TaxTMI 
TaxTMI 
2010 (11) TMI 1062
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....row 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 Maharas....
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....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 service of Rule on behalf of the Respondents. By consent, Rule made returnable and heard forthwith. ....
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....ter 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 writ petition. 8. Mr. Shekhar Naphade, learned senior counsel, referred to the various provisions of the Act to contend t....
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....669. 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 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)....
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....g 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, 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....
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....es 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 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 Pana....
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....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 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; (b) a suit or proceeding for a declaration....
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....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 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 Presidin....
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.... 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 Shell Company of Australia v. Federal Commissioner of Taxation observed: 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 nece....
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....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 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.....
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....hall 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 20. Rule 5 provides for the method of recruitment, qualification and age limit in relation to different posts including the post of District....
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....urt 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 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....
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....t 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 interpret the provisions of; under the said Rules was also challenged as violative of Article 233. 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 judicia....
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.... 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 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 Article 234 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 Ar....
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....rt 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 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 back to the pre-inde....
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....r 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. 30. Another Constitution Bench of this Court in the case of Statesman (Private) Ltd. v. H.R. Deb and 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 La....
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.... 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 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 stricto sensu as contemplated under Articles 233 and 234 of the Constitution. 32. In this view of the matte....
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..... 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. District and Sessions Judges are appointed in accordance with the provisions of Article 233 read with Rules 5 and 6 of the Rules of 2008 The Family Court Judges are appointed in accordance with the provisions of Section 4 of the Act. 3. District Judges discharge Judicial functions. Judges of the Family Court also discharge judicial functions under the Act. 4. The Distr....
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....diction 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 Sessions Judge to get a better experience in different fields of law. The right of representation and assistance by lawyers before the Family Court is totally restricted in terms of Section 13 of the Act. 10. The Civil Courts have to work strictly in accordance with law and adhere to the provisions of the Evidence Act, Code of Criminal Procedure and Code of civil Procedure. The Family Court are not strictly required to record evidence and perform their functi....
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.... 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. 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 de....
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....f 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 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. 43. Such approach may not be possible and in any case would not serve the constitutional ends stated in Articles 217(2)(a), ....