Delhi Judicial Service ... vs Delhi Administration Etc. Delhi ...
1993 Latest Caselaw 604 Del

JUDGMENT

B.N. Kirpal, J.

(1) In this writ petition, the Judges belonging to the Delhi Higher Judicial Service are seeking justice by invoking the principle of "Equal Pay for Equal Work".

(2) The petitioners are all members of the Delhi Higher Judicial Service (for short the DHJS) who perform the duties of Additional Chief, Metropolitan Magistrate, Chief Metropolitan Magistrate, Additional District Judge and Additional Sessions Judge. In addition thereto, as at present, one member of the said service is also the District & Sessions Judge of Delhi. This service has been constituted by framing rules under Article 309 of the Constitution of India and at present the sanctioned strength of the service consists of one post of District & Sessions Judge, 43 permanent and one temporary post of Additional District Judge, 5 posts of Chief Metropolitan Magistrate Addl. Chief Metropolitan Magistrate and 10 deputation and leave reserve posts. Rule 21 of the Delhi Higher Judicial Service Rules further provides that the number of Selection Grade and supertime scale posts shall be as shown in the schedule. In the said schedule the number of time scale posts is shown as 47, Selection Grade posts are 12 and supertime scale post is one.

(3) Before dealing with the points raised in this writ petition it is important to refer to the manner in which the pay-scales of such officers have been fixed from time to time. The Subordinate Judiciary in Delhi consists of members of the Delhi Judicial Service and members of the Delhi Higher Judicial Service. Though these two services are separate and distinct from each other nevertheless members of the Djs are entitled to be considered for promotion to the aforesaid posts in the DHJS. As in the present case we are concerned with the question with regard to scales of pay of members of the Dhjs it is not necessary to deal with the facts regarding fixation of pay of the officers of the DJS.

(4) The initial constitution of the Dhjs took place in the year 197tf. At that time it provided for a time scale of Rs. 1200-2000, Selection Grade of 2000-2250 and Supertime scale of Rs-2500-2750. Representations were made for revision of the scales of pay. The Central Government vide letter dated 14th October, 1982 revised the scales of pay w.e.f. 1st March, 1982 and the timescale was revised to Rs-2000-2250, Selection Grade to Rs.2250- 2500 and the p73 Supertime scale remained at 2500-2750. It was further provided that 20% of the posts would be regarded as Selection Grade posts.

(5) The Government set up the 4th Pay Commission who submitted its report whereby the pay-scales were revised w.e.f. 1st January, 1986. In this report the Pay Commission did not specifically deal with the Delhi Higher Judicial Service but it made general recommendations equating old scales with revised scales of pay. According to the respondents the pre-revised timescale ofRs.2000-2250 was revised to Rs-4500-5700, the Selection GradescaleofRs.2250-2500wasrevisedtors.5100-5700andthe Supertime scale wasrevisedfromRs.2500-2750to Rs.5900-6700. The Delhi High Court did not agree to the revision of the Selection Grade to Rs.5100-5700 and it revised the same to Rs.5900- 6700.

