judgement:
Appeal No. 1345 of 1986.
From the Judgment and Order dated 29.8.1984 of the Madhya Pradesh High Court in Misc.
Petition No.613 of 1983.
Avadh Behari Rohtagi.
S.K. Gambhir, Vivek Gambhir and K.K. Mohan for the Appellants.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra, B.K Satija and Surinder Karnai for the Respondents.
The Judgment of the Court was delivered by 260 KASLIWAL, J.
In all the above appeals the parties are the same and the controversies raised are intimately con nected and dependent on each other, hence all the cases are disposed of by one single order.
Land measuring 19 bighas was granted by the ruler of the erstwhile State of Ratlam in favour of ancestors of respond ents Shantilal and Poonam Chand Pitaliyas (hereinafter referred to as 'Pitaliyas ') for installation of a Ginning factory.
Ancestors of Kantilal Jhalani and other appellants (hereinafter referred to as 'Jhalanis ') entered into part nership with Pitaliyas and the partnership started a Ginning factory on a portion of the above 19 bighas of land.
The names of Jhalanis and Pitaliyas were recorded in the revenue records in respect of the entire land.
The above 19 bighas of land had some different survey numbers but subsequently at the time of settlement in Ratlam in the year 1956 57, the numbers were changed to survey numbers 120 and 121.
Survey No. 120 comprised of 2 biswas and survey No.121 of 18 bighas and 18 biswas.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhala nis purchased the said land in an auction.
Thereafter, an application was moved by the Jhalanis on 13th April, 1951 for mutation of their names before the Tehsildar in respect of the entire lands bearing survey Nos. 120 and 121 leaving such portion of the land on which the Ginniing factory was standing.
The Tehsildar vide his order dated 20th February, 1953 allowed the application and passed an order mutating the names of Jhalanis on the entire 19 bighas of land.
The said mutation was allowed on the basis of compromise between Pitaliyas and Jhalanis and also on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust, Ratlam (hereinafter referred to as 'the Trust ') started acquisition proceedings for a housing scheme under the provisions of the Town Improvement Trust Act, 1960 (hereinafter referred to as 'the Act ') and issued a notification on 28th August, 1964 under Sec.68 of the Act.
Survey Nos. 120 and 121 were shown in the notifica tion leaving out some area of survey No.121.
In the acquisi tion proceedings, the Trust obtained possession of the acquired land on 21st March, 1968.
The Collector started svomotu proceedings under Sec.50 of the Madhya Pradesh Land Revenue Code, 1959 and issued a notice on 17th December, 1970 to the Jhalanis stating that the mutation proceedings did not appear to be legal.
It is not necessary to state the details of other proceedings by which the Jhalanis went to the higher authorities as ulti mately the matter came back to the Collector by remand.
The Jhalanis contested the proceedings before the Collector and prayed for the cancellation of the 261 notice dated 15th February, 1972 which was issued afresh by the Collector after the remand of the case to him.
The Collector ultimately by an order dated 31st March, 1977 set aside the order of mutation passed by the Tehsildar and gave a direction that the Tehsildar, Ratlam will again make the same entry in the revenue records which was done previously in respect of disputed land.
It was further directed that thereafter the Tehsildar will do proper investigation and analyse all the concerned facts and events which had hap pened in the case and take steps for making the record upto date.
Particularly he will see by which lease and on what conditions originally how much land was given for factory purpose by the State and whether that lease is effective or lapsed.
An appeal filed by the Jhalanis to the Additional Commissioner was dismissed by order dated 11th December, 1981.
The Jhalanis then filed an appeal before the Board of Revenue.
This appeal filed by the Jhalanis was allowed in their favour by the Board of Revenue by order dated 26th March, 1983.
The Board inter alia held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pitaliyas then filed a writ petition before the High Court for setting aside the order of the Board of Revenue.
The High Court by order dated 29th August, 1984 allowed the Writ Petition and set aside the order of the Board of Revenue and restored the orders of the Additional Commissioner and the Collector.
Aggrieved against the aforesaid judgment of the High Court, the Jhalanis have filed Civil Appeal No. 1345 of 1986 by grant of Special leave.
In the acquisition proceedings the question of compensa tion was decided by the Tribunal constituted under Sec.73 of the Act.
The Tribunal by its order dated 30th November, 1973 held that Pitaliyas had no right to claim compensation and the Jhalanis alone were entitled to the entire amount of compensation.
The Order of the Tribunal was challenged by Pitaliyas, for apportionment of the amount of compensation, also by Jhalanis for increasing the amount of compensation and by the trust for reducing the amount of compensation by filing separate appeals in the High Court.
The High Court by its order dated 29th July, 1984 allowed the appeal filed by the Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis.
The High Court dismissed the appeal filed on behalf of the Trust.
The High Court allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 0.65 paisa per Sq.
10 0.75 paisa per Sq.
Aggrieved against the afore said judgment of the High Court in acquisition proceedings, the Jhalanis have filed Civil Appeal No. 1346 of 1986 and the Trust has flied appeal No.3426 of 1987 by grant of special leave.
262 We have heard learned counsel for the parties and have thoroughly perused the record.
The land in question was given by the Ruler of erstwhile State of Ratlam for establishing a Cotton Ginning factory at Ratlam.
The deed of partnership between the Pitaliyas and Jhalanis has not been produced on the record of this case but the admitted position is that the Janlabandi entries in the revenue records of the year 1921 22 show tllat survey Nos. 1326 to 1336, 1337/2 and 1340 to 1342 (subsequently changed to Survey Nos. 120 and 121), stood in the name of Keshrimal Vardhman Pitaliya and Keshrimalji Dhanrajji Jhala ni in equal shares.
Keshrimal Vardhman Pitaliya proprietor of firm Vardhman Keshrimal died sometime prior to 1932 and he left behind two sons Sagarmal and Vinayakrao Pitaliya who became the proprietors of Hindu Undivided Family firm Vard human Keshrimal.
Sagarmal and Vinayakrao Pitaliyas did not apply for the mutation of their names in the revenue re cords, after the death of their father Keshrimal Pitaliya.
Keshrimal Dhanraj Jhalani had to recover some amount from the firm Vardhman Keshrimal and he filed a civil suit for the recovery of the money against Sagarmal and Vinayakrao Pitaliyas.
A degree was passed in favour of Keshrimal Dhan raj Jhalani and they filed an application for execution of the decree.
In the execution case No. 161/42 the right, title and interest of Pitaliyas in the Ginning Factory were sold in auction for Rs.6541 and which was purchased by Keshrimal Dhanraj Jhalani on 2nd November, 1946.
A sale certificate was also issued in favour of Keshrimal Dhanraj Jhalani by the Civil Court Ratlam on 3rd October, 1950.
On the basis of this sale certificate Keshrimal Dhanraj Jhalani applied for mutation in the revenue records on 3rd April, 1951 before the Tehsildar, Ratlam.
Alongwith the application Keshrimal Jhalani filed a copy of the sale certificate and a certified copy of the Jamabandi of the land of Samwar year 20,35 (1948 49 A.D).
During the pendency of this mutation application Vinayakrao Pitaliya died leaving no heirs.
