No outsider in Commission :-

(1) The First National Judicial Pay Commission consisted of only three retired judges and there was not a single member from public namely outstanding economist or person having qualification of Business Management. At least one member should have been non-judicial member in constituting the Commission. The Fifth Central Pay Commission had three members.

Professor S. Tendulkar had given a note of dissent with regard to report of the Fifth Central Pay Commission. The Judicial Commission consisted of retired judges who had to decide pay scales of their own subordinate judicial officers and so it was necessary to appoint an outsider who can given objective assessment in fixing pay scales and liability of the Government. In Fifth Central Pay Commission, the member (outsider) has given dissenting report, which raised number of objections against the majority opinion of Fifth Central Pay Commission. The Judicial Pay Commission had not an opportunity to know the views of an outsider.

(2) Even after the Supreme Court Judgment reported in AIR 1993 SC Page 2493, terms of reference of judicial Commission also included one of the terms :-

(b)… "To examine the present structure of emoluments and conditions of service of judicial officers in the states 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 subordinate judicial services vis-à-vis other civil servants which has not been done.

(3) Objections regarding D.A. and Pension are dealt with while dealing with Fifth Central Pay Commission and the same objections can apply with regard to D.A., Pension recommended by the judicial Commission.

(4) The parity of the status can be applied between High Court judge and the Minister but the said principle can not be extended to post of civil judge (Jr.div.). The High Court judge can be removed by only impeachment and he lays down the law, which is binding in the State. But, it is questionable to apply the same principle to Civil Judge (Jr.div.) and other subordinate officers. The Mamlatdar who is executive head of Taluka is also entrusted judicial powers to decide exclusively disputes under provisions of Bombay Agricultural Laws Act and the ceiling Act and other land-laws involving lacs of rupees.

Can Civil Judge take a stand that he can not be removed like High Court Judge? Article 311 of Constitution of India applies to him and he is removed from service subject to Article 311 and service rules and department inquiries.

So, parity of status between Civil Judge and subordinate Judges and Minister is not justified and subordinate judicial officers are not employees can not stand the test of provisions of Constitution of India and Rules under Article 309 of Constitution of India.

(5) The Commission has quoted para 14.32 that the Supreme Court has also observed in the said review judgment that while fixing pay scales of the judicial officers the consideration of capacity of the Government to pay would be irrelevant. It is unfortunate that above principle is laid down by the Supreme Court and followed by the Commission. The Commission should have noted that they are the judges of their own cause and objectivity and impartiality should be apparent from the report. The commission and the Supreme Court should have relied only on the ground in fixing the pay scales that independence, honesty, integrity of a judge is absolutely necessary in working out the Constitution of India and judges should be given decent pay scales.

(6) It is unfortunate that the Commission has not mentioned even financial figures of the Centre and States. The figures are adequately given in other chapters and charts but the following figures may be repeated to bring to the notice of Hon'ble members of the judges.

 

	1990-1991	2003-2004 (estimated)
Interest Payment Liability	Rs.21000 crores	Rs.125000 crores
Debt	Rs.3 lac crores	Rs.17 lac crores
Pension	Rs.3211 crores	Rs.24000 crores to About 38 lac Pensioners
Pay		Rs.33000 crores to 38 lac employees

The Central Government is not able to run day to day expenses namely Non Plan expenses from Revenue Receipts and other income of Centre and Rs.95,000 crores are borrowed for year 2001-2002 meeting non plan expenses which means Interest payment liability, Defence, Pay, Pension, Subsidies and Grants. The entire plan expenses are from borrowed funds. India is facing debt trap which is discussed in details in other chapters.

Financial Instability :

(7) It is unfortunate that the financial instability is brought due to :-

(i) D.S. Nakara Vs. Union of India, AIR 1983 SC.130
(ii) The Fifth Central Pay Commission which was headed by Retired Supreme Court Judge S. R. Pandian.

Shri S. Ratnaval Pandian has given in his Commission Report for increasing Pay allowance in chapter 35, Financial Resources of the Central Government vide paragraphs 33.12 to 33.15 which are reproduced as follows :-

The Commission has given reasons for increasing pay allowance in Chapter 35 "Financial Resources of the Central Government," vide paras 33.12 to 35.15 as follows :-

"At the same time lack of resources cannot be cited as an unalterable reason by denying the employees their dues, Government itself is partly to blame by its act of lifting the lid of private sector emoluments. It has also not shown circumspection while approving wage revisions of the Public-Sector probably due to pressure of employees Union in the case of certain high wage islands like Airlines, Pilots, the Government has gone berserk. With this inevitable record, it can hardly preach abstinence and forbearance to it's employees".

"We have suggested certain measures for right sizing of the Government machinery. If the Government is serious about containing the deficit it will implement these recommendations with rigour and single mindness. In the case, members can be brought down the Government can very well afford to pay its employees a decent salary".

Shri S. R. Pandian in the Fifth Central Pay Commission had even recommended to make payment of D.A. as tax free.

After five years of implementation of the Fifth Central Pay Commission Report the following are the figures of the Pay Bill of the Central Government :-

The Central Government Pay Bill for about 38 lacs employees : Rs.33,000 crore, per year.

The Central Government Pension Bill for about 38 lacs Pensioners: Rs.24,000 crore, per year.

The D.A. allowance, which was 12% of basic pay has increased to 59% of basic pay. The Pension Bill of the Central Government which was Rs.3211 crore in year 1991-1992 has increased to Rs.24,000 crore for about 38 lacs pensioners. The Central Government could not give exact number of pensioners and number of family-pensioners before the Fifth Central Pay Commission.

The States which have adopted recommendations of the Fifth Central Pay Commission and followed the principle of the Central Government adopting the recommendations have become bankrupt and debt of liability of Gujarat, Andhra Pradesh and Maharashtra is to the extent of Rs.46,689 crore, Rs.50638 crore and Rs.61324 crore. The adoption and implementation of the report of National Judicial Pay Commission is likely by the States and we will know in future, how implementation of National Judicial Pay Commission has affected the finances of the Central Government and the States and added deficit in the Budget of the Central and the States because burden of payments under the recommendations of the National Judicial Pay Commission is in ratio of 50 : 50 between the Central Government and the states. The deficit of the Central Government and also the States will increase as there is no likelihood to increase the revenue receipt of the Central and the States. The Hon'ble Judges and the Hon'ble Courts have rendered the services in raising and deciding issues affecting the public at large. The Citizens of India are proud of the achievements regarding the law laid-down by the Hon'ble Courts. The members of the Commission (Ex-Judges), who are expected to keep the objectivity in the deciding cases, while acting as members of the Commission have miserably failed to keep such objectivity and failed to note even serious financial conditions of the Centre and States and have imposed unbearable burden in fixing Pay, Dearness Allowance, Pension and number of allowances with retrospective effect.

The Central Government and the States Governments are responsible for financial chaos, instability in accepting and implementation of recommendations of the 5th Central Pay Commissions, without applications of mind. Nakara's judgment and retired judges who were members of the Commission have contributed more in instability by their attitude that while fixing Pay-Scales of Judicial Officers, the consideration of the capacity of the Government to pay would be irrelevant or 5th Pay Commission observation, "At the same time lack of resources cannot be cited as an unalterable reason by denying the employees their dues."

The readers may refer dissenting report of Dr.Tendulkar with regard to Capacity to Pay and Burden on the Government.