(6) The petitioners before this Court have two- fold grievance. It is firstly contended that all members of the Dhjs, except the District & Sessions Judge, perform identical duties. Officers are transferred from one post to the other without regard to the scale of pay which they are entitled to gel. It is, therefore, submitted that the principle of "Equal Pay for Equal Work" applies and, except for the District & Sessions Judge, all the other members of the service should be in the common scale of pay. Secondly, it is contended by the learned counsel that manifest injustice has been done to the members of the judicial services when they are compared to some other posts under the Union of India. Examples have been given showing the upward revision of various civilian posts which revision has been much more than the revision of the scales of pay of the judicial services. The alleged discrimination is sought to be highlighted by the following table contained in the writ petition: "A. Post Before 4th Pay Recommended Scales as Commission, by 4th Pay further Commission, revised by Government Director 1800-2250 4100-5300 59006700 (National Archives) Deptt. of Culture, Ministry of Human Dev. Agricultural 2000-2250 4500-5700 5900-6700 Marketing Adviser(Deptt. of Rural Dev.) Director(Nat- 2000-2250 4500-5700 5900-6700 ional Atlas Thematic & Mapping Organisation) Ministry of Science & Technology Chief Engineer- cum-Administrator (Andaman & Lakshdeep Harbour Works) Ministry of Transport 2000-2250 4500-5700 5900-6700 Scales of Dhjs Post:Addl. Distt. 2000-2250 4500-5700 4500-5700 & Sessions Judge B Scale Of Post Wireless Adviser 2250-2750 5100-6700 7300-7600 ser(Wireless Planning.Co- ordination Wing) Ministry of Communi- cation. Director Genl. 2500-2750 5900-6700 7300-7600 (Supplies & Disposal) Ministry of Com- merce. Deputy Dir. 2500-2750 5900-6700 7300-7600 General(Senior (without Administrative Special Pay) Grade of P&T Accounts & Fin. Service Group A) Ministry of Communications. Sag Post in H. 2500-2750 5900-6700 7300-7600 Ors.Ministry of Communications, Dieptt.of Civil Engineering. Chief Commr, 2500-2750 5900-6700 7300-7600 Income-tax, (without Principal Col- special pay) lector of Customs & Central Excise, Ministry of Finance Scale of District & Sessions Judge 5900-6700 Post of Distt. 2500-2750 5900-6700 & Sessions Judge

(7) The petitioners, in the present writ petition, are, therefore, claiming the scale of Rs.5900-7300 for the Addl. District & Sessions Judge/Chief Metropolitan Magistrate/ Addl.Chief Metropolitan Magistrate while in respect of the post of District & Sessions Judge a revision of pay which is claimed is to Rs.7300-7600 scale.

(8) On behalf of the respondents it is contended by Shri Mittal that the principle of "Equal Pay for Equal Work" is not applicable to the present case. It is also submitted that as to what should be the scale of pay has to be determined by the Pay Commission and it is not open to the Court to give any direction in this regard. With regard to the grant of Selection Grade to some of the officers of the Dhjs it has been submitted by the learned counsel that such a difference has always been there and it is only 20% of the posts in the Dhjs which are entitled to get the Selection Grade.

(9) Before dealing with the rival contentions it is important to examine as to what is the nature of the judicial service. Is it proper to equate members of the Dhjs with the members of the executive service under the Union or the State? It is quite evident that the concept of Selection Grade has been borrowed and incorporated into the Dhjs from similar provisions which are made in respect of various executive or civil services.

(10) The question with regard to conditions of service of the judicial services all over India has been the subject matter of two decisions of the Supreme Court which clearly bring out the position of the judiciary vis a vis the other services in proper perspective. The first decision is that of All India Judges Association v. Uoi & Others, . This case had been Filed for seeking directions for the setting up of All India Judicial Service and for bringing about uniform conditions of service for members of the subordinate judiciary throughout the country. At the time of arguments, however, the plea for setting up of the All India Judicial Service was not seriously pressed and the reliefs on the following heads were claimed. "1.Uniformity in the Judicial cadres in the different States and Union 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; 5. Transport facility to be made available and conveyance allowance provided; 6. Adequate perks by way of Library Allowance, Residential Office Allowance, and Sumptuary Allowance to be provided; 7. Provision for inservice training to be made."

(11) Dealing with the claim for appropriate pay-scale on uniform basis the Supreme Court referred to page 163 of the 14th Report of the Law Commission which had commented on the matters of scales of pay and remuneration of the judiciary and its comparison with the executive branches of the Government. While endorsing the views of the Law Commission the Supreme Court found that there was wide variance in the pay structure prevailing in the various States and the Union Territories and for the same nature of work performed by the judicial officers they were remunerated differently. In view of the absence of data and other handicaps the Supreme Court did not finally examine the propriety of the existing pay-scales and nor did it direct any pay-scales to be fixed. The Supreme Court, however, noted the fact that the last Pay Commission had given its report a few years earlier, which had been given effect to from 1st January, 1986 and there was a likelihood of fresh Commission being appointed. A direction was accordingly issued that as and when Commissions or Committees are setup in the States and the Union Territories they should separately examine and review the pay structure of the judicial officers keeping in view all relevant aspects.

