# ANIL KUMAR VITIHAL SHETE AND ORS v. STATE OF MAHARASHTRA AND ANR

- **Citation:** [2006] Supp. 1 S.C.R. 553
- **Court:** Supreme Court of India
- **Decided:** 2006-04-28
- **Bench:** Y.K.Sabharwal, C.K. Thakkerand P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anil-kumar-vitihal-shete-and-ors-v-state-of-maharashtra-and-anr-21346
- **Pages:** 34

## Headnote

Judiciary:
A
B
Judicial Service-Service Conditions of Judicial Officers-Certain C
Directions by Supreme Court in respect of working conditions of Judicial
Officers-Pursuant to direction, Constitution of National Judicial Pay
Commission-Commission restructured judicial cadres amalgamating multiple
cadres into three uniform cadres~In absence of uniformity in the cadre of
Judges of Small Causes Court, Commission left the matter to be examined D
and decided by High Courts-Administrative side of Full Court of the High
Courts of Bombay and Gujarat decided the amalgamation-Judges of the
Small Causes Courts of Bombay and Gujarat, Chief Judge, Small Causes
Courts, Ahmedabad, Metropolitan Magistrates, Mumbai, Assistant Judges of
Gujarat Judicial Service aggrieved by their placement in the categorylnterlocutory Applications and Writ Petitions to this Court-Application for E
making the Report of the Commission applicable to all the retirees-Held:
The decision of High Courts, on Administrative sides in dealing with the
issue of placement cannot be said to be illegal, unlawful, arbitrary,
discriminatory or otherwise objectionable-There is no legal flaw in the
decision-However, in the facts and circumstances of the case of Metropolitan F
Magistrates, to meet the ends of justice, Court directed that their pay scales
not to be reduced nor recovery of the same to be effected-Application in
respect of retirees adjourned.
Considering the Reports by Law Commission, this Court by judgment
in All India Judges Association v. Union of India, (1992) 1 sec 119, issued G
certain directions for the evolvement of appropriate national policy by the
Government with regard to service conditions of Judicial Officers. In
pursuance thereof National Judicial Pay Commission (Shetty Commission)
was constituted. One of the tasks of the· Commission was to restructure
553
H
554
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A judicial cadres and amalgamation of multiple cadres into three uniform cadra
So far as the cadre of Judges of Small Causes Court was concerned, in view
of the fact that there was no uniformity in their cadres, the Commission left
the matter to be examined and decided by the High Court of each State/Union
Territory. Regarding Chief Judge as well as Additional Chief Judge of Small
B Causes Courts, having regard to their supervisory powers and jurisdiction,
Commission recommended that they should be included in the cadre of District
Judges in all States/Union Territories.
In pursuance of recommendations of the Commission, High Courts of
Bombay and Gujarat constituted their respective Committees to consider the
C amalgamation of different cadres and fixation of seniority in the light of
observations made by the Shetty Commission and the same was placed before
Administrative side of the respective High Courts and the amalgamation was
decided by full court accordingly.
D
Three categories created in the State of Maharashtra were as under:
Category 1 : District Judges, Joint District Judges, City Civil Court
Judges
(iA) : Chief Judge, Small Causes Courts;
E
(ii) : Additional District Judges, Additional Chief Judges, Small Causes
Courts
Category 2 : Senior Civil Judges
(i) Chief Metropolitan Magistrates;
F
(ii) Additional Chief Metropolitan Magistrates;
(iii) Metropolitan Magistrates and Judges of Small Causes Courts;
(iv) Civil Judges (Senior Division)
G
Category 3 : Civil Judges (Junior Division)
Notifications were also issued by the Government of Gujarat. Aggrieved
by the decision of the Full Court, various judges of Maharashtra and Gujarat
approached this Court by filing interlocutory applications for clarification of
H the judgment of All India Judges' Association v. Union of India, and also by
ANIL KUMAR VIITHAL SHETE & ORS. v. STATE OF MAHARASHTRA
SSS
filing Writ Petitions for -declaring that the action of the Commission of A
referring the case of the petitioners to the High Courts was illegal and
improper.
The grievances of the Judges of Small Cause

## Text

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ANIL KUMAR VITIHAL SHETE AND ORS.
v.
STATE OF MAHARASHTRA AND ANR.
APRIL 28, 2006
[Y.K.SABHARWAL,CJ.,C.K. THAKKERAND
P.K. BALASUBRAMANYAN, JJ.]
