Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Writ Petition (civil) 609 of 2000
PETITIONER:
MAHARASHTRA STATE JUDL. SERVICE ASSN. & ORS.
Vs.
RESPONDENT:
HIGH COURT OF JUDICATURE AT BOMBAY AND ORS.
DATE OF JUDGMENT: 20/02/2002
BENCH:
G.B. Pattanaik & S.N. Phukan
JUDGMENT:
PATTANAIK,J.
This petition under Article 32 of the Constitution by the
promotee District Judges, who are members of the
Maharashtra State Judicial Service Association, assails the
decision of the Bombay High Court on Administrative side
on the question of inter se seniority of District Judges,
appointed by nomination from the Bar and those who are
promoted from the rank of Additional District Judge. On
consideration of the relevant statutory rules and the judgment
of this Court in Balasaheb Vishnu Chavan and anr. Vs.
State of Maharashtra and Ors., 1984(2) S.C.C. 675, the
High Court came to the conclusion that District Judges, who
are appointed by nomination would reckon their seniority in
the cadre from the date of appointment, even though they are
asked to work as Additional District Judges and the promotee
Distict Judges would reckon their seniority from the date of
their promotion. In the writ petition that had been filed, Smt.
U.R. Joshi, a direct recruit District Judge had been arrayed as
respondent No. 3 in her individual capacity as well as
representative of the direct recruit nominated District Judges.
She however appeared in her individual capacity alone and
amongst the direct recruits, she was the senior-most. When
the case had appeared before the Court on 16.1.2002, and
even though a statement was made by the counsel appearing
for the promotee-petitioners that individual notices to each of
the direct recruit had been offered, even though they had not
been arrayed as parties, an application for being impleaded as
party respondents had been made by several such direct
recruits and the prayer for impleadment has been allowed and
time had been granted to the impleaded direct recruits
respondents to file counter affidavit within ten days from that
date. The impleaded direct recruits have filed their counter
affidavit and were represented by Shri M.L. Verma, the
learned senior counsel. Respondent No. 3, the senior-most
direct recruit District Judge was represented by Shri Bhimrao
N. Naik. Shri S.M. Jadhav appeared for the High Court and
Shri S.V. Deshpande, appeared for the State of Maharashtra.
On behalf of the direct recruit respondents, a preliminary
objection had been taken by Shri M.L. Verma that the dispute
being one of inter se seniority within a cadre, the Court ought
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
not to entertain a petition under Article 32, as the parties
were entitled to approach the High Court under Article 226
against the Administrative decision of the Bombay High
Court. We have no doubt in our mind that an administrative
decision of the Court could be assailed by filing a writ
petition under Article 226 in the High Court itself, but this
Court having entertained the petition under Article 32 by
issuing rule on 8.12.2000 and the dispute being one, which
centres round interpretation of the relevant rules and both the
direct recuits and the promotees having made their stand
known, and further no disputed question on facts having
arisen, we do not think it appropriate to direct the promotees
to approach the High Court in the first instance. We,
therefore, heard the parties at length on the merits of the
matter.
The Service conditions of the employees belonging to
the Judicial Service of the State of Maharashtra is governed
by a set of rules framed by the Governor of Maharashtra in
consultation with the High Court in exercise of powers
conferred by Articles 233 and 234 of the Constitution and the
proviso to Article 309 of the Constitution called the Bombay
Judicial Service Recruitment Rules, 1956 [hereinafter
referred to as ’the recruitment rules’]. The said rules have
been amended twice, once in the year 1987 and again in the
year 1992. Under Section 3 of the Rules, the service consists
of two branches- junior and senior. The senior branch
consists of District Judges, Principal Judge and all other
Judges of the Bombay City Civil Court, Additional District
Judges, Chief Judge and Additional Chief Judges of the
Small Causes Court, Bombay and Chief Metropolitan
Magistrate and Additional Chief Metropolitan Magistrates, as
provided in Rule 3(3). The method of recruitment to the
senior branch is indicated in Rule 5. Under sub-rule (2) of
Rule 5, the District Judges are of two grades (a) District
Judges and (b) Small causes Court District Judges. In the
original Recruitment Rules of 1956, there were no two grades
of District Judges and under Rule 5(2)(i), appointment to the
post of District Judges could be made by the Governor by
promotion in consultation with the High Court of persons,
who have served as Assistant Judges and from the Members
of the Bar, on recommendation of the High Court, who have
practised as Advocates or pleaders for not less than seven
years. Thus, the cadre of District Judge could be filled up
either by promotion of the Assistant Judges or by direct
recruitment from the Bar. Under the Amended Rules of
1987, there existed two grades of the District Judges viz. the
District Judges and Selection Grade District Judges. In
accordance with Rule 5(2)(ii) of 1987 Rules, appointment to
the post of District Judges could be made by the Governor by
promotion from the Members of the Junior Branch, who had
ordinarily served as Additional District Judges and by way of
direct recruitment on the recommendation of the High Court
from the 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. In case of direct
recruits, a further stipulation was that direct recruits would be
first appointed to work as Additional District Judge for a
period of two years or for such further period, as may be
decided by the Government on the recommendation of the
High Court. The Recruitment Rules were again amended in
the year 1992 called the Bombay Judicial Service
Recruitment(Second Amendment) Rules, 1992 and Rule
5(2)(ii) reads thus:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
"Rule 5(2)(ii): District Judges -- Appointment to
the posts of District Judges shall be made by the
Governor.