(12) While giving various directions and reliefs the Supreme Court emphasised the importance and the responsibilities with which the Judicial Officers discharge their functions. It was observed that a Judge should enjoy freedom from persona] worries and    "A reasonable salary, appropriate allowances and manageable living conditions are, therefore, required to be provided."  

(13) Eight directions were given by the Supreme Court in this judgment but, unfortunately not a single one of them has been implemented so far.   

(14) The Union of India and the various States, who were a party to the earlier judgment in the Judges' case(supra), then filed review petitions in the Supreme Court raising various objections to the directions which had been given in the said case. These review petitions were disposed of by a judgment reported as All India Judges Association & Ors. v. Uoi & Ors., (hereinafter referred to as the Review Judgment). As many as ten objections were raised in these review petitions. The Supreme Court while rejecting most of the objections and issuing various directions compared the judicial services with the other services. Observations in this regard are most pertinent, as far as this case is concerned, and will be helpful in determining the points in issue. While examining the position of the Judges and members of the judiciary it was observed at page 624 as follows: "7.1Tis not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We cannot however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of 'employment'. The judges are not employees. As members ofthejudiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the state-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A., members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally. 8. This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self- reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself."

(15) Again at page 625 it was reiterated by the Supreme Court that:    "THE parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessary lead to the comparable improvement in the service conditions of the latter"  

(16) It also commented upon the circumstances in which the first decision was given by the Supreme Court. It was noted that the judgment under review had to be issued for two reasons firstly because the executive and the legislature had failed in their obligation and secondly the judiciary in the country was a unified institution judicially though not administratively and, therefore, uniform designations and hierarchy, with uniform service conditions were unavoidable necessary consequences. Directions were given to the Government to perform "long overdue obligatory duties".   

(17) Dealing specifically with the objections relating to the uniform pay-scales the Court had in paragraph Ii of the judgment referred to the earlier decision regarding the Pay Commission and observed as follows:-    "IT is for this reason again that the present practice of entrusting the work of recommending the service conditions of the members of the subordinate judiciary to the same Pay Commissions which recommend the service conditions of the other services requires reconsideration. The service conditions of the judicial officers should be laid down and reviewed from time to time by an independent Commission exclusively constituted for the purpose, and the composition of such commission should reflect adequate representation on behalf of the judiciary."  

(18) It will be seen from the above that there was a departure from the earlier directions of the Court in the main judgment. Whereas in 1991 the direction which had been issued by the Supreme Court was that the Pay Commissions as and when set up should go into the question of scales of pay of the members of the judicial service, but in the Review Judgment, however, it has specifically observed that this aspect required re-consideration and that the conditions of judicial officers should be laid down and reviewed by an independent Commission. In paragraph 33 of the judgment the Supreme Court reiterated its earlier approach of the mistaken comparison between the service conditions of the Judges and those of the administrative executive and observed as follows:-    "33.4We have already discussed the need to make a distinction between the political and the administrative executive and to appreciate that parity in status can only be between judges and the political executive and not between judges and the administrative executive. Hence the earlier approach of comparison between the service conditions of the judges and those of the administrative executive has to be abandoned and the service conditions of the judges which are wrongly linked to those of the administrative executive have to be revised to meet the special needs of the judicial service. Further, since the work of the judicial officers throughout the country is of the same nature, the service conditions have to be uniform. We have also emphasised earlier the necessity of entrusting the work of prescribing the service conditions for the judicial officers to a separate Pay Commission exclusively set up for the purpose. Hence we reiterate the " importance of such separate commission and also of the desirability of prescribing uniform pay scales to the judges all over the country. Since such pay scales will be the minimum deserved by the judicial officers, the argument that some of the States may not be able to bear the financial burden is irrelevant. The uniform service conditions as and when laid down would not, of course, affect any special or extra benefits which some States may be bestowing upon their judicial officers."  

