ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട്

          ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട് 1
1. INTRODUCTION
Prenatal History of the Commission :
1.1 Though there has been separation of judiciary from the executive, and though the powers and functions of Judicial Officers are quite different from powers and functions of the Executive Officers, the service conditions of Judicial Officers, however, have been tagged with those of the corresponding Executive Officers. Even the scales of pay of the Judicial Officers were related or made identical with the pay scales of the corresponding level of Executive Officers of the State Civil Service.
1.2 The repeated efforts of the Judicial Officers to get an improved service conditions and delink their pay scales from the corresponding Executive Cadres became successful. The State Governments did not accede to their request.
All India Judges’ Association v. Union of India1 :
1.3 In 1989, the All India Judges’ Association and its Working President, filed Writ Petition (Civil) No.1022 of 1989 before the Supreme Court of India under Article 32 of the Constitution seeking many reliefs as to improve the conditions of service of subordinate Judicial Officers all over the country. But during the hearing of the petition, only the following reliefs were highlighted:
( i ) Uniformity in the Judicial cadres in different States and Union Territories;
( ii ) An appropriate enhanced uniform age of retirement for the Judicial Officers through-out the country;
( iii ) Uniform pay scales as far as possible to be fixed;
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1. All India Judges’ Association v. Union of India, AIR 1992 SC 165=(1992) 1 SCC 119.

( iv ) Residential accommodation to be provided to every Judicial Officer;
(v) Transport facility to be made available and conveyance allowance provided;
(vi) Adequate perks by way of Library Allowance, Residential Office Allowance, and Sumptuary Allowance to be provided;
and,
(vii) Provision for inservice training to be made.
The Judgment of the Supreme Court in the All India Judges’ Association Case :
1.4 A three Judge Bench of the Supreme Court, after hearing the representatives of the Union of India, all the States and Union Territories, disposed of the said Writ Petition by judgment dated 13 November 1991. Ranganatha Misra, Chief Justice, who spoke for the Bench observed:
(a) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(b) Steps should be taken to bring about uniformity in designation of Officers both in civil and the criminal side by 31-3-1993.
(c) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31-12-1992.
d.As and when the Pay Commissions / Committees are set up in the States and Union Territories, the question of appropriate pay scales of Judicial Officers be specifically referred and considered.

(e) The District Judge and Chief Judicial Magistrate should be given Rs.300/- and Rs.200/- respectively as Sumptuary Allowance per month.
(f) Government accommodation for residence to every judicial officer has to be provided and until State accommodation is available, the State at the instance of the High Court should provide requisitioned accommodation according to entitlement and the recovery of not more than 12 ½% of salary of the Officer towards rent should be made and the balance must be met by the Exchequer.
(g) The residential accommodation must be spacious enough to have a separate room for office purpose.
(h) Every Judicial Officer must be provided with uniform pattern of small library in his official residence and the District Judge should have provision made in his budget for the purpose.
(i) Every District Judge and Chief Judicial Magistrate should have a State vehicle. Judicial Officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time-limits as specified.
(j) Inservice Institute should be set up within one year at the Central and State or Union Territory level.





Review filed :
1.5 The Union of India and some State Governments being aggrieved by the aforesaid judgment preferred Review Petitions raising several objections including Constitutional questions. The objections may be summarised as under:
(i) The power to prescribe service conditions is vested in the executive and the legislature. The Supreme Court by issuing the directions in question prescribing the separate conditions of service has impinged upon the field exclusively assigned by the Constitution to the Executive and the legislature.
(ii) The service conditions of the State employees and the Judicial Officers are periodically reviewed by independent Pay Commissions constituted for the purpose.
(iii) There is nothing distinguishable about the judicial work, and if the directions given by the Supreme Court are followed, the other services would also demand similar service conditions. That would place a very heavy financial burden on the public exchequer.
(iv) The financial resources of all the States are not equal and some of the States would be unable to bear the financial burden by giving higher pay scales and other perquisites to the Judicial Officers.





Review Judgment of the Supreme Court2 :
1.6 Another three Judge Bench of the Supreme Court, Ranganatha Misra, Chief Justice, since retired, after carefully examining the contentions raised by the Review Petitioners, delivered the judgment on 24 August 1993 modifying some of the reliefs given in the original judgment, while giving additional reliefs, P.B. Sawant J., who spoke for the Bench, inter alia, observed:
"The Judicial Service is not service in the sense of ‘employment’. The judges are not employees. As members of the judiciary they exercise the sovereign judicial power of the State. They are holders of the public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions."
The learned Judge continued:
" The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally."
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2. All India Judges’ Association v. Union of India, AIR 1993 SC 2493=(1993) 4 SCC 288.
He went on:
"With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter."
He pertinently remarked:
" xxx xxx xxx
Hence the earlier approach of comparison between the service conditions of the judges and those of the administrative executive has to be abandoned and the service conditions of the judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service."
He also observed:
" Further, since the work of the judicial officers throughout the country is of the some nature, the service conditions have to be uniform."


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

1.7 For immediate reference, the views expressed in the aforesaid Review Judgment may briefly be summarised as follows:
(a) The legal practice of three years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy.
Wherever the recruitment of the judicial officers at the lowest rung is made through the Public Service Commission, a representative of the High Court should be associated with the selection process and his advice should prevail unless there are strong and cogent reasons for not accepting it, which reasons should be recorded in writing.
a.The Superannuation age of every subordinate judicial officer shall stand extended up to 60 years, but the respective High Courts should assess and evaluate the record of the judicial officer for his continued utility well within time before he attains the age of 58 years by following the procedure for the compulsory retirement under the Service Rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only if he is found fit and eligible to continue in service. In case he is not found fit and eligible, he should be compulsorily retired on his attaining the age of 58 years. Those judicial officers who are not desirous of availing of the superannuation age of 60 years, have the right to opt out at 58 years by proper intimation to the High Court before they attain 57 years.
(c) The direction for granting sumptuary allowance to the District Judges and Chief Judicial Magistrates stands withdrawn for the reasons given earlier.
(d) The direction with regard to the grant of residence-cum-library allowance will cease to operate when the respective State Governments / Union Territory Administrations start providing the Courts with the necessary law books and journals in consultation with the respective High Courts.
(e) The Principal District Judge or Principal Judge at each district headquarters or the metropolitan town and the Chief Judicial Magistrate and the Chief Metropolitan Magistrate will be entitled to independent vehicles with the free petrol subject to maximum of 100 litres per month in consultation with the High Courts. The rest of the Judges and Magistrates will be entitled to pool vehicles - one for every five judges for transport from residence to Court and back. Where pool vehicle cannot be provided or judges desire loan for purchasing two wheelers, they should be given loans on suitable terms and also the conveyance allowance.
(f) In view of the establishment of the National Judicial Academy, it is optional for the States to have their independent or joint training judicial institutes.
(g) There should be uniform pay scales to subordinate judges all over the country and such scales should be delinked to the pay scales of the Executive Officers.
(h) There should be separate Commission for determining the pay scales of the judicial officers.
(i) The States should not plead financial constraint if the pay scales of the judicial officers are enhanced delinking the same from that of the corresponding executive officers.
(j) The rest of the directions given in the original judgment are maintained.
Constitution of the Commission :
1.8 In pursuance of the above directions of the Supreme Court, the Government of India by Resolution dated 21 March 1996 constituted the FIRST NATIONAL JUDICIAL PAY COMMISSION for the Subordinate Judiciary all over the country with the following terms of reference :
(a) To evolve the principles which should govern the structure of pay and other emoluments of Judicial Officers belonging to the Subordinate Judiciary all over the country.
(b) To examine the present structure of emoluments and conditions of service of Judicial Officers in the States and UTs taking into account the total packet of benefits available to them and make suitable recommendations having regard, among other relevant factors, to the existing relativities in the pay structure between the officers belonging to subordinate judicial service vis-a-vis other civil servants.
(c) To examine and recommend in respect of minimum qualifications, age of recruitment, method of recruitment etc., for Judicial Officers. In this context, the relevant provisions of the Constitution and direction of the Supreme Court in All India Judges’ Association Case and in other cases may be kept in view.
(d) To examine the work methods and work environment as also the variety of allowances and benefits in kind that are available to Judicial Officers in addition to pay and to suggest rationalisation and simplification thereof with a view to promoting efficiency in Judicial Administration, optimising the size of the Judiciary etc..
Composition of the Commission :
1.9
1. Chairman -                      Mr. Justice K. Jagannatha Shetty
                                         (Former Judge, Supreme Court)
2. Member -                      Mr. Justice P.K. Bahri
                                         (Former Judge, Delhi High Court)
3. Member-Secretary -     Mr. K.R. Chamayya
                                      (Rtd. Chairman of State Admistrative Tribunal)

1.10 On 2nd April 1996, Mr. K.R. Chamayya assumed office as Member Secretary of the Commission.
1.11 On 24th April 1996, Mr. Justice P.K. Bahri (Rtd.) assumed office as Member of the Commission.