Judiciary:
A
B
Judicial Service-Service Conditions of Judicial Officers-Certain C
Directions by Supreme Court in respect of working conditions of Judicial
Officers-Pursuant to direction, Constitution of National Judicial Pay
Commission-Commission restructured judicial cadres amalgamating multiple
cadres into three uniform cadres~In absence of uniformity in the cadre of
Judges of Small Causes Court, Commission left the matter to be examined D
and decided by High Courts-Administrative side of Full Court of the High
Courts of Bombay and Gujarat decided the amalgamation-Judges of the
Small Causes Courts of Bombay and Gujarat, Chief Judge, Small Causes
Courts, Ahmedabad, Metropolitan Magistrates, Mumbai, Assistant Judges of
Gujarat Judicial Service aggrieved by their placement in the categorylnterlocutory Applications and Writ Petitions to this Court-Application for E
making the Report of the Commission applicable to all the retirees-Held:
The decision of High Courts, on Administrative sides in dealing with the
issue of placement cannot be said to be illegal, unlawful, arbitrary,
discriminatory or otherwise objectionable-There is no legal flaw in the
decision-However, in the facts and circumstances of the case of Metropolitan F
Magistrates, to meet the ends of justice, Court directed that their pay scales
not to be reduced nor recovery of the same to be effected-Application in
respect of retirees adjourned.
Considering the Reports by Law Commission, this Court by judgment
in All India Judges Association v. Union of India, (1992) 1 sec 119, issued G
certain directions for the evolvement of appropriate national policy by the
Government with regard to service conditions of Judicial Officers. In
pursuance thereof National Judicial Pay Commission (Shetty Commission)
was constituted. One of the tasks of the· Commission was to restructure
553
H
554
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A judicial cadres and amalgamation of multiple cadres into three uniform cadra
So far as the cadre of Judges of Small Causes Court was concerned, in view
of the fact that there was no uniformity in their cadres, the Commission left
the matter to be examined and decided by the High Court of each State/Union
Territory. Regarding Chief Judge as well as Additional Chief Judge of Small
B Causes Courts, having regard to their supervisory powers and jurisdiction,
Commission recommended that they should be included in the cadre of District
Judges in all States/Union Territories.
In pursuance of recommendations of the Commission, High Courts of
Bombay and Gujarat constituted their respective Committees to consider the
C amalgamation of different cadres and fixation of seniority in the light of
observations made by the Shetty Commission and the same was placed before
Administrative side of the respective High Courts and the amalgamation was
decided by full court accordingly.
D
Three categories created in the State of Maharashtra were as under:
Category 1 : District Judges, Joint District Judges, City Civil Court
Judges
(iA) : Chief Judge, Small Causes Courts;
E
(ii) : Additional District Judges, Additional Chief Judges, Small Causes
Courts
Category 2 : Senior Civil Judges
(i) Chief Metropolitan Magistrates;
F
(ii) Additional Chief Metropolitan Magistrates;
(iii) Metropolitan Magistrates and Judges of Small Causes Courts;
(iv) Civil Judges (Senior Division)
G
Category 3 : Civil Judges (Junior Division)
Notifications were also issued by the Government of Gujarat. Aggrieved
by the decision of the Full Court, various judges of Maharashtra and Gujarat
approached this Court by filing interlocutory applications for clarification of
H the judgment of All India Judges' Association v. Union of India, and also by
ANIL KUMAR VIITHAL SHETE & ORS. v. STATE OF MAHARASHTRA
SSS
filing Writ Petitions for -declaring that the action of the Commission of A
referring the case of the petitioners to the High Courts was illegal and
improper.
The grievances of the Judges of Small Causes Court, Bombay and
Gujarat were that their placement in category 2 alongwith Civil Judges
(Senior Division) was illegal, er.r~ous amounting to demotion/reversion/ B
reduction in rank. They claimed to be placed in Category I alongwith
Additional Chief Judges, Small Causes Court.
The grievance of Chief Judge, Small Causes Court, Ahmedabad was
that his post ought to have been placed in Category I with District Judges C
and consequential benefits ought to have been made on that basis.
Metropolitan Magistrates, Mumbai, prayed that their scales of pay,
seniority, chances of promotion and other benefits be maintained and their
scales be fixed at par with that of Additional Chief Metropolitan Magistrates/
Additional District Judges.
D
Assistant Judges in the Judicial Service of Gujarat were aggrieved that
their placing with Civil Judges (Senior Division) in category 2 amounts to
reversion/demotion/downgrading which is unjust, arbitrary, unreasonable and
ex facie unsustainable. They pray for their placing in Category I ;ilong with
District Judge/Additional District Judges.
E
Application was also filed with prayer to direct the Government of
Gujarat to apply the Shetty Commission Report to all the retirees irrespective
of their date of retirement and also to allow other allowances payable to the
judicial officers.
Disposing of the petitions and applications of the Judicial Officers and
adjourning the application in respect of retirees, the Court.
F
HELD: I. I. It cannot be said that by placing Judges of Small Causes
Courts, Bombay and Ahmedabad and other places in Gujarat in Category 2
along with Civil Judges (Senior Division) but placing above them, any illegality G
has-been committed. (574-B)
1.2. It was expected of the respective High Courts to consider the cases
of Judges of Small Causes Court and make their placement keeping in view
all the relevant factors. The High Courts of Bombay and Gujarat, thought it H
556
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A proper to constitute Committees so that such Committees may consider the
relevant factors. Senior Judges of both the High Courts considered the
question keeping in view the relevant Acts, various decisions of this Court as
also the.observations made in the report of the Shetty Commission. It also
considered the representations made by the petitioners and taking overall view
of the matter decided to place them in Category 2 above Civil Judges (Senior
B Division). Such a decision cannot be described as arbitrary, unlawful or
otherwise objectionable. It is no doubt true, that since the Small Causes Courts
are constituted either in Presidency Towns or in other mega cities like
Ahmedabad, Rajkot, etc. the Judges had to do hard work and perform arduous
functions. That, however, does not mean that it would result in change of cadre.