(19) Lastly, in the Review Judgment it was observed that any clarification that will be required in respect of the matter arising out of the said decision would be sought from the Supreme Court and the proceedings for implementation of the directions shall also be . filed in that Court. Referring to these observations Shri K.C.Mittal submitted that this Court should not give any directions with regard to pay-scales of the members of the petitioner Association.   

(20) The reference to the Pay Commission in the aforesaid Supreme Court judgments, was primarily for having the question of uniform pay-scales examined. The Commission when constituted has also to see as to what should be the pay-scales. In the present writ petition no question in this behalf arises for consideration. It has not been submitted by the petitioners that a direction should be issued for the constitution of a Pay Commission or that the pay-scales should be revised uniformally in the whole of India. The challenge in this writ petition is to the non-applicability, by the respondents, to the principle of "Equal Pay for Equal Work".   

(21) As held by the Supreme Court in the Review Judgment the members of the judiciary are not employees. They exercise sovereign judicial powers of the State and the parity is amongst the political executive, the legislators and the Judges and not between the Judges and the administrative executive. The Chief Justice and Judges of the Supreme Court, the Chief Justice and the Judges of the High Court and the District & Sessions Judge are all Constitutional functionaries. They have to be placed at par with political executive and the members of the other services cannot be placed at par with the members of the judiciary, either constitutionally or functionally, as observed by the Supreme Court. This being so one has to examine the nature, duties and functions of the members of the judicial services and to compare their status with the political executive. It has been emphasised by the Supreme Court that:-    "THOSE who exercise the State powers are the Ministers, the legislators and the Judges and not the members of the staff who implement or assist in implementing their decisions".  

(22) As has already been observed the concept of having a Selection Grade has been incorporated into the Higher Judicial Service Rules primarily for the reason that - such a provision exists in the rules relating to other executive services. In other services persons drawing lesser salary or any lower scales of pay are usually entrusted with duties which are less important than the duties which are required to be performed by the officers who are in the Selection Grade. In those cases the principle of "Equal Pay for Equal Work" obviously cannot apply because the work is not equal. There can be no dispute that the principle of "Equal Pay for Equal Work" has in appropriate cases been applied and given effect to by the Supreme Court in various cases (See K.S.P.College Stop Gap Lecturers Assocn. v. State of Karnataka, , Sandeep Kumar v. State of U.P., and State of Madhya Pradesh v. Pramod Bhartiya, ). This principle has been invoked when persons doing similar or comparable work are not similarly paid. Can this principle be invoked in the present case?

(23) The various courts in the Delhi Higher Judicial Service, except that of the District & Sessions Judge, can be and are manned by different officers from time to time. At regular intervals these officers are transferred from one court to the other irrespective of the pay which is drawn by them. Whereas some officers may be working as Additional Sessions Judge while other work as Additional District Judge, after a period of time they may, and do, inter change their places. In other words the nature and duties of all the members of the Delhi Higher Judicial Service, except that of the District & Sessions Judge, are identical. They have the same judicial powers and deal with the same type of cases, from time to time. Under these circumstances it is not possible to comprehend as to how the members of the same service can be placed in two different scales of pay. It is not necessary to go into the question as to whether the Selection Grade granted is by way of promotion or not, though it may be pertinent to note that in somewhat similar case arising from State of Maharashtra the Supreme Court in 1984 Sc 850 had observed that the Selection Grade is granted more or less as a matter of right and was merely a part of the scale of pay. Be that asitmay, when all the members of the Dhjs are performing similar or identical duties and functions, exercising similar jurisdiction, there is absolutely no justification for providing different scales of pay for them. The nature of work of the members of the Dhjs performed by different officers is similar.