1.12 On 1st June 1996, the Chairman of the Commission assumed office.
1.13 On 27th August 1996, Mr. K.R. Chamayya resigned as Member-Secretary and in his place, Mr. Justice A.B. Murgod, retired Judge of the Karnataka High Court was appointed, and he took charge on 28 August 1996, as Member-Secretary of the Commission.
The Commissioning of the Commission :
1.14 Though the Commission was constituted in March 1996, it could not be made immediately functional for want of office, finance and staff.
1.15 On 8 May 1996, the Chief Justice of the Karnataka High Court, at the personal request of the Chairman of the Commission, was pleased to make available the premises for establishing the office of the Commission in the newly built Annexe to the City Civil Court Complex at the heart of Bangalore City. The said premises were entrusted to the Central Public Works Department for alterations to make it suitable for Commission’s requirements. The C.P.W.D. finished their work and delivered the premises to the Commission in the middle of September 1996.
Procedure :
1.16 The Commission has been authorised to devise its own procedure and appoint such advisers, institutional consultants and experts as it may consider necessary for any particular purpose. The Commission may call for such information and take such evidence as it may consider necessary.
1.17 All State Governments, UT Administrations and the Ministries/ Departments of the Central Government are required to furnish such information, documents and other assistance as called for by the Commission.
Staff :
1.18 Regarding the staff, the Commission has not been given power to recruit them from open market. The Commission was asked to recruit personnel with the "Surplus Cell" of the Government of India. After protracted correspondence, the Commission found that there was no suitable person for its requirement in the "Surplus Cell".
1.19 There then, Government allowed the Commission to appoint the staff, either by deputation from other departments or re-employment of retired persons. The Commission, however, could not secure the services on deputation save in three cases. The Commission was left with no alternative except to appoint retired persons. Literally, the Commission had to chase the retired persons who are below 60 years since if they are above 60 years, the special permission has to be obtained from the Central Government. In view of this constraint, even-to-day some of the posts are lying vacant for want of such retired persons.
Finance :
1.20 Regarding finance, it was only on 22 August 1996, the first Letter of Credit was received from the Government for a sum of Rs.7.50 lakhs and the first cheque book was received for the disbursement of the said amount on 9 September 1996. But that amount was hardly sufficient for payment of the bill of C.P.W.D. and to purchase necessary office equipments.
1.21 After recruiting the skeleton staff in the aforesaid manner, the Commission became partially functional at the fag end of December 1996.
1.22 The Main Office of the Commission is located at Bangalore, while a small Branch Office with the Member Mr. Justice P.K. Bahri (Rtd.) is based at New Delhi for co-ordinating and interacting with the Judicial Officers of the Northern States.
The Task of the COMMISSION :
1.23 The terms of reference to the Commission are all embracing. It is just not determining the pay scales of and conferring certain financial benefits to Judicial Officers as the name of the Commission purports to indicate. The work includes, among others, the restructuring the multiple judicial cadres into three uniform cadres, prescribing uniform jurisdictions, determining uniform pay scales. The Commission is also concerned with Recruitment, Training, Work Methods and Work Environment of Judicial Officers etc.
Collection of Material :
1.24 The Commission is not on the trodden ground but on the virgin field. It has no material to fall back upon. Since it is a first of its kind, even preliminary particulars have to be gathered for preparing the Questionnaire. Even before establishing the Commission’s office, the Chairman addressed a circular letter dated 31 July 1996 to all the Chief Justices of the High Courts requesting them to furnish certain information pertaining to their Judicial Officers in the prescribed format. The information started trickling from September 1996 right upto the end of February 1997. In the meanwhile, the Chairman visited New Delhi, Madras, Mumbai and Pune and had personal discussion with the Judicial Officers on their problems and requirements.
Questionnaire :
1.25 After collecting preliminary material, a comprehensive Questionnaire covering the terms of reference was prepared. On 15 March 1997, the Questionnaire was released by Mr. Justice R.P. Sethi, Chief Justice of the Karnataka High Court. The Questionnaire has been given wide publicity in print and electronic media so that it may come to the notice of all the Judicial Officers all over the country. The Questionnaire was also sent to all High Courts, State Governments, Judicial Officers’ Associations, Bar Associations, Bar Council of India, Jurists and Others, seeking their views.

