residential accommodation to every Judicial Officer have been complied with by providing state accommodation or requisitioned accommodation. However, some High Courts have reported that the accommodation provided to Judicial Officer is not befitting their status and it lacks space for home office.
Q.No.42.1. It is suggested by some that it is necessary in the public interest that all Judicial Officers in every State / UT be provided with rent free Government accommodation according to their entitlement as a condition of service. How do you justify this proposal? Would it not come in conflict with the aforesaid observations of the Supreme Court? (Note: In States like Bihar, Haryana, Orissa and Punjab, certain categories of Judicial Officers are provided with rent free accommodation).
19.181 Replies received from the High Courts reveal that as many as 11 High Courts viz., High Courts of Andhra Pradesh, Gujarat, Himachal Pradesh, Kerala, Madhya Pradesh, Bombay, Punjab & Haryana, Rajasthan, Sikkim, Tamilnadu and Calcutta have observed that rent free accommodation is to be provided to all the Judicial Officers and it does not come in conflict with the observations of the Supreme Court, because what has been provided is only the minimum and not the maximum.
19.182 The High Court of Gujarat has stated that in case of providing rent free accommodation to Judicial officers, the question of payment of HRA does not arise.
19.183 It is also brought to the notice of the Commission that in several States like Punjab, Haryana, Orissa and Bihar, some category of Judicial Officers are already provided with rent free quarters and, therefore, the observation of the Apex Court does not debar providing of rent free accommodation to all Judicial Officers.
19.184 The High Court of Delhi observed that providing rent free accommodation may not be conducive to resource needs of the state exchequer. More or less, similar views are expressed by the High Court of Jammu & Kashmir when it has stated that "rent should be recovered as expenditure on construction of quarters is made out of public funds." The Orissa High Court has suggested that if Government accommodation is not provided, house rent given to Judicial Officers should be on par with house rent given to such corresponding category of Central Government employees.
19.185 During the hearing, the Service Associations have urged before the Commission that rent-free accommodation should be provided to all Judicial Officers and it will not conflict with the directions of the Supreme Court. It is also urged that rent-free accommodation should be made as a condition of service. But certain Associations have contended that this proposal is directly in conflict with the observations of the Apex Court and hence not justified.
19.186 But the State Governments have urged that providing rent-free accommodation to all Judicial Officers would be against the guidelines of the Apex Court.
Q.No.42.2. It is suggested that those Judicial Officers who are on their own or who do not avail of Government quarters may be given a lumpsum tax-free House Rent Allowance depending upon the cadre of the Officer. How much would you suggest as House Rent Allowance in such cases?
19.187 By and large, the High Courts have suggested to provide lumpsum tax-free H.R.A. to the Judicial Officers occupying their own house with permission of the High Court. However, there is no unanimity with regard to the amount of such tax-free H.R.A. The High Courts of Delhi, Gujarat, Jammu & Kashmir, Bombay, Sikkim and Calcutta favour either the formula suggested by the V C.P.C. or 30% of the basic salary of the officer as tax-free H.R.A.
19.188 All the Service Associations have strongly pleaded to provide lumpsum tax-free H.R.A. in varying scales ranging from Rs.1000 to 5000 per month.
19.189 The State Governments have stated that the provisions of H.R.A. as applicable to Government servants should apply mutatis mutandis to Judicial Officers. They have further stated that payment of lumpsum tax-free H.R.A. is not desirable to one section of the community since such payment is not provided to all Government servants.
Q.No.42.3. "Who looks after the maintenance of the accommodation provided to Judicial officers? Whether it is Public Works Department or Judicial Department? Is there any deficiency in the Service?"
19.190 All the High Courts, except the High Court of Allahabad, have stated that the maintenance of the accommodation provided to Judicial officers is required to be looked after by the Public Works Department, but the services provided are not satisfactory. The High Court of Allahabad has stated that at present in Uttar Pradesh maintenance of the Judges Quarters is looked after by the Judicial Department, but it has no separate establishment for the purpose and, therefore, it should be entrusted to the Public Works Department with proper budgetary allocation.
19.191 Some High Courts like Karnataka, Punjab and Haryana have suggested that it would be better to have an Engineering Wing in the Judicial Department to maintain the Court buildings and judicial quarters with sufficient flow of funds.
Q.43 What are the facilities available for Judicial Officers in your State/UT to own house/site at a place of their choice for settling after retirement? What Scheme do you suggest to secure loan either from the Government or from the financial institutions for construction of houses at a concessional rate of interest?
19.192 Most of the High Courts have reported that no separate facilities are available to the Judicial Officers to own a house/site at places of their choice after retirement. Similar views have been expressed by the Service Associations. Some High Courts and State Governments have reported that the judicial Officers like the other Government employees are entitled to House Building or House Purchasing Advance at some concessional interest. The scale of finance for HBA / HPA varies from State to State. Some of the High Courts have suggested that adequate finance with nominal interest / subsidised interest be given to Judicial Officers for the purpose of constructing/purchasing a house. It is suggested by some High Courts and Service Associations that whenever sites are alloted by the Improvement Development Authorities or houses are allotted by the Housing Board, certain quota be reserved to the Judicial officers. Further analysis of the data reveals that some of the High Courts have suggested to adopt the scale of finance for HBA / HPA as recommended by V C.P.C. The State Governments have reported that their respective HBA rules are also made applicable to Judicial Officers and certain percentage of quota is already provided for allotment/allocation of houses/sites to all the employees including Judicial Officers.