C It cannot be contended by the petitioners that since they deal with cases having
high stakes or deciding complicated and controversial issues of civil rights
or commercial litigation, they should be placed in Category I along with
District Judges/ Additional District Judges. The decisions taken by the High
Courts cannot be faulted. (569-C-F; 569-H; 570-AI
D
1.3. It is always open to an employer to adopt a policy for fixing service
conditions of his employees. Such policy, however, must be in consonance with
the Constitution and should not be arbitrary, unreasonable or otherwise
objectionable. When several cadres are sought to be unified in few cadres,
e.g. three cadres in the instant case, it is natural that all Judicial Officers
E have to be placed in one or the other cadre. The said fact itself cannot make
the decision vulnerable. The High Court considered the question in its proper
perspective and while creating three cadres and placing Judicial Officers in
one of the cadres, took into account the relevant principles. So far as the
Judges of Small Causes Courts are concerned, they were placed in Category
2 but considering the fact that it was a promotional post from Civil Judges
F (Senior Division), all of them were en bloc placed above Civil Judges (Senior
Division) in the said Category. There is no infirmity therein.
(572-F-H; 573-8]
Reserve Bank of India v. N.C. Paliwal, (19771 l SCR 377; State of
Maharashtra v. Chandrakant Anant Kulkarni, 119811 4 SCC 130 and S.P.
G Shivprasad Pipal v. Union of India and Ors., [1998] 4 SCC 598, relied on.
1.4. Under the scheme of the Constitution, High Courts have been
invested with the power of superintendence and control over Subordin.ate
Judiciary. Bare reading of Articles 227 and 233 to 237 makes it explicitly
clear that the High Courts take care of and exercise control over District
H Courts and Courts subordinate thereto. This power of superintendence and
..
-
...
ANIL KUMAR VJITHAL SHETE & ORS. v. STATE OF MAHARASHTRA
557
control include inter alia to guide, advice and encourage Judges of subordinate A
courts to exercise their powers, discharge their duties and perform their
functions independently, fearlessly and objectively. As 'caretaker', guardian
and custodian of subordinate judiciary, the Full Court of the High Courts of
Bombay and Gujarat on Administrative Side have considered the position and
status of Judges of Small Causes Courts, and in the light of the relevant B
provisions of the Constitution as interpreted by this Court from time to time
have taken decisions to place them in Category 2. (573-E-G; 574-A-BI
Shamsher Singh v. State of Punjab, (1974( 2 SCC 831. referred to.
1.5. It cannot be said that the action impugned by the petitioners of C
placing them in Category 2 above Civil Judges (Senior Division) is illegal,
unlawful, arbitrary, discriminatory or otherwise objectionable. Since there
is no legal flaw in the decisions, they require no interference by this Court.
Consequent notification issued by the Government of Gujarat in the light of
the decision of the Full Court of High Court of Gujarat on its Administrative
Side also does not suffer from legal infirmity and the said notification cannot D
be struck down. (574-B-C)
2. It is, no doubt, true that the Shetty Commission recommended that
the Chief Judge, Small Causes Court should be included in the cadre .of
District Judges. It is also true that in State of Maharashtra, the post of Chief
Judge, Small Causes Court has been included in the District Cadre but having E
regard to the position and status of the Chief Judge, Small Causes Court and
keeping in view the observations of this Court in All India Judges' Association
v. Union of India, (2002( 4 SCC 247, the Administratie Side of the High Court
considered the question as to placement of the Chief Judge, Small Causes
Court and 'having regard to the horizontal and vertical relativity' of the Chief F
Judge, Small Causes Court, Chief Metropolitan Magistrate and Assistant
Judges, Chief Judge, Small Causes Courts, Ahmedabad could not be placed
along with District Judge. (576-H; 577-A-B)