Replies to the Questionnaire :
1.26 Almost all the Associations of Judicial Officers have promptly responded to the Questionnaire during the period from 4 June 1997 to 29 December 1997.
1.27 But the High Courts took their own time to express their views on the Questionnaire. The High Courts of Himachal Pradesh, Madhya Pradesh, Sikkim, Kerala, Bihar and Jammu &Kashmir sent their replies in 1997. The High Courts of Karnataka, Uttar Pradesh, Tamil Nadu and Assam sent their replies in the beginning of 1998.
1.28 The remaining 8 High Courts namely, Calcutta, Gujarat, Mumbai, Rajasthan, Andhra Pradesh, Delhi, Punjab & Haryana and Orissa delayed their replies in spite of repeated requests and reminders from the Commission.
1.29 Most of the State Governments were also not active in responding to the Questionnaire. In 1997, only the State Governments of Goa and Mizoram and Union Territory Administrations of Lakshadweep, Diu & Daman and Dadra & Nagar Haveli have sent their replies. The State Governments of Manipur and Assam sent their replies in February 1998 and March 1998 respectively.
1.30 On 15 July 1998, the Supreme Court came to the rescue of the Commission by directing the Registrars of the High Courts and also the State Governments and Union Territory Administrations who have not responded to the Questionnaire to send their replies to the Commission within 8 weeks of the receipt of the order of the Supreme Court.
1.31 Accordingly, the said High Courts, State Governments and Union Territory Administrations replied to the Questionnaire.
1.32 The All India Judges’ Association submitted a preliminary reply to the Questionnaire during May 1998 and final reply was received on 5 August 1998.
Consultants :
1.33 The Commission engaged different Consultants for different work: (i) Indian Institute of Public Administration, New Delhi, was entrusted with the task of rationalizing and suggesting uniform pay structures and other benefits for the proposed three cadres; (ii) Indian Institute of Management, Bangalore, was engaged for preparing a report on Case Management and Court Management; (iii) The National Law School of India University, Bangalore, was requested to collect and compile the history of State Judiciary and advise the Commission generally; (iv) Dr. N.R. Madhava Menon, Former Director of National Law School of India University, Bangalore, agreed to prepare a report on the Judicial Training Institute with the syllabus and course of training for Judicial Officers; and (v) Sri K.R. Chamayya, former Law Secretary / Legislative Draftsman and Chairman of the Karnataka Administrative Tribunal, was requested to prepare a model Civil Courts Act, Small Causes Court Act and draft Uniform Rules for Recruitment of Judges of Family Courts.
1.34 The Consultants, namely, the Indian Institute of Public Administration, New Delhi, the Indian Institute of Management, Bangalore and Dr. Madhava Menon, after discussion with the Commission, prepared separate Questionnaires in respect of subjects assigned to them. They sent the Questionnaires to all the High Courts, Judicial Officers’ Associations, State Governments and other concerned persons and Institutions, seeking their views thereon. After examining the response received, they have prepared the reports.
1.35 The National Law School of India University, Bangalore has collected and compiled a lot of material relating to the history of the judiciary in some of the States and Union Territories.
Amendment to the Terms of Reference :
1.36 The original terms of reference did not empower the Commission to declare any interim relief. The Commission, therefore, requested the Government to appropriately enlarge the terms of reference to recommend interim relief as there were repeated demands from the judicial officers of every State. The Government of India vide Resolution No.15014/1/97-Jus dated 16-12-1997 amended / enlarged the original terms of reference by inserting a new para as under:
" The Commission may consider and grant such interim relief as it considers just and proper to all categories of Judicial Officers of all the States / Union Territories. The interim relief, if recommended shall have to be fully adjusted against and included in the package which may become admissible to the Judicial Officers on the final recommendations of the Commission".
Interim Relief :
1.37 The existing pay scales of Judicial Officers vary from State to State. To rationalise their pay structure by giving uniform pay scales is one of the objects of the Commission. As a preliminary to achieve that object, the Commission, on 31 July 1998 granted Interim Relief to the Judicial Officers of States and Union Territories where the benefits of the V Pay Commission of the Central Government were not extended. The Interim Relief was granted on varying terms like 35% to 75% of basic pay with admissible Dearness Allowance of Judicial Officers as on 1.1.1996. The Commission also granted certain Interim Relief to the retired Judicial Officers. The Interim Relief was given effect from 1st July 1996.
1.38 Some State Governments promptly implemented the Interim Relief, but others did not. Taking note of this anomaly, the Supreme Court made an Order on 27th April 1998 as follows:
"We direct the other State Governments to take appropriate decision whether to give the interim relief or the benefits under the Fifth Central Pay Commission’s Report to the Judicial Officers in the States / UTs and make payment within four weeks from today, and report compliance to this Court."
1.39 Pursuant to the aforesaid direction, all the States have since implemented the Interim Relief.
Oral hearing :
1.40 The Commission afforded an opportunity of being heard to the representatives of all the Judicial Officers’ Associations, High Courts, State Governments / Union Territory Administrations etc., Hearing commenced on 2 November 1998 and concluded on 24 February 1999..
National Level Consultative Meeting on 12th & 13th December 1998 :
1.41 The Commission thought that the reports prepared by the Indian Institute of Management and Dr. Madhava Menon should be discussed by the judicial fraternity, and other concerned authorities, before they are finalised by the Commission. Accordingly, the Commission convened a National Consultative Meeting in Indian Institute of Management, Bangalore on 12 and 13 December 1998. The meeting was convened with the collaboration of said Institute of Management. Mr. Justice B.N. Kirpal. Judge of the Supreme Court inaugurated the Meeting which was presided by the Chairman of the Commission, Mr. Justice R.P. Sethi, Chief Justice of the Karnataka High Court was the Chief Guest. In the Meeting the draft report prepared by the Institute of Management on introduction of IT in Court work and the report by Dr. Madhava Menon on judicial training and Institute were thoroughly discussed. Dr. Madhava Menon and Dr. Rammohan Rao, Sri Vaidyanathan & Prof. Krishna of IIM played a prominent part in the two days discussion.
1.42 The Acting Chief Justice of Rajasthan High Court, Nominee Judges of the High Courts of Allahabad, Andhra Pradesh, Delhi, Gujarat, Guwahati, Jammu & Kashmir, Karnataka, Kerala, Madras and Mumbai participated in the deliberations and gave their valuable suggestions. Besides, the Directors of Judicial Training Institutes at Lucknow, Nagpur, Jabalpur and Ahmedabad and the Director of Sardar Vallabhbhai Patel Police Academy at Hyderabad were also present and took part in the discussion giving their views and suggestions. The representatives of some of the Judicial Officers’ Associations and other eminent persons also shared their views on both the said reports.
Reports of the Commission :
1.43 The Commission, after due deliberations and taking into consideration every aspect, has prepared the Report in three Volumes. We trust and hope that all the State Governments / Union Territory Administrations would implement the recommendations made in the Report at the earliest.

* * * * *
2.26 BENGAL [WEST BENGAL]
East India Company Courts :
2.26.1 In 1698, the Mughal King’s grandson granted Zamindari rights of three villages to the East India Company. The Company thereupon exercised all the powers, which the Mughal administration had granted to the native Zamindars. The Company appointed a Collector to carry on administration of all the three villages. The Collector began to hold Zamindari Courts regularly for both Civil & Criminal cases.
2.26.2 In 1699, Calcutta was given the status of Presidency Town. Its Governor and Council were entrusted with all the necessary administrative and judicial powers.
2.26.3 Accordingly, Fauzdaree Court presided over by English Collector was established to decide criminal cases regarding the natives of the three villages and petty crimes committed by English people. The Governor and Council were authorised to try serious crimes committed by the English people under the Charter 1661.
2.26.4 The Court of Cutchhery or Civil Court presided over by a Collector was established to adjudicate civil disputes. Appeals were allowed only in rare cases to the Governor and Council.
2.26.5 The Collector was also responsible for the collection of land revenue from the natives of all the three villages. In respect of revenue matters, appeals would lie to the Governor and Council.
2.26.6 The establishment and constitution of courts in all the three Presidency Towns was found necessary and that led to the constitution of Mayor’s Court presided over by a Mayor and nine Aldermen. Mayor’s Court was declared to be a Court of Record and was authorised to try, hear and determine all civil actions. It had testamentary jurisdiction to grant letters of administration and also had jurisdiction over all persons within the Presidency Town and working in the Company’s subordinate offices.
2.26.7 Appeals from the decisions of Mayor’s Court would lie to the Governor and Council. The decision of the Governor and Council was final in all cases involving a sum less than 100 Pagodas. Further appeal would lie to the King-in-Council (Privy Council) from the decisions of the Governor and Council.
2.26.8 Under Charter of 1726, Justice of Peace consisting of Governor and five Senior Members of the Council was established in each Presidency Towns.
2.26.9 Criminal Jurisdiction was conferred on the Justices of Peace. They were empowered to arrest and punish persons for petty criminal offences and they were also to act as a Court of Oyer, Terminer and Goal delivery and were empowered to hold quarter Sessions, four times a year for the trial of all offences excepting high treason.
2.26.10 In general, these courts were entrusted with the same powers similar to that of the courts in England.
2.26.11 Again, the Charter issued on 8 January 1753, which applied uniformly to all the Presidency towns, brought about certain changes in the method of appointment of Mayor and Aldermen. The changes effected are as indicated below:
(i) Alderman was to be appointed by the Governor and Council;
(ii) As regards the Mayor’s appointment, the Governor and Council were to select one out of panel of two names of Aldermen submitted to it by the Corporation every year.

2.26.12 Thus, the Mayor and Aldermen became the nominees of the Government.
2.26.13 Under the aforesaid Charter, the Government held large measure of control over the Corporation. The jurisdiction of the Mayor’s court was expressly restricted to Indians.
2.26.14 This Charter of 1753 also created a new Court called as ‘Court of Request’ in each Presidency Town to decide all the cases up to five Pagodas or Rs. 15/-, summarily and quickly. The Court of Request was manned by 8 to 24 Commissioners who were initially appointed by the Government mainly from amongst the Company’s servants. Half of the Commissioners were to retire every year and their places were to be filled in by ballot by the remaining Commissioners. This process of co-option would go on from year to year. On every court day, three Commissioners used to sit by rotation.
Evolution of Judicial Institutions :
2.26.15 As time passed, the Company expanded its political activities and acquired new territories surrounding the Presidency Towns. This new territory came to be known as Mofussil in contra-distinction to the Presidency Towns. The Company had to provide an administrative system in Mofussil for which Adalat System came into being for administration of Justice. Such Adalat System was initially introduced in the first territory acquisitions of the Company in Bengal, Bihar and Orissa.
2.26.16 In 1772, Warren Hastings introduced a scheme of judicial administration along with the system of revenue collection, which laid a foundation of Adalat system in India. Under this scheme, Bengal, Bihar and Orissa were divided into number of Districts. A District was considered as Unit and in each District an English Servant of the Company was appointed as Collector who was responsible for collection of land revenue. Judicial System was integrated with this scheme.