OUR RECOMMENDATION :
19.193 Having given our anxious consideration to the grievances of the respondents, we recommend the following:
1. All Judicial Officers, irrespective of their cadre, should be provided with Government quarters according to their entitlement. If adequate Government quarters are not available at a time, the Government shall requisition the proper houses and make available to the Judicial Officers.
2. Government is entitled to collect by way of rent an amount not exceeding 12.5% of the basic pay of the occupant of such accommodation every month, since we are inclined to recommend payment of House Rent Allowance to every Judicial Officer irrespective of providing Government quarters/requisitioned houses.
3. All Judicial Officers are entitled to House Rent Allowance at the rate provided to the Government servants in the respective States/UTs.
4. Judicial Officers who occupy their own houses with the permission of the High Court are also entitled to H.R.A. at the same rate as provided to the corresponding Government employees.
5. We earnestly appeal to all State Governments/U.T. Administrations to undertake a "crash programme" for house construction for Judicial Officers and for the Court Complex with the assistance of Planning Commission and Government of India and complete such programme during the next two to three years.
6. The Government quarters/requisitioned house provided to Judicial Officers must have separate space for 'Home Library' and the necessary books and the furniture of the Home Library shall be at the cost of the High Court, which shall be administered and managed by the Principal District Judge of the District.
7. The Drawing Room of each such quarters/houses shall be reasonably furnished with a sofa set, carpet, teapoy and one or two side tables and chairs at the cost of the High Court / State which shall be administered and managed by the Principal District Judge.
The upholstery of every sofa-set should be changed once in three years.
8. The regular maintenance and repairs of Government quarters allotted to Judicial officers shall be the obligatory duty of the Public Works Department, since it is not possible for the High Court to maintain a separate department for this purpose.
9. A certain percentage of sites / houses, wherever they are available for allocation / allotment by the Housing Board /City Improvement / Development Authorities etc., should be ear-marked for allotment to Judicial Officers by the respective State Governments / UTs.
* * * * *
TELEPHONE FACILITIES
ANDHRA PRADESH :
19.194 All Judicial Officers in Andhra Pradesh are provided with telephones both at Courts and at their residence with STD facilities subject to the following ceilings prescribed by the High Court:
Sl. No.
Name of the Category
Ceiling Fixed
(for two months with STD facility & without ISD)
Chambers
Residence
1.
Prl. District Judges
3,000 calls
2,000 calls
2.
Addl. District Judges
3,000 calls
1,000 calls
3.
Sub-Judges
2,000 calls
1,000 calls
4.
District Munsiffs
2,000 calls
1,000 calls
ASSAM :
19.195 Telephones are provided to the District Judges, Addl. District Judges, Chief Judicial Magistrates, Addl. Chief Judicial Magistrates, Civil Judges (Sr. Divn.), and S.D.J.M. in the Sub-Division, both at office and residence. The District Judges and Chief Judicial Magistrates are provided STD facilities in their residence. But the Judicial Magistrates and Munsiffs are not provided with telephones at their residence.
BIHAR :
19.196 The District Judge (Principal District Judge) has been provided with telephone at his office and residence. CJM / ACJM are provided with telephone at their residence. There is no ceiling of calls.
Other Officers have not been provided with telephone.
DELHI :
19.197 There is no Taluka / Tehsil level Court in Delhi. Judicial Officers who are in the pay scales of Rs.3700-5000 and above are entitled to telephone at their residence. Residential telephones have also been provided to all District Judges who have put in 5 years service having senior time scale of Rs.3000-4500.
GOA :
19.198 Telephone is provided at District / Taluka Courts, Residential telephones are also provided to the District / Additional District Judges, Civil Judges (Senior Divn.) and Civil Judges (Junior Divn.).
GUJARAT :
19.199 All Taluka Courts are provided with Telephone facilities. A policy decision has been taken to provide telephone facility to Judicial Officers at their residence at every District / Taluk level.
The Judicial Officers are entitled to free calls as follows:
District & Sessions Judge /
City Civil & Sessions Judges - No limit
Joint District & Sessions
Judges - 1000 calls bimonthly.
All other Judges / Magistrates - 650 calls bimonthly
HARYANA :
19.200 All the District & Sessions Judges, Addl. District and Sessions Judges, Chief Judicial Magistrates and Senior Sub-Judges have been provided with telephone both at office and residence. Additional Civil Judges (Senior Division) are provided with telephone only at office, Civil Judges (Junior Division)-cum-Judicial Magistrates are not provided with telephone facilities.
