Dayaram Asanand Gursahani Vs. State of
Maharashtra & Ors [1984] INSC 42 (22 February 1984)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) REDDY, O. CHINNAPPA (J) MISRA, R.B. (J)
CITATION: 1984 AIR 850 1984 SCR (2) 703 1984
SCC (3) 36 1984 SCALE (1)316
ACT:
Bombay Judicial Service Recruitment Rules
1956, Sub clause (b) of clause (i) of Sub rule (2) of Rule 5, scope
of-Seniority-For the purposes of seniority in the cadre of District Judges,
whether the period during which one had worked as an Assistant Judge could be
reckoned-Right to be posted as an Inspecting Judge and Entitlement to the
salary and allowances in the selection grade-Selection Grade, whether a
separate grade.
HEADNOTE:
The judicial service of the State of
Maharashtra consists of two branches namely, (i) the Junior Branch and (ii) the
Senior Branch, The Junior Branch consists of the following Class I Officers-(i)
Judges of the Small Causes Courts at places other than Bombay, (ii) Civil
Judges (Senior Division), (iii) Judges of the Small Causes Courts at Bombay and
Metropolitan Magistrates and (iv) Civil Judges (Junior Division) and Judicial
Magistrates of the First Class. The Senior Branch consists of (i) District
Judges, (ii) the Principal Judge and Judges of Bombay City Civil Court, (iii)
the Chief Judge and the Addl. Chief Judge of the Small Causes Court, Bombay
(iv) the Chief Presidency Magistrate and the Additional Chief Presidency
Magistrate, Bombay, and (v) the Assistant Judges. There is no separate cadre of
selection grade District Judges or of Inspecting District Judges referred to in
the Rules which are framed under the proviso to Article 309 of the
Constitution. The scale of pay of District Judges prior to July 1, 1962 was Rs.
900-50-1000-60-1600-50-1800.
On the recommendation of the High Court, the
State Government passed two resolutions one on 21-10-1963 and another on July
20, 1974 sanctioning one post under the former with effect from 1-7-62 and five
posts under the latter with effect from 1st August 1974 of District Judges in the
Selection Grade of Rs. 900-100-2000, which is specifically stated to be a part
of the pay scale of Rs. 900-1800 applicable to the cadre of District Judges.
Consequent upon the revision of Pay scales
704 of officers of the cadre of the Indian Administrative Service the State
Government modified the pay scale of the selection grade District Judges with
effect from January, 1, 1973 by the resolution dated August 21, 1975 revising
the Selection Grade Pay scale to one of 2000-125-2250. By its earlier Resolution
dated 23-9-1969, the Government also sanctioned five temporary posts of
District Judges in the same scale of Rs. 900-1800 for inspection of subordinate
Courts and tackling the problem of corruption. The High Court had laid down
certain guidelines for posting a District Judge as an Inspecting District Judge
and they are (i) that the District Judge should have put in at least three
years as District Judge and should have worked as such in any of the districts,
(ii) that his administrative capacity should be relatively high and (iii) that
he should have a reasonable length of service ahead of him as a District Judge
till his retirement.
The appellant was enrolled as an Advocate on
December 14, 1951. In response to the Notification inviting applications for
the purpose of recruiting member of the Bar directly as District Judges under
Rule 5(2) (1) (b) of the Rules, the appellant applied for one of the posts and
was also successful in getting selected and appointed as an Assistant Judge by
notification issued on 2-1-1967. On February 19, 1973, the appellant was
appointed to officiate in the cadre of District Judges and later confirmed as a
District Judge with effect from August, 1, 1975. The seniority of the appellant
was fixed on the basis of his actual appointment as District Judge in April
1973.
The appellant filed a writ petition under
Article 226 of the constitution contending: (1) that he was entitled to reckon
for purposes of his seniority in the cadre of District Judges the period during
which he worked as an Assistant Judge in accordance with the proviso to sub
clauses (b) of clause (i) of sub rule (2) of Rule 5 of the Bombay Judicial
Recruitment Rules, 1956, and (ii) that he was entitled to get the salary and
allowances in the Selection grade scale or to be posted as an Inspecting Judge.