Sagarmal who was Karta of the Joint Hindu Family filed objections to the mutation application on 17th March.
It is important to note that in these objections Sagannal clearly raised the ground that in the auction proceedings only movable property of the factory was sold and as such Keshrimal Dhanraj Jhalani had no right to clam mutation of the entire agricultural land in his favour.
Thereafter an agreement took place between Sagarmal Pitaliya and Keshrimal Dhanraj Jhalani on 16th October.
This agreement made in writing was filed before the Tehsildar in which Sagarmal Pitaliya agreed to with draw his objections for the mutation of his share in 19 bighas of land.
in favour of Shri Keshri mal Dhanraj Jhalani in lieu of Shri Keshrimal Dhanraj JhaIa ni having agreed not to recover Rs.4941.
being the balance amount of decree passed in suit No.2 of 1932 against Pita liyas.
Apart from the 263 aforesaid compromise application the statement of Sagarmal Pitaliya was also recorded on 16th October, 1952 itself and Sagarmal clearly made a statement that he was withdrawing his objections as regards mutation in respect of his share in the land of 19 bighas and that he had no objection to the mutation of Shri Keshrimal Dhanraj Jahalani 's name in re spect of the land in dispute.
Thereafter, the Teshsildar rejected the objections filed by Sagarmal and passed an order on 20th February, 1953 granting mutations in the name of Shri Keshrimal Dhanraj Jhalani.
After this order of mutation passed by the Tehsildar on 20th February, 1953 Sagaramal or any other member of the family of Pitaliyas did not take any steps for challenging the aforesaid order of the Tehsildar.
It is further proved on record that thereaf ter names of Jhalanis alone was continued in the revenue records in respect of the entire 19 bighas of land.
The land acquisition proceedings then commenced in the year 1964 and possession over the land was taken by the Trust on 21st March, 1968 from Jhalanis.
The Collector took suo motu proceedings in 1970 and passed an order on 31st March, 1977 setting aside the order of the Tehsildar.
In the above set of circumstances Pitaliyas came forward and claimed half share in the compensation amount in land acquicition pro ceedings before the Tribunal.
The Tribunal rejected the claim of the Pitaliyas but High Court by order dated 29th August,1984 granted half share in favour of Pitaliyas taking the view that they were persons interested under the Town Improvement Trust Act.
On the same day by a separate judg ment the High Court set aside the order of Board of Revenue and maintained the order of the Additional Commissioner and the Collector passed in mutation proceedings.
After going through the entire record , 'red hearing the arguments at length, we are clearly of the view that the High Court went wrong in passing the impugned orders.
As already mentioned above from the year 1922 onwards the entries in the Revenue records in respect of 19 bighas of land was made in favour of Jhalanis and Pitaliyas both in equal share.
Jhalanis had a decree against Pitaliyas and in execution of said decree share of Pitaliyas was auctioned and was purchased by Jhalanis for a sum of Rs. 6541.
Sale certificate was also issued in favour of Jhalanis.
According to Jhalanis the half share of Pitaliyas in the land was also sold and on that basis an application was filed before the Tehsildar for ranration of the entire land in their favour.
According to Sagarmal Pitaliya who was also Karta of Joint Hindu Family, no such land was sold in auction.
11 may be noted that the bid in auction was for an amount of Rs.6541 but it did not satisfy the entire decretal amount and the balance of Rs.4941 still remained due against the Pitaliyas Judgment debtors.
In view of these circumstances a compromise took place between the parties according to which Sagarmal agreed to withdraw his objections in consid eration of 264 satisfaction of the aforesaid amount of Rs.4941 outstanding against him.
On 16th October, 1952 the compromise applica tion was filed in writing and statement of Sagarmal.
was also recorded in which he clearly agreed that he will not claim any right in the land and withdraw his objections and the amount of Rs.4941 was taken as satisfied and Jhalanis agreed not to recover the aforesaid amount of Rs.4941.
It is an admitted position that the order passed by the Tehsildar on 20th February, 1953 rejecting the objections of Sagarmal Pitaliya and mutating the name of Jhalanis for the entire land, was not challenged and the same became final.
Mr.U.R.Lalit, learned Sr.
Advocate appearing on behalf of Pitaliyas did not argue, that the compromise application filed on 16th October, 1952 and the statement recorded on the same day were forged or not genuine.
The only submission made by Mr. Lalit was that any order passed in mutation proceedings cannot confer any legal title in favour of Jhalanis nor such order can divest the ownership rights of Pitaliyas in the agricultural land.
We do not find any force in this submission.
Admittedly, there was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auc tion proceedings, the same was settled at rest by making a compromise between the parties.
Not only that after the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and also continued to remain in possession.
It is also proved that the Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
It is no where proved on record that the Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compensation before the Tribunal.
The Collector in our view had no justification at all to have initiated such proceed ings suo motu in 1970 after 17 years of the order passed by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no Justification for entering the names of pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th Febru ary,1953 after 17 years, As already mentioned above, Tehsil dar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement of Sagarmal marie before him on 16.10.52.
Now, we shall deal with Civil Appeal No.3426 of 1987 filed by the Trust.
It was argued on behalf of the appel lant Trust that in the erstwhile State of Ratlam one bigha was equivalent to 21511 Sq.
as per Jantri 265 Milan Bigha Va Ekad prepared in 1911 and the lower courts wrongly calculated the area acquired by treating one bigha equivalent to 22500 Sq.
as now prevalent according to the prescribed standards.
We do not find any force in the abvoe contention.
No such argument was raised before the Tribunal and it was raised for the first time before the High Court.
The High Court rejected the aforesaid argument on the ground that admittedly at present one bigha was equivalent to 22500 Sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 Sq.
prevalent in the erstwhile State of Ratlam.
This being a controvercial question of fact and the other side having given no chance to lead any evidence on this point it was difficult to rely on the Jantri Milan Bigha Va Ekad.
The High Court thus held that the compensation for one Bigha of land would be calculated as equivalent to 22500 Sq.
We do not find any error in the aforesaid view taken by the High Court.
It was next contended on behalf of the Trust that the Tribunal had awarded compensation at the rate of 0.65 paisa per Sq.
and there was no ground or justification for the High Court to have increased the same at the rate of 0.75 paisa per sq.
There is some force in the above conten tion raised on behalf of the Trust.
The High Court in in creasing the rate of compensation to 0.75 paise per Sq.
Ft. has given no reason.
The High Court in this regard observed as under: "Thus, after going through the oral as well as documentary evidence and material placed on record and after beatifing the learned counsel for the Trust as also appellant No. 1 and also after going through the case law cited, the question arises at what rate compensation should be paid for the land which is compulso rily acquired.
It cannot be disputed that either party No. 1 nor party No.2 was making any use of the land at the time of acquisi tion.
On the contrary it was being treated as a waste and fallow land having no importance.
There is no satisfactory evidence placed on record to prove that in fact the land was being used as an agricultural land from which certain income was derived.
It appears this land gained importance only when the trust proposed to acquire the same.
Therefore, though the principles enunciated in the various authorities cited and referred to above are not disputed, we are of opinion that considering the facts and circumstances of the case it would be just, proper and reasonable to award compensation for the land at the rate of 0.75 p. per square feet and not more be cause the price fetched for the developed lands also the price fetched for the small plots of land cannot be taken 266 into consideration for purposes of comparision in respect of such big lands.