JAMMU AND KASHMIR :
19.201 Tehsil level Courts are not provided with telephone. The District Judges / Chief Judicial Magistrates have been provided with telephone facility. Some Special Mobile Magistrates are also availing of this facility.
KARNATAKA :
19.202 In Taluks, the combined Courts are provided with telephones. But the Presiding officers of the Taluk Level Courts are not having telephones at their residence.
KERALA :
19.203 Only District Judge, Additional District Judge and Chief Judicial Magistrate are provided with telephone at office and residence. Others are not given any such facility.
MADHYA PRADESH :
19.204 Telephones have been provided both at office and residence of District Judges, Special Judge under S.C., S.T., Prevention of Atrocity Act, and District Judge, Consumer Forum. Telephone has been provided to Chief Judicial Magistrate at his residence. The Chief Judicial Magistrate has been given STD facility for his residence telephone but not for other Judges.
MAHARASHTRA :
19.205 Every Court has been given telephone, but only the District Judges and Chief Judicial Magistrates have the residential telephones. STD facility is provided only to residential telephone of District Judges. But there appears to be no free calls for personal use. However, if total number of calls do not exceed 750 per month, it seems no questions are asked and the payment is invariably made by the office.
ORISSA :
19.206 The Judicial Officers in the ranks of District Judge and Chief Judicial Magistrates have telephone both in the office and residence. So also Registrar, Civil Court and a few other officers. But no STD facility is given except for the telephone in the office of the District Judges.
PUNJAB :
19.207 District Judges, Chief Judicial Magistrates and Senior most Civil Judges have telephone at their residence and also in the office. Apparently, the others do not have telephone.
RAJASTHAN :
19.208 Officers below the rank of Chief Judicial Magistrate are not having telephone either in their Court or at their residence. Obviously, the Officers above the said rank do have the telephone.
SIKKIM :
19.209 All the Judicial Officers are given telephone at their Court as well as at their residence with STD facilities.
TAMIL NADU :
19.210 The District Judges and Subordinate Judges are provided with telephone in Court and in their residence, except the Civil Judge (Jr. Divn.)-cum-Judicial Magistrate.
TRIPURA :
19.211 Telephone facilities have been provided in the office of the District Judge, Chief Judicial Magistrate and SDJM and also at the residence of District Judge and C.J.M. Perhaps, the other categories of Officers do not enjoy that facility.
UTTAR PRADESH :
19.212 At Tehsil Courts, telephone at present has been provided to one senior most Officer. In the District Headquarters, most of the Officers upto the cadre of Civil Judge (Senior Division) are given telephone at the residences with ceiling of 700 calls.
WEST BENGAL :
19.213 District Judges have been given telephones in chambers, offices and residences. Chief Judicial Magistrates and Sub-Divisional Judicial Magistrates are having telephone in their chambers, in most of the Districts and Sub-Divisions. In Chambers of some of the Munsifs at Sub-Divisional level, telephones are provided. There is no telephone at the residence of the Civil Judges (Senior Division) and Civil Judges (Junior Division) and the Additional District Judges. Telephones are provided at the residence of the Chief Judicial Magistrates and Sub-Divisional Judicial Magistrates.
SUGGESTIONS :
19.214 There are many suggestions from Service Associations and individuals. Broadly to state:
19.215 Telephone facilities should be provided to each Judicial Officer, both in Court and also at his residence.
19.216 STD facilities be provided for residential telephones, but number of units relating to the calls can be fixed for each Officer.
19.217 Some have suggested that 650 metered calls be provided free for personal use, while others have suggested that all call charges for personal requirement must be fully reimbursed. Some others have asked for 50% of the chargeable calls should be reimbursed.
19.218 Suggestion has also been made on the requirement to maintain a separate register for private calls, while others have stated that Judicial Officer be asked to pay charges made as personal calls on the telephone numbers which are not mentioned in the telephone directory of the High Court.
SUGGESTIONS FROM HIGH COURTS :
19.219 The High Court of Bombay has suggested that all the Presiding Officers be provided with residential telephone and certain number of free calls over and above the free calls permitted by the telephone department be allowed for personal requirement of Judicial Officers treating the same as part of service conditions.
19.220 The Calcutta High Court, however, has stated that all Judicial Officers require telephone at their chambers with restriction not to use the telephone for personal purposes except by making payment for personal calls. Similar is the view expressed by the West Bengal Judicial Service Association stating that the Judicial Officers will have to pay the charges from their own pocket for personal use of the telephone.
19.221 The High Court of Sikkim has stated that the Judicial Officers do require telephone at Office and at residence with STD facilities and accordingly are provided in their State. But occasionally the use of the telephone goes high and, therefore, the free calls may be limited depending upon the categories of Officers.
19.222 We have considered these suggestions.
19.223 In Central Government and some States, telephones are not provided to the residence of the Officers below the rank of Deputy Secretary. Telephones at the office and residence of Deputy Secretary level Officers are, however, provided, but no STD facilities.
19.224 In these days, telephone is a necessity and not to be regarded as a luxury. It is, therefore, not only desirable but also necessary to provide telephone in all Courts and also at the residence of every Judicial officer.
