S.D. JOSHI & Ors. v. NOVEMBER 11

2.1 Section 4 of the Act requires that appointment to the post of a Judge under the Act be made by nomination from amongst the candidates who satisfy the B qualifications stated under clauses (a) to (c) of sub-s.(3) of s.4. The advertisement issued by the State of Maharashtra inviting applications for the posts of Judges of the Family Courts, clearly shows that different class of persons were eligible to apply for the post in question. c Firstly, the persons holding judicial office or office of the member of a Tribunal or a post under the Union or State requiring special knowledge of law for a period of seven _years were eligible. Other eligible class was that of lawyers practicing as advocates in the High Court of 0 Bombay or its branches, including Panaji, or Subordinate · Courts thereto for a period of seven years. Even a person, who is post-graduate in law with specialization in personal law, was eligible. Still another class was of the persons who possessed post"graduate degree in Social Sciences, such as Maste~ of Social Welfare, Sociology, Psychology with a degree in law and have seven years experiencE .n the field of research or teaching in a Government Department or a College or University. The eligibility criteria, therefore, was somewhat distinct and different than the eligibility criteria provided for selection to the post of District Judge in the Higher Judicial Services of the State of Maharashtra. The petitioners, obviously, belong abovementioned classes and they, having been found suitable, were selected/appointed to the posts in question G by the appropriate authority constituted by the Government in consultation with the High Court. [para 2 and 11] [411-B-D; 421-B-G] to one of F E

2.2 In exercise of the powers conferred by Articles H 402 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A 233, 234 and proviso to Article 309 of the Constitution of India read with Article 235, the Governor of Maharashtra, after consultation with Maharashtra Public Service Commission and the High Court of Bombay framed the Rules known as 'The Bombay Judicial Services B Recruitment Rules, 2008' which repealed the Bombay Judicial Services Recruitment Rules, 1956. Rule 2 of the 2008 Rules defines 'Service' to mean the Maharashtra Judicial Service. Rule 3(2) states that the services shall consist of the cadres specified in column 2 of the c Schedule appended to the Rules of 2008 and the character and number of posts in each of those cadres shall be as specified in the corresponding entries in column (3) thereof. [para 18-19] [429-C-D; G-H; 430-G-H]

2.3 The Rules of 2008 clearly show that a person to D be entitled to promotion as District Judge has to be a member of the cadre of Senior Civil Judge. A person has to be member of the judicial service before he could be considered for appointment to the Higher Judicial Services of the State. The appointment to that cadre has E to be strictly construed and must be made in accordance with the provisions stated in the Rules. The advocates or other eligible persons entitled to be considered for appointment under the nomination category have to satisfy the prescribed qualifications and to clear the F written examination as well as the viva-voce test, as per the Rules. Once the Governor of Maharashtra has framed the Rules of 2008, in exercise of its constitutional powers and in accordance with the procedure prescribed therein and has explained who would be a 'District Judge', what G would be service and its constitution and, thereby, excluded the Judges of the Family Court from the service consciously, then it is neither permissible nor possible for the Court to direct such inclusion by implication. In fact, the petitioners have not challenged the Rules of 2008 H earlier or even in the instant petition. Once the legislature . S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY 403 has framed the Rules and kept out the Principal or other A • Family Court Judges from the cadre of the 'Judicial Services' of the State of Maharashtra, then they cannot be treated as part of the cadre by inference or on the doctrine of pari~y. [para 21) [431-E-H; 432-A-C) B

2.4 Under Article 233(1) of the· Constitu.tion, , appointment to the post of District Judge is to be made ' by the· Governor in consultation with the High Court ; exercising jurisdiction in relation to such State. Article · 233(2) states the kind of persons, who are eligible to be •i. ~onsidered. On fulfilling the prescribed criteria alone, the C .iicandidate can be appointed to the 'judicial office' in ., accordance with the stated procedure. Article 236 ,.iexplains the expression 'District Judge' as well as 11•'Judicial .service' for the purposes of Chapter VI. [para 22- " 23) [432-D-G) D ' ' .. 1 2.5 A bare reading of the Article 236 clearly shows that the expression 'District Judge' includes different · . kinds of Judges but not Family Court Judges. Similarly, • 'judicial services' means a service consisting exclusively E of the persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. The expression 'judicial service', therefore, would not include Family Court Judge as they are neither persons eligible to fill up the post of District Judge nor F are they holding civil judicial posts inferior to the post of District Judge. [para 24) [433-C-D]

