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PETITIONER: STATE OF RAJASTHAN & ORS.

       Vs.

RESPONDENT: RAJASTHAN JUDICIAL SERVICE OFFICERS ASSOCIATION & ANR.

DATE OF JUDGMENT:       24/05/1999

BENCH: Sujata V.Manchar, R.C.Lahoti

JUDGMENT:

Mrs.  Sujata V.  Manohar, J.

     Respondent  No.1, Rajasthan Judicial Service  Officers Association  filed  a  writ petition in the  Rajasthan  High Court praying that the State of Rajasthan may be directed to provide to the Judicial Officers of the State of Rajasthan a dress  allowance  of Rs.10,665/- initially and thereafter  a kit  maintenance  allowance of Rs.400/- per month  renewable from  time  to  time with all  consequential  benefits  with effect  from  1.1.1993.   The  State Government  had,  by  a notification  dated 18.9.1992, provided a dress allowance of Rs.1500/-  once in every three years, to the Members of  the Rajasthan Judicial Service and the Rajasthan Higher Judicial Service with effect from 1.1.1993.  Not being satisfied with this  allowance,  the  said writ petition was filed  by  the respondents.  There was also another factor which led to the filing  of  the writ petition.  In a similar  writ  petition filed  in the Delhi High Court (C.W.P.No.840 of 1992) by the Delhi  Judicial  Services Association, the Delhi High  Court had  by its judgment and order dated 18th of November, 1992, directed  that an initial lump sum amount of Rs.5,500/should be  paid  to all Judicial Officers in Delhi and  that  there should  thereafter be paid every month a sum of Rs.300/-  as dress allowance.  In view of this judgment of the Delhi High Court,  the respondents contended that the allowance granted by  the appellant-State by notification dated 18.9.1992  was inadequate.   The  Rajasthan  High Court  has  directed  the appellant-State  to  pay  to all Judicial  Officers  of  the Rajasthan Judicial Service and the Rajasthan Higher Judicial Service  a  lump  sum  amount of  Rs.8,500/-  towards  dress allowance  and thereafter to pay Rs.300/- per month  towards the  maintenance of the dress.  The High Court also directed the  State to consider a revision of these allowances  every four years looking to the escalation in prices.  The present appeal is filed from the above judgment.

     A Judicial Officer is undoubtedly required to dress in the manner prescribed by the relevant Rules of each State in order to maintain the dignity of his office.  The reason why a  black  jacket  and bands are prescribed  for  a  Judicial Officer  is quite different from the reason why a uniform is prescribed  for  peons, chaprasis, police constables and  so on.   The  latter have to mix with the public and a  uniform identifies them as belonging to a specified group of persons who  have  authority  or  duty to act in a  certain  way  or perform  certain services.  A Judicial Officer presides over

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a  court and is quite identifiable by reason of the position he occupies in the court.  Nevertheless, in order that there may  be  a certain amount of decorum and dignity  associated with this office, he is expected to dress respectably in the manner  specified.   Bands and gown are an insignia  of  his office.   But whether for this reason the High Court can, on the  judicial  side,  direct the State Government to  pay  a dress  allowance  or to specify the exact amounts which  the State should pay by way of dress allowance is a matter which we have to examine.

     Under  Article 235 of the Constitution the High  Court is  invested  with control over District Courts  and  courts subordinate to it including the posting and promotion of and the  grant  of leave to all Judicial Officers of the  State. Under  Article  309, however, recruitment and conditions  of service of persons serving, inter alia, as Judicial Officers of the State is to be controlled by appropriate legislation; and  until  such legislation, the Governor of the  State  is empowered  to  make  rules regulating  the  recruitment  and conditions  of service of Judicial Officers.  In the present case,  in exercise of its powers under Article 309 the State Government  has fixed the salary and allowances of different categories  of Judicial Officers in the State of  Rajasthan. A dress allowance of Rs.1500/- every three years is one such allowance fixed by the State of Rajasthan.