19.225 However, we have to evolve a uniform principle without prejudice to the benefits already allowed to the Judicial officers in some States with regard to STD facilities.
OUR RECOMMENDATION :
19.226 We, therefore, recommend as follows:
1. Every Court must be provided with a telephone with STD facilities.
2. Every Judicial Officer must be provided with a telephone at his residence with STD facilities except to Civil Judge (Sr. Divn.) and Civil Judge (Jr. Divn.).
3. Without prejudice to the existing benefits of the free telephone calls, we recommend the following limits of free calls to the different categories of Officers:
Sl. No.
Name of the Category
Admissible free calls for two months
Office
Residence
i)
Prl. Dist. Judge/Sessions Judge/C.M.M. (with STD facility both in office and residence)
3,000
2,000
ii)
Addl. Dist. Judge/Addl. Sessions Judge (with STD facility both in office and residence)
2,000
1,000
iii)
Civil Judge (Sr. Dn.) and C.J.M.
(STD facility to CJM both in office and residence)
2,000
1,000
iv)
Civil Judge (Jr. Dn.)/Magistrate
1,500
750
4. The office must bear the expenses of the installation and bi-monthly payment of the telephone bills upto the aforesaid ceiling. Th excess calls, if any, must be borne by the concerned Judicial Officer.
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ADVANCES
19.227 The Government provides loans and advances to its employees for various purposes, which include house building / purchase advance (HBA / HPA), motor car advance, marriage advance, festival advance, advance for miscellaneous purposes like purchase of Khadi / Handloom cloth, warm clothing etc. All these facilities are hitherto extended to Judicial Officers also by the respective States / UTs.
19.228 Some advances are interest-free for e.g., festival advance, advances in connection with transfers, tours and journeys on LTC., whereas other advances like HBA /HPA, purchase of conveyances, personal computers, etc., are interest bearing.
ADVANCES FOR CONSTRUCTION / PURCHASE OF HOUSE :
19.229 At present, advances are granted for purchase of sites, construction and purchase of houses. The general pattern of advances available to the Central and State Government employees in this regard is almost similar. However, each Government has prepared a scheme of its own depending upon the local circumstances and available resources.
19.230 At present Central Government employees are entitled to HBA / HPA as indicated in the table below:
Sl.No.
Purpose
Cost
Basic pay + Stagnation Increment + NPA
Maximum limit (in Rs.) w.e.f. 16.12.97
1.
Construction of a house excluding plot
100%
50 times
7,50,000
2.
Construction of a house including plot
3.
Purchase of ready built house or flat
4.
Construction of a house in a rural area
80%
50 times
7,50,000
5.
Enlarging existing living accommodation
100%
50 times
7,50,000
6.
Enlarging existing living accommodation in rural areas
80%
50 times
7,50,000
19.231 Further, w.e.f. 16.12.97, the cost of ceiling limit, will be 200 times of the basic pay + NPA + SI subject to a maximum of Rs.18 lakhs. The entire amount of advance together with interest is to be repaid in full in monthly instalments within a period of not exceeding 20 years - the advance in 180 monthly instalments and the interest in 60 instalments. The advance carries differential interest rates ranging from 7.5% and 12% per annum depending upon the quantum of advance.
Conveyance Advance :
19.232 With a view to encourage and assist their employees to own their own vehicles which are required for use in the discharge of their duties, both Central and State Governments have been giving them advances repayable in easy instalments for purchasing vehicles.
19.233 At present, the advance for the purchase of a motor car is admissible only to Officers drawing a pay of Rs.10,500/- per month or more in Government of India. An amount not exceeding 11 months' pay subject to a maximum of Rs.1,80,000/- or the cost of the vehicle, whichever is less, is granted as advance for the purpose.
19.234 Similarly, an advance for the purchase of a motor cycle / scooter / moped is admissible to those drawing a pay of Rs.4,600/- p.m. or more. In this case also, an advance not exceeding 6 months' basic pay subject to a maximum of Rs.30,000/- or the cost of the vehicle, whichever is less, is granted.
Personal Computer Advance :
19.235 The advance for the purchase of a Personal Computer is admissible only to Officers drawing a pay of Rs.10,500/- or more per month in Government of India. An amount not exceeding Rs.80,000/- or the anticipated price of the computer (excluding customs duty, if any), whichever is less, is granted as advance for this purpose. The Commission elsewhere has recognised the importance of I.T. for Judiciary and hence there is need for purchase of personal computer by Judicial officers.
19.236 OUR RECOMMENDATIONS :
1. We recommend that all State Governments / UTs may adopt the limits prescribed by the Central Government for giving advances to Judicial Officers for construction / purchase of House.
2. We further recommend that a rebate of ½ % in the interest on HBA as admissible in the case of Central Government employees for undergoing sterilisation operation, may also be provided to Judicial Officers.
3. Elsewhere, the Commission has recommended liberal soft loan upto Rs.2.5 lakhs for Judicial officers to purchase Motor Vehicles on nominal interest and with easy instalments for repayment. We reiterate the same herein.