Both the contentions were negatived by the High Court and hence the appeal by
special leave of the Court.
Allowing the appeal in part, the Court,
HELD 1. Due to laches and absence of
satisfactory explanation for the delay of nearly nine years, the question of
the correctness of the seniority assigned to the petitioner appellant in the
year 1973 cannot be looked into.
[708 F] 2.1. The appellant is entitled to the
pay in the selection grade pay scale from 'the date on which the immediate
Junior (seniority being counted on the length of 705 continuous officiation in
the cadre of District Judges) commenced to draw salary in the selection grade
pay scale.
He is also entitled to all other
consequential relief flowing therefrom. [718 C-D] 2.2. The two Resolutions of
the Government sanctioning six posts of selection grade District Judges did not
indicate that there was any process of promotion by selection or otherwise from
the cadre of District Judges to the cadre of selection grade District Judges
involved while sanctioning the selection grade pay scale. There was no question
of even crossing the efficiency bar. The said selection grade scale was
sanctioned only to mitigate the hardship caused by stagnation at the highest
level of the original pay scale i.e. Rs. 1800. It was just a time scale and an
extension or projection of the pay-scale of Rs. 900- 1800 applicable to the
cadre of District Judges but confined to six persons in all. The sanctioning of
selection grade pay scale for District Judges has nothing to do with the
creation of the posts of Inspecting District Judges either.
The true legal position is that the first six
persons in the seniority list of judges based on the length of continuous
officiation in the cadre of District Judges can only be recipients of salary in
the selection grade pay scale, there being only six such selection grade
sanctioned. [710 G-H, 711 A-B] 2.3. When it is held that the selection grade
District Judges do not constitute a separate cadre, the High Court cannot in
exercise of its general powers of control under Article 235 of the Constitution
withhold the increment beyond Rs. 1800 in the selection grade pay scale unless
there is a rule or an executive instruction which authorises it to do so. The
selection grade post is not a post to which promotion has to be made nor is
there any efficiency bar rule attached to it. Further it is not shown that the
Governor had issued any executive instructions, enabling the High Court to
withheld increments in the extended pay scale which is in this case called as
election grade pay scale.
The pay scale to which a judicial officer is
entitled is a condition of service which can be regulated by a statute or rules
made under the proviso to Article 309 or by executive instructions issued under
Article 162 of the Constitution.
It cannot come within the range of the
expression 'control' in Article 235 of the Constitution. It is only where there
is such a law, rule or executive instruction, the High Court may act under
Article 235 of the Constitution to sanction it or to refuse to sanction it.
[717 C-F] In the present case the mere nomenclature given to the extended pay
scale as the selection grade pay scale does not lead to the inference that
there is an element of selection involved in sanctioning it. In the
circumstances it should be treated as just an extended pay scale which forms
part of the pay scale of Rs. 900-1800 as clarified in the two Government orders
sanctioning the selection grade posts. The refusal on the part of the High
Court to Sanction the selection grade pay scale to the 706 appellant when it
became due automatically on the ground that he was not found fit to be
sanctioned that scale of pay is erroneous. [717 G-H 718 A] Sant Ram Sharma v. State
of Rajasthan & Anr. [1968] 1 S.C.R. 111; Lalit Mohan Deb & others v.
Union of India & Others AIR 1972 SC 951 B.S. Yadav & Others etc. v.
State of Haryana & others etc. [1981] I S.C.R. 1024 referred to.
3.1. The High Court had not created any new
cadre of Inspecting District Judges and that it was only for the purpose of
facilitating a brief and easy reference to such officers as were doing
inspection work under a scheme evolved by the High Court for maintaining the
efficiency of the Judicial Service that they were being referred to in common
parlance as Inspecting District Judges. No rule was evolved by the High Court
to the effect that either the senior most Judges or those promoted by selection
to that cadre should be posted as Inspecting District Judges. Taking the these
guidelines together, it is possible to post any District Judge who satisfies
the three conditions as an Inspecting District Judge even though there may be
many District Judges who are senior to him and who also satisfy the above conditions.