3.1. After the judgment of this Court in All India Judges Association v.
Union of India, (2002) 4 sec 247, an application for clarification of the order G
was moved by the Additional Chief Metropolitan Magistrates of Mumbai. The
said application was, however, rejected by this Court. In view of the order
rejecting the application to clarify the Order passed by this Court, various
prayers made in this application made by the Metropolitan Magistrates in
Mumbai cannot be granted. The action of unification of cadres also cannot be H
558
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A set aside as the same is not illegal or contrary to law. [578-C-E)
B
3.2. In the facts and circumstances of the case, however, ends of justice
would be met if it is directed that pay scales of the applicants will not be
reduced nor recovery be effected in pursuance of the decision of the High
Court ofBombay on its Administrative Side. [578-E-F)
4. It cannot be said that by placing Assistant Judges in Category 2, above
Civil Judges (Senior Division), any illegality has been committed by the High
Court of Gujarat on its Administrative Side. A Committee of five Judges was
appointed and the said Committee considered the question of placement of
C Assistant Judges. Keeping in view the relevant provisions of the Constitution,
Recruitment Rules and the powers exercised by Assistant Judges, the
Committee felt that proper placement of Assistant Judges would be above Civil
Judge (Senior Division) in Category 2. Therefore, the grievance of the
Assistant Judges is not well-founded. It cannot be said that the status and
position of Assistant Judges had been ignored or overlooked by the
· D respondents while considering their cases and by placing them in Category
2. The Committee considered the relevant provisions of law and proper
placement has been made. [585-D)
E
F
G
Valjibhai H. Patel v. S.N. Sundaram, (1995) I GujLR 807 and N.J.
Mankadv. State, (1983) 2 Guj LR 897, referred to.
5. Since the question as to benefits of the Shetty Commission is pending
in other matters, the Registry is directed to place the Interlocutory Application
seeking direction to Government of Gujarat to apply Shetty Commission
Report to all retirees along with those matters treating it as pending.
[586-F)
CIVIL ORIGINAL JURISDICTION : I.A. No. 126
IN
Writ Petition (C) No. 1022of1989.
(Under Article 32 of the Constitution of India.)
WITH
I.A. Nos. 172, 181, 143, 141 in W.P. (C) No. 1022of1989, I.A. No. 2 in
H W.P. (C) No. 258 of2003 and W.P. (C) No. 173 of2004.
.;·
·.
ANILKUMAR VIITHALSHETE&ORS. v. STATEOFMAHARASHTRA[THAKKER,J.J 559
F.S. Nariman, P.P. Rao, V.B. Joshi, N.P. Bapat, M.V. Kini, Ravi Kini, A
Sanjay Parikh, Anita Shenoy, A.N. Singh, M.N. Shroff, Makarand D. Adkar,
Vijay Kumar and Vishwajit Singh for the Appellants.
U.U. Lalit, S.K. Dholakia, Mahesh Jethmalani, Hamantika Wahi,Ashish
Dholakia, U.A. Rana, Arvind Kumar for Mis. Gagrat & Co., Kamini Jaiswal,
Shomila Bakshi, Ms. Rani, Anirudha P. Mayee, S.S. Shinde, V.N. Raghupathy, B
R.S. Lambat, Mukesh K. Giri and S.M. Jadhav for the Respondents.
The Judgment of the Court was delivered by
C.K. THAKKER, J. Interlocutory Application No. 126 of2003 is filed in
Writ Petition (Civil) No. 1022of1989 by the Judges of the Small Causes Court, C
Bombay for declaration that the action of the Shetty Commission ofreferring
the case of the petitioners to the High Court of Bombay is illegal and improper;
to call for records and proceedings of the Full Court of the High Court of
Bombay and to set aside the decision taken by the Full Court by directing
the High Court to place the petitioners in the same cadre in which Additional D
Chief Judges of the Court of Small Causes have been proposed to be placed
by the Shetty Commission in Category I.
It is the case of the petitioners that they belong to a cadre of Judges
of Small Causes Court, Bombay which is an independent, separate and distinct
cadre filled up by promotion from Civil Judges (Senior Division) and also by E
direct recruitment. Their cases were considered by the Administrate Side of
the High Court of Bombay and a decision was taken by the Full Court to place
them in Category 2 of the judicial hierarchy in the State of Maharashtra. The
three categories created in the State of Maharashtra are as under:
Category I : District Judges, Joint District Judges, City Civil Court F
Judges
(iA) : Chief Judge,. Small Causes Courts; ·
(ii) : Additional District Judges, Additional Chief Judges, Small Causes
Courts
G
Category 2 : Senior Civil Judges
(i) Chief Metropolitan Magistrates;
(ii) Additional Chief Metropolitan Magistrates;
H
560
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A
(iii) Metropolitan Magistrates and Judges of Small Causes Courts;
(iv) Civil Judges (Senior Division)
Category 3 : Civil Judges (Junior Division)
The grievance of the petitioners is that, though they were holding
B higher post and forming higher cadre than Civil Judges (Senior Division) and
were promoted from the post of Civil Judges (Senior Division) to the post of
Judges, Small Causes Court, they have been illegally put on par with Civil
Judges (Senior Division) virtually reverting to the position of Civil Judges
(Senior Division) from which cadre they were promoted to the higher cadre.
c
It is the case of the petitioners that in All India Judges Association v.
Union of India, [ 1992] 1 SCC 119, this Court had issued certain directions in
regard to the working conditions of Judicial Officers and benefits to be
extended to the members of subordinate judiciary. After considering reports
submitted by the Law Commission and the relevant provisions of the
0 Constitution, the following directions were issued by this Court;
(i)
An All India Judicial Service should be set up and the Union of
India should take appropriate steps in this regard.