4. Advance for purchase of Personal Computer by the Judicial Officers be given on the same scale and terms and conditions as allowed to Government of India Officers.
A N D
5. Other Advances, if any, to the Judicial Officers in regard to matters not specifically covered herein, may be provided on the similar terms and conditions admissible to Central Government Officers.
* * * * *
20. PROMOTIONAL OPPORTUNITIES
20.1 The adequate promotional opportunity is one of the significant factors in service jurisprudence. Every officer looks forward to reasonable career progression not only because of higher salary but also with the object of occupying higher position of power and responsibility. It is undeniable that stagnation for long period would demoralise the officers. It is, therefore, necessary to evolve a proper promotion policy.
20.2 Keeping in view these factors, the Commission sought the views and comments on the following Questions :
Q.No.44. How many promotions a Judicial officer in your State at the lowest cadre normally gets during his tenure of service and at what intervals? Work out the realities with concrete examples.
Q.No.44.1. Does he invariably reach the highest cadre in the Judicial Service before retirement? If not, at what level does he stagnate and let the Commission have your suggestions to avoid stagnation?
Q.No.44.2. Should promotion be based on selection by merit alone or seniority-cum-merit? Please give reasons for preferring one or the other.
20.3 The replies received from the Respondents are presented below :
Almost all the High Courts have stated that a Judicial Officer recruited at the lowest level [i.e. Civil Judge (Junior Division)], generally gets promotion upto the post of Addl. District Judge / District Judge. Certain stray incidents of some Judicial Officers recruited as Civil Judges (Junior Division) retiring as Civil Judge (Senior Division) have also been reported. On careful scrutiny, it is found that such Officers have entered Judicial Service at an advanced age and could not complete even 25 years of service, before they could get promotion to the cadre of Addl. District Judge / District Judges. It is also noticed that in some cases, Civil Judges (Junior Division) not only reached the cadre of District Judges, but also marched to the High Court.
20.4 Some of the High Courts have reported that normally the first promotion from the cadre of Civil Judge (Jr. Dn.) to Civil Judge (Sr. Dn.) takes place within 6-9 years and second promotion after an interval of another 6-9 years. The High Courts of Kerala, Allahabad and Calcutta have stated that the interval between one promotion and another is about a decade. However, Sikkim stands as an exception. It is a small State with less number of Judicial Officers and having a population of around 5 lakhs with no scope for adequate promotional opportunity.
20.5 To prevent stagnation, various views have been expressed. Many of the High Courts / Service Associations and State Governments have suggested the following remedies :
i) Introduction of time bound pay scales or career advancement scheme.
ii) Provide a running pay scale.
iii) Stop direct recruitment from the Bar to the cadre of District Judges.
iv) Reduce at least the percentage of direct recruitment to the cadre of District Judges and make it uniform in all States / UTs.
v) All ex-cadre posts having judicial functions must be brought within the umbrella of judicial service with provision for deputation.
vi) Create selection grade and super-time scale in the District Judges cadre.
20.6 On the question as to whether promotion has to be on the basis of seniority-cum-merit or promotion by selection, the following suggestions have been received:
The High Courts of Andhra Pradesh, Delhi, Himachal Pradesh, Jammu & Kashmir, Kerala and Orissa have suggested that all promotions shall be made on the ground of ability and merit so as to keep all the Officers on their toes all the time and compel them to improve and give their best. However, they have added that seniority will have to be considered where merit and ability are equal.
The High Courts of Bihar, Gujarat, Karnataka, Madhya Pradesh, Punjab & Haryana, Sikkim, Tamil Nadu, Uttar Pradesh and West Bengal have favoured the principle of seniority-cum-merit for promotion. According to them, though promotion by merit is good in principle, it is more often based on subjective satisfaction and it is difficult to objectively consider the standard of meritorious performance.
Most of the Service Associations and State Governments have, however, favoured the principle of ‘Seniority-cum-Merit’ for promotion.
20.7 Taking all these factors into consideration, we have :
i) Rationalised the cadre structure and accordingly rationalised the pay structure also. Evolved a Master Pay Scale and carved out the required number of pay scales which have been elongated to prevent stagnation.
ii) Recommended Assured Career Progression Scheme for the cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) by providing two financial upgradations, within the stipulated time-frame.
iii) Recommended Selection Grade and Super-Time Pay Scales for District Judges, consistent with the functional needs and requirements.
iv) Recommended that the cadre of Civil Judges (Senior Division) should be purely a promotional cadre and no direct recruitment should be made to this cadre.
v) Recommended suitable amendment to Article 233 (2) of the Constitution to provide an opportunity for in-service Judges to compete for direct recruitment to the cadre of District Judges.
vi) Recommended that ‘not exceeding 25% of the posts in the cadre of District Judges should be reserved for direct recruitment’. This much of percentage for direct recruitment is considered necessary to promote efficiency, while at the same time, not impairing the interests of the promotees.
vii) Recommended an innovative concept of certain weightage for fixing the inter-se-seniority of the promotees and direct recruits in the cadre of District Judges to minimise if not to remove the constant irritation and imbalance between the promotees and direct recruits.
viii) Suggested that the promotional posts should be filled up at the earliest without being linked to the direct recruits.
