S.D. Joshi & Ors.
Vs High Court of Judicature at Bombay & Ors.
JUDGMENT
Swatanter Kumar, J.
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?
The facts giving rise
to the above questions fall in a 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 December,
1986 vide notification No. S.O. 944(E) dated 5th December, 1986. All the
petitioners are presently working as Principal Judges and Judges of Family Courts
at different places in 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 of 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 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. 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 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 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 petitionerNos.1, 2 and 4 have been appointed as Principal
Judges of the Family Court. The case of the petitioners is 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 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 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 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 Rule3 (B) of the Rules
are not considered for the post of that office. Aggrieved by this practice,
they filed a representation before the Chief Justice of the Bombay High Court
on 30th June, 2003. 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.
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 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 20thOctober, 2005 which reads as under: "P.C.
: 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
made returnable and heard forthwith. Rule made absolute in terms of prayer (b)
of the petition. Writ Petition is disposed of accordingly." Thereafter,
the matter was placed before the competent 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 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 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 every material fact that cannot
be ignored by the Court is that in the recommendations made by Shetty
Commission, 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 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, i.e., State of Maharashtra v. Chandrakant Anant Kulkarni [(1981) 4 SCC
130] and S.P. Shivprasad Pipal v. Union of India [(1998) 4 SCC 598] which have
some bearing on the controversy raised in the present writ petition.
In order to consider
the representation of the petitioners and/or the persons placed like them,
another Committee was constituted. The Committee did not find merit in any of
the contentions raised in the representation and required that the matter
should be placed before the Full Court. In furtherance thereto, the matter was
placed before the Full Court on 29th April, 2007, when the following decision was
taken unanimously : "Having discussed the matter in detail, it was unanimously
resolved that the request of the Family Court Judges cannot be accepted. Registry
to inform them accordingly." On merits, it is submitted on behalf of the
respondents that it is not enough to discharge judicial functions simplicities
for a period often years to be eligible for elevation as Judge of the High
Court. Merely because an appeal lies to the High Court and they perform the
functions of a Judge under the provisions of the Act, by itself, is not
sufficient to attract the provisions of Article 217 of the Constitution. On the
contrary, on a proper reading of Article 233(2) of the Constitution, which
deals with appointment of District Judges, it is clear that Judges of the
Family Court stand excluded from the ambit of the said Article. The nature of
their functioning, transferability and conditions of service do not justify
parity with the members of the Higher Judicial Services of the State of
Maharashtra. There is no parity in true scope of functioning and performance of
duties. Thus, they pray for the dismissal of the writ petition.
Mr. Shekhar Naphade,
learned senior counsel, referred to the various provisions of the Act to
contend that the Judges of the Family Court are, primarily and in substance,
discharging the functions of a regular Civil Court and, as such, they are
holding a `judicial office' within the meaning of Article 217(1) of the
Constitution entitling them for consideration for elevation to the High Court.
He emphasized that Section 2(a) of the Act defines a `Judge' to mean the Judge,
the Principal Judge, Additional Principal Judge or other Judge of a Family
Court. `Family Court' means a Family Court established under Section 3 of the
Act. All other words and expressions, which have not been specifically defined
in the Act, will be assigned the same meaning as defined under the Code of
Civil Procedure, 1908(for short, `the Code'). While referring to Sections 3 and
4 of the Act it was pointed out that a Family Court can be established by the State
Government after consultation with the High Court and a Judge of the Family
Court can be appointed by the State Government with the concurrence of the High
Court alone. Section 8 deals with exclusion of jurisdiction of Civil Court in
regard to the matters over which the Family Court has jurisdiction. Section 9
refers to the duty of the Family Court to make efforts for settlement. Section
10 makes the provisions of the Code applicable to the proceedings before the Family
Court. Evidence is to be led before the Family Court, oral or by affidavit, as
may be directed. Section 17 of the Act requires the Family Court to record
reasons and make decisions on all points by a written judgment which is
executable as a decree or order of the Court in terms of Section 18. Section 19
provides that appeals shall lie to the High Court against the judgment or order
of the Family Court. On the cumulative reading of these provisions, the argument
advanced was that it satisfies all the essentials of a Court, that is, it has
been created by the law of the land and performing the functions of
determination which is binding. It has the trappings of a Court and lastly has
the power to execute its orders as decree or order under the civil law. Thus,
the Presiding Officer of such Family Courts would be deemed to be holding
judicial office at parity with the members of the Judicial Services of the
State. Reliance in this regard was placed by the counsel on Harinagar Sugar
Mills Ltd. v. Shyam Sunder Jhunjhunwala [AIR 1961 SC 1669].
It, certainly, would
not matter that the representation of the petitioners was rejected by different
Committees or even by the Full Court of the Bombay High Court. What this Court
has to examine dehorns such decisions or opinions expressed, is whether upon true
interpretation and meaning of the expression `judicial office', the petitioners
can be treated at parity with or be included as Judicial Officers belonging to
the Higher Judicial Services of the State of Maharashtra holding a `judicial
office'. In order to examine this issue, we may, while keeping in mind the above
stated provisions of the Act, also refer to the advertisement issued by the
High Court. The applications were invited for seven posts of the Judges of the
Family Court for Bombay, Pune, Nagpur and Aurangabad in the specified
pay-scale. We will only refer to certain relevant clauses of the advertisement
rather than reproducing the same in entirety:
"2. To be
eligible, a candidate must be a person who - 12(a) has for at least seven
years held a judicial office in India or the office of a Member of a Tribunal
or any post under the Union or a State requiring special knowledge of law;
or(b) has for at least seven years been a practicing Advocate in the High Court
of Bombay or its branches including one at Panaji or in the Courts subordinate
thereto; or(c) (1) is a Post Graduate in law with specialization in Personal Laws;
or (2) has post Graduate degree in Social Science such as Master of Social Welfare,
Sociology, Psychology/Philosophy with a degree in Law and - (i) has at least
seven years experience in field work/research or of teaching in a Government Department
or in a College/University or a comparable academic institute with special
reference to problem of women and children; or (ii) has seven years experience in
the examination and/or application of Central/State Laws relating to marriage
divorce maintenance, guardianship, adoption and other family disputes;
and(d) is not less than 35 years of age as on 1st December, 1990.3. In
selecting persons for appointment as Judges of the Family Courts - (i) preference
will be given to women. (ii) preference will also be given to persons
committed to the need to protect and preserve the institution of marriage and
to promote the welfare of children and qualified by reason of their experience
and expertise in the settlement of disputes by conciliation and counseling.4. A
candidate must submit with his/her application copies of certificates showing
- i his/her age as on 1st December,
1990. ii his/her
standing as Practitioner in Court. iii That he/she is of good moral character.