After all for a developed plot of land the cost of development has also to be taken into consideration which cannot be said to be quite meagre, Besides, admittedly there is a big nala in the land in question, that there was no direct independent road to approach this land and that even the factory was also not working for several years before the acquisition.
All these facts indi cate that the potential value of the land even as a building site was not so high.
" Learned Distt.
Judge after considering large number of documentary evidence placed on record by both the parties arrived to the conclusion that the fair market price of the acquired land on 22nd August, 1964 was 0.65 p. per Sq.
The finding recorded by the Distt.
Judge in this regard was based on adequate material placed on record and supported by good reasons.
In our view the High Court went wrong in increasing the rate from 0.65p.
to 0.75p.
without any valid reasons whatsoever.
As a result of the findings recorded above, the appeal Nos. 1345 and 1346 of 1986 filed by Kanti lal & Ors. are allowed.
The appellants therein would alone be entitled to claim the entire amount of compensation.
The orders of the High Court, Addl.
Commissioner and Collector in the matter of mutation proceedings are set aside and that of the Board of Revenue is upheld.
The appeal No.3426 of 1987 filed by the Trust is allowed in part.
The market value determined by the High Court at the rate of 0.75p.
per Sq.
is set aside and the rate determined by the District Judge at 0.65p.
per Sq.
Ft. is maintained.
In the facts and circumstances of the case, there would be no order as to costs.
G.N. Appeals allowed.

summary:
The land in question was granted by the Ruler of erst while State of Ratlam in favour of ancestors of respondents (Pitaliyas) for installation of a ginning factory.
Ancestors of appellants (Jhalanis) entered into a partnership with Pitaliyas and started a ginning factory on a portion of the said land.
In the revenue records, in respect of the entire land the names of Jhalanis and Pitaliyas were entered.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhalanis purchased the said land in an auction.
On an application moved by the Jhalanis, the Tehsildar passed an order mutat ing the names of Jhalanis in respect of the entire land.
The said mutation was allowed on the basis of compromise between the parties and on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust started acquisition proceed ings for a housing scheme and acquired certain lands includ ing the land in question.
The Collector started suo motu proceedings, issued notice to the Jhalanis and set aside the order of mutation passed by the Tehsildar.
An appeal pre ferred by the Jhalanis before the Addi 258 tional Commissioner was dismissed.
The Board of Revenue allowed the further appeal and held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pita liyas then filed a writ petition before the High Court, which was allowed and the order of the Board of Revenue was set aside.
Against the said judgment of the High Court, the Jhalanis have preferred an appeal before this Court.
In the acquisition proceedings the Tribunal gave a finding that Pitaliyas had no right to claim compensation and Jhalanis alone were entitled to the entire amount of compensation.
The order of the Tribunal was challenged by the parties by filing separate appeals before the High Court.
The High Court allowed the appeal filed by Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis; it dismissed the appeal filed on behalf of the Trust for reducing compensation and allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 65 paise per sq.ft to 75 paise per sq.ft.
Aggrieved against the aforesaid judgment of the High Court in acquisition proceedings, the Jhalanis and the Trust have filed the other two appeals before this Court.
Allowing the appeals on the questions of validity of the mutation made and entitlement to receive compensation, and partly allowing the appeal on the question whether enhance ment of compensation was justified, this Court, HELD: 1.1.
There was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auction proceedings the same does not survive after the compromise between the parties.
In the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and they continued to remain in possession.
The Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
There is nothing on record to show that Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compen sation before the Tribunal.
[264 D, E] 1.2.
The Collector had no justification at all to have initiated the proceedings suo motu in 1970 after 17 years of the order passed 259 by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no justification for entering the names of Pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th February, 1953, after 17 years.
The Tehsildar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement made before him on 16.10.1952.
[264 F, G] 2.
One bigha is equivalent to 22500 sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 sq.
ft. prevalent in the erstwhile State of Ratlam.
For the first time, this point was raised before the High Court.
This being a controversial question of fact and the other side did not have the chance to lead any evidence on this point, the High Court rightly negatived it and held that the compensation for one bigha of land would be calculated as equivalent to 22500 sq.
[265 A C] 3.
The District Judge after consideriug large number of documentary evidence placed on record by both the parties arrived at the conclusion based on good and valid reasons that the fair market price of the acquired land on 22nd August, 1964 was 65 paise per sq.
The High Court went wrong in increasing the rate from 65 paise to 75 paise without any valid reasons whatsoever.
In the circumstances, enhancement ordered by the High Court is set aside and the compensation determined by the District Judge at the rate of 65 paise per sq.
ft. is maintained.
[266 C E]


judgement:
on (Civil) No. 1022 of 1989.
(Under Article 32 of the Constitution of India).
Sri Ramulu, A.T.M. Sampath, A.K. Srivastava and Raju Ramchandran for the Petitioners.
Tapas Ray, R.N. Sachthey, P.S. Poti, Yogeshwar Prasad, V.C. Mahajan, U.N. Bachswat, A.S. Nambiar, Kailash Vasudev, Ms. A. Subhashini, Hemantika Wahi, Vasudata Talib, Anip Sachthey, T.T. Kunhikannan, Ms. Rachna Gupta, Mrs. section Dik shit, Ms. section Janani, Ms. Urmila Kapoor, M. Veerappa, K.H. Nobin Singh, Ashok Singh, S.K. Agnihotri, Aruneshwar Gupta, K.C. Bajaj, Ms. Renu George, K. Chaudhary, A.S. Bhasme, H.S. Munjral, G.K. Bansal, R. Mohan, P.K. Manohar, Ms. section Vasude van, B. Parthasarthy, V. Krishnamurthy, A.K. Panda, J.R. Das, D.K. Sinha, D.N. 210 Mukherjee, Gopal Singh, P. Chowdhary, Indra Makwana and K. Swamy for the Respondents.
The Judgment of the Court was delivered by/1 RANGANATH MISHRA, CJ.
This application under Article 32 of the Constitution is by the All India Judges, Association and its working President for reliefs through directions for setting up of an All India Judicial Service and for bringing about uniform conditions of service for members of the subordinate judiciary throughout the country.
Rule having been granted, notice was issued to the Union of India and all the States and Union territories.
Most of them have responded by making returns to the Rule.
A few of the States have taken the stand that they would accept whatever this Court ultimately decides while others have placed their view points and yet some others have objected to the reliefs claimed.
Mr. Sri Ramulu, Chairman of the All India Judges, Asso ciation personally appeared at the hearing.
Mr. Raju Ram chandran on our request appeared to support the petition as amicus curiae.
At the hearing the standing Counsel for the several states and Union Territories have also been heard.
The plea for setting up of an All India Judicial Service was not seriously pressed and reliefs on the following heads were claimed: 1.
Uniformity in the Judicial cadres in the different States and Un ion Territories; 2.
An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the country; 3.
Uniform pay scales as far as possible to be fixed; 4.
Residential accommodation to be provided to every Judicial Officer.
Transport facility to be made available and conveyance allowance provided.