2.6 Besides, in the recommendations made by Shetty Commission, which were accepted with some modifications by this Court, in the case of A/I India Judges G Association, the merger of cadre of Family Court Judges in the general cadre of Judicial Services was never recommended. They were not treated as part of the regular cadre and, rightly so, were granted limited benefit (with regard to pay scale). At the time of unification of H 404 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A cadres, the matter whether the Family Courts could be treated as part of the judicial cadre of the State was considered. However, the Committee recommended that it is only for the purposes of pay scales that they could be placed at parity and the cadre of the Judges of the B Family Court could not be considered for integration into the cadre of the Judicial Services and they could not be equated with Judges of the City Civil Court and/or the District Court Judges. Correctness of the decision of the Bombay High Court and/or, for that matter, of the recommendation of the Shetty Commission was never questioned by the petitioners. [para 5 and 18) [413-F-G; 429-D-F] C D E India Judges Association v. Union of India 2002 (2) SCR 712 =(2002) 4 SCC 247 - relied on. State of Maharashtra v. Chandrakant Anant Kulkarni 1982 ( 1 ) SCR 665 = (1981) 4 sec 130; and S.P. Shivprasad Pipal v. Union of India (1998) 4 SCC 598 - referred to. Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala 1962 SCR 339 =AIR 1961 SC 1669 - cited.

2.7 The judgments of the Constitution Bench of this Court in the cases* of Chandra Mohan and H.R. Deb are F binding and they have taken a view that the expression 'judicial service' has to be confined to the persons appointed as Judges under the relevant Rules and the provisions contained in Articles 233 and 234 of the 'Judicial service' as understood in its Constitution. 'generic sense', may impliedly include certain other services for limited purposes but such other services may not be judicial service stricto sensu as contemplated under Articles 233 and 234 of the Constitution. [para 31) [ 440-G-H; 441-C-D] G H S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY 405 *Chandra Mohan v. State of UP AIR 1966 SC 1987; A Statesman (Private) Ltd. v. H.R. Deb & Ors. 1968 SCR 614 = AIR 1968 SC 1495 - followed.

2.8 It cannot be held that the Family Court Judges will form part of the cadre of the JudiCial Services under the B State of Maharashtra as contemplated under Rule 3 of the Rules of 2008. [para 32) [441-D-E]

#3. Is the claim of parity put forward by the petitioners sustainable in law:

3.1 The preamble of the Act, which states, "establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith", sufficiently indicates the limited 0 jurisdiction that was vested in the Family Court under the provisions of the Act. The primary purpose of the Court was to promote conciliation and amicably settle the matters relating to matrimonial and family disputes rather than adjudicate on the same. [para 34) [442-B-D] c E I

3.2 Where the jurisdiction of the Civil Courts and the Criminal Court in relation to the matters specified u/s 7(1) of the Act were specifically excluded, there it also necessarily implies that the Family Courts have the : jurisqiction only to deal with the matters specified in the F Explanation to s.7(1) and none other. Thus, it is a Court of. limited jurisdiction. In view of the clear points of distinction, which are substantial and effect the learning, performance and discharge of judicial duties, the disparity between the Judges of the Family Court and the . G members of the Higher Judicial Services of the State of Maharashtra is discernibly demonstrated. Keeping in view the kind of jurisdiction they exercise while deciding cases, it cannot be held that they are at parity and their services are interchangeable to the extent that the H 406 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A Presiding Officers of the Family Court would be granted the stature of the members of the Higher Judicial Services of the State. [para 35 and 37] [442-E; 446-A-C] 8