iv That he/she is certified to have sufficient knowledge of Marathi to enable
him/her to speak, write and translate with facility into English and vice-versa.
v Other certificates in support of the claim to have one or the other
qualifications referred to above. 14vi A candidate should express his/her
concept of a Family Court in not more than 200 words on a separate sheet of
paper to be annexed to the application.vii (a) In case the candidate is a practicing
Advocate, two separate recommendations from Advocates designated as Senior
Advocate or from practicing Advocates having more than 20 years standing at the
Bar. (b) In case the candidate is in judicial service then two separate recommendations
from judicial officers not below the rank of District Judge. (c) In respect of
all other candidates two separate recommendations from authorities under whom
the candidate is working, including the Head of the Institution in which the
candidate is working. The persons recommending must certify that the candidate
is suitable for appointment as Judge of the Family Court. The recommendations
should be sent directly under sealed cover by the recommendations authority to
the Registrar, High Court, Bombay and marked "confidential- Family Court',
so as to reach on or before 21st January, 1991. 155. A candidate belonging to a
Backward Class must also produce a certificate to the effect that he/she
belongs to a community recognized as Backward for the purpose of recruitment to
service under the Government of Maharashtra.6. Certificates under 4(i) and 5
may be signed by the District Magistrate. Certificate under 4(ii) may be signed
in the case of the High Court by the Prothonotary and Senior Master, High Court,
Original Side, or the Registrar, High Court, Appellate Side, Bombay and the
Additional Registrars of the High Court Benches at Nagpur, Aurangabad and the
Special Officer, Panaji Bench (Goa) as the case may be or in case of Courts
other than High Court, in Bombay by the Principal Judge, City Civil and
Sessions Court, Greater Bombay, the Chief Judge, Court of Small Causes, Bombay
and the Chief Metropolitan Magistrate, Bombay as the case may be, and in the
case of other subordinate Courts in the State by the District Judges or by the
Principal Judge of the Court in which the candidate has practiced, and should
state the period during which the candidate has actually practiced. Certificate
mentioned in 4(iii) may be signed by an Officer of the rank of Gazetted Class-I
under the State of Maharashtra or Goa. Certificate mentioned in 4(iv) may be
signed by the Presiding Officers of the Courts in which the candidate is
practicing or by a Principal of a College recognized by a University.
Certificate mentioned in 4(v) may be signed by the competent 16 authority
concerned.7. No male candidate who has more than one wife living shall be
eligible for appointment to service under the State of Maharashtra unless
Government, after being satisfied that there are special grounds for doing so,
exempts any persons, subject to the provision of any law in force from the
operation of this restriction. No female candidate who has married a person
having already a wife living shall be eligible for appointment to service under
the Government of Maharashtra unless Government after being satisfied that
there are special grounds for doing so, exempts her from the operation of this
restriction.8. The selected candidates will be placed by the Government, previous
to their appointment before a medical board and will not be appointed unless
the board certifies them to be both mentally and physically fit for the service
under Government. They will be required to pass an examination in Hindi
according to the prescribed rules.9. At the time of appointment, the selected candidates
will have to give an undertaking that for a period of two years from the date
on which they cease to be in service, they will not practice in any Court over
which they had presided.10. A candidate if selected will first be appointed on
probation for a period of 17
two years and if
his/her work is not found satisfactory, the period of probation may be extended
by the High Court for such further period as it may deem fit. On the expiry of
such period he/she may be confirmed, if - (i) there is a permanent vacancy;
and (ii) his/her work is found satisfactory. During the period of probation
and thereafter until expressly confirmed by a written order, the services of an
appointee shall be terminable by one month's notice on either side without any
reason being assigned there for or by payment of salary for the period of notice
or the unexpired portion thereof."
The candidates had
submitted their applications in furtherance to this advertisement which itself
was issued in terms of the Rules. It is implicit that the advertisement has to
be in consonance with Rules, Rules have to be in comity to the provisions of
the Act and, in turn, the Act has to be within the constitutional framework. Thus,
all other laws, essentially, should fall in conformity with the constitutional
mandate contained in Articles 217 and 233 of the Constitution which are
relevant for the purpose of the present case. Bare reading of the
advertisement clearly shows that different class of persons were eligible to
apply for the post in question.
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 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 Master of Social Welfare, Sociology, Psychology with a degree in law and
have seven years experience in the field of research or teaching in a Government
Department or a College or University. All the persons belonging to these
different classes were eligible to be appointed to the post of a Family Court
Judge and preference was to be given to women in the matter of such
appointments. The eligibility criteria, as stated in the advertisement,
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 to one
of the above mentioned classes and they, having been found suitable, were
selected/appointed to
the posts in question by the appropriate authority constituted by the
Government in consultation with the High Court. Whether the `Family Courts'
established under the Act are Courts for all intents and purposes generally or
otherwise. First and foremost question that we need to examine is whether the
Family Courts established under Section 3 of the Act is a Court in general and
under the provisions of the Code of Civil Procedure in particular? It is
already noticed that the `Family Court' has been defined under Section 2(d) of
the Act as a Family Court established under Section 3 of the Act. In terms of
Section 3, the Family Court can be established for every area in the State,
comprising city or town, whose population exceeds one million, by the State Government
in consultation with the High Court. The `Judge' of the Family Court is to be
appointed by the State Government with the concurrence of the High Court. Under
Section 4(4), the Act contemplates that every Endeavour shall be made to ensure
that persons committed to the need to protect and preserve the institution of
marriage and to promote the welfare of children and qualified by reason of
their experience in such field and women shall be given preference in
appointment as Judges of the Family Courts. These Family Courts are to exercise
special jurisdiction which is limited to the subject matters spelt out under
Section 7(1)(a) and (b) of the Act. Family Courts have been vested with all
jurisdiction exercisable by any District Court or any Subordinate Civil Court
under the law, for the time being in force, in respect of suits and proceedings
of the nature referred to in the Explanation of sub-section (1) of Section
7.Such Courts will be deemed, for the purposes of exercising such jurisdiction
under such law, to be a District Court or, as the case maybe, such Subordinate
Civil Court for the area to which the jurisdiction of the Family Court extends.
