TaxTMI 
TaxTMI 
2010 (11) TMI 1062
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of India? 2. 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, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... from service that Family Court Judges appointed under Rule 3(B) of the Rules are not considered for the post of that office. 3. 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. 4. Reply only on behalf of the High Court of Judicature at Bombay has been filed which, during the course of arguments, was adopted by the counsel appearing for the State of Maharashtra. The facts are hardly in dispute. After the representation was addressed to the Chief Justice of Bombay High Court on 30th June, 2003, the petitioners had also filed writ petition No. 3726 of 2005 praying for a direction to decide the said representation which was disposed of by a Bench of the Bombay High Court by passing the order dated 20th October, 2005 which reads as under: P.C.: Heard learned Counsel for the Petitioners and the learned Assistant Government Pleader for the Respondents. Rule. Learned Assistant Government Pleader waives s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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. 7. On merits, it is submitted on behalf of the respondents that it is not enough to discharge judicial functions simpliciter for a period of ten 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 wr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Reliance in this regard was placed by the counsel on Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala AIR 1961 SC 1669. 9. 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 de hors 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 - (a) has for at least seven years held a judicial o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 5. 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, Bomb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 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 therefore or by payment of salary for the period of notice or the unexpired portion thereof. 10. 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. 11. Bare reading of the advertisement clearly shows that different class of persons were eligible t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 may be, 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 14. Various provisions of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....les 233 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 curial 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 of the Government thus falls within the powers of this Court under Article 136. 16. 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 feat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....decision had never been questioned by any person. 19. 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) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ordance 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. 22. Now, we may refer to relevant Articles of the Constitu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re 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 consisting 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 as the 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 Article 233 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 int....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ded 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. 26. 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 Bomb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt 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. 29. A Constitution Bench of this Court in the case of Chandra Mohan v. State of U.P. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 234 of 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 in conformity with Article 234 of the Constitution. Thus, this judgment can hardly be cited to support the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urts 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. 36. 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 created under constitutional provisions read with the Rules of 2008 for the Higher Judiciary. It is created by the statute, that is, Section 3 of the Act 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of appointment. They do not have to compete in any written examination but, like the petitioners, are primarily selected by an interview alone. 7. The persons belonging to the cadre of District and Sessions Judges had earlier dealt with all the cases including family and matrimonial cases before Section 8 of the Act came into force. Even after exclusion of jurisdiction in terms of Section 8 of the Act, they exercise jurisdiction on much wider field and subjects. The Family Court exercises jurisdiction only with respect to the matters specified in Section 7(1) of the Act over which the jurisdiction of the civil Court is excluded in terms of Section 8 of the Act. 8. The District Judge and particularly the Principal District and Sessions Judge exercises vast administrative as well as judicial control over the courts subordinate to the District Court. The Judge of the Family Court hardly exercises any administrative jurisdiction and has no administrative control over any other court. 9. There is complete freedom to the lawyers to appear and assist the Court in determination of different proceedings be fore it. This helps the District and Ses....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 40. 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. 41. For the purpose of examining the issue before us, it will be appropriate to examine the scheme of Article 233 along with Article 217 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. Art....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary. 42. 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 expressi....