2.26.17 Accordingly, in each District, Mofussil Diwani Adalat was established with the Collector as the Judge. The Collectors being Englishmen did not know about these legal systems. Therefore, to make the system work and to enable the Collector-Judge to decide the cases according to Indian Law, native Law Officers, Khazis and Pandits were appointed to expound Muslim and Hindu Laws respectively applicable to the facts and circumstances of cases in dispute.
2.26.18 A provision was made for the disposal of small cases up to the value of Rs. 10/- to be decided finally by the Head Farmer of the Pargana where the dispute arose.
2.26.19 Mofussil Fouzdari Adalat or Mofussil Nizamat was established in each District to try all kinds of criminal cases. The said Adalat consisted of Muslim Law Officer, Kazi, Mufti and Moulvies. The Collector was required to exercise general supervision over the Adalats.
2.26.20 Over and above Mofussil Adalats, two superior Courts, viz., Sadar Diwani Adalat consisting of a Governor and Members of the Council and Sadar Nizamat Adalat consisting of a Chief Mufti formally appointed by the Nawab on the advice of the Governor and an Indian Judge known as the Daroga-i-Adalat and three moulvies were established at Calcutta. The Governor and Council exercised general supervision over the proceedings of Sadar Nizamat Adalat.

2.26.21 The Regulating Act, 1773 empowered the Crown to establish Supreme Court of Judicature by a Royal Charter. Accordingly, Supreme Court of Judicature at Fort William consisting of a Chief Justice and three puisne Judges was established. The Judges were appointed by the Crown and they held the office during his pleasure. Only Barrister of at least 5 years standing was eligible to be appointed as a Judge. The jurisdiction of the Court was restricted to only few defined categories of persons, viz., British subjects and His Majesty’s subjects residing in Bihar, Bengal and Orissa and persons employed either directly or indirectly under the Services of the Company.
2.26.22 The Supreme Court of Judicature was also a Court of Admiralty for Bengal, Bihar and Orissa to hear and try all cases — Civil and Maritime and all Maritime crimes committed upon the High Seas with the help of Jury who were British subjects resident in Calcutta, in the same way, as the Admiralty Court in England.
2.26.23 Each of the Judges of the Supreme Court was also the Justice of Peace with jurisdiction and authority similar to that of Judges of the Court of King’s Bench in England under common law. This system continued for over a period of 100 years with minor reforms here and there. The minor reforms that were experimented included the steps taken by Warren Hastings for the separation of judiciary and revenue administration and re-unification of all functions under hand of the Collector by Lord Cornwallis, abolition of Fouzdari Adalat in the District and establishment of Circuit Courts.
Chartered Courts :
2.26.24 In 1861, the Indian High Courts Act, 1861 was enacted by a Royal Letters Patent issued by Her Majesty, the Queen. Under this Act, the Crown was empowered to establish High Courts of Judicature for Bengal, Madras and Bombay and eventually for the Province of Agra. It was provided that upon the establishment of these High Courts, both the Supreme Court and Sadar Courts should be abolished. Accordingly, Charters were issued in 1862 and re-issued in 1865 to constitute High Courts at those Presidency Towns.
2.26.25 King’s Court in the Presidency Towns and Company’s Courts in Mofussil area were amalgamated into a single judicial system by the Indian High Courts Act.
Qualification for Appointment of Judges of the High Court :
2.26.26 No person could be appointed as the Judge of the High Court unless he was an Advocate of Scotland or a Barrister of England or a Pleader of 10 years standing in British India. However, Officers of Indian Civil Services having some minimum number of years of service could also be appointed as a Judge. He could not be removed from his office before retirement unless the Judicial Committee of the Privy Council would remove him on one of the grounds of misbehaviour or physical or mental infirmity.
2.26.27 The High Courts of Calcutta / Madras / Bombay were conferred with original and appellate jurisdiction.
2.26.28 Appeals from the decisions of the High Courts were to lie to the Judicial Committee of the Privy Council.
2.26.29 This position continued upto the enactment of the Government of India Act, 1915.
2.26.30 In the passage of time, the present structure of High Court is as follows:
Original Side :
2.26.31 The Courts of Original Side function as original courts for dealing with civil matters valued above Rs.10,00,000 arising within the ordinary original civil jurisdiction of High Court, i.e., within the district of Calcutta. The criminal cases arising within the area of Calcutta are now being dealt with by the Metropolitan Magistrates’ Courts, Calcutta and City Civil & Sessions Court, Calcutta. The applications under Art.226 of the Constitution of India arising within the area of Calcutta irrespective of valuation are also dealt with by the Courts of Original Side.

Appellate Side :
2.26.32 Appeals from the Original Decree or Appellate Decree and/or order from the subordinate judiciary, revisional application from the order of the subordinate courts, criminal revision or criminal appeals are dealt with by the Courts of Appellate Side. Appeals against the order of single Bench of the High Court are also dealt with by the Division Bench of the High Court, Appellate Side. All applications under Art.226 of the Constitution of India relating to matters arising outside jurisdiction of Calcutta are also entertained by the Appellate Side.
2.26.33 Appeals from the decisions of the High Courts lie to the Hon’ble Supreme Court of India.
2.26.34 The present strength of the Hon’ble Judges is as follows:
Approved strength : 50
Sanctioned strength : 48
Present strength : 32 (as on 15-11-1998)
2.26.35 After the enactment of Code of Criminal Procedure in 1861, the constitution of Criminal Courts styled as Courts of Sessions and Courts of Magistrates were established in every Province. Every Province outside the Presidency Town was divided into Sessions Divisions and the local Government appointed Sessions Judge and Additional and Assistant Sessions Judges, as the case may be. Below the Sessions Courts, there were Courts of Magistrates. An appeal would lie to the District Magistrates or to any specially empowered First Class Magistrate from the convictions by the Second or Third Class Magistrates. Original convictions by Magistrates of First Class were appealable to the Sessions Judge. Likewise, original convictions by Sessions Judge were appealable to the High Court in the Province.

2.26.36 The inferior civil Courts were established under the Special Act and Regulations, like the Court of District Judges, the Subordinate Judges and that of the Munsiffs.
2.26.37 These patterns were uniform in all the Provinces and the Presidency Towns of Calcutta, Madras and Bombay.
2.26.38 Small Causes Courts had taken the place of old Courts of Request and those Small Causes Courts were invested with jurisdiction to dispose of money suits, the subject matter of which did not exceed Rs. 2,000/-.
2.26.39 Presidency Small Causes Court Act, 1882 was passed to consolidate and amend the law relating to the Courts of Small Causes established in the Presidency Towns of Calcutta, Madras and Bombay. In each Small Causes Court, there were to be a Chief Judge and such other Judges as the local Government thought fit. However, 2rd of the persons so appointed were to be the Advocates of one of the said High Courts.