The explanation to sub-section (1) of Section 7 states as to what kind of
jurisdiction is exercisable by such Court. The explanation reads thus :
"Explanation.--The
suits and proceedings referred to in this sub-section are suits and proceedings
of the following nature, namely:-- (a) suit or proceeding between the parties to
a marriage for a decree of nullity of marriage (declaring the marriage to be null
and void or, as the case may be, annulling the marriage) or restitution of conjugal
rights or judicial separation or dissolution of marriage; 21 (b) a suit or
proceeding for a declaration as to the validity of a marriage or as to the matrimonial
status of any person; (c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of either of them; (d)
a suit or proceeding for an order or injunction in circumstance arising out of
a marital relationship; (e) a suit or proceeding for a declaration as to the
legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a
suit or proceeding in relation to the guardianship of the person or the custody
of, or access to, any minor." Section 8 further states that no District
Court or any subordinate Civil Court will have jurisdiction over the matters which
have been specifically spelt out under sub-section (1) of Section 7 of the Act
in relation to the area over which, it exercises jurisdiction. It also excludes
jurisdiction of the Magistrate, in relation to such area over which the Family
Court exercises jurisdiction under Chapter IX of the Code of Criminal
Procedure, 1973. Every pending suit or proceeding of the nature referred to in
the Explanation to sub-section(1) of Section 7 of the Act, as well as every
proceeding under Chapter IX of the Code of Criminal Procedure, 1973 was liable
to be transferred to such Family Court. Section 10 requires the Court to follow
the procedure and powers available to the Civil Court under the provisions of Code
of Civil Procedure, 1908 as well as that available to a Magistrate under
Chapter IX of the Code of Criminal Procedure, 1973. Besides making such
provisions applicable to the Family Court, sub-section (3) of Section 10
further vests large powers in the Family Court to lay down its own procedure
with a view to arrive at a settlement in respect of the subject matter of the
suit or proceedings. Such Court has further been empowered to take evidence in
accordance with the prescribed procedure and apply the provisions of the
Evidence Act to record oral and/or evidence by way of affidavits. It has been
vested specifically with the power to examine the truth or otherwise of the
allegations made by one party and denied by another. After the evidence is
complete, the judgment of a Family Court is required to contain a concise
statement of the case, the points for determination, the decision thereto and
reasons for such decision. For the purpose of execution of the decree and order
of the Family Court, the provisions of the Code of Civil Procedure as well as
Chapter IX of the Code of Criminal Procedure
have been made
applicable to ensure that these orders are given effect to in the same manner
as a decree and/or order of the Court of competent jurisdiction under the civil
and criminal law. Further, the process of appeal is specifically provided under
the Act. Every judgment and order, not being an interlocutory order, passed by
the Family Court, is appealable to the High Court both on facts and in-law,
which has to be disposed of by the High Court in accordance with the procedure
stated under Section 19 of the Act. This Act shall have the effect
notwithstanding anything inconsistent therewith contained in any other law for
the time being in force.
Various provisions
of this Act, therefore, clearly demonstrate that the Family Court, a creature
of statute, has been vested with power to adjudicate and determine the disputes
between the parties which fall within the scope and ambit of Explanation to
Section 7(1)of the Act. The persons, who are appointed as Judge of the Family
Court, perform all duties and functions which are akin to the functions being
performed by the Presiding Officer of a Civil or a Criminal Court, though to a
very limited extent. The expression `Judge' under Section 2(a) of the Act means
the Principal Judge, Additional Principal Judge or other Judge of a Family
Court. The Presiding Judges of the Family Courts perform all the different statutory
functions as are spelt out above and decide the cases in accordance with the
provisions of the Act. It may be noticed that the primary object and duty of
the Family Court Judges is to Endeavour and persuade the parties in arriving at
a settlement in respect of the suitor proceedings, in which it may follow such
procedure, as it may deem fit.
This question need
not detain us any further, as the law in this regard is no more res Integra and
stands finally stated by constitution Bench of this Court in the case of Hari nagar
Sugar Mills Ltd. (supra). Justice Hidayatullah, as His Lordship then was, while
giving his own reasons concurred with other Judges in allowing the appeal
setting aside the order of the Central Government. While commenting upon the
maintainability of the appeals, he drew a distinction between a `Court' and a
`Tribunal' and dealt with the question as to whether the Central Government,
while hearing this appeal, was a Tribunal and held as under:-
"31. With the
growth of civilization and the problems of modern life, a large number of Administrative
Tribunals have come into existence. These tribunals have the authority of law
to pronounce upon valuable rights; they act in a judicial manner and even on
evidence onoath, but they are not part of the ordinary courts of civil
judicature. They share the exercise of the judicial power of the State, but
they are brought into existence to implement some administrative policy or to determine
controversies arising out of some administrative law. They are very similar to
courts, but are not courts. When the Constitution speaks of “courts" in
Article 136, 227 or 228 or in Articles233 to 237 or in the Lists, it contemplates
courts of civil judicature but not tribunals other than such courts. This is
the reason for using both the expressions in Articles 136 and 227.By
"courts" is meant courts of civil judicature and by
"tribunals", those bodies of men who are appointed to decide
controversies arising under certain special laws. Among the powers of the State
is included the power to decide such controversies. This is undoubtedly one of the
attributes of the State, and is aptly called the judicial power of the State.
In the exercise of this power, a clear division is thus noticeable. Broadly
speaking, certain special matters go before tribunals, and the residue goes before
the ordinary courts of civil judicature. Their procedures may differ, but the
functions are not essentially different. What distinguishes them has never been
successfully established. Lord Stamp said that the real distinction is that
courts have "an air of detachment". But this is more a matter of age
and tradition and is not of the essence. Many tribunals, in recent years, have
acquitted themselves so well and with such detachment as to make this test
insufficient. Lord Sankey, L.C. in ShellCompany of Australia v. Federal Commissioner
of Taxation observed: 26 "The authorities are clear to show that there
are tribunals with many of the trappings of a court, which, nevertheless, are
not courts in the strict sense of exercising judicial power.... In that connection
it may be useful to enumerate some negative propositions on this subject: 1. A
tribunal is not necessarily a court in this strict sense because it gives a
final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two
or more contending parties appear before it between whom it has to decide. 4.