* * * * *
21. SUPERANNUATION AGE OF JUDICIAL OFFICERS
SURVEY OF THE PAST :
21.1 In the past, the age of retirement of judges in the judicial service in every state was linked to that of the State Government Employees / Central Government Employees.
21.2 Till 31-3-1938, the normal age of retirement of Central Government Employees was 55 years. Employees could, however, be retained in service upto 60 years depending on their being physically fit and mentally alert.
21.3 The First Central Pay Commission set up by the Central Government in 1946 recommended 58 years for superannuation of Central Government employees. But this recommendation was not accepted by the Government on the ground, inter-alia, that the majority of persons retiring at the age of 55 were not capable of rendering efficient service; that their replacement at the age of 55 by younger men would serve the interest of efficiency better and that a retirement age should be fixed which would release men at the age when they would still be fit to render service to the country in other spheres of their choice.
21.4 In 1953, the question was reconsidered, but the earlier decision to retain the age of retirement at 55 was reaffirmed. The Government, however, decided that in view of shortages of trained personnel, the extension of service beyond 55 years might be given liberally on the ground of public interest particularly in the case of scientific and technical personnel.
21.5 In 1958, the question of retirement age was again considered in view of the continuing shortage of trained manpower. The Government did not extend the age of superannuation, but laid down the criteria for grant of extension and re-employment of technical and scientific personnel. It was decided that re-employment or extension might be granted upto two years at a time.
21.6 The Second Central Pay Commission examined the question of retirement age in some greater detail. It compared the data on life expectancy at birth and the retirement age, and also the data on general mortality and survival rate of pensioners, in comparison with the age of superannuation of Government servants in some foreign countries. The Commission also took note of the opinions expressed by eminent persons, economists, retired public servants, heads of departments, etc. After considering the various aspects, the Commission recommended an upward revision to 58 years. It mainly relied upon the fact that the life expectancy in India has improved, and there was greater need of scientific and technical personnel in Government service to meet the requirements of the Third Plan, then on the anvil.
21.7 Initially, the said recommendation was not accepted by the Government, since it was felt that raising the age of superannuation would reduce employment opportunity.
21.8 In 1962, the matter was again brought to the attention of the Government. The Government then took into consideration several factors like shortage of experienced and trained manpower; insignificant impact on employment opportunity (viz., of less than one per cent of the total volume of additional employment needed for the educated unemployed during the Third Plan period); the higher expectation of life and the continued physical fitness of Government employees after retirement. The Government decided to raise age of retirement from 55 to 58 years with effect from 1st December 1962. The age of retirement for Group D category of employees and workshop employees in the Central Government was maintained at 60 years.
21.9 The Third and Fourth Central Pay Commissions received many representations for upward revision of age of retirement to 60 years. But it did not favour the revision on the ground, inter-alia, that it would reduce the employment opportunities for fresh graduates and technical persons in Government service. They emphasised the need for injecting fresh blood and fresh knowledge for the efficient working in government.
21.10 All the State Governments save State of Kerala have followed similar age of retirement to their respective employees and also extending the same to Judicial officers in their states.
21.11 When the matter thus stood, the All India Judges' Association filed a writ petition1 before the Supreme Court seeking several reliefs including the upward revision of retirement age. It was contended before the Court therein that there is a marked distinction between the Civil Service and the Judicial Service, both in the qualification and nature of work. The age of superannuation of the Judicial Officers should be more than that of civil servants in as much as the basic qualification for recruitment to the judicial service requires every Officer to have in the minimum a bachelor's degree in law which is acquirable after becoming a graduate. But for normal civil service an ordinary graduate could apply and secure a job and that is not possible in judicial service which requires further period of three years to acquire the basic qualification. This inevitably would take minimum age for entry into Judicial Service higher than the minimum age for entry into Civil Service. It was urged that a distinction has to be maintained in the age of retirement for the Judicial Officers from that of the Civil Service and it is wrong to apply the same rule for both the categories.
21.12 Considering these and other factors, the Supreme Court observed that the age of retirement of Judicial Officers in subordinate courts should be raised from 58 to 60 years.
______________________________________________________________
1. AIR 1992 SC 165 = (1992) 1 SCC 119.
21.13 The aforesaid view has been maintained in the Review Judgement2 but with certain directions, which will be presently considered.
FIFTH CENTRAL PAY COMMISSION :
21.14 This Central Pay Commission was also required to examine the question as to the appropriate age of retirement of Central Government employees. The Commission entrusted the matter to the INSTITUTE OF APPLIED MANPOWER RESEARCH ("IAMR") for study and report.