Since admittedly the posts of Inspecting District Judges do not constitute a
separate cadre superior to the cadre of District Judges, no person posted as an
Inspecting District Judge can claim seniority over a District Judge who is not
holding such a post on that ground alone. [712 E-H] 3.2. The High Court in the
Judgment under appeal has committed an error in virtually treating the
Inspecting District Judge as equivalent to selection grade District Judges. The
creation of the posts of five Inspecting District Judges had nothing to do with
the sanctioning of selection grade pay scale for District Judges. While the
selection grade pay scale was sanctioned for six posts of District Judges by
the two Government Resolutions dated October 21, 1963 and July 20, 1974, the
five posts of Inspecting District Judges were created by the Government
Resolution dated September 23, 1969. These five posts were not posts with the
selection grade pay scale which had already been brought into force by the
Government Resolution of October 21, 1963. It could not also have been the
intention of the High Court as well as of the Government at the time of the
creation of these posts of Inspecting District Judges that the five senior-most
District and sessions Judges in the State should instead of disposing of
important judicial work be engaged in inspecting a minimum of 35 courts during
a year, in writing reports and in carrying out other administrative work which
would leave very little time to engage themselves in judicial work. That is
also clear from the guidelines laid down for the posting of an officer as an
Inspecting Judge which could be easily satisfied by younger and active members
working in the cadre of District Judges. [714 F, 715 H, 716 C-D] 3.3. The High
Court also overlooked that the specific case of the High Court being that no
separate cadre of Inspecting District Judges had been created, there 707 could
be no occasion to consider the case of the appellant or any other District
Judge for such promotion. The selection grade District Judges are only those
who draw pay in pay scale of Rs. 1800-100-2000 for which no promotion is
contemplated and that mere posting as an Inspecting District Judge by itself
does not make an officer so posed superior to other District Judges. The true
legal position is that while the first six persons in the seniority list of
District Judges based on the length of continuous officiation in the cadre of
District Judges can be recipients of salary in the selection grade pay scale,
the posts of Inspecting District Judges and of the Registrar need not
necessarily be held by them. Therefore, the question whether the appellant can
be posted as an Inspecting District Judge is within the discretion of the High
Court only. [716 F-H, 717 A-B, H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 435 of 1983.
Appeal by Special leave from the Judgment and
Order dated the 30th July, 1982 of the Bombay High Court in writ petition No.
63 of 1982.
Dayaram Asanand Gursahani Appellant in
person.
A. V. Sawant, M. N. Shroff, S. M. Shah and P.
Sankara Narayana for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J, The two questions urged in this appeal filed against the
judgment of the High Court of Bombay are whether the appellant is entitled to
reckon for purposes of his seniority in the cadre of District Judges the period
during which he had worked as an Assistant Judge in accordance with the proviso
to sub-clause (b) of clause (i) of sub-Rule (2) of Rule 5 of the Bombay
Judicial Service Recruitment Rules, 1956 (hereinafter referred to as 'the
Rules') and whether the appellant is entitled to get the salary and allowances
in 708 the selection grade scale or to be posted as an Inspecting Judge. Both
the contentions were negatived by the High Court in a writ petition filed under
Article 226 of the Constitution. This appeal by special leave is preferred
against the judgment of the High Court.
The appellant was enrolled as an advocate on
December 14, 1951. In response to a notification inviting applications for the
purpose of recruiting members of the Bar directly as District Judges under Rule
5 (2) (i) (b) of the Rules, the appellant made an application for considering
his case also for recruitment as a District Judge.
Ultimately five persons were selected and
appointed as Assistant Judges by notification issued on January 2, 1967 and the
appellant was one of them. All of them were first posted as Assistant Judges as
per the proviso to Rule 5 (2) (i) (b) of the Rules. On February 19, 1973, the
appellant was appointed to officiate in the cadre of District-Judges.
He was confirmed as a District Judge with
effect from August 1, 1975 as per notification No. A 1274/75 dated December
9,1975. The seniority of the appellant in the cadre of District Judges was
fixed on the basis of his actual appointment as District Judge in April, 1973.