(ii)
Steps should be taken to bring about uniformity in designation
E
of officers both in civil and the criminal side by March 31, 1993.
(iii) Retirement age of judicial officers be raised to 60 years and
appropriate steps are to be taken by December 31, 1992.
(iv) As and when the Pay Commissions/Committees are set up in the
States and Union Territories, the question of appropriate pay
F
scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to
be provided by June 30, 1992. Provision for sumptuary allowance
as stated has to be made.
G
(vi) Residential accommodation to every judicial officer has to be
provided and until State accommodation is available, government
should provide requisitioned accommodation for them in the
manner indicated by December 31, 1992. In providing residential
accommodation, availability of an office room should be kept in
view.
H
-
--
ANIL KUMAR VllTHAL SHETE & ORS. v. STA TE OF MAHARASHTRA [THAKKER, J.J 561
(vii) Every District Judge and Chief Judicial Magistrate should have A
a State vehicle, judicial officers in sets of five should have a pool
vehicle and others would be entitled to suitable loans to acquire
two wheeler automobiles within different time limits as specified.
(viii) In-service Institute should be set up within one year at the
Central and State or Union territory level.
B
The directions were thus essentially for the evolvement of appropriate
national policy by the Government in regard to service conditions of Judicial
Officers. On March 21, 1996, pursuant to the above directions issued by this
Court, the Government of India constituted First National Judicial Pay
Commission under the Chairmanship of Mr. Justice K.J. Shetty (known as C
'Shetty Commission'). One of the tasks of the Commission was to restructilre
judicial cadres and amalgamation of multiple cadres into three uniform cadres.
So far as the cadre "of Judges of Small Causes Courts is concerned, after
taking into consideration the grievance of the Judges of Small Causes Courts
in Maharashtra and Gujarat, the Commission observed:
"It seems to us that question of equation of Small Causes Court
Judges must be left to the decision of each High Court since there is
no uniformity in their cadres. Jn some States, Civil Judge (Junior
Division) are empowered to exercise Small Causes Court jurisdiction
D
and that too on varied terms. In Metropolitan Cities, Civil Judges E
(Senior Division) are having such jurisdiction. It is not desirable to
bring about uniformity in their cadres in all States. We, therefore, leave
the matter to be examined and decided by the High Court of each
State/Union Territory". (Emphasis supplied)
Regarding Chief Judge as well as Additional Chief Judge of Small F
Causes Courts, however, having regard to their supervisory powers and
jurisdiction, the Commission recommended that they should be included in
the cadre of District Judges in all States/Union Territories.
In pursuance of the above observations and recommendations, the Full
Court of the High Court of Bombay on its Administrative Side considered the G
case of the petitioners and a decision was taken to club the petitioners in
Category 2 above Civil Judges (Senior Division). The ·grievance of the
petitioners is that the placement of the petitioners in Category 2 along with
Civil Judges (Senior Division) is illegal, erroneous, amounting to demotion/
reversion/reduction in rank and the said order, therefore, deserves to be H
562
~JPREME COURT REPORTS (2006) SUPP. I S.C.R.
A quashed and set aside by placing the petitioners in Category I along with
Additional Chief Judges, Small Causes Court.
According to the petitioners, a writ petition pertaining to the working
conditions of the subordinate judiciary throughout the country was filed in
this Court under Article 32 of the Constitution and in All India Judges
B Association v. Union of India, (2002] 4 sec 247, certain directions were
issued by this Court. It was the third round of litigation before this Court. A
three Judge Bench headed by Hon'ble the Chief Justice B.N. Kirpal disposed
of the petition. In Para 40, the Bench expressly stated;
c
"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."
D
In view of the above observations, the petitioners are constrained to
approach this Court for the reliefs prayed in the Interim Application.
On May 5, 2003, notice was issued by this Court to the High Court of
Bombay and was made returnable after summer vacation. The Court also
requested Mr. F.S. Nariman, Senior Advocate to appear and assist the Court
E as amicus curiae. On September 20, 2004, the Court noted that Writ Petition
(Civil) No. 258 of 2003 raising a similar issue also awaited hearing by the
Court. A direction was, therefore, issued to the Registry to place for hearing
the present Interim Application 126 of2003, Writ Petition (Civil) 258 of2003
as also Writ Petition (civil) 173 of 2004 and Interim Application 143 of 2003
together. The matters were thereafter heard from time to time.