Nor because it gives decisions which affect the rights of subjects. 5. Nor
because there is an appeal to a court. 6. Nor because it is a body to which a
matter is referred by another body. See Rex v. Electricity
Commissioners"32. In my opinion, a court in the strict sense is a tribunal
which is a part of the ordinary hierarchy of courts of civil judicature
maintained by the State under its constitution to exercise the judicial power
of the State. These courts perform all the judicial functions of the State
except those that are excluded by law from their jurisdiction. The word
"judicial", be it noted, is itself capable of two meanings. They were
admirably stated by Lopes, L.J. in Royal Aquarium and summer and Winter Garden Society
v. Parkinson in these words: "The word `judicial' has two meanings. It may
refer to the discharge of duties exercisable by a Judge or by Justices in court,
or to administrative duties which need not be performed in court, but in respect
of which it is necessary to bring to bear a judicial mind -- that is, a mind 27
to determine what is fair and just in respect of the matters under consideration."That
an officer is required to decide matters before him "judicially" in
the second sense does not make him a court or even a tribunal, because that
only establishes that he is following a standard of conduct, and is free from
bias or interest. XXX XXX XXX Now, in its functions the Government often
reaches decisions, but all decisions of the Government cannot be regarded as
those of a tribunal. Resolutions of the Government may affect rights of
parties, and yet, they may not be in the exercise of the judicial power Resolutions
of the Government may be amenable to writs under Articles 32 and 226
inappropriate cases, but may not be subject to a direct appeal under Article
136 as the decisions of a tribunal. The position, however, changes when
Government embarks upon curia functions, and proceeds to exercise judicial power
and decide disputes. In those circumstances, it is legitimate to regard the
officer who deals with the matter and even Government itself as a tribunal. The
officer who decides, may even be anonymous; but the decision is one of a
tribunal, whether expressed in his name or in the name of the Central
Government. The word "tribunal" is a word of wide import, and the
words "court" and “tribunal" embrace within them the exercise of
judicial power in all its forms. The decision ofthe Government thus falls
within the powers of this Court under Article 136." 28
It was held that all
tribunals are not Courts though all Courts are tribunals. This view has been
reiterated by this Court, more particularly, in relation to drawing a
distinction between a tribunal and a Court. A tribunal may be termed as a
Court if it has all the trappings of a Court and satisfies the above stated parameters.
Every Court may be a tribunal but every tribunal necessarily may not be a
Court. The essential features of `Court' have been noticed by us above and once
these essential features are satisfied, then it will have to be termed as a
`Court'. The statutory provisions of the Family Court squarely satisfy these
ingredients and further Presiding Officers of Family Courts are performing
judicial and determinative functions and, as such, are Judges.
`Judge' is a generic
term and other terms like, Umpire, Arbiter and Arbitrator are only species of
this term. A Judge, primarily, determines all matters of disputes and
pronounces what is law now, as well as what will be the law for the future and
acts under the appointment of the Government. Pollock C.B. in Ex parte
Davis[(1857) 5 W.R.523] said, "judges are philologists of the highest orders.
They are not mere administrative officers of the Government but represent the
State to administer justice." Thus, we have no hesitation in coming to the
conclusion that the Family Court constituted under Section 3 of the Act has all
the trappings of a Court and, thus, is a court and the Presiding Officer, that
is, Judge of the Family Court is a `Judge' though of limited jurisdiction. Whether
Petitioners can be treated as part of the `Judicial
Services' of the
State of Maharashtra?
In exercise of the
powers conferred by Articles 233, 234 and proviso to Article 309 of the
Constitution of India read with Article235, 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 Recruitment Rules,
2008' (for short, `the Rules of 2008'). These Rules repealed the Rules known as
the Bombay Judicial Services Recruitment Rules, 1956. The District Judges in
Bombay were earlier being appointed under the Bombay Civil Courts Act, 1869. At
the time of unification of cadres, as we have noticed above, them after 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 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. This decision had never been questioned by any person.After
coming into force of the Rules of 2008, appointments were made to the State
Judicial Services including the Higher Judicial Services strictly in accordance
with these Rules. Rule 2 defines `Service' to mean the Maharashtra Judicial
Service. Rule 3 of the Rules of 2008 states that there shall be constituted a
State Service, known as Maharashtra State Judicial Services and such services
shall be deemed to have been constituted with effect from the 1st day of July
1996. Rule 3(2) states that the services shall consist of the cadres specified
in column 2 of the 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. Rule 3(3) provided for that table.
The said Table `A' reads as under: 1 2
(a) District Judges
(i) District Judges;
(ii) Additional
District Judges Principal Judge, Additional Principal Judge and
Judges of City Civil
and Sessions Court, Mumbai. Chief Judge and Additional Chief Judges of Court
of Small Causes.
(b) Senior Civil
Judges
(i) Chief
Metropolitan Magistrate;
(ii) Additional
Chief Metropolitan Magistrates;
(iii) Judges of
Court of Small Causes and Metropolitan Magistrates;
(iv) Civil Judges,
Senior Division.
(c) Civil Judge, (i)
Civil Judge, Junior Division.
Junior Division Rule
5 provides for the method of recruitment, qualification and age limit in
relation to different posts including the post of District Judge. 50% of the
posts shall be filled by promotion from the cadre of Senior Civil Judges on the
basis of the principle of merit-cum-seniority and passing of a suitability
test. To be eligible for this 50%,the candidate must have been in the cadre of
Senior Civil Judge after successful completion of the officiating period. Further,
he must have been officiating as a Senior Civil Judge for five years at
least.25% of the posts shall be filled by promotion strictly on the basis of
merit through limited competitive examination from amongst the Senior Civil
Judges and remaining 25% of the posts shall be filled up by nomination from
amongst the eligible persons practicing as Advocates on the basis of a written
examination and viva-voce test conducted by the High Court. To be eligible for
nomination, a personshould have been an advocate or a Government Pleader or
Public Prosecutor for not less than seven years on the date of publication of the
advertisement. The written examination was to carry 200 marks while the
viva-voce test was to carry 50 marks. A candidate should secure not less than
50% of the marks in each paper in written examination to qualify for viva-voce
and only the candidates, who obtain a minimum of 40% marks in the viva-voce,
shall be entitled for selection.