Adequate perks by way of Library Allow ance, Residential Office Allowance and Sump tuary Allowance to be provided.
Provision for inservice training to be made.
Administration of justice and orgamsation of courts was a provincial subject under the Government of India Act, 1935.
The Constitution adopted 211 the same scheme by providing in Entry 3 of List 11 of the Seventh Schedule the subject of administration of justice, constitution and organisation of all courts excepting the Supreme Court and the High Courts as a State subject.
It was only under the 42nd Amendment in 1977 that Entry 3 from List I1 was deleted and the subject as such was taken as Entry 11 A in the Concurrent List.
This had become necessary on account of the recommendation of the Law Commission that an All India Judicial Service should be set up.
Prior to independence, the District Judge used to be invariably a Member of the Indian Civil Service and his position in the district was superior to that of the Dis trict Magistrate.
This position continued until the Indian Civil Service came to be abolished around 1946 47.
This long association of the Civil Service with the judicial manning had led to service conditions of both to be tied up.
Crimi nal justice at that time was handled by Magistrates who belonged to the Executive.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating the judiciary from the executive in the public services of the State.
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
The control over the subordinate judiciary has been vested in the High Court and the administrative control has been construed to be complete and exclusive.
Yet, in certain aspects, and particularly in regard to service conditions, the distinction has not been maintained; That is why very often when any specific aspect relating to conditions of service is taken up or benefits for judicial service is considered, comparative basis between the two is adopted for review.
It is high time that this aspect is appreciated and the administrative authorities remain alive to it.
We shall first deal with the plea for setting up of an All India Judicial Service.
The Law Commission of India in its 14th Report in the year 1953 said: "If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable person.
A radical measure suggested to us was to recruit the judicial service entire ly by a competitive test or examination.
It was 212 suggested that the higher judiciary could be drawn from such competitive tests at the all India level and the lower judiciary can be recruited by similar tests held at State level.
Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at the Bar should be done away with.
Such a scheme, it was urged, would result in bringing into the subordinate judiciary capa ble young men who now prefer to obtain immedi ate remunerative employment in the executive branch of Government and in private commercial firms.
The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the Slate".
The Commission proceeded to further state: "Recruitment to the higher judiciary at the all India level in the manner suggested would be a powerful unifying influence and serve to counteract the existing growing regional tendencies.
In this connection, attention may be drawn to the observations made by the States Reorganisation Commission in regard to the creation of the All India Services as a major compelling necessity for the nation.
The Commission observed:. "The raisond"etre of creating All India Services, individually or in groups, is that officers on whom the brunt of responsibility of administration will inevitably fail, may develop a wide and all India outlook .
The present emphasis on regional languages in the Universities will inevitably lead to the growth of parochial attitude, which will only be corrected by a system of training which emphasises the all India point of view . .
It has not been very easy for us to balance these consid erations, but we are definitely of the view that proportion of the higher judiciary should be recruited by competitive examination at the all India level so as to attract the best of our young graduates to the judicial service.
This measure will enlarge the field of selec tion and bring into file higher judicial service a leaven of brilliant young men who will set a higher tone and level to the subor dinate judiciary as a whole.
The personnel so recruited will be subjected to . 'm intensive training.
The rest of the higher judiciary should, in our view, be recruited in part directly from senior members of the Bar, and partly by promotion from the lower subordinate judiciary".
213 Dealing with the same subject from a different angle, the Commission proceeded to say: "The great advantage that the Indian civilian had, was the intensive and varied course of training which he had to undergo.
At the time of his first entry into service, his training was confined to matters pertaining to the revenue and criminal administration alone, but when he was taken over to the judicial side, generally an equally intensive training in civil law was given to him for a period of not less than eighteen months.
There can be no doubt that a similar intensive judicial train ing given to a judicial officer who possesses a law degree can be of the greatest value . .
Indeed, it can be claimed that a planned and systematic training such as is contemplated by us for the judicial officer selected for the Indian Judicial Service may be more effective than the uncertain and spasmodic training which may be received during the course of a few years practice at the Bar.
These and the other considerations referred to earlier have led us to the conclu sion that in the interests of the efficiency of the subordinate judiciary, it is necessary that an All India Service called the Indian Judicial Service should be established.
This will need action being taken in the manner provided by Article 312 of the Constitution".
The Law Commission has reiterated this view in subse quent reports.
It took nearly 20 years for the Government to take follow up action on the basis of the recommendation and that led to the amendment of the legislafive entries as already referred to.
This proposal of the Law Commission and the follow up governmental action led to consultation and dialogue in the Conference of Chief Justices of the High Courts but many of the High Courts were of the view that setting up of an All India Judicial Service would affect the constitutional scheme of control of the High Courts over the subordinate judiciary and in particular Article 235 of the Constitution.
Article 233 makes provision for appointment of District Judges and requires that appointment to such posts has to be made by the Governor of the State in consultation with the appropriate High Court.
Article 234 provides for recruitment of persons other than District Judges to judicial service by prescribing that appointments shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consulting the State Public Service Com mission and the High Court exercising the jurisdiction in relation to such State.
The post of District Judge has ordinarily been equated with the senior scale status in the All India Services.
It was 214 perhaps not contemplated by the Law Commission that on appointment members of the proposed All India Judicial Service were to hold the post of District Judge.
Like all other All India Services the initial recruitment could be to a lower rank equal to civil judge and after serving in such post for a reasonable time appointment to the post of Dis trict Judge could be made.
Since the Law Commission itself was of the view that a percentage should be filled up by direct recruitment from the Bar, the scheme envisaged by the Law Commission would not require amendment of Article 233.
It is to be examined whether any alterations in Article 234 would be necessary or recruitment to All India Service could be made by appropriate amendment of the State Rules contem plated under that Article.
Control over the subordinate courts under the constitu tional mechanism is vested in the High Court.
Under Article 235, the provision is that the control over District Courts and courts subordinate thereto vests in the High Court.
The main objection against implementation of the recommendation of the Law Commission relating to the setting up of the All India Judicial Service was founded upon the basis that control contemplated under Article 235 of the Constitution would be affected if an All India Judicial Service on the pattern of All India Services Act, 1951, is created.
We are of the view that the Law Commission 's recommendation should not have been dropped lightly.
There is considerable force and merit in the view expressed by the Law Commission.
An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary.
The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us.
Since the setting up of such a service might require amendment of the relevant Articles of the Constitution and might even require alteration of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score par ticularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible.
It is in the interest of the health of the judiciary.
throughout the country that this should be done.
II The Law Commission in the 14th Report also referred to the various designations provided for judicial officers working in the different States and Union Territories It observed: 215 "In view of the more or less uniform functions performed by the judicial officers so various ly designated, it would, we think, be advisa ble to aim at a uniformity of designation.
There is, however, a fundamental difference in the general scheme of distribution of judicial business between the tower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other.
The first has limited pecuniary juris diction while the second, generally speaking, has unlimited pecuniary jurisdiction.
We would, therefore, suggest that the State Judi cial Service Class II should consist of civil judges who should be designated as civil judges of the senior and junior divisions.
Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division)".
