TaxTMI 
TaxTMI 
2008 (12) TMI 794
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.... to the date of entry into service in the said posts. (ii) to withdraw the Maharashtra Judicial Service (Seniority) Rules 2007 (for short the `Rules') and make rules in regard to seniority, in conformity with the decision of this Court, by having a single uniform cadre of District Judges (by merging the aforesaid multiple categories of posts) with effect from 13.11.1991 or 31.3.1994 or 1.7.1996; or in the alternative, to quash the said Rules in particular the proviso to Rule 4(1) of the said Rules. (iii) to withdraw the draft gradation list of District Judges circulated on 30.3.2007 and make the said list as on 13.11.1991, or 31.3.1994 or 1.7.1996 on the basis of entry of the Judicial Officers in the cadre as District Judges/Addl. District Judges/City Civil Court Judges/Chief Judge and Addl. Chief Judges of Small Court. Background Facts 2. In the year 1989, a writ petition was filed in this Court by the All India Judges' Association praying for setting up an All India Judicial Service and for bringing about uniform conditions of service for members of sub-ordinate judiciary throughout the country. The judgment in the said petition rendere....
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....e directions of this Court. This Court further directed "Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court. The proceedings, if any, for implementation of the directions given in this Judgment shall be filed only in this Court and no other Court shall entertain them." 4. Justice Shetty Commission had found that in most of the States and Union Territories, there were three cadres of Judicial Officers with uniform designations. But in a few States, there were different designations and multiple categories. Therefore, the Commission suggested that uniformity be brought about in cadres and designations with uniform jurisdiction. This was also an absolute necessity since Commission proposed to provide uniform pay scales and other emoluments to the Judicial Officers by dividing them into three levels, namely (i) Civil Judge (Junior Division) to be referred to as `Civil Judges'; (ii) Civil Judge (Senior Division) to be referred to as Senior Civil Judges; and (iii) District Judges. It also recommended pay scales on that basis to be given effect from 1.7.1996. 5. When the report of the Shetty Commission....
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....Addl. Chief Judges, Small Cause Court (Category-II). The Committee also recommended that 1.7.1996 should be the date for caderisation. We extract below the relevant portions of the report: Constitution of unified cadre As far as constitution of the cadre of District Judge is concerned, the Committee has equated the three cadres of District Judge, Joint District Judge and City Civil Court Judges into one category/block (hereinafter referred to as Category No.I). This equation is based on numerous factors. For example, Judges of the City Civil Court, Bombay have different sources of recruitment viz., by transfer of District Judge, by promotion from the cadre of Addl. District Judge, Chief Metropolitan Magistrate, Addl. Chief Metropolitan Magistrate, Addl. Chief Judge, Small Causes Court and by nomination. Therefore, a District Judge can be transferred to City Civil Court and vice-versa. Therefore, apart from that post being a promotional post, looking to the nature of the functions discharged in that cadre and the qualifications for recruitment, the Committee has equated the cadres of District Judge, Joint District Judge and City Civil Court Judges into one block/Category....
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....Shetty Commission, the various old cadres are required to be merged into three cadres viz., Civil Judge, Senior Civil Judge and District Judge. It is important to note that under the Report, the financial liability is fixed with effect from 1.7.1996. The pay scales recommended by the Commission have to be given effect to from 1.7.1996. That, for the purposes of pay, the post of Addl. District Judge has to be equated with District Judge. It was not possible for the Committee to have two separate dates - one for caderisation and one for pay fixation. Even as per the judgment of the Supreme Court in All India Judges Association case (supra) decided in 2002, the cut off date for pay fixation and for payment of other allowances is 1.7.199. Therefore, the Committee is of the view that the date of caderisation will be taken on 1.7.1996. In fact, after fixing the date of caderisation as 1.7.199, the Committee has worked out the above categorization on en block basis keeping in mind the various principles laid down in the judgment of the Supreme Court in Kulkarni's (supra) case. In other words, 1.7.1996 is the cut off date. In other words, applying 1.7.1996 as the cut off date, the Comm....
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....count of retrospective caderisation, it suggested a modification to protect the seniority of Judicial Officers who obtained their positions either as City Civil Judges or District Judges by direct appointment or by promotion between 1.7.1996 and 31.3.2003. The reasoning of the Committee in this behalf is extracted below : As we have noted above, the judgment in the Judges' Case No. III contains the directions to integrate the cadre and to implement the Shetty Commission Report with respect to revised pay scales. This direction was given in this judgment rendered on 21st March, 2002. The benefits with respect to revision in pay have been given from 1st July, 1996 as directed. We have adopted the same date as the date of caderisation. The rules were directed to be framed at the earliest and in any case, by 31st March, 2003. It can, therefore, be said that the Judicial Officers had a notice that the new rules and the integrated cadre and seniority were to come in force in any case by 31st March, 2003. It is another matter that the rules have not been finalized so far and, therefore, the Bombay Judicial Service Recruitment Rules, 1956 are still in force. As seen in A....