F
We have heard the learned counsel for the parties. Mr. Nariman, learned
senior advocate, amicus curiae, submitted that the question of equation of
Judges of Small Causes Court, Bombay was left by the Shetty Commission
to the High Court since there was no uniformity in the cadre. According to
G the Shetty Commission, it was not 'desirable' to bring about uniformity in the
cadre of Judges of Small Causes Court. It was, therefore, left to be examined
and decided by the High Court in each State. With regard to Chief Judge and
Additional Chief Judge, however, the Shetty Commission considering their
supervisory powers and jurisdiction, recommended to be included Category
I of District Judges. According to Mr. Nariman, the Administrative Side of the
H High Court of Bombay cons,idered the question and it was decided to place
-
ANIL KUMAR ViITHAL SHETE & ORS. v. STA TE OF MAHARASHTRA [THAKKER, J.) 563
the Judges of the Small Causes Court in Category 2 of Civil Judges (Senior A
Division) which has seriously prejudiced the petitioners in their pay scales
as well as status. Though the petit.ioners were promoted from the post of Civil
Judges (Senior Division) as Judges of Small Causes Court, by the impugned
decision, they were again reverted to the feeder cadre of Civil Judges (Senior
Division). It was submitted that considering the functions to be performed, B
powers to be exercised and duties to be discharged by the Judges of the Small
Causes Court, proper placement would be in Category I along with Additional
Chief Judges, Small Causes Court and not in Category 2 with Civil Judges
(Senior Division). It was also submitted that since they were placed in Category
2 of Civil Judges (Senior Division), their chances of further promotion have
been adversely affected. It was, therefore, prayed that the impugned decision C
taken by the Full Court of the High Court of Bombay on its Administrative
Side be set aside by placing the petitioners in Category I and by treating them
equaliy with the Additional Chief Judges, Small Causes Court, Bombay.
Writ Petition (Civil) No. 173 of 2004 is filed by Judges of the Small
Causes Court, Ahmedabad (Gujarat) making a similar grievance of their D
placement with Civil Judges (Senior Division). They have also prayed for
quashing and setting aside the notification dated October 10, 2003 issued by
the State of Gujarat to the extent that it denied the status and service benefits
of the Judges of Small Causes Court by equating them with Civil Judges
(Senior Division) being illegal and unlawful. According to them, they should E
have been placed along with the Judges shown in Category I. They have also
raised almost similar contentions which have been raised by the Judges of
the Small Causes Court, Bombay.
Affidavits-in-reply have been filed on behalf of the High Court of
Bombay as also High Court of Gujarat. It was submitted that considering the p
status of Judges of Small Causes Court in Maharashtra and in Gujarat, the
Shetty Commission rightly observed that it was a special cadre and could not
be compared with the cadre of District Judges/ Additional DistrictJudges or
Civil Judges (Senior Division) or Civil Judges (Junior Division). The
Commission, therefore, rightly left the matter to be taken up by the respective
High Courts of each State. The High Courts of Bombay and Gujarat, pursuant G
to the above observations, considered the cases of Judges of Small Causes
Court and their placement and after taking into account the relevant provisions
of law, the powers to be exercised and duties to be discharged by them and
affording opportunities to them resolved that they could not be placed in
Category I along with District Judges/ Additional District Judges but could H
564
SUPREME COURT REPORTS [2006] SUPP. I S.C.R.
A be placed in Category 2. The Judges of the Small Causes Courts in both the
States i.e. State of Maharashtra as well as State of Gujarat were, therefore,
placed in Category 2 along with Civil Judges (Senior Division) but above
them. The decisions taken by the High Court on their Administrative Side and
consequential action, such as issuance of notification by the State of Gujarat,
cannot be said to be contrary to law or otherwise objectionable. The
B applications as well as writ petition, therefore, deserve to be dismissed.
We have been taken through the relevant provisions of law as also the
report of the Shetty Commission and the decisions of this Court. It was
submitted on behalf of the petitioners that Judges of Small Causes Courts are
C holding 'key posts'. According to them, the Presidency Small Causes Courts
Act, 1882 (Act XV of 1882) came into force with effect from !st July, 1882.
The object of the Act was to consolidate and amend the law relating to the
Courts of Small Causes established in the Presidency towns. In the beginning,
it was applicable to the Presidency Town of Bombay but after the creation
of the State of Gujarat, it was also applied to the City of Ahmedabad with
D effect from November 4, 1961. It was submitted thM Small Causes Courts had
a special history. There was initially only one Supreme Court at Calcutta
established under the Act of 1753 (Regulating Act of 1753). The decisions of
the Supreme Court could be challenged only before the Privy Council. At that
time, Presidency Towns of Bombay and Madras had only 'Recorder's Courts'.
E The Small Causes Courts worked in tile form of 'Courts of Requests'. In or
around 1850, the 'Courts of Requests' were replaced by Courts of Small
Causes. Jurisdiction of Supreme Court was conferred on the Court of Small
Causes in the Presidency Towns. They were 'Courts of Record' having power
to punish for contempt. Later on, a need was felt to bring Small Causes Courts
in conformity with the legal system prevailing in India and that is how the
F Presidency Small Causes Courts Act, 1882 came to be enacted.
Our attention in this connection was also invited to M.P. Jain's "Outlines
of Indian Legal History", (5th Edition) in which it has been observed that the
Courts of Requests were facing difficulties in practical working. Pecuniary
limits of their jurisdiction had created problems. Moreover, cases outside the
G jurisdiction of Courts of Requests had to go to Supreme Courts where the
proceedings were very expensive and dilatory and amounted to denial of
justice. There was thus great need and necessity for alternative mechanism
to dispense cheap and speedy justice in comparatively small matters.