3.3 Proper administration of justice, being one of the main constitutional goals, has to be in consonance with the expectations of the society and with definite expertise in all fields of law. Administration of justice, per se, takes within its ambit, primarily, judicial experience and expertise by determining disputes between the parties in accordance with law as well as ensuring proper C administration within the hierarchy of courts. The members of the Higher Judicial Services perform duties like maintenance of records as per Rules, inspection of other courts, inspection of jails and ensuring proper adherence to the prescribed procedures. Even the D Judges of the Family Court may be performing such functions but definitely to a very 1.imited extent. Their experience in the judicial field as well as in channelizing the administration of justice is comparatively of a narrower nature. Therefore, it cannot be held that by E necessary implication or on the claim of parity, the Presiding Officers of the Family Courts would be deemed to be the members of the Higher Judicial Services ~ (District and Sessions Judges) of the State of Maharashtra in terms of the constitutional provisions and the relevant Rules. [para 38-39] [446-C-G] F

#4. 'Judicial Office' within the meaning of Article 17 of the Constitution:

4.1 To hold a 'judicial office' within the meaning of G Article 217 of the Constitution is a condition precedent for consideration for elevation to the High Court. Article 217(2) of the Constitution has been worded in a negative language. It states that a person shall not be qualified for appointment as Judge of the High Court unless he H satisfies all the conditions stated in that Article. In terms S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY 407 of Article 217(2)(a), a person should have at least for ten years held a 'judicial office' in the territory of India. Thus, the entire emphasis is on the expression 'judicial office'. The expression 'judicial office' has nowhere been defined in the Constitution unlike 'District Judge' or 'Judicial Service' which expressions have been explained under B Article 236. [para 40-41] [446-G-H; 447-A-F] A' -.

4.2 Article 233(2) provides that a person in service of the Union or the State Government is not eligible to be considered for appointment as District Judge, and so C also a person who has not been an advocate or a pleader for not less than seven years. This clearly shows the · constitutional mandate to ensure ind~pendence of judiciary in comparison to other organs of the State. In I contradistinction to this, a person in service of the Union or the State would be eligible to be appointed as Judge D . of the Family Court. [para 41) [447-8-D] \

4.3 In the case of H.R. Deb, this Court considered the distinction between 'judicial office' and 'judicial service' and held that expression 'judicial office' signifies more E than discharge of judicial functions. The phrase postulates that there is an office and that office is primarily judicial. The expression 'judicial office' should be construed in a manner which shall be in conformity with the constitutional scheme. in conjunction with the expression 'judicial service'. The expression 'judicial service' cannot be given a wider meaning than the meaning given to it under the Constitution itself. To expand that meaning to the extent that all services dealing with the process of determination G of disputes should be included, would be tantamount to introducing words which have not been used by the Constitution. Such approach may not be possible and in any case would not serve the constitutional ends 'Judicial office' may be read F H 408 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C R. A stated in Articles 217(2)(a), 233 and 234 of the Constitution. [para 41-43) [447-F-G; 449-A-D] Shri Kumar Padma Prasad v. Union of India 1992 (2) SCR 109 = (1992) 2 sec 428 - relied on. C B · 4.4 It is an established practice that for elevation to the High Court, normally, the members of the Higher Judicial Services are considered on the basis of merit cum-seniority. Keeping in view the limited exposure that is available to the Presiding Officers of the Family Court, it may not be feasible to hold that such officers are holding a 'judicial office' in terms of Article 217(2)(a) and are eligible for consideration for elevation to the High Court. The scheme of Chapter V of Part VI of the Constitution has its own effect on the meaning of the D expressions 'judicial office' as well as 'judicial service'. The Judges are not employees of the State. As members of the judiciary, they exercise sovereign judicial powers of the State. Functions of tribunals are, primarily, quasi judicial and in the realm of civil jurisprudence alone. Such tribunals or bodies exercise a very limited jurisdiction. It will not be appropriate to treat them as an inextrical part of State judicial services or call them Courts as understood in the Constitution, [para 43) [449-C-G] E