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....ts, inter-se-seniority of Officers in each original cadre shall be maintained. (ii) The name of Chief Judge of Court of Small Causes shall be appended to the list prepared as per Sub-clause (i) above: Provided that those appointed as City Civil Court Judges or District Judges after 1st July, 1996 but before 31st March 2003, either by direct recruitment or promotion, shall be included in a common list, wherein they shall be listed in an order of seniority based on the date of their appointment to the respective posts. Officers included in this list, shall be placed en-bloc in the initial seniority list, immediately below those included under Rule 4(1)(b)(i) and before those covered by Rule 4(1)(b)(ii) and 4(1)(c). (c) List of Additional District Judges and Additional Chief Judges of the Court of Small Causes shall be merged by arranging the names of Officers according to their dates of entry on any of these posts, either on temporary or regular basis, provided that while so merging the lists, inter-se-seniority of officers in each original cadre shall be maintained. List so prepared shall be appended to the list prepared as per clause (b)(i) above....
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....t District Judges/City Civil Court Judges/Chief Judge of Small Causes Court/Addl. District Judges/Addl. Chief Judge of Small Cause Court) should be with effect from 31.3.1994 instead of 1.7.1996? (ii) Whether insertion of proviso to Rule 4(1) to protect the seniority of persons appointed by direct recruitment or promotion between 1.7.1996 to 31.3.2003 is illegal and discriminatory? Re : Point (i) 11. This Court by order dated 13.11.1991 in All India Judges Association (I) had directed that steps should be taken to bring about uniformity in hierarchy, designations and jurisdictions of the Judicial Officers on both civil and criminal sides by 31.3.1993. It is submitted that while Union of India and some other States had sought review of the first order dated 13.11.1991, the State of Maharashtra did not seek either review of the order or sought extension of time for implementation. By subsequent order dated 24.8.1993 while disposing of the review petition, this Court in All India Judges Association (II), extended the time for bringing about uniformity in hierarchy, designations and jurisdictions of the Judicial Officers up to 31.3.1994. It is therefore contended that th....
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....into three cadres, with effect from 1.7.1996. Further, this Court in All India Judges Association (III) directed on 21.3.2002 acceptance of Shetty Commission recommendations for having three cadres of District Judges, Civil Judge (Senior Division) and Civil Judge (Junior Division) with effect from 1.7.1996. Therefore, the caderisation was rightly given effect from 1.7.1996 under the Rules. The contention that it ought to have been with effect from 13.11.1991 or 31.3.1994 has no merit. The first point is answered accordingly. Re : Point (ii) 13. Justice Kapadia Committee recommended equation of the cadres of District Judges, Joint District Judges and City Civil Court Judges into one block (category 1); Chief Judge, Small Causes Court as category-IA; and Additional District Judges and Additional Chief Judges of Small Cause Court as Category-II. The said Committee further recommended that in the integrated seniority/gradation list, category-1A be placed below category-I, and category-II be placed below categories 1 and 1A. Justice Gokhale Committee agreed with the said unification/integration in the manner recommended by Justice Kapadia Committee. Consequently when the rules wer....
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....ted in All India Judges Association(III) by judgment dated 21.3.2002. By the said order, this Court granted time up to 31.3.2003 to implement the said recommendations. Until the recommendation was accepted and rules were framed, the integration/caderisation was a nebulous concept incapable of being claimed or enforced as a right. Further, if caderisation was suggested only on 11.11.1999 and accepted by this Court only on 21.3.2002 by granting time for implementation till 31.3.2003, the seniority of all those who were appointed to the higher post of City Civil Court Judges and District Judges between 1.7.1996 and 31.3.2003 vis-à-vis those who were in the lower level post of Addl. District Judges and Addl. Chief Judge of Small Cause Court, had to be protected. It should be remembered that when appointments were made to the post of District Judges or City Civil Court Judges either by direct recruitment or by promotion between 1.7.1996 and 31.3.2003, there was no rule or enforceable direction for caderisation by integrating the lower posts of Addl. District Judges and Addl. Chief Judges of Small Cause Court with the higher posts of District Judges/City Civil Court Judges/Chief J....