Presidency Magistrate :
2.26.40 Under the Presidency Magistrates Act, 1877 (Act IV of 1877), the Local Government with the sanction of the Governor General-in-Council could constitute divisions within the towns of Calcutta, Madras and Bombay and appoint sufficient number of fit persons to be Magistrates called ‘Presidency Magistrates’ for each of such divisions.
2.26.41 Every Presidency Magistrate by virtue of his office was to be a Justice of Peace for the town for which he was the Magistrate. The Local Government was to appoint one of the Presidency Magistrates to be the Chief Magistrate.
2.26.42 The Government of India Act, 1935 provided for the establishment of Federal Court in India, which was established in 1937. The said Act provided for the structure of Indian Judiciary as it is obtained today with the difference of Federal Court being replaced by the Supreme Court of India as stipulated in the Constitution.
Present system of subordinate judiciary in WEST bengal :
2.26.43 At present, West Bengal Civil Service (Judicial) Recruitment Rules regulate the recruitment and conditions of service of the Higher Judicial Service and Subordinate Judicial Service.
2.26.44 The Subordinate Judicial Service consists of :
a) Civil Judge (Senior Division) and Asst. Sessions Judge / Sub-Divisional Judicial Magistrate.
b) Civil Judge (Junior Division) / Judicial Magistrate First Class.
2.26.45 At present, there is single mode of recruitment of the Judicial Officers at the lowest level i.e., Civil Judge (Junior Division) / Judicial Magistrate First Class. These Officers are selected by the State Public Service Commission through a competitive examination, named West Bengal Civil Service (Judicial) Examination. The interview in the Public Service Commission is conducted amongst others by a High Court Judge to be nominated by the Hon’ble Chief Justice of High Court, Calcutta. The minimum qualification necessary for appearing in this examination is that the applicant should have LL.B. degree and minimum three years practicing experience at the Bar.
2.26.46 Officers so recruited are placed in the initial pay of Rs. 2200/- in the pay scale of Rs. 2200-80-3000-100-4000 (Pre-revised scale). After six years of service, these Officers are entitled to be placed in the higher scale posts of Rs. 3000-100-3500-125-4750 on the basis of 6 : 3 : 1 quota are available. The cadre of Civil Judge (Senior Division) and Asst. Sessions Judge / Sub-divisional Judicial Magistrate in the pay scale of Rs. 3000-100-3500-125-4750 is the promotional cadre from the posts of Civil Judge (Junior Division) / Judicial Magistrate First Class. After thirteen years of service, a Civil Judge (Senior Division) / Sub-divisional Judicial Magistrate is entitled to a higher pay scale of Rs. 3700-125-4950-150-5700 on the basis of 6 : 3 : 1 quota.
2.26.47 At present, there are 337 posts of Civil Judge (Junior Division) / Judicial Magistrate First Class and 206 posts of Civil Judge (Senior Division) / Assistant Sessions Judge / Sub-Divisional Judicial Magistrate.
2.26.48 The Higher Judicial Service consists of Chief Judicial Magistrate / Chief Metropolitan Magistrate / Additional Chief Metropolitan Magistrate / Additional District & Sessions Judge / District & Sessions Judge / Chief Judge, Small Causes Court / Judge, Special Court / Judge, City Civil Court / Secretary and Joint Secretary, Judicial Department / Legal Remembrancer, Joint Legal Remembrancer, Additional Joint Legal Remembrancer / Secretary Legislative Department / Registrars High Court, Calcutta, Appellate Side / Inspecting Judicial Officers, High Court Calcutta / Registrar, Human Rights Commission / Judge, State Administrative Tribunal / Registrar, Central Administrative Tribunal etc.
2.26.49 There are 230 such posts. All these posts are promotional posts from the cadre of Civil Judge (Senior Division) / Assistant Sessions Judge / Sub-Divisional Judicial Magistrate. The pay scale, after revision of the said posts is now Rs. 10650/- to 15850/-.
2.26.50 After five years of service, the Officer of the Higher Judicial Service is entitled to a higher pay scale of Rs. 12750-375-16500. After 9 years of service he may be placed in the Selection Grade in the pay scale of Rs. 15,100-400-18300. There are Super Time Scale posts in the pay scale of Rs. 18400-500-22400 and the above Super Time Scale posts in the pay scale of Rs. 22400-525-24500. The Officers working as District Judges are also entitled to a Special Pay of Rs. 500/- per month.
2.26.51 The Officers in the pay scale of Rs. 18400-500-22400 and Rs. 22400-525-24500 are eligible for Special Allowance of Rs. 500/- per month.
2.26.52 The members of the West Bengal Higher Judicial Service are governed by All India Services Pay Rules from time to time.
JURISDICTION OF COURTS :
2.26.53 Pecuniary Jurisdiction of the Courts to hear and dispose of suits is as follows :
i) Civil Judge (Junior Division) - up to Rs. 30,000/-.
ii) Civil Judge (Senior Division) - unlimited.
TRAINING AND REFRESHER COURSE :
2.26.54 After recruitment, Judicial Officers are provided with training. However, no Judicial Academy so far has been established in this State for the training of the Judicial Officer.
2.26.55 Under Rule 5(1) & (2) of the West Bengal Service (Appointment, Probation and Confirmation) Rules 1979, a Judicial Officer shall be deemed to be on probation on completion of continuous temporary service for two years after his initial appointment in a post of service or cadre. Further, he shall be confirmed and made permanent on satisfactory completion of a period on probation and on passing a departmental examination within further one year.