The first contention of the appellant is that on a true construction of Rule 5
(2) (i) (b) of the Rules, he should be deemed to have entered the cadre of
District Judges when he was initially recruited as a District Judge and posted
as an Assistant Judge under the proviso to Rule 5(2) (i) (b) of the Rules. This
claim of the appellant has been rejected by the High Court. We do not propose
to consider this contention on the ground of laches as we do not find any
satisfactory explanation for the delay of nearly nine years on the part of the
appellant in questioning the correctness of the seniority assigned to him in
the year 1973.
We shall, however, confine this appeal to the
second question namely, whether the appellant is entitled to the salary and
allowances said to be payable to District Judges in the selection grade. In
order to decide the above question, it is necessary to deal with the
constitution of the Judicial Service in the State of Maharashtra. The Judicial
Service of the State of Maharashtra consists of two branches namely, (i) the
Junior Branch and (ii) the Senior Branch. The Junior Branch consists of the
following Class I Officers-(i) Judges of the Small Causes Courts at places
other than Bombay, (ii) Civil Judges (Senior Division), (iii) Judges of the
Small Causes Court at Bombay 709 and Metropolitan Magistrates and (iv) Civil
Judges (Junior Division) and Judicial Magistrates of the First Class. The
Senior Branch consists of (i) District Judges, (ii) the Principal Judge and
Judges of the Bombay City Civil Court, (iii) the Chief Judge and the Addl.
Chief Judge of the Small Causes Court, Bombay, (iv) the Chief Presidency
Magistrate and the Additional Chief Presidency Magistrate, Bombay and (v) the
Assistant Judges. The Metropolitan Magistrate, Juvenile Court, Bombay is also a
member of the Maharashtra Judicial Service. Rule 4 of the Rules provides for
the method of appointment to the post in the Junior Branch including
Metropolitan Magistrates, Juvenile Court, Bombay, Rule 5 of the Rules deals
with the method of recruitment to the Senior Branch.
Sub-rule (2) of Rule 5 of the Rules relates
to the recruitment to the cadre of District Judges and Judges of the Bombay
City Civil Court. It reads:
"5,(2) District Judges and Judges of the
Bombay City Civil Court.
(i) District Judges.-Appointments to the
posts of District Judges shall be made by the Governor- (a) in consultation
with the High Court by promotion from the members of the Junior Branch who have
ordinarily served as Assistant Judges, and (b) on the recommendation of the
High Court from members of the Bar who have practised as Advocates or Pleaders
for not less than seven years in the High Court, or Courts subordinate thereto:
Provided that persons recruited at the age of
not more than forty-five years, fifty years in the case of a person belonging
to a community recognised as backward by Government for the purposes of
recruitment shall first be appointed to 710 work as Assistant Judge for such
period as may be decided by Government on the merits of his case on the
recommendations of the High Court before he is appointed as a District Judge:
Provided further that ordinarily the
proportion of posts filled in by promotion, under clause (a) and those by
appointment from members of the Bar under clause (b) shall be 50: 50." It
may be noted here that there is no separate cadre of selection grade District
Judges or of Inspecting District Judges referred to in the Rules which are
framed under the proviso to Article 309 of the Constitution. The scale of pay
of District Judges prior to July 1, 1962 was Rs. 900-50- 1000-60-1600-50-1800.
On October 21, 1963 on the recommendation of
the High Court, the State Government passed a resolution, the relevant part of
which reads as follows:
"Resolution: Government is pleased to
sanction one post of District Judge in the Selection Grade of Rs. 1800-100-2000
in the cadre of District Judges with effect from the Ist July, 1962. As the
Selection Grade is the part of the pay scale of Rs. 900-50-1000-60-
1600-50-1800, applicable to the cadre of District Judges, an officer drawing
pay in this grade shall also be entitled to the special pay, if any, attached
to the post held by him, subject to the condition that pay plus special pay
does not exceed Rs. 2000/-." (emphasis added) The resolution set out above
only stated that one District Judge in the selection grade will draw salary in
the scale of Rs. 1800-100-2000 with effect from July 1, 1962. It also stated
that this scale was a part of the pay scale of Rs. 900-50-1000-60-1600-50-1800
applicable to the cadre of District Judges. It did not indicate that there was
any process of promotion by selection or otherwise from the cadre of District
Judges to the cadre of selection grade District Judges 711 involved while
sanctioning the selection grade pay scale.