(a) by transfer from the judges in the City Civil
and Sessions Court, Bombay, who are
recruited from the Bar only if they are
willing;
(b) by promotion in consultation with the High
Court, from the members of the Junior
Branch who have been promoted as
Additional District Judge; and
(c) by nomination, on the recommendation of
the High Court, who has been for not less
than seven years an advocate or pleader in
the High Court or Courts subordinate
thereto."
It is thus apparent that the appointment to the post of District
Judges under 1992 Rules, could be made not only by
promotion of Additional District Judges and by nomination
from amongst the members of the Bar, having not less than
seven years practice on the recommendation of the High
Court, but also by transfer from the Judges in the City Civil
and Sessions Court, who are recruited from the Bar, only if
they are willing. It may be borne in mind that when the High
Court had recommended for addition of a new sub-rule to
Rule 5(2)(ii), so as to make appointment to the post of
District Judge by transfer from the Judges in the City Civil
and Sessions Court, by suggesting that a new sub-rule to be
numbered as clause [c] to be added and that was in the draft
rule, but in its final shape, the said new sub-rule was
numbered as clause (a) and the pre-existing clause [a]
became clause [b] and the pre-existing clause [b] became
clause [c] and by this alteration, the Rule as it stands now,
has become wholly unworkable. Though Rule 5(2)(ii) was
amended by the amended rules of 1992, but Rule 5(2)(ii)(b)
remained intact, as a result of which though under 1992
Rules, Rule 5(ii)(b) provides for promotion and Rule
5(2)(ii)(c) provides for nomination on the recommendation of
the High Court but while prescribing the proportion between
them in sub-rule (b), the old provision remains as it is and the
same is quoted herein below:
"(b). ordinarily the proportion of posts filled in by
promotion, under sub-clause (a) of clause (ii) and
those by appointment from members of the Bar
under sub-clause (b) of clause (ii) shall be 50:50."
It would thus be seen that under the Rule as it now stands,
appointment from members of the Bar is made under sub-
clause [c] and not under sub-clause [b] as indicated above
and promotion is made under sub-clause [b] and not under
sub-clause [a] as indicated above. The entire confusion is
because of the fact that while draft rules suggested an
addition of a clause as clause [c], the final rule altered the
same and the additional clause was made clause [a]. The
seniority in the cadre of District Judges with which we are
actually concerned in the present case is governed by clause
[c] of Rule 5(2) and the same is extracted herein below:
"[c] Seniority in the cadre of District Judges in
case of persons appointment under sub-clauses (a)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
and (b) of clause (ii) shall be determined on the
basis of their dates of appointment to work as
District Judges."
If a literal interpretation of the seniority rules is to be given,
then it must be held that there is no rule for seniority of the
District Judges, who are appointed by nomination on the
recommendation of the High Court from amongst the
members of the Bar, having not less than seven years’
standing as an advocate, as that would come under sub-clause
[c] of Rule 5(2)(ii), whereas the seniority rule provides for
determination of inter se seniority amongst the persons
appointed under sub-clause [a] and sub-clause [b]. For a
proper appreciation of the matter, it would be proper to
extract Rule 5(2), as it stands now, after the amendment of
1992:
"Rule 5(2): District Judges, Selection Grade
District Judges and Judges of the Bombay City
Civil Court:-
(i)District Judges shall be of two grades namely:-
(a)District Judges: and
(b)Selection Grade District Judges.
(ii)District Judges --- Appointment to the posts
of District Judges shall be made by the Governor.
(a)by transfer from the Judges in the City
Civil and Sessions Court, Bombay, who are
recruited from the Bar only if they are
willing;
(b)by promotion in consultation with the
High Court, from the members of the Junior
Branch, who have been promoted as
Additional District Judges; and
(c)by nomination, on the recommendation of
the High Court, who has been for not less
than seven years an advocate or pleader in
the High Court or Courts subordinate
thereto.
(iii)(a)Appointment under sub-clause [c] of clause
(ii) shall not be made unless a person is first
appointed to work as an Additional District Judge
on probation for a period of two years which may
be extended by the High Court from time to time,
as it may deem fit.