A bare reading of
the above provisions clearly show that a person to be entitled to promotion as
District Judge has to be a member of the cadre of Senior Civil Judge. 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 written examination as well as the viva-voce test, as per the
Rules. In other words, 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 to be strictly construed and must be
made in accordance with the provisions stated in 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 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 earlier or even in the present petition. In order
to accept the contention of the petitioners that they are part of the Judicial
Services of the State of Maharashtra, the Court will have to read into Rule 3
(Table A), the expression `Family Court Judges'. Once the legislature has
framed the Rules and kept out the Principal or other 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
parity, which we shall shortly deal with in some detail.
Now, we may refer to
relevant Articles of the Constitution. Primarily, under Article 233(1),
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
considered. The same reads as under :
"A person not
already in the service of the Union or of the State shall only be eligible to be
appointed a district judge if he has been for not less than seven years an
advocate or a pleader and is recommended by the High Court for
appointment." On fulfilling the above criteria alone, the candidate can be
appointed to the `judicial office' in accordance with the stated procedure.
Article 236 explains the expression `District Judge' as well as `Judicial
Service' for the purposes of Chapter VI which reads as under:
"236.
Interpretation-- In this Chapter : (a) the expression "district
judge" includes judge of a city civil court, additional district judge,
joint district judge, assistant district judge, chief judge of a small cause
court, chief presidency magistrate, additional chief presidency magistrate,
sessions judge, additional sessions judge and assistant sessions judge; (b)
the expression "judicial service" means a service consisting exclusively
of persons intended to fill the post of district judge and other civil judicial
posts inferior to the post of district judge." 35
A bare reading of
the above Article 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 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 a Family Court Judge as they are neither persons eligible to fill up
the post of District Judge nor are they holding civil judicial posts inferior
to the post of District Judge.
The learned counsel,
appearing for the petitioners, heavily relied upon the judgment of this Court
in the case of State of Maharashtra v. Labour Law Practitioners' Association
[(1998) 2 SCC688] to contend that the expression `judicial services' should be
given a wider meaning and since the petitioners are performing judicial functions
by presiding over the Family Court as Judges, they should be treated as part of
the Judicial Services of the State of Maharashtra. He placed reliance upon the
following paragraphs of the judgment :
"11. Under
Article 236(b), the expression "judicial service" is defined to mean
"a service 36consisting exclusively of persons intended to fill the post
of District Judge and other civil judicial posts inferior to the post of
District Judge". Judicial service thus postulates a hierarchy of courts
with the District Judge asthe head and other judicial officers under him discharging
only judicial functions.12. In the case of Chandra Mohan v. State of U.P. this
Court was required to consider the question of eligibility of "judicial
officers" for appointment as District Judges under Article233 of the
Constitution. Under the U.P. Higher Judicial Service Rules "judicial
officers" were eligible for appointment as District Judges and the
expression was meant to cover members of the executive department who discharged
some revenue and magisterial duties also. When selection of such persons was
challenged, this Court was required to consider and interpret the provisions of
Articles 233 to 236 of the Constitution. The procedure for selection under the
said Rules was also challenged as violative of Article233. The Court said that
the Governor could not appoint as District Judges persons from services other
than the judicial service. A person who is in the Police, Excise, Revenue or
such other service cannot be appointed as a District Judge. Dealing with the
definition of “judicial service" in Article 236, this Court said that the
judicial service consists only of persons intended to fill up the posts of District
Judges and other civil judicial posts and that is an exclusive service only
consisting of judicial officers. In so interpreting judicial service in
contra-distinction to executive service where some executive officers may also
be performing judicial or quasi-judicial functions, this Court was at pains to 37emphasise
the constitutional scheme for independence of the judiciary. It said that the
acceptance of this (i.e. Government's)position would take us back to
pre-independence days and would also cut across the well-knit scheme of the Constitution
providing for independence of the judiciary. This Court, therefore, defined
judicial service in exclusive terms as consisting only of judicial officers
discharging entirely judicial duties. It said that having provided for
appointments to that service and having entrusted the control of the said
service to the care of the High Court, the makers of the Constitution would not
have conferred blanket power on the Governor to appoint any person from any
service as a District Judge.13. Reliance has been placed upon this judgment as
showing that judicial service misinterpreted narrowly to cover only the
hierarchy of civil courts headed by the District Judge. This Court, however,
was not considering the position of other civil courts, in the context of the
extensive definition given to the term "District Judge". This Court was
concerned with preserving independence of the judiciary from the executive and making
sure that persons from non-judicial services, such as, the Police, Excise or
Revenue were not considered as eligible for appointment as District Judges.
That is why the emphasis is on the fact that the judicial service should
consist exclusively of judicial officers. This judgment should not be interpreted
narrowly to exclude from judicial service new hierarchies of civil courts being
set up which are headed by a judge who can be considered as a District Judge
bearing in mind the extensive definition of that term in Article 236. XXX XXX
XXX Going by these tests laid down as to what constitutes judicial service
under Article 236 of the Constitution, the Labour Court judges and the judges
of the Industrial Court can be held to belong to judicial service. The hierarchy
contemplated in the case of Labour Court judges is the hierarchy of Labour
Court judges and Industrial Court judges with the Industrial Court judges
holding the superior position of District Judges. The Labour Courts have also
been held as subject to the High Court's power of superintendence under Article
227." For a better understanding of the principle of law enunciated above,
reference to the facts of the case would be necessary. The Labour Law
Practitioners Association had filed a writ petition in the High Court
challenging the appointment of the private respondents in the writ petition as
Labour Court Judges. These private respondents were earlier working as
Assistant Commissioners of Labour in the Department of Labour, State of
Maharashtra. It was prayed that the amended Section 9 of the Bombay Industrial
Relations Act and amended Section 7 of the Industrial Disputes Act insofar as they
authorize the appointment of Assistant Commissioner of Labour as Judges of the
Labour Court are void, illegal and contrary to Article234 of the Constitution.
A learned Single Judge of the Bombay High Court set aside the notification
dated 8th March, 1979 and gave a direction to the State of Maharashtra to
comply with the provisions of Article 234 of the Constitution while making
appointments of the Judges of the Labour Court. This decision of the learned
Single Judge was challenged in the Letters Patent Appeal which also came to be
dismissed and, therefore, the Special Leave Petition before the Supreme Court
was filed.