* * * * *



3. JUDICIAL STRUCTURE AND REMUNERATION
- INTERNATIONAL EXPERIENCE
INDIA :
3.1 By nationality we are Indians, but by legal tradition, we are generally still British. Our judicial system was English in origin. We have adopted the English model.
Supreme Court :
3.2 Chapter IV of Part V of the Constitution of India provides for Union Judiciary. It consists of Articles 124 to 147 providing for establishment and constitution of Supreme Court, appointment of judges and Chief Justice. The Supreme Court stands as a head of the judicial pyramid. The Chief Justice is called the Chief Justice of India and the other judges are termed as judges of the Supreme Court. They cannot be removed save by impeachment for proved misconduct or incapacity. They retire at the age of 65 years.
3.3 The Supreme Court has original jurisdiction to the exclusion of any other Court in any dispute between the Government of India and one or more States or between the States inter-se. It has appellate jurisdiction from the judgments and decrees of the High Courts in certain cases, both in civil and criminal proceedings. It has got absolute discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order passed or made by any Court or Tribunal in the country. It has also advisory jurisdiction or consultative function. The power is conferred on the President of India to consult the Supreme Court if it appears to him that the question of law or fact has arisen or is likely to arise is of such public importance. The opinion pronounced by the Supreme Court in its advisory jurisdiction is not a judicial pronouncement in the sense it is not binding on the party unless the party has agreed that it would be binding. However, it has a great persuasive force. The Supreme Court is free to pass executable decrees or to pass any order as may be necessary for "doing complete justice in the cause".
3.4 The decision given by the Supreme Court has binding force. All Courts in India are bound to follow the decision of the Supreme Court. While a judgment of a Court normally binds only the parties to litigation before it, the law declared by the Supreme Court shall be binding on all Courts within the territory of India. All authorities, Civil and Judicial, in the territory of India shall act in aid of the Supreme Court.
3.5 The Supreme Court is the guardian of the Constitution. It has power to issue directions or orders or writs or any writ for the enforcement of the fundamental rights guaranteed to the citizens and it is open to any person to move the Supreme Court by appropriate proceedings for the enforcement of his fundamental rights.
3.6 The Supreme Court, by its own judge-made law and procedure, has become one of the most powerful Institutions. It is not a Court of limited jurisdiction of only dispute settling like the Supreme Court as we know in any democracy. Almost from the beginning, the Supreme Court has been a law maker, albeit, in Homes' Expression "interstitial" law maker. Besides the role of dispute settling and interstitial law making, the Court is a problem-solver in the nebulous areas1. It also steps in as an intervener where the executive fails to perform its obligations.
3.7 Even in regard to appointment of judges of the Supreme Court, the Government has no freedom of choice of candidates. The Government is bound to act upon the recommendation of the Chief Justice of India, which is supported by the majority view of four senior-most puisne judges of the Supreme Court2. In no other country, the opinion of the Apex Court has been given such primacy in the matter of appointment of judges.
____________________________________________________________
1. K. Veeraswami Vs. Union of India (1991) 3 SCC 655 at 708.
2. Special Reference No.1 of 1998: (1998) 7 SCC 739.
3.8 The judges sit on panel which is constituted by the Chief Justice. The Chief Justice of India is also a participatory functionary in matters of appointment of judges of the Supreme Court and the High Courts.
3.9 As on to-day, the Supreme Court judge draws the fixed salary of Rs.30,000/- per month in addition to periodical Dearness Allowance. He is entitled to Sumptuary Allowance of Rs.3,000/- and House Rent Allowance of Rs.10,000/- per month, if Government quarters is not provided. Both the allowances are free from Income Tax. The Chief Justice is entitled to the salary of Rs.33,000/- per month and Sumptuary Allowance of Rs.4,000/-. The Sumptuary Allowance is free from Income Tax. He is provided with rent-free furnished quarters.
3.10 Under the provision of Part I of the Supreme Court Judges (Conditions of Service) Act, 1958 as amended by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998, the Chief Justice and other Judges of the Supreme Court, who have completed not less than seven years of service as a Judge in India would get pension. The maximum pension allowed to the Chief Justice is Rs.16,500/- per month and to other Judges is Rs.15,000/- per month.
3.11 A Judge who is not eligible to receive pension under the above provision will get pension of Rs.64,030/- per annum.
High Court :
3.12 Chapter V of Part VI provides for the High Courts in the States. It consists of Articles 214 to 231 providing, inter alia, for appointment and conditions of service of the Chief Justice, judges of the High Court, and transfer from one High Court to another. At the apex of the judicial pyramid is the High Court in every State. It has variety of jurisdictions. It has power to issue writs and orders for the enforcement of any of the fundamental rights and for any other purpose. It has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. It has absolute administrative and judicial control over the subordinate Courts. The judges of the High Court are liable for transfer from one High Court to another High Court. They cannot be removed save for proved misconduct or incapacity by the procedure prescribed for removal of Supreme Court judges. They retire at the age of 62 years.
3.13 They are entitled to a fixed salary of Rs.26,000/- per month with usual Dearness Allowance and other perquisites like tax-free Sumptuary Allowance of Rs.2,000/- and House Rent Allowance of Rs.10,000/-, if not availed of Government quarters. Chief Justice of the High Court is entitled to a salary of Rs.30,000/- per month and Sumptuary Allowance of Rs.3,000/-. The Sumptuary Allowance is free from Income Tax. He is provided with rent-free furnished quarters.
3.14 Under the provision of Part I of the High Court Judges (Conditions of Service) Act, 1954 as amended by the High Court and Supreme Court Judges (Salaries & Conditions of Service) Amendment Act, 1998, a Judge who has completed not less than seven years of service is eligible to receive pension at Rs.14,630/- per annum for each completed year of service as Chief Justice and at Rs.11,150/- per annum for each completed year of service as Judge.
3.15 A Judge who has completed 14 years of service including not less than six years of service as Chief Justice in one or more of the High Courts is entitled for maximum pension of Rs.15,000/- per month.
3.16 A Judge who is not eligible to receive pension under the above provision will get pension of Rs.51,190/- per annum.
Subordinate Courts :
3.17 The Constitution of India also contains a group of Articles 233 to 237 in Chapter VI of Part VI under the heading "Subordinate Courts". Article 233 provides for appointment of District Judges by the Governor of the State in consultation with the High Court. The Constitution also provides for direct appointment of District Judges from the Advocates or Pleaders who have not less than seven years of practice, provided they are recommended by the High Court for appointment. Normally, 1/3rd of the cadre of the District Judge is directly appointed by this method in each State and the rest are appointed by promotion from the cadre of Civil Judges (Senior Division).
3.18 There are Courts of different categories, like District Courts, Courts of Civil Judges (Senior Division) and Courts of Civil Judges (Junior Division). On the Criminal side, there are the Courts of Sessions, Judicial Magistrates of the First Class in Districts. Metropolitan Magistrates in Metropolitan areas. They are exclusively professional people for trying cases depending upon the gravity of the offences and punishment to be awarded. But in some States, there are Special Judicial Magistrates of the First Class and Second Class for trying some specified cases in any local area. They need not be professional people with the legal background though it is a desirable qualification.
3.19 There are labour Courts dealing exclusively with the Labour litigations. Likewise, there are Sales Tax Tribunals, Motor Vehicles Accident Claims Tribunals etc., presided over by District Judges.
3.20 In some Metropolitan cities like Mumbai, Ahmedabad, Hyderabad, Calcutta, Chennai and Bangalore, there are City Civil Courts consisting of District Judges and Civil Judges (Senior Division), established by special statutes.
3.21 In some States, the Subordinate Courts have got unlimited Ordinary Original Civil Jurisdiction, while in some other States, they have got limited such jurisdiction. In such States, the respective High Courts have got unlimited pecuniary jurisdiction. The High Courts of Mumbai, Madras, Calcutta, Delhi, Himachal Pradesh and Jammu & Kashmir have Ordinary Original Civil Jurisdiction. The rest of the High Courts do not have such jurisdiction.
3.22 These subordinate Courts entertain cases arising under the State laws and also under the Central laws. They follow adversary system with common law tradition.
3.23 The District Judges are eligible for appointment as High Court Judges. The High Court Judges are eligible for appointment as Supreme Court Judges. The Constitution specifically provides for such appointment. Under the law made by each State, the Civil Judge (Junior Division) is eligible for promotion as Civil Judge (Senior Division) and further on to the cadre of District Judges.
3.24 The judiciary is thus a cadre system with the ladder of promotion just like any other Civil service. All the judges of the subordinate Courts retire at the age of 60 years.
3.25 The States have no executive or legislative powers in respect of the constitution, organisation, jurisdiction and powers of the Supreme Court. Neither, the State has power over the constitution and organisation of the High Court. These matters fall under the Union List and the Central Government alone is competent to deal such aspects. The State, however, has power in respect of matters relating to Officers and Servants of its High Court. It is of importance to note that the administration of justice, constitution and organisation of the Subordinate Courts have been included in the Concurrent List, which means, both the Central and State Governments have power to legislate in respect of those matters, subject to the recognised norms and limitations.
3.26 Though the Supreme Court is at the apex, it has no administrative control over the High Courts or on the Courts subordinate to the High Court. The High Court in each State is independent with full powers of administration over all other Courts and Tribunals.
3.27 The Independence of judiciary is a basic structure of the Constitution3. The judiciary is independent of the Executive and Legislature though there is no clear demarcation and separation of powers of the Judiciary, Executive and Legislature.
3.28 The pay structure of Subordinate Judiciary varies from State to State. Some of the States have adopted the pay scales of the Central Government and other States have got their own independent pay structure.
3.29 The following are the States which have adopted Central pay scales: (1) Maharashtra; (2) Gujarat; (3) Delhi; (4) Madhya Pradesh; (5) Goa; (6) Tamil Nadu; (7) Lakshadweep; (8) Haryana; (9) Pondicherry; and (10) Rajasthan.
3.30 However, even here, inter-State pay diffferentials do exist as far as allocation of pay scales of the Central Government are concerned. Two of the States have extended I.A.S. pay scales to the members of the Higher Judicial Service, viz., West Bengal and Madhya Pradesh.
3.31 The State Governments which have not adopted Central pay scales of 1996, have evolved their own pay structure. They are different from State to State as seen in the table below:

Cadre
State
Pay Scales (in Rs.)
I.
a) District & Sessions Judge, Grade-I
Andhra Pradesh
8140-280-10380
Bihar
5900-200-6700
Karnataka
5825-175-6000-200-6800
Kerala
5900-6700
Orissa
5900-200-6700
Uttar Pradesh
5900-200-6700

(b) District & Sessions Judge, Grade-II/ Addl. Dist. & Sessions Judge.
Andhra Pradesh
7070-230-7300-280-10100
Bihar
3700-125-4700-150-5000
Karnataka
4700-150-5300-175-6000-200-6400
Kerala
5100-5700
Orissa
3200-100-3700-125-4700
Uttar Pradesh
4500-150-5700
II.
Civil Judges (Senior)
Andhra Pradesh
5040-160-5200-190-6150-230-7300-280-8700
Bihar
3000-100-3500-125-4500
Karnataka
3825-125-4700-150-5300-175-5825
Kerala
3900-5075
Orissa
2800-100-3600-EB-125-4350
Uttar Pradesh
3000-4500
III.
Civil Judges
Andhra Pradesh
3880-130-4400-160-5200-190-6150-230-7300-280-8140
Bihar
2425-75-2800-100-4000
Karnataka
2375-75-2900-100-3700-125-4450
Kerala
2500-4000
Orissa
2200-75-2800-EB-100-4000
Uttar Pradesh
2200-4000
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3. S.P. Gupta v. Union of India (1981) Supp. SCC 87, 408.
Kumar Padma Prasad v. Union of India (1992) (2) SCC 428.
Union of India v. Pratibha Bonnerjee (1995) (6) SCC 765.