     The  respondents contend that this allowance is on the lower  side, and should be revised upwards by the High Court on  the  judicial side by issuing a writ of mandamus.   They rely  upon  a  decision of this Court in All  India  Judges’ Association  v.   Union of India & Ors.  ([1992] 1 SCC  119) where  this  Court gave various directions  relating,  inter alia,  to  the age of retirement of Judicial  Officers,  for providing  a  working  library  at the  residence  of  every Judicial  Officer,  for   sumptuary  allowance,  residential accommodation  and a State vehicle for a District Judge.  It also  recommended an In-service Training Institute being set up  at the Central and State or Union Territorial level.  It also  recommended  an  All  India  Judicial  Service  and  a uniformity  of designation of Judicial Officers in different States.   The directions which were given were based on  the perception  of  this  Court   that  the  essential  judicial functioning  of  the  Judicial Officers of every  State  was affected  by  a  lack  of certain basic  amenities  such  as residential accommodation, a working library or a vehicle at the  level  of  a  District   Judge.   The  retirement   age prescribed  differently  in  different   States,  was   also perceived   as   requiring    modification   for   efficient functioning  of  the judicial service.  But the question  of appropriate  pay-scales of Judicial Officers, though  raised by  the petitioners, was not considered by this Court  since it took the view that it was not equipped to do so.  It left this  question  to  be  considered  by  an  appropriate  Pay Commission  or Committee as and when set up in the States or Union  Territories.  In dealing with pay-scales, this  Court noted  that  there was a wide variance in the pay  structure prevailing  in the various States and Union Territories.  It was  difficult  on  the  basis of the data  which  was  made available to this Court, for it to undertake the exercise of fixing  the  appropriate pay-scales.  The Court,  therefore, declined   to   examine  the   propriety  of  the   existing pay-scales.   The  Court  did,   however,  give   directions relating  to a library for the Judicial Officers since  this was directly connected with proper performance of his duties

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by  a Judicial Officer and a sumptuary allowance looking  to the  circumstances  in which the district judiciary  had  to function.   While  considering a review petition in the  All India  Judges’ Association & Ors.  v.  Union of India & Ors. ([1993]  4 SCC 288) this Court recommended that the  service conditions  of  the  Judicial Officers should  be  laid  and reviewed  from  time  to time by an  independent  commission exclusively   constituted   for  the   purpose.    And   the composition  of  such commission should reflect an  adequate representation of the judiciary on the Commission.  This was recommended  in  lieu of the present practice of  entrusting the  work  of  recommending the service  conditions  of  the members  of  the  Subordinate  Judiciary  to  the  same  Pay Commission  which  recommends the service conditions of  the other   services.   The  Court   gave  these  directions  as essentially  for  the evolution of an  appropriate  national policy in regard to the judiciary’s service conditions.

     This  Court  once  again   explained  why   directions regarding  uniform  pay-scales  could not be  given  by  the Court.   It  said,  "There was a wide variance  in  the  pay structure   prevailing  in  different   States   and   Union Territories  and  in the absence of full details it was  not possible  to  fix  appropriate pay-scales and  hence  a  Pay Commission  or  Committee  should be set  up  to  separately examine  and review the pay structure of Judicial Officers." Dealing  with library allowance it observed, (at page  308), "By  the  judgment  under review this Court had  directed  a residential  office-cum-library allowance to the subordinate judges  because  law  books were the essential  tools  of  a Judicial  Officer.  It was expected of the State to  provide every  court  with  upto date text and commentaries  on  the relevant statutes and law journals which report decisions of the  High  Court  and the Supreme Court for the use  of  the judges   and  since  the   various  State  Governments   had consistently  failed to provide this primary facility to the courts,  it  became  necessary for the court to  direct  the payment  of  residential office-cum-library allowance."  The Court  made  it  clear that this was  essential  for  proper performance  of  duties  by   the  Judicial  Officers.   The direction,  however,  to  give sumptuary  allowance  to  the District  Judge  was deleted in the review judgment  because the Court’s attention was drawn to the facility available to the  District Judges to incur expenses for official meetings from the funds at the disposal of the court.

     In our view, any piecemeal determination of individual allowances  which  go  to  form the total pay  packet  of  a judicial  officer, by different High Courts by issuing writs of  mandamus would go counter to the very purpose of setting up a National Judicial Pay Commission.  It would also not be appropriate for any High Court to give directions in its own State regarding a particular allowance without examining the relative  conditions of Judicial Officers and the total  pay packets  which  are received by Judicial Officers  in  other States.

     Both  these judgments which deal extensively with  the service  conditions of Judicial Officers and their essential requirements  for functioning efficiently as such  officers, make no reference to a dress allowance.  This Court left the question  of  pay  and  allowances to be  determined  by  an appropriate  Pay  Commission or Committee.  We are  informed that  the  first National Judicial Pay Commission which  has

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been  constituted has, as one of its terms of reference, the following:

     "(b)  To  examine the present structure of  emoluments and  conditions of service of Judicial Officers in the State and  Union Territories 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 the Subordinate Judicial  Service vis-a-vis other civil servants."