There was no question of even crossing the
efficiency bar.
It appears that the said selection grade
scale was sanctioned only to mitigate the hardship caused by stagnation at the
highest level of the original pay scale i.e. at Rs. 1800. It was just a
time-scale and an extension or projection of the pay scale of Rs. 900-1800
applicable to the cadre of District Judges but confined to one person. The
above resolution was followed by another resolution of the State Government
dated July 20, 1974, the material part of which read as follows:
"Resolution: Government is pleased to
sanction five additional posts of District Judges in the selection grade of Rs.
1800-100-2000 in the cadre of District Judges with effect from the 1st
August, 1974.
As the Selection Grade is the part of the pay
scale of Rs. 900-50-1000-60-1600-50-1800, applicable to the cadre of District
Judges, an officer drawing pay in this grade shall also be entitled to the
special pay, if any, attached to the post held by him, subject to the
condition, that pay plus special pay does not exceed Rs. 2000." (Emphasis
added) This resolution was worded in the same manner as the earlier one but the
number of selection grade posts was increased by five. Thus there were in all
six posts of selection grade District Judges who could draw salary at the pay
scale attached to it.
Consequent upon the revision of pay scales of
officers of the cadre of the Indian Administrative Service the State Government
modified the pay scale of the selection grade District Judges with effect from
January 1, 1973 by the resolution dated August 21, 1975, the relevant part of
which reads thus:
"Resolution: Government is pleased to
direct that the revised Selection Grade I.A.S. pay scale of Rs. 2000-125/2-2250
should be made applicable to the Selection Grade District Judges with effect
from 1-1- 1973.
2. Government is also pleased to direct that
District Judges in the Selection Grade posts, should be allowed to draw special
pay, if any, attached to the post held by them, subject to the condition that
pay plus special pay does not exceed Rs. 2450/-." There was, however, no
other alteration in the conditions of service relevant to the subject of
selection grade District Judges.
In so far as the Inspecting District Judges
are concerned, it is seen that the specific case of the High Court as set out
in the affidavit of Shri Makarend Shankar Vaidya, Additional Registrar
(Inspection). High Court of Bombay is that the High Court had not created any
new cadre of Inspecting District Judges and that it was only for the purpose of
facilitating a brief and easy reference to such officers as were doing
inspection work under a scheme evolved by the High Court for maintaining the
efficiency of the Judicial service that they were being referred to in common
parlance as Inspecting District Judges. No rule was evolved by the High Court
to the effect that either the senior most Judges or those promoted by selection
to that cadre should be posted as Inspecting District Judges. It is, however,
stated by the deponent of this affidavit that the High Court had laid down
certain guidelines for posting a District Judge as an Inspecting District Judge
and they are (i) that the District Judge should have put in at least three
years as District Judge and should have worked as such in any of the
districts,(ii) that his administrative capacity should be relatively high and
(iii) that he should have a reasonable length of service ahead of him as a
District Judge till his retirement. Taking all these guidelines together, it is
possible to post any District Judge who satisfies the three conditions as an
Inspecting District Judge even though there may be many District Judges who are
senior to him and who also satisfy the above conditions. Since admittedly the
posts of Inspecting District the Judges do not constitute a separate cadre
superior to the cadre of District Judges, no person posted as an Inspecting
District Judge can claim seniority over a District Judge who is not holding
such a post on that ground alone. This is also manifest from the statement in
paragraph 52 of the counter affidavit filed on behalf of the High Court
(respondent No. 2) which reads thus:
713 "I say that it is false to say that
the respondent No. 2 has created an erroneous impression in the cadres of the
judiciary, public and litigants that District Judges appointed under the scheme
of inspection of courts are superior to other District Judges and this has
caused insecurity in the minds of District Judges." On the above question,
the High Court has observed in its judgment under appeal thus:
"Government of Maharashtra, in law and
Judiciary Department Resolution dated 23rd September, 1969 and the earlier the
Resolution dated 21st October, 1963 had sanctioned the posts of District Judges
in the Selection Grade. By the same Resolution additional posts of Joint Judges
Were also sanctioned. It appears from the affidavit filed by the respondents
that scheme for conducting the surprise inspection of the courts in the State
outside the Greater Bombay was introduced in the year 1969 with the following
objects.