21.15 IAMR if, we may say so, has examined the question in a scientific manner with collection of statistics of this country and countries abroad. It has even collected the up-to-date Data and in particular from the ILO Report III of the Joint Committee of Public Services (4th Session), Geneva, 1988. The relevant part of the report may usefully be extracted herein below3 :
"It is observed that the age of superannuation is 65 years in most Western Countries, viz. Australia, Belgium, Finland, France, Greece, Italy, Ireland, Luxembourg, Netherlands, Spain, Sweden, Turkey, U.K., Canada and U.S.A. In Denmark the age of retirement is 67 and in Norway, the retirement age of 70 years is followed in the case of certain categories of employees. In Asian region, the highest age of retirement is 65 years in Japan and Hong Kong; 60 years in China, Pakistan, Philippines; 57 years in Bangladesh; and 55 years in Malaysia, Singapore and Sri Lanka."
______________________________________________________________
2. AIR 1993 SC 2493; (1993) 4 SCC 288.
3. IAMR Report, Page 17.
21.16 The Table containing the age of superannuation in public services in foreign countries prepared by IAMR is hereto annexed as Annexure I to this chapter.
21.17 It is interesting to note the new developments in the age of retirement in other countries. IAMR has collected the following information:
NEW DEVELOPMENTS - WORLD TRENDS4
"In a number of countries, specially in European region, a further increase in the retirement age is round the corner. This change is taking place due to demographic causes especially the phenomenon of ageing population; and to reverse / arrest the trend of early retirement. In about 20 countries, there is a possibility of raising the current normal age of retirement on the following patterns:
(i) Denmark, Switzerland, Portugal, U.K., Australia and Finland are taking measures for greater flexibility in the age of retirement for longer stay of people at work. Israel and Germany are also taking similar measures.
(ii) U.S.A., has recently increased the age of retirement from 65 to 67 years. Japan is raising the age of retirement to 65 for both men and women. Costa-Rica has already increased the age of retirement to 65 years.
(iii) In the Republics of Czech and Slovak, it is proposed to increase the age of retirement to 62 years for both men and women, as against the existing 60 years for men and 57 years for women.
______________________________________________________________
4. IAMR Report, Page 18.
(iv) A gradual increase of retirement age to 65 years is being proposed in Italy against 60 years at present.
(v) In Argentina a proposal for raising the retirement age from 60 to 65 is being discussed."
21.18 IAMR has made a sample survey of the health conditions of about 1183 retired persons by contacting them personally. It is highly educative to read that information which runs as follows:5
"A sample survey of persons retired during the last five years (1990-94) was carried out for assessing their activity status, health conditions, opinions, on the age of superannuation, availability of work, leisure time spent, etc. For this purpose, names and addresses of about 5000 retired persons (1000 for each year) was obtained from the Office of Chief Controller of Pensions. In all 1183 retired persons were contacted by mail with Reply-paid facility to furnish information in the questionnaire drawn for the purpose. By the end of July, 365 persons furnished the information. Of course, 166 belonged to the gazetted and the rest i.e. 199 to non-gazetted categories.
About 50 per cent of the respondents reported that they were either working or were available for work. It was interesting to note that persons in the age group of 62 to 65 (about 9 per cent) had indicated their desire for work. Those employed / self employed, were persons between the ages 60 to 62 years.
Bulk of the retired persons viz. 80 per cent reported 'Excellent' to 'Good' health conditions. Another 14 per cent
______________________________________________________________
5. IAMR Report, Page 106.
reported 'Fair' health and only 6 per cent reported 'Poor' to 'Indifferent' health. The incidence of poor or indifferent health was found to exist amongst people above 62 years of age. It is seen that health conditions amongst the retired persons were good upto the age of 62 years."
21.19 After taking all these factors into consideration, IAMR has recommended as follows6:
(a) The age of superannuation for Central Government employees is recommended at 62 years, uniformly for all categories including school teachers. This age will also be applicable to the employees of UnionTerritory Administrations and N.C.T. of Delhi.
(b) A higher age of superannuation of 65 years is recommended for scientific and technical research and teaching professionals and Medical research and teaching professionals, Judges, Medical specialists, Computer specialists and other high-tech. professionals may also have the age of retirement of 65 years.
Non-technical employees, however, in scientific, technical or research institutions may not qualify for the enhanced retirement age and may retire at the general age of retirement of 62 years.
(c) The age of superannuation of senior officers of Central Police Organisations (CPOs) performing administrative and
______________________________________________________________
6. IAMR Report, Page 72.
supervisory nature of duties may be increased to 62 years. No change in retirement age is recommended for the operational personnel in any of the Central Police Organisation and the status-quo may be maintained.
(d) The age of superannuation for officers performing administrative and supervisory duties in the Delhi Police may be 62 years at par with Central Government employees etc."
RECOMMENDATIONS OF THE FIFTH CENTRAL PAY COMMISSION :
21.20 After considering the report of IAMR and other relevant material, the 5th CPC recommended7 to :
"increase the age of retirement for all Central Government employees (Except those in the Armed Forces and Central Police Organisations) to 60 years.
21.21 The 5th CPC further observed that8 :
"The recommendation for extending the age of superannuation to 60 years should have only prospective effect from such date as Government may specify and shall be applicable only to those employees who are to retire at the normal age of superannuation on or after the date on which the Government orders come into effect."