If reference is made to Article 236 of the Constitution, it would be noticed that the expression "District Judge" has been defined to include Judge of a City Civil Court, Addi tional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Causes Court, Chief Presidency Magistrate, Additional Chief Presidency Magis trate, Sessions Judge, Additional Sessions Judge and Assist ant Sessions Judge.
This definition in Article 236 covers the higher section of the State Judicial Service both in the civil and criminal sides.
The definition is only inclusive and in implementing the recommendations of the Law Commis sion to simplify the designations by saying that the hierarchy of subordinate judicial officers would be District Judge or Additional District Judge, below him Civil Judge (Senior Division) and below him Civil Judge (junior divi sion) does not go against the constitutional scheme nor does it require any amendment of the Constitution.
If there be any laws operating in the States, perhaps the same may have to be appropriately modified or altered if the uniformity recommended by the Law Commission has to work out.
We are inclined to adopt the view of the Law Commission.
On the civil side, the State Judicial Service, therefore, should be classified as District or Additional District Judge, Civil Judge (senior division) and Civil Judge (Junior division).
On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure.
Appropriate adjustments, if any, may be made of existing posts by indi cating their equivalence with any of these categories.
The process of bringing about such uniformity would require some time 216 and perhaps some monitoring.
We direct that the Ministry of Law and Justice of the Union Government would carry on the monitoring activity and all the States and Union Territories would follow the pattern indicated above by March 31, 1993.
III One of the issues debated at the hearing related to the age of retirement.
The Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years respectively.
There is no constitu tional prescription of the age of retirement of the members of the subordinate judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala where the age of superannuation is 55 years for all State Government employees including the members of the State Judicial Service.
It is the claim of the petitioners that the age of retirement of the officers of the subordinate judiciary should be fixed at 60 years inasmuch as the basic qualifica tion for recruitment to the service requires every officer to have in the minimum a bachelors degree in law which is acquirable after becoming a graduate.
Thus, while for normal civil service a graduate is eligible, for recruitment to the judicial service a minimum further period of three years becomes necessary to acquire the basic qualification.
In many of the states and the Union Territories, for recruit ment to the post in the judicial service a basic period of experience at the Bar is a pre requisite.
Thus, while for the civil service the age of recruitment varies between 25 and 28 years, for judicial service at the basic level most of the States permit entry upto the age of 32.
In some of the States where direct recruitment of judicial officers for an in between stage is permitted, the age of entry is even upto 35 years.
Article 233(2) of the Constitution provides: "A person not already in service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Keeping this constitutional requirement in view in respect of direct recruitment for District judge, entrance is permitted upto a later age in many States.
Thus at the point of entry into service there is a marked distinction between civil service and the judicial service.
Notwithstanding these special features the history of the service 217 would show that no distinction has been maintained in regard to the age of retirement between officers of the civil service and the officers of the judicial service and over the years the same rule has been applied to both.
This Court in Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.; , pointed out: "In regard to the age of superannuation, it may be said prima facie that rules of superan nuation which are prescribed in respect of public service in all modern States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do.
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion.
They apply uniformity to all public servants fail ing under the category in respect of which they are framed . . " Nature of work is thus one of the considerations rele vant to fixing the age of retirement.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officers in volves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical.
Experience is an indispens able factor and subject to the basic physical fitness with growing age experience grows.
As already indicated, retirement age for High Court Judges is 62 years.
A sizable portion of the manning in the High Court is done by elevating District Judges and those who are elevated continue upto the age of 62 years like directly elevated members of the Bar to the High Court.
There are certain services in the States where retire ment is fixed at the age of 60 years taking into account the special type of work the officers are called upon to per form.
For instance, throughout the country teachers of universities are allowed to serve upto 60 years of age.
Employees under some of the corporations also go upto the age of 60.
Scientific Research Officers are also allowed in many cases the benefit of 60 years age of retirement.
Mr. Poti for the State of Kerala raised serious objection to raising 218 the age of retirement of judicial officers to a common level of 58 years by contending that this would lead to unrest in the other services of the State and everyone would press for the age of retirement being enhanced to 58.
In fact, Kerala had once experimented with the enhanced age for all and has reverted back to the age of 55.
The main ground raised by Mr. Poti to resist the proposal of enhancement is that in the State of Kerala the level of literacy is high and unem ployment is acute.
If the age of retirement is enhanced the scope of the unemployed to get employment would be adversely affected.
We are not impressed by the submission of Mr. Poti on this score.
The total number of judicial officers of every category in the State may not exceed 3,000 or so.
This certainly is not such a big number that might create unem ployment problem in the event of the age of superannuation being brought to the all India level of 58 or even enhanced to a higher limit.
The Law Commission in its 14th Report dealt with this aspect at page 2 13 of the report and said: "There is yet another reason why the question of the age of retirement of the subordinate judiciary should be treated differently from that in other State Services.
As noticed earlier a judicial officer enters service at a comparatively higher age than a recuit to the executive or administrative services.
It would, therefore, be proper that the retire ment age of a judicial officer should be relatively higher than that of an executive officer, so as to enable him to serve for the full number of years if he retains his fitness and capacity of work till he reaches such higher age.
We, therefore, recommend that the retirement age of the subordinate judiciary in all States should be raised to 58 years.
Such a measure will tend to raise the tone and morale of the judicial service as a whole.
It will also be consistent with our recommendation to raise the age of retirement of High Court Judges to 65 years.
" The recommendation that superannuation should be fixed at 58 for judicial officers was made at a time when in public services retirement was prescribed at the age of 55.
Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have now en hanced the age of retirement to 58 years excepting, as already pointed out, in the case of the State of Kerala.
We are of the view that on the logic which was adopted by the Law Commission and for the reasons which we have 219 indicated the age of retirement of judicial officers should be 60 years.
We accordingly direct that appropriate altera tions shall be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992.
We have given a long period so that appropriate amendments may be made in the meantime.
IV We shall now deal with the claim for appropriate pay scales and on, as nearly as possible, uniform basis.
The 14th Report of the Law Commission dealt with this matter at page 163 of the report and said: "It is the matter of scales of pay and remu neration, the judiciary compares unfavourably with the executive branches of the Government.
It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States.
However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers.
The entrant to the judicial services is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar.
On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, suffi cient.
In the result, a person entering the judicial service does so when he is about 26 or 27 years of age and at a time when his contemporaries who have entered the executive service of the Government have already ac quired a certain seniority in the service and have come to draw a higher salary.
It will thus be seen that a person joining the judi cial service starts with a lower remuneration than what he would have received if he had entered the executive service for a few years earlier.
It has also to be noted that owing to the lesser proportion of superior posts in the judicial service promotions come less quickly to the judicial officers, and a person who has entered the service as a munsif, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector.
Again the judicial officer, having started at a later age, has a shorter span of service than the executive officer and this affects his pension and other retirement benefits".
220 We had called for the prevailing pay scales of the different judicial cadres in the States and the Union Terri tories and the same have been made available to us.
We found that there is wide violence in the pay structure prevailing in the various States and Union Territories and for the same nature of work performed by the judicial officers they are remunerated differently.
It is difficult for us on the data now placed to get into the exercise of fixing the appropri ate pay scales.