(24) Just as Judges of the High Court may sit in different Benches dealing with different types of cases, from time to time, similarly members of the Dhjs also deal with different types of cases from time to time. There is a uniform salary and allowances which are given to the Judges of the High Court and just as there is no two separate pays for the Judges of the High Court similarly there is no reason as to why there should be two or more scales of pay amongst the members of the DHJS. In this connection reference to the decision of the Supreme Court in the case of P. Savita & Ors. v. Uoi, 1985(2) Slj 331 is relevant. In that case Senior Draftsmen were divided into two groups on the basis of seniority only in the same department and though they were doing identical and same work their salaries were fixed in different scales. It was held by the Supreme Court that the differentiation was not based on any intelligible ground. It referred to the earlier decision in the case of Randhir Singh v.UOI, 1982(1) Slj 490 and came to the conclusion that as the Senior Draftsmen did the same work and performed the same duties their classification into two groups based on reason of seniority was without any basis. In the present case also 20 per cent of the posts have been classified as Selection Grade posts while 80% of the members of the Dhjs are in the lower scale of pay. There is no difference in work between 80% of the officers on the one hand, who are in the time scale and the other 20% of the officers who are granted the Selection Grade. The incorporation of two different scales of pay is clearly contrary to the equality doctrine embodied in Article32(d)ofthe Constitution read with Article 14.The principle of Equal Pay for Equal Work", is clearly applicable in the present case.

(25) The next question which arises for consideration is as to what is the scale of pay which should be adopted in the present case. At the present moment the District & Sessions Judge is in the pay-scale ofRs.5900-6700.WhiletheSelectionGradeAddl. District Judges are also in the same scale of Rs.5900-6700, the other members of the service are only getting the scale of Rs.4500-5700. Whereas 80% of the Addl. Distt. & Sessions Judges are in the scale of Rs.4500-5700, only 20% are getting the scale of Rs.5900-6700. In view of the decision of the Supreme Court in the Review Judgment it will not be appropriate or proper for this Court to direct a scale of pay for the members of the Higher Judicial Service which is different from one of these two scales. That is the function of the Pay Commission as recommended to be set up by the Supreme Court. What has to be seen here is that between the two existing scales of pay which is the one which should be paid to the members of the Delhi Higher Judicial Service and from which date.

(26) In order to solve this problem it will be helpful to see the salary structure of the members of the judiciary. As already observed, right from the Chief Justice of India to District & Sessions Judge, and which expression includes the ADJs by virtue of Article 236 of the Constitution, all incumbents are Constitutional functionaries exercising sovereign judicial powers of the State. At the pinnacle is the Chief Justice of India and as per the statement handed over in Court by the counsel for the Uoi his salary is RS.10,000.00 per month. The Judges of the Supreme Court are paid a salary of Rs.9,000.00 per month, which is also the salary of the Chief Justice of a High Court. The Judges of the High Court get a salary of Rs.8,000.00 per month. In other words the difference of salary at each level in the judicial hierarchy is that of approximately Rs.1000.00 per month. We are not taking into consideration the various allowances which are paid to these Constitutional functionaries. The next level, which is lower than that of the High Court Judges, is that of the District & Sessions Judge. The District Judge performs practically the same judicial functions as the Addl. District Judge. As the High Court Judges are also appointed from amongst the District Judges, therefore, the difference in the pay-scales between that of the District Judge and the High Court Judge should not be more than Rs. 1000.00 per month. The pay of the Addl. District Judge should be comparable with that. Therefore, when we examine two scales of pay which are paid to the members of the Higher Judicial Service viz., Rs.4500-5700 on the one hand and Rs-5900-6700 on the other and when one takes into consideration the fact that as far as this High Court is concerned, more than six Addl. District Judges have had at different points of time been directly elevated as High Court Judges, the appropriate uniform scale of pay for the members of the Higher Judicial Service should be Rs.5900-6700. There is no valid reason as to why they should be paid the lower scale of Rs.4500-5700.