"1. Prevention, detection and rooting
out the corruption from courts and their administrative offices
2. Enforcement of discipline and punctuality
among Judges and staff and generally ensuring that the allocated work both
judicial and administrative is efficiently done and delay in disposal is
eliminated.
3. Ensuring strict observance of civil and
criminal manuals.
4. Checking of registers and accounts and
ensuring that they are properly and punctually maintained, and 714
5. Ensuring the welfare of Judges and the
staff including the provision of suitable healthy and sanitary conditions in
courts, adequate housing accommodation for the Judges and the staff, and
generally towards providing conditions of service with in our
limitations." As part of this scheme Judicial officers posted as District
Judges at Pune, Thane Aurangabad, Akola and Nagpur are entrusted with the work
of surprise inspection of courts. Each of these District Judges is expected to
carry out surprise inspection work in 5 districts. He is expected to carry out
the surprise inspection of at least 35 courts in a year and submit his
inspection notes to the High Court. These inspection notes are scrutinised by
the High Court and decisions on these inspection notes are also taken by the
High Court. Regular inspection work is carried out by the District Judge
concerned. From the affidavit filed by the Additional Registrar (Inspection) of
the High Court, it is further clear that no new cadre or posts of Inspecting
District Judge are created. Though in a common paralance they are called
Inspecting District Judges they are merely District Judges doing the work of
surprise Inspection." Having held thus, the High Court committed an error
in virtually treating the Inspecting District Judges as equivalent to selection
grades District Judges as the following observations made by it in paragraph 11
of its judgment:
"As to how the District Judges are
selected for doing this inspection work is also explained by the respondents in
their affidavits. From the submission made in the affidavits it is quite clear
that guidelines have been laid down for selecting the District Judges working
under the scheme of Inspection of the Courts. While selecting a person
guidelines kept in view are (i) that the District Judges should have put in at
least 715 3 years as District Judge, and should have worked as such in any of
the districts, (2) that his administrative capacity should be relatively high
and (3) that he should have reasonably long service ahead as Judge till his
retirement. It is also clarified in the affidavit that these guidelines necessarily
imply his competence in judicial work and also his general performance. The
assessment of relatively high administrative capacity in particular implies in
the context his aptitude for inspection work, his attitudes towards the bar,
litigants, judicial officers and staff working in the inspecting courts. It is
also submitted that while assessing the eligibility of a person with reference
to these guidelines, the cases of judicial officers have been considered all
along in the order of seniority of the person in the cadre of District Judges.
Since no separate cadre is created of judicial officers who are asked to do the
work of inspection under the scheme, no separate rules are framed, but
guidelines are laid down by the High Court. Similarly guidelines are laid down
for awarding the selection grade to the District Judges and, normally all the 5
Inspecting District Judges and the Registrar are placed in the cadre of
Selection Grade District Judges unless there are compelling reasons to the
contrary. It is then stated in the affidavit of the respondents that the
petitioner's case was considered on four occasions between 1979 to 1981 for
being assigned this inspection work and for being placed in the selection grade
but he has not been found suitable." The infirmities noticeable in the
above passage are these: The High Court has failed to notice that the creation
of the posts of five Inspecting District Judges had nothing to do with the
sanctioning of selection grade pay scale for District Judges. While the selection
grade pay scale was sanctioned for six posts of District Judges by the two
Government Resolutions dated October 21, 1963 and July 20, 1974, the five posts
of Inspecting District Judges were created by the Government resolution dated
September 23.
1969. the relevant part of which read thus:
"Resolution: Government is pleased to
direct that 716 five temporary posts of District Judges in the scale of Rs.
900-50-1000-60-1600-50-1800 should be created for a period of upto the 28th
February, 1970 for inspection of subordinate courts and tackling the problem of
corruption." These five posts were not posts with the selection grade pay
scale which had already been brought into force by the Government Resolution of
October 21, 1963. It could not also have been the intention of the High Court
as well as of the Government at the time of the creation or these posts of
Inspecting District Judges that the five senior most District and Sessions
Judges in the State in should instead of disposing of important judicial work
be engaged in inspecting a minimum of 35 courts during a year, in writing
reports and in carrying out other administrative work which would leave very
little time to engage themselves in judicial work. That is also clear from the
guideline laid down for the posting of an officers as an Inspecting Judge which
could be easily satisfied by younger and active members working in the cadre of
District Judges.