We suffer a handicap in the absence of full details necessary for fixing the appropriate pay scales on comparative basis.
Again, we are apprehensing that if we enter into the matter and say something in a final way, it is possible that in some States benefits which are now available may be taken away or adversely affect some offi cers.
For these reasons, we do not propose to finally exam ine the propriety of the existing pay scales nor do we direct any pay scales to be fixed.
A Pay Commission for the Central Government employees was appointed about 8 years back and on the basis of its Report the revised benefits have been given effect to from January 1, 1986.
Following that pattern, most of the States have either given the Central scales or appointed their own commissions or committees and given the revised benefits to their officers.
It appears that with an interval of 10 years or so such a commission is being appointed and pay scales are being reviewed.
Such an exercise is likely to be under taken within less than three or four years.
We are of the view that the claim on this score can be better handled when the pay commissions or committees in the States are set up to review the position.
We direct that as and when such commissions or committees are set up in the States and Union Territories hereafter, they separately examine and review the pay structure of judicial officers keeping in view all relevant aspects.
V. Under this head, however, we would like to deal with the claim for various allowances.
Unlike the administrative officer, the judicial officer is obliged to work for long hours at home.
When he reserves a judgment he has usually to prepare the same at his residence.
For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries.
Even otherwise with a view to keeping himself uptodate about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court.
He has also to read legal journals.
The judicial officer very often has no provision of an officer at his residence.
Unless a reasonable allowance is provided for maintaining an office, it became very difficult for him to undertake the various aspects 221 of the exercise referred to above.
We are of the view that a residential office allowance should be admissible to every judicial officer.
The same for the civil judge (junior division) and the civil judge (senior division) be fixed at the rate of Rs. 250 per month and officers of the higher category the monthly allowance should be Rs. 300.
Law books, Law repons and legal journals are indispens able to a judicial officer.
They are in fact his tools and in case a junior officer has to discharge his duties satis factorily he has to get acquainted with these.
His ability to perform his duty to a considerable extent depends upon his reading habit and devoting a sizeable working time to reading all this literature.
Reading habit is indispensable to a judicial officer and possession of a small library of one 's own helps generation of the proper reading habit.
Law books and Law journals have in particular become very costly these days.
One standard Law journal for the decisions of the High Court, another for the decisions of this Court and one or two Standard Law journals on the average would cost about Rs. 200 a month.
There is no existing system of providing Law books and journals to the officers of the lower judiciary.
Many of the judicial officers in the lower ranks have their working places away from the district headquarters where the seat of the district judge is located.
There is perhaps at every district headquarter a small library but the number of books is small and more than one copy of many of the books would not be available.
Therefore, whether it is at the district headquarter or in areas away therefrom, effective library facility is not available.
We are of the view that a uniform pattern of small library should be provided to every judi cial officer.
We accordingly direct that such a library shall be made available by 30.6.2992 to every judicial officer and the District Judge should have provision made in his budget for the said residential library for every judi cial officer under his control.
The High Court should moni tor this aspect effectively so that without loss of time, a handy library may be at the disposal of every judicial officer.
The District Judge is the principal judicial officer of the district.
Ordinarily every revenue district has a dis trict judge and his seat is located at the headquarter.
In heavy stations, the district judge has a team of additional district judges to assist him.
There would also be a number of judicial officers of lower categories working at the headquarters.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquaters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the 222 obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible for the efficient running of the system.
In many of the States the prevailing practice is that the district judge takes a monthly meeting with the collec tor and district magistrate and the superintendent of po lice.
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 prob lems of his officers and forms his own opinion about now the work is being done.
A weekly assessment of such perform ance 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 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 1.4.1992.
We would like to add that this allowance is intended for utilisation to the full extent for entertaining judicial officers in connection with preformance of duty and would not be considered as a perk for being included in the hands of the recipient as his income.
VI 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 litigations 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 belong ing to a lawyer or a client.
Even the residential accom 223 modation 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.
Expenditure on residential accommodation in a family budget is not ordinarily to exceed 15 per cent of the month ly income, otherwise it becomes difficult for the person concerned to make his 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 sal ary, a situation which cannot be contenanced 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 offi cer has a reasonable worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
Very often building projects are undertaken for provid ing residential accommodation to public officers but the requirement of the judicial ofricer is not taken into ac count 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 Metropoli tan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accom modation.
The cost of living also becomes heavy.
We take judicial notice of the fact that the Planning Commission of the Central Government is considering accept ance of the subordinate judiciary as a plan subject.
Provid ing adequate residential accommodation should be considered as a priority.
Until adequate government accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommo dation for every judicial officer according to his entitle ment 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, Govern ment accommodation should be constructed to meet the 224 need of the judicial officers at their respective stations.
This should be a matter for the Planning Commission to review and the State Governments to cooperate and undertake construction activity.
The Governments of the States and the Union Territories would take some time to implement this pan 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.
VII We shall now deal with the claim for transport.
In most of the States the district judge has been provided a motor car and in some of the States the chief judicial magistrate is also provided with such transport, be it a car or a jeep.
There are still some States like Rajasthan, Haryana and Madhya Pradesh where provision of a car for every district judge has not yet been made.
We direct that every district judge should be provided with a car by March 31, 1992, and it shall be the obligation of the other States where such facility has not open provided to ensure the same within the time limit.
The chief judicial magistrate is a touring officer apart from doing trial work as a magistrate.
Mandate of the Code of Criminal Procedure requires him to undertake some tout ing.
The quality of criminal justice administration would very much depend upon the mobility of the chief judicial magistrate.
We, therefore, direct that in such States and Union Territories where provision of independent transport for the chief judicial magistrate has not been made, the same should be done by September 30, 1992.
We are.
further of the view that in stations with more than four judicial officers a common transport should be provided for the purpose of taking them from the residence to the court and back and meeting their other official purposes and such vehicle should be placed under the control of the seniormost officer in the pool.
The arrangement should be that for every five officers, there should be a vehicle.
Provision for this aspect should be made by March 31, 1993.
This direction has become necessary as judicial officers should not be forced to travel along with litigants and lawyers.
In many sensitive cases, records are carried by them.
Often judgments to be pronounced are also taken by them.
In some disturbed areas, instances of harassment to judicial offi cers taking advantage of their using 225 common transport have come to light.
We direct that every State and Union Territory would file a compliance report in the Registry of this Court in respect of these three aspects within one month from the expiry of the outer limit indicat ed for each of them.
There are several outlying courts where the number of officers would not be more than five.
We do not intend to provide any independent transport for them but such officers who ask for loan for purchase of a two wheeler automobile should immediately be provided the same.
Appropriate funds should be made available for such purpose.
A pool car should have 60 litres of petrol per month and a judicial officer owing a scooter would be entitled to an allowance of Rs. 200 per month.
We are alive to the fact that our directions involve a burden on the State Exchequer.
Perhaps some justification as to why these expenses should not be grudged must now be indicated.
Professor Pannick in his book entitled "Judges" has observed: "Judges do not have an easy job.
They repeat edly do what the rest of us seek to avoid; make decisions".
He further added: "Judges are mere mortals but they are asked to perform a function that is utterly divine".