(a-1) During the period of probation and
until expressly confirmed by a written order
the services of an appointee shall be
terminated by one month notice on either
side, without any reason being assigned
therefore or by payment of salary for the
period of notice or the unexpired portion
thereof.
[a-2] He/she shall be required to pass the
language examination according to the rules
prescribed in that behalf unless he has
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
already passed, or has been exempted from
passing those examinations.]
(b) ordinarily the proportion of posts filled in by
promotion, under sub-clause (a) of clause (ii) and
those by appointment from members of the Bar
under sub-clause (b) of clause (ii) shall be 50:50;
[c] Seniority in the cadre of District Judges in case
of persons appointment under sub-clauses (a) and
(b) of clause (ii) shall be determined on the basis
of their dates of appointment to work as District
Judges:
Provided that, if more than one person is so
appointed to work as District Judge on the date,
seniority inter se as between them shall be in the
order fixed by the High Court."
In course of hearing, to our query, the counsel appearing
for the High Court, on instructions, submitted that there is
not a single person in the cadre of District Judge, who has
come by way of transfer from the Judges in the City Civil
and Sessions Court, who had been recruited from the Bar
and only one person who had come, had gone back.
Mr. Nageshwara Rao, appearing for the promotees,
contended that the administrative decision of the High Court,
determining inter se seniority between the promotees and
direct recruits has been made on the basis of the Judgment of
this Court in Balasaheb Vishnu Chavan vs. State of
Maharashtra and Ors., 1984(2) S.C.C. 675, in which case,
the provisions of the Recruitment Rules, as it stood prior to
its amendment in 1987 was under consideration. At that
point of time, there was no rule for determination of inter se
seniority between the direct recruits and promotees, which
was brought about by amendment of 1987 and has also been
retained under the 1992 Rules. The question for
consideration in the aforesaid case was, though a member of
the Bar is recruited as a District Judge, he may be asked to
serve as an Assistant Judge for a specified period if he is
below the prescribed age and, therefore, whether such
appointment would make him a member of the cadre of
Assistant Judge or he can be held to be a District Judge, but
has been required to serve as an Assistant Judge for gaining
experience. On construction of the relevant provisions of
the Rules, the Court held that when a member of the Bar is
recruited as a District Judge and is asked to serve as an
Assistant Judge for a specified period, if he is below the
prescribed age, then his functioning as Assistant Judge
would not be strictly in law make him as a member of the
cadre of Assistant Judge, as there is no provision for direct
recruitment to the cadre of Assistant Judge. Consequently,
such a person cannot be called as a member of the Assistant
Judge subject to the rule of seniority applicable to the
regular members of that cadre who are appointed only by
promotion from the Junior Branch. According to Mr.
Nageshwara Rao, the aforesaid decision could not be relied
upon for determining the inter se seniority between the direct
recruit and promotee District Judges, in view of the specific
rule dealing with seniority. Mr. Nageshwara Rao contends
that on a plain literal meaning being given to the language
used in Rule 5[2][c], the seniority in case of a direct recruit
has to be reckoned from the date, he is appointed to work as
District Judge and not from the date, he is appointed to work
as an Additional District Judge. The learned counsel, in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
support of the aforesaid contention also relies upon Rule
5(iii)(a), which unequivocally puts an embargo for an
appointment as District Judge from amongst the members of
the Bar unless such person on being selected is first
appointed to work as Additional District Judge on probation
for a period of two years, which may be extended by the
High Court from time to time, as it may deem fit. Mr.
Nageshwara Rao, therefore, contends that a promotee
District Judge on being promoted from the post of
Additional District Judge, is entitled to reckon his seniority
in the cadre from the date of promotion, whereas a direct
recruit District Judge by nomination on the recommendation
of the High Court from amongst the members of the Bar,
who have practised for not less than seven years, would be
entitled to reckon his seniority in the cadre of District Judge
only when he is appointed to work as a District Judge and
not the initial period of probation for two years when he is
appointed to work as an Additional District Judge.
Mr. M.L. Verma, the learned senior counsel, appearing
for the direct recruits as well as Mr. Bhimrao N. Naik,
appearing for respondent No. 3, however contended that the
seniority rule as provided in Rule 5[2][c] does not deal with
the seniority in the cadre of District Judge and those
members, who are directly recruited from the Bar on the
recommendation of the High Court, after being selected and
the aforesaid rule of seniority is intended for determining
inter se seniority between the promotees and those who are
appointed as District Judge by transfer from the Judges in
the City Civil and Sessions Court. According to Mr.