The High Court also overlooked that the
specific case of the High Court being that no separate cadre of Inspecting
District Judges had been created, there could be no occasion to consider the
case of the appellant or any other District Judge for such promotion. The
observations that since no separate cadre is created of judicial officers who
are asked to do the work of inspection under the scheme, no separate rules are
framed but guidelines, are laid down by the High Court. Similarly guidelines
are laid down by for awarding the selection grade to the District Judge and
normally all the 5 Inspecting District Judges and the Registrar are placed in
the cadre of selection grade District Judges unless there are compelling
reasons to the contrary" in the above passage are again out of place. The
above conclusion would have been possible only on proof of the following facts
viz. (1) that the selection grade District Judges and the Inspecting District
Judges belong to the same cadre and (2) that they belonged to a cadre higher
than the cadre of District Judges or that there was a need for going through
the process of selection to sanction selection grade pay scale. We have already
shown that the selection grade District Judges are only those who draw pay in
pay scale of Rs. 1800-100-2000 for which no promotion 717 is contemplated and
that mere posting as an Inspecting District Judge by itself does not make an
officer so posted superior to other District Judges. The true legal position is
that while the first six persons in the seniority list of District Judges based
on the length of continuous officiation in the cadre of District Judges can be
recipients of salary in the selection grade pay scale, the posts of Inspecting
District Judges and of the Registrar need not necessarily be held by them.
When it is held that the selection grade
District Judges do not constitute a separate cadre, the High Court cannot in
exercise of its general powers of control under Article 235 of the Constitution
without the increment beyond Rs. 1800 in the selection grade pay scale unless
there is a rule or an executive instruction which authorises it to do so. As
mentioned earlier, the selection grade post is not a post to which promotion
has to be made nor is there any efficiency bar rule attached to it. Further it
is not shown that the Governor had issued any executive instructions as it had
been done in Sant Ram Sharma v. State of Rajasthan & Anr.(') and in Lalit
Mohan Deb & Ors. v. Union of India & Ors.(2) enabling the High Court to
withhold increments in the extended pay scale which is in this case called as
selection grade pay scale. The pay scale to which a judicial officer is
entitled is a condition of service which can be regulated by a statute or rules
made under the proviso to Article 309 or by executive instructions issued under
Article 162 of the Constitution. It cannot come within the range of the
expression. 'control' in Article 235 of the Constitution. (See B.S. Yadav &
Ors. etc. v. State of Haryana & Ors, etc,(3)) It is only where there is
such a law, rule or executive instruction, the High Court may act under Article
235 of the Constitution to sanction it or to refuse to sanction it. We are of
the view that in the present case the mere nomenclature given to the extended
pay scale as the selection grade pay scale does not lead to the inference that
there is an element of selection involved in sanctioning it. In the
circumstances it should be treated as just an extended pay scale which forms
part of the pay scale of Rs. 900-1800 as clarified in two Government orders
sanctioning the selection grade posts. In view of the foregoing while the
question whether the appellant can be posted as an Inspecting District Judge is
within the discretion of the High Court, the refusal on the 718 part of the
High Court to sanction the selection grade pay scale to the appellant when it
become due automatically on the ground that he was not found fit to be
sanctioned that scale of pay is erroneous. In view of what has been stated
above, we need not go into the other points raised by the appellant regarding
the above question.
In the result the judgment of the High Court
is set.
aside in so far as the question of
sanctioning of the selection grade pay scale to the appellant is concerned. It
is hereby declared that the appellant is entitled to the pay in the selection
grade pay scale from the date on which his immediate junior (seniority being
counted on the length of continuous officiation in the cadre of District
Judges) commenced to draw salary in the selection grade pay scale.
He is also entitled to all other
consequential reliefs flowing therefrom. A writ shall issue in the above terms.
The appeal is accordingly allowed in part. No
costs.
S.R. Appeal partly allowed.
Back