Accordingly, an Act was passed in 1850 by the Indian Legislature abolishing
H Courts of Requests and establishing Courts of Small Causes in their place.
ANIL KUMAR VIITHAL SHETE & ORS. v. STA TE OF MAHARASIITRA [THAKKER, 1.1565
They were to follow practice and procedure subject to the approval of the A
respective Supreme Court. A Judge of the Supreme Court was to act as a
Judge of Small Causes Court. The jurisdiction of the Supreme Court was
concurrent with the Court of Small Causes in the Presidency Towns. By the
Presidency Towns Small Causes Courts Act, 1864, the jurisdiction of Presidency
Small Causes Courts was extended. The Presidency Small Causes Courts were
"in the immediate vicinity of the High Courts, and are practically much B
influenced by that vicinity, that they are attended by a fairly competent class
of advocates and that they are carefully watched both by press and public."
The learned author then stated;
"In each of the towns of Calcutta, Madras and Bombay there is Court C
of Small Causes which is subject to the superintendence of, and is
subordinate to, the High Court. The local limits of the jurisdiction of
each of the Small Causes Court corresponds with the local limits of
the ordinary original Civil Jurisdiction of the High Court concerned.
It has jurisdiction to try cases of civil nature when the amount or D
value of subject-matter does not exceed two thousands rupees. With
the consent of the parties to suit, however, the Court may try a suit
involving subject-matter of a higher value. Not all civil cases are
triable by the Court. It is ineligible to try, inter alia, suits relating to
revenue, recovery of immovable property, partition of immovable
property, restitution of conjugal rights, acts of the government, specific E
performance of contracts, injunctions, dissolution of partnership, etc.
If two judges of ttie Small Causes Court sitting together in any suit
differ in their opinion as to any question of law or usage, they may
refer the question to the High Court for opinion. Similarly, if the Court
entertains reasonable doubt on any point of law or usage in suit p
involving over Rs.500 and either of the parties to the suit so requires,
the question is to be referred to the High Court for opinion. Subject
to the superintendence of the High Court, every decree or order of
a Small Causes Court is final and conclusive." (emphasis supplied)
It was, therefore, submitted that the jurisdiction conferred with the G
creation of Small Causes Courts was a unique feature and the Courts were
of a special class and category. The local limits of the jurisdiction of each of
the Small Causes Court corresponded with the local limits of ordinary original
civil jurisdiction of the High Court concerned. Our attention was also invited
by the learned counsel to the relevant provisions of the Act of 1882. It was H
566
SUPREME COURT REPORTS (2006] SUPP. I S.C.R.
A stated that Section 8 expressly enacts that the Chief Judge is 'first' among
equals and as such all Judges of the Small Causes Court are of equal status.
It was also submitted that subject to the superintendence of the High Court,
every decree or order passed by the Small Causes Court is final and conclusive.
The counsel also submitted that the order passed by a Small Causes Court
B is not subject to appeal to the High Court. Only a revision lies in the High
Court in certain circumstances. It was urged that an intra court appeal lies
in certain cases against an order passed by one Judge of Small Causes Court
to a Division Bench of two Judges of the same Court (Section 42). In several
cases, such orders are passed by Additional Chief Judge of Small Causes
Court, Bombay and appeals are heard by a Bench of two Judges of that Court.
C In many cases, such appeals are allowed and the orders passed by the
Additional Chief Judges are set aside. A provision that in case of difference
of opinion in two Judges, the opinion of the Senior Judge would be preferred
was held to be arbitrary and ultra vires [vide Sobhna Shanker Patil v. Ram
Chandra Shirodkar. (1996) I Mah LJ 751] on the ground that "Judges who
are equal in rank enjoyed equal powers and jurisdiction as far as judicial work
D is concerned". In view of the above provisions and case-law, it must be held
that Judges of Small Causes Court are equal in status with Additional Judges
of that Court in Category I and they are not subordinate to Chief Judges or
Additional Chief Judges of Small Causes Court. The Judges of Small Causes
Court of Bombay, therefore, must be placed in Category I.
E
Reliance was also placed on the Bombay Judicial Service Recruitment
Rules, 1956. In exercise of the powers conferred by Article 234 as also under
the proviso to Article 309 of the Constitution, Recruitment Rules have been
framed. Ruie 4(3) provides for appointment of Judges of Small Causes Court
at Bombay. Under clau.>e (a)(i) of sub-rule (3) of Rule 4, Judges of Small
F Causes Court can be appointed by promotion from Civil Judges (Senior
Division). It was, therefore, submitted that the post of Judges of Small Causes
Court is a promotional post and cannot be equated with the cadre of Civil
Judges (Senior Division). The impugned action taken by the respondents,
therefore, deserves to be quashed and set aside by issuing appropriate
G directions as prayed by the petitioners.