This Court, while
dismissing the appeal commented upon the expression `judicial service' and held
that `judicial service' means a service consisting exclusively of the persons
intended to fill the post of District Judge and other Civil Judges inferior to
the Court of District Judge in terms of Article 236 of the Constitution.
Keeping in view the principle of separation of powers and independence of judiciary,
Judicial Services contemplates the service exclusively of judicial posts in
which there will be a hierarchy headed by a District Judge. Upholding the view
taken by the High Court that persons presiding over Industrial and Labour Court
would constitute `Judicial Service'as defined and, therefore, compliance of
Article 234 of the Constitution was mandatory.
We fail to
understand as to what benefit the present petitioners can derive from this
judgment. Primarily, the Court gave a wider connotation to the expression
`judicial service' keeping in view the specialization in different fields
required for administration of justice. In that case, the Government had
intended to make the appointment by itself without following the procedure
provided under Article 234 of the Constitution, which says that appointments
were to be made by the Governor in accordance with the Rules made by him in that
behalf after consultation with the Public Service Commission and the High Court
exercising jurisdiction in relation to such State in case of appointments made
to the posts other than District Judges to the Judicial Service of the State.
This, on a plain reading and understanding, means that the Judge of the Labour Court
was not a post of the District Judge or equivalent thereto. On the contrary, in
terms of Article 234, the Government was directed to follow the prescribed
procedure before making these appointments. The methodology adopted by the Government
for making appointments directly, thus, was found to be faulty under the
scheme of the Constitutional provisions appearing in Chapter VI of the
Constitution. A Constitution Bench of this Court in the case of Chandra Mohan v.
State of UP [AIR 1966 SC 1987] was concerned with appointments to the posts of
District Judges which were challenged by the existing members of the Judicial
services on the ground that judicial officer from executive departments,
discharging some revenue and magisterial duties, are not members of the judicial
services and thus cannot be appointed to such posts. The Court, while
referring to the independence of the judiciary, said that subordinate judiciary
in India is in the closest contact with the people and thus their independence
should be beyond question. Explaining the words `judicial services' the Court
gave the expression a narrower meaning and, while setting aside the
appointments so made of the persons other than from judicial services of the
State, held as under:
"16. So far
there is no dispute. But the real conflict rests on the question whether the Governor
can appoint as District Judges persons from services other than the judicial service;
that is to say, can he appoint a person who is in the police, excise, revenue or
such other service as a district Judge? The acceptance of this position would
take us 42back to the pre-independence days and that to the conditions
prevailing in the princely States. In the princely States one used to come
across appointments to the judicial service from police and other departments.
This would also cut across the well-knit scheme of the Constitution and the principle
underlying it, namely, the judiciary shall be an independent service. Doubtless
if Article233(1) stood alone, it may be argued that the Governor may appoint
any person as a district judge, whether legally qualified or not, if he belongs
to any service under the State. But Article 233(1) is nothing more than a
declaration of the general power of the Governor in the matter of appointment of
District Judges. It does not lay down the qualifications of the candidates to be
appointed or denote the sources from which the recruitment has to be made. But the
sources of recruitment are indicated in clause(2) thereof. Under clause (2) of
Article 233two sources are given, namely, (i) persons in the service of the
Union or of the State, and(ii) advocate or pleader. Can it be said that in the
context of Chapter VI of Part VI of the Constitution "the service of the
union or of the State" means any service of the Union or of the State or
does it mean the judicial service of the Union or of the State? The setting
viz.the chapter dealing with subordinate courts, in which the expression "the
service" appears indicates that the service mentioned therein is the
service pertaining to courts. That apart, Article 236(2) defines the expression
"judicial service" to mean a service consisting exclusively of
persons intended to fill the post of district judge and other civil judicial posts
inferior to the post of district judge. If this definition, instead of
appearing in Article 236, 43 is placed as a clause before Article 233(2), there
cannot be any dispute that "the service" in Article 233(2) can only
mean the judicial service. The circumstance that the definition of
"judicial service" finds a place in a subsequent article does not
necessarily lead to a contrary conclusion. The fact that in Article 233(2) the
expression "the service" is used whereas in Articles 234 and 235 the expression
"judicial service" is found is not decisive of the question whether
the expression "the service" in Article 233(2) must be something
other than the judicial service, for, the entire chapter is dealing with the judicial
service. The definition is exhaustive of the service. Two expressions in the
definition bring out the idea that the judicial service consists of hierarchy
of judicial officers starting from the lowest and ending with district Judges.
The expressions "exclusively" and "intended" emphasise the
fact that the judicial service consists only of persons intended to fill up the
posts of district Judges and other civil judicial posts and that is the exclusive
service of judicial officers. Having defined "judicial service" in
exclusive terms, having provided for appointments to that service and having
entrusted the control of the said service to the care of the High Court, the
makers of the Constitution would not have conferred a blanket power on the
Governor to appoint any person from any service as a district judge." Another
Constitution Bench of this Court in the case of Statesman (Private) Ltd. v.
H.R. Deb & Ors. [AIR 1968 SC 1495]spelt out the distinction between
Judicial Office and Judicial function. A challenge was made to the appointment
of Presiding Officer, Second Labour Court on the ground that he did not possess
essential qualifications as prescribed in Section 7(3) of the Industrial Disputes
Act, 1947, as he was holding the office of Executive Magistrate though
performing judicial functions as well. The Court held as under:
"11. Lest our
meaning be extended by Government to cases under serving of saving under
Section 9, we wish to make it clear that the intention of the legislature
really is that men who can be described as independent and with sufficient
judicial experience must be selected. The mention of High Court Judges and
District Judges earlier in the same section indicates that ordinarily judicial officers
from the civil judiciary must be selected at least so long as the separation of
judiciary from the Executive in the public services is not finally achieved.