(27) The matter may be looked from another angle. From the table which has been reproduced above it will be seen that the post of Director, National Archives, Agricultural Marketing Adviser, Director, National Atlas Thematic & Mapping Organisation and Chief Engineer-cum-Administrator Andaman & Lakshdeep Harbour Works had scales of pay which were less or equal to that of the Addl. Distt. Judge before the 4th Pay Commission Report. Notwithstanding the fact that the 4th Pay Commission had recommended fixation of their pay in the scale which was similar to the scale of Rs.4500-5700, the Government has revised their scale of pay to Rs.5900-6700. This is the scale which has also been made applicable to the District & Sessions Judge. There is no valid reason as to why the Addl. Distt. & Sessions Judge should get less pay than these officers specially when their pay was more or less equal before the recommendations of the 4th Pay Commission.

(28) Yet another example relating to the pay fixation which can be given is that of the Chief Secretary.Delhi Administration and Commissioner of Police. As a result of the 3rd Pay Commission report in 1973 looking at the work, stylus and responsibilities of the officers, the pay-scale of the District & Sessions Judge, Delhi, Chief Secretary, Delhi Admn., and the Inspector General of Police was identical, i.e., that of Rs.2500-2750. After the 4th Pay Commission report whereas the scale of the District & Sessions Judge has only been increased to Rs.5900-6700, the pay of the Chief Secretary, Delhi Admn., and the Commissioner of Police is now Rs.8,000.00 fixed, the same as the salary of the Judges of the High Court. Of course there is no explanation offered or given as to why the pay of the Chief Secretary and the Commis sioner of Police has been revised from Rs.2500-2750 to Rs.8,000.00 fixed while that of the Distt. & Sessions Judge only revised to Rs.5900-6700. Though the Supreme Court in the Review Judgment has observed that " Under the Constitution,thejudiciary is above the administrative executive and any attempt to place it on par with administrative executive has to be discouraged", in actual fact the judiciary has been placed below par, as a result of the 4th Pay Commission report. What has happened is the reverse of what should have happened. The Supreme Court aptly stated in this judgment that recommendations had been made as early as in 1958 by the Law Commission in its 14th Report to improve the system of justice and the content and quality of justice administered by the Court but:- "OVER the years the circumstances which impelled the said recommendations have undergone ametamorphosis. Instead of improving they have deteriorated making it necessary to update and better them to meet the needs of the present times".

(29) Therefore, from whatever angle one may look at the problem the only conclusion which one can arrive at is that the principle of "Equal Pay for Equal Work" is clearly ' applicable in the instant case and applying the said principle the members of the Delhi Higher Judicial Service have to be paid at a uniform scale of pay and that can only be, under the circumstances narrated above,that of Rs.5900-6700.

(30) This leaves us two more questions which have to be decided. The first question is as to with effect from which date the revised scale of Rs.5900-6700 is to be made effective. It was as far back as on 27th April, 1987 that the then District & Sessions Judge, Delhi recommended that the members of the Delhi Higher Judicial Service should be granted the revised pay-scale ofRs.5900-6700. The High Court also, vide letter dated 5th May, 1987 written by the Registrar to the Joint Secretary, Ministry of Law & Justice recom- mended the grant of the pay-scale of Rs.5900-6700 to the officers of the Delhi Higher Judicial Service. It is clear, therefore, that the proposal was mooted to the Government way back in 1987 for the grant of this higher scale of pay. It appears that without waiting for the Government approval the pay scale of Rs.5900-200-6700 has been given to the Selection Grade officers. The Distt. & Sessions Judge again on 12th September, 1988 wrote to the Registrar, Delhi High Court to the effect that the revised scale ofRs.5900-6700 should be paid to all the officers in the Dhjs but, instead of agreeing to this proposal, the then Minister of Law and Justice vide his letter dated 30th May, 1989 written to the Chief Justice of this Court informed that there have always been three scales of pay in the Dhjs and that the revised pay-scale for Selection Grade Officers should be Rs.5100-5700. Vide letter dated 30th January, 1990 the then Chief Justice again reiterated and wrote to the Law Minister for the merger of the two scales into a common scale of Rs.5900-200-6700. It is evident from the aforesaid that the view which has been expressed by this Court, on the administrative side, has always been that the offices of the Higher Judicial Service are entitled to the scale ofRs.5900-6700 and because the revision in the salary has taken place pursuant to the recommendations of the 4th Pay Commission it must follow that the effect to thepay-scaleofRs.5900-6700hastobegiven fromIstJanuary, 1986.