4.5 In the case of Labour Law Practitioners' F Association, this Court reiterated that 'judicial office' under Article 217(2)(a) must be interpreted in consonance with the scheme of Chapter V and Chapter VI of Part VI of the Constitution. So construed, it means a 'judicial office' which belongs to the judicial services as defined G under Article 236(b) of the Constitution. The constitutional scheme is clear that independence of the judiciary is the basic feature of the Constitution. Our Constitution, unlike the Australian Constitution in which there is rigid separation of powers, does not provide that judicial H S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY 409 powers can be conferred only on the Courts properly so A called. This being the underlining feature of the constitutional provisions, it would not be in conformity with the constitutional mandate to designate every institution, determining disputes of civil nature, a 'Court' or the person presiding over such institution as holding B a 'judicial office'. [para 43) [450-B-F] State of Maharashtra v. Labour Law Practitioners' Association 1998 (1) SCR 793 = (1998) 2 SCC 688 - referred to. c

4.6 Therefore, the Principal and other Judges of the Family Court may be 'Judges' presiding over such courts in its 'generic sense' but stricto sensu are neither Members/integral part of the 'Judicial Services' of the State of Maharashtra as defined under Article 236 nor do D they hold a 'judicial office' as contemplated under Article 217 of the Constitution. Thus, they do not have any jus legitimum to be considered for elevation to the High Court. [para 44) [450-G-H; 451-A-B] Case Law Reference: 2002 (2) SCR 712 relied on 1982 ( 1 ) SCR 665 referred to (1998) 4 sec 598 referred to 1962 SCR 339 (1857) 5 W.R.523 referred to 1998 (1) SCR 793 referred to AIR 1966 SC 1987 followed 1968 SCR 614 followed 1992 (2) SCR109 relied on para 5 para 5 para 5 para 8 para 17 para 25 para 29 para 30. para 41 E '·· F G H 410 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R. A CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 598 of 2008. 8 C D E F Shekhar Naphade and V.A. Mohta, H.P. Raval, ASG, Shubhangi Tuli, Vimal Chandra S. Dave, Rukmini Bobde, Nilakanta Nayak, Soumi Guha Thakurta (for P.H. Parekh & Co.), R.K. Rathore, Sliweta Verma, Harish Kumar Khinchi, Anil Katiyar and Asha Gopalan Nair for the appearing parties. The Judgment of the Court was delivered by SWATANTER KUMAR, J. 1. In the present writ petition, under Article 32 of the Constitution of India, the following simple but questions of some legal significance and consequences arise for consideration: (a) What is the scope of the expression 'judicial office' appearing in Article 217(2)(a) of the Constitution? (b) Whether a 'Family Court' has the trappings of a Court and the Family Court Judges, being the Presiding Officers of such Courts, on the claimed parity of jurisdiction and functions, would be deemed to be the members of the Higher Judicial Services of the State? (c) If answer to the above question is in affirmative, then whether Family Court Judges are eligible and entitled to be considered for elevation as Judge of the High Court in terms of Article 217 of the Constitution of India?