The appointment of a person from the ranks of civil judiciary carries with it
an assurance which is unique. The functions of a Labour Court are of great
public importance and quasi civil in nature. Men of experience on the civil
side of the law are more suitable than Magistrates. Persons employed on multifarious
duties and in addition performing some judicial functions, may not truly answer
the requirement of Section 7 and it may be open in a quo warranto proceeding to
question their appointment on the ground that they do not hold essentially a
judicial office because they primarily perform other 45 functions. For it
cannot be denied that the expression "holding a judicial office"
signifies more than discharge of judicial functions while holding some other
office. The phrase postulates that there is an office and that that office is
primarily judicial. Office means a fixed position for performance of duties. In
this case the distinction was unsubstantial because the Magistrate was holding
a fixed position for nineteen years and performing functions primarily of a
judicial character. The case was not fit for interference by a writ in view of
the provisions of Section 9 of the Act." The Bench, while dealing with the
case of Labour Law Practitioners' Association (supra), found that this judgment
should not be interpreted narrowly to exclude from judicial services, new hierarchy
of Civil Courts being set up which are headed by a Judge who could be
considered as a District Judge bearing in mind the extensive definition of the
term in Article 236. We have no hesitation in noticing that the judgments of
the Constitution Bench of this Court in the cases of Chandra Mohan and H.R. Deb
(supra) are 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 234of the Constitution. We
have already noticed that in the case of Labour Law Practitioners' Association
(supra), the Court was primarily concerned with ensuring that Labour Court
Judges who were performing judicial functions should maintain independence of judiciary
and they should be placed under the control of the High Court and the
appointments to those offices should be made inconformity with Article 234 of
the Constitution. Thus, this judgment can hardly be cited to support the
proposition advanced by the petitioners. `Judicial service' as understood in
its `generic sense', may impliedly include certain other services for limited
purposes but such other services may not be judicial service strict sensu as contemplated
under Articles 233 and 234 of the Constitution.
In this view of the
matter, it is difficult for the Court to hold that the Family Court Judges will
form part of the cadre of the Judicial Services under the State of Maharashtra
as contemplated under Rule 3 of the Rules of 2008. Is the claim of parity put
forward by the petitioners sustainable?
in law? We may
examine the preamble and statement of objects and reasons of the Act at this
juncture.
In order to clearly
understand the object of the Legislature in establishing Family Courts, reference
to the recommendations of the Law Commission would be useful. In its 59th
Report, the Law Commission emphatically recommended that the court, in dealing with
the disputes concerning family, ought to adopt an approach radically different
from that adopted in ordinary civil proceedings and that it should make
reasonable efforts for an amicable settlement before the commencement of the
trial. The same view was reiterated in the 230th Report of the Law Commission.
Despite the amendment to the Code of Civil Procedure, it was felt that the
matters concerning family disputes were not being dealt with a conciliatory
approach. Thus, the Bill, inter alia, provided for establishment of Family
Courts by the State Governments. The State Governments were expected to set up
these Courts and family disputes were to be dealt with by these specially
constituted Courts. The most important feature of the preamble of the Act was,
"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". This sufficiently indicates
the limited 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.
This analysis gives
us a bird's eye view with regard to constitution and functioning of the Family
Courts. Where the jurisdiction of the Civil Courts and the Criminal Court in
relation to the matters specified under Section 7(1) of the Act were
specifically excluded, there it also necessarily implies that the Family Courts
have the jurisdiction only to deal with the matters specified in the Explanation
to Section 7(1) and none other. Thus, it is a Court of limited jurisdiction.
According to the
petitioners, they have been performing the functions of a Judge by presiding
over the Family Courts and, thus, are entitled to be considered as part of the
judicial services of the State and, consequently, would be deemed to have held
`judicial office' in terms of Article 217 of the Constitution. It is,
therefore, of some relevance to examine the points of similarity and
distinction between the Family Courts on the one hand and Courts presided over
by the members of the higher judicial services of the State of Maharashtra on
the other, which are as follows: Sl. No. District Court Family Court
1. Court of District
Judge is It is created by the statute, that created under constitutional is,
Section 3 of the Act provisions read with the Rules of 2008 for the Higher Judiciary.
2. District and
Sessions Judges The Family Court Judges are appointed in accordance appointed
in accordance with the provisions of Article the provisions of Section 4 of 233
read with Rules 5 and 6 of the Act. the Rules of 2008.
3. District Judges discharge
Judges of the Family Court also Judicial functions. Discharge judicial
functions under the Act. 4. The District and Sessions The Presiding Officer of
the Judge exercises and decides Family Court exercises a limited all kind of
Civil/Criminal cases. jurisdiction and decides matters They also exercise original,
which strictly fall within the appellate and provisional ambit and scope of
Explanation jurisdiction. In other words they to Section 7(1) of the Act only. exercise
a much wider Thus, they exercise a limited jurisdiction . 5. The Civil Courts
are expected The Family Court in terms of
to refer the matter
to the object of the Act is, appropriate forum in primarily, required to make accordance
with the provisions efforts of conciliation and every of Section 89 of the Code
of attempt should be made to Civil Procedure. But they have settle the matter
and then alone to decide the matter, primarily, it can travel to the
jurisdiction of on merit and by answering determination within the limited each
issue of law and fact. scope as spelt out under the provisions of the Act. 6.
Under Article 233(2) of the Under the advertisement issued Constitution, a
person in the for appointment to the Judge of service of Union or the State is
the Family Court as well as 50 not eligible even to apply for under the
provisions of the Act, the post of the District and the ambit of the persons
eligible Sessions Judge. It is primarily to apply is much wider and advocates
with seven years of even a person in service of the practice who are entitled
to Union or a State could apply for the post. They, in and be appointed to that
post. accordance with the terms and In fact, if they have experience, conditions
of Rule 6 of the through service or otherwise, of Rules of 2008, have to pass
settlement of family disputes, written competitive examination they are
required to be given by obtaining at least 50%preference in matters of marks in
each paper and in appointment. They do not have aggregate and 40% in the vivato
compete in any written voce before they can be examination but, like the considered
fit to be appointed petitioners, are primarily to that post. Selected by an
interview alone.7. The persons belonging to the Family Court exercises cadre
of District and Sessions jurisdiction only with respect to Judges had earlier
dealt with all the matters specified in Section the cases including family
and7(1) of the Act over which the matrimonial cases before jurisdiction of the
Civil Court is Section 8 of the Act came into excluded in terms of Section 8 force.