Professor Harold Laski once wrote to Justice Oliver Holmes that 'he wished that people could be persuaded to realise that judges are human beings; it would be a real help to jurisprudence '.
The Trial Judge ' is the kingpin in the hierachical system of administration of Justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the court 's functioning successful.
Krishna Iyer, J. described the scene very graphically thus: "Law is a means to an end and justice is that end.
But in actuality, Law and Justice are distant neighbours; sometimes even strange hostiles.
If law shoots down justice, the people shoot down law and lawlessness paraly ses development, dis 226 rupts order and retards progress.
This is the current scene".
It calls for serious introspection.
The Law Commission in its 14th Report said: "If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.
It appears to us that not only for the performance of his duties but outside the court as well a Judge has to maintain an aloofness amounting almost to self imposed isolation".
The Commission quoted Sir Winston Churchill who had said: "A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and though unwritten has been most strictly observed.
They are at once privileged and restricted; they have to present a continuous aspect of dignity and conduct".
These prescriptions for a Judicial Officer, therefore, result in a restricted life.
Austerity is a quality to be practised by every Judge personally as also in his public functioning.
This necessarily gives rise to a situation where the Judge must have patience, perseverance and pains taking habits.
In order that a Judge may be able to put in these aspects into his public functioning it is absolutely necessary that the Judge enjoys freedom from personal wor ries.
A reasonable salary, appropriate allowances and man ageable living conditions are, therefore, required to be provided.
For quite a few years the conditions of service of Judges of the superior Courts and those of the public offi cers in the Executive side had been put at par excepting such provisions as were contained in the Government of India Act, 1935 or under the Constitution.
For the first time it was accepted that separate Conditions of Service should be provided and Conditions of Service Acts for the High Court and Supreme Court Judges were separately enacted in 1954.
Those statutes and the Schedules therein even now contain provisions to the effect that matters for which provisions have not been made by the statutes are to continue to be the same as provided for the officers in the Executive wing as named.
In a democratic polity the role of the judiciary is indispensable.
The efficient functioning of the Rule of Law under the aegis of which our democratic society can thrive requires an efficient, strong and enlightened judiciary.
And to have it that way the Nation has to pay to the price.
There was a time when a 227 Judge enjoyed a high status in Society.
Very often a suc cessful Member of the Bar earning a high income favourably responded to the invitation of the Chief Justice to accept Judgeship.
Thai no more is the position.
The sense of pro fessional obligation has died down for reasons more than one; but perhaps the most eloquent one is loss of social status of the judge.
The effect of this position in respect of the higher judiciary has its impact on the subordinate judiciary too.
Half a century back a Judicial officer even of the lowest category enjoyed great social status.
He was looked upon with a sense of reverence.
He led a life in tune with the recommendations of the Law Commission in its 14th Report.
He had the training of limiting his wants and man aged to live a contented life by making his two ends meet with limited resources of small salary.
That philosophy of life has vanished or is fast vanishing.
A great social change has over taken today 's society.
Life has become competitive; demands of life have increased; and aptitudes have changed.
Therefore, today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendoulsy swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
As early as 1958 the Law Commission said: "As we shall point out, later the problem has since grown in dimension because there is unmistakable testimony that the standards of the judicial officers recruited from the Bar and other sources have during recent years fallen in a substantial degree for various reasons.
This has been almost the unique view expressed by the witnesses .before us.
It is thus obvious that no scheme of review of judicial administration will be effective or worthwhile unless the basic problem of provid ing a trained and capable judicial personnel is satisfactorily solved" This was adequate and timely notice to the Government and its people.
Instead of attending to the problem then, 33 long years have been allowed to roll by and what was then said as a growing dimension has grown to devalue the system.
Its resurrection has, therefore, become more costly.
It is perhaps useful to recall here the prophetic warn ing sounded by Robert Ingersoll: "A government founded on anything except liberty and justice cannot stand.
All the wrecks on either side of the stream of time, all the wrecks of the great cities, and all the nations that 228 have passed away all are a warning that no nation founded upon injustice can stand.
From the sand enshrouded Egypt, from the marble wilderness of Athens, and from every fallen or crumbling stone of the once mighty Rome, comes a wail as it were, the cry that no nation founded on injustice can permanently stand".
Society, therefore, must understand the problem.
Solu tion to the problem would depend upon realisation of the fact that the more capable people at the Bar are not willing to accept offers of judicial appointments.
The plea that the other wings, in the States would demand inprovement in their scales of pay is not a relevant feature at all when the problem is viewed from this angle.
We hope and trust that society would generate the appropriate understanding of the matter and no Government would come forward to take the stand that if the pay scales and perks of the Judicial officers are improved similar demands would come from other wings of Government.
Even in the existing system there are some posts which carry special pay that is on account of the fact that there is more of basic equipment demanded and the nature of work is different and judicial service satisfies both and, there fore, Government can always prescribe a higher pay scale for Judicial Officers.
In 1986 there was a Conference of the Chief Justices of the High Courts, Chief Ministers and the Law Ministers of the States called by the then learned Chief Justice of India and the Ministry of Law and Justice.
The then Chief Justice of India and the Law Minister of the Central Government tried their best to make the State Governments and the Union Territories understand the basic problem.
While some improvements came as a result of the Conference for the higher judiciary, the claim of the subor dinate judiciary remained unattended.
We would like to point out that dispensation of justice is an inevitable feature in any civilised society.
Mainte nance of law and order require the presence of an efficient system of administration of criminal justice.
Under the Civil Code, Court fee is realised under the Court Fee Act.
For some time demand to abolish it has been made but the States have abandoned the idea on account of the demand by the States of compensation from the Centre in case of aboli tion of Court fee.
Court fee is not a tax and is a fee as has been ' held by a Constitution Bench of this Court in Secretary, Government of Madras, Home Department and another vs Zenith Lamps and Electrical Ltd., ; In Paragraph 29 of this 229 Judgment Sikri, CJ speaking for this Court pointed out: "It seems to us that the separate mention of 'fees taken in Court ' in the Entries referred to above has no other significance than that they logically come under Entries dealing with administration of Justice and courts.
The draftsman has followed the scheme designed in the Court Fees Act, 1870 or dealing with fees taken in court at one place.
If it was the intention to distinguish them from fees in List II Entry 66, surely some indication would have been given by the language employed.
If these words had not been separately mentioned in List I, Entry 77 and List II . . .
It seems plain that 'fees taken in court ' are not taxes, for if it were so, the word 'taxes ' would have been used or some other indication given.
It seems to us that this conclusion is strengthened by two considerations.
First, taxes that can be levied by the Union are mentioned in List I from Entry 82; mentioned in List II taxes that can be imposed start from Entry 45.
Secondly, the very use of the words 'not including fees taken in any court ' in Entry 95 List 1, and Entry 66 List II, shows that they would otherwise have fallen within these Entries.
It follows that 'fees taken in court ' cannot be equated to "Taxes".
If this is so, is there any essential differ ence between fees taken in court and other fees ? We are unable to appreciate why the word 'fees, bears a different meaning in Entry 77, List I and Entry 96 List I or Entry 3 List II and Entry 66 List II.