#2. The facts giving rise to the above questions fall in a G narrow compass and can be precisely stated as under: Though the Parliament enacted the Family Courts Act 1984 (for short, 'the Act') on 14th September, 1984, the same was given effect in the State of Maharashtra from 1st H S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.] 411 December, 1986 vide notification No. S.O. 944(E) dated 5th A December, 1986. All the petitioners are presently working as Principal Judges and Judges of Family Courts at different places i~ the State of Maharashtra. The Government of Maharashtra, in consultation with the High Court of Judicature . at Bombay, was pleased to frame Rules under Article 309 bf B the Constitution of India read with Sections 4 and 23 of the Act which are called 'Family Court (Recruitment and Service Conditions) Rules, 1990 (for brevity, referred to as 'the Rules'). Section 4 of the Act requires that appointment to the post of a Judge under the Act be made by nomination from amongst the c candidates, who satisfy the qualifications stated under sub clause (a) to (c) of sub-section (3) of this Section. The Bombay High Court issued an advertisement, which came to be published on 10th December, 1990, inviting applications for seven posts of Family Court Judge in the State .of Maharashtra. D Clause (2) of the advertisement relates to the eligibility of the candidates who could apply for the post. Clause (3) of the advertisement mentions about giving of preference to women as well as to the persons committed to the need to protect and preserve the institution of marriage and promote welfare of the E children and have experience and expertise in settlements of disputes by conciliation and counseling in appointment to these posts. The advertisement also contained the restrictions or disqualifications for selection. The candidate was to be appointed on probation for a period of two years and could be confirmed on the said post if a permanent vacancy existed and F the work of the candidate was found to be satisfactory. The candidates were subjected to an interview held by a Committee · constituted by the High Court and selected candidates were appointed as Judges of the Family Court where after petitioner Nos.1, 2 and 4 have been appointed as Principal Judges of G the Family Court. The case of the petitioners i~ that the Judges . of the Family Court hold a 'judicial office' in the territory of India, they discharge judicial functions and, as such, are entitled to be considered for elevation to the Bench of the Bombay High Court. To elucidate this argument, it has been stated that the H 412 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R. A appointment to the post of Judge of the Family Court is made under the statutory rules. Further, the duties and responsibilities of a Judge of the Family Court are similar to that of the duties and responsibilities of a Judge of the City Civil Court. Section 8 of the Act provides for exclusion of jurisdiction s of the District Court and the City Civil Court in matters in which the jurisdiction is vested in the Family Court alone. Section 19 of the Act provides that an appeal against the order passed . by a Judge of the Family Court shall lie to the High Court. Thus, they hold a 'judicial office' as contemplated under Article 217 c of the Constitution and are at parity with functional jurisdiction, while satisfying all the trappings of a Civil Court and, as such, they should be deemed to be qualified for elevation to the High Court. However, the petitioners claimed to have understood from the practice followed by the High Court in respect of elevation to the post of a High Court Judge from service that Family Court Judges appointed under Rule 3(B) of the Rules are not considered for the post of that office. 0 E June, 2003.

#3. Aggrieved by this practice, they filed a representation before the Chief Justice of the Bombay High Court on 30th In this representation, all these points were considered. The High Court, vide its letter dated 7th May, 2007, rejected the representation resulting in filing of the present writ petition. F

#4. Reply only on behalf of the High Court of Judicature at Bombay has been filed which, during the course of arguments, was adopted by the counsel appearing for the State of Maharashtra. The facts are hardly in dispute. After the representation was addressed to the Chief Justice of Bombay G High Court on 30th June, 2003, the petitioners had also filed writ petition No.3726 of 2005 praying for a direction to decide the said representation which was disposed of by a Bench of the Bombay High Court by passing the order dated 20th October, 2005 which reads as under: H S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.] 413 "P.C.: A Heard learned counsel for the Petitioners and the learned Assistant Government Pleader for the Respondents. Rule. Learned Assistant Government Pleader waives service of · Rule on behalf of the Respondents. By consent, Rule B made returnable and heard forthwith. Rule made absolute in terms of prayer (b) of the petition. Writ Petition is disposed of accordingly."

#5. Thereafter, the matter was placed before the competent C authorities for consideration. It has been stated in the reply that pursuant to the recommendations on unification of cadres of judicial officers in India made by the Shetty Commission, which was accepted by this Court in the case of All India Judges Association v. Union of India [(2002) 4 SCC 247] with some D amendments, the issue of unification and integration of the cadres of judicial officers in Maharashtra was considered by a Committee constituted by the High Court: The Committee submitted its report on 24th August, 2002, which was later accepted by the Full Court. It was expressly stated therein that E the category of Family Court Judges has to be kept out of the process of integration and only benefits of pay-scales are to be extended to them. Though we may not attach any weightage to this decision of the Bombay High Court, one very material fact that cannot be ignored by the Court is that in the recommendations made by Shetty Comm'lssion, which were accepted with some modifications by this Court, as already stated, in the case of All India Judges Association (supra) (para 37), the merger of cadre of Family Court Judges in the general cadre of Judicial Services was never recommended. They were not treated as part.of the regular cadre and, rightly G so, were granted limited benefit (with regard to pay scale). Correctness of the decision of the Bombay High Court and/or for that matter of the recommendation of the Shetty Commission was never questioned by the petitioners. The Shetty Commission had itself relied upon two judgments of this Court, H F 414 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.