AUSTRALIA :4
3.32 The Australian judiciary comprises three distinct jurisdictions - Federal, State and Territorial. Federal Courts derive their existence from Common-wealth legislation enacted pursuant to Section 71 of the Commonwealth Constitution, the State Courts from State legislation, and Territory Courts from Commonwealth legislation enacted under Section 122 of the Commonwealth Constitution. The High Court in Australia is the Apex Court mandated by Section 71 of the Commonwealth Constitution.
3.33 The determination of judicial remuneration in Australia has passed through three stages during the twentieth century. The first period was the longest, running from the turn of the century or earlier until the early 1950s. In most Australian jurisdictions, a salary increase was awarded in 1947 or 1948, with a further increase in 1950 or 1951. Thus, the annual salary of a puisne justice of the High Court remained constant (£ 3000) from that Court’s inception in 1903 until 1947, when it increased to £ 4000, rising to £ 4500 in 1950. The salary of puisne judges of the State Supreme Courts reflected the similar pattern following the Commonwealth’s lead. The position was similar in the New South Wales District Court, the salary of the puisne judge remained the same (£ 1500) from 1883 to 1948, when it was increased to £ 1800, rising to £ 2000 in 1951.
3.34 The second period of judicial remuneration covers from the early 1950s until the introduction of judicial remuneration tribunals, commencing with the Commonwealth in 1973. The trend was followed shortly by Western Australia (1975) and New South Wales (1976), and later by Queensland (1980) and South Australia (1985). During this period, judicial remuneration was fixed by statute, with amendments raising salary being passed with increasing frequency - almost annually towards the end of the period in order to keep up with inflation.
3.35 In 1950s, some States in Australia experimented with automatic adjustment or "indexation" in the line with changes in the ‘basic wage’ or ‘the cost of living’.
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4. Extract from the Report of Judicial Remuneration of Australia 1997.
It is, however, not clear that why such automatic adjustment was abandoned. Such indexation was probably considered unsatisfactory because variations in the basic wage or the Consumer Price Index is only one factor in judicial remuneration; other factors include the earnings of senior barristers, changes in the jurisdiction and work-load of Courts and relative with similar Courts in other jurisdictions.
3.36 Over-all, the 1950s and 1960s in Australia have witnessed continued decline in the relative financial position of judiciary.
3.37 The Third period may be considered as the current period in which there have been independent remuneration tribunals for determining the remuneration payable to judges and magistrates, as well as to parliamentarians and holders of senior executive positions. The decisions of these tribunals have no binding force except in South Australia. But in the Commonwealth (since 1989), New South Wales, Queensland and Western Australia, the decisions of such tribunals have been given binding effect subject to disallowance by either House of Parliament. The position in the various jurisdictions may now be examined briefly.
The Commonwealth :
3.38 The Commonwealth Remuneration Tribunal was established pursuant to the Remuneration Tribunals Act, 1973. The Act establishes a Tribunal of three part-time members appointed for a term of not more than five years, but eligible for reappointment. One of the members is to be appointed Chairman by the Governor-General in Council. That person originally had to be either a judge or retired judge of a State Court or qualified to be appointed as such.5 The first two Chairmen were sitting judges, namely, W.B. (later Sir Walter) Campbell of the Supreme Court of Queensland (1974-82) and Dennis Mahoney of the New South Wales Court of Appeal (1982-92). The requirement for a judicially qualified
____________________________________________________________
5. Remuneration Tribunals Act 1973 (Cth) Sec. 4 (6).
Chairman came to be removed in 1992 since that position was not requiring any special legal skills.6
3.39 The Tribunal was required to determine annually the remuneration payable to Members of Parliament and senior public servants subject to disallowance by either House of Parliament. The Tribunal, however, was only to "inquire into, and report to the Minister" on judicial remuneration and ministerial salaries. This was intended perhaps to overcome the constitutional barriers, which preclude the Tribunal from making determinations relating to remuneration of judges and salaries of Ministers.
3.40 Whether or not constitutional concerns really underlay the limitation on the powers of the Tribunal regarding ministerial and judicial salaries, the Commonwealth Parliament changed its position regarding the latter in 1989, and now requires the Tribunal to determine judicial (but still not ministerial) remuneration as well.
3.41 The effective determination of judicial remuneration by the Remuneration Tribunal appears to have operated reasonably satisfactorily until the mid 1980s. But thereafter, it has faltered for various reasons and consequently judicial salaries had fallen and senior barristers were refusing to accept appointment and in some cases, judges began to resign from the Bench to private practice.
3.42 In May 1988, the Hawks Government decided to alter the manner of determining the salaries of Chief Executive Officers of Government Business Enterprises (G.B.Es) to enable them to compete against the private sector for the best candidates. Their salaries would no longer be linked to those of senior public servants, but would be determined by G.B.E. boards after consultation
____________________________________________________________
6. Remuneration and Allowances Legislation Amendment Act 1992 (Cth) Sec.20.

with the Remuneration Tribunal. The result was an epochal report of 18 November 1988, which was to have such detrimental repercussions for the relationship between the Commonwealth Government and the federal judiciary that it is doubtful whether the resulting judicial bitterness has yet dissipated.
3.43 We will now briefly refer to the judicial remuneration in the States and Territories:
States and Territories :7
3.44 Judicial remuneration is determined by an independent statutory tribunal in six of the eight States and self-governing Territories, and de facto for Supreme Court judges in another (Tasmania). The remuneration of Australian Capital Territory judges and Magistrates is determined by the Commonwealth Remuneration Tribunal, the remuneration of A.C.T. Supreme Court judges being the same as that of Federal Court judges. New South Wales, Queensland, South Australia, Western Australia and the Northern Territory have their own Tribunals.
Western Australia :
3.45 The earliest of these was the Western Australian Salaries and Allowances Tribunal, established in 1975, just two years after the Commonwealth Remuneration Tribunal. It consists of three members, including a Chairman, appointed by the Governor in Council for a term of three years (renewable). No special qualification is stipulated, but persons holding offices within the Tribunal’s jurisdiction are (appropriately) expressly disqualified. The Tribunal determines the remuneration of a wide range of public officers as well as judges and magistrates; the State Governor, Ministers, Members and Officers of Parliament, senior public servants, and also the entitlements of former premiers, Ministers and Members of Parliament.
____________________________________________________________
7. Extracts taken from the compilation of the judicial remuneration in Australia.
3.46 Judicial remuneration must be determined at least once each year. Since 1992 the term "remuneration" has included non-pecuniary "benefits", such as cars. Reduction in remuneration is not prohibited. Determinations are binding, subject to disallowance by either House of Parliament, a power which Parliament has never exercised. Nevertheless, judges have not always regarded the Tribunal’s work favourably , and have occasionally complained to it in private. The heads of the various courts also address formal submissions to the Tribunal on behalf of their courts. The Chairmen of the Tribunal have included two former senior public servants (an Under Treasurer and a Genera Manager of the Public Service Board), a former Chief Commissioner of the State Industrial Commission, and a former Commonwealth Minister. Members have included a Managing Director of a bank, lawyers, an accountant, a former Member of Parliament, and a retired public servant.
3.47 The Tribunal is not legally required to have regard to current wage-fixing principles, but has taken account of wage restraint principles. Its reports have echoed the concern of the Commonwealth Remuneration Tribunal, seeking to balance general wage restraint with the need to raise judicial remuneration to reduce the "unacceptably large" gap between judicial salaries and earnings of senior practitioners, which (as elsewhere) has led to difficulty in recruiting judges to both the Supreme Court and the District Court. The Commonwealth Government’s failure to implement the November 1988 recommendations of the Commonwealth Remuneration Tribunal, whose report the Western Australian Tribunal has generally endorsed, has meant that it has followed the proposal to fix the remuneration of Supreme Court judges at about 85% of that of High Court justices only with considerable misgiving and over widespread judicial opposition.
New South Wales :
3.48 A few months after Western Australia, New South Wales established a Statutory and Other Offices Remuneration Tribunal to determine the remuneration of judges and statutory officers. The Tribunal must determine remuneration not later than 31 August each year or whenever the Minister so directs, and may alter a previous determination in order to apply a wages decision by the State’s Industrial Commission. However, judicial remuneration may not be reduced, Tribunal determinations are binding, subject to disallowance by either House of Parliament. A determination was annulled in 1982, but that was accomplished by legislation, not by disallowance on the ground that the increased remuneration awarded was unacceptable in the then existing economic climate.
3.49 The relativity of the salaries between judges of the Federal Court and their Supreme Court colleagues was a matter of some concern in New South Wales. Judicial remuneration was discussed at a Premiers’ Conference on 28 June 1990, at which the Prime Minister and Premiers agreed jointly to address issues such as disparities between salaries and "leap-frogging". Consequently, the Chairman of the Commonwealth Remuneration Tribunal met with representatives from State and Territory Remuneration Tribunals and the Victorian Government on three occasions between August 1990 and July 1991 and thereafter on several occasions, and reached consensus that provided the remuneration of High Court justices was set at an "acceptable level" and regard was had to major differences in benefits, the salaries of Federal Court and State Supreme Court judges should not exceed 85% of that of a High Court justice. They also agreed to consult informally before determining judicial remuneration, which should occur at around the same time each year in order to avoid "leap frogging"8. New South Wales has followed this consensus since-then and the Tribunal has generally fixed the remuneration of a Supreme Court judge at the salary of a Federal Court judge, (i.e. 85% of that of a High Court justice) plus $ 10,362.