All these relevant cases on the nature of 'fees ' were reviewed in India Mica and Micanite Industries Ltd. vs The State of Bihar.
; at page 1186, by Hegde J. and he observed: "From the above discussion, it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable co relationship with the services rendered by the Government.
In other words, the levy must be proved to be a quid pro quo for the serv ices rendered.
But in these matters it will be impossible to have an exact co relationship.
The correlationship expected is one of a general character and not as of arithmetical exactitude".
It is not our intention to raise a dispute on this aspect.
We adverted to these authorities and the views of this Court to bring support for the view that what is col lected as Court fee at least be spent on the administration of Justice instead of being utilised as a source of general revenue 230 of the States.
Undobutedly the income from court fees is more than the expenditure on the administration of Justice.
This is conspicuously noticeable from the figures available in the publication in the Ministry of Law and Justice.
What we have said above should be adequate justification for making provision with a view to making judicial func tioning viable.
We would like to recall a part of the funeral oration on Mr. Justice Story delivered some 150 years back by Daniel Webster: "Justice, Sir, is the greatest interest of man on earth.
It is the ligament which holds civilised beings and civilised nations togeth er.
Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security, general happiness and the improvement and progress of our race.
And whoever labours on this edifice with useful ness and distinction.
whoever clears its foundations, strengthens its pillars, adorns its entaplateures, or contributes to raise its august dome still higher in the skies, con nects himself in name and frame and character with that which is and must be as durable as the frame of human society".
To those who control the purse what Webster said should provide the direction.
VIII One of the claims advanced before us was for provision of inservice training for judicial officers.
This we consid er as a must.
In fact, the Law Commision in one of its recent reports has advised that inservice institutes should be immediately set up.
About a year back the Union Govern ment had proposed the setting up of an All India Inservice Institute but nothing more has been done about it.
In some of the States like Uttar Pardesh and Andhra Pradesh, such inservice institutes are functioning.
We are of the view mat in service institutes are indispensable for the upkeep of the efficiency of judicial service.
We direct that an All India institute of Inservice Training for higher officers of the judiciary including the district judges and a State level institute for training of the other member, of the subordinate judiciary within each of the States and Union Territories or one common institute for more than one State or Union Territory should be set up within one year from now and at any rate nor later than December 31, 1992.
This has to be orgainised by respective High Courts.
231 Before we part, we must indicate with all the emphasis at our command that the system has to be saved as for a civilised society an enlightened independent judiciary is totally indispensable.
The High Court must take greater interest in the proper functioning of the subordinate judi ciary.
Inspection should not be a matter of casual atten tion.
The Constitution has vested the control of the subor dinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
We may point out that that in what Lord Aktins said in Devi Prasad Sharma and others vs The King Emperor, 70 IA 216.
And it has been approved by a Constitution Bench in Baradakanta Misra vs The Registrar of Orissa High Court and Another, ; It should be remembered by all Judges of the High Coart viz., that the administrative control of the subordinate courts of the states vest nor in the Chief Justice alone but in the Court over which the Chief Justice presides.
Surger, CJ of the American Supreme Court once said: "A sense of confidence in ,he Courts is essen tial to maintain the fabric of ordered liberty for a free people and it is for the subordi nate Judiciary by its action and the High Court by its appropriate control to ensure it".
It is useful to remember what President Lin coln often said: "If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem".
It is time we mention about society 's expectation from the Judicial Officers.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be courageous enough to acknowledge his errors The conduct of every judicial officer should be above reproach.
He should be conscientious, studious, thorough, courteous, 'patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
232 We would like to part with the matter by recalling a statement of Edmund Burke: "All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society".
We would now briefly indicate the direc tions we have given in the judgment: (i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(ii) Steps should be taken to bring about uniformity in designation officers both in civil and the criminal side by 31.3.1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31.12.
(iv) As and when the Pay Commissions/Commit tees are set up in the States and Union Terri tories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance as stated has to be made.
(vi) Residential accommodation to every judicial officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them in the manner indicated by 31.12.1992.
In providing residential accommodation, avail ability of an office room should be kept m view.
(vii) Every District Judge and Chief Judi cial 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 automo biles within different time limits as speci fied.
(viii)Inservice Institute should be set up within one year at the Central and State or Union Territory level.
V.P.R. Petition disposed of.

dataset_name: IN-Abs

summary:
The petitioners All India Judges ' Association filed an application under Article 32 of the Constitution of India for directions of this Court for setting up of an All India Judicial Service, for bringing about uniform conditions of service for members of the subordinate judiciary, provision of residential accommodation, transport facility; library and in service training for judicial officers.
Disposing of the writ petition, this Court, HELD: 1.
For a civilised society an enlightened inde pendent judiciary is totally indispensable.
1231 A] 2.
Rendering justice is a difficult job.
Unless the judi cial officer 207 has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
[223 C] 3.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be coura geous enough to acknowledge his errors.
The conduct of every judicial officer should be above reproach.
He should be coscientious, studious, thorough, courteous, patient, punc tual, just, impartial fearless of public clamour, regardless of public praise and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
[231 F H] 4.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating "the judiciary from the executive in the public services of the State".
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
[211 D] 5.
The Trial Judge is the kingpin in the hierarchical system of administration of justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the courts ' functioning successful.
[225 F G] 6.
The District Judge is the principal judicial officer of the district.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquarters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible 1or the efficient running of the system.
[221 G 222 A] 7.
The High Courts must take greater interest in the proper functioning of the subordinate judiciary.
Inspection should not be a matter of casual attention.
The Constitution has vested the control of 208 the subordinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
The administrative control of the subordinate courts of the State vests not in the Chief Justice alone but in the Court over which the Chief Justice presides.
[231 A C] 8.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officer involves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of mental activity than physical.
Experience is an indispensable factor and subject to the basic physical fitness with grow ing age experience grows.
[217 D E] 9.
Today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendously swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
[227 D] 10.
It is absolutely necessary that the Judge enjoys freedom from personal worries.
A reasonable salary appropri ate allowances and manageable living conditions are, there fore, required to be provided.
[226 E] 11.
An All India Judical Service should be set up and the Union of India should take appropriate steps in this regard.
[232 C] 12.
Steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side by 31.3.1993.
[232 C] 13.
Retirement age of judicial officers be raised to 60 years and appropriate steps be taken by 31.12.1992.
[232 C] 14.
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.
[232 D] 209 15.
A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance has to be made.
[232 D] 16.
Residential accommodation to every judicial officer has to be provided and until State accommodation is avail able.
Government should provide requisitioned accommodation for them by 31.12.1992.
In providing residential accommoda tion, availability of an office room should be kept in view.
[232 E] 17.
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.
[232 F] 18.
In service Insititute should be set up within one year at the Central and State or Union Territory level.
[232 G] The Law Commission of India 14th Report, 1958 Judges: by Professor Pannick; Law Commission of India, 1 Ith Report referred to.
Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.
; , ; Secretary, Government of Madras, Home Department and ,Anoth er vs Zenith Lamps and Electrical Ltd., ; ; Devi Prasad Sharma and Others vs The King Emperor, 70 IA 216; Baradakanta Mishra The Registrar of Orissa, High Court and Another, ; , referred to.