Even after exclusion of the Act. jurisdiction in terms of Section 8 of the Act,
they exercise jurisdiction on much wider field and subjects.8. The District Judge
and The Judge of the Family Court particularly the Principal District hardly exercises
any and Sessions Judge exercises administrative jurisdiction and vast
administrative as well as has no administrative control judicial control over
the courts over any other court. subordinate to the District Court.9. There is
complete freedom to The right of representation and the lawyers to appear and assistance
by lawyers before assist the Court in the Family Court is totally determination
of different restricted in terms of Section 13 proceedings before it. This of
the Act. 51 helps the District and Sessions Judge to get a better experience
in different fields of law. 10. The Civil Courts have to work The Family
Court are not strictly in accordance with law strictly required to record and
adhere to the provisions of evidence and perform their the Evidence Act, Code
of functions in accordance with Criminal Procedure and Code the provisions of
the Code of Civil Procedure. Civil Procedure and the Indian Evidence Act. In
terms of Section 14, they can evolve their own procedure for deciding the proceedings
pending before it. In view of the clear points of distinction, which are substantial
and affect the learning, performance and discharge of judicial duties, the
disparity between the Judges of the Family Court and the 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
is difficult for the Court to hold that they are at parity and their services
are interchangeable to the extent that the Presiding Officers of the Family
Court would be granted the stature of the members of the Higher Judicial
Services of the State. 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 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 Judges of the
Family Court may be performing such functions but definitely to a very limited
extent. Their experience in the judicial field as well as in channelizing the
administration of justice is comparatively of a narrower nature. Therefore, we
are unable to hold that by necessary implication or on the claim of parity, the
Presiding Officers of the Family Courts can 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.
`Judicial Office'
within the meaning of Article 217
Even if, for the
sake of argument, we accept the contentions raised on behalf of the
petitioners, the most significant question that would require consideration is
whether they hold a `judicial office ‘within the meaning of Article 217 which
is a condition precedent for consideration for elevation to the High Court.
For the purpose of
examining the issue before us, it will be appropriate to examine the scheme of
Article 233 along with Article217 of the Constitution. 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 who has not been an
advocate or a pleader for not less than seven years. This clearly shows the
constitutional mandate to ensure independence of judiciary in comparison to
other organs of the State. In contradistinction to this, a person in service of
the Union or the State would be eligible to be appointed as Judge of the Family
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 satisfies all the
conditions stated in
that Article. In terms 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 of India unlike `District
Judge' or `Judicial Service' which expressions have been explained under
Article 236 of the Constitution of India. Still this expression has come up for
consideration of this Court on different occasions and in different contexts.
In the case of H.R. Deb (supra), this Court considered the distinction between
`judicial office' and `judicial service' and held that expression `judicial
office' signifies more than discharge of judicial functions. The phrase
postulates that there is an office and that office is primarily judicial. In
the case of Shri Kumar Padma Prasadv. Union of India [(1992) 2 SCC 428], this
Court was considering whether the Legal Remembrance-cum-Secretary (Law and
Judicial)and Assistant to Deputy Commissioner, having powers analogous to First
Class Judicial Magistrates, was holding a judicial office for the purposes of
appointment as Judge of the High Court. The Court, while answering the question
against the recommendation, held asunder: 55"21. This Court has thus
authoritatively laid down that the appointment of district judges under Article
233(2) can only be from the judicial service of the State as defined under
Article 236(b) of the Constitution.22. It is in the above context that we have to
interpret the meaning of expression "judicial office" under Article
217(2)(a) of the Constitution of India. The High Court Judges are appointed
from two sources, members of the Bar and from amongst the persons who have held
"judicial office" for not less than ten years. Even a subordinate
judicial officer manning a court inferior to the District Judge can be
appointed as a Judge of a High Court. The expression "judicial
office" in generic sense may include wide variety of offices which are
connected with the administration of justice in one way or the other. Under the
Criminal Procedure Code, 1973 powers of judicial Magistrate can be conferred on
any person who holds or has held any office under the Government. Officers
holding various posts under the executive are often vested with the magisterial
powers to meet a particular situation. Did the framers of the Constitution have
this type of `offices' in mind when they provided a source of appointment to
the high office of a Judge of High Court from amongst the holders of a
"judicial office”. The answer has to be in the negative. We are of the
view that holder of "judicial office" under Article 217(2)(a) means
the person who exercises only judicial functions, determines causes
inter-parties and renders decisions in judicial capacity. He must belong to the
judicial service which as a class is free from executive control and is
disciplined to uphold 56 the dignity, integrity and independence of judiciary."
In view of the above enunciated law, the expression `judicial office' should be
construed in a manner which shall be in conformity with the constitutional
scheme. Judicial office may be read 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
of disputes should be included, would 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 stated
in Articles 217(2)(a), 233 and234 of the Constitution. 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
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. The Judges, at whatever level they may be,
represent the State and its authority unlike the bureaucracy or the members of
other services. With the development of law, numerous tribunals and quasi-judicial
bodies have been created to determine the disputes between the parties.
Functions of such tribunals are, primarily, quasi-judicial and in the realm of
civil jurisprudence alone. In other words, such tribunals or bodies exercise a
very limited jurisdiction. It will not be appropriate to treat them as an in extricable
part of State judicial services or call them Courts as understood in our Constitution,
merely because they give final decision, because they hear witnesses, because
two or more contesting parties appear before them, because they give decisions
which affect the right of the parties and an appeal might be provided against
their decision. Even the Government, in its hierarchy, is now vested with the
powers of limited adjudication but that does not mean that all such persons
shall be deemed to be the members of the judicial services and would hold
judicial office under the Constitution. In the case of Labour Law
Practitioners' Association (supra), this Court referred to its earlier judgments
and reiterated with approval 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 under Article 236(b) of the
Constitution. This Court, in the case of Shri Kumar Padma Prasad (supra), also
held that when a person is not eligible to be appointed as District Judge, it
would be mockery of the Constitution to hold that he is eligible to be appointed
as Judge of the High Court. 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 powers can be conferred
only on the Courts properly so 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
a `judicial office'. For the reasons afore-recorded, we have no hesitation in
holding that the Principal and other Judges of the Family Court maybe `Judges'
presiding over such courts in its `generic sense' but strictosensu are neither
Members/integral part of the `Judicial Services' of the State of Maharashtra as
defined under Article 236nor do they hold a `judicial office' as contemplated
under Article 217of the Constitution of India. Thus, they do not have any jus legitimate
be considered for elevation to the High Court. Therefore, we find no merit in
this Writ Petition. The same is dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
............................................J.
[Swatanter Kumar
...........................................J.
[Chandramauli Kumar Prasad]
New
Delhi
November
11, 2010
Back