(31) As regards the scale of pay for the Distt. & Sessions Judge, unfortunately no relief can be granted in this petition. It will be seen that the prayer in the writ petition is that the scale of pay of the District & Sessions Judge should be revised tors.7300-7600. Passing such an order would amount to ordering the revision of the scale even though it had not been provided for in the DHJS. Unlike the scale ofRs.5900-6700 which has been directed to be paid to some of the members of the Dhjs the scale ofRs.7300-7600,hasnot been indicated. The restriction which has been placed by the Supreme Court in giving directions with regard to implementation of the Review Judgment debars us from issuing any direction in this behalf. Had this prohibition not been there we would have no difficulty in directing the revision of the scale for the Distt. & Sessions Judge, looking at the judicial hierarchy. We would, however, like to observe that during the course of arguments a query was raised as to when will the Government set up a Pay Commission as had been recommended by the Supreme Court in the aforesaid decisions. ShriK.C.Mittal on behalf of the Union of India, informed the Court that various letters had been written to the State Governments for setting up of Commissions. It was his contention that it is only the State Governments who could set up these Commissions as has been envisaged by the Supreme Court in the Judges case in 1991.

(32) In our opinion the two judgments of the Supreme Court have to be read together and if that is done then the understanding of the Union of India with regard to setting up of a Pay Commission is not correct.

(33) It is no doubt true that in the judgment of 1991 it was observed that the Pay Commissions/Committees when set up by the State or the Union will go into the question of uniform scales of pay and the revision thereof. But in the Review Judgment in paragraph Ii this aspect has been specifically reconsidered. It has been observed that there should be an independent Commission which is to be constituted exclusively for the purpose of going into the service conditions of the Judicial officers and the composition of such commission should reflect adequate representation on behalf of the judiciary. The Supreme Court in both the judgments has expressed the desirability of a uniform scale of pay. It is quite obvious that if each State Government sets up its own Pay Commission the question of there being uniformity in the scale of pay for the members of all the Higher Judicial Services may not arise. A uniform scale of pay, and uniformity in the other service conditions, can only be there if there is a single independent Commission constituted for the whole of India. This is what was envisaged by the Supreme Court in the Review Judgment in paragraph 11. Entry 11A of List 3 of the Seventh Schedule to the Constitution of India which deals with "Administration of Justice: Constitution and Organisation of all Courts, except the Supreme Court and the High Courts" would enable the Parliament or the Union of India to either legislate or make rules in this behalf. As we read the two judgments of the Supreme Court it does appear to us that it is for the Central Government to set up a Commission, as envisaged in paragraph Ii of the Review Judgment, and that Commission should go into the question of the conditions of service and uniform pay-scales for the judiciary in the whole of India.

(34) For the aforesaid reasons this writ petition is partly allowed. We direct the respondents to re-fix the salary of the members of the Delhi Higher Judicial Service in the pay scale of Rs.5900-6700 w.e.f.Ist January, 1986, within a period of four months. They should be paid arrears of salary, if any, plus allowances thereon within a period of two months thereafer.

(35) There will be no order as to costs.