Verma, even the prescription of ratio of 50:50 in Rule
5(2)(b) is between the transferee District Judges and the
promotee District Judges and not between the direct recruit
District Judges and promotee District Judges. The learned
counsel urged that in the cadre of District Judges, the quota
of promotees has become much more than, what is provided
and, therefore, those of the promotees who have usurped the
quota meant for direct recruits, cannot be given any
seniority. We fail to understand how this contention could
be advanced in the teeth of his submission that Rule 5(2)(b)
does not provide for any quota for the direct recruits. We
also are not in a position to appreciate the contention that the
inter se seniority rule in the cadre of District Judge does not
provide for seniority of the direct recruits, which has to be in
accordance with the Maharashtra Civil Service (Regulation
of Seniority) Rules, 1982. In fact the Registrar of the High
Court, in the affidavit filed, has taken the aforesaid stand.
In our considered opinion, the stand taken by the High Court
as well as by the direct recruit District Judges is wholly
unsustainable and it is unimaginable that a rule providing for
recruitment to the cadre of District Judge, which is
essentially composed of direct recruits and promotees and a
rule of seniority has been provided, but does not cover the
case of direct recruit District Judges. The entire anomaly
and confusion is on account of the mistake that was
committed while inserting another clause under the
amendment of 1992. As has been stated earlier, as on date
there is not a single person, who has come on transfer from
the category of Judges in the City Civil and Sessions Court
and is working as District Judge. Rule 5(2) of the 1992
Rules, therefore, require necessary alteration, either by
altering existing sub-clause [a] as sub-clause [c], sub-
clause[b] as sub-clause [a] and sub-clause [c] as sub-clause
[b] and then in sub-clause (iii)(a) by altering sub-clause [c]
as sub-clause [b] or keeping Rule 5(2)(ii) and Rule (2)(iii)(a)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
as it stands and altering and amending clauses {b} and {c}.
It appears that the State Government or the High Court have
not applied their mind to the amendments carried out and
necessary attention has not been bestowed. The counsel
appearing for the High Court on instructions however
submitted that even from 1992 till the Administrative
decision, which is being impugned in the present case, the
High Court has been acting in accordance with the draft
rules that had been submitted and therefore, no
inconvenience has been caused. This indicates the real
intention of the Court as well as that of the Government.
We, therefore, direct that appropriate amendment of Rule
5(2) of the Recruitment Rules be made at an early date.
Notwithstanding the confusion which writ large in the
provisions, as stated earlier, we have no manner of doubt
that the seniority of the direct recruit District Judges in the
cadre would reckon only from the date, they are appointed to
work as District Judge. The expression "to work as" both in
Rule 5(2)(iii)(a) and Rule 5[2][c] must carry the same
connotation. If under Rule 5(2)(iii)(a), direct recruit cannot
be appointed as a District Judge unless he is first appointed
to work as Additional District Judge for a period of two
years, it is difficult for us to comprehend that while
interpreting the same expression "to work as District Judge"
in Rule 5[2][c] can be given a meaning that it would reckon
from the date of appointment, as has been done by the
Bombay High Court in its administrative decision. In other
words, a conjoint reading of the provisions, providing for
appointment as District Judge from amongst the members of
the Bar by nomination on the recommendation of the High
Court as well as the embargo on such appointment, as
provided in Rule 5(2)(iii)(a) makes it explicitly clear that a
person when is selected for being appointed as District
Judge, he is allowed to work initially as an Additional
District Judge on probation for a period of two years and that
period cannot be counted as service in the cadre of District
Judge for seniority. His services in the cadre of District
Judge for seniority would start reckoning on completion of
his probation for the period of two years or any further
period, as extended by the High Court and he is allowed to
work as District Judge. Incidently, it may be mentioned that
after being selected for being appointed as District Judge,
when the direct recruits are appointed to work as an
Additional District Judge on probation for two years, they
get the lesser salary as is meant for Additional District Judge
and do not get the salary of a District Judge. From the
records, it also transpires that such direct recruits, on
completion of their probation as Additional District Judge,
are appointed as District Judges, as was done in case of
respondent No. 3 by order dated 8th of January, 1992. In the
aforesaid premises, we have no hesitation to hold that the
administrative decision of the Bombay High Court dated 6th
of May, 2000, on the basis of the decision of the Committee
dated 12th of January, 2000, is erroneous and we accordingly
strike down the same. We further hold that the seniority of a
promotee District Judge would reckon from the date of his
promotion, from which date he is appointed to work as
District Judge and in case of a direct recruit, the same would
be the date from which he is appointed to work as a District
Judge, after completion of the period or probation of two
years and not from the initial appointment to work as
Additional District Judge.
This writ petition is accordingly allowed.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
..........................................J.
(G.B. PATTANAIK)
..........................................J.
(S.N. PHUKAN)
February 20, 2002.
26