21.22 The 5th CPC also made the following suggestion9 :
"The present age of superannuation of Central Government
______________________________________________________________
7. Volume III - 5th CPC Page 1752.
8. Volume III - 5th CPC Page 1753.
9. Volume III - 5th CPC Page 1755.
employees has acted in the past as a benchmark against which the ages of superannuation of other categories of employee, judicial officers, teachers, constitutional authorities etc. were fixed. It is expected that our recommendations will lead to suitable readjustments elsewhere in order to maintain the present relativities." (emphasis furnished)
21.23 Pursuant to the recommendations made by the 5th CPC, the Central Government by order dated 13th May 1998, raised the age of retirement of Central Government employees from 58 to 60 and directed that they shall now retire from service on the afternoon of the last day of the month in which he / she attains the age of 60 years. It was further stated that the Government servants whose date of birth is the 1st of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 60 years.
21.24 Likewise, the Government of West Bengal, Pondicherry, Meghalaya, Mizoram and National Capital Territory of Delhi, have raised the retirement age of their civil servants to 60 years.
21.25 The remaining States, however, have not raised the age of retirement of their employees and it remains at 58.
21.26 Kerala Government consistently stood the ground by retaining the retirement age at 55 years for their employees.
21.27 This being the position, the Commission received several representations from Judicial Officers for enhancing the age of superannuation. The Commission, therefore, wanted to ascertain the views and comments on the matter from all concerned. For this purpose, the following question was formulated and included in the general Questionnaire :
Q.No. 48.1 :
What should be the proper age of superannuation to Judicial Officers?
21.28 In reply to the question, the diverse views have been received, which are set out in laconic details below :
VIEWS FROM JUDICIAL OFFICERS' ASSOCIATION :
21.29 By and large, most of the Judicial Service Associations have asked for raising retirement age to 62. One of the reasons given by them is rested on the recent hike in the retirement age of Central Government employees to 60 and the need to have proper relativity in their age of retirement. The Judicial Officers' Associations of Bihar, Gujarat, Kerala, Maharashtra, Manipur and Orissa, have, however, accepted the prevailing retirement age at 58 years.
21.30 The West Bengal Judicial Officers' Association has gone a step further. It has stated that if experience and maturity are required in judicial work, the retirement age should be raised to 65 years.
21.31 All India Judges' Association has given certain innovative reasons. It has stated that the judicial hierarchy has been accepted as a single entity by the Supreme Court. When each member of the judicial hierarchy puts his heart and soul in the discharge of his functions arduously for long hours every day, there should not be yawning gap in the retirement age of judges at various levels. They, in other words, want that there should be uniform age of retirement for judicial officers, High Court judges and Supreme Court Judges.
THE HIGH COURTS :
21.32 The High Courts of Patna, Jammu & Kashmir, Bombay, Sikkim, Rajasthan, and Punjab & Haryana are for upward revision of the age of retirement to 62 years. They have mainly put forward two fold reasons : (i) The retirement age of Central Government employees has been raised to 60 years and the existing relativity in the age of retirement of Judicial Officers has to be maintained; and (ii) The increase in the average span of life.
21.33 The High Court of Calcutta has a different approach to the question. It is stated that the general age of superannuation of the Judicial Officers may be maintained at 60 years keeping in tune with other service, but power should be conferred upon the High Court to extend upto 62 years for deserving cases.
21.34 The High Courts of Karnataka, Andhra Pradesh, Delhi, Himachal Pradesh, Kerala, Madhya Pradesh, Gujarat, Calcutta, Orissa, Madras and Allahabad, are, however, for maintaining the status-quo at 60 years.
THE GOVERNMENTS :
21.35 As expected, the Governments of Andhra Pradesh, Karnataka, Kerala, Maharashtra, Nagaland, Tamilnadu, Uttar Pradesh, West Bengal and Administration of the Union Territory of Lakshadweep, are against any alteration in the present retirement age of Judicial officers.
21.36 The Question for consideration is what should be the proper retirement age for our Judicial officers in the present set up?
21.37 Before we examine this question, we may refer to the observations and directions made by the Supreme Court in the Review Judgement in ALL INDIA JUDGES' CASE10. While declaring that there shall be upward revision of retirement age of Judicial Officers from 58 to 60, the Apex Court has made certain observations / directions which we had an occasion to consider earlier. But for immediate reference, we may reproduce the same below :
______________________________________________________________
10. Ibid2.
"There is, however, one aspect we should emphasise here. To what extent the direction contained in the main judgement under review shall stand modified. 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 J ustices 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 judgements and other relevant matters.
"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 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 and the compulsory retirement at the earlier stage/s under the respective Service Rules.
"The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 50 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."
21.38 Some of the High Courts have literally incorporated the above observations in their Service Rules making also a provision for compulsory retirement at the age of 58 years, if the Judicial Officers are found unsuitable for two more years of service.
21.39 Elsewhere in our Report11, we have stated that the directions of the Supreme Court have affected the morale of the Judicial Officers. The review