     Constitutional  discipline  also   requires  that  the constitutional  provisions  must  be followed  by  the  High Courts.   Article  309 puts the responsibility  of  deciding appropriate  service conditions on the State.  The concerned High  Courts  can play an effective administrative  role  in fixation  of  appropriate  service  conditions  of  judicial officers  when  backed by recommendations of an  expert  Pay Commission  in which the judiciary has an important say.  In the  present  case,  the appellant- State of  Rajasthan  has pointed  out  that  there is no  uniformityg  regarding  the granting of dress allowance and on kit maintenance allowance admissible  to  the Judicial Officers in  different  States. For example, in the States of Madhya Pradesh, Gujarat, Tamil Nadu,  Maharashtra,  Sikkim, Kerala, Karnataka and  Jammu  & Kashmir  no  such allowances are being paid at all.  In  the States  of  Punjab and Haryana also no such  allowances  are being paid although some Judicial Officers have filed a writ petition in the High Court claiming such allowances.  In the State of Uttar Pradesh, Judicial Officers who are working in the  courts are allowed Rs.300/- per month towards  purchase of  law  books  and maintenance of dress.  In the  State  of Orissa,  Rs.1500/-  as  a lump sum amount is given  to  each Judicial Officer in the rank of Munsiff, SDJM and Sub- Judge once  in  a  block  of three years.  While  in  West  Bengal Rs.500/-  are  allowed to the Judicial Officers once in  two years.   No kit maintenance allowance is being paid to them. In  this  context, therefore, there was no occasion for  the High  Court  to  issue a writ of mandamus in the  manner  in which  it has done.  The State of Rajasthan has also pointed out  that  a  number  of Judicial Officers  are  working  in non-judicial posts.  While so working, they are not required to wear any specified dress.

     Whether  a  separate  allowance for  dress  should  or should not be granted also depends upon the total pay packet of  the officer, his rank and status in society and  whether in the context of his overall emoluments, it is necessary to give  him  a separate allowance.  Employees in Class IV  are normally  given  these allowances because their pay  packets are  perceived  as  at the lowest levels.  One  cannot  ipso facto  assume  that  the same logic will apply  to  Judicial Officers  until  we  have an overall  examination  of  their service  conditions and a report from the National  Judicial Pay  Commission.   In the judgments which were  cited,  this Court felt compelled to intervene only to ensure that proper functioning  of  the  judicial officers  was  not  affected. Unless  the concerned service condition can be perceived  as seriously affecting proper discharge of judicial duties, the High  Court should not issue a mandamus directing the  State to pay certain amounts to the judicial officers.

     Our  attention  was also drawn to the observations  of

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this  Court in M.P.Oil Extraction & Anr.  v.  State of  M.P. & Ors.  ([1997] 7 SCC 592 at 611 para 41) to the effect that the  executive  authority  of the State must be held  to  be within   its   competence  to  frame   a  policy   for   the administration  of  the State.  Unless the policy framed  is absolutely  capricious  and,  not  informed  by  any  reason whatsoever,  can  be  clearly held to be  arbitrary  thereby offending  Article 14 of the Constitution, the Court  should not interfere with the policy decision of the executive.  In Mallikarjuna  Rao  &  Ors.  State of Andhra Pradesh  &  Ors. ([1990]  2  SCC  707 at pages 713-714) also this  Court  has observed  that the Court should not require the executive to exercise  its  rule-making  power in  any  specific  manner. Neither   of  these  cases,   however,  deals  with  service conditions  of  judicial  officers.  In  the  present  case, looking  to the parameters laid down by the Constitution and all  the above decisions, the quantum of dress allowance  or Kit  maintenance allowance was not required to be determined by the High Court in the manner in which it has done.

     The  impugned  judgment of the High Court,  therefore, cannot  be  sustained.  It is, however, pointed out  by  the appellants  that in November, 1998, the State Government has decided  to increase the uniform allowance from the existing rate  of  Rs.1500/- to Rs.3000/- in a block of three  years. Learned  counsel  appearing for the State of  Rajasthan  has also  stated before us that the State will pay the increased allowance as specified in its letter of 20.11.1998 addressed to the Advocate-on- Record by the Principal Secretary to the Government  and  issued  by  the  Finance  Department.   The appellants  are  directed  to pay the uniform  allowance  of Rs.3000/- in a block of three years accordingly.

     The appeal is allowed with the above direction.  There will, however, be no order as to costs.