It was also submitted that Small Causes Courts were constituted to
create a forum which was 'to ease the burden of higher judiciary in the
Presidency Towns'. Because of that fact, the Judges of Small Causes Courts
were placed higher than Civil Judges (Senior Division). It was admitted that
H technically speaking, Judges of Small Causes Court were exercising jurisdiction
ANIL KUMAR VIITHAL SHETE & ORS v. STATE OF MAHARASHTRA [THAKKER, J.]567
of Civil Judges (Junior Division) or Civil Judges (Senior Division) in certain A
fields, such as money suits, Rent cases, etc. But their workload is higher and
much more difficult than the workload of Civil Judges. For instance, under the
Rent Legislation, the litigation in mofussil towns under Rent Legislation
cannot be compared with litigation in the Metropolis of Bombay. Apart from
the fact that the stakes are very high, complex civil rights and complicated B
questions oflaw are raised in the City of Bombay. Unfortunately, however, the
said fact has been totally ignored and overlooked by the Administrative Side
of the High Court. Similar is the position of the Judges of Small Causes Court
in Gujarat. Re_nt cases in Ahmedabad or Rajkot cannot be compared with
similar cases at other places. Again, the jurisdiction under the Bombay
Provincial Municipal Corporations Act, 1949 in the matters of assessment of C
Municipal Tax are difficult and complicated and considering the work
undertaken by Judges of Small Causes Courts, they ought to have been
placed in Category 1 along with Additional Chief Judges, Small Causes Court.
On behalf of the High Courts of Bombay and Gujarat, however, it was
submitted that the petitions/applications are not maintainable and they deserve D
to be dismissed. As far as High Court of Bombay is concerned, it was
submitted that a Committee was constituted of four Senior Judges of the High
Court to consider the amalgamation of different cadres and fixation of seniority
in the light of observations made by the Shetty Commission. Several sittings
were held by the Committee. It considered the placement of Judges of Small E
Causes Court taking into account the functions performed by them. Personal
hearing was also afforded to the Judges of the Small Causes Court and on
overall consideration, it was decided that they should be placed in Category
2 but above Civil Judges (Senior Division). It was also stated that though in
several States, there are Small Causes Courts, such as Maharashtra, West
Bengal, Tamil Nadu, Uttar Pradesh, Gujarat, Delhi, etc., in none of the States, F
the post of Judge of the Court of Small Causes was equated with the District
Judge in Category I . It was stated that when several cadres were to be
reduced into three cadres, all Judicial Officers had to be placed in one of the
three cadres. Considering the special status and position of Judges of Small
Causes Court, the Shetty Commission rightly left the question to be determined G
by each High Court and accordingly the exercise was undertaken by the High
Court of Bombay. Taking note of administrative and supervisory powers of
the Chief Judge and Additional Chief Judge, they were placed in Category I
along with District Judges and Additional District Judges but below them.
Since Judges of Small Causes Court are promoted from the post of Civil
Judges (Senior Division) as also Civil Judges (Junior Division), they were H
568
SUPREME COURT REPORTS [2006) SUPP. I S.C.R.
A rightly placed in Category 2 above Civil Judge (Senior Division). The said
action can neither be said to be arbitrary or illegal nor unlawful or unreasonable.
it was further submitted that every promotional post cannot form a
cadre in itself, especially, when all Judicial Officers had to be accommodated
and placed in three cadres only. In view of the said circumstance, an action
B has been taken which is in consonance with law and recommendations of the
Shetty Commission.
On behalf of the State of Gujarat also, similar stand has been taken. It
was submitted that a Committee of Senior Judges of the Court was constituted
C to consider the case of Judicial Officers and the said Committee, after
considering all relevant facts and circumstances, took a decision to place the
Judges of Small Causes Courts in Category 2 and the said decision is legal
and valid.
Having considered the respective contentions of the parties and
D decisions to which reference has been made, it cannot be said that by placing
Judges of Small Causes Courts, Bombay and Ahmedabad and other places in
Gujarat in Category 2 along with Civil Judges (Senior Division) but placing
above them, any illegality has been committed. So far as the Shetty Commission
is concerned, it is clear that the said Committee considered one of the
questions which related to equation of posts by amalgamation of multiple
E cadres into three uniform cadres. The Commission considered the case of all
Judicial Officers and they were placed in one or the other cadre. So far as
Judges of Small Causes Courts are concerned, the Commission opined that
they formed a unique cadre and in view of their special position, the Commission
in paragraphs 7. 73 to 7. 76 observed as under:
F
7.73 The High Court of Bombay has stated that while unifying
subordinate judicial service into three tier system, Small Causes Court
Judges will have to be included in the second tier, i.e., of Civil Judges
(Sr. Divn.), and Chief Judges, Small Causes Court/Additional Chief
Judge, Small Causes Court are to be included in the first tier viz., the
G
cadre of District and Sessions Judges.
H
7.74 The High Court of Gujarat has also stated that the Judges of the
Provincial Small Causes Court are to be included in the second tier
along with the Civil Judges (Sr. Divn.)/ Chief Judicial Magistrates/
Metropolitan Magistrates.
ANIL KUMAR VITIHAL SHETE & ORS. v.