____________________________________________________________
8. N.S.W. Statutory and Other Offices Remuneration Tribunal, Report on the
Salaries of Judges . . . . . . . . (28 November 1991), para, 3.
3.50 However, Federal Court judges' salaries generally exceed those of the Victorian, South Australian and Tasmanian Supreme Courts, leading to concerns of federal "poaching" of State judges in those States. Since Federal Court salaries are set at 85% of High Court salaries, nationwide adoption of the 85% standard for Supreme Court judges would ensure parity in remuneration between them and the Federal Court.
3.51 In its determination of 31 August 1996, the Tribunal increased the remuneration of a Supreme Court Judge by 4.25 percent to $ 1,77,488 thus preserving the relationship with the salary of a Federal Court Judge. The amount of $ 10,362 which takes into account the difference in conditions of Federal Court Judges and Supreme Court Judges was added, making a total remuneration of $ 1,87,850 per annum.
3.52 The Tribunal, after considering the views of the Assessors, determines that the base rate of remuneration for a Supreme Court Judge should be increased on and from 1 October 1997 by 5 percent from $ 1,77,488 to $ 1,86,362 per annum. The Tribunal also determines that the amount to be added to take into account of the difference in conditions of Supreme Court Judges and Federal Court Judges should remain at $ 10,363 thus making the total remuneration of a Supreme Court Judge $ 1,96,725 per annum.
3.53 A spokeswoman for Attorney-General Jan Wade has promised that the report of the Commission was being considered as reported in "HERALD SUN (MELB)" 1st Edition, 17 September, 1997 p. 15.
Queensland :
3.54 The next State Tribunal was Queensland’s Salaries and Allowances Tribunal, established in 1980. It determines the salary and allowances of judges, but not the allowances of Magistrates since 1991. The determination of judicial remuneration is its sole function. Its determinations, which must occur at least once each year, are legally binding, subject to disallowance by the Legislative Assembly. But that power was exercised only once in 1993 to set aside a determination which was considered legally flawed.9
3.55 The Tribunal is not specifically required to take account of Wage Determination Principles or variations in the cost of living, but is required to consider the equity of Queensland judicial remuneration in the light of such remuneration elsewhere in Australia.
South Australia :
3.56 South Australia established its Remuneration Tribunal in 1985. But it did not determine judicial salaries until 1988. Until then, judicial salaries were set pursuant to a legislative formula which essentially fixed Supreme Court salaries at 95% of the average in the other mainland States, and District Court salaries at 85% of the Supreme Court’s, with subsequent increases to follow wage determinations of the State Industrial Commission; the Remuneration Tribunal had power only to fix judicial allowances, not salary. Since 1988, the Tribunal determines both salary and allowances.
3.57 The Tribunal must determine judicial remuneration at least once in each year. Their determinations are binding, and not subject to parliamentary disallowance, although they could, of course, be overturned by legislation. But that has never happened.
3.58 In determining remuneration, the Tribunal is required to "have due regard to" and "may apply and give effect to", any principles enunciated by the (Full) State Industrial Commission, which itself is required to pay similar regard to the
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9. See Queensland Parliamentary Debates, 19 November 1993, 6096-6102, disallowing Queensland Salaries and Allowances Tribunal, Fourteenth Report (31 August 1993).
decisions and declarations of the Commonwealth Industrial Relations Commission. Moreover, the Tribunal is (and, again, uniquely in Australia) specifically directed to "have regard to the constitutional principle of judicial independence".
3.59 The South Australian Remuneration Tribunal appears to have performed well. The Tribunal has acted responsibly and independently, without governmental interference.
Northern Territory :
3.60 Judicial remuneration in the Northern Territory is determined from time to time by the Administrator, but cannot be reduced during a judge’s term of office. The Remuneration Tribunal was established in 1981. The Tribunal only makes "recommendations" on judicial remuneration; but its recommendations have always been followed. In fact, the terms and conditions of Northern Territory judges provide for their remuneration at rates not less than those payable to judges of the Federal Court and the Tribunal has always recommended remuneration equivalent to that of the Federal Court.
Tasmania :
3.61 Tasmania and Victoria do not constitute Tribunals to determine judicial remuneration. Tasmania relies indirectly on determinations of the South Australian and Western Australian Tribunals to fix Supreme Court judges salaries. The Chief Justice of Tasmania’s salary is the average of the salaries of the Chief Justices of those States and puisne judges receive 90% of that figure. The salaries of Supreme Court Masters and Magistrates are fixed by reference to the salary of the Permanent Head of a government department: 92%for the former, and 81.25% for the latter. Tasmania has no intermediate Court.
Victoria :
3.62 Since 1980, the remuneration of Victorian judges and Magistrates has been determined by the Attorney-General. Until 1987, it was determined in response to wage increases awarded by the Australian Conciliation and Arbitration Commission and thereafter, following a recommendation of the Robinson Inquiry in 1986, determinations follow upon increases awarded by the Commonwealth Remuneration Tribunal.
3.63 Victorian judicial remuneration is to be reviewed in accordance with current wage fixing principles at least once every five years by a person the Attorney-General considers suitably qualified to carry out such a review.
3.64 It has been now felt that Victoria should change its method of determining judicial remuneration to a system closely resembling South Australia’s. That system is yet to be implemented.
3.65 Judicial remuneration in Australia is presently in a state of uncertainty, with important reviews in progress in the Commonwealth and Victoria, Australian judges bear a strong sense of grievance and consider themselves seriously underpaid, as evidenced by the Commonwealth Remuneration Tribunal’s report of November 1988. They have reluctantly accepted wage injustice; as they see it, because they acknowledged the arguments for wage restraint which depressed the wages of the general work-force during the Recession, expecting the "injustice" to be righted once the economy recovers. Now that economic recovery has begun.